REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 091427/23
(1) REPORTABLE : NO
(2) OF INTEREST TO O THER JUDGES : 0
(3) RE VISED : NO
9 D ecemb er 2025 ____ _
DATE SIGNA TUR
In the matter between:
DEMOCRACTIC ALLIANCE First App licant
SAREL JACOBUS FRANCOIS MARAIS Second App licant
and
PRESIDENT OF THE RESPUBLIC OF SOUTH AFRICA First Responden t
RETIRED JUSTICE PMD MOJAPELA Second Respondent
LEAH GCABASHE SC Third Respondent
2
ENVER SURTY Fourth Respondent
JUDGMENT
JANSE VAN NIEUWENHUIZEN J
[1] This is an application for leave to appeal against the whole judgment and order
of this court delivered on 25 September 2025.
[2] The application is premised on three main grounds, firstly, the court erred in
finding that the matter is moot; secondly, the court erred in failing to deal with the
merits of the application and thirdly, the court erred in awarding costs against the
applicants in circumstances where the Biowatch principle is applicable.
[3] The first ground dealing with mootness revolves around the question whether the
first respondent or an y other executive authority would in future consider
appointing a retired judge to a panel of enquiry. In this respect, the facts are
common cause between the parties, and the question had to be answered with
reference to authorities in which the principle of mootness have been dealt with.
[4] The applicants maintain that the court erred in applying the law as it has
crystallised in the authorities to the facts in casu. The principles applicable to the
question of mootness in a constitutional context is complex and having carefully
considered the submissions on behalf of the applicants, I am of the view that the
application has prospects of success.
[5] The second ground depends on the finding in respect of mootness and logic
dictates that leave must be granted in respect thereof.
[6] Insofar as the cost order is concerned, a court has a discretion in awarding costs
and a court of appeal would seldom interfere with the court’s discretion . The
exercise of this discretion is , however, somewhat different in constitutional
litigation against the State by private parties. In the result, I am of the view that
leave to appeal should also be granted in respect of the cost order.
[7] The issues are comp lex and deserves the attention of the Supreme Court of
Appeal.
ORDER
1. The applicants are granted leave to appeal to the Supreme Co urt of
Appeal against the w hole judgment and order of this court delivered on
25 September 2025.
2. Costs of the application is costs in the appeal.
DATE HEARD:
30 October 2025
DATE DELIVERED:
10 December 2025
December 2025
APPEARANCES
JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
Cou nsel for the Applicants: M Bishop
M de Beer
3
4
Instructed by: Minde Shapiro and Smith
Counsel for the First Respondent: Nalane SC
N Stein
Instructed by: State Attorney Pretoria
5