THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case numbers: 1125/2022 and 1129/2022
In the matter between:
AKANI RETIREMENT FUND ADMINISTRATORS
(PTY) LIMITED FIRST APPELLANT
CHEMICAL INDUSTRIES NATIONAL
PROVIDENT FUND SECOND APPELLANT
DANGAZELE, BONGINHLANHLA THIRD APPELLANT
SEMA, REGINALD FOURTH APPELLANT
SITHOLE, AYANDA FIFTH APPELLANT
MASHEGO, LUCAS SIXTH APPELLANT
BALOYI, JOHN SEVENTH APPELLANT
MOTLAKENG, POPPY EIGHTH APPELLANT
MAKHABA, CASWELL Z NINTH APPELLANT
TJIANE, DAN TENTH APPELLANT
DYONTA, MONDE ELEVENTH APPELLANT
NGONYAMA, ZWELIHLE REGINALD TWELFTH APPELLANT
ZUNGU, BHEKI THIRTEENTH APPELLANT
SIQITI, TEMBA FOURTEENTH APPELLANT
ARENDSE, ALEXANDER FIFTEENTH APPELLANT
PELO, SINA SIXTEENTH APPELLANT
TSHAMBU, JOHN SEVENTEENTH APPELLANT
OLIVIER, LIZETTE EIGHTEENTH APPELLANT
SHOLOKO, SBONGILE NINETEENTH APPELLANT
MATLOGA, WILLIAM TWENTIETH APPELLANT
2
SIBIYA, GLORIA JOYFUL TWENTY FIRST APPELLANT
JOHN, SHANDRIKA TWENTY SECOND APPELLANT
LOOTS, ENRNOLENE TWENTY THIRD APPELLANT
DE VOS, LAURA TWENTY FOURTH APPELLANT
NOLINGO, BULELANI TWENTY FIFTH APPELLANT
MAGAGULA, ZANELE ESTHER TWENTY SIXTH APPELLANT
DAVIDS, FAIZ TWENTY SEVENTH APPELLANT
and
MOROPA, CHRIS LEGAKWA FIRST RESPONDENT
MAKAMOLE, ESAU FRANS SECOND RESPONDENT
NKOSI, SHALIMANE RICHARD THIRD RESPONDENT
SELEPE, VUSI JOHANNES FOURTH RESPONDENT
RAMBAU, MATHAPELO SHIRLEY FIFTH RESPONDENT
GAMEDE, DINEO PRISCILLA SIXTH RESPONDENT
MAZWI , SIKHWEBU CHRISTOPHER SEVENTH RESPONDENT
NKGAPELE, JACK TEMA EIGHTH RESPONDENT
NBC HOLDINGS (PTY) LIMITED NINTH RESPONDENT
NBC FUND ADMINIST RATION SERVICES
(PTY) LIMITED TENTH RESPONDENT
Neutral citation: Akani Retirement Fund Administrators (Pty) Limited and Others v
Moropa and Others (1125/202 2 and 1129/2022) [202 5] ZASCA 13 (21 February 2025 ).
Coram: ZONDI DP, PONNAN and MAKGOKA JJA and BAARTMAN and MASIPA
AJJA
Heard : 5 September 2024
Delivered : 21 February 2025.
Summary: Mootness – appeal having no practical effect – whether a discrete point of
law arises – general principles restated .
3
ORDER
On appeal from: Gauteng Divi sion of the High Court, Johannesburg (Adams J,
Dippenaar J and Lenyai AJ, sitting as court of appeal):
The appeal is dismissed with costs in terms of s 16(2)( a)(i) of the Superior Courts Act 10
of 2013 .
JUDGMENT
Makgoka JA ( Zondi DP, Ponnan JA and Baartman and Masipa AJJA concurring):
[1] At the hearing of this matter on 5 September 2024, we made the following order:
‘The appeal is dismissed with costs in terms of s 16(2)( a)(i) of the Superior Courts Act 10 of 2013.’
We undertook to furnish the reasons for the order in due course. These are the reasons.
[2] Section 16(2)( a)(i) of the Superior Courts Act1 provides that:
‘(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.
(ii) Save under exceptional circumstances, the question whether the decision would have no
practical effect or result is to be determined without reference to any consideration of costs.’
