THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case no: 62/2019

KP Case Nos: 4536/2017P

10475/2017P
In the matter between:
RESULTANT FINANCE (PTY) LTD

APPELLANT
and
HEAD OF DEPARTMENT FOR THE
DEPARTMENT OF HEALTH, KWAZULU-NATAL

FIRST RESPONDENT
MEC FOR HEALTH, KWAZULU-NATAL

SECOND RESPONDENT
KP Case No. 10475/2017P
And in the matter between:
RESULTANT FINANCE (PTY) LTD

APPELLANT
and
MEC FOR FINANCE IN THE PROVINCE OF
KWAZULU-NATAL

THIRD RESPONDENT
ARKEIN CAPITAL PARTNERS (PTY) LTD

SECOND RESPONDENT
Neutral citation:
Resultant Finance (Pty) Ltd v Head of Department for the
Department of Health, KwaZulu-Natal and Another (62/2019)
[2020] ZASCA 87 (16 July 2020)
Coram:
PETSE DP and CACHALIA, WALLIS, MBHA and MOLEMELA JJA
Heard:
No oral hearing in terms of s 19(a) of the Superior Courts Act 10 of
2013.
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
10h00 on 16 July 2020.

Summary:
Review of tender award – contract period of tender lapsed prior to
hearing of appeal – no substantial points of law or matters of substance raised –
appeal dismissed by reason of mootness under s 16(2)(a)(i) of the Superior Courts
Act 10 of 2013.

ORDER

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Mngadi J, sitting as court of first instance):
The appeals are dismissed with costs, including the costs occasioned by the
employment of two counsel.

JUDGMENT

Molemela JA (Petse DP and Cachalia, Wallis and Mbha JJA concurring)
Introduction
[1] These appeals concern a dispute emanating from the cancellation of a
public procurement contract concluded pursuant to a tender that was awarded to
Resultant Finance (Pty) Ltd (the appellant) by the KwaZulu-Natal Provincial
Department of Health (the Health Department).

Background facts
[2] On 2 March 2015, the appellant submitted a bid1  in response to a Request
for Proposal (RFP) issued by the Health Department for the provision of services
to manage the leasing of medical and non-medical equipment. By letter dated 8
April 2015 addressed to the appellant, the Health Department informed the

1 One of the requirements of the tender was set out as follows in clause 2.34 of the Request for
Proposal:
‘The bidder must be a Registered Financial Services Provider registered with the Financial Services
Board (FSB). The relevant certificates must be submitted with bid, failure to comply with this clause
will invalidate your bid. If the bidder is a Joint Venture or Consortium or Partnership at least member
thereof must be registered with FSB and proof to that effect must be attached. Failure to submit
will invalidate the proposal submitted and the bid will not be considered for evaluation.’ (Own
emphasis.)

appellant that its bid had been successful. On 13 April 2015, the appellant
accepted the terms and conditions of the contract. On 22 April 2015, the Health
Department signed a five-year contract (the contract) in terms of which the
appellant was formally appointed as the solution provider responsible for sourcing
medical and non-medical equipment through lease agreements. The contract was
signed on behalf of the Health Department by its former Head of Department (the
HOD). It is common cause that upon the conclusion of the contract, no value was
placed on it; instead, the percentage of the value was agreed upon as a basis for
the determination of a contract price. On the appellant’s estimation, it was
envisaged that the total value of the contract over the full contract term of 5 years
would amount to hundreds of millions of rand, if not in excess of a billion rand.

[3] The appellant contended that on 31 August 2015, the first respondent
approved an initial order for equipment and requested the respondent to
commence with the acquisition process. The value of the scanners was estimated
to be in excess of R400 million. During October 2015, the PIC granted a facility of
R1.7 billion to be advanced to the appellant under certain conditions, amongst
which was the appellant’s compliance with all procurement legislation.

