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[2014] ZASCA 141
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Legal-Aid South Africa v Magidiwana and Others (1055/13) [2014] ZASCA 141; 2015 (2) SA 568 (SCA); [2014] 4 All SA 570 (SCA) (26 September 2014)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 1055/13
Reportable
In
the matter between:
LEGAL-AID
SOUTH
AFRICA
........................................................................................
APPELLANT
and
MZOXOLO
MAGIDIWANA
...........................................................................
FIRST
RESPONDENT
INJURED
AND ARRESTED
PERSONS
....................................................
SECOND
RESPONDENT
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
.................
THIRD
RESPONDENT
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
.........................................................................................
FOURTH
RESPONDENT
THE
MARIKANA COMMISSION OF
ENQUIRY
.......................................
FIFTH
RESPONDENT
PARTIES
TO THE MARIKANA
COMMISSION
OF ENQUIRY
...................................
SIXTH
TO NINETEENTH RESPONDENTS
Neutral
citation
: Legal-Aid South Africa v Mzoxolo Magidiwana (1055/13)
[2014] ZASCA 141
(26 September 2014)
Bench
:
Ponnan, Maya, Swain, Zondi JJA and Fourie AJA
Heard:
8 September 2014
Delivered:
26 September 2014
Summary:
Appeal –
s 16(2)(a)(i)
of the
Superior Courts Act 10 of 2013
–
power of court to dismiss appeal where judgment or order sought would
have no practical effect or result – discretion
of court -
where the parties have by agreement settled all disputes between them
- there is no discretion for the court to exercise.
ORDER
On
appeal from
: North Gauteng High Court, Pretoria (Makgoka J
sitting as court of first instance)
The appeal is
dismissed in terms of
s 16(2)
(a)
(i) of the
Superior Courts Act
10 of 2013
and each party is ordered to pay its own costs.
JUDGMENT
Ponnan
JA (Swain and Fourie AJA concurring):
[1]
In
this appeal counsel were, at the outset of the hearing, required to
address argument on the preliminary question of whether the
appeal
and any order made thereon would, within the meaning of
s 16(2)
(a)
(i)
Superior Courts Act 10 of 2013 (the Act),
1
have any practical effect or result. After hearing argument on this
issue the appeal was dismissed on 8 September 2014 in terms
of that
section and each party was ordered to pay its own costs of the
appeal. It was intimated then that reasons would follow.
These are
those reasons.
[2]
Courts should and ought not to decide issues of academic interest
only. That much is trite. In
Radio Pretoria v Chairman,
Independent Communications Authority of
South Africa &
another
2005 (1) SA 47
(SCA), this court expressed its concern
about the proliferation of appeals that had no prospect of being
heard on the merits as
the order sought would have no practical
effect. It referred to
Rand Water Board v Rotek
Industries
(Pty) Ltd
2003 (4) SA 58
(SCA) para 26 where the following was
said:
'The present case is
a good example of this Court's experience in the recent past,
including unreported cases, that there is a growing
misperception
that there has been a relaxation or dilution of the fundamental
principle . . . that Courts will not make determinations
that will
have no practical effect.'
[3] Section
16(2)
(a)
(i) provides:
‘
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.’
Of
its predecessor, s 21A of the Supreme Court Act 59 of 1959,
2
this court stated in
Coin
Security Group (Pty) Ltd v SA National Union for Security Officers &
others
[2000] ZASCA 137
;
2001
(2) SA 872
(SCA) para 7:
'The purpose and
effect of s 21A has been explained in the judgment of Olivier JA in
the case of
Premier, Provinsie Mpumalanga, en 'n Ander v
Groblersdalse Stadsraad
1998 (2) SA 1136
(SCA). As is there
stated the section is a reformulation of principles previously
adopted in our Courts in relation to appeals
involving what were
called abstract, academic or hypothetical questions. The principle is
one of long standing.'
[4]
The primary question therefore, one to which I presently turn, is
whether the judgment sought in this appeal will have any practical
effect or result. It arises against the backdrop of the following
facts: On 26 August 2012 and by virtue of the powers vested in
him by
section 84(2)
(f)
of
the Constitution,
3
the President of the Republic of South Africa (the President)
appointed what has come to be as described as the Marikana Commission
of Enquiry (the Commission) to:
[I]nvestigate
matters of public, national and international concern arising
out of the tragic incidents at the Lonmin Mine
in Marikana . .
