Ethekwini Municipality v Combined Transport Services (Pty) Ltd

The Ethekwini Municipality and the Member of the Executive Council for Transport in KwaZulu-Natal outsourced public bus transport services for the greater Durban area, entering into a seven-year contract with Remant/Alton Land Transport commencing 1 October 2003 until 30 September 2010. In June 2009, Remant terminated the contract effective 30 June 2009 and was unable to provide an alternate operator. On 6 July 2009, the third appellant decided to appoint the eighth respondent (Tansnat Bus Service) as an alternate operator for the remainder of the contract period (fifteen months) without inviting tenders. The first to sixth respondents (competing bus operators) launched an urgent application seeking to review and set aside this decision on the basis that it violated the tender requirements in section 47(1) and (2) of the National Land Transport Transition Act 22 of 2000. The High Court in Pietermaritzburg granted the relief, reviewing and setting aside the decision. The appellants appealed with leave of the trial court. By the time the appeal was heard on 15 November 2010, the contract had expired on 30 September 2010.

• Whether the appeal had become moot due to the expiry of the contract by the time of the appeal hearing
• Whether the court should exercise its discretion under section 21A of the Supreme Court Act 59 of 1959 to dismiss the appeal on the ground that the judgment sought would have no practical effect or result
• Whether there were sufficient grounds to exercise the discretion to hear the appeal despite mootness

The appeal was dismissed with costs.

Where a contract that is the subject of an appeal has expired before the appeal is heard, the question of its validity becomes moot and the appeal will be dismissed under section 21A of the Supreme Court Act 59 of 1959 as the judgment sought would have no practical effect or result. Speculative potential consequences such as possible future damages claims, outstanding payments, or subsidy assessments are insufficient to prevent a finding of mootness. The discretion to hear a moot appeal will only be exercised where there is evidence that similar matters based on similar facts are likely to arise again, presenting a question of law requiring resolution. Courts of appeal decide real disputes and do not give advisory opinions on abstract propositions of law.

The court observed that appellate courts often deal with congested court rolls and do not give advice gratuitously, but rather decide real disputes and do not speculate or theorize. The court noted approvingly the statement from National Coalition for Gay and Lesbian Equality v Minister of Home Affairs that a case is moot and not justiciable if it no longer presents an existing or live controversy. The court also noted, as a factor supporting its decision, that the relevant legislation (the National Land Transport Transition Act 22 of 2000) had been repealed and replaced by new legislation with different wording, making recurrence of the specific legal issue unlikely.

This case is significant for establishing the approach South African appellate courts take to moot appeals under section 21A of the Supreme Court Act 59 of 1959. It reinforces the principle that appellate courts will not decide abstract legal questions or give advisory opinions when the underlying dispute no longer presents a live controversy. The judgment clarifies that speculative potential consequences are insufficient to overcome mootness, and that courts require evidence of likely recurrence of similar issues before exercising discretion to hear moot appeals. The case illustrates judicial efficiency principles and the court's reluctance to expend resources on academic legal questions, particularly in the context of congested court rolls.