Luvthis Trading & Investments (Pty) Ltd v City of Cape Town and Another

The City of Cape Town advertised a tender for the repair and maintenance of the external façade and associated external works to its buildings under tender number 345Q2018/19. The tender was divided into four areas and had a duration of 36 months. Luvthis Trading & Investments (Pty) Ltd (the Applicant) tendered for all four areas but was unsuccessful. On 15 June 2020, the City's Bids Adjudication Committee awarded the tender to AR Projects & Developments (Pty) Ltd (the Second Respondent). The Applicant lodged an internal appeal in terms of section 62 of the Local Government: Municipal Systems Act, which was dismissed on 19 January 2021. The Applicant then launched review proceedings in terms of section 6 of the Promotion of Administrative Justice Act (PAJA), raising multiple grounds of review including non-compliance with mandatory tender conditions, procedural unfairness, and irrationality. The tender contract expired on 30 June 2023 before the review could be heard. The City raised a rule 6(5)(d)(iii) notice arguing the application had become moot.

• Whether the review application had become moot because the tender contract expired on 30 June 2023
• Whether it was in the interests of justice to determine the merits of the review despite mootness
• Whether the application raised discrete legal issues of public importance warranting determination despite lack of practical effect

The application is dismissed with costs, including the costs of two counsel on the 'C' scale.

A review application is moot when the court's ruling will have no direct practical effect. Courts should not entertain moot matters even where constitutional issues are implicated if the decision is case-specific and raises no discrete legal question of public importance that would affect future matters. A court is not compelled to review and set aside an unlawful administrative act where doing so will have no practical effect or result.

The court noted that calling upon a court to 'castigate' the City for acting improperly when there is no discrete legal point of interest does not constitute a ground for determining a matter which is moot. The court also observed that the Applicant failed to explain why no action was taken to have the matter determined while it was still live.

This case reaffirms established South African jurisprudence on mootness in procurement review applications. It confirms that even in tender disputes where constitutional principles of transparency, fairness, and legality are implicated, courts will not entertain reviews where the underlying contract has expired by effluxion of time and no discrete point of public importance arises. It underscores the principle that judicial resources should not be expended on abstract or academic questions.