. from Saturday 11 August to Thursday 16 August, 2012 which lead to
the deaths of approximately 44 people,
more than 70 persons being
injured, approximately 250 people being arrested and damage and
destruction to property.’ (The
Marikana incident)
According
to the terms of reference of the Commission, it is required to
inquire into, make findings, report on and make recommendations
concerning five discrete matters, namely: (a) the conduct of Lonmin
Plc (Lonmin); (b) the conduct of the South African Police
Services
(SAPS); (c) the conduct of two unions, namely the Association of Mine
Workers and Construction Union (AMCU) and the National
Union of Mine
workers (NUM); (d) the role played by the Department of Mineral
Resources or any other Government Departments or
agencies in relation
to the incident and whether this was appropriate in the circumstances
and consistent with their duties and
obligations according to law;
and (e) the conduct of individuals and loose groupings in fermenting
and/or otherwise promoting a
situation of conflict and confrontation
which may have given rise to the tragic incident, whether directly or
indirectly.
[5]
The
Commission was required to submit interim reports and recommendations
to the President each month prior to the final report
being presented
to him and was to have completed its work within the period of four
months from the date of its establishment.
But not having completed
its task, the life of the Commission has been extended by the
President from time to time. In terms of
s 1 of the Commissions Act 8
of 1947 the President: (a) declared the provisions of that Act to be
applicable to the Commission;
and (b) promulgated regulations with
reference to the Commission.
4
[6]
Depending on which of the competing contentions ultimately carry the
day, the first, second and further respondents, in all
some 300 of
them (the respondents), were involved in the incident that gave rise
to the establishment of the Commission as either
victims or
perpetrators. The nature of their involvement, which is contested
before the Commission, does not have to be resolved
for the purposes
of determining the issues raised by this appeal.
[7]
Contending that the South African State in its various different
guises had failed and or refused to assume responsibility for
the
legal costs and fees associated with the presentation of their case
before the Commission, the respondents applied to the
North Gauteng
High Court, Pretoria for an order against the President, the Minister
of Justice and Constitutional Development
(the Minister) and Legal
Aid South Africa (LASA) for, inter alia, an order that they ‘take
all reasonable steps to provide
adequate legal and equitable aid to
the applicants in respect of the future proceedings of the
Commission, including all reasonable
costs incurred to date less any
amount previously received from third parties, on the same or
equitable basis as those provided
for the state parties’.
[8]
The application failed in respect of the President and the Minister
but succeeded in respect of LASA. The high court (per Makgoka
J)
ordered LASA to:
‘
forthwith
take steps to provide legal funding to the applicants for their
participation in [the Commission]’ and ‘to
pay the
applicants’ costs’.
[9]
The appeal by LASA against that order is with the leave of the high
court. The respondents have not sought to prosecute a cross
appeal
against the dismissal of their application against the President and
the Minister. The President and the Minister
have accordingly
filed a notice with the registrar of this court intimating that they
will abide the decision of this court. The
Commission and various
other parties to the Commission were also cited as respondents - some
of them filed affidavits and participated
in the proceedings before
the high court. Of those, the eighth respondent, described as the
Families of the Deceased, the ninth
respondent, AMCU, and the
eighteenth respondent, the Ledingoane Family, filed heads of argument
with the registrar of this court
and participated in the appeal. As
all three aligned themselves with the respondents’ contention
that the appeal was moot
and none sought any costs on appeal, nothing
further need be said about any of them.
[10]
In terms of s 2 of the Legal Aid Act 22 of 1969 there is established
a board to be known as the Legal Aid Board (the LAB).
Section 3 of
that Act sets out the objects and general powers of the LAB, of which
the more relevant are ‘to render or make
available legal aid to
indigent persons and to provide legal representation at State expense
as contemplated in the Constitution’.
To that end, the LAB has
the power to: obtain the services of legal practitioners (subsec
(a)
); fix conditions subject to which legal aid needs to be
rendered (subsec
(d)
); and provide legal representation at
State expense as contemplated in s 25(1)
(c)
and (3)
(e)
,
read with sec 33(2), of the Constitution, where substantial
injustice would otherwise result (subsec
(d
A
))
. In
terms of s 3A, the LAB must in consultation with the Minister include
the particulars of the scheme under which legal aid is
to be rendered
and the procedure for its administration in a guide called the Legal
Aid Guide (the guide). The provisions of the
guide are binding on the
LAB, its officers and employees.
[11]
The respondents took issue with LASA`s decision to decline their
application for funding principally on the basis that it had
previously granted funding to 23 families who had lost breadwinners
during the Marikana incident. According to LASA, its CEO had
exercised her discretion in favour of the survivors of the deceased
miners primarily on the basis that they consisted of women,
children
and elderly persons who are all recognised as vulnerable groups and
whose vulnerability, so it was suggested, ‘was
further
exacerbated by the loss of their breadwinners in circumstances
unknown to them’. She also exercised her discretion
for the
practical reason that those families, not having been present at the
time of the occurrence, ‘would not be in a position
to provide
their attorneys with instructions in any civil claim as to how their
events of tragedy unfolded as they were not present’.
