Minister of Justice and Correctional Services and Others v Wilhelm Pretorius and Others

The three respondents (Wilhelm Pretorius, Dr Johan Pretorius, and Dr Johan (Lets) Pretorius) were long-term prisoners serving sentences of between 20 and 30 years at the Zonderwater Correctional Centre. All three were registered students at tertiary institutions. While they had access to computers in the prison's computer room between 7:00am and 2:00pm, they were not permitted to use their personal computers in their cells during the lengthy hours they were locked up. They challenged the Policy Procedures Directorate Formal Education (the policy) that prohibited the use of personal computers in cells. On 14 May 2018, the High Court granted an order in their favour, declaring the policy unfair discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). The appellants appealed to the full court, which dismissed the appeal on 21 January 2022. By the end of March 2022, all three respondents were released on parole, rendering the appeal moot. Despite being informed of the release, the appellants pursued the appeal to the Supreme Court of Appeal.

• Whether an appeal should be dismissed on grounds of mootness pursuant to section 16(2)(a) of the Superior Courts Act 10 of 2013
• Whether, irrespective of mootness, the interests of justice require a decision on the appeal
• Whether the High Court judge who heard the matter had jurisdiction to entertain claims under the Equality Act without being designated as a presiding officer of the equality court
• Whether the policy prohibiting use of personal computers in cells constitutes unfair discrimination

The appeal was dismissed with costs, including those of two counsel.

The binding legal principles established are: (1) Under section 16(2)(a) of the Superior Courts Act 10 of 2013, an appeal may be dismissed when the issues are such that the decision would have no practical effect or result, but the court retains discretion to decide the appeal if the interests of justice require it. (2) A High Court judge must be specifically designated as a presiding officer of the equality court in terms of section 16(1) of the Equality Act before he or she has jurisdiction to entertain claims brought under that Act. Designation is a ministerial act requiring consultation with the Judge President. (3) Without such designation, any order made under the Equality Act is ultra vires and must be set aside. (4) Where a contemporaneous judgment in related proceedings adequately addresses the same legal issues and provides appropriate relief extending to the parties in a moot appeal, the interests of justice do not require a decision on the moot appeal.

The Court made obiter observations regarding costs: While agreeing that the appellants should bear the respondents' costs of the appeal (presumably because they pursued a moot appeal despite knowing of the respondents' release), the Court rejected the submission that this was one of the 'rare' occasions warranting a departure from the ordinary rule that costs should be awarded on a party-and-party basis rather than attorney-and-client scale. The Court did not elaborate on why the appellants' conduct (persisting with the appeal 18 months after the respondents' release and failing to bring this to the Court's attention prior to the granting of leave) did not warrant punitive costs, merely noting this was not sufficiently exceptional to justify deviation from the ordinary costs rule.

This case is significant for several reasons: (1) It demonstrates the application of section 16(2)(a) of the Superior Courts Act 10 of 2013 regarding mootness in appeals and the discretion to decide moot appeals in the interests of justice. (2) It confirms the jurisdictional requirement that High Court judges must be specifically designated as presiding officers of equality courts to entertain claims under the Equality Act, emphasizing that designation is a ministerial act requiring consultation with the Judge President. (3) When read together with the Ntuli judgment (which was heard simultaneously), it establishes important principles regarding prisoners' rights to education and the use of personal computers in cells for study purposes. (4) It illustrates judicial efficiency through the consolidation of related appeals addressing the same legal issues. (5) It reinforces that mootness does not automatically result in dismissal where the interests of justice require a decision, but also demonstrates judicial economy in declining to decide moot matters where the issues have been adequately addressed in related cases.