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[2012] ZASCA 64
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Tecmed Africa (Pty) Ltd v Minister of Health and Another (495/11) [2012] ZASCA 64; [2012] 4 All SA 149 (SCA) (21 May 2012)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 495/11
TECMED
AFRICA (PTY) LTD
…............................................................
Appellant
and
THE
MINISTER OF HEALTH
….................................................
First
Respondent
CANCARE
(PTY) LTD
….......................................................
Second
Respondent
Neutral
citation:
Tecmed Africa v The Minister of Health
(495/11)
[2012] ZASCA 64
(21 May 2012)
BENCH: NAVSA, PONNAN and SNYDERS JJA and BORUCHOWITZ and
NDITA AJJA
HEARD: 3 MAY 2012
DELIVERED: 21 MAY 2012
CORRECTED:
SUMMARY:
Appeal – s 21A(1) of the
Supreme Court Act – power of court to dismiss appeal where
judgment or order sought would have
no practical effect or result.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
North Gauteng High Court,
Pretoria (Southwood J (Ledwaba J and Hiemstra AJ concurring) sitting
as court of appeal):
1. The appeal is dismissed.
2. The appellant is to pay all costs in relation to the appeal
incurred after 14 February 2012, such costs to include those
consequent
upon the employment of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA (NAVSA and SNYDERS JJA and BORUCHOWITZ and NDITA AJJA
concurring):
[1] On 3 May 2012 this appeal was heard and dismissed in terms of s
21A(1) of the Supreme Court Act 59 of 1959. The following order
issued:
‘
1. The appeal is dismissed.
2. The appellant is to pay all costs in relation to the appeal
incurred after 14 February 2012, such costs to include those
consequent
upon the employment of two counsel.’
It was intimated when so ordering that reasons would follow. These
are the reasons.
[2] Section 21A(1) of the Supreme Court Act 59 of 1959 provides:
'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 may be dismissed
on this ground alone.'
The primary question therefore, to which I now turn, is whether the
judgment or order sought in this appeal will have any practical
effect or result. It arises against the backdrop of the following
facts.
[3] The appellant, Tecmed Africa (Pty) Ltd (Tecmed), carries on
business at Midrand, Gauteng, inter alia, as the importer and
distributor of medical equipment. During 2005 Tecmed imported a
second hand Varian Clinac 2100 C linear accelerator with serial
number 791 (the machine) into the country. Thereafter Tecmed stored
the machine until the second half of 2007 when it, purportedly
acting
in terms of an agency agreement with the manufacturer of the machine,
Varian Medical Systems International, a Swiss-based
company,
refurbished the machine. In so doing and consistent with the practice
in the industry, Tecmed brought about a change in
the model number of
the machine to that of a Clinac 2000 CR, thereby indicating that it
was now a refurbished model.
[4] The first respondent, the Minister of Health (the Minister),
acting in terms s 2 of the Hazardous Substances Act No 15 of 1973
(the Act) had declared linear accelerators, such as the machine in
question, which is used in the treatment of cancer, to be a
Group III
hazardous substance. By virtue of that classification no person is
entitled in terms of the Act, to sell, let, use operate
or apply the
machine (s 3(1)(
b
)) or install or keep installed the machine
on any premises (s 3(1)(
c
)) unless such person has been issued
with a licence by the Director-General: National Health and
Population Development (the DG)
under s 4.
[5] After having refurbished the machine and pursuant to an agreement
of sale with the second respondent, Cancare (Pty) Ltd (Cancare),
which carries on business as the Durban Oncology Centre, Tecmed
delivered the machine to the latter. On 20 November 2007 Cancare
applied for a licence in terms of s 4 to use the machine as a
therapeutic device in the treatment of cancer. In the licence
application
form Cancare described the machine as a Clinac 2100 with
serial number 7071 manufactured in 2007. On 11 December 2007 and
apparently
on the mistaken understanding, based on the licence
application form, that the machine was new, the DG issued a licence
for the
installation of the machine at the Durban Oncology Centre.
