Dhlamini v Schumann, Van den Heever & Slabbert Inc and Others

The appellant, Ms Thandi Caroline Dhlamini, was involved in a motor vehicle accident in September 2014 and sustained injuries. She engaged the first respondent, a law firm, to represent her in a claim against the Road Accident Fund (RAF). Her claim was settled for R583 454.90, of which she received approximately R400 000. In 2019, she received a tipoff from a journalist that she and others were victims of a fraudulent scheme by the respondents involving misrepresentation of RAF settlement amounts. She launched an Anton Piller application to secure records pertaining to her and other RAF clients' claims with the intention of instituting a class action. On 24 March 2020, the high court granted an interim Anton Piller order which incorporated a rule nisi returnable on 6 July 2020. The order required the appellant to institute the intended class action within 30 days of execution. The order was executed on 26 March 2020 and 30/28 files were identified and secured. The respondents subsequently tendered delivery of the appellant's file and those of her supporters to her attorneys, and the rest to the Legal Practice Council. The appellant did not institute the class action within 30 days. On 7 July 2020, the high court declared that the order had lapsed and struck the matter from the roll with a costs order against the appellant.

• Whether the appeal was rendered moot by the respondents' tender to release the files
• Whether the appeal should be dismissed for mootness under section 16(2)(a) of the Superior Courts Act 10 of 2013
• Whether exceptional circumstances existed to justify reconsideration of the costs order
• Whether the high court erred in awarding costs when the issue of costs was not before the court
• Whether the interim Anton Piller order lapsed due to non-compliance with the condition requiring institution of legal proceedings within 30 days

1. The appeal is upheld to the extent set out, with each party paying their own costs. 2. The order of the high court is set aside and replaced with: 'The matter is struck from the roll.'

1. An appeal is moot when there is no longer an existing or live controversy, or where the order sought will have no practical effect or result. 2. Once the respondents in an Anton Piller application tender delivery of the documents sought, thereby satisfying the objective of securing and preserving evidence, the appeal against the striking off of the application becomes moot as any order on the merits would have no practical effect. 3. Under section 16(2)(a)(ii) of the Superior Courts Act 10 of 2013, a court may in exceptional circumstances consider the question of costs when determining mootness. 4. Where a costs order is made by a court without the issue of costs being properly before it and without hearing submissions from the parties, this constitutes an improper exercise of discretion and provides exceptional circumstances justifying consideration of the costs order on appeal. 5. The costs referred to in section 16(2)(a)(ii) are the costs incurred in the court which granted the order against which the appeal lies, not the costs of the appeal itself.

The Court noted that the appellant's contention that the interim Anton Piller order remained valid and in operation perpetually was unsustainable. The Court also observed that despite the application having been struck off the roll, the appellant remained able to institute the intended proceedings against the respondents - suggesting that the striking off of the Anton Piller application did not prejudice the appellant's substantive rights to pursue the underlying claim. The Court did not make a definitive finding on whether the 30-day requirement to institute proceedings constituted a 'resolutive condition' that caused the order to lapse, as this issue became academic once mootness was established on other grounds.

This case provides important guidance on the application of the mootness doctrine in South African civil procedure, particularly in the context of Anton Piller orders. It clarifies the circumstances in which a court may consider costs when determining mootness under section 16(2)(a) of the Superior Courts Act 10 of 2013. The judgment emphasizes the importance of proper procedure in awarding costs and confirms that a court cannot exercise its discretion on costs when the issue is not properly before it for determination. The case also illustrates the practical operation of Anton Piller orders and the consequences of tenders made to satisfy the relief sought in such applications. It demonstrates that once the purpose of an Anton Piller order (securing and preserving evidence) has been achieved through alternative means (such as a tender), the application becomes moot. The judgment reinforces that courts should not make orders, particularly costs orders, without hearing submissions from the parties on the relevant issues.