[4] On 26 January 2016, the Health Department addressed a letter to the
appellant asking it to show cause as to why the contract should not be cancelled
on account of the appellant’s failure to perform in accordance therewith. On
3 February 2016, the appellant responded to the Health Department’s letter,
disputing that there was any reason for cancellation of the contract. In
August 2016, a forensic investigation into the bid process was commenced at the
instance of the Health Department. The appellant was duly informed of that
investigation. The interim investigation report was issued on 30 March 2017. On
21 April 2017 the appellant launched an application in the KwaZulu-Natal Division
of the High Court, Pietermaritzburg on the basis that the Health Department had
breached the contract (the first application). The HOD and the Member of the
Executive Council for the Department of Health, KwaZulu-Natal (MEC for Health)

were cited as the first and second respondent, respectively. The appellant sought
a declaratory order confirming the existence of the contract and an order
compelling the Health Department to comply with its obligations thereunder.

[5] On 13 June 2017 the Health Department cancelled the contract on the basis
that the appellant: had not met the bid requirements, had failed to secure funding
to execute the contract, and was unable to execute the works. On 23 June 2017,
the final forensic investigation report was submitted to the Health Department. On
12 July 2017, the HOD and the Health Department (together referred to as the
respondents) filed an affidavit opposing the first application. The respondents
simultaneously filed a counter-application seeking an order declaring that the
contract had been validly cancelled in June 2017.

[6] On 14 September 2017, the Member of the Executive Council for Finance,
KwaZulu-Natal (MEC for Finance) launched review proceedings in the High Court
against the appellant (the second application), asserting that the award of the
tender was unlawful and invalid. The basis of that application was that the tender
awarded by the Health Department to the appellant had not complied with the
tender requirements set out in the RFP. The Health Department was not cited as
a party in the second application. The MEC for Finance also sought an order
consolidating the first and second applications.

[7] Both applications came before the High Court and were simultaneously
adjudicated upon by Mngadi J (the court a quo). The court a quo dismissed the
first application. It found that the contract concluded by the parties lacked specifics
and reasoned that various issues needed to be resolved by the parties prior to the
performance of each party’s contractual obligations. The court a quo also
dismissed the Health Department’s counter-application, inter alia, on the basis that
even if it were to be accepted that the award of the tender to the appellant was
irregular, it was not up to the Health Department to decide that the tender was of
no force or effect, without bringing an application for review of that award.

[8] With regard to the second application, the appellant raised several
preliminary points in relation to the launching thereof. The appellant contended that
the MEC for Finance had launched that application after an unreasonable delay of
two years and six months and, in any event, had no standing to review the
administrative action of another provincial department. It was also submitted that
the failure by the MEC for Finance to join the Health Department in the second
application had rendered it irredeemably flawed.

[9] It was submitted on behalf of the MEC for Finance that in bringing the
second application, she was acting in accordance with an agreement she had
concluded with the Premier of KwaZulu-Natal and the MEC for Health, in terms of
which it was agreed that she would launch that application as a representative of
the provincial government as a whole.2 Reasons were also advanced to explain
why the MEC for Finance had not launched the second application earlier.

[10] The court a quo dismissed all the preliminary points. As regards the issue
of standing, it accepted the MEC for Finance’s assertion that the provincial treasury
was concerned with matters of expenditure in the province and thus played a
transversal role within the provincial government framework.3 On that basis, it
found that the MEC for Finance had a direct and substantial interest in the subject
matter and therefore had locus standi to bring the application for review. With
regard to the issue of non-joinder, it found that, since the MEC for Health had
deposed to an affidavit supporting the MEC for Finance, the MEC for Health did
not wish to be joined in that litigation, with the result that the non-joinder of the
MEC for Health in the second application was of no consequence. It accepted the
reasons proffered by the MEC for Finance and condoned the delay in launching
the second application.

2 The MEC for Finance averred that this was done in accordance with the executive powers and
functions imposed under s 125(2)(b), (c)and (g) of the Constitution.
3 Reliance was placed on secs 17 and 18 of the Public Finance Management Act 1 of 1999, which
bestows on the MEC for Finance the authority to head the provincial treasury and also empowers
the incumbent to intervene and take appropriate steps to address breaches of the Act by a
provincial department or provincial public entity.

[11] Concerning the merits, the court a quo found that the central issue related
to the requirements stipulated in clause 2.34 of the RFP, which stipulated that a
bidder’s failure to submit proof of registration with the Financial Services Board
(FSB) would invalidate the bid.4 It considered non-compliance with that provision
as an irregularity that tainted the bid process.

