Public Investment Corporation SOC Ltd and Another v Trencon Construction (Pty) Ltd and Another

Trencon Construction (Pty) Ltd submitted a bid for a shopping centre tender advertised by the Public Investment Corporation (PIC) on behalf of the Government Employees Pension Fund (GEPF) in November 2019. The tender was awarded to GVK-Siya Zama Building Contractors (Pty) Ltd. Trencon launched a review application in the High Court seeking to set aside the tender award and seeking a declaratory order that the GEPF was an organ of state in terms of s 239(b)(ii) of the Constitution. On 2 November 2021, the high court dismissed Trencon's application. On 8 November 2021, Trencon filed a notice in terms of rule 42(1)(b) seeking to amend the high court's order to include the declaratory relief. On 22 November 2021, the high court granted an amended order declaring that the GEPF was an organ of state "for purposes of the present application". The PIC and GEPF applied for and were granted leave to appeal this amended order. Trencon's application for leave to cross-appeal was dismissed.

• Whether a court has jurisdiction to amend its order after dismissing an application and becoming functus officio
• Whether a live dispute or lis existed between the parties upon which the Supreme Court of Appeal could exercise its appellate jurisdiction
• Whether the appeal would have any practical effect or result as contemplated in s 16(2)(a)(i) of the Superior Courts Act 10 of 2013
• The scope and application of rule 42 of the Uniform Rules of Court
• Whether an appellate court has discretion to entertain an appeal when the judgment appealed against is a nullity

The matter was struck from the roll with each party to pay its own costs.

Once a court has pronounced a final judgment or order, it becomes functus officio and has no authority to correct, alter or supplement it, except in the limited circumstances contemplated by rule 42 (clarification of ambiguity, correction of clerical errors, or supplementation on accessory matters such as costs). An order made by a court without jurisdiction is a nullity. When no live dispute or lis exists between parties because the final word has been spoken on the matter and it is not susceptible to alteration on appeal, an appellate court has no jurisdiction or discretion to entertain the appeal. An appellate court will not exercise its jurisdiction when any judgment on appeal would have no practical effect or result as contemplated in s 16(2)(a)(i) of the Superior Courts Act 10 of 2013.

The Court noted that even if it had jurisdiction, the declaratory order was expressly limited to "the present application" and therefore would have no broader application beyond the specific review application between the parties. This meant it would not extend to all tender processes conducted by the GEPF outside the confines of this particular matter. The Court also observed that both parties had persisted with the appeal after the Registrar's note drew attention to the preliminary jurisdictional issues, and that neither party was blameless in this regard, which justified the costs order that each party pay its own costs.

This case reinforces fundamental principles of South African civil procedure regarding the functus officio doctrine and the limits of appellate jurisdiction. It clarifies that: (1) courts have no jurisdiction to substantively amend or supplement final orders once made, except in the narrow circumstances prescribed by rule 42; (2) orders made without jurisdiction are nullities; (3) appellate courts cannot and should not exercise jurisdiction when no live dispute exists between parties; (4) the failure to properly prosecute an appeal (such as by petitioning the SCA for leave to appeal) results in finality that cannot be circumvented; and (5) appeals that will have no practical effect may be dismissed under s 16(2)(a)(i) of the Superior Courts Act. The case demonstrates the importance of proper procedural compliance and the courts' commitment to finality in litigation.