In Aptitude Trading Enterprise (Pty) Ltd v The City of Tshwane Metropolitan Municipality and Another, the South African Supreme Court of Appeal ("SCA") reaffirmed the principle that courts will not entertain moot disputes unless there are exceptional circumstances present warranting the court's attention.
Background
A tender process was initiated by the City of Tshwane Metropolitan Municipality ("the Municipality") for the supply of 10,000-litre mobile water tankers to service informal settlements. Aptitude Trading Enterprise (Pty) Ltd ("Aptitude") was an unsuccessful bidder. Aptitude challenged the validity of the tender award, seeking to have it reviewed, declared invalid, and set aside, including all agreements concluded under the tender.
The various orders made by the South African Pretoria High Court
On 26 November 2022, Acting Judge Ferreira set aside the award of the tender and all the agreements concluded under the tender. This order suspended the declaration of invalidity until 28 February 2023 to give the Municipality time to complete a lawful procurement of the water tankers.
On 23 February 2023, the Municipality initiated an urgent application for the suspension order to be extended to 31 May 2023. Judge Khumalo granted the order. Thereafter, the Municipality applied yet again for a further extension. On 2 June 2023, AJ Van Niekerk extended the suspension order until 31 August 2023. Yet again, this was not enough time for the Municipality to complete a lawful procurement process.
The Municipality launched another urgent application to have the suspension order extended to 30 November 2023. On 31 August 2023, AJ Hassim granted an order to the effect that the order was suspended until 30 November 2023, alternatively until the Municipality decides in respect of the tender. Aptitude appealed the order of AJ Hassim.
SCA findings
The court reaffirmed that a matter is moot when the order sought will have no practical effect on the parties. This is because there is no longer an existing controversy between them. Courts are to refrain from making rulings in such matters, this is because the ruling would amount to a mere advisory opinion, which is academic and of no practical effect. This is to ensure that scarce judicial resources are not wasted on abstract questions of law.
However, the SCA emphasised that a court has the discretion to hear a matter, even where it is moot. This is where the issues raised involve a discrete legal point of public importance that requires no merits or factual matrix to resolve. A prerequisite for the exercise of this discretion is that the order which the court will make must have some practical effect, either on the parties involved in the dispute or on others in the future.
On 30 November 2023, the Municipality's City Manager made a final decision on the tender. The SCA was cognisant of the Constitutional Court's findings in a prior case, where the apex court held that a High Court does not have the power to make an order, even pending further litigation, that a lapsed suspension order remains operative.
The order that was the subject of the appeal (by AJ Hassim) was not made after the suspension order had lapsed, and the earlier order (by AJ Van Niekerk) that might have been problematic was not before the court on appeal. The SCA therefore found that the question raised by Aptitude, of whether a lapsed suspension order could be revived, was moot and did not require its intervention.
The court was critical of the Municipality's conduct of repeatedly seeking extensions at the last minute and failing to implement the original order timeously, which the court saw as an abuse of court process.
Conclusion
In light of the Municipality's conduct, the SCA found that Aptitude was justified in pursuing the appeal, despite the appeal being dismissed for mootness. Due to the Municipality's conduct, the SCA did not make any order as to costs.
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