[12] In upholding the review sought in the second application, the court a quo
expressed itself as follows:
‘The real issue, in my view, relates to the requirement stipulated in clause 2.34 of the
[RFP]. . . . There was no ambiguity in the requirement and it needed no interpretation. It
stated that the bidder was required to be a registered financial services provider with FSB.
If it was a Joint Venture or Consortium or Partnership it would suffice if one of its members
was so registered. It [is] common cause that [the appellant] made a bid alone. It was not
a Joint Venture, Consortium or Partnership. Clearly the award of the tender to [the
appellant] was irregular. [The] Health [Department] had no authority to award the bid to
[the appellant] in contravention of the Bid Specifications. The awarding of the tender to
[the appellant] was unfair in that it favoured [the appellant] over other entities not
registered as required and it deprived entities so registered of being awarded the tender.
It rendered the process uncompetitive and unfair in that a bidder who was supposed to be
disqualified was awarded a tender. . . . It was illegal in that it contravened section 217 of
the Constitution, Treasury Regulations and the SCM policy of the Department of Health.
The award of the tender to [the appellant] allowed corrupt practices in that set published
requirements were not applied. It resulted in an unfair process. See AllPay Consolidated
v Chief Executive Officer SASSA 2014 (1) SA 604 (CC).
. . .
In my view, in this application factors that carry more weight are the following: there has
been no delivery in terms of the contract; the ground of review is of substance; [the
appellant] is the author of the established ground of review; the contract was a high value
contract; there were issues around the delivery in terms of the contract that had not been
resolved by the parties which delayed delivery in terms of the contract. In conclusion, the
delay in lodging the review application is condoned.
. . .

4 See footnote 1 above.

Once it is found that the award of the tender to [the appellant] was unlawful, it is required
that it be considered what would be the just and equitable remedy in the circumstances.
There has been no delivery in terms of the contract. The affected parties are [the appellant]
and the [Health] Department. There are no consequences of the award that are
irreversible. The non-compliance must be placed at the door of [the appellant] and in my
view it was a substantial non-compliance. I find that it is a just and equitable remedy to set
aside the award of the tender to [the appellant].’

[13] The court a quo granted the appellant leave to appeal against its judgment
on a limited basis. The appeal against the whole judgment of the court a quo is
with the leave of this Court.

Issues raised in the parties’ heads of argument
[14] The parties’ heads of argument raised the following issues for
determination. Whether the contract that arose out of the procurement award was
extant and should be enforced; whether the court a quo correctly granted
condonation in review proceedings launched more than two years after the
impugned decision; whether the award made in favour of the appellant, was
irregular, unlawful, ultra vires; whether the court a quo correctly granted a review
of that award on the basis of the principle of legality;5  and if so, whether the
irregularities contended for were material to warrant the setting aside of the award.

Submissions made on behalf of the parties in this Court
[15] It was submitted on behalf of the appellant that the court a quo’s finding that
the appellant had not delivered its performance as contemplated in the contract
was incongruent with its finding that the Health Department had failed to issue any
purchase orders despite its contractual obligation to do so. The appellant argued
that the dismissal of its application flew in the face of the principle that where a

5 The reliance of the MEC for Finance on the principle of legality was averred in her replying
affidavit, filed on 1 December 2017. This clarification was made pursuant to the handing down of
judgment on 14 November 2017 in State Information Technology Agency SOC Limited v Gijima
Holdings (Pty) Ltd [2017] ZACC 40; 2018 (2) BCLR 240 (CC); 2018 (2) SA 23 (CC).

party has proven a right and the breach thereof, a court has no discretion to refuse
to grant relief to vindicate the breach of the said right.6

[16] It was further submitted on behalf of the appellant that the court a quo ought
to have upheld the preliminary point on the basis that it is not the MEC for Finance’s
personal knowledge that triggers the duty to act, instead, the knowledge of those
who were involved in the procurement process was imputed to the organ of state
itself, namely, the Department of Finance.

[17] Concerning the merits, it was submitted on behalf of the appellant that there
was no justification for the cancellation of the contract by the Health. The appellant
further contended that the Health Department had deliberately made it impossible
for it to perform its obligations under the contract in order to justify its subsequent
repudiation thereof.