[3] The second appellant, Chemical Industries National Provident Fund ( CINPF), is a
pension fund registered under the provisions of the Pension Funds Act .2 For over thirty
years , it had a suite of agreements (the agreements) with the ninth respondent, NBC
Holdings (Pty) Ltd) and the tenth respondent, NBC Fund Administration Services (Pty)
Ltd (collectively ‘NBC’). In terms of the agreements, NBC provided administration,
consulting and actuarial services (administration services) to CINFP . On 21 and 22
November 2019 , the board of trustees of CINPF (the board) resolved to terminate the
1 Superior Courts Act 10 of 2013.
2 Pension Funds Act 24 of 1956.
4
agreements with NBC. On 11 December 2019 , the board decided to appoint the first
appellant, Akani Retirement Fund Administrators (Pty) Ltd (Akani) and two other entities3
in the stead of NBC to provide the administration services.
[4] The first to eighth respondents (member respondents) are members of CINPF.
They, together with NBC, were the applicants in the Gauteng Division of the High Court,
Johannesburg (the high court) in which they challenged CINPF’s decision referred to
above. CINPF was cited as the first respondent. The third to twenty -seventh appellants,
cited as the second to twenty -sixth respondents, were members of the board of CINPF.
Akani was cited as the twenty -seventh respondent.
[5] The member respondents and NBC sought relief in two parts. Part ‘A’ was an
urgent interdict in which they sought to prevent Akani from taking over the administration
services previously provided by NBC. In Part ‘B’, the member respondents and NBC
sought to review and set aside the appointment of Akani (the review application) . Part ‘A’
came before Vally J, who on 12 March 2020, granted an interdict restraining CINPF and
Akani from implementing Akani’s appointment as the provider of administration services
to CINPF.
[6] The review application also came before Vally J on 20 July 2020 . The member
respondents and NBC relied on two principal grounds. First, that CINPF’s trustees had
failed to consult with the member respondents and other stakeholders regarding the
termination of the NBC agreements. Second, that the decision to appoint Akani had been
influenced by an improper and corrupt relationship between Akani and three of CINPF’s
trustees, namely: Mr Dangazele, then the Principal Officer; Mr Sema, then the
Chairperson of the board; and Mr Sithole, then deputy Chairperson of the board (the
impugned trustees) . The member respondents and NBC also sought an order removing
the impugned trustee s from the board of CINPF. The impugned trustees are cited as the
3 Those entities are Novare Actuaries and Consultants (Pty) Ltd and Moruba Consultants and Actuaries.
These entities do not take part in this appeal.
5
third to fifth appellants in this Court. It is common cause that both Messrs Dangazele and
Sema have passed on, and Mr Sithole has been removed as a trustee.
[7] It was common cause that a week after Akani’s appointment, the impugned
trustees had received payments from a company related to Akani, Neighbour Funeral
Scheme (NFS). Mr Dangazele received R40 000, while Messrs Sema and Sithole each
received R25 000. The member respondents and NBC characterized these payments as
bribes paid by Akani to facilitate its appointment. In answer to those allegations, Akani
and the impugned trustees explained that the monies were paid in terms of their
membership of a funeral scheme run by NFS. Each had apparently bought insuranc e
policies sold by NFS in terms of which they had taken life cover in respect of relatives.
The insured relatives subsequently died and the impugned trustees , respectively, became
entitled to payment of the insurance proceeds .
[8] In its judgment delivered on 31 July 2020,4 the high court held that the decision to
replace NBC with Akani and others was one within the exclusive powers of the board,
which it was entitled to exercise without consultation. As regards allegations of corruption
levelled against Akani, the high court noted that the allegations were also being
investigated by the Financial Services Conduct Authority (FSCA), among others. The high
court reasoned that it would not be appropriate for it to make findings while the
investigation before the FSCA was pending. It accordingly dismissed the applications and
the subsequent applications for leave to appeal. This Court granted leave to the member
respondents and NBC to appeal to the Full Court of the Gauteng Local Division of the
High Court, Johannesburg (the full court ).
[9] By the time the full court heard the appeal on 21 February 2022, two events had
occurred. First, Akani’s mandate with CINPF was terminated on 10 August 2021, and on
1 November 2021, Momentum Retirement Administrators (Momentum) was appointed in
Akani’s place. Second, Mr Dangazele had passed away. CINPF submitted that the
4 The judgment is reported as Moropa and Others v Chemical Industries National Provident Fund and
Others [2020] 4 All SA 197 (GJ); 2021 (1) SA 499 (GJ).
