THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 365/2022

In the matter between:
PUBLIC INVESTMENT CORPORATION
SOC LTD
FIRST APPELLANT

GOVERNMENT EMPLOYEES
PENSION FUND                                                            SECOND APPELLANT

and

TRENCON CONSTRUCTION (PTY) LTD
FIRST RESPONDENT

GVK-SIYA ZAMA BUILDING
CONTRACTORS (PTY) LTD                                    SECOND RESPONDENT

Neutral citation: PIC SOC Ltd and Another v Trencon Construction (Pty) Ltd and
Another (365/2022) [2023] ZASCA 88 (8 June 2023)

Coram:
PONNAN, NICHOLLS, GORVEN and MABINDLA-BOQWANA
JJA and UNTERHALTER AJA

Heard:
4 May 2023

Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
11h00 on 8 June 2023.

Summary: Jurisdiction – power of court of appeal – judgment sought to be
appealed against a nullity – appeal court unable to exercise discretion when no
dispute or lis exists between the parties – matter struck from the roll.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Neukircher J, sitting
as court of first instance):

The matter is struck from the roll with each party to pay its own costs.

JUDGMENT
Mabindla-Boqwana JA (Ponnan, Nicholls and Gorven JJA and Unterhalter
AJA concurring):

[1] At the hearing of the appeal, counsel for the parties were, at the outset,
required to address this Court as to whether a live dispute or lis existed between the
parties, upon which this Court could, and therefore should, exercise its appellate
jurisdiction. This, in circumstances where the first respondent, Trencon Construction
(Pty) Ltd (Trencon), failed to obtain leave to appeal against the dismissal of a review
application brought by it in the Gauteng Division of the High Court, Pretoria (the
high court). The high court did however grant leave to appeal to the respondents in
that application, the first appellant, the Public Investment Corporation SOC Ltd (the
PIC), and the second appellant, the Government Employees Pension Fund (the
GEPF), against an order that it had issued after it had already finalised its judgment.

[2] Trencon conducts business as a building and civil engineering contractor. The
PIC is a corporation established in terms of s 2 of the Public Investment Corporation
Act 23 of 2004. It is wholly owned by the State, with the Minister of Finance acting
as a representative shareholder on behalf of the State.1 It is also an authorised
financial services provider in terms of the Financial Advisory and Intermediary
Services Act 37 of 2002 and conducts business as an asset management company.
Its clients are mostly public sector entities, including the GEPF. The GEPF,
established by s 3 of the Government Service Pension Act 57 of 1973 (since
repealed), is the largest pension fund in Africa. It is regulated by the Government
Employees Pension Law, 1996.2

[3] Trencon submitted a bid in response to an invitation advertised by the PIC on
behalf of the GEPF in November 2019, to appoint a building contractor for a
shopping centre in Pretoria (the tender). The tender was awarded to the second
respondent, GVK-Siya Zama Building Contractors (Pty) Ltd (GVK). After losing
the tender, Trencon launched an application in the high court seeking to review and
set aside the PIC’s decision to award the tender to GVK. It also sought a declaratory
order that the GEPF was an organ of state in terms s 239(b)(ii) of the Constitution.
On 2 November 2021, the high court dismissed Trencon’s application.

[4] After the dismissal of its application, and on 8 November 2021, Trencon filed
a notice in terms of rule 42(1)(b) of the Uniform Rules of Court seeking an
amendment to the high court’s order in the following terms:

1 Section 3 of the Public Investment Corporation Act 23 of 2004.
2 Section 2 of the Government Employees Pension Law, 1996 (Proclamation 21 published in Government Gazette
17135 of 19 April 1996).

‘1.
It is declared that the [GEPF] is an organ of state in terms of section 239(b)(ii) of the
Constitution.
2.
Save for the aforesaid order, the application is dismissed.’

