Aptitude Trading Enterprise (Pty) Ltd v The City of Tshwane Metropolitan Municipality and Another

Aptitude Trading Enterprise (Pty) Ltd was an unsuccessful bidder in tender HHS01 2021/2022 for the supply of mobile water tankers to refill water tanks in informal settlements within the City of Tshwane Metropolitan Municipality's area. The successful bidders were appointed on 12 May 2022. On 20 June 2022, Aptitude and others brought an urgent application to review and set aside the tender award. On 26 November 2022, Ferreira AJ granted an order reviewing and setting aside the tender award and related agreements, but suspended the declaration of invalidity until 28 February 2023. The municipality repeatedly sought extensions of the suspension order through Khumalo J (until 31 May 2023), Van Niekerk AJ (until 31 August 2023), and finally Hassim AJ (until 30 November 2023 or until a new tender decision was made, whichever came first). A final decision on a new tender was made on 30 November 2023 and new agreements were concluded on 30 August 2023. Aptitude appealed against Hassim AJ's extension order.

• Whether an appeal becomes moot when the order under appeal has lapsed and the underlying controversy no longer exists
• Whether a court should exercise its discretion to hear a moot appeal on the basis that it raises a discrete legal issue of public importance
• Whether the powers of an appeal court under section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 permit it to decide matters where the decision would have no practical effect or result
• Whether a high court has the power to extend a suspension order that has already lapsed

The appeal is dismissed with no order as to costs.

An appeal is moot and should be dismissed when the order sought will have no practical effect on the parties because there is no longer an existing or live controversy between them. Courts should refrain from making rulings on moot matters as such decisions would amount to advisory opinions on abstract legal questions. While courts have discretion to hear moot appeals in exceptional circumstances, this discretion is exercised only where a discrete legal issue of public importance arises that would affect matters in future and on which adjudication is required. For a court to exercise this discretion, the legal issue must arise from the specific order under appeal, not from earlier orders in the procedural history that were not themselves appealed. The function of courts is to adjudicate existing legal disputes, not to provide legal advice or opinions on hypothetical questions, and scarce judicial resources should not be wasted on academic questions.

The Court observed that the municipality's conduct in repeatedly dragging its feet in implementing Ferreira AJ's order and always seeking extensions of the suspension order at a very late stage just before expiry "should not be countenanced" and constitutes "an abuse of the court processes." This criticism was obiter as it did not form part of the legal basis for the decision but reflected the Court's disapproval of the municipality's litigation tactics. The Court also made an obiter observation that Aptitude was "justified in pursuing the appeal but for its mootness," which informed the decision not to award costs against Aptitude despite dismissal of the appeal.

This case provides important guidance on the doctrine of mootness in South African civil procedure and the limited circumstances in which an appellate court will exercise its discretion to decide a moot appeal. It reinforces that courts will not issue advisory opinions on abstract legal questions where there is no longer a live controversy between parties. The judgment also confirms the principle established in section 16(2)(a)(i) of the Superior Courts Act that appeals should be dismissed where the decision sought will have no practical effect or result. The case demonstrates that merely raising a "discrete legal issue of public importance" is insufficient to justify deciding a moot appeal; the legal issue must actually arise from the order under appeal and must be necessary for determination. It also serves as a warning to organs of state (particularly municipalities) against abusing court processes by repeatedly seeking last-minute extensions of court orders, even though in this instance such conduct did not result in a costs order against the municipality due to the justification for the initial appeal.