Panayiotou v Shoprite Checkers (Pty) Ltd

On 7 December 2012, Shoprite Checkers (Pty) Ltd applied to the Gauteng Liquor Board for a liquor store licence for premises at Rivonia Village shopping centre under section 23(1) of the Gauteng Liquor Act 2 of 2003. Shoprite already operated a supermarket in that centre licensed to sell table wine. Mr Andreas Panayiotou objected to the licence application as he operated a liquor store approximately 150 metres away across Rivonia Boulevard in the Mutual Mews shopping centre. On 14 April 2014, the Board refused the application on the basis that it would create barriers to entry, substantially lessen competition, create a harmful monopolistic condition under section 30(2)(d), and have a detrimental effect on Mr Panayiotou's business, thus not being in the public interest under section 30(2)(c) of the Act. Shoprite successfully reviewed this decision in the high court, which set aside the Board's refusal and directed the Board to grant the licence. Mr Panayiotou's application for leave to appeal was refused on 19 August 2015. The Board issued the licence to Shoprite on 28 October 2015, and Shoprite began trading in November 2015. Mr Panayiotou's subsequent interdict application was refused on 17 December 2015. He then applied to the Supreme Court of Appeal for leave to appeal, which was granted on 29 February 2016.

• Whether the appeal should be dismissed under section 16(2)(a) of the Superior Courts Act 10 of 2013 on the ground that the decision sought would have no practical effect or result, given that a licence had already been issued and Shoprite was trading pursuant to it
• Whether the court should exercise its discretion to hear the appeal despite having no practical effect

The appeal was dismissed with costs.

An appeal will be dismissed under section 16(2)(a) of the Superior Courts Act 10 of 2013 where the decision sought will have no practical effect or result. Where a fresh administrative act has been taken subsequent to the decision under appeal (such as the issuing of a licence) and that subsequent act has not been challenged, an appeal against the earlier decision cannot affect the validity of the subsequent administrative act. Even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside. The purpose of section 16(2)(a) is to avoid overburdening appeal courts with matters which are of no practical moment.

While the court may exercise discretion to hear an appeal despite it having no practical effect or result, this would be appropriate where a discrete legal issue of public importance arises that would affect matters in the future and on which adjudication is required. No such issue was present in this case. The court also made an obiter observation about the failure of the parties to disclose to the court that a licence had been issued and that Shoprite was trading, noting that this only came to the court's attention on the morning of the hearing through the judgment refusing the interdict. While Shoprite had mentioned the issuing of the licence in its answering affidavit in the application for condonation and leave to appeal, this was not part of the appeal record and was not mentioned in the heads of argument.

This case is significant for establishing the application of section 16(2)(a) of the Superior Courts Act 10 of 2013 in circumstances where subsequent administrative action has rendered an appeal moot. It reinforces the principle that South African courts will not entertain appeals that can have no practical effect, particularly where a new administrative act (the issuing of the licence) has occurred and has not been challenged. The case demonstrates judicial economy and the courts' reluctance to expend resources on academic disputes. It also confirms the Oudekraal principle that even unlawful administrative acts produce legally valid consequences until set aside, and that a successful appeal against an earlier decision cannot retrospectively invalidate a subsequent unchallenged administrative act.