6
removal of Akani and the appointment of Momentum had rendered the appeal moot. In
its judgment, the full court noted that Mr Dangaz ele’s death rendered any relief sought
against him moot, and accordingly did not make any order against him. With regard to the
termination of Akani’s services and its replacement with Momentum, the full court
dismissed the mootness point on two bases: (a) the point w as not properly before it
because it was only raised in CINPF’s heads of argument and not in an affidavit; (b) it
was in the interests of justice to determine the appeal as the outcome could affect future
business relations between the parties.
[10] The full court accordingly enter ed into the merits of the appeal. It found that
CINPF’s decision to terminate its agreements with NBC and to appoint Akani, constituted
a reviewable administrative action as defined in s 1 of the Promotion of Administrative
Justice Act5 (PAJA). It further found that the payments made to the impugned trustees
were bribes paid by Akani to facilitate the removal of NBC and to replace it with Akani.
The decisions, so reasoned the full court, stood to be set aside ‘on the grounds that they
were underpinned by acts of fraud and bribery.’6
[11] Consequently, t he full court upheld the appeal with costs. It set aside the order of
the high court and replaced it with one: (a) reviewing and setting aside: (i) the decision by
CINPF and its board members to terminate the NBC agreements; and (ii) the decision to
appoint Akani and other entities as the administrators, consultants and actuaries to
CINPF; (b) ordering the removal of Messrs Sithole and Sema as trustees of the CINPF;
and (c) ordering CINPF and Akani to pay the costs of the review application. Akani and
CINPF appeal against the full court’s order, with the special leave of this Court.7
[12] In their heads of argument in this Court , counsel for CINPF mentioned in passing
that in the light of the termination of Akani’s services and the appointment of Momentum
5 Promotion of Administrative Justice Act 3 of 2000.
6 Moropa and Others v Chemical Industries National Provident Fund and Others [2022] ZAGPJHC 420
(Moropa ) para 51.
7 Akani and CINPF sought, and obtained, the special leave of this Court in separate applications, hence
two case numbers have been allocated to the appeals.
7
in its place, the review relief ha d become moot before the full court , and that the full court
ought to have dismissed the appeal on that basis. None of the other parties addressed
the issue of mootness in the heads of argument.
[13] On 29 July 2024 , at the instance of the Court , the Registrar directed the parties to
file supplementary heads of argument on the issue of mootness in the light of the removal
of Akani as the service provider of administration services to CINPF, and its replacement
with Momentum. All parties obliged.
[14] The principles and authorities on mootness and the court’s discretion to hear
appeals despite mootness, are settled, and are conveniently collated in Legal -Aid South
Africa v Magidiwana .8 Key among the principles is that courts ought not to decide issues
of academic interest only. Accordingly, where the outcome of an appeal would have no
practical effect, the appeal would be dismissed on that basis alone. The other is that,
notwithstanding the mootness of the appeal as between the parties to the lit igation, the
court has a discretion to deal with the merits of an appeal. In this regard reference was
made to Qoboshiyane v Avusa (Qoboshiyane )9 where the following was said :
‘The 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 deal
with the merits. The broad distinction be tween 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.’10
[15] CINPF urged t his Court to set aside the order of the full court and reinstate the
order of the high court. Akani agreed with CINPF. In addition, it submitted that i f this Court
finds that the full court was correct in deciding the merits of the appeal, it cannot find that
8 Legal -Aid South Africa v Magidiwana and Others [2014] ZASCA 141; 2015 (2) SA 568 (SCA); [2014] 4 All
SA 570 (SCA). Confirmed on appeal in Legal Aid South Africa v Magidiwana and Others [2015] ZACC 28;
2015 (6) SA 494 (CC); 2015 (11) BCLR 1346 (CC).
9 Qoboshiyane NO & Others v Avusa Publishing Eastern Cape (Pty) Ltd & Others [2012] ZASCA 166 ; 2013
(3) SA 315 (SCA).
10 Ibid para 5.
8
the appeal is now moot before it because the same considerations for mootness obtain
ie the removal of Akani , the appointment of Momentum , and the death of Messrs
Dangazele and Sema .
[16] Akani also submitted that the full court made adverse findings against it, in the
course of which it committed various legal and factual errors in considering corruption
allegations . According to Akani, this sets an incorrect precedent regarding how such
factual disputes should be resolved in motion proceedings. Akani submitted that its
officers against whom adverse findings were made, need to clear their names, and this
remains a live issue. In this regard, Akani relied on NBC Holdings (Pty) Ltd v Akani
Retirement Fund Administrators (NBC v Akani ).11 All these, it was submitted, ser ve to
indicate that the appeal was not moot.