[18] In relation to the second application, it was submitted on behalf of the
appellant that the MEC for Finance had delayed unreasonably in bringing the
review application. The court a quo was also criticised for having found that the
MEC for Finance was entitled to seek the review of the administrative acts of the
Health Department.

[19] It was contended on behalf of the appellant that, in finding that the tender
to the appellant was irregular, the court a quo had ignored objective evidence,
namely, the content of the co-operation agreement concluded between the
appellant, Standard Bank and STANLIB.

[20] It was submitted on behalf of the respondents and the MEC for Finance that
the appellant had not submitted proof of registration with the FSB and had
therefore failed to comply with clause 2.34 of the bid.

6 Chunguete v Minister of Home Affairs and Others 1990 (2) SA 836 (W) at 848I-849A.

[21] Given the view I take on this matter, it is not necessary for this Court to
analyse the parties’ submissions relating to the merits in any detail. Suffice it to
emphasise that s 217 of the Constitution lays down the threshold requirements for
a valid procurement process in accordance with a system that is ‘fair, equitable,
transparent, competitive and cost-effective’.7 Statutes, such as the PFMA and
subordinate legislation made under that Act, such as the Treasury Regulations, as
well as the supply chain management policies that have to be applied by organs
of state, all give effect to the constitutional injunction enunciated s 217 of the
Constitution.8 Section 172(1)(a) of the Constitution9 obliges every competent court
to declare invalid law or conduct that is inconsistent with the Constitution.10
Following thereon, a court must, in terms of s 172(1)(b) make an order that is just
and equitable.

[22] It is clear from the bid documents that only the name of the appellant was
reflected as the bidder. Furthermore, the appellant was, by its own admission, not
registered with the FSB. The appellant asserted that an employee of Standard
Bank had mentioned at the tender briefing meeting that Standard Bank would be
in a joint venture with the appellant for purposes of the bid. The appellant
contended that the requirements in clause 2.34 of the RFP had been met, insofar
as it had, on 27 February 2015, entered into a ‘co-operation agreement’ with
Standard Bank and STANLIB, which entities were registered with the FSB. It is
undisputed that no proof of FSB registration, in relation to Standard Bank and
STANLIB, was attached to the appellant’s bid documents.

7 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited [2019] ZACC 15; 2019 (6)
BCLR 661 (CC); 2019 (4) SA 331 (CC) para 89.
8 Valor IT v Premier, North West Province and Others [2020] ZASCA 62 para 40.
9 Section 172(1)(a) provides:
‘(1) When deciding a constitutional matter within its power, a court –
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency.’
10 Notyawa v Makana Municipality and Others [2019] ZACC 43; 2020 (2) BCLR 136 (CC); [2020]
BLLR 337 (CC); (2020) 41 ILJ 1069 (CC) para 49.

[23] Significantly, clause 2.19.2 of the RFP, stipulated that in the case of a joint
venture, the names and particulars of each company participating therein had to
be provided. In addition thereto, a certified copy of the joint venture agreement had
to be attached to the bid, specifying the percentage of the contract to be
undertaken by each company participating therein. It is apparent from the bid
documents submitted by the appellant, that a line has been drawn diagonally
through the text appearing on the page reserved for the names and other details
of the members of a joint venture; in other words, the required information
pertaining to members of the joint venture was not furnished.  It is difficult to
conceive of a clearer indication that the appellant was not acting on behalf of a
joint venture.

[24] In terms of clause 2.34 of the RFP, failure to submit proof of registration
with the FSB would invalidate the bid.11 The appellant’s non-compliance with
clause 2.34 of the RFP, which required the bidder (including a Joint Venture,
Consortium or Partnership) to not only be registered with the FSB but also to
submit proof of such registration with its bid documents, is self-evident. As stated
before, s 172(1)(a) of the Constitution obliges every competent court to declare
invalid law or conduct that is inconsistent with the Constitution.

