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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: 9756/21P
In the matter between:
TILSA PROJECTS (PTY) LTD APPLICANT
and
DEPARTMENT OF PUBLIC WORKD AND
INFRASTRUCTURE FIRST RESPONDENT
MINISTER OF PUBLIC WORKD AND
INFRASTRUCTURE SECOND RESPONDENT
THE REGAL PROPERTY TRUST T/A
ONE FIFTY CAPITAL THIRD RESPONDENT
___________________________________________________________________
ORDER
___________________________________________________________________
The following order is granted:
The application is dismissed with costs (on scale C for work done after 12
April 2024) , such costs to include the costs of senior counsel, where so
employed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
E Bezuidenhout J
[1] The applicant, Tilsa Projects (Pty) Ltd, originally brought this matter as an
urgent application seeking , under Part A of the notice of motion , interim interdictory
relief, pending the finali sation of a review application. It was unsuccessful in
obtaining the interdictory relief. The relief it sought in the review application was set
out in Part B of the notice of motion. The review application was argued before
Sabela AJ on 26 August 2022. In the absence of a judgment, the Judge President
directed that the matter be argued de novo and it subsequently came before me on
20 February 2025.
[2] The applicant sought an order in the following terms:
(a) Reviewing and setting aside the decision of the first respondent, the
Department of Public Works and Infrastructure, to award the tender under bid
number BID/DBN20/11/03 (the bid) to the third respondent, the Regent
Property Trust, trading as One Fifty Capital.
(b) Reviewing and setting aside any agree ment concluded between the
first and third respondents in respect of the implementation of the tender.
(c) Remitting the matter to the first respondent for reconsideration.
(d) That the first respondent pays the costs of the application, and should
the second respondent, the Minister of Public Works and Infrastructure, and
the third respondent oppose the application, that the first, second and third
respondents be liable for the applicant’s costs, jointly and severally, the one
paying the other to be absolved.
[3] The review application cent red around the award of a tender to the third
respondent, following upon an invitation to bid , in terms of which the first respondent
sought to procure alternative accommodation and parking for the Forensic
Laboratory of the South African Police Services (SAPS) in Durban for a period of five
years. The bids closed on 21 January 2021. The applicant submitted a tender on the
basis that it held a manda te from the owner of a certain building (the bid building).
The tender was awarded to the third respondent on 11 August 2021. The application
was issued on 27 October 2021.
[4] The applicant inter alia contended that the first respondent ’s Bid Evaluation
Committee (BEC) and the National Bid Adjudication Committee (NBAC) committed
reviewable irregularities in that they took irrelevant considerations into account when
deciding to recommend the third respondent and, in the process , ignored the bid
responsiveness criteria, functionality criteria and/or the evaluation matrix. The NBAC
further exceeded its powers by remitting the applicant’s bid back to the BEC for a re-
evaluation after it initially recommended that the applicant’s bid be accepted. The
NBAC unlawfully and/or wrongfully adj udicated the BEC’s recommendations outside
the criteria set o ut in the tender document and/or advert. The applicant also alleged
that the first respondent’s client, the SAPS, submitted an unsolicited report in respect
of its preferred building amongst the bidders and insisted that it preferred the third
respondent’s building. The BEC subsequently re -evaluated the bids and resolved to
recommend the third respondent’s building , based on suitability in line with the daily
operations and needs of the SAPS Forensic Laboratory . The NBAC thereafter met
and approved the BEC’s recommendation, and the third respondent became the
successful bidder.
successful bidder.
[5] The first respondent alleged that the applicant was mistaken when it alleged
that the BEC’s recommendation was based on the dictates of the SAPS. It also
stated that the actions taken by both the BEC and the NBAC were taken in good
faith and that the applicant had failed to substantiate or prove any allegations of
irregularities. The applicant was also critici sed for belatedly suggesting bias and
corruption against public officials in its replying affidavit. The first respondent further
pointed out that the NBAC does not merely rubberstamp the recommendations of the
BEC and that it was entitled to request the BEC to re -evaluate the issues the NBAC
had highlighted.
