South African Forestry Company SOC Ltd v Collins Sebola Financial Services (Pty) Ltd and Others

SAFCOL, a State Owned Company and the third largest forestry company in South Africa, issued a tender (RFB 011/2019) for security services, including forest guards, for its regions and business units. Three bids were deemed compliant: Collins Sebola Financial Services (Pty) Ltd, Phepha MV Security Services, and Puthadichaba Trading Enterprise CC. Instead of awarding the entire contract to a single service provider, SAFCOL split the award between Collins Sebola (R18 285 386.27) and Phepha (R62 193 884.32). Both contracts, for a three-year period, were implemented and were set to expire on 31 March 2023. Collins Sebola, dissatisfied with not receiving the entire tender, applied to the High Court to review and set aside the award to Phepha and to have those portions of the tender awarded to it instead. The High Court granted the relief sought by Collins Sebola. SAFCOL's application for leave to appeal was refused by the High Court, but leave was granted by the Supreme Court of Appeal.

• Whether the appeal had any practical effect or result given that the contracts would expire before any order on appeal could be enforced
• Application of section 16(1)(a)(i) of the Superior Courts Act 10 of 2013 to dismiss appeals where the decision sought will have no practical effect

The appeal was dismissed with costs.

An appeal may be dismissed under section 16(1)(a)(i) of the Superior Courts Act 10 of 2013 where the issues are of such a nature that the decision sought will have no practical effect or result. Where contracts pursuant to a tender award will expire before any order on appeal can be enforced, and neither party can benefit from the enforcement of such an order, the appeal has no practical effect and should be dismissed on this ground alone. Courts will not make academic determinations where changed circumstances render any potential order futile or unenforceable.

The Court did not make any obiter dicta observations in this judgment. The Court focused solely on the application of section 16(1)(a)(i) of the Superior Courts Act and did not make any observations on the merits of the underlying dispute regarding the tender award or the High Court's decision to review and set aside the award to Phepha. The Court also did not comment on the practice of splitting tender awards between multiple bidders or any other substantive administrative law issues that may have arisen in the matter.

This case illustrates the application of section 16(1)(a)(i) of the Superior Courts Act 10 of 2013, which empowers appellate courts to dismiss appeals where the issues are such that the decision sought will have no practical effect or result. It demonstrates the practical approach courts take to avoid making academic determinations where circumstances have changed (such as contracts expiring by effluxion of time) such that any order would be unenforceable or futile. This principle conserves judicial resources and prevents parties from pursuing litigation that cannot yield any meaningful relief. The case is particularly relevant in the context of tender disputes where contracts are for fixed periods and appeals may take longer than the contract period to be determined.