Mgwenya NO v Kruger

The first respondent, Vernon Xavier Kruger, was a pastor in the service of the fourth appellant, the Apostolic Faith Mission Church of South Africa (AFM). In 2012, the church instituted disciplinary proceedings and found him guilty of misconduct on four charges, terminating his pastoral status with immediate effect from 23 January 2013. Kruger launched an application in the North West Division of the High Court, Mahikeng to review and set aside the disciplinary committee's ruling. On 11 June 2015, Gutta J dismissed the application with costs, but leave to appeal to the full court was granted. On 9 June 2016, the full court upheld Kruger's appeal and reviewed and set aside the disciplinary committee's ruling. The church and three disciplinary committee members noted an appeal to the Supreme Court of Appeal with special leave. However, on 27 January 2017, before the hearing of the appeal, the first respondent passed away. His son, Warren Vernon Kruger, was substituted as executor of the estate.

• Whether the appeal would have any practical effect or result in light of the death of the first respondent, as contemplated in section 16(2)(a)(i) of the Superior Courts Act 10 of 2013
• Whether exceptional circumstances existed justifying consideration of the matter with reference to the issue of costs under section 16(2)(a)(ii) of the Superior Courts Act 10 of 2013
• Whether costs should follow the result in circumstances where the appeal became moot due to the death of a party

The appeal was dismissed with costs.

Where a respondent in an appeal dies before the hearing, and there are no live issues remaining between the parties as a result, the appeal will have no practical effect or result and must be dismissed in terms of section 16(2)(a)(i) of the Superior Courts Act 10 of 2013. Section 16(2)(a)(ii) provides that, save under exceptional circumstances, the question of practical effect must be determined without reference to considerations of costs. 'Exceptional circumstances' for purposes of section 16(2)(a)(ii) means something out of the ordinary and of an unusual nature, something excepted in the sense that the general rule does not apply to it, something uncommon, rare or different. Courts must take a strict rather than liberal view of applications for exemption when interpreting the phrase 'exceptional circumstances'. The mere fact that substantial costs have been incurred does not constitute exceptional circumstances. The nature and extent of the proceedings below, including the complexity of the matter, length of trial, volume of evidence and appeal record, are relevant considerations in determining whether exceptional circumstances exist.

The court observed that the appellants were the authors of their own misfortune, having persisted with the appeal after being notified on 21 June 2017 of the court's concern that the hearing may not render a judgment or order with practical effect. This resulted in the estate of the first respondent unnecessarily incurring costs in opposing the appeal. The court applied the principle from Norwich Union Life Insurance Society v Dobbs 1912 AD 395 at 399 that when a statute directs that a fixed rule shall only be departed from under exceptional circumstances, the court will best give effect to legislative intention by taking a strict rather than liberal view of applications for exemption and carefully examining any special circumstances relied upon.

This case clarifies the application of section 16(2)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 regarding when appeals may be dismissed for lack of practical effect, particularly in circumstances where a party dies during the appeal process. It establishes a strict interpretation of 'exceptional circumstances' required to justify consideration of costs when determining whether an appeal has practical effect. The judgment reinforces the principle that mootness resulting from the death of a party will generally render an appeal without practical effect, and that considerations of costs alone, even if substantial, do not constitute exceptional circumstances justifying departure from this rule. The case also demonstrates that parties who persist with appeals after being warned about mootness issues may be held liable for costs incurred.