[12]
The high court held that LASA`s decision was irrational and
unconstitutional. Its conclusion appears to have rested on two
pillars. First, it held that s 34 of the Constitution was applicable
to the proceedings before the Commission. That, so the reasoning
proceeded, carried with it the constitutional obligation to ensure
that the respondents were legally represented before the Commission.
And, as the respondents could not afford to pay their legal
representatives themselves, the high court held that the entitlement
flowing from s 34 included the entitlement to funding of their legal
team at State expense. Moreover, according to the high court,
such
funding could only be provided by the State through LASA. Second, the
high court held that the decision by LASA to decline
funding to the
respondents when viewed against its earlier decision to fund the 23
families who had lost breadwinners in the Marikana
incident, violated
the respondents’ equality rights under section 9 of the
Constitution, in that it was both irrational and
unfairly
discriminatory.
[13]
LASA accepts that the decision of the high court was made in the
context of the specific circumstances of this case and that
as the
high court made plain its judgment was not to be construed as
‘authority for the proposition that in all commissions
of
inquiry, there is a right for State-funded legal representation’.
LASA contended, however, that in ordering it to provide
legal funding
to the applicants for their participation in the Commission, the high
court had usurped the discretion of the CEO
in what is essentially a
complex polycentric enquiry, and supplanted its decision for that of
LASA. That decision, so the contention
proceeded, potentially opens
the floodgates to claims on LASA’s scarce resources and leaves
its decision to refuse applications
for funding vulnerable to
judicial scrutiny in the future. Accordingly, so we were urged, this
is an appropriate matter for the
exercise of this court`s discretion
to allow the appeal to proceed. In that regard we were referred,
inter alia, to
Natal Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA);
Land en Landbouontwikkelingsbank van SuidAfrika v Conradie
2005 (4) SA 506
(SCA) and
The Merak S: Sea Melody Enterprises SA v
Bulktrans (Europe) Corporation
2002 (4) SA 273
(SCA) as instances
where this court, notwithstanding the mootness of the issue as
between the parties, has nonetheless entered
into the merits of the
appeal.
[14]
The facts in
Gould
were: An election for the office of
president of the appellant rugby union was held at its annual general
meeting. A review application
to the high court alleging that the
election was invalidated by procedural irregularities succeeded. But
before the appeal to this
court against that decision was heard the
rugby union convened a special general meeting to hold fresh
presidential elections at
which a president was duly elected. In
explaining why it was nonetheless appropriate for the appeal to be
entertained by this court,
Howie JA stated (at 444I-445B):
‘
Had there
been no appeal the judgment of the Court below would in all
probability have continued to influence the procedure adopted
in
respect of office bearer elections at future union meetings. There
was, of course, nothing irregular or unfair in the procedures
adopted
at the re-election meeting, viewed purely in isolation, without
regard to the constitution. But the union does have this
constitution. It is the chosen instrument by which the union`s
affairs are to be regulated and the union, its office bearers
and
council members are entitled to have it interpreted in order to guide
them for the future. In the circumstances I consider
that
determination of the appeal will, quite apart from the issue of costs
in the Court below, have a “practical effect or
result”
within the meaning of s 21A of the Supreme Court Act.’
[15] Both
Land en
Landbouontwikkelingsbank van Suid-Afrika v Conradie
and
The
Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation
were concerned with questions of law. All three of the cases
called in aid by LASA are thus distinguishable from the present. For,
as Wallis JA pointed out in
Qoboshiyane NO & others v Avusa
Publishing Eastern Cape (Pty) Ltd & others
2013 (3) SA 315
(SCA) para 5:
‘
The court has
a discretion in that regard and there are a number of cases where,
notwithstanding the mootness of the issue as between
the parties to
the litigation, it has dealt with the merits of an appeal.
5
With those cases must be contrasted a number where the court has
refused to deal with the merits.
6
The broad distinction between the two classes is that in the former a
discrete legal issue of public importance arose that would
affect
matters in the future and on which the adjudication of this court was
required, whilst in the latter no such issue arose.’
[16]
The fallacy in the approach of LASA is to assume - erroneously so -
that what confronts us is a discrete legal issue. It is
not. This
case plainly falls into the latter of the two classes alluded to by
Wallis JA in
Qoboshiyane.
No doubt, any future application
(should there be one) will be decided by that court, as this was, on
its own peculiar facts. That
being so, it must be accepted – as
counsel did - that the Marikana incident is a highly unusual
occurrence, the likes of
which, hopefully, will not recur in our
lifetime. In addition, it was primarily the differential treatment
between the 23 families
who had lost breadwinners on the one hand,
and the respondents on the other, that prompted the high court
application in the first
place and provoked the rationality enquiry
undertaken by that court. Those factors, which appear to be unique to
this case, will
in all likelihood distinguish this case from any
other that LASA, and in turn a court, is likely to be confronted with
in the future.