[6] On 10 March 2008 Mr Karel Johannes Smit, a Deputy-Director in the
Department of Health stationed at its radiation control unit,
visited
Cancare’s premises to conduct an acceptance inspection. During
the inspection Mr Smit discovered that the machine
was not new. After
making enquiries Mr Smit ascertained that the machine was in fact a
2100 C model with the serial number 791
and had been manufactured in
1995. Mr Smit then contacted Ms Hester Burger of Cancare and informed
her that a licence would not
be issued to them for the use of the
machine. The next day he despatched an e-mail to her in which he
explained that as Tecmed
was only licensed to import new Clinac 2100
C machines, the machine in question had been illegally imported into
the country by
the former. Accordingly, so he asserted, the
Department of Health would require that the machine be exported or
sold as scrap.
[7] During March 2008 a fresh licence application was submitted on
behalf of Cancare for the use of the machine. In a letter in
support
of that application Tecmed apologised for the fact that the earlier
application had contained incorrect information. Tecmed
alleged that
in importing the machine it had acted in accordance with the
conditions attaching to its licence and that the machine
had
accordingly not been imported illegally. In the new application
Cancare described the machine as a ‘Clinac 2000 CR
(refurbished)’;
manufactured in ‘1995/ Refurbished 2008’;
with unit serial number ‘791’. Neither Tecmed nor Cancare
saw
fit to explain how it came to pass that the earlier application
had incorrectly described the machine.
[8] On 18 March Smit despatched an e-mail to Tecmed which was headed:
‘
NOTICE
OF EMBARGO ON THE IMPORTATION OF VARIAN LINEAR ACCELERATORS IN THE
TERMS OF THE
HAZARDOUS SUBSTANCES ACT, (ACT
15 OF 1973), WITH
IMMEDIATE EFFECT.’
The notice read:
‘
Notice
is hereby given that an embargo has been placed on the licences
listed below for the importation of Varian Linear Accelerators,
with
immediate effect:
. . .
This action has been taken for
the following reasons:
1. On the 5
th
December 2007 we received an application for the installation of a
new
Varian Clinac 2100 (year of manufacture 2007 and that the
unit will be supplied by TECMED) at Durban Oncology.
2. TECMED is currently licensed
to import
new
Clinac 2100’s.
3.
During an acceptance
inspection by KG Smit on 10 March 2008 at Durban Oncology Centre, it
was established that this is a pre-owned
Varian Clinac 2100 unit
(date of manufacture 1994 or early 1995, serial no. 791) that was
imported and rebuild by TECMED in SA
(this was confirmed by Mr.
Begeré on 11/03/2008 in my office at Louville Place,
Belville).
4. TECMED has therefore
illegally
imported the pre-owned Clinac 2100 and provided
false information on form RC003-1.
The Department of Health will
only consider withdrawing the embargo if:
1. TECMED export the Varian
Clinac 2100 C (serial no. 791) installed at Durban Oncology Centre,
or
2. Dismantle the above-mentioned
unit.
Please note that under an
embargo, you may not import or install any Group III Hazardous
Substances listed on the above-mentioned
licences. The term
sell
in the Hazardous Substances Act,
1973 (Act 15 of 1973) is defined to include offer, advertise, keep,
display, transmit, consign,
convey or deliver for sale, or exchange,
or dispose of to any person in any manner, whether for a
consideration or otherwise, or
manufacture or import for use (for own
use, in the Republic; and “selling” and “sale”
have a corresponding
meaning.’
[9] On 5 May 2008 Tecmed lodged an appeal with the Minister against
Smit’s decision to place an embargo on its licences.
Its
primary legal contention was that Smit in doing so had acted ultra
vires. It accordingly sought the lifting of the embargo.
That appeal
was dismissed by the Minister on 23 May 2008.
