17 June 2024

International Cases


South Africa



Courts of law ought not to decide issues purely for academic interests

In facts of present case, aggrieved by losing the tender, the Appellants approached the Gauteng Division, Pretoria (High Court), seeking a review of the decisions taken by DIRCO in relation to both the first and the second tenders. They also sought interim relief that, DIRCO be restrained from implementing the agreement concluded with the Respondents.

The appeal is against the judgment of the Full Court of the Gauteng Division of the High Court, sitting as a court of appeal from a decision by a single judge in the High Court. The High Court had set aside on review the award of a tender and the appeal against that order succeeded. In the result, an application by the appellants to have a decision to award a tender in favour of the respondents set aside, was dismissed with costs. The Appellants’ submission was that, the appeal was not necessarily moot. The question whether the decision of this court would have a practical effect depended on the judgment of this court on the merits of the appeal.

Present court has, on numerous occasions, pronounced on the guiding principles for determining whether an appeal should be entertained, where a decision thereon will have no practical effect or result. The main principle is that, courts of law ought not to decide issues purely for academic interests. This Court has a discretion to refuse to consider merits where an appeal is moot, or to entertain an appeal even though it is moot, where there is a discrete legal issue of public importance which would affect matters in the future.

Present Court has exercised its discretion to determine appeals which are moot where issues arising involve a discrete legal point of public importance that would affect matters in the future. In their alternative submission, the Appellants argued that this Court should exercise its discretion to entertain this appeal because the issues that arise ‘could or should’ affect similar matters in the future. They contended that the interpretation of Section 2(1)(a) of the Preferential Procurement Policy Framework Act of 2000 (PPPFA) involved Constitutional issues10 that impacted on public procurement, just administrative action, and access to courts. There are no grounds for the court to exercise its discretion in favour of entertaining an appeal that is moot.

Even if the assessment of objective factors under Section 2(1)(b)(i) of the PPPFA was incorrectly applied, or the tender process was tainted by illegality or the Full Court’s substitution of tender award was wrong, no basis was laid for a conclusion that the matter raised issues of public importance. Appeal dismissed.

Tags : Tender Award Legality

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