And, as it was put in
The Kenmont School v DM
:
7
‘
It is trite
that every case has to be decided on its own facts. And efforts to
compare or equate the facts of one case to those
of another are
unlikely to be of assistance. For, as we well know, parties
frequently endeavour to distinguish their case on the
facts from
those reported decisions adverse to them.’
[17]
Moreover, the grant of assistance by LASA requires that any applicant
must pass an indigency test, which is one of two gateway
requirements
for the provision of legal aid. The second is the ‘substantial
injustice’ threshold. Whether those gateway
requirements are
satisfied by an applicant in any given future application, for now
remains a matter for speculation. All things
considered, only rarely,
I imagine, would decisions of LASA be subject to review by a court.
It also goes without saying that on
those rare occasions any court
considering an application to review a refusal of funding by LASA
must of necessity be heedful of
the following admonition by this
court in
Legal Aid Board v The State
2011 (1) SACR 166
(SCA)
para 45:
‘
We need
hardly remind ourselves that courts do not control the public purse,
nor do they have the power to conscript the legal profession
to
render services without reward. It is for the other arms of
government to ensure that adequate provision is made for legal
representation at State expense. Here they have chosen to do so
through the LAB. Demands other than legal aid on the public purse
may
limit the availability of funds. Courts should be slow to attribute
superior wisdom to themselves in respect of matters entrusted
to
other branches of government. As O’Regan J puts it: “A
decision that requires an equilibrium to be struck between
a range of
competing interests or considerations and which is to be taken by a
person or institution with specific expertise in
that area must be
shown respect by the courts.”
8
The LAB is undoubtedly one such institution.’
[18]
Thus however the appeal turns out, the position of the respondents
will remain unaltered and the outcome, certainly as far
as this case
is concerned, will be a matter of complete indifference to LASA. What
LASA really seeks is to have this court express
a view on a legal
conundrum that it hopes to have decided in its favour without in any
way affecting the position between the parties.
It follows that what
was stated in
Clear Enterprises (Pty) Ltd v SARS
above is
particularly apposite. It was there held:
‘
[17] Simply
put, whatever issues do arise in the pending matters none of them are
yet “ripe” for adjudication by this
Court. To borrow from
Kriegler J in
Ferreira v Levin NO &
others
;
Vryenhoek v Powell NO & others
1996 (1) SA 984
(CC) at
paragraph [199]:
“
The essential
flaw in the applicants' cases is one of timing or, as the Americans
and, occasionally the Canadians call it, "ripeness".
That
term has a particular connotation in the constitutional jurisprudence
of those countries which need not be analysed now. Suffice
it to say
that the doctrine of ripeness serves the useful purpose of
highlighting that the business of a court is generally retrospective;
it deals with situations or problems that have already ripened or
crystallised, and not with prospective or hypothetical ones.
Although, as Professor
Sharpe
points out and our Constitution
acknowledges, the criteria for hearing a constitutional case are more
generous than for ordinary
suits, even cases for relief on
constitutional grounds are not decided in the air. And the present
cases seem to me, as I have
tried to show in the parody above, to be
pre-eminent examples of speculative cases. The time of this Court is
too valuable to be
frittered away on hypothetical fears of corporate
skeletons being discovered.”
[18]
Although expressed somewhat differently and in the different context
of constitutional adjudication where “ripeness”
has taken
on a particular meaning, both the principles and policy
considerations articulated by Kriegler J resonate with the
jurisprudence
of this Court. Thus in
Coin Security Group (Pty) Ltd
v SA National Union
for Security Officers & others
[2000] ZASCA 137
;
2001
(2) SA 872
(SCA) at paragraph
[9]
, Plewman JA quoted with approval
from the speech of Lord Bridge of Harwich in the case of
Ainsbury
v Millington
[1987] 1 All ER 929
(HL), which concluded at 930g:
“
It has always
been a fundamental feature of our judicial system that the Courts
decide disputes between the parties before them;
they do not
pronounce on abstract questions of law when there is no dispute to be
resolved”.
In
a similar vein, in
Western Cape Education Department v George
1998
(3) SA 77
(SCA) at 84E, Howie JA stated:
“
Finally, it
is desirable that any judgment of this Court be the product of
thorough consideration of,
inter alia
, forensically tested
argument from both sides on questions that are necessary for the
decision of the case.”
And in
Radio
Pretoria
(at paragraph [44]), Navsa JA said:
“
Courts of
appeal often have to deal with congested court rolls. They do not
give advice gratuitously. They decide real disputes
and do not
speculate or theorise (see the
Coin Security
case (
supra
)
at paragraph [7] (875A-D)). Furthermore, statutory enactments are to
be applied to or interpreted against particular facts and
disputes
and not in isolation.”
[19] In effect what
the parties are seeking is legal advice from this Court. But as Innes
CJ observed in
Geldenhuys & Neethling v Beuthin
1918 AD
426
at 441:
“
After all,
Courts of Law exist for the settlement of concrete controversies and
actual infringements of rights, not to pronounce
upon abstract
questions, or to advise upon differing contentions, however
important.”
