THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case no: 971/2023
In the matter between:
WESTERN CAPE PROVINCIAL
GOVERNMENT FIRST APPELLANT
ACTING DIRECTOR: SUPPLY
CHAIN MANAGEMENT SECOND APPELLANT
ACCOUNTING OFFICER OF THE
DEPARTMENT OF FINANCE,
WESTERN CAPE PROVINCIAL
GOVERNMENT THIRD APPELLANT
HEAD OF DEPARTMENT OF
COMMUNITY SAFETY,
WESTERN CAPE PROVINCIAL
GOVERNMENT FOURTH APPELLANT
and
D C SECURITY (PTY) LTD t/a D C SECURITY FIRST RESPONDENT
SECHABA PROTECTION SERVICES
WESTERN CAPE (PTY) LTD SECOND RESPONDENT
DELTA CORPORATE SECURITY
SERVICES (PTY) LTD THIRD RESPONDENT
2
Neutral citation: Western Cape Provincial Government and Others v D C Security
(Pty) Ltd t/a D C Security and Others (971/2023) [202 5] ZASCA
35 (01 April 2025 )
Coram: MBATHA and BAARTMAN JJA and WINDELL , MODIBA and
NORMAN AJJA
Heard : 4 March 2025
Delivered : This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the judgment
is deemed to be 11h00 on 01 April 2025
Summary: Administrative law – review and setting aside – tender – Promotion of
Administrative Justice Act 3 of 2000 – whether appeal has been rendered moot in
circumstances where contracts concluded at the heart of review applications have
come to an end – whether court should exercise a discretion to hear appeal despite
mootness – no discrete legal question of law found to exist .
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ORDER
On appeal from: Western Cape Division of the High Court, Cape Town (Martin
AJ, sitting as court of first instance):
The appeal is dismissed with costs, including costs of two counsel where applicable.
JUDGMENT
Mbatha JA (Baartman JA and Windell, Modiba and Norman AJJA
concurring):
[1] The central issue in this appeal is whether the appeal is moot . If it is, the
question then arises whether the court should exercise a discretion in the interest of
justice to determine the appeal.
[2] In November 201 7, the Western Cape Provincial Government (the provincial
government) issued a call for bids for the framework agreement for transversal
provision of security services for the 13 departments of the Western Cape (the
tender). The process comprised of two main stages. First, the establishment of a
panel of services providers who meet the qualification criteria set in the bid
document . This process included the ranking of service providers according to the
type of services, risk rating and geography. Second , the conclusion of various
transversal agreements between the departments and the services providers on the
panel. It was a material term of the bid that the contracts would come into existence
as and when the services of the service provider would be required. This was initiated
through a procedure referred to as the ‘call-off’ system.
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[3] The provincial government adopted the direct selection process in
implementing the call -off system. The process involve d the selection of a service
provider from the list of shortlisted service providers based on their ranking . The
first available contract was assigned to the highest ranked and eligible provider.
Once the initial allocation ha d been exhausted, it was envisaged that the ranking will
align with the contract value of the work completed in the initial round of the call -
offs. Consequently, the service provider ranked lowest in contract value would be
awarded the highest contract value. This procedure initiated the establishment of a
security contract with the various provincial department s.
[4] Dissatisfied with the outcome of the process and the allocation s in terms of
the call -off process , three service providers brought the application for review before
the high court. The review application s were brought by Distinctive Choice Security
(Pty) Ltd t/a DC Security (DC), Sechaba Protection Services Western Cape (Pty)
Ltd t/a Sechaba Protection Services (Sechaba) and Del ta Corporate Security Services
(Pty) Ltd (Delta). The applications were consolidated and heard together.
[5] The Western Cape Division of the High Court, Cape Town , on 1 July 2022
(per Martin AJ ) (the high court) , granted the following orders against the provincial
government:
‘1. Bid No WCPT - TR 01/2017/2018 and all decisions made in terms of it are hereby declared
invalid ;
2. All contracts awarded in terms of Bid N o WCPT -TR 01/2017/2018, are hereby declared invalid,
subject to part 3 of this order;
3. All contracts concluded by the Western Cape Provincial Department of Community Safety
pursuant to Bid N o WCPT -TR 01/2017/2018 shall remain in full force and effect until their
termination dates as if the court had not made parts 1 and 2 of this order;
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4. The Provincial Government shall con stitute, a fresh bid for the procurement of security services
and, subject to part 3 of this order, commence the bid process de novo ;
5. The Provincial Government shall pay the costs of all three Applicants, including the costs of
two counsel where applicable, but excluding any costs Distinctive Choice may have incurred in
obtaining expert opinion.’
[6] Dissatisfied with the outcome of the review application, the appellants,
Western Cape Provincial Government, Acting Director: Supply Chain Management,
Accounting Officer of the Department of Finance, Western Cape Provincial
Government and the Head of the Department of Community Safety, Western Cape
Provincial Government sought leave to appeal the judgment and orders of the high
court (the appellants will be referred to individually by their names or collectively
as the provincial government). The matter serves before us with leave of this Court.
