Department of Public Works v MS Moos Construction CC (401/05) [2006] ZASCA 62; [2006] SCA 63 (RSA) ; [2006] 4 All SA 535 (SCA) (25 May 2006)

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[2006] ZASCA 62
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Department of Public Works v MS Moos Construction CC (401/05) [2006] ZASCA 62; [2006] SCA 63 (RSA) ; [2006] 4 All SA 535 (SCA) (25 May 2006)

REPUBLIC
OF SOUTH AFRICA
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
Case
number:
401/05
In
the matter between:
DEPARTMENT
OF PUBLIC WORKS
Appellant
and
MS
MOOS CONSTRUCTION CC
Respondent
CORAM
:
MPATI
DP, FARLAM, MTHIYANE, BRAND JJA and MAYA AJA
HEARD
:
3
MAY 2006
REASONS
HANDED DOWN:
25 MAY 2006
Summary:
Appeal –
s 21A of Supreme Court Act 59 of 1959 – Power of court of appeal to
dismiss appeal where judgment or order sought will
have no practical
effect or result.
Neutral
citation:
This judgment may be cited as
Department of Public
Works v M S Moos Construction CC
[2006] SCA 63 (RSA)
_____________________________________________________________________
REASONS
_____________________________________________________________________
MPATI DP:
[1] This appeal was
dismissed with costs on 3 May 2006. The reasons for that order now
follow.
[2] On 23 January 2004,
and following a tender process, a contract was concluded between the
Government of the Republic of South Africa
and the respondent, in
terms of which the respondent was to carry out restoration and
upgrading work on the official residence of
the Minister of Justice
and Constitutional Development, situated at Rondebosch, Cape Town.
In concluding the contract the Government
was represented by the
Director-General: Department of Public Works.
[3] On 29 November 2004
and after it had purportedly cancelled the contract and the
respondent had refused to vacate the property,
the appellant applied,
on an urgent basis, to the Cape High Court for an order of eviction
against the respondent. The respondent
opposed the order sought.
One of the grounds of opposition was that the appellant is not a
legal persona
and thus does not have the necessary
locus
standi
to institute legal proceedings. The court
a quo
(Yekiso J) agreed and, finding it unnecessary to consider the
merits, dismissed the application with costs. This appeal is with
its
leave.
[4] On 24 November 2005
the Government of the Republic of South Africa and the Minister of
Public Works applied to the Cape High Court,
also on an urgent basis,
for the same order that was sought before Yekiso J. An eviction
order, together with other ancillary relief,
was granted by Traverso
DJP on 10 February 2006. Leave to appeal against that order was
refused and an application to the President
of this court for such
leave is pending.
[5] In their heads of
argument counsel for the appellant submitted that in the event of the
appeal succeeding, the matter should be
remitted to the court
a
quo
for that court to consider the merits of the case. But the
merits have now already been considered by Traverso DJP, who made the
order referred to above on 10 February 2006. For this reason the
parties were given notice, in terms of s 21A(2) of the Supreme
Court
Act 59 of 1959 (the Act), that they would be required, at the hearing
of the appeal, to make submissions as to why the appeal
should not be
dismissed for the reason that the judgment or order sought will have
no practical effect or result.
[6] Section
21A(1) of the Act reads:
‘
When at the hearing of
any civil appeal . . . 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 question whether the
judgment or order will have no practical effect or result is
determined without reference to a consideration
of costs, save under
exceptional circumstances (s 21A(3)).
[7] Remitting the matter
to the court
a quo
for consideration of the merits, were the
appeal to succeed, will clearly have no practical effect or result.
The order sought from
the court
a quo
has already been
obtained and the fact that it might be appealed does not change the
position. Counsel for the appellant, however,
submitted that the
issue between the parties concerns the appellant’s
locus standi
;
that this is a live issue, the adjudication of which would clearly
have a practical effect in that the appellant, if successful,
would
be authorised to continue to litigate in its own name; that a
consideration of the issue will have a wider effect in that it
will
also decide the
locus standi
of all government departments,
both national and provincial; that departments frequently litigate in
their own names, particularly
in the magistrates’ courts, and that
all such litigation presently pending will be affected by a decision
of the ‘merits’ of
the present appeal, ‘which is to a large
extent a test case’. Moreover, counsel contended, a further issue
between the parties
concerns the recovery of damages suffered
pursuant to the respondent’s failure to complete the building work
in accordance with
the contract. Counsel therefore argued that it is
in the public interest that the issue concerning the appellant’s
locus standi
– and by the same token the
locus standi
of other departments – ‘should be authoritatively decided by this
court’ as it will frequently arise in further litigation
in the
future. For these contentions counsel relied particularly on three
decisions of this court, namely
Land en Landbouontwikkelingsbank
van SA v Conradie
2005 (4) SA 506
(SCA);
Radio Pretoria v
Chairman, ICASA
2005 (1) SA 47
(SCA) and
Rand Water Board v
Rotek Industries (Pty) Ltd
2003 (4) SA 58
(SCA).
