THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not-Reportable
Case no: 835/2018
In the matter between:

THE LASER TRANSPORT GROUP (PTY) LTD
FIRST APPELLANT
GIN HOLDINGS (PTY) LTD
SECOND APPELLANT
and

ELLIOT MOBILITY (PTY) LTD
FIRST RESPONDENT
NEO THANDO / ELLIOT MOBILITY
(PTY) LTD JOINT VENTURE
SECOND RESPONDENT

Neutral citation:  The Laser Transport Group (Pty) Ltd & another v Elliot Mobility (Pty) Ltd &
another (835/2018) [2019] ZASCA 140 (01 October 2019)

Coram:
Ponnan, Wallis, Dambuza and Mocumie JJA and Dolamo AJA

Heard:
30 August 2019

Delivered:
01 October 2019

Summary:
Administrative law – review of a tender award – four-year contract concluded
pursuant to a tender award challenged for non-adherence to provisions of the Preferential
Procurement Policy Framework Act 5 of 2000.
Mootness – with about three months before expiry of the contract period a decision on
appeal would have no practical effect - no discrete point of public importance that would
affect matters in the future – appeal dismissed with costs.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Pretorius J, with Molopa-
Sethosa and Mngqibisa-Thusi JJ concurring, sitting as court of appeal):

The appeal is dismissed with costs, which costs shall include those consequent upon the
employment of two counsel.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Dambuza JA (Ponnan, Wallis and Mocumie JJA and Dolamo AJA concurring):

[1] On 30 August 2019 we dismissed this appeal in terms of s 16(2)(a)(i) and undertook
to furnish the reasons at a later stage together with our order for costs. These are our
reasons. The appeal is against the judgment of the Full Court of the Gauteng Division of the
High Court, Pretoria (Pretorius, Molopa-Sethosa and Mngqibisa-Thusi JJ) (full court), sitting
as a court of appeal from a decision by a single judge in the high court. The high court had
set aside on review the award of a tender and the appeal against that order succeeded. In
the result an application by the appellants to have a decision to award a tender in favour of
the respondents set aside, was dismissed with costs. The appeal is with the special leave
of this court.

[2] In March 2015 the first appellant, The Laser Transport Group (Pty) Ltd t/a Stuttaford
Van Lines (The Laser Group) together with the second appellant, Gin Holdings Proprietary
Limited (Gin Holdings), both conducting business as furniture removers, submitted a bid
removals under the name ‘Laser Transport Group (Pty) Ltd t/a Stuttaford Van Lines and Gin
Holdings Business Unit Venture (the appellants), in response to a tender invitation issued

by the Department of International Relations and Co-operation (DIRCO). The tender was
issued on 11 March 2015 under the reference DIRCO 13/2014/15 (the first tender). It invited
bids for removal and insurance services for household goods and vehicles belonging to
DIRCO officials transferred to and from diplomatic missions within South Africa and abroad.
From 2011, these services had been rendered by Stuttaford Van Lines (Pty) Ltd, a division
of the Laser Transport Group, together with Gin Holdings. The four-year contract in terms
of which they performed those services expired by effluxion of time on 31 March 2015

[3] The first and second respondents, Elliot Mobility (Pty) Ltd and Neo Thando/Elliot
Mobility (Pty) Ltd also submitted a bid. A third ‘bid’, submitted by Crown Relocation
Worldwide Move, turned out to be only an objection to certain clauses in the tender.

[4] On 26 March 2015, the day on which the tender closed, the appellants’ tender price
was announced as R117 673 286.00. The respondents’ was R215 882 882.00. Having
heard nothing from DIRCO about the results of the tender, on 30 June 2015 the appellants
wrote to the department expressing their discomfort and suspicions regarding the delay in
the awarding of the tender. They suspected that it would be cancelled and warned that its
cancellation would be unlawful because there were no valid or lawful reasons for such
cancellation.

