Aptitude Trading Enterprise (Pty) Ltd v The City of Tshwane Metropolitan Municipality and Another (251/2024) [2025] ZASCA 72 (30 May 2025)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable

             Case
no: 251/2024

In the matter between:

APTITUDE TRADING
ENTERPRISE (PTY) LTD       APPELLANT

and

THE CITY OF TSHWANE
METROPOLITAN

MUNICIPALITY                                                          

FIRST RESPONDENT

THE MUNICIPAL MANAGER
OF THE CITY OF

TSHWANE METROPOLITAN
MUNICIPALITY          SECOND
RESPONDENT

Neutral
citation:    Aptitude
Trading Enterprise (Pty) Ltd v The City of Tshwane Metropolitan
Municipality and Another (251/2024)
[2025] ZASCA 72 (30 May 2025)

Coram:       
MOCUMIE, MOKGOHLOA and COPPIN JJA and TOLMAY and
MOLITSOANE AJJA

Heard:         
12 May 2025

Delivered:   
30 May 2025

Summary:   
Civil procedure – legality
of court order extending suspension of order of invalidity of tender
pending new award of tender – new tender awarded
– no
live extant issue – any decision or order sought on appeal
having no practical effect or result – whether
there is a
discrete legal issue of public importance which nevertheless
justifies this Court to decide the matter on its merits
–
powers of an appeal court in terms of s 16(2)(a)(i)
of the Superior Courts Act 10 of 2013 – mootness of the appeal
– public importance of the matter. 

ORDER

On
appeal from:
Gauteng Division of the High Court, Pretoria (Hassim AJ, sitting as a
court of first instance):

[4]  On 23 February
2023, the municipality brought an urgent application in the high
court to extend Ferreira AJ’s suspension
order until 31 May
2023. On 27 February 2023, Khumalo J granted the extension sought
until 31 May 2023 to give the municipality
more time to complete a
lawful procurement of the water tankers. Despite the extension, the
municipality did not achieve that objective
and on 31 May 2023,
approached the high court again on an urgent basis for a further
extension of the suspension order for three
months.

[6]  The three
months’ extension also turned out not to have been enough for
the municipality, because it yet again approached
the high court
(Hassim AJ) on an urgent basis at the end of August 2023, purportedly
in terms of rule 27(1) read with rule 6(12) of the Uniform Rules to
further extend the suspension order ‘to 30 November 2023 or
until [the municipality] awards new contracts in terms of Tender
HHS05-2022/23, whichever may come first’. On the night of 31
August 2023, Hassim
AJ further extended the order of suspension to 30
November 2023, alternatively to the date when a decision is made by
the municipality
in respect of the tender. This extension was made
subject to the municipality reporting to the court in detail on
progress made
in respect of the award of the tender. That part of the
order is elaborate, but in light of the approach adopted by this
Court
in this matter, the detail thereof need not be stated here. It
is not disputed that on 30 November 2023, the city manager made a

final decision on the tender, which led to the conclusion of new
agreements with successful bidders on 30 August 2023.

[7]  The respondents
submit that when a final decision was made on the tender on 30
November 2023, the suspension order of
Hassim AJ lapsed; that the
appeal, which is directed at the order of Hassim AJ, has become moot
and that any order sought on appeal
in respect of it would have ‘no
practical effect or result’ as envisaged in s 16(2)(a)(i)
of the Superior Courts Act 10 of 2013 (the Act), and should be
dismissed on that ground alone.

[8] 
Aptitude submits that even though the order of Hassim AJ has lapsed,
this Court should nevertheless exercise its discretion
to hear the
matter on its merits because it would be in the interest of justice
to do so and that the order sought on appeal will
still have some
practical effect, either on the parties or on others. Aptitude
submits, in particular, the following in that regard:
The order
sought will deal with a legal issue of public importance and this
Court must pronounce on the issue. Relying on decisions
such as Ex
Parte Minister of Home Affairs and Another[1]
Aptitude
argues that once the suspension order lapsed after it was not renewed
before 31 May 2023, no court, including the high
court presided over
by Van Niekerk AJ, had the authority to resuscitate the lapsed order.
Accordingly, there was no basis for Hassim
AJ to grant an extension
of a lapsed order and it was thus granted wrongly.