In
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs & others
2000 (2) SA 1
(CC) at paragraph [21]
footnote 18, the Constitutional Court echoed what the learned Chief
Justice had stated over eight decades
earlier when it said:
“
A case is
moot and therefore not justifiable 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.”’
[19]
The cumulative consequence of all of the aforegoing factors is that
our discretion, were we to have one, would have to be exercised
against LASA. I say ‘were we to have one’ because I am
not persuaded, for the reasons that follow, that we do indeed
have a
discretion in this case. Prior to the hearing of the appeal the
parties entered into an agreement of settlement. According
to counsel
for the respondents:
‘
Since the
delivery of the appellant`s supplementary heads of argument and
following their meeting held on 10 July 2014, the primary
parties
have resolved all their differences. It was further agreed that this
development would be brought to the attention of the
court in these
heads of argument, as we hereby do.
The essence of the
agreement reached was that the appellant would provide the required
funding for the full duration of the unfunded
period of the
Commission, ie from 11 March 2013 to the end date thereof. This
removed any outstanding dispute or controversy, resulting
in the
disposal by agreement of this leg of the enquiry.’
From
the bar in this court counsel for LASA confirmed that to be the
position. We were further advised that the work of the Commission
will be completed well within the next two months.
[20]
The practical effect of the settlement agreement is that there is no
longer any dispute or
lis
between the parties. In those
circumstances, as it was put by Brand JA in
Port Elizabeth
Municipality v Smit
2002 (4) SA 241
(SCA) para 7:
‘
It can be
argued, I think, that s 21A is premised upon the existence of an
issue
subsisting between the parties to the litigation which
requires to be decided. According to this argument s 21A would only
afford
this Court a discretion not to entertain an appeal when there
is still a subsisting
issue
or
lis
between the parties
the resolution of which, for some or other reason, has become
academic or hypothetical. When 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
argument appears to be supported by what Viscount Simon said in
Sun
Life Assurance Company of Canada v Jervis
[1944] AC 111
(HL) at
114, when he said, with reference to facts very similar to those
under present consideration:
“
. . . I think
it is an essential quality of an appeal fit to be disposed of by this
House that there should exist between the parties
a matter in actual
controversy which the House undertakes to decide as a living issue.”
Consequently,
he found that in a matter where there was no existing
lis
between the parties the appeal should be dismissed on that ground
alone (at 115). (See also
Ainsbury v Millington
[1987] WLR
379
(HL) at 381.) More recently, however it was said by Lord
Slynn of Hadley in
R v Secretary of State for the Home Department,
Ex parte Salem
[1999] UKHL 8
;
[1999] 2 WLR 483
(HL) at 487H ([1999]
2 All ER 42
at 47c) that:
“
. . . I
accept . . . that in a cause where there is an issue involving a
public authority as to a question of public law, your Lordships
have
a discretion to hear the appeal, even if by the time the appeal
reaches the House there is no longer a
lis
to be decided which
will directly affect the rights and obligations of the parties
inter
se
.”
It
is true that Lord Slynn immediately proceeded to confine this
discretion to entertain an appeal, where there is no longer a
lis
between the parties, to the area of public law and added that the
decisions in the
Sun Life
case and
Ainsbury v Millington
must accordingly be read as limited to disputes concerning private
law rights between the parties to the case (at 487H488A (WLR)
and
47
c-d
(All ER)). In my respectful view it seems, however, that
this distinction between public law and private law is founded on
considerations
of expedience rather than on principle. If, as a
matter of principle, a court has no power and therefore no discretion
to consider
an appeal where there is no
lis
, in the sense of a
matter of in actual controversy
inter se
, I can see no reason
why this principle should not apply to matters of public law as well.
Conversely, if a court has the discretion
to entertain an appeal
despite the absence of a
lis
, in the above sense, there seems
to be no reason in principle why this discretion should not also
extend to litigation between
two private individuals as well.
However, in the view that I hold regarding the outcome of this
matter, it is unnecessary to resolve
these questions. I will assume
in favour of the appellant, without deciding, that this Court has a
discretion to entertain the
instant appeal under s 21A.’
[21]
But even in the area of public law, according to Lord Slynn (
R v
Home Secretary of State for the Home Department, Ex parte Salem
(above at 488B)), the discretion to hear disputes must:
‘
[B]e
exercised with caution and appeals which are academic between the
parties should not be heard unless there is a good reason
in the
public interest for doing so, as for example (but only by way of
example) when a discrete point of statutory construction
arises which
does not involve detailed consideration of facts and where a large
number of similar cases exist or are anticipated
so that the issue
will most likely need to be resolved in the near future.’
[22] In
Absa Bank
Ltd v Van Rensburg
(228/13)
[2014] ZASCA 34
(28 March 2014).