[5] It appears that there was no response to the appellants’ letter. Instead, on 6 August
2015 the Director-General in DIRCO wrote to the appellants advising that the tender had
been cancelled and would be re-advertised. Apart from stating that the Terms of Reference
of the tender would be revised, no reasons were given for the cancellation. Indeed, a second
invitation to tender was advertised on 11 August 2015 (the second tender) under reference
no DIRCO 05/2015/16. The Terms of Reference, as they had appeared in the first tender,
had been revised. Both the appellants and the respondents were, again, amongst those
who responded to the invitation by submitting bids.

[6] As with most government tenders the consideration of the second tender consisted
of four ‘phases’. The first phase entailed an assessment of compliance by the bidders with
mandatory submission requirements. Based on such compliance the bid would be

considered either ‘responsive’ or ‘non-responsive’. The second and third phases entailed
assessment of stipulated ‘functionality criteria’. The bidders would be scored out of 100
points, split into 70 points for capacity, systems, skills and international membership and
accreditation, and 30 points for facilities and vehicles. In phase four, bids were allocated
price and performance points in terms of the Preferential Procurement Policy Framework
Act 5 of 2000 (PPPFA). Ninety points were allocated for price and ten points for the bidder’s
Broad Based Black Empowerment status.

[7] In phase 1 both the appellants’ and the respondents’ bids were assessed as
responsive and therefore progressed to the next stages. In the final result, the overall score
for the appellants’ bid was 95 points, whilst that of the respondents was 73 points. On 3
November 2015 the tender was awarded to the respondents. On 5 November 2015 DIRCO
concluded a contract with the respondents based on their tender. On 6 November 2015
DIRCO informed the appellants that their bid for the second tender had been unsuccessful.
On 10 November 2015 DIRCO advised them that the month to month contract which had
been concluded on expiry of the 2011 contract, had come to an end and that a new
contractor had been appointed.

[8] The duration of the contract concluded with the respondents in November 2015 was
four years, with DIRCO reserving the right to ‘request an extension’ of the period up to a
maximum period of 12 years. The agreement would therefore expire during November 2019.
Although couched as a single contract, the scope of work consisted of packing, storage,
shipment and unpacking of each transferred official’s household goods and personal effects
or departmental equipment. As such there would be individual contracts in relation to each
transferred official.

[9] Aggrieved by losing the tender, the appellants approached the Gauteng Division,
Pretoria (high court), seeking a review of the decisions taken by DIRCO in relation to both
the first and the second tenders. They also sought interim relief that DIRCO be restrained
from implementing the agreement concluded with the respondents.

[10] The essence of the appellants’ complaint was that DIRCO had been obliged to award
the tender in their favour as the highest scoring bidders with the lowest bid price. They
contended that there were no objective criteria justifying the award to the respondents.1
They also asserted that the first tender was cancelled unlawfully in that the cancellation was
for reasons other than those stipulated in Regulation 10(4) of the Regulations issued under
the PPPFA.2 Also, their price schedule for that tender had been made public to their
competitors, giving them an unfair advantage and an opportunity to adjust their prices in the
second tender, and thus robbing the appellants of any competitive advantage they would
have had going into the second tender. The appellants also contended that the respondents
had failed to furnish a bank guarantee as required in the Terms of Reference of the first
tender.

[11] DIRCO’s response was that the first tender was cancelled in response to complaints
received from other contractors in the industry about DIRCO’s indirect exclusion of
Previously Disadvantaged Movers (PDM’s) from DIRCO tenders. The complaint, as
expressed by Crown Relocation Worldwide Move3 and Baxter International Movers, related
to requirements, in the tender Terms of Reference, that bidding companies should be in
possession of international membership certificates. The requirement was criticised as
exclusionary of PDI’s because they were unlikely to be in possession of the required
certificates, as they would not previously have participated in the international movers’
market.