[9]  In elaboration
of this point – Aptitude contends as follows: For as long as
the extension order of Hassim AJ stands
‘it serves as authority
for the proposition that, at least in principle, organs of state can
approach the same [h]igh [c]ourt
for an extension of the declaration
of invalidity’ on an urgent basis at the eleventh hour when the
order is due to lapse.
Given the time it takes for a matter to be
heard on appeal in this Court, it will always be close to impossible
to have an appeal
heard within the period of the declaration of
invalidity. The relief obtained by Aptitude before Ferreira AJ, at a
significant
cost, was effectively rendered meaningless by the further
extensions of the suspension order granted by Ferreira AJ. The
municipality
has paid ‘hundreds of millions of rands to the
panel of contractors during the period after 28 February 2023’,
and
the lawfulness of these payments depends on the outcome of this
appeal.

[10] 
In terms of the extension order, Hassim AJ extended the suspension
order to 30 November 2023, alternatively, to a date
on which the
second respondent (the city manager) had made a new decision on the
award of the tender (whichever was the earliest).
It is common cause
that the extension order of Hassim AJ would then have lapsed.

[11] The main issue in
this appeal is therefore mootness; if we are of the view that even if
Hassim AJ was not empowered to extend
the order of Ferreira AJ when
she did as of 30 November, it had lapsed.

[12]  Section
16(2)(a) of the Superior Courts Act 10 of 2023 (the Superior
Courts Act), provides:

‘(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.’

[13] 
A matter is moot when the order sought will have no practical effect
on the parties – because there is no longer
an existing or live
controversy between them.[2]
Courts are required to refrain from making a ruling in such matters,
because the ruling will amount to a mere advisory opinion,
which is
abstract or academic and of no practical effect.[3]

[14] 
In Narius
Moloto v The Pan Africanist Congress of Azania[4]
it is aptly stated:

‘This
Court, in The
President of the Republic of South Africa v DA and Others,[5]
had this to say on the issue:

“The
question of mootness of an appeal has featured repeatedly in this and
other courts. These cases demonstrate that a court hearing
an appeal
would not readily accept an invitation to adjudicate on issues that
are of “such a nature that the decision sought
will have no
practical effect or result”. The Constitutional Court in
National Coalition for Gay and Lesbian
Equality & Others v Minister of Home Affairs
2000 (2) SA 1 (CC) para 21 footnote 18 remarked:

“A
case is moot and therefore not justiciable if it no longer presents
an existing or live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract propositions of law. Such
was the case in JT Publishing (Pty) Ltd
and Another v Minister of Safety and Security and Others [1996]
ZACC 23; 1997 (3) SA 514 (CC) (1996 (12) BCLR 1599), where Didcott J
said the following at para [17]:

“(T)here
can hardly be a clearer instance of issues that are wholly academic,
of issues exciting no interest but an historical one,
than those on
which our ruling is wanted have now become.”

There are instances where
there have been exceptions to the provision, initially of s 21A of
Act 59 of 1959 and presently s 16(2)(a)(i) of the Superior Courts Act
10 of 2013. The courts have exercised discretion to hear a matter
even where it was moot. This discretion has been applied in a limited
number
of cases, where the appeal, though moot, raised a discrete
legal point that required no merits or factual matrix to resolve. In

this regard, the Constitutional Court in Independent Electoral
Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA
925 (CC), in paragraph 11 held:

“.
. . A prerequisite for the exercise of the discretion is that any
order which this Court may make will have some practical effect

either on the parties or on others.”’