[8] The section confers a
discretion on this court or any High Court sitting as a court of
appeal (
President, Ordinary Court Martial v Freedom of Expression
Institute
[1999] ZACC 10
;
1999 (4) SA 682
(CC) at 687 para 13). In
Port
Elizabeth Municipality v Smit
2002 (4) SA 241
(SCA) this court
(at para 7) raised as an argument (which it said found support in
Sun
Life Assurance Company of Canada v Jervis
[1944] AC 111
(HL) at
114) the proposition that s 21A only affords a court of appeal a
discretion not to entertain an appeal when there is still
a
subsisting
issue
or
lis
between the parties, the
resolution of which, for some or other reason, has become academic or
hypothetical. Counsel’s submission
that the question of the
appellant’s
locus standi
is a ‘live issue’ is correct.
It is still a subsisting issue. What needs to be considered,
therefore, is whether this court
should exercise its discretion in
favour of the appellant and adjudicate on that issue.
[9] In the
Conradie
case, supra, this court decided to exercise its discretion in favour
of the appellant and considered the issue at hand, which concerned
the interpretation and application of the Extension of Security of
Tenure Act 62 of 1997, and thus a point of law. It held that
the
issue was likely to arise frequently since it involved eviction
proceedings brought under that Act by lessors against lessees.
What
was of particular importance was the fact that judgments of the Land
Claims Court are binding on magistrates and it had, in
that case,
followed its own judgment which this court held to have been wrongly
decided.
[10] In
Rand Water
Board
, supra, Navsa JA pointed out (at 62 para 20 – the passage
relied upon by counsel for the appellant) that in a debate about the
application of s 21A of the Act, when a public law issue presents
itself, sight should not be lost of the following passage in
R v
Secretary of State for the Home Department, Ex parte Salem
[1999] UKHL 8
;
[1999]
2 WLR 483
(HL) at 488B; ([1999]
2 All ER 42
at 47d):
‘
The
discretion to hear disputes, even in the area of public law, must,
however, be exercised with caution and appeals which are academic
between the parties should not be heard unless there is a good reason
in the public interest for doing so, as for example (but only
by way
of example) when a discrete point of statutory construction arises
which does not involve detailed consideration of facts
and where a
large number of similar cases exist or are anticipated so that the
issue will most likely need to be resolved in the
near future.’
And in
Radio Pretoria
,
supra, this court (per Navsa JA) said the following (at 55 para 40):
‘
Assuming
without deciding . . . that the practical effect or result referred
to in s 21A(1) of [the Act] is not restricted to the
parties
inter
se
and that the expression is wide enough to include a practical
effect or result in some other respect, there is no clear indication
that another case on identical facts will surface in the future.’
[11] As I have mentioned
above, the ‘existing’ or ‘live issue’ in the present matter
is the appellant’s
locus standi
, ie whether the appellant
may, in the future (and so also other government departments),
litigate in its own name as the Department
of Public Works. I am not
at all persuaded that any good reason in the public interest exists
for this court to exercise its discretion
in favour of hearing the
dispute between the parties. This is not a case where a refusal to
determine the dispute in the exercise
of its discretion by this court
will result in hardship or prejudice for the appellant, or any other
government department for that
matter.
Section 2(1)
of the
State
Liability Act 20 of 1957
makes provision for the Minister of the
department concerned to be cited as nominal defendant in claims
against the State. A corollary
is that the Minister of the
department concerned may sue as a nominal plaintiff on behalf of the
State. And this has been the case
for decades now. The State may
also be cited as the Government of the Republic of South Africa.
(See
Marais v Government of the Union of South Africa
1911 TPD
127
at 132;
Die Spoorbond v South African Railways; Van Heerden
v South African Railways
1946 AD 999
at 1004-5;
Die Regering
van die Republiek van Suid-Afrika v SANTAM Versekeringsmaatskappy Bpk
1964 (1) 546 (W).) More recently, this court, in
Distcor
Export Partners v The Director-General of the Department of Trade and
Industry
(as yet unreported judgment in case no 521/03 delivered
on 23 March 2005), held that not only the Minister as political head
of department
is empowered to sue on behalf of the State, but also
the Director-General, provided, of course, there is ministerial
authorization.
[12] The State thus has
more than one option when it wishes to litigate and in my view the
appellant now merely wishes this court
to advise it on a fourth
option, ie whether it can litigate in its own name. The purpose and
effect of
s 21A
have been explained in
Premier, Provinsie
Mpumalanga v Groblersdalse Stadsraad
1998 (2) SA 1136
(SCA) at
1143 A-C and require no further elaboration. And as was said in
Geldenhuys and 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.’ With regard to the information,
given from the bar,
that pending litigation in the magistrates’ courts ‘would be
affected by a decision of the merits of the
present appeal’, it has
not been suggested that an amendment of the pleadings in terms of
rule 55A
of the Rules of the Magistrates’ Courts is not practicable
(for example, for fear of a special plea of prescription) in any one
of those matters.
[13] For these reasons
the appeal was dismissed with costs.
L MPATI DP
CONCUR:
FARLAM
JA)
MTHIYANE
JA)
BRAND
JA)
MAYA AJA)