[7] On the eve of the hearing of this appeal, the appellant filed a supplementary
record. This became the 12th volume of the record. The applications for condonation
for the late filing of the supplementary record , the record of appeal and the
reinstatement of the appeal by the provincial government and the late filling of the
heads of argument by Delta w ere granted , with costs .
[8] The first point of enquiry is whether the appeal is moot. Section 16(2) (a)(i)
and (ii) of the Superior Courts Act 10 of 2013 (the Superior Courts Act) governs
such issues. It 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. ’
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[9] The issue of mootness loomed large at an early stage . This occurred during
the application for leave to appeal before the high court . At all times , the provincial
government was firm in its view that the appeal would not be moot by the time it is
heard. At that stage and later on before this Court , it lamented the unfortunate delays
by the high court in delivering the main judgment and the judgment in the application
for leave to appeal. However, I have noted that t here were also delays in filing of the
appeal record, which is understandable given its voluminous nature .
[10] It is therefore imperative to begin by examining the chronological sequence
of events in this matter. The bid provided that the contracts would endure for a period
of three years commencing from 1 November 2018, with an option for a one-year
extension. The period envisaged for the completion of the contracts meant that the
contracts were to end during 2022. The contract concluded with Delta commenced
in 2019 and ended in March 2022. The Delta contract was extended for a period of
one year to 31 Marc h 2023 . It was further extended to 30 June 2023.
[11] It is common cause that, by the time the provincial government ’s application
for leave to appeal was lodged with the high court , the Department of Health (DOH)
had already exited the framework agreement. By then, t he DOH, a major contractor
for security services within the province, had issued a new bid for security services.
This occurred five months after the delivery of the high court judgment. By the time
the application for leave to appeal was hear d by the high court, it had already
cancelled the previously advertised bid and re -advertised a new one, calling for bids
by 9 June 2023.
[12] The application for leave to appeal filed with the high court on 15 May 2 023
was still pursued . It was, however, unsuccessful. This Court granted the application
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for leave to appeal on 30 August 2023 . The notice of appeal was filed by the
provincial government on 28 September 2023 and the record of appeal on 12 April
2024. The provincial government maintained its stance , even at this juncture, that
only the DOH, had exited the framework agreement. As a result, 13 departments,
remained bound by the framework agreement and in that regard had to proceed with
the appeal .
[13] On 20 December 2024 , after the appeal had been set down for hearing, Delta’s
attorneys of record addressed a letter to the registrar of this Court , which
categorically stat ed that it believed that the appeal should not be heard because it
was moot . On the other hand, the provincial government persisted in prosecuting the
appeal . It even proposed that the issue of mootness be determined separately from
the merits of the appeal. This Court was disinclined to proceed with the appeal on a
piecemeal basis. It was not surprising that, u pfront, the heads of argument filed by
the parties dealt with the issue of mootness of the appeal. On the date of the hearing,
counsel for the provincial government informed the Court that the rest of the
departments had exited the framework agreement and conceded that the appeal is
moot .
[14] This did not come as a surprise as the provincial government ’s heads of
argument had stated that the provincial treasury , at the time of filing thereof, was in
the process of initiating a new procurement process which w ould replace the current
framework arrangements , the subject of this appeal . Irrespective of these
developments, though conceding the mootness of the appeal, it maintained that the
transversal agreements remain ed of considerable interest to the provincial
government for use in the future . Against this backdrop , couns el for the provincial
government persisted with the argument that issue s raised in the appeal remained
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relevant and important to the provincial government . It persisted in pursu ing the
appeal on the purported public interest grounds. Despite the concession made by
counsel for the provincial government, I have decided to explore the issue of
mootness.
[15] The most trenchant criticism from which there is no escape for the provincial
government, is that the order of the high court, which is the subject of the appeal, on
its own rendered the appeal moot. The effect of the order was that the contracts
remained extant until their termination dates, irrespective of the finding of invalidity.
The effect was that it did not adversely affect the mater ial rights of the contractors
and those of the provincial government . The contractual period to Delta ended on 30
June 2023. This was the case with other contractors . In blunt terms, no further
purpose was served by the filing of the appeal . This made the appeal academic. The
provincial government went on a frolic of its own in pursuing the appeal.
[16] On the provincial government’s version, the largest contractor for security
services, the DOH, had long exited the framework agreement. In addition, t he heads
of argument filed by the provincial government on 28 June 2024, succinctly
indicated that the provincial government was in a process of initiating a new
procurement process, but it consciously persisted with the appeal on the abandoned
procurement process. Th ese developments should have sent the red signal to the
provincial government that the nature of the relief sought by the provincial
government on this appeal is purely academic, as no live issue existed. It was also
no surprise , on the day of the hearing , to learn that the other 13 departments ha d
exited the framework agreement.
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[17] The circumstances of this appeal are such that, it was inappropriate for the
provincial government to proceed with the appeal . In National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and Others ,1 the
Constitutional court had this to say :
‘A case is moot and therefore not justi ciable , if it no longer presents an existing or live controversy
which should exist if the court is to avoid giving advisory opinion on abstract propositions of law .’