[25] I interpose to refer to a directive issued by this Court and sent to the parties
prior to the date allocated for the hearing of the appeal. Having noted that the relief
sought by the appellant was specific performance of obligations in terms of the
contract,12 and having noted that the date of termination of the contract by effluxion
of time predated the date allocated for the hearing of the appeal, the parties were

11 See footnote 1 above.
12 The relief sought was couched as follows:
‘1.
Declaring as valid and extant the written contract between the applicant and the
Department of Health KwaZulu-Natal on 22 April 2015 for the appointment of the applicant as a
solution provider to manage the leasing of medical and non-medical assets for the KwaZulu-Natal
Department of Health.
2.
Directing immediate specific performance by the respondents in terms of the contract for
the entire duration of the contract period commencing on 22 April 2015 for a period of 5 years
expiring on 30 April 2020. . . .’ There was other relief prayed for, which was for various forms of
specific performance.’

directed to file supplementary heads of argument on the question of whether the
decision sought on appeal would have a practical effect or result.

Mootness
[26] Section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 provides that
where the issues in an appeal are of such a nature that the decision sought will
have no practical effect or result, the appeal may be dismissed on this ground
alone. It is trite that if there is no longer a live controversy between the parties,
then there is no longer an appeal that would have any practical effect.13 Where the
existing or live controversy is absent, the matter is moot. This principle is based on
the notion that judicial resources should be efficiently employed and not be used
for advisory opinions or abstract propositions of law.14 In this matter, the relief
sought by the appellant in its Notice of Motion was for specific performance. The
clear constraint is that the contractual term of the agreement has expired.

[27] In their supplementary heads, the respondents and the MEC for Finance
submitted that the issues in dispute had been overtaken by events and that the
resolution of that dispute would not afford the appellant any practical relief.15 The
appellant contended that the mere fact that the contract forming the basis of its
claim had been terminated by effluxion of time was not, in and of itself, sufficient
to render the case moot. It pointed out that dismissing the appeal on the grounds
of mootness would encroach on its rights of access to the courts, as the
respondents would raise the defence of res judicata if it tried to sue for damages.
The appellant submitted that it was important for this Court to hear the appeal, as
an order in its favour would entitle it to proceed with a damages claim against the
Health Department.

13 Independent Electoral Commission v Langeberg Municipality 2001 (9) BCLR 883 (CC); 2001 (3)
SA 925 (CC).
14 JT Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC); 1996 (12) BCLR
1599 (CC) para 15; Normandien Farms (Pty) Ltd v South African Agency for the Promotion of
Petroleum Exportation and Exploitation (SCO) Ltd and Others [2020] ZACC 5 para 47.
15 Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012]
ZASCA 166; 2013 (3) SA 315 (SCA) paras 5-6.

[28] I am mindful of the fact that the appellant had sought, in the alternative, an
order declaring the contract cancelled on the basis of the Health Department’s
breach thereof. That relief was misconceived, as it is for the parties to the contract
to elect to cancel it and not for the court to declare it cancelled. Equally
misconceived is the appellant’s contention that it needs to be successful on appeal
in order for it to proceed with a damages claim. This is premised on the fact that it
was always open to the appellant to seek damages as a remedy for the alleged
breach of contract.

[29] I consider next whether this appeal should be decided despite the issues
on the merits being moot. The judgment of the Constitutional Court in Normandien
Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation
and Exploitation (SOC) Ltd and Others16 is instructive. The Constitutional Court re-
affirmed that mootness is not an absolute bar to the justiciability of an issue.
Following a careful analysis of the principles applicable to mootness and the
attendant discretion to deal with matters despite their mootness, it enumerated
factors that should form part of that enquiry. These include:
‘(a)
whether any order which it may make will have some practical effect either on the
parties or on others;
(b)
the nature and extent of the practical effect that any possible order might have;
(c)
the importance of the issue;
(d)
the complexity of the issue;
(e)
the fullness or otherwise of the arguments advanced; and
(f)
resolving the disputes between different courts.’

[30] In relation to (a) and (b), the appellant, relying on this Court’s judgment in
MEC: Department of Police, Roads and Transport, Free State Provincial
Government v Terra Graphics (Pty) Ltd t/a Terra Works and Another (Terra
Graphics),17 submitted that dismissing the appeal on the grounds of mootness
would have an undesirable result as the respondents would not account for: (a)

16 [2020] ZACC 5; 2020 (6) BCLR 748 (CC) para 50.
17 [2015] ZASCA 116; [2015] 4 All SA 255 (SCA); 2016 (3) SA 130 (SCA).

their unconstitutional conduct of undermining a valid contract based on a lawfully
awarded tender; and (b) resorting to ‘tactical manoeuvring’. It is evident from the
averments made in the appellant’s affidavits that the conduct it considered to be a
manifestation of the ‘tactical manoeuvring’ included a delay in processing the
purchase orders, the Health Department launching a forensic audit under ‘dubious
circumstances’ in which the forensic investigator asked ‘nefarious questions’, a
delay in filing the answering affidavits and the counter-application, culminating in
the MEC for Finance’s launching an application for review after what the appellant
termed ‘an inordinate delay’.