[10] Two applications by Tecmed to the North Gauteng High Court –
each by way of urgency – followed. The first, on
2 June 2008
sought an order reviewing and setting aside the Minister’s
decision to dismiss its appeal (the embargo application).
The second,
on 15 July 2008, sought the review and setting aside of the DG’s
refusal to issue Cancare (who was cited in that
application as the
second respondent) with a licence to use, operate or apply the
machine and for an order directing the former
to issue a licence as
contemplated in s 4(1) to Cancare (the licence application).
[11] Both applications came to be heard by RD Claassen J. In respect
of the embargo application Claassen J held –
‘
The
Applicant’s contention regarding this issue was that the DG was
not in law entitled to issue the embargo in respect of
licences. He
could only do so in respect of objects, etc. If he wanted to stop the
importation or selling of machines he had to
give notice in terms of
Section 7 with 20 days’ notice. He did none of this. The
embargo was thus illegal. The DG realised
this himself eventually
when a proper notice was given in respect of certain licences as
referred to already, and he withdrew the
abovementioned embargo.
In respect of the appeal to the
Minister the same issues were raised by Applicant but the appeal was
still refused by the Minister.
This clearly shows that the embargo
application must at least to that extend succeed.’
And in respect of the licence application the learned Judge reasoned:
‘
. . .
reading the provisions of the Act, the relevant conditions and the
importation documents all together, it is clear that the
relevant
unit was
not
imported
illegally as alleged by the DG and the Minister. It is therefore
clear that the imposition of the embargo (already dealt
with) and the
refusal to grant a licence for the installation and use thereof at
Cancare was unlawful, it being the main reason
to refuse the licence.
Another ground for refusing the
licence is that Applicant is only allowed to import
new
and
refurbished
machines. . . . The Respondent’s
attitude is that Applicant needs to be licensed as a
manufacturer
to do so. However, when one
reads the definition of
sell
and/or manufacture and the
dictionary meaning of refurbished, it is clear that as it stands, the
licence to
sell
includes manufacture (the nouns
and verbs have corresponding meanings in terms of the definitions
section). It is difficult to see
how the restrictive meaning proposed
by the Respondents fit into those definitions. This point can
therefore not succeed.’
Both applications accordingly succeeded with costs before Claassen J.
[12] The Minister sought and obtained leave to appeal to the full
court against the whole of Claassen J’s judgment. In heads
of
argument which had been filed shortly before the hearing of the
appeal on behalf of the Minister, she abandoned the appeal against
the judgment and order in the embargo application but appeared to
persist in the contention that the abandonment of that appeal
did not
affect the question of costs. The full court (per Southwood J
(Ledwaba J and Hiemstra AJ concurring)) dealt with that aspect
thus:
‘
At the
hearing the appellant’s counsel confirmed that their clients
abandoned the appeal in the embargo application and tendered
the
costs of the appeal insofar as it related to that application. He
also confirmed that the imposition of the embargo was clearly
unlawful and that the application should not have been opposed.
Tecmed is obviously entitled to the costs of that part of the appeal.
However Tecmed’s counsel asked for a costs order on the scale
as between attorney and client because of the lateness of the
abandonment. As I understood their argument a special costs order is
justified because of the vexatious manner in which the appellants
conducted this appeal.
Despite lifting the embargo on 5
August 2008 – which rendered the issues in the embargo
application academic – the Minister
persisted in seeking to
overturn the judgment and order in the embargo application. The
Minister obtained leave to appeal against
that judgment and order,
prepared a record which included all the affidavits filed in the
embargo application and forced Tecmed
to prepare for an appeal
involving both applications. In these circumstances the Minister’s
conduct caused Tecmed to go to
unnecessary trouble and expense and
for that reason can be characterised as vexatious. That justifies a
costs order on the scale
as between attorney and client. . .’
