Solidariteit Helpende Hand NPC and Others v Minister of Cooperative Governance and Traditional Affairs

During the COVID-19 pandemic in March 2020, the Minister of Cooperative Governance and Traditional Affairs declared a national state of disaster under the Disaster Management Act 57 of 2002 and promulgated a series of regulations to combat the pandemic. These regulations imposed various restrictions including national lockdown, movement restrictions, health protocols, and restrictions on public gatherings including religious gatherings. In January 2021, three appellants (Solidariteit Helpende Hand NPC, South African National Christian Forum, and Muslim Lawyers Association) launched separate applications challenging regulations published in December 2020 and January 2021 that prohibited faith-based gatherings. The December regulations prohibited such gatherings for two weeks, while the January regulations imposed an indefinite ban. Before the matter was heard in the high court, the Minister amended the regulations on 1 February 2021, lifting the ban on religious gatherings subject to restrictions on attendees and health protocols. The matter was consolidated and heard by the Gauteng Division of the High Court in November 2021. By the time the appeal was heard, all COVID-19 regulations had been repealed and the national state of disaster had been terminated.

• Whether the matter was moot given that the impugned regulations had been repealed before the high court hearing
• Whether the high court had jurisdiction to determine a matter that was moot
• Whether this Court should exercise its discretion to hear a moot appeal in the interests of justice
• Whether subordinate legislation made by the executive constitutes administrative action under PAJA (raised in the high court but not determined on appeal)

The appeal was dismissed with no order as to costs (in accordance with the Biowatch principle).

A court of first instance has no jurisdiction to determine a matter that has become moot before judgment - only appeal courts have discretion under s 16(2)(a)(i) of the Superior Courts Act to hear moot matters where the interests of justice require. A matter is moot when there is no longer a live controversy between the parties and the court's judgment would have no practical effect but would merely amount to an advisory opinion on abstract, academic or hypothetical questions. Where impugned regulations have been repealed before the matter is heard by the court of first instance, there is nothing to set aside and no live issue for adjudication. The discretion to hear moot matters will not be exercised where there is no discrete legal issue of public importance with practical effect, and where a decision would be of academic interest only with no effect on the parties or on future similar situations.

The Court noted (without deciding, as it was unnecessary given the mootness finding) that: (1) the high court had held that subordinate legislation made by the executive constitutes administrative action under PAJA, but this issue became irrelevant once mootness was determined; (2) if the appellants had sought to challenge the regulations on behalf of persons arrested for breaching them (under s 38(c) of the Constitution), the National Prosecution Authority and possibly the Minister of Justice would have been necessary parties; (3) any claim for damages arising from arrests under the regulations would face the immediate question of whether the arrest or prosecution could be held wrongful given that the regulations were enforceable at the material time until either repealed or set aside; (4) any decision on the validity of COVID-19 regulations would likely have no effect on future pandemic regulations as those would be fact-specific to the circumstances present at that relevant time.

This case clarifies the application of the mootness doctrine in South African law, particularly in the context of challenges to emergency regulations. It reinforces the distinction between the jurisdiction of courts of first instance and appeal courts regarding moot matters: while appeal courts have discretion under s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 to hear moot appeals where the interests of justice require, courts of first instance have no jurisdiction to determine matters that have become moot before judgment. The case provides important guidance on when courts will decline to exercise discretion to hear moot matters, emphasizing that there must be a discrete legal issue of public importance with practical effect, not merely academic interest. It also illustrates the principle that constitutional challenges to repealed legislation will generally not be entertained unless there are compelling reasons in the interests of justice. The judgment is significant in the context of COVID-19 litigation, establishing that challenges to pandemic-era regulations that have since been repealed will generally be dismissed as moot.