Leach
JA (albeit in a minority judgment) described the reasoning of Brand
JA in
Port
Elizabeth Municipality
as ‘unassailable’. Leach JA added (para 22) that once the
parties settled, the litigation between them terminated and
there
were thereafter no disputes between them upon which this court could
exercise its appellate jurisdiction. Jurisdiction in
the present
context means the power vested in a court by law to adjudicate upon,
determine and dispose of a matter (
Ewing
McDonald & Co Ltd v M & M Products Co
[1990] ZASCA 115
;
1991
(1) SA 252
(A) at 256F-G).
9
Once the parties have disposed of all disputed issues by agreement
inter
se
,
it must logically follow that nothing remains for a court to
adjudicate upon and determine. In my view the approach of Brand JA
is
juristically sound and merits endorsement by this court. I would
accordingly hold that in a situation such as the present, where
the
parties have by agreement settled all disputes between them, as a
matter of principle there is no discretion for this court
to exercise
under s 16(2)
(a)
(i)
of the Act.
[23]
It accordingly followed that the appeal had to be dismissed (
Makhanya
v University of Zululand
2010 (1) SA 62
(SCA) para 83) and it was
so ordered when the matter was heard on 8 September 2014.
[24]
That leaves costs. On 30 June 2014 the registrar of this court
directed the attention of the parties to the provisions of s
16(2)
(a)
(i) of the Act and enquired whether the appeal was
being persisted in. LASA filed additional heads of argument in which
it intimated
that it was persisting in the appeal. That was the
stance adopted before us in argument as well. It must be accepted, as
was urged
upon us in argument, that LASA genuinely believed that it
was acting in the public interest in seeking to have the judgment of
the high court overturned by this court. No doubt, LASA genuinely
hoped that it would obtain some guidance from this court for its
future administration of what, after all, are public funds. Moreover,
the point which was held to be decisive of the matter was
raised by
the court and not the respondents. In those circumstances it was
deemed appropriate that each party be ordered to pay
its own costs.
_________________
V PONNAN
JUDGE OF APPEAL
MAYA
JA (ZONDI JA concurring):
[25]
I have had the advantage of reading the judgment prepared by my
colleague Ponnan JA. I respectfully agree with him that the
appeal
had to be dismissed for the reasons he gives. But I have just one
reservation. This relates to his unqualified finding that
a court of
appeal has no discretion under
s 16(2)(a)(i)
of the
Superior Courts
Act 10 of 2013
to determine the merits of an appeal where the parties
have disposed of all disputed issues by agreement
inter se
.
[26]
Section
16(2)(a)(i)
provides that ‘[w]hen 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’. The purpose and effect of the provisions
after
which the section is fashioned – its predecessor s 21A of
the Supreme Court Act 59 of 1959 (the old Act) – is aptly
described in this court’s judgment in
Coin
Security Group v SA National Union for Security Officers.
10
There, Plewman JA said:
‘
The purpose
and effect of s 21A has been explained in the judgment of Olivier JA
in the case of
Premier, Provinsie Mpumalanga, en ‘n ander v
Groblersdalse Stadsraad
1998 (2) SA 1136
(SCA). As is there
stated the section is a reformulation of principles previously
adopted in our Courts in relation to appeals
involving what were
called abstract, academic or hypothetical questions. The principle is
one of long standing. In the case of
Geldenhuys and Neethling v
Beuthin
1918 AD 426
at 441 (as an example) it was said as follows
by Innes CJ:
‘
After all,
courts of law exist to the settlement of concrete controversies and
actual infringements of rights, not to pronounce
upon abstract
questions, or to advise upon differing contentions, however
important.”
This is a principle
which is common also to other systems – where the doctrine of
binding precedent is followed. It has particular
application in
Courts of appeal. The attitude of the House of Lords is illustrative
of this. What that Court has held is that it
is an essential quality
of an appeal (such as may be disposed of by it) that there should
exist between the parties to the appeal
a matter “in actual
controversy which (the Court) undertakes to decide as a living
issue’. See
Sun Life Assurance Co of Canada v Jervis
[1994]
1 All ER 469
(HL) at 471A – B. This phrase accurately states
the standpoint of our Courts. It is a principle consistently adopted
by this
Court and the other Courts in the Republic.’
[27]
Thus a court of appeal will concern itself with issues that subsist
between and will have practical effect for the parties
to the
litigation. However, it appears that the courts may have a tightly
circumscribed discretion to enquire into the merits of
an appeal even
in the absence of a
lis
between the parties in an appropriate
case.
