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[2022] ZAFSHC 310
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DS Consortium v The MEC Free State Provincial Department of Sports, Arts, Culture and Recreation and Another (4568/2022) [2022] ZAFSHC 310 (27 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
4568/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
DS
CONSORTIUM
(A
Joint Venture between Dots Design Group (Pty) Ltd
and
Sonaqua Events and Promotions CC)
Applicant
and
THE
MEC:
FREE
STATE
PROVINCIAL DEPARTMENT
OF
SPORTS, ARTS, CULTURE AND RECREATION First
Respondent
C-SQUARED
GROUP (PTY)
LTD Second
Respondent
HEARD
ON:
10
OCTOBER 2022
JUDGEMENT
BY:
LOUBSER,
J
DELIVERED
ON:
27
OCTOBER 2022
[1]
This is an application for leave to
appeal against the orders made by this Court on 3 October 2022 in an
urgent application, and
against the Reasons for the said Orders
handed down on 6 October 2022. The applicants for leave are the two
respondents. For the
sake of convenience, and for ease of reference,
the parties are referred to herein as they were in the main
application.
[2]
The main application concerned the award
of a tender by the First Respondent to the Second Respondent to
provide event management
services for the Macufe Festival in
Bloemfontein, which festival was held during the period 25 September
2022 until 9 October 2022.
The urgent application launched by the
applicant was heard on 26 September 2022, that is one day after the
festival had commenced.
[3]
After hearing the application, the Court
made the following orders:
1.
The Applicant's non-compliance with the
rules of court in relation to time periods is condoned, and the
application is heard as
an urgent application in terms of Rule 6(12).
2.
The decision of the First Respondent to
award tender SCM/MACUFE 01/22 to the Second Respondent, is hereby
reviewed, declared unlawful
and set aside.
3.
Any
service
level
agreement
concluded
between
the
First
and
Second Respondents relating to the
impugned decision is struck down in accordance with
Section 8
of the
Promotion of Administrative Justice Act 3 of 2000
.
4.
The First and Second Respondents are
ordered to pay the costs of the application jointly and severally,
the one paying the other
to be absolved.
[4]
It is mentioned in the Reasons handed
down for these Orders that the consequential relief sought by the
applicant, for instance
that a new tender must be awarded, would not
be in the public interest because such an order could bring an
immediate end to the
festival, which was already in full swing at
that point in time. It is mentioned that it was best to leave the way
forward in the
hands of the parties without interference by the
Court. The Court refrained from making any further orders by virtue
of Section
172(1)(b) of the Constitution, which provides that a Court
may make any order that is just and equitable in circumstances like
the present.
[5]
In
their application for leave to appeal, the Respondents raised a
number of grounds of appeal. Having regard to the fact, however,
that
the Macufe Festival has ended some two weeks ago, the first question
that now arises is whether an appeal by the Respondents
would have
any practical effect, should such an appeal eventually be upheld.
This question is relevant because Sections 16 and
17 of the Superior
Courts Act
[1]
provide,
inter
alia
as
follows:
"16(2)
(a) (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.
17.
(1) Leave to appeal may only be given
where the judge or judges concerned are of the opinion that-
(a)
......
(b)
the decision sought on appeal does not
fall within the ambit of section 16(2)(a)".
[6]
The result hereof is that leave to appeal may only be granted if the
issues are of
such a nature that the decision sought will have a
practical effect or result. If not, leave to appeal may not be given.
At the
hearing of the application for leave, counsel for the
Applicant submitted that a successful appeal will have no practical
effect
or result, simply because the Macufe festival has already run
its course. He submitted that for this reason, the issues sought to
be raised on appeal have become moot.
[7]
Counsel
appearing for the two Respondents submitted that the matter is not
moot. Mr. Merabe, appearing for the Second Respondent,
referred this
Court to the judgement
of
Minister
of Justice and Constitutional Development and Others
v
Southern
Africa
Litigation
Centre
and Others
[2]
and
the judgement of the Constitutional Court in
AB
and Another v Pridwin Preparatory School and Others
[3]
,
submitting
that the matter represents a live controversy for the Second
Respondent. By reason of the fact that the judgement of
this Court
saddled the Second Respondent with an albatross around its neck as
far as its future operations are concerned, the matter
has not become
moot, the argument went.
