Khamusi Shonisani Mudau-Mamode v Vhuhwaho Denge

On 11 November 2019, the appellant launched an eviction application in the Regional Court, Limpopo Division, seeking to evict the respondent from the property described as Erf 760 Tshisaulu (also known as Tshisaulu Maternity home). The respondent opposed the application. On 3 October 2022, when the matter served as an opposed motion, the appellant brought an application in terms of Magistrates' Court rule 55(1)(k) for referral of the matter for the hearing of oral evidence on the basis that there was a dispute of fact. The regional court dismissed this application with costs and immediately thereafter dismissed the eviction application with costs. Both judgments were delivered ex tempore. On 15 March 2023, the appellant appealed only the order refusing to refer the matter for the hearing of oral evidence to the high court. The high court dismissed the appeal, finding that the regional court had not failed to exercise its discretion judiciously.

• Whether the regional court misdirected itself in refusing to refer the matter for oral evidence under Magistrates' Court rule 55(1)(k)
• Whether the high court misdirected itself in upholding the regional court's decision
• Whether the appeal became moot given that the underlying eviction application had been dismissed and was not the subject of appeal

The appeal was struck off the roll with no order as to costs.

An appeal is moot and should be struck off the roll where its resolution will have no practical effect. Where a court has made two decisions, one interlocutory (refusal to refer for oral evidence) and one final (dismissal of the main application), and only the interlocutory decision is appealed while the final decision remains unchallenged, setting aside the interlocutory decision would serve no practical purpose because the final decision disposing of the matter remains in place. The scope of issues for determination on appeal is limited to the decision appealed against as provided in section 19(d) of the Superior Courts Act 10 of 2013.

The Court observed that the general rule in civil litigation is that costs should follow the result, and that this decision rests in the court's discretion to be exercised judicially. However, where mootness is decided without the benefit of argument from either party (as neither party addressed it in their heads of argument), the dictates of fairness warrant that no order as to costs should be made. The Court also noted that the appeal did not illustrate exceptional circumstances warranting the granting of special leave, though this observation was made after leave had already been granted.

This case illustrates the principle of mootness in South African civil procedure. It demonstrates that appeals must have practical effect and that courts will not decide matters where the resolution will have no practical consequences. The case confirms that the scope of appellate review is limited to the decision actually appealed against, and that where an appellant appeals only an interlocutory decision (such as refusal to refer to oral evidence) but does not appeal the final order disposing of the matter (the dismissal of the eviction application), any relief granted on the interlocutory appeal would be academic. The case also reinforces section 19(d) of the Superior Courts Act regarding the limited scope of appellate powers to decisions that are the subject of appeal.