The Minister was accordingly ordered to pay the costs of the embargo
appeal on the scale as between attorney and client, such costs
to
include those consequent upon the employment of two counsel.
[13] Insofar as the Minister’s appeal against the conclusion
reached by Claassen J in the licence application is concerned,
the
full court held:
‘
The
learned judge in the court
a
quo
considered
these documents and concluded that they show that the machine was
imported into South Africa on 7 October 2005, i.e.
before the licence
was issued on 11 October 2005, and consequently that the new licence
conditions did not apply. Neither side
has sought to attack this
finding which is obviously crucial to the outcome of this appeal.
. . .
If the machine arrived in South
Africa on 6 or 7 October 2005 Tecmed could not rely on the conditions
in the 2005 licence. Tecmed’s
counsel conceded this to be the
case. That conclusion, strictly speaking, is decisive of this appeal
but Tecmed’s counsel
contended that the licence issued to
Tecmed on 21 June 2001 permitted the importation of the machine. They
sought to adopt the
reasoning of the court
a
quo
where, after
considering the conditions of the licence issued in June 2001, the
court
a quo
found that the relevant
condition was “somewhat ambiguous” but it did permit the
sale (as defined) of refurbished units,
whether old or new.
As already mentioned the
relevant condition of the licence clearly permits the sale of a new
unit but expressly prohibits the sale
of used units that have not
been refurbished. Since the extended meaning of “sale”
includes importation for use in
the Republic, the importation of the
machine (a used unit which had not been refurbished) was prohibited.
The importation of the
machine was therefore illegal. For the same
reason so was its refurbishment. Tecmed’s counsel conceded that
this was so.’
The full court accordingly concluded:
‘
Tecmed’s
attack on Smit’s decision to refuse to grant a licence to
Cancare should not have succeeded and the appeal
must be upheld with
costs. The costs of the appeal and the ancillary costs orders will
now be considered.’
The appeal in that matter accordingly succeeded, with Tecmed being
ordered to pay one half of the Minister’s costs on appeal,
such
costs to include those consequent upon the employment of two counsel.
In that regard Claassen J’s order was set aside
and in its
stead was substituted an order dismissing the licence application
with costs.
[14] The present appeal against that conclusion is with the special
leave of this court. In essence Tecmed attacks the conclusion
reached
by the full court that the machine was imported into South Africa on
7 October 2005 and the consequent finding that the
relevant
conditions attaching to its 2005 licence therefore did not find
application to its importation. As interesting a debate
as those
issues are likely to generate, they hardly need detain us. For, it is
at a preliminary hurdle – namely, whether
the appeal and any
order made thereon would, within the meaning of s 21A, have any
practical effect or result – that the
appeal must fail. It is
to that issue, which was considered by us at the outset of the
hearing of the appeal that I now turn.
[15] On 14 February 2012 a notice was served and filed in which it
was contended on behalf of the Minister that the appeal would
have no
practical effect or result. In an affidavit filed on behalf of the
Minister in support of that contention the relevant
assistant State
Attorney stated:
‘
3.
This affidavit is made to bring to the attention of this Honourable
Court that the relief sought by the Appellant will have no
practical
effect or result. I say so for the following reasons:
3.1 On 16 March 2011 the
Appellant and Tecmed (Pty) Ltd instituted action proceedings against
the Respondent and 3 others. A copy
of the summons issued are annexed
hereto marked “
TM1
”;
3.2 In paragraph 24 of its
particulars of claim the Appellant avers that it secured a new
machine for installation at the Durban
Oncology (Cancare). The new
machine replaced the machine which is a subject matter in this
appeal.
3.3 On the other hand the relief
that the Appellant sought is the review and setting aside of the
decision of the Respondent refusing
Cancare to use the machine
supplied to it by Tecmed;
3.4 As a result of the foregoing
and in view of the fact that the Appellant has now supplied Cancare
with a new machine the relief
that it seeks has no practical effect.
