In Aptitude Trading Enterprise (Pty) Ltd v The City of
Tshwane Metropolitan Municipality and Another, the South
African Supreme Court of Appeal (“SCA“)
reaffirmed the principle that courts will not entertain moot
disputes unless there are exceptional circumstances present
warranting the court’s attention.
Background
A tender process was initiated by the City of Tshwane
Metropolitan Municipality (“the
Municipality“) for the supply of 10,000-litre mobile
water tankers to service informal settlements. Aptitude Trading
Enterprise (Pty) Ltd (“Aptitude“) was an
unsuccessful bidder. Aptitude challenged the validity of the tender
award, seeking to have it reviewed, declared invalid, and set
aside, including all agreements concluded under the tender.
The various orders made by the South African Pretoria
High Court
On 26 November 2022, Acting Judge Ferreira set aside the award
of the tender and all the agreements concluded under the tender.
This order suspended the declaration of invalidity until 28
February 2023 to give the Municipality time to complete a lawful
procurement of the water tankers.
On 23 February 2023, the Municipality initiated an urgent
application for the suspension order to be extended to 31 May 2023.
Judge Khumalo granted the order. Thereafter, the Municipality
applied yet again for a further extension. On 2 June 2023, AJ Van
Niekerk extended the suspension order until 31 August 2023. Yet
again, this was not enough time for the Municipality to complete a
lawful procurement process.
The Municipality launched another urgent application to have the
suspension order extended to 30 November 2023. On 31 August 2023,
AJ Hassim granted an order to the effect that the order was
suspended until 30 November 2023, alternatively until the
Municipality decides in respect of the tender. Aptitude appealed
the order of AJ Hassim.
SCA findings
The court reaffirmed that a matter is moot when the order sought
will have no practical effect on the parties. This is because there
is no longer an existing controversy between them. Courts are to
refrain from making rulings in such matters, this is because the
ruling would amount to a mere advisory opinion, which is academic
and of no practical effect. This is to ensure that scarce judicial
resources are not wasted on abstract questions of law.
However, the SCA emphasised that a court has the discretion to
hear a matter, even where it is moot. This is where the issues
raised involve a discrete legal point of public importance that
requires no merits or factual matrix to resolve. A prerequisite for
the exercise of this discretion is that the order which the court
will make must have some practical effect, either on the parties
involved in the dispute or on others in the future.
On 30 November 2023, the Municipality’s City Manager made a
final decision on the tender. The SCA was cognisant of the
Constitutional Court’s findings in a prior case, where the apex
court held that a High Court does not have the power to make an
order, even pending further litigation, that a lapsed suspension
order remains operative.
The order that was the subject of the appeal (by AJ Hassim) was
not made after the suspension order had lapsed, and the earlier
order (by AJ Van Niekerk) that might have been problematic was not
before the court on appeal. The SCA therefore found that the
question raised by Aptitude, of whether a lapsed suspension order
could be revived, was moot and did not require its
intervention.
The court was critical of the Municipality’s conduct of
repeatedly seeking extensions at the last minute and failing to
implement the original order timeously, which the court saw as an
abuse of court process.
Conclusion
In light of the Municipality’s conduct, the SCA found that
Aptitude was justified in pursuing the appeal, despite the appeal
being dismissed for mootness. Due to the Municipality’s
conduct, the SCA did not make any order as to costs.
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