Akani Retirement Fund Administrators (Pty) Limited and Others v Moropa and Others

The Chemical Industries National Provident Fund (CINPF), a registered pension fund, terminated its long-standing agreements with NBC Holdings and NBC Fund Administration Services (collectively "NBC") on 21-22 November 2019. On 11 December 2019, CINPF appointed Akani Retirement Fund Administrators (Akani) to provide administration services in place of NBC. Eight members of CINPF (member respondents) and NBC challenged this decision in the High Court, seeking both urgent interdict and review. They alleged lack of consultation and corruption, specifically that three trustees (Dangazele, Sema, and Sithole) received payments from a company related to Akani shortly after Akani's appointment (R40,000 to Dangazele and R25,000 each to Sema and Sithole). The trustees claimed these were legitimate funeral insurance payouts. The High Court dismissed the applications, finding the decision was within the board's exclusive powers and declined to make findings on corruption pending FSCA investigation. The Full Court reversed this decision, finding the decision constituted reviewable administrative action under PAJA and that the payments were bribes. However, by the time of the Full Court hearing, Akani's mandate had been terminated (10 August 2021) and Momentum Retirement Administrators was appointed in its place (1 November 2021). Additionally, Dangazele had passed away, and by the time of the SCA appeal, Sema had also died and Sithole had been removed as trustee.

• Whether the appeal was moot given the termination of Akani's appointment and its replacement with Momentum
• Whether mootness must be raised on affidavit or can be raised in heads of argument
• Whether the Court should exercise its discretion to hear a moot appeal where no discrete legal issue of public importance arises
• The proper application of section 16(2)(a)(i) of the Superior Courts Act 10 of 2013

The appeal was dismissed with costs in terms of section 16(2)(a)(i) of the Superior Courts Act 10 of 2013. The appellants (Akani and CINPF) were ordered to pay costs, including costs of two counsel for the first to eighth respondents and for the ninth and tenth respondents respectively.

When an appeal becomes moot because the relief sought would have no practical effect due to supervening events (such as termination and replacement of a service provider and death or removal of affected parties), the appeal must be dismissed under section 16(2)(a)(i) of the Superior Courts Act unless a discrete legal issue of public importance arises that would affect future matters and requires judicial determination. Mootness may be raised in heads of argument and does not require formal affidavit evidence where the facts are undisputed or arise from subsequent events. Courts do not give advisory opinions on prospective litigation, and the doctrine of ripeness prevents consideration of hypothetical future disputes. An appeal lies against the substantive order of a lower court, not against its reasoning.

The Court observed that: (1) the Full Court misconstrued the import of Capitec Bank Holdings Ltd v Coral Lagoon Investments 194 (Pty) Ltd regarding when mootness must be raised; (2) whatever issues might arise in contemplated future litigation between the parties have not been fully ventilated or finally determined by the Full Court; (3) any future litigation concerning allegations of fraud and bribery would have to proceed to trial, and a trial court with the benefit of witnesses testifying and being cross-examined would not consider itself bound by findings made in motion proceedings; (4) the test for whether powers constitute public administrative action reviewable under PAJA is flexible and applied on a case-by-case basis, so such determinations do not typically constitute discrete legal issues of public importance; (5) parties assumed a risk in persisting with the appeal after being afforded an opportunity to reflect on the mootness issue when raised by the Court.

This case provides important guidance on the doctrine of mootness in South African appellate law. It clarifies: (1) that mootness can be raised in heads of argument and need not always be raised formally in affidavits, particularly where subsequent events have overtaken earlier pleadings; (2) that insistence on affidavits in such circumstances places form above substance and results in unnecessary expense; (3) that courts will not provide advisory opinions on prospective litigation or speculate on future disputes (applying the doctrine of ripeness); (4) that for a court to exercise discretion to hear a moot appeal, a discrete legal issue of public importance that would affect future matters must arise; and (5) that factual findings in motion proceedings will not necessarily bind future trial courts where witnesses testify and are cross-examined. The judgment reinforces that appeals lie against orders, not reasons, and that changed circumstances rendering relief nugatory will result in dismissal on mootness grounds absent exceptional circumstances.