[12] As to the appellant’s higher score, DIRCO contended that there was no reason why
the respondents, having met the minimum threshold for functionality, could not be awarded

1 Section 2(1)(f) of the PPPFA reads as follows:
‘An organ of state must determine its preferential procurement policy and implement it within the following
policy:
…
(f)  the contract must be awarded to the tenderer who scores the highest points, unless objective criteria
in addition to those contemplated in paragraph (d) and (e) justify the award to another tenderer….’
2 Regulation 10 (4) provides that:
‘(4) An organ of state may, prior to the award of a tender, cancel the tender if-
(a)
due to changed circumstances, there is no longer a need for the goods or services tendered for;
or
(b)
funds are no longer available to cover the total envisioned expenditure; or
(c)
no acceptable tenders are received.’
3 See para 3 above.

the tender. DIRCO insisted that a tender could be properly awarded to a tenderer other than
the one with the lowest price if objective criteria justified that decision; for example, if DIRCO
‘objectively viewed that, notwithstanding the lowest price, realistically speaking the
respondent’s price was still reasonable in the circumstances.’ In this instance DIRCO had
concluded that the appellants’ price was unsustainable as the lowest item in its price
schedule was below an average price as determined by DIRCO by calculating the average
prices of the five bidders who had responded to the invitation to tender, including those
whose bids were unresponsive.

[13] In the high court the application was heard in two sittings. On 12 December 2015
Pretorius J ordered that the application for interim relief be struck off the roll for lack of
urgency. A year later, on 11 December 2016 Van der Westhuizen AJ granted an order
setting aside the tender award to the respondents and awarding it to the appellants based
on the reasons for which they had challenged the award. In terms of that court order, the
individual contracts concluded with the respondents would be honoured, but new contracts
would be concluded with the appellants.

[14] On appeal, the Full Court set aside the order granted by Van der Westhuizen J and
ordered that it be replaced with a dismissal of the appellants’ application, together with a
concomitant costs order. On appeal in this court, the dispute had crystalized to the
lawfulness of awarding the tender to the respondents despite the appellants’ bid price having
been the lowest. DIRCO did not participate in this appeal.

[15] In anticipation of the appeal hearing, the parties were invited to make submissions in
relation to whether any decision in the appeal would have any practical effect as
contemplated in s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 (the Act). This was
because the four-year contract concluded with the respondents in 2015 would be expiring
in approximately three month from the date of the hearing of the appeal. In that regard
s 16 (2)(a) provides:
‘(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.’

[16] The appellants’ submission was that the appeal was not necessarily moot. The
question whether the decision of this court would have a practical effect depended on the
judgment of this court on the merits of the appeal. ‘If it is found that the tender should have
been awarded to the appellants they would be entitled to a four year appointment by DIRCO
from the date of the final decision to that effect’, so it was submitted.

[17] This court has, on numerous occasions, pronounced on the guiding principles for
determining whether an appeal should be entertained where a decision thereon will have
no practical effect or result. The main principle is that courts of law ought not to decide
issues purely for academic interests. They ‘exist for the settlement of concrete controversies
and actual infringements of rights, not to pronounce upon abstract questions or to advise
upon differing contentions, however important’.4 The purpose of s 16(2)(a) of the Act, which
is in identical terms to its predecessor, s 21A(1) to (3) of the Supreme Court Act 59 of 1959,5
is to entrench this principle and thus to alleviate the heavy workload of courts of appeal.6

[18] This court has a discretion to refuse to consider merits where an appeal is moot, or
to entertain an appeal even though it is moot, where there is a discrete legal issue of public
importance which would affect matters in the future.7 In Minister of Justice and others v
Estate Stransham-Ford8 this court explained the principle as follows:
‘It is a prerequisite for the exercise of the discretion that any order that the court may ultimately make
will have some practical effect either on one of the parties or others. Other factors that may be

4Geldenhuys and Neethling v Beuthin 1918 (AD) 426 at 441. See also Van Loggerenberg et al Erasmus
Superior Court Practice (2 ed, looseleaf) Vol 1, A2-49 (Original Service, 2015); Coin Security Group (Pty) Ltd
v SA National Union of Security Officers and others 2001 (2) SA 872 (SCA) para 7; Radio Pretoria v Chairman,
Independent Communications Authority of South Africa & Another 2005 (1) SA 47 (SCA).
5 Which provided that:
‘When at the hearing of any civil appeal to the Appellate Division or any Provincial or Local Division of the
Supreme Court the issues are of such a nature that the judgment or order sought will have no practical effect
or result, the appeal must be dismissed on this ground alone’.
6 Erasmus Superior Court Practice at A2-49.
7 See Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012] ZASCA166;
2013 (3) SA 315 (SCA) para 5.
8 In Minister of Justice and others v Estate Stransham-Ford [2016] ZASCA 197; 2017 (3) SA 152 (SCA).

