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[2021] ZAGPPHC 135
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Tswelokgotso Trading Enterprise v Airports Company of South Africa (SOC) Limited (A541/2017) [2021] ZAGPPHC 135 (4 March 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHERS
JUDGES: NO
(3)
REVISED
Case number:
A541/2017
In the matter
between:
TSWELOKGOTSO
TRADING ENTERPRISE
Appellant
V
AIRPORTS
COMPANY OF SOUTH AFRICA (SOC)
LIMITED
Respondent
JUDGMENT
THE COURT,
[1]
This is an application for
leave to appeal brought by Tswelokgotso Trading Enterprise CC (“the
appellant”) against a
ruling handed down by Acting Judge
Grenfell on 8 September 2018 (“the order”). In terms of
this order: (i) The application
for a declaratory order launched on
28 February 2016 (as amended) is dismissed. (ii) The application for
committal of board members
of the respondent (Airports Company of
South Africa (SOC) Ltd) for contempt of the orders of Jansen, J and
de Vos, J is dismissed.
(iii) The applicant is ordered to pay the
respondent’s costs of both applications, such costs to include
the costs of two
counsel.
[2]
The application launched on 28 February 2016 had
two parts. In terms of Part A of the application, an order was sought
on an urgent
basis that an interdict be granted against the
respondent in favour of the appellant (the applicant in the court
a
quo
) restraining the respondent from
preventing and/or prohibiting the appellant in any manner whatsoever
from carrying out its obligations
in terms of the contract between
the parties for the maintenance of runways, taxiways, aprons and road
services at OR Tambo International
Airport (“the contract”).
Notably the order sought would operate as an interim interdict
pending the hearing of Part
B of the application.
[3]
In Part B of the Notice of Motion, the following
order was sought: (i) A declaratory order that the contract came into
effect on
a date when the applicant received a fully completed
original copy of the contract, to wit 17 June 2013. (ii) That the
3-year duration
of the contract was until 16 June 2016. (iii) Costs
on an attorney and client scale.
[4]
On 12 May 2016 the applicant filed a Notice of
Amendment effectively introducing a completely new cause of action to
the effect
that it now sought a declaratory order that the contract
only came into effect when the appellant had received a fully
completed
original copy of the contract together will all its
annexures and deviations. In effect the applicant sought a
declaratory order
that the 3-year duration of the contract has not
yet commenced and will only come into effect on some unspecified
further date.
[5]
There was some debate about whether or not the
amendment was perfected. However, upon a reading of the judgment of
the court
a quo
, the
court
a quo
approached
the matter on the basis that the amendment had been effected and
proceeded to consider the amended claims made in the
Notice of Motion
dated 12 May 2016. Accordingly, I will likewise proceed on that
basis.
[6]
I should, however, point out at the outset, that
counsel on behalf of the appellant conceded that the amended cause of
action had
no merit and that he was unable to advance any submissions
in respect of the claim advanced in the amended Notice of Motion to
the effect that the contract would only come into operation on some
unspecified future date. To a question posed by this court,
counsel
on behalf of the appellant conceded that this meant that the claim
for relief in Part B in fact fell by the wayside.
The
issues before the court
a quo
[7]
Two issues were before the court
a
quo
: The first was Part B of the application
launched on 28 February 2016 (as amended to provide for a new cause
of action) and the
second an application launched in June 2017 for
the committal of various board members of the respondent for contempt
of the orders
handed down by Jansen, J and De Vos, J. On 1 March 2016
Jansen, J granted the interim interdict pending the hearing of Part
B.
The Notice of Intention to amend Part B was filed after Jansen, J
granted the interim interdict. On 28 June 2016, De Vos, J found
the
respondent to be in contempt of the order dated 1 March 2016 but
reserved the sanction. Both these orders were thus made pursuant
to
the original Notice of Motion and not the amended version.
Postponement
application
[8]
At the commencement of the proceedings the
appellant sought an order for the postponement of both Part B of the
application and
the contempt application. The basis for the
application was to afford the appellant an opportunity to join a
“necessary party”
Mabothema Trading Enterprises (Pty)
Ltd) (“Mabothema”) to the declaratory application. After
the contract in issue
lapsed, the respondent issued a tender
invitation for a new contract. The appellant submitted a bid but was
unsuccessful. It was
common cause that the appellant never challenged
the award of the tender to Mabothema yet sought (unsuccessfully) to
join it as
a so-called “necessary party”. Mabothema had
no interest in the committal for contempt application.
[9]
The application for the postponement was
dismissed whereafter counsel on behalf of the appellant withdrew. Mr
Makola (the legal
advisor of the appellant) then sought a
postponement to obtain legal representation. That application was
likewise dismissed.
[10]
As far as the postponement applications are
concerned, counsel on behalf of the appellant conceded that these
orders are now academic
and made no further submission in respect of
the orders regarding the postponement applications. The concessions
are well made.
[11]
Regarding the application for a declarator, the
court
a quo
–
again correctly in my view - dismissed the order sought in Part B (as
amended) for a declarator that the three-year duration
of the
contract has not yet commenced despite the fact that the appellant
earlier relied on the fact that the contract came to
an end on 16
June 2016. The court
a quo
,
inter alia,
rejected
the relief on the basis that the new version put forward by the
appellant did not take into account the fact that both
parties
conducted their affairs as from 17 June 2013 (at best for the
appellant) until 16 June 2016 as if a three-year contract
was in
place. The court further noted that the appellant rendered invoices
to the respondent in terms of the contract, all of which
were paid.