If the appellant is successful the respondent cannot be directed to
allow Cancare to use
the machine which is the subject matter of this
appeal.
4. It is submitted that this
Honourable Court should dismiss the appeal on this ground alone.’
The response it elicited from Tecmed was, inter alia:
’
10.1
First, Tecmed has suffered damages of almost
R15,
000,000
(fifteen
million rand). A
summons has been issued against
the Minister in which Tecmed is seeking to recover its loss in the
North Gauteng High Court, under
case number: 16980/11. Tecmed is
confident that, at a trial, it will be able to establish
mala
fides
on the part of the Minister’s representative and,
indeed, the administrative functionaries implicated. That evidence
is, however,
yet to be led. But what is critical is that Tecmed be
afforded its constitutionally entrenched right to have its civil
claim for
damages adjudicated by a Court.
10.2 A threshold requirement, in
order for the civil claim to succeed, is that the administrative
action implicated is unlawful.
At this juncture the Full Bench has
ruled that it was
not
unlawful
. A statement is
therefore required, from
this
Court, to the effect that the
administrative decision was indeed unlawful. Therein lies the
importance of this matter being dealt
with by the above Court on
appeal. If it is not dealt with, there can be no civil claim for
damages and Tecmed will be prejudiced
to the extent of approximately
R15, 000,000
(fifteen million rand). A ruling by the Supreme
Court of Appeal in this regard is of massive importance to Tecmed.
10.3 Secondly, and of great
significance, it is a criminal offence to import a Group III
hazardous substance without a licence.
As things currently stand,
Tecmed have been found to have behaved criminally. This is inaccurate
and Tecmed ought to have an opportunity
to “set the record
straight”, from a reputational and commercial perspective.
Further argument and authority in this
regard will be presented at
the hearing of this matter.
Thirdly, Netcare, a large
hospital group, are reluctant to do business with Tecmed on account
of the fact that it perceives
Tecmed to be a company that illegally
imports medical equipment. Netcare have already indicated their
unwillingness to be placed
at risk of the kind to which Cancare was
exposed. Tecmed has lost business as a result of this perception
and it will continue
to lose business until that perception is
corrected. Therein lies another practical benefit of this appeal.
Fourthly, as a result of the
perception created in relation to the legality or otherwise of the
importation of the machine,
Tecmed has been forced to enter into a
settlement agreement with Cancare, in the amount of
R4 000
000.00
(four million Rand) and in so doing took cession of
Cancare’s claim for the damages sustained as a result of the
unlawful
administrative action. This was done without any
acknowledgement of wrongdoing and with a view to salvaging the
damaged relationship
with Netcare and in an effort to repair the
reputation of Tecmed.’
[16] Before us counsel was constrained to concede that securing a
licence for the use of the machine by Cancare at the Durban Oncology
Centre had indeed become academic. That notwithstanding, so he urged
upon us, the appeal should nonetheless be entertained. His
argument,
consistent with the approach adopted in the affidavit filed on behalf
of Tecmed on this aspect of the case, amounted
to this: the approach
and reasoning of the full court to the disputed factual issues on the
papers would stand and were it not
to be set aside by this court,
would serve as an insurmountable obstacle in due course to the
successful prosecution of its envisaged
civil claim against the
Minister. In my view for the reasons that follow counsel’s
submission lacks merit.
[17] First, appeals do not lie against the reasons for judgment but
against the substantive order of a lower court. Thus whether
or not a
court of appeal agrees with a lower court’s reasoning would be
of no consequence if the result would remain the
same (
Western
Johannesburg Rent Board v Ursula Mansions (Pty) Ltd
1948 (3) SA
353
(A) at 354). Second, counsel’s argument must be evaluated
with reference to the principles that govern the defence of
res
iudicata
in general and issue estoppel in particular. In
Prinsloo
NO v Goldex 15
(243/11)
[2012] ZASCA 28
(28 March 2012) Brand JA
(paras 23 -26) put it thus:
‘
In our
common law the requirements for
res
iudicata
are
threefold: (a) same parties, (b) same cause of action, (c) same
relief. The recognition of what has become known as issue
estoppel
did not dispense with this threefold requirement. But our courts have
come to realise that rigid adherence to the requirements
referred to
in (b) and (c) may result in defeating the whole purpose of
res
iudicata
.
