Roadmac Surfacing (Pty) Ltd v MEC for the Department of Police, Roads and Transport, Free State Province and Another

Roadmac Surfacing (Pty) Ltd (the appellant) and Tau Pele Construction (Pty) Ltd (the second respondent), together with other bidders, submitted bids for a tender (Tender No: PR&T18/2021/22) for special maintenance work on Route P44/1&2 between Deneysville and Jim Fouche in the Free State Province. The second respondent was awarded the tender. Roadmac, dissatisfied with the outcome, sought reasons from the first respondent (MEC for the Department of Police, Roads and Transport, Free State Province) and subsequently launched review proceedings, alleging the tender award was not fair, transparent, competitive or cost-effective. Pending the review, Roadmac applied for and obtained an interim interdict on 28 March 2022, preventing the first respondent from giving further instructions and the second respondent from commencing further work. The interdict order (Daffue J order) reserved costs for dates 28 January 2022, 10 February 2022, and 24 March 2022 for later determination. The review application was heard on 7 November 2022 and dismissed on 14 November 2022. The high court granted leave to appeal on 28 April 2023 but failed to deal with the reserved costs issue. The appeal was scheduled for 7 May 2024, but on that date the first respondent produced a Certificate of Completion of Works dated 28 September 2023, showing the works had been completed, raising the issue of mootness. The appeal was postponed and subsequently heard on 13 September 2024.

• Whether the appeal would have any practical effect or result in light of the completion of the tender works
• Whether exceptional circumstances existed to justify entertaining an appeal that would otherwise be moot under s 16(2)(a) of the Superior Courts Act 10 of 2013
• Whether a court's failure to exercise judicial discretion regarding reserved costs constitutes exceptional circumstances
• Whether the high court's failure to determine the reserved costs amounted to a misdirection
• The entitlement to costs where the high court failed to exercise its discretion regarding costs reserved in an earlier order

1. The appeal succeeds in part. 2. The order of the Free State Division of the High Court, Bloemfontein, is varied by adding paragraph 2 as follows: '(2) The first respondent is ordered to pay the wasted costs occasioned on 28 January 2022, 10 February 2022, and 24 March 2022, which costs shall include the costs of two counsel, where so employed.' 3. The first respondent is ordered to pay the costs of the appeal and wasted costs occasioned by the adjournment of the appeal on 7 May 2024, which costs shall include the costs of two counsel, where so employed.

1. A failure by a court to exercise its judicial discretion, particularly regarding the determination of reserved costs, constitutes at least usually an exceptional circumstance within the meaning of s 16(2)(a)(ii) of the Superior Courts Act 10 of 2013, warranting appellate interference even where the substantive appeal would otherwise be moot. 2. Where a court has reserved costs for later determination and subsequently fails to deal with those costs, the matter has not reached finality, and an appeal court may interfere to resolve this outstanding issue in the interests of justice. 3. The costs referred to in s 16(2)(a)(ii) of the Superior Courts Act are the costs incurred in the court below, not the costs in the appellate court. 4. Courts will not decide matters which are purely academic and will have no practical effect, nor will they provide advisory opinions on abstract propositions of law, even where constitutional declarations are sought under s 172 of the Constitution.

The Court made critical observations about the conduct of both the first and second respondents in failing to disclose the existence of the completion certificate dated September 2023 until the hearing date of 7 May 2024, despite the first respondent having filed heads of argument in October 2023. Hughes JA observed that the first respondent 'failed to take this Court into its confidence' and noted that 'the second respondent is not an innocent party in this conduct either, as they were signatories to the completion certificate.' This observation underscores the importance of candor and good faith in dealings with courts and opposing parties, particularly where developments may affect the justiciability of an appeal. The Court also observed that Roadmac's request for a constitutional declaration of invalidity appeared to be seeking advice from the Court 'to bolster a further civil suit,' which is impermissible.

This case is significant for clarifying the application of s 16(2)(a) of the Superior Courts Act 10 of 2013 regarding moot appeals. It establishes that while appeals on substantive matters may be dismissed as moot when the relief sought has no practical effect, exceptional circumstances exist where a court below has failed to exercise its judicial discretion, particularly concerning costs determinations. The judgment reinforces the principle from Naylor v Jansen that a failure to exercise judicial discretion will (at least usually) constitute exceptional circumstances justifying appellate review despite mootness. It also emphasizes the importance of candor to courts and opposing parties, particularly concerning developments that may render appeals moot. The case demonstrates that costs determinations are important issues affecting parties' interests that require resolution for finality and justice. It further clarifies that the costs referred to in s 16(2)(a)(ii) are costs incurred in the court below, not appellate costs.