[12]
Before us, counsel on behalf of the appellant, as
already pointed out, conceded that he was unable to advance any
submissions in
support of the relief sought in Part B of the notice
of motion thus effectively abandoned any reliance on the relief
sought in
terms of the amended notice of motion. More in particular,
counsel conceded that he was unable to argue for a fresh commencement
of the contract (as contended by the appellant in the amended notice
of motion). Any appeal against this part of the order of the
court
a quo
has thus become academic.
[13]
As far as the contempt application is concerned,
the court
a quo
,
correctly in my view, found that, because the contract between the
parties came to an end on 16 June 2016, the interim interdict
came to
an end with it on 16 June 2016 when the (three-year) contract came to
an end. At best for the appellants, and having regard
to the wording
of prayer 3 of the notice of motion (which reads that the order
operated as an interim interdict pending the hearing
of Part B of
this application) the orders by De Vos, J and Jansen, J came to an
end on 8 September 2017 when the court
a quo
handed down its order. The orders therefore were academic then and
they remain so now.
[14]
In the circumstances, no
live issue or controversy remain between the parties: The order
sought in Part B is academic in light of
the fact that the contract
came to an end on 16 June 2016. Both the postponement applications
and the contempt application have
likewise become academic.
Consequently, the issues on appeal before us have become academic.
This much
has also been conceded on behalf
of the appellant.
[15]
In
terms of section 16(2)
(a)
(i)
of the Superior Courts Act
[1]
a
court may dismiss an appeal 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. A
court
on appeal, however, retains a discretion to decide an issue or issues
that have become moot or academic. The appeal before
us is not, in my
view, one of those cases that requires this court to pronounce
thereon. In all fairness to the parties, it has
also not been
suggested by any of the parties that this court should pronounce on
any of the issues that have since become moot.
[16]
In any
event, no legal issue of public importance arose in this matter that
would require this court to pronounce thereon nor is
it in the
interests of justice to do so.
[2]
[17]
Where
a judgment or order will have no practical effect, a court may
therefore dismiss such an appeal. See in this regard
Independent
Electoral Commission v Langeberg Municipality
[3]
where
the court found that there was no live controversy between the
parties because the elections were already over and in light
of the
fact that there was no suggestion that any order the court would make
might have an impact on the parties. The disputes
between the parties
were therefore moot:
“
[11]
This Court has a discretion to decide issues on appeal even if they
no longer present existing or live controversies. That
discretion
must be exercised according to what the interests of justice require.
A prerequisite for the exercise of the discretion
is that any order
which this Court may make will have some practical effect either on
the parties or on others. Other factors that
may be 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 advanced.
This does not mean, however, that once this
Court has determined one
moot issue arising in an appeal it is obliged to determine all
other moot issues.
[12]
There is no live controversy between the parties. The elections are
over and there is no suggestion that any order we make
could have any
impact on them….”
[18]
For these reasons
the appeal is dismissed. Costs should follow the result. There was
some debate about whether this appeal warranted
the costs occasioned
by two counsel particularly because only one counsel appeared on
behalf of the appellant. I have been persuaded
by Mr Mnyandu, who
appeared on behalf of the respondent that the preparation of this
matter required the employment of two counsel.
[19]
In the event the
following order is made:
1.
The appeal is
dismissed
2.
The appellant to pay
the costs, such costs to include the costs of two counsel.
A.
C. BASSON
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
OF THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
I
agree
P.M. MABUSE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
I
agree
E.M KUBUSHI
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
OF THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 4 March 2021.
Case
number
: A541/2017
Matter heard
on
: 24 February 2021
Appearances
On
behalf of the appellant
Adv
Ascar
Instructed
by Beder-Friedland Inc Attorneys
c/o
Friedland Hart Solomon Nicolson
On
behalf of the respondent
Adv
Mnyandu
Instructed
by Raname Mokalane Inc
c/o
Mashego Ramaga Attorneys
[1]
Act 10 of 2013.
[2]
Centre for Child Law v
Governing Body of Hoërskool Fochville
2016
(2) SA 121
(SCA): “
[11]
This court has a discretion in that regard and there are a number of
cases where, notwithstanding the mootness of the issue
as between
the parties to the litigation, it has dealt with the merits of an
appeal… With those cases must be contrasted
a number where
the court has refused to enter into the merits of the appeal.
[2]
The broad distinction between the two classes is that in the former
a discrete legal issue of public importance arose that would
affect
matters in the future and on which the adjudication of this court
was required, whilst in the latter no such issue arose...
”
See
also
Sebola
and Another v Standard Bank of South Africa Ltd and Another
2012
(5) SA 142
(CC)
where
the Constitutional Court noted that: “[32] (M)ootness is not
an absolute bar to deciding an issue. That is axiomatic:
the
question is whether the interests of justice require that it be
decided. One consideration is whether the court's order will
have
any practical effect on either the parties or others.”
[3]