[6] The third respondent raised two issues, namely, the applicant’s locus standi to
seek a review and whether the NBAC was entitled to consider the suitability of the
premises in light of the end user, being the SAPS Forensic Laboratory’s wishes. As
far as the issue of locus standi is concerned, it was contended that the applicant , at
best, had a mandate from the owners of the bid building to find a tena nt and that it
was therefore an agent and should have lodged the review application in the name
of its principal. The ownership of the building has, however, changed hands in the
meantime. This issue and the applicant’s mandate are dealt with below.
[7] Prior to the hearing of the matter, I requested the parties to file supplementary
heads of argument to deal with the issue of mootness, especially considering the
time that has elapsed since the application was first issued. As mentioned earlier, the
tender was awarded to the third respondent on 11 August 2021 and the contract
period was only for five years . There w as also an issue regarding the applicant’s
mandate.
[8] The applicant, in its supplementary heads of argument , dealt with the general
principles as far as mootness was concerned, to which I will return below. It was in
essence submitted that even if the matter is moot, a court may still entertain it if it is
in the interests of justice to do so. The applicant made no particular submissions as
to wh at factors were present which would indicate that it was in the intere sts of
justice in this matter. It was submitted that the matter is not moot , as the contract
between the first and third respondents would only come in to effect when the first
between the first and third respondents would only come in to effect when the first
respondent takes occupation. It was submitted that the first respondent had not yet
taken occupation of the third respondent’s building and had not implemented the
lease agreement, pending the outcome of this application. In the al ternative, it was
submitted that if it was argued that the contract had in fact commenced on 11 August
2021, the five-year period would only lapse on 10 August 2026. The dispute
therefore remained live and was not moot.
[9] In argument before me, counsel for the applicant submitted that even though
it appeared as though the applicant’s mandate had lapsed due to the transfer of the
bid building, the court must still determine whether the decision to make the award
was lawful. Once the court finds that the decision was wrong, the court must
consider a remedy and can grant any type of relief. It was also submitted that the
applicant needs to know if it was a lawful dec ision in order for it to consider its
remedies, such as a damages claim.
[10] The first respondent submitted in its supplementary heads of argument that
the application was moot for the following reasons. The applicant’s bid was
adjudicated because it, together with the returnable documents, had been received
within the prescribed tender period. I pause to mention that it is common cause that
the applicant submitted a bid on the basis that it held a mandate from the
Panduranga Sivalinga Das Family Trust (the trust) , which was the owner of the bid
building. The mandate put up by the applicant, and which forms part of the review
record, gave the applicant a mandate ‘to procure a tenant for the Remainder of
Portion 29 and 30 of Erf 1[...] Durban, situate at 1 [...] M[...] M[...] Road, subject to
reaching an agreement on terms and conditions ’. This property is the bid buil ding.
[11] The first respondent submitted further that the applicant’s mandate over the
bid building had terminated, alternatively lapsed, as the sale and transfer of the bid
building commenced on 15 December 2020 and the transfer to a new owner was
effected on 5 November 2021. The bid building was therefore no longer available for
a valid lease with the first respondent, and the bid building was no longer owned by
the trust, who had appointed the applicant as its agent.
[12] The first respondent also submitted that the applicant , in a clandestine
manner, concealed the material changes in the ownership of the bid building, which
manner, concealed the material changes in the ownership of the bid building, which
impacted on its mandate and the offer of the building to the first respondent.
Attention was also drawn to the fact that on 27 May 2021, the trust appointed Mr
Mahomed Shafee Khan , through a power of attorney , to pass transfer of the bid
building. This was apparent from the deed of transfer, which was attached to an
additional affidavit filed by the third respondent. Despite these material changes in
the ownership of the bid building, the applicant failed to di sclose this to the first
respondent. It was further pointed out that the eThekwini Municipality produced a
rates clearance certificate on 25 October 2021 , whereafter the Registrar of Deeds
effected transfer o f the bid building on 5 November 2021 to Argin Investments (Pty)
Ltd (Argin).
