SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-073036
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 25 February 2026
SIGNATURE
In the matter between:
F[...] B[...] C[...]
obo M[...] K[...] C[...]
Applicant
and
MOTORSPORT SOUTH AFRICA NPC Respondent
This judgment and the order incorporated herein is handed down electronically by circulation
to the parties’ legal representatives by e-mail and uploading to CourtOnline.
JUDGMENT
Moultrie AJ:
[1] The applicant proceeds in this matter on behalf of her minor son, who is a
competitive motor racing driver . This is Part B of an application in which the
2
applicant seeks final relief in the form of a declaration that the respondent’s
decision to suspend her son’s national motorsport competition license on
medical grounds following a serious accident was unlawful together with further
relief “reviewing and setting it aside”. The cause of action upon which all of this
relief is based is the contention that the suspension decision either constitutes
administrative action under the Promotion of Administr ative Justice Act, 3 of
2020 (PAJA) or that it is reviewable under the common law and – in either case
– that it was ultra vires the powers of the respondent and/or taken in a
procedurally unfair manner. Although the respondent disputes the allegations of
lack of vires and procedural unfairness, it expressly “admits that it fulfils a public
function and that its decisions are required to comply with [PAJA]”.1
[2] Shortly before the hearing, I placed a widely -shared not e on the Caselines
hearing bundle requesting the parties to be prepared to address me on the
implications of the fact that it appeared that the suspended licence had expired
since the time that an earlier application for urgent interim relief under Part A of
the notice of motion had been struck off the roll (with costs) for lack of urgency.
My request referred in particular to the decision of the Supreme Court of Appeal
in Akani Retirement Fund Administrators v Moropa.2 During a virtual ‘meeting in
chambers’ convened immediately before the matter was called, I enquired
whether either of the parties might require further time, or seek the opportunity
to adduce further facts , to deal with the issue. I was assured that they didn’t. I
was further inf ormed that the parties were in agreement that the licence had
1 I take no view regarding the correctness of this concession, but am prepared to proceed on the
assumption that it is correct for the purposes of deciding this case.
2 Akani Retirement Fund Administrators (Pty) Limited and Others v Moropa and Others [2025]
2 Akani Retirement Fund Administrators (Pty) Limited and Others v Moropa and Others [2025]
ZASCA 13; 2025 JDR 0776 (SCA).
3
indeed expired and that the relief sought would have no practical effect in the
sense that the applicant’s son would not be able to race under the licence even
if the application were to succeed in all respects.3
[3] Despite this, c ounsel for the applicant argued that the Court was not merely
entitled, but obliged, to hear and determine the application for declaratory relief.
In summary, the argument was as follows:
a. Section 16(2)(a) of the Superior Courts Act, 13 of 2010 specifically deals
with ‘moot’ appeals and neither that section nor the Akani judgment finds
any application in this matter.
b. Whereas a court of first instance has a discretion at common law to
decline to entertain a matter where the relief sought would have no
practical effect , no such discretion exists where such a court is called
upon to grant declaratory relief in a PAJA-based review . It was argued
that t his is because such proceedings are constitutional matters in the
sense that PAJA gives effect to section 33 of the Constitution, and
because section 172(1) (a) of the Constitution stipulates that : “[w]hen
deciding a constitutional matter within its power, a court … must declare
that any … conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency”.
c. Thirdly, even if the Court indeed has a discretion to decline to entertain
the matter on the basis that the relief sought will not have any practical
consequences, that discretion should not be exercised in the current
3 In the words of the applicant’s counsel, the expiry of the licence meant that the applicant’s son
“can’t seek any entitlement to exercise a licence”.
4
instance because a determination of the matter would potentially
“vindicate” the applicant’s son’s best interests (which section 28 of the
Constitution stipulates are of paramount importance in all matters
concerning him ), by address ing his sense of having been done an
injustice.
[4] On the other hand, the respondent’s counsel argued that the ‘default’ position is
that a court of first instance should in general not entertain a moot application.
Although such a court possesses a discretion to entertain the matter should
that be in the interests of justice (for example where the issue was an important
one on which there are conflicting judgments and which is likely to arise again
in the future) this was not such a case. In this regard, the respondent’s counsel
sought to argue at the hearing that the vires issue raised by the suspension
decision (i.e. whether the respondent has the power to suspend a racing
licence on medical grounds, or whether its power to do so was limited to
disciplinary proceedings) was an “esoteric and unusual” one that had not
previously been the subject of any dispute between the respondent and any
party, but conceded in response to queries from the bench that there was no
evidence on the papers in this regard one way or another.4
[5] Whilst I agree with the applicant that section 16 and Akani only apply to
4 This exchange (combined with the parties’ agreement following the hearing to furnish the court
with the judgments in the Stransham-Ford and Wally judgments, to which I refer below) appears to
have prompted the applicant’s attorneys to address correspondence requesting “to place further
material” before the Court. The respondent responded to this request by pointing out that it was
purportedly made pursuant to rule 4.13 of the Uniform Rules of Ethics of the General Coun cil of
the Bar and that no application had been made pursuant to Rule 6. In my view, this point was well-
made, and I considered that it would be in appropriate –even improper – for me to engage in
correspondence seeking an indication whether or not I might be prepared to entertain such an
application. Ultimately, the applicant was afforded more than sufficient time within which to launch
a formal application but did not do so.