[8]
In my view, the
Minister
of Justice
case is clearly
distinguishable from the present case. In that case, the South
African Government failed to arrest a visiting
head
of
state
for
whom
the
International
Criminal
Court
had
issued
warrants
for his arrest. In an urgent application launched in the Pretoria
High Court, an order was made declaring that the failure
to arrest
was inconsistent with the Constitution and invalid, and a further
order was made for the arrest and detention of the
head of state
concerned. Subsequently the High Court refused leave to appeal on the
basis that the litigation has become moot,
since the person concerned
had already left the country. On petition the Supreme Court of Appeal
held that the High Court had erred
in refusing leave to appeal on the
basis that there was no live dispute between the parties. It held
that the High Court order
had a continuing effect because the SALC
would seek to enforce it if the head of state ever returned to South
Africa, something
the government had to take cognisance of in the
conduct of its diplomatic relations.
[9]
In the present case the order of this
Court had no such continuing effect. On the fact of the present case,
the litigation has become
moot because a court's ruling on appeal
will have no direct practical effect.
[10]
The judgement in the
AB and Another
case is also
distinguishable. In that case, the headmaster of a private school
terminated the parent contract with the parents of
two boys who
attended the school. The parents sought an order in the
Constitutional Court declaring the headmaster's decision to
terminate
the Parent Contract unlawful, and declaring a clause in the contract
contrary to public policy to the extent that it
purports to allow the
school to cancel the parent contract without following a fair
procedure. By the time the matter came before
the Constitutional
Court for leave to appeal, the two boys have already left the school
in question, and the parents indicated
that they did not pursue any
relief seeking the children's reinstatement at their old school. The
question then arose whether the
matter is therefore moot, since the
Court's ruling would have no direct practical effect.
[11]
In deciding this question, the
Constitutional Court pointed out that mootness is not an absolute bar
to deciding an issue ... the
question is whether the interests of
justice require that it be decided. The Court found that it was in
the broader public interest
for the Court to make a decision on the
constitutionality of the abovementioned
clause only, and to thus grant leave to
appeal notwithstanding mootness.
It
was
in
the broader
public
interest
because
similar
clauses
in
parent contracts are used in many independent schools across the
country.
[12]
In
the present case there are no issues pertaining to the interests of
justice or the broader public interest that require the attention
of
a court of appeal. The issues therefore remain moot, because a
successful appeal will have no direct practical effect. I need
to
mention here that there is nothing on record to indicate that there
are pending or expected disputes between the parties that
may benefit
from any findings by a court of appeal. In any event, it was found by
the Constitutional Court in
Steenkamp
NO v Provincial Tender Board, Eastern Cape
[4]
that
there were no public policy considerations and no constitutional
values which justified adapting or extending the common law
of delict
to recognise a right of action by an initially successful tenderer
who had incurred financial loss on the strength of
the award which
was subsequently set aside on review. The initially successful
tenderer has other remedies, for instance to negotiate
the recovery
of its out-of-pocket expenses from the tender board.
[13]
In the premises, I find that the
decision sought on appeal will have no practical effect or result.
The following order is made:
1.
The application for leave to appeal is dismissed with costs,
including the costs of two counsel.
P.
J. LOUBSER, J
For
the First Respondent (Applicant for leave):
Adv. L.R. Bomela
Instructed
by:
The
State Attorney
Bloemfontein
For
the Second Respondent (Applicant for leave): Adv.
M.J. Merabe
Instructed
by:
Mohobo
Attorneys Inc
Bloemfontein
For
the Applicant: With him: Adv.
P.J.J. Zietsman SC
Adv.
W. A. van Aswegen
Instructed
by:
Muller Gonsior Inc
Bloemfontein
[1]
Act 10 of 2013
[2]
2016(3) SA 317 (SCA)
[3]
(2020) ZACC 12
[4]
2007 (3) SA 121
{CC)