That purpose, so it has been stated, is to prevent the repetition of
law suits between the same parties, the harassment of a defendant
by
a multiplicity of actions and the possibility of conflicting
decisions by different courts on the same issue (see eg
Evins
v Shield Insurance Co Ltd
1980
(2) SA 815
(A) at 835G). Issue estoppel therefore allows a court to
dispense with the two requirements of same cause of action and same
relief,
where the same issue has been finally decided in previous
litigation between the same parties.
At the same time, however, our
courts have realised that relaxation of the strict requirements of
res iudicata
in issue estoppel situations
creates the potential of causing inequity and unfairness that would
not arise upon application of all
three requirements. . . .
Hence, our courts have been at
pains to point out the potential inequity of the application of issue
estoppel in particular circumstances.
But the circumstances in which
issue estoppel may conceivably arise are so varied that its
application cannot be governed by fixed
principles or even by
guidelines. All this court could therefore do was to repeatedly sound
the warning that the application of
issue estoppel should be
considered on a case-by-case basis and that deviation from the
threefold requirements of
res
iudicata
should not
be allowed when it is likely to give rise to potentially unfair
consequences in the subsequent proceedings (see eg
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
1995
(1) SA 653
(A) at 676B-E;
Smith
v Porritt
supra
2008
(6) SA 303
(SCA) para 10). That, I believe, is also consistent with
the guarantee of a fair hearing in s 34 of our Constitution.’
Applying those principles here, it does not appear to me that the
matter or questions that are likely to arise in the contemplated
civil litigation have indeed been finally adjudicated upon by the
full court in this matter. After all the expression
res iudicata
literally means that the matter has already been decided. I say
‘likely to arise’ because the picture that Tecmed has
endeavoured to paint is far from complete. On such information as we
do have though it would appear that the relief sought to be
claimed
in the contemplated civil action may well be different to that which
forms the subject matter of the present appeal. What
does appear to
be clear enough though is that in the claim sought to be prosecuted
arising from the Cancare cession, the same person
requirement can
hardly be satisfied. Moreover, the assertion that ‘Tecmed have
been found to have behaved criminally’
is entirely devoid of
any substance. No such finding was made by the full court. Nor could
such a finding have been made by that
forum. The same holds true for
Tecmed’s complaint of reputational harm.
[18] Third, we do not know what stage has been reached in the pending
civil case or precisely what is in dispute between the parties
on the
pleadings in that matter. What we are being asked to do therefore is
to engage in speculation and conjecture. That we should
be slow to
do. In
Coin Security Group (Pty) Ltd v SA National Union for
Security Officers & others
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) para 9,
Plewman JA quoted with approval from the speech of Lord Bridge of
Harwich in the case of
Ainsbury v Millington
[1987] 1 All ER
929
(HL), which concluded at 930g:
‘
It has
always been a fundamental feature of our judicial system that the
Courts decide disputes between the parties before them;
they do not
pronounce on abstract questions of law when there is no dispute to be
resolved.’
In a similar vein, in
Western Cape Education Department v George
1998 (3) SA 77
(SCA) at 84E, Howie JA stated:
'Finally, it is desirable that
any judgment of this Court be the product of thorough consideration
of,
inter
alia
,
forensically tested argument from both sides on questions that are
necessary for the decision of the case.’