[13] It was further submitted that the applicant issued its application papers on 27
October 2021 and, as at the date of the hearing on 10 November 2021, its mandate
over the building had lapsed, alternatively, had already lapsed when Mr Khan was
appointed on 27 May 2021 to pa ss transfer. It was submitted that the applicant
likewise had no mandate when it persisted with the review application.
[14] It was also submitted that it is apparent from the deed of transfer, which I will
refer to more fully below, that the trust had already entered into an asset-for-share
transaction with Argin on 5 December 2020, whilst the invitation to bid was published
on 20 November 2020. It was submitted that the applicant ought to have been aware
that its mandate was impacted by the transfer and that it should not have persisted
with the review applicatio n. It had no building to offer, and its conduct rendered it s
offer impractical and impossible.
[15] It was also submitted before me that it was not logical for the applicant to s ay
that its mandate has terminated but that it still wants the court to deal with the relief it
is seeking and the merits of the review . It was submitted that the applicant cannot
claim damages because it did not have a mandate. If the court were to remit the
matter for reconsideration, the bid building would not be available for the first
respondent to consider. It was further submitted that the application was a waste of
the court's time and that the applicant ’s persistence was purely out of a pecuniary
the court's time and that the applicant ’s persistence was purely out of a pecuniary
interest, especially since the third respondent raised the issue of owner ship from the
outset. It w as further submitted that to date, the applicant has not instituted a
damages claim, which is an indication that it does not have faith in such a claim.
[16] It was finally submitted that there is no value in proceeding with the review
application as it is mo ot, and it should accordingly be dismissed with costs, such
costs to include the costs consequent upon the employment of senior counsel on the
attorney and client scale.
[17] The third respondent also filed supplementary heads of argument, submitting
that although the lease agreement it concluded with the first respondent in October
2021 had not yet lapsed, the case was moot for another reason. It referred to the fact
that the bid property was initially owned by the trust, as cont ended in the applicant ’s
bid. It was also submitted that in the third respondent ’s main answering affidavit, it
was pointed out that the bi d building had been transferred to Argin. In support of this
allegation, a document reflecting the results of a search at the Deeds Office was
attached to that affidavit. The applicant, in its replying affidavit , responded to these
allegations by simply stating th at it had no knowledge of the contents and disput ed
the allegations. Considering this dispute, the third respondent ’s attorney obtained a
copy of the latest Deed of Transfer in respect of the bid building, which was attached
to an affidavit which was filed together with the supplementary heads of argument.
[18] It was submitted, without admitting it, that whilst the applicant may have been
able to lease the bid building to the first respondent at the time it lodged its bid, there
is no evidence that after 5 November 2021, it still had such ability.
[19] It was submitted that this renders the application moo t. Even if the relief
sought by the applicant was granted, it would have no practical benefit for the
applicant. It was also submitted that the applicant has not shown that it would be in
the interests of justice to hear the application, even if it is moot. Reliance was placed
on Agribee Beef Fund Ltd and Another v Eastern Cape Rural Development Agency
and Another,1 where the Constitutional Court dealt with the issue of moo tness and,
in particular , the question of the interests of justice . It was submitted that if the
in particular , the question of the interests of justice . It was submitted that if the
Constitutional Court was not willing to hear the matter in that instance, this court
should most definitely not hear t his case . Consequently, the application should be
dismissed with costs, including counsel’s costs on scale C. This would of course not
be permissible , as the amendment regarding the sca les of co sts only came into
effect on 12 April 2024 whilst the application was issued in October 2021.
1 Agribee Beef Fund Ltd and Another v Eastern Cape Rural Development Agency and Another [2023]
ZACC 6; 2023 (6) SA 639 (CC) paras 26-29.
