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[2010] ZASCA 158
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Ethekwini Municipality and Others v Combined Transport Services (Pty) Ltd and Others (115/2010) [2010] ZASCA 158 (1 December 2010)
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THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 115/2010
In the matter
between:
ETHEKWINI
MUNICIPALITY
..................................................................
First
Appellant
MINISTER OF
TRANSPORT
..................................................................
Second
Appellant
MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE PORTFOLIO
OF TRANSPORT IN
THE PROVINCE OF
KWAZULU-NATAL
.............................................
Third Appellant
and
COMBINED
TRANSPORT SERVICES (PTY)
LTD
..............................................................................................................
First
Respondent
KZT BUS SERVICES
(PTY) LTD
........................................................
Second
Respondent
KZT COUNTRY
CRUISER (PTY) LTD
...............................................
Third
Respondent
SOUTH COAST BUS
SERVICE (PTY) LTD
......................................
Fourth
Respondent
NGOTSHANA BUS
SERVICES CC
........................................................
Fifth
Respondent
MASIJABULE
TRANSPORT CC
...........................................................
Sixth
Respondent
IKHWEZI BUS
SERVICE (PTY) LTD
..............................................
Seventh
Respondent
TANSNAT BUS
SERVICE (PTY) LTD
................................................
Eighth
Respondent
TANSNAT
COACHLINES (PTY) LTD
.................................................
Ninth
Respondent
Neutral citation:
Ethekwini Municipality v Combined Transport Services
(115/10)
[2010] ZASCA 158
(1 December 2010)
Coram:
MPATI
P, HEHER, MAYA and SNYDERS JJA and R PILLAY AJA
Heard:
15
November 2010
Delivered: 1
December 2010
Summary:
Appeal ─ Power of Court of Appeal ─ Power in
terms of s 21A of Supreme Court Act 59 of 1959 to dismiss appeal
where
judgment or order sought would have no practical effect or
result.
___________________________________________________________
ORDER
On appeal from:
KwaZulu-Natal
High Court, (Pietermaritzburg) (Rall AJ sitting as court of first
instance):
The appeal is dismissed with
costs.
__________________________________________________________
JUDGMENT
R PILLAY AJA (MPATI P and HEHER
and MAYA and SNYDERS JJA concurring)
[1] With the
leave of the trial court, the appellants appeal against the judgment
of the Pietermaritzburg High Court (Rall AJ) reviewing
and setting
aside the decision of the Department of Transport, KwaZulu-Natal,
1
to award to
Tansnat Bus Service (Pty) Ltd, the eighth respondent the remainder
(fifteen months) of a seven-year contract relating
to the operation
of bus services in the Durban and surrounding areas. The issue in the
court below was the validity or otherwise
of the decision to award
the remainder of the contract to Tansnet Bus Service (Pty) Ltd.
[2] Prior to October 2003, first
and third appellants provided a bus service to the public of the
greater Durban and surrounding
areas, as they were obliged to do, the
third appellant having been responsible, in terms of s 9 of the
National Land Transport
Transition Act 22 of 2000 (‘Transport
Transition Act’), for overseeing land public transport within
the province of
KwaZulu-Natal. However, earlier in the same year, the
first and third appellants decided to outsource public land transport
in
the greater Durban and surrounding areas. Tenders for the
provision of the service were invited in terms of s 47(2) of the
Transport
Transition Act.
[3] Consequent upon the tender
process and on or about 30 September 2003, the first and third
appellants concluded a contract with
Remant/Alton Land Transport
(Pty) Limited (‘Remant’) for the provision of public
passenger bus transport services in
the greater area of Durban as
from 1 October 2003 to 30 September 2010. The service was intended to
provide transport for about
ten thousand commuters daily.
[4] During March 2009, the Metro
Group of companies (which incorporates the first, second and third
respondents as well as KZT Bus
Services (Pty) Ltd) represented by
their general manager, Mr Vikesh Maharaj (‘Maharaj’),
reacted to newspaper reports
and rumours of Remant’s impending
termination of the contract. Maharaj then addressed various letters
to the first and third
appellants in which he explained the
capabilities of the companies he represented to provide the necessary
bus services, which
were being provided by Remant.
[5] On 17 March 2009,
representatives of the first and third appellants convened a meeting
with the bus operators of the greater
area of Durban, to discuss how
one or more of them could assist in providing bus services in areas
where Remant was unable to do
so. The meeting ended with the bus
operators being invited to submit proposals to the offices of the
third appellant indicating
their capacity to accommodate Remant’s
commuters on short notice, in areas where Remant was unable to
provide the service.
[6] On 1 June 2009 Remant gave
written notice to the first appellant of its intention to terminate
the contract on 30 June 2009.
The termination was accepted and Remant
was requested to source an alternate operator as provided for in
terms of the contract.
On 17 June 2009 Remant informed the first
appellant that it was unable to find an alternate operator and that
the agreement would
still be terminated with effect from 30 June
2009.
[7] It is common cause that by 6
July 2009 the third appellant had decided to appoint the eighth
respondent as an alternate operator
until 30 September 2010, being
the remainder of the period that the contract with Remant was
scheduled to run. It is also common
cause that no tenders were
invited for the appointment of a bus operator to provide the bus
services for the remainder of the period
of the contract.