[5] The amendment was sought on the basis that the high court had allegedly
committed an error or omission by not pronouncing on the declarator sought in the
notice of motion that the GEPF was an organ of state in terms s 239(b)(ii) of the
Constitution. To support this application, Trencon relied on the following
observation in the high court’s judgment:
‘Therefore, in my view, in issuing this tender it cannot be said that the GEPF was performing a
quintessentially domestic function. In my view both the function and power were public ones and
this being so, the GEPF is an organ of state and the action of the award to GVK was an
administrative one and reviewable under PAJA.’

[6] It also contended that the high court had in addition expressed the view, in a
footnote, that the declaratory relief sought by Trencon ‘is [not] overbroad and shall
be limited to this application’. The appellants did not oppose the application to
amend; instead, they chose to abide the high court’s decision.

[7] On 22 November 2021, the high court granted an amendment of the order that
it had given on 2 November 2021, but not in the terms sought by Trencon. It issued
the following order (the amended order):
‘1
for purposes of the present application, the second respondent is an organ of state in terms
of section 239(b)(ii) of the Constitution.
save for the aforesaid order, the application is dismissed.’ (My emphasis.)

[8] This prompted the appellants to file an application for leave to appeal against
the amended order as well the high court’s failure to grant a costs order in their

favour on 13 December 2021. On 31 January 2022, Trencon applied for leave to
cross-appeal against paragraph 2 of the amended order, read with the original order,
dismissing the application as well as against the high court’s failure to grant costs in
its favour. This application was accompanied by an application for condonation for
the late filing of the application for leave to cross-appeal.

[9] On 4 April 2022, the high court granted the appellants leave to appeal but
dismissed Trencon’s application for condonation with costs. Before the hearing of
the appeal, the Registrar of this Court was directed to dispatch the following note to
the parties:
‘In this matter, the high court: (a) dismissed Trencon’s review application; and, (b) ruled ‘for the
purposes of the present application that the GEPF is an organ of state’. Trencon thereafter failed
to obtain leave from the high court to appeal against (a), which means that this order is not open
to reconsideration on appeal. Thus, even on the acceptance that the appeal by the PIC and GEPF is
directed at (b), it will nonetheless be necessary, at the hearing of the appeal, for the parties to
address the following:
Inasmuch as the final word has been spoken on the application, which is not susceptible to
alteration on appeal:
(i)
Is there still an existing dispute or lis between the parties upon which this court can and
should exercise its appellate jurisdiction?
(ii)
Will any judgment that issues on appeal affect the rights and obligations of the
parties inter se or have any practical effect or result as contemplated in s 16(2)(a)(i) of the Superior
Courts Act 10 of 2013?’ (My emphasis.)

[10] Section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 (Superior Courts
Act) provides that:
‘When at the hearing of an appeal the issues 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.’

[11] Both parties filed supplementary heads of argument in response to the note
from the Registrar. The appellants contended that the legal question regarding the
status of the GEPF arose independently of the review relief claimed in the notice of
motion. This, in their view, had implications for the GEPF because it informed how
it had to conduct itself going forward. Therefore, a dispute still existed between the
parties upon which this Court was required to exercise its appellate jurisdiction.

[12] It is well established in our law that ‘once a court has duly pronounced a final
judgment or order, it has itself no authority to correct, alter or supplement it. The
reason is that it thereupon becomes functus officio: its jurisdiction in the case having
been fully and finally exercised, its authority over the subject-matter has ceased’.3

[13] There are a few exceptions to this rule. A court may within the contemplation
of rule 42, for example, (a) clarify its judgment, if it is ambiguous or uncertain to
give effect to its true intention, but it may not alter the sense and the substance of the
judgment4 or (b) correct a clerical, arithmetical or other error in its judgment or order
so as to give effect to its true intention5 or (c) supplement the judgment in respect of
accessory or consequential matters, such as costs and interest on a judgment debt, it
had overlooked or inadvertently omitted to grant.6 This does not equate to altering a
definitive order once pronounced.

