Tecmed Africa (Pty) Ltd v The Minister of Health and Another

Tecmed Africa (Pty) Ltd imported a second-hand Varian Clinac 2100 C linear accelerator in 2005, later refurbishing it and reclassifying it as a Clinac 2000 CR. The Minister of Health had classified linear accelerators as Group III hazardous substances under the Hazardous Substances Act 15 of 1973, requiring licences for importation, sale, installation and use. Tecmed sold and delivered the refurbished machine to Cancare (Pty) Ltd, which applied for a licence to use it, initially describing it incorrectly as a new machine. A licence was issued on that basis, but during an inspection it was discovered that the machine was old and refurbished. The Department of Health then refused to license its use and imposed an embargo on Tecmed’s licences, alleging illegal importation and false information. Tecmed unsuccessfully appealed administratively, then launched review proceedings in the High Court. Claassen J upheld Tecmed’s challenges, but on appeal the Full Court overturned the decision relating to the licence refusal, finding the importation unlawful. Tecmed appealed to the Supreme Court of Appeal. By the time of the appeal, the machine had been removed and replaced, and the Minister contended that the appeal would have no practical effect.

The appeal was dismissed in terms of s 21A(1) of the Supreme Court Act. Tecmed was ordered to pay the costs of the appeal incurred after 14 February 2012, including the costs of two counsel.

The case is significant for reaffirming the principle that South African appellate courts will not entertain appeals that are moot or academic and that have no practical effect. It provides authoritative guidance on the application of s 21A(1) of the Supreme Court Act and underscores that courts do not give advisory opinions or decide cases merely to influence potential future litigation.