Deutsches Altersheim Zu Pretoria v Roland Heinrich Dohmen

On 5 March 2007, the appellant, a home for the aged, concluded a written agreement with Mr Roland Heinrich Dohmen to provide him with board, lodging, and care in exchange for monthly payment of R3,420. Mr Dohmen's son (second respondent) and daughter (third respondent) signed as guarantors. On 21 September 2009, the appellant gave Mr Dohmen notice to vacate by 31 October 2009. When Mr Dohmen refused to vacate, the appellant commenced eviction proceedings in the Pretoria Magistrates' Court on 5 March 2010 under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The magistrates' court granted an eviction order on 18 March 2011, to take effect by 30 April 2011, with costs on attorney and own client scale. Mr Dohmen appealed to the North Gauteng High Court, which allowed his appeal with costs. The appellant obtained leave to appeal to the Supreme Court of Appeal. The appeal was set down for 19 February 2015. On 27 January 2015, the respondents filed a supplementary practice note indicating that Mr Dohmen had died on 12 January 2015. The appellant initially persisted with the appeal, but eventually conceded it had become academic. The only remaining issue before the Supreme Court of Appeal concerned costs.

• Whether the Supreme Court of Appeal should hear an appeal that has become moot due to the death of the first respondent
• What costs order should be made where an appeal becomes academic through no fault of the appellant
• The principles governing costs orders when appeals are struck from the roll

The appeal was struck off the roll. The appellant was ordered to pay two thirds of the respondents' costs.

Where a party dies and the agreement between parties provides for automatic termination upon death, the underlying lis terminates and the appeal becomes moot. A court cannot exercise appellate jurisdiction where there is no longer any dispute between the parties. Such appeals must be struck from the roll as courts exist to settle concrete controversies, not to pronounce on abstract questions. Where an appeal becomes academic, the court retains discretion to make a just order as to costs, having regard to factors including: who was dominus litis; whether the party persisted with the appeal after it became moot; whether the appeal was properly brought initially; and the conduct of both parties in relation to the continuation or termination of proceedings.

Ponnan JA made observations deploring the intransigence shown by both parties when "the writing was clearly on the wall," noting that their refusal to adopt pragmatism further inflated costs already incurred. The court referenced with approval the dictum in Mashaoane v Mashaoane 1962 (2) SA 684 (D) that when a case has effectively been settled apart from costs, it is undesirable to permit the costs question to become an occasion for incurring further costs and occupying court time. The court emphasized the maxim interest rei publicae ut sit finis litium (it is in the public interest that there be an end to litigation). The court also observed that practitioners do not seem to make themselves acquainted with important decisions of the court on mootness, echoing criticism by Innes CJ in Stevenson v MacIver 1922 AD 413.

This case provides important guidance on the principles governing moot appeals in South African law and the exercise of judicial discretion in awarding costs where appeals become academic. It reaffirms the longstanding principle that courts will not pronounce on abstract questions where no live controversy exists. The judgment also demonstrates the court's approach to costs allocation where both parties share some responsibility for unnecessarily prolonging proceedings, and emphasizes the public interest in avoiding wasteful litigation once the underlying dispute has been resolved. The case serves as a reminder to practitioners of the importance of pragmatism and cooperation when circumstances render litigation futile, echoing the maxim interest rei publicae ut sit finis litium (it is in the public interest that there be an end to litigation).