[28]
Following
the
Jervis
decision,
R
v Secretary of State for the Home Department, Ex Parte Salem
11
dealt with a case where it was contended on appeal to the House of
Lords that the appeal should be heard although there was no
longer a
live issue between the parties, because the matter raised a question
of public importance. Lord Slynn of Hadley, writing
for a unanimous
court, approved the
Jervis
dictum and continued:
12
‘
In
Ainsbury
v Millington (Note)
[1987] W.L.R. 379
, 381 Lord Bridge of
Harwich, with whom the other members of the House agreed, said at p.
381: “In the instant case neither
party can have any interest
at all in the outcome of the appeal. Their joints tenancy of property
which was the subject matter
of the dispute no longer exists. Thus,
even if the House thought that the judge and the Court of Appeal had
been wrong to decline
jurisdiction, there would be no order which
could now be made to give effect to that view. It has always been a
fundamental feature
of our judicial system that the courts decide
disputes between the parties before them; they do not pronounce on
abstract questions
of law when there is no dispute to be resolved.’
Lord
Slynn then drew a distinction between cases involving disputes about
private rights and issues involving public law which the
court had
entertained
13
and took the view that the strict principle in
Ainsbury
v Millington
was
limited to disputes that concerned private rights. He said:
14
‘…
I
accept, as both counsel agree, that in a cause where there is an
issue involving a public authority as to a question of public
law,
your Lordships have a discretion to hear the appeal, even if by the
time the appeal reaches the House there is no longer a
lis
to
be decided which will directly affect the rights and obligations of
the parties inter se. The decision in the
Sun Life
case and
Ainsbury v Millington
(and the reference to the latter in Rule
42 of the Practice Directions Applicable to Civil Appeals (January
1996) of your Lordships’
House) must be read accordingly as
limited to disputes concerning private law rights between the parties
to the case.’
But
the learned judge warned:
15
‘
The
discretion to hear disputes, even in the area of public law, must,
however, be exercised with caution and appeals which are
academic
between the parties should not be heard unless there is a good reason
in the public interest for doing so, as for example
(but only by way
of example) when a discrete point of statutory construction arises
which does not involve detailed consideration
of facts and where a
large number of similar cases exist or are anticipated so that the
issue will most likely need to be resolved
in the near future.’
[29]
The
above decision has since been followed by the Court of Appeal and
others in a number of cases – and as far as I can discover,
it
has not been disapproved of or qualified in any later decision of
that court.
Bowman
v Fels
16
involved a point of law arising from the interpretation of a recent
statute (s 328 of the Proceeds of Crime Act 2002) involving
the
conduct of litigation by legal professionals which had caused great
uncertainty within the legal profession. The parties had
settled the
litigation by the time the appeal was heard. Nevertheless, the Court
of Appeal held that it was entitled to assume
the jurisdiction to
entertain the merits of the appeal because what was at issue
concerned public law duties; a discrete point
of statutory
construction arose which did not involve detailed consideration of
facts; a large number of similar cases existed
so that the issue
would in any event most likely need to be resolved in the near
future. There was also an extra public interest
element arising out
of the court’s supervisory role in connection with solicitors
as officers of the court who were perplexed
as to the content of
their obligations under the Act when conducting or settling
litigation which made the case par excellence
one which the court
should determine. In the court’s view, to send the parties away
empty-handed ‘seemed not only churlish
but also in breach of
the overriding objective which illuminates all civil court practice
today.’
17
[30]
The
Ex
Parte Salem
decision has been cited in cases of this court.
18
A majority of these judgments have done so guardedly but none have
disavowed its dictum – that courts have the discretion,
which
must be applied sparingly, to hear disputes in appeals which are
academic between the parties if there is a good reason in
the public
interest for doing so. And in quite a few cases involving discrete
legal questions of public importance which were likely
to arise in
future, the courts have dealt with the merits of appeals
notwithstanding the mootness of the issues between the parties.
19
In
Sebola
v Standard
Bank
,
20
the successful party had abandoned the judgment and the costs awarded
against the applicants. But for the costs incurred by the
applicants
in resisting the sale of their home the issues in the appeal had gone
dead. The Constitutional Court highlighted the
provisions of s 21A(3)
of the old Act, which are replicated in s 16(2)(a)(ii). Their effect
is that it is only in exceptional circumstances
(which did not exist
in the matter) that the question whether the decision sought will
have practical effect or result is to be
determined with reference to
the question of costs. The fact that the matter involved the
interpretation of statutory provisions
whose meaning had long been
shrouded in uncertainty, weighed heavily with the Court in deciding
to hear the appeal.
[31]
But that said, as my colleague points out at paragraphs [16] to [18]
of the main judgment, whether or not this court has the
discretion to
decide the appeal makes no difference for the appellant’s case.
The appeal raises no discrete legal point which
does not involve
detailed consideration of facts and no similar cases exist or are
anticipated so that the issue will most likely
need to be resolved in
the near future. What happened at Marikana is extremely rare and
hopefully a tragedy of its kind will never
happen again. As pointed
out in the main judgment, the high court judgment states in terms
that it was decided in the specific
context of this case; it is no
authority for a right to State-funded legal representation in all
commissions of inquiry. Any case
that may seek to rely on it would be
decided on its own merits and all persons who apply for legal aid
will still have to go through
the appellant’s rigorous
screening procedures to qualify therefor.
