Khamusi Shonisani Mudau-Mamode v Vhuhwaho Denge

On 11 November 2019, the appellant, Mr Khamusi Shonisani Mudau-Mamode, launched an eviction application in the Regional Court, Limpopo (Sibasa) against the respondent, Mr Vhuhwavho Denge, in respect of Erf 760 Tshisaulu (also known as Tshisaulu Maternity home). The respondent opposed the application. On 3 October 2022, the matter served as an opposed motion. At the inception of the hearing, the appellant applied in terms of Magistrates' Court Rule 55(1)(k) for the referral of the matter for the hearing of oral evidence on the basis that there was a dispute of fact. The regional court dismissed that application with costs and thereafter adjudicated the eviction application on the papers, dismissing it with costs. Both judgments were delivered ex tempore. On 15 March 2023, the appellant appealed only the order refusing to refer the matter for oral evidence; he did not appeal the dismissal of the eviction application. The High Court (Limpopo Division, Thohoyandou, Phatudi J and Nemutandani AJ) upheld the regional court's ruling and dismissed the appeal with costs. The appellant then sought special leave to appeal to the Supreme Court of Appeal.

• Whether the regional court misdirected itself by refusing, in terms of Magistrates' Court Rule 55(1)(k), to refer the matter for the hearing of oral evidence.
• Whether the high court misdirected itself in upholding the regional court's refusal to refer the matter for oral evidence.
• Whether the appeal is moot because the underlying eviction order, which was finally dismissed, was not itself appealed, rendering any resolution of the oral-evidence issue purposeless.

The appeal is struck off the roll with no order as to costs.

An appeal is moot and must be struck from the roll if its resolution will have no practical effect. Where the final order dismissing the main application has not been appealed, an appeal solely against a prior procedural order refusing referral for oral evidence under Magistrates' Court Rule 55(1)(k) serves no practical purpose and does not warrant the granting of special leave in the absence of exceptional circumstances. Where an issue decisive of the appeal is raised by the court without the benefit of argument from either party, fairness may require that no order as to costs be made.

The court observed that it is unnecessary to decide the merits of whether the regional court and high court correctly exercised their discretion under Rule 55(1)(k) once the appeal is found to be moot. The court also noted its powers under section 19(d) of the Superior Courts Act 10 of 2013 to confirm, amend or set aside the decision which is the subject of the appeal, but emphasised that such powers are limited to the specific decision under appeal and cannot alter the practical reality that the unappealed eviction order remains final.

The case reaffirms the principle that appellate courts, including the Supreme Court of Appeal, will not entertain appeals that are moot and where the resolution will have no practical effect. It illustrates that an appeal against an interlocutory or procedural ruling becomes academic where the final order disposing of the main application has not been challenged. The judgment also signals that special leave to appeal will not be granted in the absence of exceptional circumstances when an appeal is moot. Furthermore, it confirms that where a court determines an appeal on a point not addressed by either party, it may depart from the general rule that costs follow the result and make no order as to costs.