[8] On 16 July
2009, the first to sixth respondents launched an urgent application
in the Pietermaritzburg High Court seeking an
order, firstly,
interdicting the appellants and the eighth and ninth respondents from
implementing the award of the contract and
secondly, reviewing and
setting aside the decision of the first and third appellants to award
the contract to the eighth respondent
on the basis of non-compliance
with the provisions of subsections 47(1) and (2) of the Transport
Transition Act,
2
which read as
follows:
‘
47
Subsidised service contracts
(1) After the expiry
of any interim contract or current tendered contract or any extention
thereof, whether provided for in such
contract or negotiated, if the
public transport service that had been operated in terms thereof will
continue to be subsidised,
that service must be operated in terms of
a subsidised service contract.
(2) Only a
provincial department, a transport authority and a metropolitan
municipality may enter into a subsidised service contract
with a
public transport operator, and subject to subsection (3), only if ─
(a) the service to
be operated in terms thereof, has been put out to public tendering in
accordance with a procedure prescribed
by or in terms of a law of the
province;
(b) the tender has
been awarded by the tender authority, in accordance with that
procedure, and
(c) the contract is
entered into with the successful tenderer.
(3) . . .’
To justify their failure to put
the service out tender, the respondents relied on certain provisions
in the contract which allowed
for the appointment of an alternate
operator, by either party. The application was successful and the
decision to award the remainder
of the contract to the eighth
respondent was set aside.
[9] By the time the appeal was
heard on 15 November 2010, the contract in question had run its full
course ─ to 30 September
2010. In his heads of argument,
counsel for the respondents submitted that the issue of the validity
of the agreement had become
moot, that a decision on the merits of
the appeal will have no practical effect and the appeal should
therefore be dismissed on
that ground alone, in terms of s 21A of Act
59 of 1959) (‘the Act’). Counsel were accordingly invited
to first address
us on the question of mootness.
[10] Section 21A(1) of the Act
reads:
‘
(1)
When at the hearing of any civil appeal to the Appellate Division
[Supreme Court of Appeal] or any Provincial or Local Division
of the
Supreme Court [High 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.’
[11] Where the relief sought on
appeal is moot and would be of academic interest only, the merits of
the appeal will not be entertained
and the appeal will be dismissed
on that ground alone. (See
Port Elizabeth Municipality v Smit
2002 (4) SA 241
(SCA);
Radio Pretoria v Chairman, Independent
Communications Authority of South Africa & another
2005 (1)
SA 47
(SCA)).
[12] Counsel for the third
appellant contended on behalf of all the appellants that the appeal
was not moot because the question
of the validity of the contract is
a live issue and could have the following consequences viz (a) the
appellants may be sued for
damages by the respondents; (b) there may
be outstanding amounts due to the eighth respondent for services
rendered in terms of
the contract, and (c) the matter of subsidies
might have to be assessed.
[13] Section 21A however confers
a discretion on this court to deal with the merits of the appeal.
This would be done where an appeal
involves a question of law and
which is likely to arise again. (See
Land &
Landbouontwikkelingsbank van Suid-Afrika v Conradie
2005 (4) SA
506
(SCA).
[14] It is clear that the
contract in question no longer exists and its validity or otherwise
is therefore no longer a live issue.
Consequently, deciding that
issue will have no practical effect or result.
[15] The factors raised on behalf
of the appellants are all speculative. There is no evidence that
similar matters, based on similar
facts, will arise in future. As was
said in
Radio Pretoria
para 41:
‘
.
. . 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 . . .’.
[16] In any event the Transport
Transition Act has since been repealed and the wording of the
equivalent section in the
National Land Transport Act 5 of 2009
is
different. Consequently there is no likelihood of the circumstances
in this case being repeated.
[17] In
National Coalition for
Gay and Lesbian Equality & others v Minister of Home Affairs &
others
2000 (2) SA 1
(CC), Ackermann J in referring to
JT
Publishing (Pty) Ltd & another v Minister of Safety and Security
& others
[1996] ZACC 23
;
1997 (3) SA 514
(CC) said at para 21 (footnote 18):
‘
A
case is moot and therefore not justiciable 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.’
[18] Clearly the matter is moot
and there is no factual basis for the exercise of the discretion to
entertain the appeal. The appeal
therefore falls to be dismissed.
[19] The appeal is dismissed with
costs.
___________________
R Pillay
Acting
Judge of Appeal
APPEARANCES
FIRST APPELLANT: ABG Choudree
Instructed by Linda Mazibuko and
Ass, Durban
Matsepes Inc, Bloemfontein
THIRD APPELLANT: DJ Shaw SC (with
him R Padayachee)
Instructed by Ngcobo Poyo
Diedricks Inc, Pietermaritzburg
Bezuidenhouts Inc, Bloemfontein
1
ST
to 6
TH
RESPONDENTS: RAK Vahed SC
Instructed by Livingston Leandy
Inc, Durban
McIntyre & van der Post,
Bloemfontein
1
Third
appellant is the member of the executive council for the portfolio
of Transport in the Province of KwaZulu-Natal and consequently
the
political head of the department.
2
The
National Land Transport Transition Act 22 of 2000
was repealed and
replaced by the
National Land Transport Act 5 of 2009
.