______________
M MAYA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: GJ Marcus SC (with him M Stubbs and E Nahlangu)
Instructed
by:
Legal-Aid
South Africa
Johannesburg
Bloemfontein
Justice Centre
Bloemfontein
For
First and Second Respondents: DC Mpofu (with him M Qofa)
Instructed
by:
Maluleke
Msimang & Associates
Pretoria
c/o
Modise Modise Inc
Bloemfontein
For
Eighth and Ninth Respondents: S Wilson
Instructed
by: Socio-Economic Rights Institute
Braamfontein
Webbers Attorneys
Bloemfontein
Eighteenth
Respondents: J Brickhill
Instructed by:
Legal Resources
Centre
Johannesburg
1
The
date of commencement of the Act was 23 August 2013.
2
Section
21A(1) of the Supreme Court Act 59 of 1959 provides:
'When at the
hearing of any civil appeal to the Appellate Division or any
Provincial or Local Division of the Supreme Court the
issues are of
such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed
on this
ground alone.'
3
Proclamation
50 of 2012,
GG
35680,
12
September 2012.
4
Published
under Proclamation 59 of 2012,
GG
35730,
28 September 2012.
5
In
addition to
Natal
Rugby Union v Gould
;
The
Merak S: Sea Melody Enterprises SA
;
and
Land
en Landbouontwikkelingsbank van Suid-Afrika v Conradie
see
for example
Executive
Officer
,
Financial Services Board v Dynamic Wealth Ltd
2012
(1) SA 453
(SCA).
6
See
for example:
Radio
Pretoria v Chairman, Independent Communications Authority of South
Africa above
;
Rand
Water Board v Rotek Industries (Pty) Ltd
above;
Minister
of Trade and Industry v Klein NO
[2009]
4 All SA 328
(SCA);
Clear
Enterprises (Pty) Ltd v Commisioner, SARS
(757/10)
[2011] ZASCA 164
(29 September 2011);
The
Kenmont School v DM
(454/12)
[2013] ZASCA 79
(30 May 2013) and
Ethekwini
Municipality v SAMWU
(442/11)
[2013] ZASCA 135
(27 September 2013)
7
Above para 12
8
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC) para 48.
9
See
also the judgment of Kentridge AJ in
S
v Mhlungu
[1995] ZACC 4
;
1995
(2) SACR 277
(CC) para 71.
10
Coin Security Group v SA National Union for Security Officers
2001
(2) SA 872.
11
R
v Secretary of State for the Home Department, Ex Parte Salem
[1999]
2 All ER 42
(HL) at 46b-47d.
12
At 46c-d
13
Reg.
v. Board of Visitors of Dartmoor Prison, ꜛ
Ex
parte
ꜜ
Smith
[1987]
Q.B. 106
;
Reg.
v. Secretary of State for the Home Department, ꜛ
Ex
parte
ꜜ
Abdi
[1996] UKHL 9
;
[1996]
1 WLR 298.
14
At 47 c-d
15
At 27e
16
[2005]
EWCA Civ 226
, [2005] 4 All ER (CA) 609.
17
See
also
Donaldson
v Secretary of State for the Home Department
[2014]
CSIH 31
;
Neath Port Talbot Country Borough Council v Ware
[2007]
EWCA Civ 1359
, [2007] All ER (CA) 266;
Fletcher
and others v NHS Pensions and others
[2006]
EWCA Civ
517
,
[2006]
All ER 436
(CA);
PO
(Nigeria) v Secretary of State for the Home Department
[2011]
EWCA Civ 132
, [2011] All ER (CA) 240;
R
v Lambeth
[2010]
EWHC 507
(Admin), [2010] All ER (Ct) 129;
R
v Secretary of State for the Home Department
[2014]
EWHC 2015
(Admin).
18
Absa
Bank Ltd V Van Rensburg
(228/13)
[2014] ZASCA 34
(28 March 2014);
Executive
Officer of the FSB v Dynamic Wealth Ltd
[2012]
1 All SA 135
(SCA) paras 43 and 44;
Rand
Water Board v Rotek Industries (Pty) Limited
2003
(4) SA 58
para 18;
Port
Elizabeth Municipality v Smit
2002
(4) SA 241
(SCA) para 7.
19
See,
for example,
Land
en Landbouontwikkelingsbank van Suid Afrika v Conradie
2005
(4) SA (SCA);
The
Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation
2002
(4) SA 273
(SCA);
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999
(1) SA 432
(SCA).
20
Sebola
v Standard
Bank
2012
(5) SA 142
at paras 32 – 34.