And in
Radio
Pretoria v Chairman, Independent
Communications Authority of South Africa
2005 (1) SA 47
(SCA)
(para 41), Navsa JA said:
'Courts of appeal often have to
deal with congested court rolls. They do not give advice
gratuitously. They decide real disputes
and do not speculate or
theorise (see the
Coin
Security
case,
supra
,
at paragraph [7] (875A-D)). Furthermore, statutory enactments are to
be applied to or interpreted against particular facts and
disputes
and not in isolation.'
[19] Fourth, in effect what Tecmed seeks is legal advice from this
court. But as Innes CJ observed in
Geldenhuys & Neethling v
Beuthin
1918 AD 426
at 441:
'After all, Courts of Law 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.'
In
National Coalition for Gay and Lesbian Equality & others v
Minister of Home Affairs & others
2000 (2) SA 1
(CC) para 21
footnote 18, the Constitutional Court echoed what the learned Chief
Justice had stated over eight decades earlier
when it said:
'A case is moot and therefore
not justifiable if it no longer presents an existing or live
controversy which should exist if the
Court is to avoid giving
advisory opinions on abstract propositions of law.'
[20] Finally, courts should and ought not to decide issues of
academic interest only. That much is trite. In
Radio
Pretoria
this Court expressed its concern about the proliferation of appeals
that had no prospect of being heard on the merits as the order
sought
would have no practical effect. It referred to
Rand Water Board v
Rotek Industries (Pty) Ltd
2003 (4) SA 58
(SCA) para 26 where the
following was said:
'The present case is a good
example of this Court's experience in the recent past, including
unreported cases, that there is a growing
misperception that there
has been a relaxation or dilution of the fundamental principle . . .
that Courts will not make determinations
that will have no practical
effect.'
[21] The cumulative effect of all of the factors that I have alluded
to is that no practical effect or result can be achieved in
this
case. And for those reasons the appeal was dismissed in terms of s
21A(1) of the Supreme Court Act 59 of 1959.
[22] That leaves costs: As long ago as 14 October 2008 Tecmed wrote
to the Directorate Radiation Control:
‘
. . .
At the outset, we record that the events as recorded below were done
so in an endeavour to mitigate the damages that Netcare
and Tecmed
continue to suffer as a result of the unlawful conduct perpetuated by
Eljo Smit.
In your above letter, we have
attended and hereby attend to Mr Smit’s requirements set forth
in paragraphs 2a. and 2b.
In particular, we hereby declare
that:
the Varian Clinac 2000CR
(2100C), serial no. 791, has been removed from Durban Oncology and
it has been warehoused at Schenker
(S.A.) (Pty) Ltd. In confirmation
of this, we annex hereto a letter by Schenker, the content of which
is self explanatory; and
the Varian Clinac 2000 CR
(2100C), serial no. 791 and the Varian Clinac 2000CR (23 EX), serial
number 300, will be sold as spares.
We reiterate, we have done the
above without us being under any legal obligation to do so. We have
done so in order to assist Netcare
and to maintain the relationship
between Netcare and Tecmed (to the extent possible), which Mr Smit is
successfully and arbitrarily
eroding.’
That letter had been despatched before the matter had even come to be
argued before Claassen J. And yet neither the parties nor
the two
courts below appeared to appreciate that it had rendered the licence
application moot. It was only somewhat belatedly by
notice served on
Tecmed on 14 February 2012 that the Minister raised for the first
time the point that the appeal will have no
practical effect or
result. By then the appeal had reached a fairly advanced stage. Until
then neither was an unwilling participant.
It was thus deemed
appropriate that each party should bear its own costs until 14
February 2012 and that Techmed be ordered to
pay the Minister’s
costs of appeal, inclusive of those of two counsel, beyond that date.
________________
V PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: JJ Brett SC
K
Hopkins
Instructed
by:
Chindlers
Attorney
Johannesburg
Webbers
Bloemfontein
For
Respondent: VS Notshe SC
N
Makhubele
Instructed
by:
The
State Attorney
Pretoria
The
State Attorney
Bloemfontein