Public Investment Corporation SOC Ltd and Another v Trencon Construction (Pty) Ltd and Another

The Public Investment Corporation (PIC), acting on behalf of the Government Employees Pension Fund (GEPF), invited tenders in 2019 for the appointment of a building contractor for a shopping centre in Pretoria. Trencon Construction (Pty) Ltd submitted a bid but the tender was awarded to GVK-Siya Zama Building Contractors (Pty) Ltd. Trencon instituted review proceedings in the Gauteng Division of the High Court, Pretoria, seeking to set aside the tender award and for a declaratory order that the GEPF is an organ of state under s 239(b)(ii) of the Constitution. On 2 November 2021 the High Court dismissed the review application. Thereafter, Trencon brought an application under Uniform Rule 42(1)(b) to amend the order on the basis that the court had failed to pronounce on the declaratory relief. The High Court granted an amended order declaring, for purposes of the application only, that the GEPF is an organ of state. PIC and GEPF were granted leave to appeal against this amended order, while Trencon failed to obtain leave to appeal against the dismissal of the review. The appeal before the Supreme Court of Appeal concerned whether a live dispute existed and whether the amended order was appealable.

The appeal was struck from the roll, with each party ordered to pay its own costs.

The case reaffirms the doctrine of functus officio and clarifies the limited scope of Uniform Rule 42 in South African civil procedure. It underscores that appellate courts lack jurisdiction where no live dispute exists and where an appealed order is a nullity. The judgment also reinforces the principle in s 16(2)(a)(i) of the Superior Courts Act that appeals with no practical effect should not be entertained.