3 Firestone South Africa (Pty) Ltd v Genticuro AG [1977] 4 All SA 600 (A); 1977 (4) SA 298 (A) at 306F.
4 Ibid at 307A.
5 Ibid at 307C.
6 Ibid at 306H.

[14] These exceptions were not applicable in this matter. The high court dismissed
the application. That should have been the end of the matter. The high court
unfortunately did not engage with this issue. Nowhere did it deal with whether
Trencon had brought itself within rule 42. It gave no consideration at all to the fact
that having dismissed the application, it may have been functus officio.

[15] The question of whether the GEPF is an organ of state did not give rise to any
self-standing relief. On the application papers as originally framed, the resolution of
this question was a step in the determination of the review application. Having
dismissed the review, the high court had no power to revisit that order. The amended
order was in effect a nullity because it was made without jurisdiction by the court
making it.7

[16] In this case, Trencon unsuccessfully applied for leave to appeal the dismissal
of its application. Its remedy was to then petition this Court for leave to appeal. It
did not do so. As the dismissal of the application by the high court was not open to
correction on appeal, the final word had been spoken by that court. Logically, the
dispute or lis between the parties no longer existed upon which this Court could and
should exercise its appellate jurisdiction.8

[17] The question of whether this Court nonetheless has a discretion to entertain
the appeal therefore does not arise. As it was held by this Court in Port Elizabeth

7 Master of the High Court (North Gauteng High Court, Pretoria) v Motala N O and Others [2011] ZASCA 238; 2012
(3) SA 325 (SCA) paras 12 and 14. See also Department of Transport and Others v Tasima (Pty) Ltd [2016] ZACC
39; 2017 (1) BCLR 1 (CC); 2017 (2) SA 622 (CC) para 197, in which this principle was endorsed.
8 Legal-Aid South Africa v Magidiwana and Others [2014] ZASCA 141; [2014] 4 All SA 570 (SCA); 2015 (2) SA
568 (SCA) para 22.

Municipality v Smit,9 ‘[w]hen there is no longer any issue between the parties, for
instance because all issues that formerly existed were resolved by agreement, there
is no “appeal” that this Court has any discretion or power to deal with’. This
approach was endorsed in Legal-Aid South Africa v Magidiwana and Others.10

[18] In any event, the amended order was limited in scope. The declaration that
‘the [GEPF] is an organ of state in terms of section 239(b)(ii) of the Constitution’
was subject to the qualifier ‘for purposes of the present application’. (My emphasis.)

[19] The expression ‘present application’ in the amended order, evidently referred
to the application brought by Trencon to review and set aside the decision to award
the tender to GVK. It could not have any broader application. This means that any
order of this Court on appeal will have no practical effect or result beyond the
confines of this matter. While the question of whether the GEPF is an organ of state
might be of importance to the appellants, the declarator was limited by the court to
the specific circumstances of the review application between the parties and does
not extend to all tender processes outside its reach. In the circumstances, there would
also be no reason for this Court to hear the appeal as contemplated in s 16(2)(a)(i)
of the Superior Courts Act. In the light of the findings in this judgment, there is no
need to consider any other remedy, other than to strike the matter from the roll.

[20] As to costs, Trencon asked for costs to be awarded in its favour because the
appellants persisted with the appeal despite the note from this Court directing their
attention to the preliminary issue. Before this note, both parties laboured under the

9 Port Elizabeth Municipality v Smit [2002] ZASCA 10; 2002 (4) SA 241 (SCA) para 7.
10 Magidiwana fn 8 above para 22.

impression that the amended order was validly obtained and issued, and susceptible
to appeal. Neither party was blameless. The point held to be decisive was raised by
the Court. There was no justification in either party having persisted in the matter.
In these circumstances, it is appropriate to order each party to pay its own costs.

[21] For these reasons, the matter is struck from the roll with each party to pay its
own costs.