[20] The next day after the hearing, coun sel for the third respondent, Mr C J
Pammenter SC, sent an e -mail to my registrar, with the consent of counsel for the
applicant, Mr Hlongwane, and coun sel for the first respondent, Mr B S Khuzwayo
SC. He wished to bring a decision to my attention which had been handed down by
the Supreme Court of Appeal on 21 February 2025, w hich dealt with whether the
appeal in that matter was moo t or not. It was believed that Akani Retirement Fund
Administrators (Pty) L imited and Others v Moropa and Others2 may have a bearing
on my judgment in the present matter and that all counsel believed that it was
appropriate to bring it to my attention.
Mootness
[21] It is generally accepted that courts do not determine academic questions or
grant orders that will have no practical effect . In Voltex (Pty) Ltd v Venkatas and
Others3 the court held that mootness does not deprive the court of jurisdiction, but it
may affect the justi ciability of the matter and that an application that will have no
practical effect or result may be dismissed on that ground alone. Often, the issue of
mootness arises in appeals , where, in terms of section 16 (2)(a)(i) of the Superior
Courts Act 10 of 2013, the court may dismiss an appeal on this ground alone. All the
authorities relied upon by counsel dealt with appeal courts’ approach to mootness. In
Erasmus: Superior Court Practice4 the following is stated:
‘The subsection confers a discretion on the court. Where, for example,
questions of law, which are likely to arise frequently, are at issue the court of
appeal may hear the merits of the appeal and pronounce upon it. If facts
relevant to the exercise of a court of appeal’ s discretion under the secti on do
not appear from the record, they should be placed before the court by way of
affidavit by the party seeking to rely upon them and in sufficient time to enable
the other party to deal therewith. The same applies to an application for leave
the other party to deal therewith. The same applies to an application for leave
to appeal in whatever court it is brought. It is a prerequisite for the exercise of
2 Akani Retirement Fund Administrators (Pty) Limited and Others v Moropa and Others [2025] ZASCA
13.
3 Voltex (Pty) Ltd v Venkatas and Others [2025] ZAKZDHC 41 para 7.
4 D E van Loggerenberg Erasmus: Superior Court Practice (RS 5, 2025) at D-94J.
the discretion that any order that the court may ultimately make will have
some practical effect on one or the other of the parties.’ (Footnotes omitted.)
[22] The applicant’s counsel made submissions on the assumption that I had a
discretion to hear the matter on the merits if it was in the interests of justice to do so.
In Solidariteit Helpende Hand NPC and Others v Minister of Cooperative
Governance and Traditional Affairs,5 the Supreme Court of Appeal however held as
follows:
‘It must be borne in mind that s 16(2)(a)(i) of the Superior Courts Act confers a
discretion on a court of appeal to hear an appeal notwithstanding mootness.
Therefore, when a cour t of first instance has determined that the subject
matter of litigation has ceased to exist before judgment, it has no jurisdiction
to entertain the merits of the matter. Only an appeal court has a discretion to
hear an appeal notwithstanding mootness.’
[23] The S upreme Court of Appeal also held in MEC for Health, Gauteng v Dr
Regan Solomons,6 with reference to what was held in Minister of Justice and Others
v Estate Stransham-Ford,7 that:
‘[28] This Court … made it clear that it was not open to high courts sitting as
courts of first instance to make orders on causes of action that had been
extinguished merely because they think that their decision would have
broader societal implications. The Court in Stransham-Ford said courts of first
instance are not vested with the same power conferred upon a court of
appeal, which may exercise its jurisdiction to determine a matter because “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.”
[29] The Court distinguished between a case having become moot
because it no longer presented a live issue for determination on appeal, on
the one hand, and that of a claim having been extinguished before the
the one hand, and that of a claim having been extinguished before the
5 Solidariteit Helpende Hand NPC and Others v Minister of Cooperative Governance and Traditional
Affairs [2023] ZASCA 35 para 18.