[17] For their part, the member respondents and NBC submitted that appeal was
neither moot in the full court nor before us, and that the outcome of this Court’s order
would have a practical effect . It was further submitted, that i f this Court finds that the
appeal is moot , the appeal nevertheless had to be determined in the interests of justice.
In support of their submission that the appeal will have a practical effect, t he member
respondents provided the following reasons : (a) NBC’s notice of motion sought the
removal of trustees; (b) the relief will inform any contractual dispute as to whether NBC’s
contract was lawfully terminated; (c) the decision of this Court will inform: (i) any future
damages actions; (ii) decision -making of other pension funds across the country. As
regards the interests of justice considerations, the y submitted that the issues involved in
the appeal are of wider importance , concerning the fiduciary duties of trustees overseeing
pension fund interests.
[18] The point of departure for both Akani and CNIPF was that the appeal was indeed
moot before the full court. But because that court had not dismissed the appeal based on
mootness , this Court should likewise enter into the merits of the appeal. In my view,
11 NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators [2021] ZASCA 136; [2021] 4 All SA 652
(SCA).
9
whether the full court was correct in dismissing the mootness point raised before it hardly
needs detain us. Given the further passage of time, the factors and considerations that
were raised by Akani and CNIPF before the full court, apply more so now.
[19] As mentioned, Akani submitted that if we find that the appeal was not moot before
the full court , and that the full court was correct to determine the merits of the appeal, we
cannot in the same vein find that the appeal is moot in this Court because the same
considerations apply. For this submission Akani placed heavy reliance on NBC v Akani .
But, that is to misconstrue the position because reliance on other cases is generally
unhelpful as each case is decided on its own facts and in a particular context .
Nevertheless, the facts in NBC v Akani were briefly as follows. After the interim interdict
was granted on 12 March 2020, NBC publicised a notice in which it stated that the court
had ‘found strong evidence of corruption in the matter at hand and that the appointment
of Akani was unlawful.’12 In response, Akani sought, and obtained, an urgent interdict,
directing NBC, among other things, to publish a correction . The high court subsequently
granted leave to this Court. By the time the appeal reached this Court, the review
application had been decided by the high court, which made no finding in favour of NBC
that Akani’s conduct was corrupt. This triggered the mootness enquiry .
[20] This Court considered the following in that regard: (a) the effect of the judgment
remained that NBC’s statement was defamatory of Akani and that NBC had no defence
to a claim based on defamation; (b) if the judgment remained in place, it would possibly
provide a foundation for a claim for damages and could, in any event, be used in the
market place to discredit NBC; and (c) that NBC was entitled to clear its name by having
the judgment overturned; (d) certain important issues in regard to the conduct of
proceedings based on defamation required the attention of the court. For these reasons,
it concluded that the appeal was not moot.
12 Akani Retirement Fund Administrators (Pty) Ltd v NBC Holdings (Pty) Ltd and Another [2020] ZAGPJHC
174 para 10 .
10
[21] NBC v Akani was essentially an appeal against a finding by the high court that
NBC had defamed Akani. Upon such a finding, the high court had ordered NBC to take
certain steps to correct the perception it had created. The order of the high court to that
effect had an on -going practical effect. It is plain that there were live and controversial
issues between the parties which potentially could impact future relations between the m.
The appeal in this Court was therefore deemed not to be moot. None of those
considerations find application in the present appeal . NBC v Akani is clearly
distinguishable from the present appeal .
[22] It is important to emphasise that an appeal does not lie against the reasons for
judgment but against the substantive order of the lower court.13 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 .14 In the present appeal, the removal of Akani as CNIPF’s
administrator and its replacement with Momentum, means that the outcome of the appeal
will have no practical effec t. In addition, two of the impugned trustees have died. The
third, Mr Sithole, has been removed as a trustee.
[23] The legal dispute has essentially always been between Akani and NBC, ie the
removal of the latter as CINPF’s administrator and its replacement with the former. Both
have been removed and that relationship, to the extent it concerns CINPF, has come to
an en d. Neither Akani nor NBC seek s to challenge Momentum’s appointment. Nor for that
matter was Momentum sought to be joined as a party to the proceedings after its
appointment in Akani’s stead. Thus , whatever may be said about the merits of the dispute
between Akani and NBC, Momentum’s position as the new service provider to CINPF
would remain unaffected and unaltered. The historical dispute between Akani and NBC
has simply been overtaken by Momentum’s appointment and consequently the appeal
has become moot.