The Constitutional Court , in Minister of Tourism and Others v Afriforum NPC and
Another ,2 held that:
‘A case is moot when there is no longer a live dispute or controversy between the parties which
would be practically affected in one way or another by a court’s decision or which would be
resolved by a court’s decision. A case is also moot when a court’s decision would be of academic
interest only. ’
I, therefore, conclusively find that there was no live issue for the determination of
appeal.
[18] Nevertheless, I proceed to the next stage of the enquiry. It is trite that a court
may exercise a discretion, if it is in the interest of justice to do so and determine the
issues in terms of s 16(2) (a) of the Superior Courts Act . In Pheko and Others v
Ekurhuleni Metropolitan Municipality ,3 the Constitutional Court held that for the
court to exercise its discretion there must be a discrete legal issue of public
importance which is likely to affect matters in the future. This Court , in Qoboshiyane
NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others ,4 stated that :
1 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC
17; 2000 (2) SA 1; 2000 (1) BCLR 39 para 21 at footnote 18 .
2 Minister of Tourism and Others v Afriforum NPC and Another [2023] ZACC 7; 2023 (6) BCLR 752 (CC) para 23.
3 Pheko and Others v Ekurhuleni Metropolitan Municipality [2011] ZACC 34; 201 2 (2) SA 598 (CC) ; 2012 (4) BCLR
388 (CC) para 29 -30 and footnote 23 .
4 Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012] ZASCA 166; 2013 (3)
SA 315 (SCA) para 5. Also see Centre for Child Law v The Governing Body of Hoerskool Fochville [2015] ZASCA
155; [2015] 4 All SA 571 (SCA); 2016 (2) SA 121 (SCA) para 11.
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‘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 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 o n which the adjudication of
this court was required, whilst in the latter no such issue arose.’
[19] I have some difficulty accepting the submissions made on behalf of the
provincial government regarding the purported discrete legal issue s, namely, non-
compliance with the mandatory bid requirements, adequacy of reason, the
methodology of awarding call -offs and the 180-day period to launch a review in
terms of the Promotion of Administrative Justice Act 3 of 2000 . The question that
remains to be considered , is whether the said issue s raise discrete legal issue s of
importance that they warrant this Court ’s adjudication for the benefit of future
matters. I am not persuaded that they do.
[20] The premise from which the provincial government ’s submission s operate are
factually flawed. The facts show that , by and large , these are not legal questions of
law. It is so because, t he main argument relied upon by the provincial government ,
was that the court found the transversal agreements unsuitable and flawed. Adverse
findings made by a court are not discrete legal points of law. Besides that, the appeal
rests only on the order of the court and not the reasons for judgment. In addition, t he
high court merely applied the trite principles applicable to public procurement cases
in the adjudication of the issues before it .
[21] Logically , none of the purported legal issues will affect the provincial
government in the future. The said issues are fact based and determinable th rough
the trite principles of law. Consequently, there are no factors that are relevant to the
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exercise of the Court’s discretion. In Agribee Beef Fund (Pty) Ltd and Another v
Eastern Cape Development Agency and Another ,5 the Constitutional Court listed the
factors that bear consideration when determining whether it is in the interests of
justice to hear a moot matter. They include:
“(a) whether any order which it may make will have some practical effect either on the parties or
on others;
(b) the nature and extent of the practical effect that any possible order might have;
(c) the importance of the issue;
(d) the complexity of the issue;
(e) the fullness or otherwise of the arguments advanced; and
(f) resolving disputes between different courts.” .’
None of the aforementioned issues have been raised by the provincial government.
[22] I do not intend to delve into the merits of the appeal, despite the provincial
government ’s attempt to draw us into them. I can only emphasise that the lifespan
of the tender is over, no acquired rights were lost when the tender was reviewed and
set aside, all the issues raised are academic and will have no practical effect , there
are no conflicting judgments raised in the provincial government papers, and no
discrete legal issues were raised.
[23] The appeal was purely brought for advice and clarification of the erstwhile
framework transversal agreement. As this Court pertinently pointed out , in Radio
Pretoria v Chairperson of Independent Authority of South Africa ,6 that ‘ [c]ourts 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 . . . ’. For the
5 Agribee Beef Fund (Pty) Ltd and Another v Eastern Cape Development Agency and Another [2023] ZACC 6; 2023
(5) BCLR 489 (CC); 2023 (6) SA 639 (CC) para 24 .
6 Radio Pretoria v Chairperson of Independent Authority of South Africa and Another [2004] ZASCA 69; [2004] 4
All SA 16 (SCA); 2005 (1) SA 47 (SCA) para 41 .
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aforementioned reasons, I find that there is no basis for this Court to exercise the
discretion to hear the appeal despite its mootness.
[24] For the reasons set out in this judgment, the appeal cannot succeed.
Accordingly, I make the following order:
The appeal is dismissed with costs, including costs of two counsel where applicable.
______________
Y T MBATHA
JUDGE OF APPEAL
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Appearances
For the appellant: H De Waal SC with A Christians and A Toefy
Instructed by: State Attorney, C ape Town
State Attorney, Bloemfontein
For the third respondent: R Stelzner SC
Instructed by: Bossr Inc , Durbanville
Lovius Block Attorneys, Bloemfontein .