6 MEC for Health, Gauteng v Dr Regan Solomons [2024] ZASCA 184.
7 Minister of Justice and Others v Estate Stransham-Ford [2016] ZASCA 197; 2017 (3) SA 152 (SCA).
judgment at first instance, on the other. The expression “mootness” in the
jurisprudence of the appellate courts, so the Court found, was not used in the
latter case. It said:
“Mootness is the term used to describe the situation where events
overtake matters after jud gment has been delivered, so that further
consideration of the case by way of appeal will not produce a judgment
having any particular effect. Here we are dealing with a logically
anterior question, namely, whether there was any cause of action at all
before the high court at the time it made its order. Was there anything
on which it was entitled to pronounce? The principles governing
mootness have little or no purchase in that situation.”
[30] The present case plainly falls into the latter category, as by the time
the matter came before the court of first instance, it was common cause that
Prof Solomons did not have possession of the information pertinent to the
relief sought. Consequently, in the words of the above extract, there was no
cause of action at all before the court at the time it made its order. This means
that the high court had no jurisdiction to enter into the merits of the matter. ’
(Footnotes omitted.)
[24] Whilst it is in my view clear that as a court of first instance, I would have no
jurisdiction to entertain the merits of the matter, should I find it to be moot, the parties
were clearly not aware of these authorities. None of them referred me to the above
cases and all addressed me as if I would be able to consider th e merits. I deem it
nonetheless appropriate to refer to some of the authorities relied upon by the parties
for the sake of completeness and to enable the applicant to fully consider its position.
[25] In Agribee Beef Fund Ltd and Another v Eastern Cape Rural Development
Agency and Another ,8 the Constitutional C ourt said the following regarding
mootness:
‘[22] The applicants concede that the matter is indeed moot, but contend that
mootness:
‘[22] The applicants concede that the matter is indeed moot, but contend that
the matter still presents an existing or live controversy and that the interests of
8 Agribee Beef Fund Ltd and Another v Eastern Cape Rural Development Agency and Another [2023]
ZACC 6; 2023 (6) SA 639 (CC) (Agribee).
justice favour the granting of leave to appeal, as the applicants potentially
have a claim for punitive constitutional damages against the respondents, as
a result of their failure to perform in terms of the contract. The respondents
oppose this application on the basis that the interests of justice do not require
the application to be heard because there are no reasonable prospects of
success.
[23] The fact that a matter engages this court's jurisdiction is insufficient for
leave to b e granted. The question must still be answered whether it is in the
interests of justice for the court to entertain the matter. It is common cause
that the contractual nexus between the parties expired by effluxion of time in
March 2021 and that a successf ul appeal would not result in the contract
being reinstated. The parties agree that the matter is moot. Notwithstanding
this, we have to consider whether it is indeed moot and, if so, whether it is in
the interests of justice to grant leave to appeal. I now proceed to deal with the
issue of mootness.
[24] A matter is moot “where issues are of such a nature that the decisions
sought will have no practical effect or result”. The factors that bear
consideration when determining whether it is in the interests o f justice to hear
a moot matter 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”.’ (Footnotes omitted.)
[26] The court further held as follows in respect of the interests of justice:
‘[26] It is well established that mootness is not an absolute bar to the
justiciability of an issue, and that this court may entertain an appeal, even if
moot, where the interests of justice so require. This court has the
discretionary power to entertain even admittedly moot
issues. In Langeberg the court held that it had —
“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.”
[27] The applicants concede that they do not need a successful appeal to enable
them to recover compensation for what they performed in terms of the contract. They
contend, however, that, notwithstandin g the mootness, the matter should still be
heard, as they have a claim for punitive constitutional damages against the
respondents, as a result of the respondents' failure to perform the obligations in
terms of the contract. The applicants rely on this cou rt's judgment in Beadica for this
proposition, where this court held that the protection of the pacta sunt
servanda principle is essential to the constitutional vision.
