Lopes and Another v Executive Mayor of the Knysna Local Municipality & Others

On 16 September 2022, the Council of the Knysna Local Municipality approved a proposal by the Acting Municipal Manager to add temporary support staff positions to the Municipality's organisational structure for political office-bearers (Executive Mayor, Deputy Executive Mayor, and Speaker). The Democratic Alliance opposed the proposal but lost the vote. Contracts were concluded with seven (later discovered to be eight) appointees who commenced employment on 1 October 2022. The Democratic Alliance brought two urgent applications to review and set aside the Council's decisions to create and fill these posts, arguing non-compliance with the Local Government: Municipal Staff Regulations, relevant Guidelines, and municipal Recruitment and Selection Policy. The Democratic Alliance did not seek interim relief initially but requested an undertaking that employees cease working pending the review. On 8 November 2022, the Council resolved to pay employees for October. Employees vacated their positions at the end of November 2022. On 25 November 2022, the high court granted interim relief ordering the Municipality not to pay or proceed with the appointments pending finalisation of both applications. The employees' six-month contracts expired during the proceedings.

• Whether the appeal was moot given that the employees had vacated their positions and the six-month contracts had expired
• Whether the court should exercise its discretion to determine a moot appeal in the interests of justice
• Whether the appeal raised a discrete legal issue of public importance that would influence future matters
• Whether the standard recruitment processes apply to the appointment of support staff for political office-bearers in municipalities
• Whether the court could grant declaratory relief regarding liability for irregular or fruitless and wasteful expenditure

The appeal was dismissed with costs, including costs of two counsel, in terms of s 16(2)(a) of the Superior Courts Act 10 of 2013.

A case is moot where there is no longer a live dispute or controversy between the parties and a court's judgment will have no practical legal effect on them. While mootness is not an absolute bar to determining an appeal, a court will only exercise its discretion to determine a moot appeal where it is in the interests of justice to do so. A prerequisite for exercising this discretion is that any order will have some practical effect either on the parties or others. An added consideration is whether the issue is a discrete legal one of public interest that would affect matters in the future. Courts do not give advisory opinions about future events on notional or hypothetical possibilities that could occur in the future. Issues involving interpretation of regulations, policies and guidelines within the context of specific facts and involving factual disputes do not constitute 'discrete legal issues' warranting determination despite mootness. Where a high court dismisses substantive applications, an appeal lies against the substantive order, not the reasoning, and whether the appellate court agrees with the reasoning on moot issues is inconsequential if the result would remain the same.

The Court noted that the Democratic Alliance was clearly aware of the issue of mootness when it stated in its founding affidavit for the second urgent application that by the time the matter was heard in the ordinary course, 'the appointees would have come and gone, with their pay cheques in their pockets' and the matter 'may be moot and otherwise not in the interests of justice to hear.' The Court also observed that the term 'Minister' used by the Democratic Alliance to refer to a Member of the Executive Council in the Western Cape Province is a constitutional misnomer, as sections 125(1) and (2) of the Constitution make clear that executive authority in a province is vested in the Premier who exercises it with Members of the Executive Council, not Ministers. The Court noted without deciding that even if it had power to grant relief regarding irregular expenditure, it would not be competent to do so on mere supposition that the Municipality intended to undertake an investigation under s 32 of the LGMFMA without evidence of such intention.

This case reinforces the South African law on mootness in appeals, particularly in the local government context. It clarifies the principles governing when courts will exercise discretion to determine moot appeals, emphasising that: (1) courts do not give advisory opinions on hypothetical future events; (2) a 'discrete legal issue' must be truly discrete and not involve factual disputes requiring application to specific circumstances; (3) the distinction between appealing an order versus appealing reasoning; and (4) courts will not make hypothetical decisions regarding potential future investigations under the Local Government: Municipal Finance Management Act. The judgment distinguishes cases like Nambiti Technologies and provides guidance on when mootness will be an absolute bar to appeal despite arguable issues of public interest. It also confirms the doctrine of ripeness and reinforces that courts deal with situations that have crystallised, not prospective or hypothetical ones.