[15] 
Most recently, this Court in, Solidariteit
Helpende Hand NPC v Minister of Co-operative Governance and
Traditional Affairs[6]
stated:

‘The
general principle is that a matter is moot when a court’s
judgment will have no practical effect on the parties.[7]
This usually occurs where there is no longer an existing or live
controversy between the parties.[8]
A court should refrain from making rulings on such matters, as the
court’s decision will merely amount to an advisory opinion
on
the identified legal questions, which are abstract, academic or
hypothetical and have no direct effect;[9]
one of the reasons for that rule being that a court’s purpose
is to adjudicate existing legal disputes and its scarce resources

should not be wasted away on abstract questions of law.[10]
In President
of the Republic of South Africa v Democratic Alliance,[11]
the Constitutional Court cautioned that “courts should be loath
to fulfil an advisory role, particularly for the benefit
of those who
have dependable advice abundantly available to them and in
circumstances where no actual purpose would be served by
that
decision, now”.’

[16] 
In Centre
for Child Law v The Governing Body of Hoërskool Fochville,[12]
concerning
its discretion in cases of mootness, reviewed previous cases and
found that in the class of case where this Court considered
the
merits of the appeal, despite mootness, was where ‘a discrete
legal issue of public importance arose that would affect
matters in
future and on which the adjudication of this Court was required’.

[17] 
That the matter has become moot leaves no doubt. The only remaining
question is whether ‘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’.
Aptitude concedes
mootness but tries to convince this Court to exercise its discretion
and nevertheless deal with the merits of
the matter. The ‘discrete
legal issue’ it identifies relates to the fact that when Van
Niekerk AJ extended or purported
to extend the order of suspension
further on 2 June 2023, that order had already lapsed on 31 May 2023.
The contention is that
Van Niekerk AJ’s extension of that order
was invalid considering what the Constitutional Court has held in
several cases,
namely, that the high court does not have the power to
make an order, even pending further litigation, that a lapsed
suspension
order ‘remains operative’.[13]

[18]  The papers
indicate that the extension of the suspension order that was to
expire on 31 May 2023, may have lapsed before
it was extended by Van
Niekerk AJ. However, the fact that a legal issue might have arisen
there in that regard does not require
this Court’s attention.
The order of Van Niekerk AJ was not appealed against, and is not
before us. We cannot pronounce on
its correctness and the
circumstances in which it was made. The order that is before us is
that of Hassim AJ. At the time she made
her order, the order made by
Van Niekerk AJ had not lapsed. Thus, the legal question advanced by
Aptitude does not arise for decision
in respect of Hassim AJ’s
order. But over and above that, Hassim AJ’s order in which the
provision of the water tankers
was effectively extended was made on
an urgent basis for a temporary period so as not to deprive affected
persons of a water supply
and so infringe their constitutional
rights. The consideration of Hassim AJ’s order will not be of
any practical effect and
is academic. The scarce resources of this
Court should not be wasted on such questions. It is also not the
function of this Court
to provide legal advice or opinion to
disgruntled litigants or to the public. Taking all the facts into
account, entering the merits
of the appeal against Hassim AJ’s
order, despite its mootness, is not in the interests of justice.

[19]  Having said
that it is nevertheless apparent that the municipality dragged its
feet in implementing the order of Ferreira
AJ and always sought an
extension of the suspension order at a very late stage just before
its expiry. Such conduct should not
be countenanced. It is an abuse
of the court processes. Aptitude was justified in pursuing the appeal
but for its mootness. Therefore,
even though the appeal is to be
dismissed for that reason, Aptitude should not be mulcted with the
costs of the municipality.

[20] In the result:

The appeal is dismissed
with no order as to costs.

B C MOCUMIE

JUDGE OF APPEAL

P COPPIN

JUDGE
OF APPEAL

Appearances

For the
appellant:                        

A P J Els SC and N G Louw

Instructed
by:                              

Albert Hibbert Inc., Pretoria

Webbers
Attorneys, Bloemfontein

For the
respondents:                   

L Nkosi-Thomas SC and T M Makola

Instructed
by:                               

Kutumela Sithole Inc., Pretoria

Honey
Attorneys., Bloemfontein.