[28] The applicants' reliance on Beadica is misplaced, as punitive damages
are most unlikely to arise out of the following circumstances. The contract was
a positive attempt to empower emerging farmers. It sought to bolster the
Eastern Cape's economy, and it particularly focused on upgrading and
transforming its agrarian output and develop ment. The applicants proffer
nothing further as to why it is in the interests of justice to hear this moot
matter, save for a bald assertion to this effect . A conclusion that it is not in the
interests of justice to grant leave in this matter will have no impact on a
possible claim for punitive constitutional damages.
[29] None of the factors outlined to establish that it is in the interests of justice
to hear the matter, despite its mootness, find application here. The matter is
moot and no longer has any practical effect between the parties, because the
contract will not be reinstated. I, therefore, conclude that it is not in the
interests of justice to grant leave in this matter.’ (My emphasis and footnotes
omitted.)
[28] In Akani Retirement Fund Administrators (Pty) Limited and Others v Moropa
and Others9 the court held as follows:
‘[24] What remains to be considered 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, the 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 contempl ated litigation will
undoubtedly have to proceed to trial. One can hardly imagine a trial court, that
has had the benefit of witnesses, 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, they have not been fully
ventilated or finally determined by the full court.
[25] T he only point of law decided by the full c ourt 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 a dministrative action, is a flexible one. Such cases are routinely
decided on a case -by-case basis. Viewed in this light, the full court’s
conclusion that the trustees’ decision to remove NBC as provider of
administration services to CINPF amounted to the e xercise of public power
reviewable under PAJA, does not amount to a ‘ discrete legal issue of public
importance’ envisaged in Qoboshiyane.’ (Footnote omitted.)
[29] The court held further:
importance’ envisaged in Qoboshiyane.’ (Footnote omitted.)
[29] The court held further:
9 Akani Retirement Fund Administrators (Pty) Limited and Others v Moropa and Others [2025] ZASCA
13 (Akani).
‘[26] It is clear from the parties’ supplementary heads of argument that some
of the parties seek this Court’s judgment to determine the course of future
litigation. For example, NBC seeks confirmation that its removal as CINPF
was lawfully terminated as th e 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 litigatio n prospects. This we decline to
provide. As pointed out in Radio Pretoria v Chairperson ICASA , courts of
appeal “do not give advice gratuitously. They decide real disputes and do not
speculate or theorise. . . ”. 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:
“[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.”
[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.’
[30] The title deed attached to the supplementary affidavit filed on behalf of the
third respondent clearly shows that the relevant properties were transferred to Argin
on 5 November 2021. As pointed out by the first respondent, it records that Mr M S
Khan, as the appearer, was granted a power of attorney by the trust on 27 May
2021. It also contains the following on page 2:
‘And the appearer declared that his said principal had, on 15 December 2020,
by virtue of an asset - for- share transaction as contemplated in terms of
section 42 of the Income Tax Act , 58 of 1962, entered into between the
Transferor Trust and the Transferee Company, and that he /she, the said
Transferor Trust and the Transferee Company, and that he /she, the said
Appearer, in his capacity aforesaid, did, by virtue of these presents, cede and
transfer to and on behalf of:
Argin Investments Property Limited Registration Number 2020/722628/07…’
[31] Recently, in Knoop NO and Another v Islandsite Investments 180 (Pty) Ltd
and Others; Islandsite Investments 180 (Pty) Ltd and Another v Knoop NO and
Others,10 the Supreme Court of Appeal once again addressed the issue of mootness
in two appeals before it and confirmed what was held in Akani. In the second appeal,
it dealt with a property that had been sold to another person, which transaction was
being disputed. The property had , however, in the meantime been transferred into
the name of the buyer. The court found that the appeal had been overtaken by the
transfer of the property and that the appeal was moot and that its outcome will have
no practical effect.11 It also found that there was ‘… no discrete legal issue of public
importance arises that would affect matters in the future and on which the
adjudication of this Court is required’.12
[32] In my view, there can be no doubt that the applicant’s mandate is no longer
valid and that the matter is moot on this ground alone. It further appears that the
applicant, or at least the trust , must have known from at least 15 December 2020
that a transaction was imminent in terms of which the trust, which granted the
applicant its mandate, would no longer be the owner of the bid building . The
applicant, however, still submitted a bid and now, after it has become common cause
that there is no building available to lease to the first respondent, it wants this court
to provide it with advice or a decision on the merits of the review, to enable it to
pursue a possible damages claim. It wants me to do exactly what the court declined
to do in Akani, namely, to provide an opinion as to possible future litigation
prospects. This I can in any event not do as I am precluded from dealing with the
merits.
