Appeal: Yes, No, Maybe.

As one contemplates on the doctrine of mootness, several questions arise. What is considered a moot point, a moot issue or moot relief? What is the legal and practical implications thereof in appeal proceedings? And, does mootness bar the justiciability of an issue?

The doctrine of mootness is relevant to matters which are either instituted or heard, after the fact. Meaning, that at the time of hearing a matter, the live controversy between the parties no longer exists or the issues had become wholly academic.

The Constitutional Court’s jurisprudence regarding mootness is well established. In JT Publishing (Pty) Ltd v Minister of Safety and Security:[1] the Court stated that, issues are moot when they are wholly academic and excite no interest other than a historical one, and in POPCRU v SACOSWU:[2] the Court stated that, “this Court will not adjudicate an appeal if it no longer presents an existing or live controversy.”

A debate over the mootness of issues is a common occurrence in urgent motion proceedings (interdicts, for example) where a party considers launching an appeal to a judgment, but the practical effect of the judgment on appeal had already become moot.

In a fairly recent example, the Western Cape High Court was enjoined to consider the doctrine of mootness and the practical implications thereof in appeal proceedings.  The applicant approached the Court on an urgent basis seeking an interdict to compel the respondents, to demolish a structure consisting of two recently constructed bedrooms on the second floor of its neighbouring property (“the disputed rooms”).

The applicant contended that the disputed rooms had been constructed illegally, because the construction occurred without (1) the necessary zoning departure, and (2) approved building plans. Further to the illegality of the construction, the applicant argued that the disputed rooms, infringes on his property rights and his right to privacy.

In turn, the respondents, (1) denied that the building has any negative impact on the applicant’s property, (2) contended that the disputed rooms were constructed on the first floor of a partially-demolished existing building, (3) contended that the building has no effect on either the footprint or the height of the previous building, and (4) denied that the disputed rooms infringe on the applicant’s right to privacy.

In middle August 2019, the Court dismissed the urgent application. The judgment handed down was marked, reportable. Consequentially, the applicant brought an application for leave to appeal.

At the hearing of the application for leave to appeal, the Court was informed that the building plans at issue, had since been approved by the relevant building-development management department. In other words, the approval of the building plans had extinguished the dispute pertaining to the illegality of the construction of the disputed rooms.

Accordingly, the application for leave to appeal turned on whether the dispute was now moot and accordingly whether there is still a need to pursue the dispute any further.

The applicant persisted with the appeal, contending that the matter is not moot. In support thereof, the applicant relied on inter alia the case of Legal Aid South Africa v Magidiwana & Others[3] where the court stated: “Mootness is no bar to deciding an appeal if it is in the interest of justice to do so. As this Court said in Van Wyk, relevant considerations are whether the order that the Court may make will have any practical effect either on the parties or on others, whether it is in the public interest for the court to exercise its discretion to resolve the issues and whether the decision will benefit the larger public or achieve legal certainty.”[4]

The applicant further contended that, by ruling in favour of the respondents, the judgment held significant consequences because it appeared to ignore conduct which, at the time that it was implemented, was illegal. If not appealed, the judgment would be an invitation to parties to illegally construct buildings with the hope that the building plans would be approved in the future.

In contrast, the respondents, relying on inter alia JT Publishing (Pty) Ltd v Minister of Safety and Security[5] and POPCRU v SACOSWU[6], contended that the matter is moot, as it no longer presents an existing or live controversy between the parties, and it would not be in the interests of justice to determine the issue on appeal.

The Court had to consider what practical effect would another hearing and a reconsideration of the issues have. Should the applicant succeed with an appeal, the practical effect thereof would be that a Court would grant an order demolishing a property, which is now legally constructed.

The Court acknowledged that, in the urgent application, it had to exercise a discretion whether or not to order the demolition of the disputed rooms and that it was enjoined to exercise this discretion in accordance with the principles set out in BSB International Link v Readam SA,[7] and Serengeti Rice Industries (Pty) Ltd and Another v Aboobaker NO and Others.[8]

The application for leave to appeal was dismissed on the basis that the evidence before the Court indicated that it would have been incorrect to have exercised a discretion in favour of the applicant and that there is no public interest question which dictates that a dispute which is prima facie moot, should be resurrected to bother an appeal Court.

In conclusion, “mootness is not an absolute bar to the justiciability of an issue. The Court may entertain an appeal, even if moot, where the interests of justice so require.”[9]

Written by CJ Grey

For any assistance or guidance please contact CJ Grey at cjgrey@dkvg.co.za.

[1] 1997 (3) SA 514 (CC), par 16 – 17.

[2] 2019 (1) SA 73 (CC), par 43.

[3] 2015 (6) South Africa 494 (CC).

[4] 2015 (6) South Africa 494 (CC), par 58.

[5] 1997 (3) SA 514 (CC).

[6] 2019 (1) SA 73 (CC).

[7] 2016 (4) SA 83 (SCA), par 28 -29:  “[28] It thus seems incongruous to require judicial oversight over the grant of a demolition order in terms of s 21 of the NBSA but then remove any discretion from a court whether to grant a partial or total demolition order. The exercise of a discretion to order the partial demolition of a building to the extent of its illegality, accords with the principle of legality, because in granting such an order a court in no way abrogates its duty to enforce the law. For, these reasons, which are probably by no means exhaustive, it may well be that the interpretation placed on s 21 by Lester does not survive careful scrutiny. But, it is not necessary for now to express any firm view on its correctness. [29] In a case such as this a court is possessed of a broad general discretion to be exercised after affording due consideration to all the relevant circumstances. Obviously, before granting a partial demolition order a court would have to be satisfied that the illegality complained of is capable of being addressed by such an order and that it is practically possible to do so. Depending on the circumstances this may require evidence to be given by experts such as engineers and architects to ensure that the structural integrity and safety of the building is not compromised when partially demolished. Accordingly, paragraph 4 of the order of the court a quo which declares that no partial demolition of the building shall take place unless and until building plans have been approved by the municipality, will be amended to include a further requirement that an engineer must certify that partial demolition will not impair the structural integrity and safety of the building, or adjacent buildings.

[8] 2017 (6) SA 581 (SCA), par 15 – 16: [15] The final reason why the order of the high court cannot stand is the failure by the court a quo to exercise its discretion in considering the order to be made. As submitted on behalf of the appellants the court’s power to grant constitutional remedies is broad and flexible. The court may grant an order that is just and equitable and the terms of the order are determined within the context of each case. [16] The learned judge reasoned that: ‘. . . the relief should be in line with the findings. What remains valid is that part of the building that was built in terms of the GR1 zoning and the plan approved by the [Municipality] on 30 August 2010. There is an obligation on this court to uphold the law. This court by operation of the legality doctrine is bound to order that the part of the structure that is illegal be demolished.”

[9] 2019 (1) SA 73 (CC), par 44.