relevant will include the nature and extent of the practical effect that any possible order might have,
the importance of the issue, its complexity and the fullness or otherwise of the argument.
The common feature of the cases where the Constitutional Court has heard matters notwithstanding
the fact that the case no longer presented a live issue, is whether the order had a practical impact
on the future of one or both of the parties to the litigation…’.9

[19] In Qoboshiyane, whilst accepting that the cases raised issues under the Constitution
in the context of the Promotion of Access to Information Act 2 of 2000 (PAIA), this court
found that the court decision on the interests of the public in disclosure of the information
concerned was fact specific.

[20] Turning to this appeal, the appellants’ first submission was fundamentally flawed
because it rested on an incorrect application of s 16(2)(a)(i). It advocated an approach that
would make nought of the purpose of the section, which is to avoid fruitless usage of the
court’s resources where the decision sought will have no practical effect or result and is of
no significant importance to the public. On this argument the test would be whether on the
merits the appeal should succeed. An additional difficulty with the appellants’ submission is
that if the appeal was entertained and the decision sought was determined in favour of the
appellants, the only way the decision sought would have a practical result or effect would
be by extension of the contract (based on the August 2015 tender) beyond the November
2019 expiry date. As submitted on behalf of the respondents, the result would be contrary
to the terms of the August 2015 award and there could be no basis, on the facts of this case,
for the commencement date of the contract to be on a date beyond the period of the contract.
The tender was intended for commencement in 2015 on terms and conditions (especially
pricing conditions) that existed then. One hardly needs evidence to show that, four years
later such conditions have changed. This court would therefore have to create a contract for
DIRCO and the appellants.

[21] As shown above, this court has exercised its discretion to determine appeals which
are moot where issues arising involve a discrete legal point of public importance that would
affect matters in the future. In their alternative submission, the appellants argued that this

9 Ibid paras 22-23.

court should exercise its discretion to entertain this appeal because the issues that arise
‘could or should’ affect similar matters in the future. They contended that the interpretation
of s 2(1)(a) of the PPPFA involved Constitutional issues10 that impacted on public
procurement, just administrative action, and access to courts. Qoboshiyane provides no
support for the appellants’ submissions. If anything, that case illustrates that even where
Constitutional issues are implicated, if the decision is case specific, there are no grounds
for the court to exercise its discretion in favour of entertaining an appeal that is moot. Even
if the assessment of objective factors under s 2(1)(b)(i) of the PPPFA was incorrectly
applied, or the tender process was tainted by illegality or the Full Court’s substitution of
tender award was wrong, no basis was laid for a conclusion that the matter raised issues of
public importance.

[22] Further, as to whether exceptional circumstances existed for exercise of the court’s
jurisdiction under s 16(2)(a)(ii) the assertions by the respondents that they had raised the
question of mootness when the application for leave to appeal was heard, cannot be
ignored. And thereafter the appellants did not seek a preferential date for the appeal to be
heard. It was in consideration of these factors that we dismissed the appeal with costs.

[23] No warrant exists for departing from the rule that costs follow the result.
Consequently, the costs in this appeal, including the costs of two counsel, are awareded in
favour of the respondents.

_________________
N Dambuza
Judge of Appeal

10 Under ss 217, 33 and 34 of the Constitution of the Republic of South Africa, 1996.

APPEARANCES

For Appellant:
W R E Duminy SC

Instructed by:

Webber Wentzel, Cape Town

Symington De Kok, Bloemfontein

For Respondent:
A Subel SC (with M Nowitz)

Instructed by:

Nochumsohn & Teper, Pretoria

Phatsoane Henny Attorneys, Bloemfontein