[33] I am therefore of the view that the matter has become moot and that it should
be dismissed.
[34] As far as costs are concerned, the court in Voltex (Pty) Ltd v Venkatas and
Others held that:13
Others held that:13
10 Knoop NO and Another v Islandsite Investments 180 (Pty) Ltd and Others; Islandsite Investments
180 (Pty) Ltd and Another v Knoop NO and Others [2025] ZASCA 125.
11 Ibid paras 16-18.
12 Ibid para 18.
13 Voltex (Pty) Ltd v Venkatas and Others [2025] ZAKZDHC 41 para 10.
‘The general rule is that costs follow the result. However, where the
application becomes moot before final determination , the court must consider
the parties ’ conduct, the reasonableness of the litigation , and whether the
applicant acted oppressively or the respondents unreasonably withh eld
consent.’
[35] The first respondent pointed out that shortly after launching the application,
the property was transferred to Argin. This information was not brought to the
attention of the first respondent and the applicant furthermore persisted with the
review application, even after becoming aware of the fact that the bid building was
no longer the property of the trust. This much is apparent from the sequence of the
events and the litigation set out abov e. I am of the view that there is no reason to
deviate from the general rule. Despite the conduct of the applicant in this regard, and
in exercising my discretion , I decline to grant a punitive cost order, as requested by
the first respondent.
[36 ] I accordingly grant the following order:
The application is dismissed with costs (on scale C for work done after 12
April 2024) , such costs to include the costs of senior counsel , where so
employed.
____________________
E BEZUIDENHOUT J
Date of hearing: 20 February 2025
Date of judgement: 15 September 2025
The judgment is handed down electronically by circulating it by email to the
respective parties and publication on S AFLII. The date of hand down is 15
September 2025.
Appearances:
For the applicant: Mr Hlongwane
Instructed by: Mhlanga Incorporated
Unit 2, First Floor
21 Richefond Circle
Ridgeside Office Park
Tel no: 031 305 7537
Email: tkhwela@gmail.com
Ref: Mr Hlongwane/L COM: T023/21
c/o Stowell & Co
295 Pietermaritz Street
Pietermaritzburg
Tel no: 033 845 0500
Email: sumayan@stowell.co.za
Ref: S NORGOT/MHL 185/ 0023
For the first and second respondent: Mr BE Khuzwayo SC
Instructed by: The State Attorney (KwaZulu-Natal)
6 th Floor, Metlife Building
391 Anton Lembede Street
Durban
Tel no 031 365 2544/ 2582
Email: ThMaphumulo@justice.gov.za
Ref: 289/0011505/21/T/P9/ncm
c/o State Attorney( KwaZulu-Natal) Satellite office
2nd Floor, Magistrate’s Court Building
302 Church Street
Pietermaritzburg
For the third respondent: Mr J Pammenter SC
Instructed by: Larratt Law Inc
Suite B
130 Adelaide Tambo Drive
Durban North
Durban
Email: Tanusha@larrattlaw.co.za
Ref: Lance Larratt/tp
c/o Tatham Wilkes
Tel no: 033 394 9199
Ref: Mr Malcom Harris