Roadmac Surfacing (Pty) Ltd v MEC for the Department of Police, Roads and Transport, Free State Province and Another

The MEC for the Department of Police, Roads and Transport, Free State Province invited bids for a public tender for special road maintenance works. Roadmac Surfacing (Pty) Ltd and Tau Pele Construction (Pty) Ltd were among the bidders, with the tender ultimately awarded to Tau Pele. Dissatisfied, Roadmac sought reasons and then instituted review proceedings, alleging the tender award was not fair, transparent, competitive, or cost-effective. Pending the review, Roadmac obtained an interim interdict preventing further work under the tender. The costs of several interlocutory hearings leading to the interdict were reserved for later determination. The High Court later dismissed the review application but failed to determine the reserved costs. By the time the appeal was heard, the works had been completed, rendering the substantive tender dispute moot. Roadmac nevertheless pursued the appeal on the basis of constitutional invalidity and the unresolved costs issue.

The appeal succeeded in part. The High Court order was varied to include an order that the first respondent pay the wasted costs incurred on 28 January 2022, 10 February 2022, and 24 March 2022, including the costs of two counsel where applicable. The first respondent was also ordered to pay the costs of the appeal and the wasted costs occasioned by the postponement of the appeal on 7 May 2024.

The case clarifies the application of s 16(2) of the Superior Courts Act by reaffirming that appeals on the merits will be dismissed where they are moot, while confirming that unresolved costs issues may constitute exceptional circumstances justifying appellate intervention. It underscores that a failure by a lower court to exercise its discretion on costs undermines finality and may warrant correction on appeal.