13 ABSA Bank Ltd v Mkhize and Two Similar Cases [2013] ZASCA 139; 2014 (5) SA 16 (SCA) para 64.
14 Western Johannesburg Rent Board v Ursula Mansions (Pty) Ltd 1948 (3) SA 853 (A) at 354.
11
[24] What remains to be consider ed is whether, despite its mootness, the appeal should
nonetheless be heard in the exercise of our discretion. As explained in Qoboshiyane , for
a court to exercise its discretion, a discrete legal issue of public importance that would
affect matters in the future and on which the adjudication of a court is required , should
arise . Such an issue does not arise in this appeal. First, t he full court’s conclusion that
Akani’s appointment was vitiated by fraud and bribery, was based purely on its factual
findings. Those findings were arrived at on the strength of allegations in the application
papers before the court. Any future contemplated litigation will undoubtedly have to
proceed to trial. One can hardly imagine a trial court, that has had the benefit of witnes ses,
who have testified and being subjected to cross -examination before it, considering itself
bound by the findings, such as there may be, of the full court. Moreover, it can hardly go
unnoticed that whatever issues do arise in the envisaged litigation, t hey have not been
fully ventilated or finally determined by the full court.
[25] The only point of law decided by the full court was that the decision by CINPF to
remove NBC and replace it with Akani, constituted an administrative action reviewable
under PAJA . The test applicable to whether powers and functions that are exercised are
public in nature, and therefore constitute administrative action, is a flexible one. Such
cases are routinely decided on a case -by-case basis.15 Viewed in this light, the full court ’s
conclusion that the trustees’ decision to remove NBC as provider of administration
services to C INPF amounted to the exercise of public power reviewable under PAJA,
does not amount to a ‘discrete l egal issue of public importance ’ envisaged in
Qoboshiyane.
[26] It is clear from the parties’ supplementary heads of argum ent that some of the
parties seek this Court’s judgment to determine the course of future litigation. For
15 See, for example, Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange and Others 1983
(3) SA 344 (W); Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1988
(3) SA 132 (A); Calibre Clinical Consultants and Another v National Bargaining Council for the Road Freight
Industry and Another [2010] ZASCA 94; 2010 (5) SA 457 (SCA); Trustees for the time being of the Legacy
Body Corporate v Bae Estates and Escapes (Pty) Ltd and Another [2021] ZASCA 157; [2022] 1 All SA 138
(SCA); 2022 (1) SA 424 (SCA).
12
example, NBC seeks confirmation that its removal as C INPF was lawfully terminated as
the decision of this Court will ‘inform any future damages actions’. Equally, Akani is
concerned that the judgment of the full court might be used against it in future litigation.
What the parties seek is this Court’s opinion as to possible future litigation prospects . This
we decline to provide . As pointed out in Radio Pretoria v Chairperson ICASA ,16 courts of
appeal ‘do not give advice gratuitously. They decide real disputes and do not speculate
or theorise . . .’.17 In addition, the doctrine of ripeness stands in the way of considering
prospective litigation. As was put by the Constitutional Court in Ferreira v Levin :18
‘[T]he doctrine of ripeness serves the useful purpose of highlighting that the business of a court
is generally retrospective; it deals with situations or problems that have already ripened or
crystallized, and not with prospective or hypothetical ones.’19
[27] In all the circumstances the appeal is moot in this Court. Its outcome will have no
practical result. There is no basis to exercise this Court’s discretion to hear it despite its
mootness.
[28] Before concluding, it is necessary to say something about the full court’s reasoning
in dismissing the mootness point. The full court said the following:
‘Finally, I need to briefly deal with a ‘moot point’ raised, almost in passing in his updated practice
note by Mr Maleka SC, who appeared on behalf of the first to twenty sixth respondents with Ms
Kekana. In the practice note the Court’s attention was directed to the fact that Akani’s mandate
with the CINPF was terminated on 1 November 2021 and Momentum has since been appointed
as the Fund administrators. This means, so the submission went, that the order sought against
Akani would have no practical effect or outcome and that the appeal could conveniently be
disposed of on this ground alone, in terms of section 16(2)( a)(i) of the Superior Courts Act, 10 of
2013.
Mr Botha SC, who appeared for the appellant members together with Ms Martin, contended that
this issue is not properly before this court and for that reason alone, the point should be dismissed.