___________________________
N P MABINDLA-BOQWANA
JUDGE OF APPEAL

Appearances

For the appellants:

K Pillay SC with C Tabata and M Dafel
Instructed by:

Bowman Gilfillan Inc, Sandton

McIntire Van der Post, Bloemfontein

For the first respondent:
M Chaskalson SC with S Pudifin-Jones
Instructed by:

Joubert Galpin Searle, Gqeberha
Honey Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
8 June 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form
part of the judgments of the Supreme Court of Appeal
PIC SOC Ltd and Another v Trencon Construction (Pty) Ltd and Another (365/2022) [2023] ZASCA
88 (8 June 2023)
Today, the Supreme Court of Appeal (SCA) struck a matter from the roll with each party to pay its own
costs. The principal issue before the SCA was whether a live dispute or lis existed between the parties,
upon which the SCA could, and therefore should, exercise its appellate jurisdiction. This, in
circumstances where the first respondent, Trencon Construction (Pty) Ltd (Trencon), failed to obtain
leave to appeal against the dismissal of a review application brought by it in the Gauteng Division of
the High Court, Pretoria (the high court). The high court did however grant leave to appeal to the
respondents in that application, being the first appellant, the Public Investment Corporation SOC Ltd
(the PIC), and the second appellant, the Government Employees Pension Fund (the GEPF), against an
order that it had issued after it had already finalised its judgment.

The facts of the matter were as follows. Trencon submitted a bid in response to an invitation advertised
by the PIC on behalf of the GEPF in November 2019, to appoint a building contractor for a shopping
centre in Pretoria (the tender). The tender was awarded to the second respondent, GVK-Siya Zama
Building Contractors (Pty) Ltd (GVK). After losing the tender, Trencon launched an application in the
high court seeking to review and set aside the PIC’s decision to award the tender to GVK. It also sought
a declaratory order that the GEPF was an organ of state in terms s 239(b)(ii) of the Constitution. On 2
November 2021, the high court dismissed Trencon’s application. On 8 November 2021, Trencon filed
a notice in terms of rule 42(1)(b) of the Uniform Rules of Court seeking an amendment to the high
court’s order. On 22 November 2021, the high court granted an amendment of its order, but not in the
terms sought by Trencon. The amended order read as follows:
‘1
for purposes of the present application, [the GEPF] is an organ of state in terms of section
239(b)(ii) of the Constitution.
save for the aforesaid order, the application is dismissed.’

The SCA found that since the high court had dismissed the application, that should have been the end
of the matter. The SCA found that the high court did not deal with whether Trencon had brought itself
within rule 42, and that it gave no consideration at all to the fact that having dismissed the application,
it may have been functus officio.

The SCA found further that the question of whether the GEPF was an organ of state did not give rise to
any self-standing relief. On the application papers as originally framed, the resolution of this question
was a step in the determination of the review application. Having dismissed the review, the high court

had no power to revisit that order. The amended order was in effect a nullity because it was made
without jurisdiction by the court making it.

The SCA found further that as the dismissal of the application by the high court was not open to
correction on appeal, the final word had been spoken by that court. Logically, the SCA found, the
dispute or lis between the parties no longer existed upon which the SCA could and should exercise its
appellate jurisdiction.

The SCA found that the question of whether it nonetheless had a discretion to entertain the appeal
therefore did not arise. Further, that, in any event, the amended order was limited in scope by the high
court to the specific circumstances of the review application between the parties and did not extend to
all tender processes outside its reach. This meant that any order of the SCA on appeal would have had
no practical effect or result beyond the confines of the matter. The SCA accordingly found that there
was also no reason for it to hear the appeal as contemplated in s 16(2)(a)(i) of the Superior Courts Act
10 of 2013.

The SCA thus held that, in the light of its findings, there was no need to consider any other remedy,
other than to strike the matter from the roll. In regard to cost, the SCA found that neither party was
blameless; the point held to be decisive was raised by the Court; and there was no justification in either
party having persisted in the matter. Thus, it was appropriate to order each party to pay its own costs.

~~~~ends~~~~