The Laser Transport Group (Pty) Ltd and Another v Elliot Mobility (Pty) Ltd and Another

The Laser Transport Group (Pty) Ltd and Gin Holdings (Pty) Ltd (the appellants) submitted a bid in March 2015 in response to a tender invitation by the Department of International Relations and Co-operation (DIRCO) for removal and insurance services for household goods and vehicles. The appellants had previously provided these services under a four-year contract that expired on 31 March 2015. The first tender was cancelled by DIRCO on 6 August 2015 without substantive reasons, and a second tender was advertised on 11 August 2015 with revised Terms of Reference. Both the appellants and the respondents (Elliot Mobility (Pty) Ltd and Neo Thando/Elliot Mobility (Pty) Ltd Joint Venture) submitted bids for the second tender. The appellants scored 95 points and had the lowest bid price, while the respondents scored 73 points but were awarded the tender on 3 November 2015. A four-year contract was concluded with the respondents on 5 November 2015, set to expire in November 2019. The appellants challenged the tender award in the High Court on grounds of non-compliance with the Preferential Procurement Policy Framework Act 5 of 2000 (PPPFA), unlawful cancellation of the first tender, and unfair disclosure of their bid price to competitors. The High Court initially granted the review application and set aside the tender award, but on appeal the Full Court reversed this decision and dismissed the application with costs.

• Whether the appeal had become moot given that the four-year contract awarded to the respondents was due to expire approximately three months after the hearing of the appeal
• Whether section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 permitted dismissal of an appeal where the decision would have no practical effect or result
• Whether the court should exercise its discretion to entertain a moot appeal where issues of public importance or constitutional significance were raised
• Whether the tender award to the respondents, who scored lower than the appellants, was lawful under section 2(1)(f) of the PPPFA

The appeal was dismissed with costs, which costs included those consequent upon the employment of two counsel.

An appeal will be dismissed as moot under section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 where any decision would have no practical effect or result. Courts exist for the settlement of concrete controversies and actual infringements of rights, not to pronounce upon abstract questions or advise upon differing contentions. While courts have discretion to entertain moot appeals where there is a discrete legal issue of public importance that would affect matters in the future, this discretion will not be exercised where the decision would be case-specific and fact-specific, even if constitutional issues are implicated. The court will not create new contractual arrangements extending beyond the original terms of a tender or contract that has expired or is about to expire, as conditions (particularly pricing) applicable at the time of the original tender would not be appropriate years later.

The Court made observations regarding the substantive tender law issues that would have arisen had the appeal not been moot. The Court noted that the dispute had crystallized to the lawfulness of awarding the tender to the respondents despite the appellants' bid price having been the lowest. Issues potentially arising included: (1) whether DIRCO's reliance on 'objective criteria' under section 2(1)(f) of the PPPFA to justify awarding to a tenderer other than the highest scorer was properly applied; (2) whether the cancellation of the first tender complied with Regulation 10(4) of the PPPFA Regulations; (3) whether disclosure of the appellants' price schedule gave competitors an unfair advantage; and (4) whether DIRCO's assessment that the appellants' price was 'unsustainable' based on averaging prices (including those of unresponsive bidders) was a valid objective criterion. The Court observed that the first tender was allegedly cancelled in response to complaints about indirect exclusion of Previously Disadvantaged Movers (PDMs) through requirements for international membership certificates. However, the Court did not need to decide these substantive issues given its finding of mootness.

This case provides important guidance on the application of section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 regarding mootness in appeals. It reinforces the principle that courts will not decide abstract or academic questions where no practical effect or result can follow from the decision. The judgment clarifies that even where constitutional issues are raised in the context of public procurement, if the decision would be case-specific and fact-specific with no broader public importance, the court will decline to exercise its discretion to hear a moot appeal. The case demonstrates the court's commitment to efficient use of judicial resources and avoiding pronouncements that would have no real-world impact. It also illustrates that parties challenging tender awards must act expeditiously, as delay may result in the matter becoming moot, particularly where fixed-term contracts are involved. The case serves as a reminder that litigants cannot circumvent mootness by arguing that the court should create new contractual arrangements extending beyond the original tender terms.