[31] In Terra Graphics, the provincial government had awarded a tender in
relation to a road infrastructure programme and concluded an agreement with the
second respondent as the main contractor for the supply of engineering services.
The provincial government also sanctioned the appointment of the first respondent
as the subcontractor. After both respondents had completed the work and received
some payment, the provincial government refused to pay the balance owing, on
the basis that the work had not been budgeted for. Notwithstanding that the
provincial government had received the benefits of the labour of the two
contractors, the provincial government contended that the failure to budget for the
contemplated project in the year in which the agreement with the main contractor
was concluded, amounted to a contravention of the applicable regulatory statutory
provisions. It therefore considered itself entitled to refuse to be held to its
obligations in terms of the concluded agreements. This Court found that the
provincial government had behaved unconscionably and conducted itself without
integrity. It dismissed the provincial government’s appeal.

[32] In this matter, the respondents inter alia relied on the findings of the forensic
investigation for its decision to cancel the contract. In explaining its conduct in
relation to the performance of its obligations under the agreement, the respondents
asserted that the irregular award of the bid to the appellant was as a result of
collusive conduct between the former HOD and a small group of people, who had

concealed the irregularities. According to the respondents, the irregularities only
surfaced when the new HOD was appointed. The new HOD had raised concerns
about a number of contracts, which culminated in a forensic investigation being
initiated in August 2016. The interim report arising from the forensic investigation
had found that the award of the bid to the appellant was irregular and
recommended that disciplinary action be taken against some officials.  The MEC
for Finance asserted that the final forensic investigation report only came to her
personal knowledge on 13 August 2017, which prompted her to launch the second
application.

[33] The conduct of the officials in this matter bears similarities with that of the
officials in Valor IT v Premier, North West Province and Others (Valor IT),18 which
was captured as follows:
‘It is clear that officials in the Department played a pivotal role in the scheme, from the
initial award of the SDA to VIT to its progressive extensions thereafter. This ongoing
involvement explains why the legality of the scheme was not challenged prior to the first
cancellation. It was only after the provincial government had been placed under
administration, with new officials looking afresh at the relationship between the
Department and VIT, that that was done.’ (Footnotes omitted.)

[34] This Court in Valor IT reaffirmed that the determination whether
condonation of an unreasonable delay should be granted was a ‘factual, multi-
factor and context-sensitive’ enquiry in which a range of factors are all considered
and weighed before a discretion is exercised one way or the other.19 Relying on
the approach laid down in various authorities, this Court found that the court below
was justified in overlooking the unreasonable delay.

[35] Reverting to the facts of this matter, the reasoning of the court a quo in
relation to its decision to condone the delay in launching the second application is

18 Valor IT, supra paras 33-34.
19Valor IT para 29-30; Gqwetha v Transkei Development Corporation Ltd and Others [2006] 3 All
SA 245 (SCA); 2006 (2) SA 603 (SCA) para 33.

not out of sync with the applicable legal principles. Moreover, its finding that the
appellant had not yet procured any equipment on behalf of the Health Department
is borne out by the record.20  I am of the view that there is no clear evidence of
unconscionable conduct on the part of the respondents. The facts of this case are
therefore distinguishable from those in Terra Graphics.

[36] In condoning the delay in launching the second application, the court a quo
exercised a discretion that can be justified on appeal only on narrow grounds.21 Its
decision can only be set aside on appeal if it is found that it did not exercise its
discretion judicially,22 in other words, if its decision was based on incorrect facts or
wrong legal principles.23 This does not appear to be the case. In my view, the
objective facts of this case, viewed against the backdrop of the statutory provisions
and case-law canvassed earlier in this judgment, lead to an ineluctable conclusion
that a decision in this appeal will serve no practical effect.

