Eye of Africa Developments (Proprietary) Limited v Shear, Caroline Nicola and others

This was an appeal to the Supreme Court of Appeal concerning a matter that originated from the South Gauteng High Court (Windell AJ). The case involved Eye of Africa Developments, which had previously been subject to an environmental authorisation restricting irrigation of a golf-course to grey-water produced on the residential estate. At the commencement of proceedings before the SCA, counsel for the appellant admitted that there was no longer any draw-down on underground water as there was presently sufficient grey-water to irrigate the golf-course. Counsel also conceded that the environmental authorisation remained in place in terms of a previous judgment of the SCA in Eye of Africa Developments v Shear 2012 (2) SA 186 (SCA).

• Whether the appeal should be dismissed under section 21A of the Supreme Court Act 59 of 1959 on the basis that the judgment or order sought would have no practical effect or result
• Whether the costs of two counsel were justified in the circumstances

The appeal was dismissed on the basis of section 21A of the Supreme Court Act 59 of 1959, on the ground that the judgment or order sought would have no practical effect. The high court order remained extant. The appellant was ordered to pay the first respondent's costs, including the costs of two counsel.

An appeal will be dismissed under section 21A of the Supreme Court Act 59 of 1959 where the judgment or order sought will have no practical effect or result. Where an appellant concedes that the factual circumstances underlying the appeal have changed such that the relief sought has become academic (in this case, no draw-down on underground water was occurring and the environmental authorisation remained in force), the appeal becomes moot and must be dismissed. When such a concession is only made at the commencement of proceedings after questioning by the court, and where the issues raised in heads of argument were complex and involved, the court may award costs of two counsel against the unsuccessful appellant.

The court observed that the concession regarding mootness was only made at the commencement of proceedings before the SCA and after questions were put to counsel for the appellant. The court noted that the issues raised in the heads of argument were involved, suggesting that the appellant could and should have made the concession earlier, thereby avoiding unnecessary preparation and the costs associated with briefing two counsel for the respondent.

This case illustrates the application of section 21A of the Supreme Court Act 59 of 1959, which allows courts to dismiss appeals where any judgment or order would have no practical effect or result. It demonstrates the principle that courts will not entertain moot appeals where the underlying factual circumstances have changed such that relief sought has become academic. The case also confirms that where an environmental authorisation remains in force and the factual basis for challenging it no longer exists, an appeal becomes moot. The case further illustrates the court's discretion to award costs of two counsel where complex issues were raised in heads of argument, even where concessions are ultimately made.