16 Radio Pretoria v Chairperson of the Independent Communications Authority of South Africa and Another
[2004] ZASCA 69; [2004] 4 All SA 16 (SCA); 2005 (1) SA 47 (SCA).
17 Ibid para 41.
18 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1995] ZACC 13; 1996
(1) SA 984 (CC); 1996 (1) BCLR 1 (CC).
19 Ibid para 199.
13
I agree. In Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd and
Others , the court held that the issue of mootness stands or falls on the case made for it by the
litigant claiming mootness. In casu, no such case in made out on behalf the respondents. For that
reason alone, the point of mootness should fail. . .’.20 (Emphasis added. )
[29] Capitec v Coral Lagoon21 (Capitec ) concerned a complex commercial matter.
Relying on a particular set of facts, the first respondent, Coral and the second respondent,
Ash Brook , asserted that the appeal to this Court was moot . The fourth respondent,
Rorisang and the fifth respondent, Lemoshanang, who had been given leave by the high
court to intervene, supported the mootness point taken by Coral and Ash Brook. After a
thorough analysis of the facts relied on by Coral and Ash Brook, this Court concluded that
the appeal was not moot, and remarked:
‘The issue of mootness stands or falls on the case made for it by Coral and Ash Brook . I have
found that Coral and Ash Brook have failed to make out a case for mootness. Accordingly, if the
appeal remains live in respect of the principal litigants, there is no basis to rule that the appeal is
moot as against Rorisang and Lemoshanang as intervenors.’22 (Emphasis added.)
[30] It is clear that the full court misconceived the import of Capitec on this issue . The
point made there is that b ecause the case for mootness was asserted by Coral and Ash
Brook, as the principal litigants, once it was found that the appeal was not moot in relation
to them, it could not be moot in relation to the intervening parties, Rorisang and
Lemoshanang. This Court did not say that mootness should always be raised formally in
the affidavits, as the full court seemed to suggest. Indeed, it may not always be possible
to raise the question on affidavit, particularly where the issues raised for consideration
have been overtaken by subsequent events that either arise after the filing of , or are not
foreshadowed in , the earlier affidavits. There can be no absolute procedural bar (as the
full court seemed to perceive) to mootness being raised for the first time in the heads of
argument filed on appeal. If anything, it has come, not infrequently to be raised mero motu
by court s.
20 Moropa paras 85 – 87.
21 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021]
ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA).
22 Ibid para 21.
14
[31] Here the facts were undisputed. The fact of Akani’s removal and its replacement
with Momentum as CINPF’s provider of administration services, and the death of
Messrs Dangaz ele and Sema , are common cause . Insistence on affidavits, not only
placed form above substance, but also put the parties, the full court and in turn this Court
to the unnecessary trouble and expense of having to consider issues that on any
reckoning are academic. Therefore, to the extent that the approach by the full court may
in the future be considered by other courts to have some precedential significance, this
Court is enjoined to correct it.
[32] It remains to deal with the issue of costs. The appellants , Akani and C INPF, were
afforded an opportunity to reflect carefully on the mootness issue when it was raised by
this Court. Both appellant s elected to persist with the appeal . It is a risk they assumed .
Now that the appeal has been found to be moot in this Court , there is no reason why they
should not bear the costs. Those costs should include the costs of two counsel for the
first to eighth respondents and for the ninth and tenth respondents, respectively.
[33] For all the reasons set out in this judgment , we made the order referred to in
paragraph 1.
__________________
T MAKGOKA
JUDGE OF APPEAL
15
Appearances :
For appellant (Akani):
Case number: 1125/2022 AE Franklin SC (with him JPV McNally SC and BL
Mane ntsa)
Instructed by: Webber Wentzel Attorneys, Johannesburg
Symington de Kock Inc. , Bloemfontein
For appellant (CINPF):
Case number: 1129 /2022 VI Maleka SC (with him N Kekana)
Instructed by: TD Mashele Attorneys Inc. , Johannesburg
Phatshoane Henny Attorneys , Bloemfontein
For 1st - 8th respondents: AC Botha SC (with him SJ Martin )
Instructed by: Knowles Husain Lindsay Inc., Johannesburg
McIntyre Van der Post Inc., Bloemfontein
For 9th and 10th respondents: CE Watt -Pringle SC (with him KS McLean)
Instructed by: Shepstone and Wylie, Johannesburg
McIntyre Van der Post Inc., Bloemfontein.