[37] I am also satisfied that this matter does not implicate a public interest
element that would otherwise impel this Court to hear the appeal despite
mootness. As the appellant is merely advancing its own commercial interest in this
matter, the issues raised for determination are only of importance to the parties
hereto. Furthermore, the matter considered by the court a quo was not unduly
complex. The court a quo dismissed the appellant’s application and granted the
second application on clear and simple grounds. The appeal is fact-specific, relying
on established principles. There is a plethora of judgments pertaining to a review
based on the principle of legality.24 The law is thus settled in this regard. Although
argument in this matter was full and comprehensive, there is no important point or

20 This is a relevant factor in relation to any just and equitable remedy that could conceivably require
consideration. See Buffalo City Metropolitan Municipality, supra paras 54 and 148; Notyawa para
50.
21 Ibid para 40.
22 Ibid para 41.
23 Ibid.
24 AllPay Consolidated v Chief Executive Officer South African Social Agency and Others 2014 (1)
SA 604 (CC); Member of the Executive Health, Eastern Cape and Another v Kirkland Investments
(Pty) Ltd 2014 (3) SA 481 (CC); State Information Technology Agency; Buffalo City Metropolitan
Municipality; Notyawa; Valor IT.

issue that needs to be decided for future guidance.25 This Court’s decision will
therefore have no precedential importance.

[38] I turn now to the appellant’s contention that the failure of the court a quo to
grant it a costs order remained a live issue that ought to be decided on appeal.
The appellant submitted that there was incongruity between the dicta making up
the reasoning of the court a quo and its dismissal of the application. It contended
that the court a quo had unjustifiably denied it a costs order. The judgment of this
Court in RMR Commodity Enterprises CC t/a Krass Blankets v The Chairman of
the Bid Adjudication Committee and Others (RMR Commodity Enterprises) is
apposite.26 In that matter, the term of the contract had expired by the time the
appeal was heard. The appeal was dismissed on the basis that it would have no
practical effect as contemplated in s 21A(1) and (3) of the Supreme Court Act 59
of 1959, which Act has since been repealed.

[39] The appellant in that matter had, as an alternative argument, urged this
Court to hear the appeal so as to determine the question of costs, notwithstanding
its finding that the issues on the merits were moot. This Court found that it was
inappropriate to decide academic disputes where the issue of costs was the only
remaining issue. It found that the considerations relied upon by the appellant (that
the respondents conduct was clearly calculated to cause delay) were insufficient
to constitute ‘exceptional circumstances’ contemplated in s 21A(3) of the Supreme
Court Act.

[40] Notably, s 16(2)(a) of the Superior Courts Act27 mirrors the provisions of
secs 21A(1) and (3) of the Supreme Court Act. In this instance, too, there are no

25 Notyawa, paras 49-50.
26 [2009] ZASCA 2; [2009] 3 All SA 41 (SCA).
27 Section 16(2)(a) of the Superior Courts Act provides as follows:
‘(i)
When at the hearing of an appeal the issues are of such a nature that the decision sought
will have no practical effect or result, the appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the decision would have no
practical effect or result is to be determined without reference to any consideration of costs.’

‘exceptional circumstances’ warranting that the appeal be decided purely for
purposes of ventilating the issue of costs. This is more so because first and second
applications were intertwined. A discernible overlap was that in their counter-
application, the respondents averred that the appellant did not meet the tender
requirements. It was on the same basis that the MEC for Finance sought the review
of the award, which was duly granted. It is against that background that the court
a quo did not make an order of costs in any of the applications. That being the
case, I am not persuaded that this is an appropriate case to decide an academic
dispute purely on the basis of the issue of costs.

[41] For all the reasons canvassed in the foregoing paragraphs, it follows that
the appeals must be dismissed on the grounds of mootness.

Order
[42] The appeals are dismissed with costs, including the costs occasioned by
the employment of two counsel.

_________________

M B MOLEMELA

JUDGE OF APPEAL

Appearances:

For appellant:
P L Mokoena SC (with him L Sigogo)
Instructed by:
DM5 Incorporated, Sandton
McIntyre Van der Post, Bloemfontein

For respondents:
A J Dickson SC (with him R Athmaram)
Instructed by:
PKX Attorneys, Pietermaritzburg

Lovius Block, Bloemfontein