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Article 36/2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?
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  1. In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC), at paragraph [21], Ackermann J said the following regarding mootness:
    1. ‘A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the court is to avoid giving advisory opinions on abstract propositions of law.’
  2. In casu, the SCA held that the interests of justice justified looking past the issues of mootness and peremption. This was particularly so as there were two judgments subsequent to the decision of the high court in which the resolution which authorised the payment of the 2.5% notch increment to the employees had been set aside and declared null and void. To that end, the underlying edifice on which the high court arrived at its decision has been found wanting in both the labour court and the labour appeal court. It could not, therefore, be said that the appeal would have no practical effect, or had become academic. The ‘live controversy’ was very much extant, especially as the municipality was obliged, in terms of the high court’s order, to continue paying the respondents the 2.5% notch increase until that judgment was set aside. In the result, the supreme court of appeal was not persuaded that the argument based on mootness and peremption could be sustained.
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