Collins Letsoalo and Another v Mothusi Lukhele

On 3 August 2021, the Road Accident Fund (RAF) entered into a fixed-term employment contract with Mr Mothusi Lukhele, appointing him as a Senior IT Advisor for 36 months, commencing on 4 August 2021 and terminating on 31 July 2024. On 5 November 2021, the RAF terminated Lukhele's employment. Lukhele brought an urgent application to interdict the termination. On 23 November 2021, Sardiwalla J granted an order in the absence of the applicants, suspending the termination pending a review application. The RAF and Mr Collins Letsoalo then launched an application under rule 6(12)(c) of the Uniform Rules of Court to reconsider and set aside Sardiwalla J's order. On 1 August 2022, Ceylon AJ dismissed this application, finding the applicants were in wilful default and should have proceeded by way of rescission application. The applicants sought leave to appeal, which was refused by the high court and on petition to the Supreme Court of Appeal. The applicants then applied for reconsideration under s 17(2)(f) of the Superior Courts Act. By the time of the reconsideration hearing, the fixed-term employment contract had expired on 31 July 2024.

• Whether the application for reconsideration should be granted in circumstances where the underlying employment contract had expired by effluxion of time
• Whether mootness precludes the Court from granting leave to appeal where the decision sought will have no practical effect
• Whether the matter involves constitutional rights of such importance as to constitute a compelling reason to hear the appeal despite mootness
• Whether the threshold of 'grave failure of justice' under s 17(2)(f) of the Superior Courts Act is met in circumstances of mootness

The application for reconsideration under s 17(2)(f) of the Superior Courts Act 10 of 2013 was dismissed with costs.

A matter becomes moot and non-justiciable when it no longer presents an existing or live controversy at the time it comes before the court. Where a fixed-term employment contract expires by effluxion of time pending appeal proceedings, and the relief sought was interim in nature designed to preserve the status quo pendente lite, the appeal becomes academic as no practical effect can attach to any order that could be made. In terms of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013, an appeal may be dismissed where the issues are of such a nature that the decision sought will have no practical effect or result. The threshold of 'grave failure of justice' required for reconsideration under s 17(2)(f) of the Superior Courts Act is not met in circumstances where the underlying dispute has become moot.

The Court indicated that, for the purposes of the application, it was prepared to accept without making any definitive finding that the applicants' submissions regarding the merits of the high court's decision on service, wilful default, and the applicability of Rule 6(12)(c) may well have justified a referral at the time the matter was first enrolled. This suggests that had the contract not expired, there may have been merit in considering the substantive grounds of appeal. The Court also noted that the judicial process is not well served by pronouncing on issues where the sought outcome can no longer provide tangible relief to the parties, reflecting broader policy considerations about judicial economy and the proper role of courts.

This case reinforces the fundamental principle of justiciability in South African law: courts will not adjudicate moot disputes that can no longer provide practical relief to the parties. It clarifies the application of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 in the context of employment contracts of fixed duration that expire pending appeal. The judgment confirms that the high threshold of 'grave failure of justice' required under s 17(2)(f) for reconsideration of a refusal of leave to appeal is not met where the underlying dispute has become moot. It also demonstrates that the invocation of constitutional rights (such as s 34 access to courts) is insufficient to overcome mootness where no practical effect can result from the decision. The case is significant for employment law practitioners in understanding the practical limitations of litigation where fixed-term contracts expire during the course of proceedings.