South Africa's highest court has dealt a final blow to two construction companies seeking to retain profits from a scandal-ridden R40-million border fence project, dismissing their appeals and cementing six years of adverse rulings against them.
The Constitutional Court on Tuesday (5 May) refused applications for leave to appeal by Profteam CC and Caledon River Properties (Pty) Ltd, trading as Magwa Construction, ruling that their applications did not engage the court's jurisdiction. Both appeals were refused with costs.
The Special Investigating Unit (SIU), which brought the original case, welcomed the outcome.
The dismissals bring to a close one of the more visible chapters of South Africa's COVID-19 procurement scandal — a saga that began in March 2020, when the National Department of Public Works and Infrastructure awarded contracts worth approximately R40.4 million to the two companies without following a competitive bidding process.
The project involved the construction of a 40-km razor-mesh fence along the South Africa-Zimbabwe border at Beitbridge. The contractors received large advance payments of about R21.8 million before any substantial work was performed. Soon after completion, the fence began to fall apart. Within days of completion, pictures emerged of gaping holes in the new fence. The images drew widespread public outrage and prompted calls for accountability.
After President Cyril Ramaphosa authorised the SIU to investigate COVID-19 procurement in July 2020, the unit revealed procurement irregularities, and this led to proceedings against the two companies before the Special Tribunal.
The case wound its way through multiple courts over several years. In March 2022, the Special Tribunal declared the contracts invalid and ordered the contractors to repay profits, limiting their recovery to reasonable and proven expenses. Special Tribunal Judge Lebogang Modiba said the state and the public were the biggest losers. "They have been deprived of the variety of public, social and economic benefits that flow from a solid border track at the Beit Bridge border and are saddled with a deficient border fence," Modiba said.
The High Court upheld that ruling in December 2023. The Supreme Court of Appeal (SCA) then refused special leave to appeal in April 2024, and in January 2026 dismissed a further reconsideration application — effectively exhausting the contractors' options at that court.
The Constitutional Court's refusal now closes off the final avenue for challenge.
The SIU said the rulings reinforced the principle that no party may profit from irregular and unlawful procurement. The unit added that it would refer any evidence of criminal conduct uncovered during its investigation to the National Prosecuting Authority (NPA) for further action, and remains authorised to pursue civil proceedings to recover financial losses suffered by the state.
The SCA, in its earlier judgment, found that the contractors could not be characterised as innocent tenderers. While there was no finding of fraud or corruption, they were described as experienced participants in public procurement. The court noted that Profteam had acted as principal agent — a role carrying professional obligations to ensure regulatory compliance.