5
appeals,5 I am unable to agree with any of the other contentions advanced on
behalf of either of the parties at the hearing. I reach this conclusion on the basis
of the unambiguous pronouncements of the Supreme Court of Appeal in
Minister of Justice v Estate Late Stransham-Ford,6 to which I was referred after
judgment was reserved in this matter . In Stransham-Ford, the SCA held that
only courts of appeal are vested with a discretion to decide dispute s in which
the cause of action has fallen away – and even then, only if this has occurred
subsequent to the judgment of the court a quo. Since the function of a court of
first instance “is to determine cases that present live issues for determinatio n”,
it is quite simply “not open” to such a court to decide a matter in which the
“cause of action ceases to exist before judgment”, and it has no “power” to do
so, since “there is no longer a claim before the court for its adjudication”.7
[6] This dictum in Stransham-Ford has been followed by the SCA on two
subsequent occasions.8 What is more , one of those cases (Solidariteit) was a
PAJA-based review , and Stransham-Ford has been applied to PAJA -based
reviews seeking declaratory relief on numerous occasions in the High Courts. 9
The only instances that I have been referred to or identified where the same
5 The same applies to Mabotwane Security Services CC v Pikitup Soc (Pty) Ltd 2019 JDR 2367
(SCA); President of the RSA v DA 2020 (1) SA 428 (CC) and Normandien Farms v PASA 2020 (4)
SA 409 (CC), to which the respondent referred me during argument.
6 Minister of Justice v Estate Late Stransham-Ford 2017 (3) SA 152 (SCA) paras 24 to 26
7 Stransham-Ford (above) paras 24 to 26.
8 Solidariteit Helpende Hand NPC and others v Minister of Cooperative Governance and Traditional
Affairs 2023 JDR 0964 (SCA) para 18; MEC for Health Gauteng Province v Solomons 2025 JDR
0051 (SCA) paras 27 – 30.
9 See for example : Vinpro NPC v President RSA [2021] ZAWCHC 261 (WCC); Habitat Council v
9 See for example : Vinpro NPC v President RSA [2021] ZAWCHC 261 (WCC); Habitat Council v
Cape Town City and others 2022 (6) SA 383 (WCC); Trustees for the Time Being of the Humane
Society International Africa Trust and others v Minister of Forestry, Fisheries and the Environment
and another 2024 JDR 0207 (WCC) ; Construction Company (Pty) Ltd v City of Cape Town and
Others 2025 JDR 5149 (WCC); Green Point Residents and Ratepayers’ Association and others v
Gärtner and others [2025] 3 All SA 486 (WCC); Naude and Another v South African Legal Practice
Council 2026 JDR 0671 (GP).
6
approach was not taken in PAJA -based reviews are those where Stransham-
Ford was not mentioned at all and appears to have been overlooked . They are
in any event distinguishable from the current matter:
a. In British American Tobacco, a full bench sitting as a court of first instance
appears to have considered that the principles applicable to appeal s
applied in circumstances where the cause action had only fallen away
after the case had been argued.10
b. In Wally & Others v Word of Motorsport ZA 11 to which the applicant
referred me , the court did not deal pertinently with the question but
expressed the view that , even though the setting aside of the disciplinary
suspensions imposed by an apparently similar body would have no
practical impact, “the sanctions had a reputational impact ” which would
continue in future , and which led the court to conclude that they “should
not be left in place”. This is different to the current instance, where the
suspension was not only not a disciplinary one but one whose “impact”
(including any impact on the applicant’s son’s sense of injustice) was
entirely historical.
[7] While section 172(1)(a) of the Constitution was not expressly considered in any
of these judgments, I am not persuaded that it makes any difference : as the
respondent’s counsel pointed out during the hearing , the section only purports
to regulate what a court is required to do “when deciding a constitutional matter
10 British American Tobacco v Minister of Co -Operative Governance 2021 (7) BCLR 735 (WCC)
paras 23 - 27. A similar approach was followed, albeit not in the context of a PAJA-based review, in
The Fonarun Naree, The: Trustees, Copenship Bulkers A/S (in Liq) v Afri Grain Marketing (Pty) Ltd
2020 (4) SA 188 (GJ).
11 Wally & Others v Word of Motorsport ZA (unreported, ZAGPJHC, 6 December 2022).
7
within its power ”, and does not purport to stipulate if it must (or may) decide
such a matter, or whether that would be “within its power” in the first place.12 In
the words of the SCA in Stransham-Ford, that issue is governed by the
“logically anterior question” of whether there is any cause of action at all before
the court of first instance , and in relation to which “the principles governing
mootness have little or no purchase”.
