Resultant Finance (Pty) Ltd vs. Head of Department for the Department of Health, KwaZulu-Natal and Another

South Africa

16.07.2020

Civil

Where the existing or live controversy is absent, the matter is moot

Present appeals concern a dispute emanating from the cancellation of a public procurement contract concluded pursuant to a tender that was awarded to Resultant Finance (Pty) Ltd (the Appellant) by the KwaZulu-Natal Provincial Department of Health (the Health Department).

It was submitted on behalf of the Appellant that, the Court a quo’s finding that, the Appellant had not delivered its performance as contemplated in the contract was incongruent with its finding that the Health Department had failed to issue any purchase orders despite its contractual obligation to do so. The Appellant argued that, the dismissal of its application flew in the face of the principle that where a party has proven a right and the breach thereof, a Court has no discretion to refuse to grant relief to vindicate the breach of the said right.

It was further submitted on behalf of the Appellant that, the Court a quo ought to have upheld the preliminary point on the basis that, it is not the MEC for Finance’s personal knowledge that triggers the duty to act, instead, the knowledge of those who were involved in the procurement process was imputed to the organ of state itself, namely, the Department of Finance.

Concerning the merits, it was submitted on behalf of the Appellant that there was no justification for the cancellation of the contract by the Health. The Appellant further contended that, the Health Department had deliberately made it impossible for it to perform its obligations under the contract in order to justify its subsequent repudiation thereof.

Section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 provides that, where the issues in an appeal are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone. It is trite that, if there is no longer a live controversy between the parties, then there is no longer an appeal that would have any practical effect. Where the existing or live controversy is absent, the matter is moot. This principle is based on the notion that, judicial resources should be efficiently employed and not be used for advisory opinions or abstract propositions of law.

In present matter, the relief sought by the Appellant in its Notice of Motion was for specific performance. The clear constraint is that the contractual term of the agreement has expired.

This matter does not implicate a public interest element that would otherwise impel this Court to hear the appeal despite mootness. As the Appellant is merely advancing its own commercial interest in this matter, the issues raised for determination are only of importance to the parties hereto. Furthermore, the matter considered by the court a quo was not unduly complex. The court a quo dismissed the Appellant’s application and granted the second application on clear and simple grounds. The appeal is fact-specific, relying on established principles. Appeal dismissed.

Tags : Review Tender award Mootness

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