Following the tragic Marikana incident in August 2012 where approximately 44 people died, the President established a Commission of Enquiry (the Marikana Commission). Approximately 300 applicants (first and second respondents), who were either victims or alleged perpetrators involved in the incident, sought legal funding from Legal Aid South Africa (LASA) to participate in the Commission proceedings. LASA had previously granted funding to 23 families who had lost breadwinners in the incident but declined funding to the applicants. The applicants applied to the North Gauteng High Court for an order compelling LASA to provide legal funding. The high court ordered LASA to provide such funding, holding that LASA's decision was irrational and unconstitutional. LASA appealed with leave. However, prior to the hearing of the appeal, the parties entered into a settlement agreement whereby LASA agreed to provide the required funding for the full duration of the unfunded period of the Commission. The registrar of the Supreme Court of Appeal had directed the parties' attention to s 16(2)(a)(i) of the Superior Courts Act 10 of 2013, which allows dismissal of appeals that will have no practical effect or result.
The appeal was dismissed in terms of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013, with each party ordered to pay its own costs. The court ordered costs to lie where they fell because LASA genuinely believed it was acting in the public interest, the decisive point was raised by the court rather than the respondents, and LASA hoped to obtain guidance for future administration of public funds.
Where parties to litigation have resolved all disputes between them by agreement, thereby extinguishing the lis, an appeal court has no jurisdiction or discretion under s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 to entertain the appeal, as there is no longer a live controversy for the court to adjudicate. Once all disputed issues are disposed of by agreement inter se, nothing remains for a court to adjudicate upon and determine. Courts do not give gratuitous advice, decide abstract disputes, or speculate on hypothetical matters - they decide real disputes between parties. The settlement of all disputes between parties terminates the litigation and removes the court's power to exercise its appellate jurisdiction over the matter.
Maya JA (with Zondi JA concurring) expressed the view that courts may have a tightly circumscribed discretion to hear moot appeals in exceptional public interest cases involving public law disputes, discrete points of statutory construction not involving detailed factual consideration, where numerous similar cases exist or are anticipated (following R v Secretary of State for the Home Department, Ex Parte Salem). However, such discretion must be exercised with extreme caution. The court also observed (obiter) that: (1) Courts should be slow to attribute superior wisdom to themselves in respect of matters entrusted to other branches of government, particularly regarding allocation of public funds; (2) Legal Aid Board decisions require respect as an institution with specific expertise in balancing competing interests and demands on the public purse; (3) Future applications to LASA for funding would still require applicants to satisfy indigency and "substantial injustice" gateway requirements; (4) Review of LASA decisions by courts should occur only rarely; (5) The Marikana incident was highly unusual and hopefully will not recur, making it distinguishable from future cases; (6) Every case must be decided on its own facts and efforts to compare facts between cases are unlikely to be of assistance.
This case clarifies the application of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 regarding moot appeals. It establishes that where parties have settled all disputes by agreement, there is generally no jurisdiction or discretion for an appeal court to hear the matter, as there is no longer a "lis" or live controversy between the parties. The judgment reaffirms the principle that courts exist to settle concrete controversies and actual infringements of rights, not to pronounce on abstract questions or provide advisory opinions. It also provides important guidance on when courts should exercise their limited discretion to hear academic appeals - only in exceptional circumstances involving discrete legal questions of public importance that do not require detailed factual consideration and where similar cases are anticipated. The judgment is significant for understanding the limits of appellate jurisdiction and the circumstances in which settlement of disputes renders appeals non-justiciable. It also contains important obiter dicta regarding judicial restraint in matters involving allocation of public resources by specialized institutions like Legal Aid South Africa.
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