[8] I thus consider that I am bound by the authority of the SCA in the cases I have
referred to above to conclude that it is not open to me to decide the application
because the cause of action advanced by the applicant was no longer live by
the time that the matter served before me . In the absence of a discretion to do
so, I decline to engage with the creative contention that the applicant’s son
should be afforded the “comfort” of knowing that “what was done to him was
wrong”.
[9] Although the court in Solidariteit upheld the high court’s order “dismissing” an
application on the basis that the matter was moot , and although most of the
courts in the cases referred to in footnote 9 above (with the exception of
Vinpro)13 granted orders “ dismissing” the application s, the SCA in Solomons
expressly considered that the court a quo should have struck the matter from
the roll.
12 The applicant referred me to Fose v Minister of Safety & Security 1997 (3) SA 786 (CC) (where the
court dealt with the equivalent provision in ss 98(7) and 101(4) of the Interim Constitution, 200 of
1993); Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580
(CC) paras 102 – 103 and Mazibuko and Others v Minister of Home Affairs and Another 2024 (3)
SA 469 (GP) para 97, but no question akin to mootness or the ability of a court of first instance to
decide a matter in the absence of a live cause of action arose in any of these cases.
13 The court in Vinpro simply made an order to the effect that “the application as formulated is moot” .
While the fact that it did not dismiss the application in its entirety may be significant, the fact that it
did not strike the matter from the roll is explained by the fact that it made an order dismissing other
relief that was not “moot”.
8
[10] It seems to me that the question of the proper order may well depend on
whether the absence of a cause of action at the time of the hearing (or
judgment) has the effect that this court has no “jurisdiction” to hear the matter ,
as is suggested not only in Solidariteit but also in Solomons itself, or whether it
is simply “not open” to me to decide the case , as the SCA put it in Stransham-
Ford. However, since neither Solidariteit nor Stransham-Ford could be said to
have dealt pertinently with the question of the proper order that should have
been made by the court of instance ,14 it seems to me that the proper course is
to apply the formulation of the order that the SCA held should have been issued
by the court of first instance in Solomons. The order will thus be that the matter
is struck from the roll.
[11] As to costs, some courts appear to favour the approach what w here a decision
on the merits is no longer sought or permissible, a decision as to costs should
not be reached in total isolation from considerations linked to the merits .15 In
Solomons, however, the SCA did not follow this approach , saying that “the
aspect of costs could have been dealt with purely on the basis that the cause of
action that the MEC was pursuing had been extinguished before the matter
served at first instance” , that “this, on its own, would have justified an order of
costs against the MEC” and that “the issue of costs could have been dealt with
by asking which party was responsible for the pursuance of the matter that was
no longer live before the court”. 16 In my view, the approach of attempting to
14 In Stransham-Ford, the SCA simply ordered that “the order of the court below is set aside”, which
effectively left no order at all, which is more consistent with a striking than a dismissal. On the
other hand, the SCA i n Solidariteit simply dismissed the appeal, thus leaving the order of the
court of first instance dismissing the application intact.
court of first instance dismissing the application intact.
15 Erasmus v Grunow en 'n Ander 1980 (2) SA 793 (O) at 798C–H, The Fonarum Nagee (above) at
22 and Naude (above) para 48.
16 Solomons (above) para 32.
9
determine which party was responsible for pursuing the matter after it ceased to
have any practical effect is more appropriate than declining to determine the
merits of the matter and then proceeding to do precisely that – albeit in a n
attenuated and potentially less careful manner – for the purposes of
determining the question of costs.
[12] In the current instance, the applicant has already been mulcted in costs in
relation to the launching of the proceedings and the delivery of all the affidavits
as a result of the costs order granted against it in Part A , and the respondent
prepared and delivered no further affidavits or heads of argument after the
licence expired. The only outstanding costs are therefore those relating to the
preparation for, and the hearing of, Part B before me. Furthermore, although
both parties ought to have realised that the expiry of the licence would have
implications for the continuation of the litigation and raised it in their joint
practice note , it was apparent to me that neither of them had paused to
consider the implications of this prior to the placement of my widely shared note
on Caselines. In addition, despite both sets of counsel indicating during the
virtual ‘meeting in chambers’ that they were ready to address the issue, neither
of them identif ied the leading authority on the issue during the hearing . It was
left to the Court itself to establish and apply the applicable law. In the
circumstances, I am of the view that neither party should be awarded its costs.
[13] I make the following order:
1. The application is struck from the roll.
___________________________
10
RJ MOULTRIE
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant: B Leech SC and Z Hoosen instructed by SLH Inc.: (011)
728 6666, nazeer@slhinc.co.za.
For the Respondent: N Ferreira and T Chaba instructed by Nicqui Galaktiou
Inc.: (011) 592 7050; megan@galaktiou.co.za