CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 62/22
In the matter between:
MINISTER OF FINANCE Applicant
and
SAKELIGA NPC
(PREVIOUSLY KNOWN AS AFRIBUSINESS NPC) First Respondent
RULE OF LAW PROJECT Second Respondent
ECONOMIC FREEDOM FIGHTERS Third Respondent
Neutral citation: Minister of Finance v Sakeliga NPC (previously known as
Afribusiness NPC) and Others [2022] ZACC 17
Coram: Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ,
Theron J, Tlaletsi AJ, Tshiqi J.
Judgment: Madlanga J (unanimous)
Decided on: 30 May 2022
ORDER
2
On application for direct access to the Constitutional Court of South Africa on an urgent
basis:
The application is dismissed with costs, including costs of two counsel.
JUDGMENT
MADLANGA J (Jafta J, Khampepe J, Majiedt J, Mhlantla J, P illay AJ, Theron J,
Tlaletsi AJ and Tshiqi J concurring):
[1] This matter was decided without an oral hearing. The crisp question for
determination is whether an order given by this Court in Afribusiness1 is susceptible to
variation; does the order in any way lack clarity? By a majority decision, this Court – in
Afribusiness – dismissed an appeal by the present applicant, the Minister of Finance
(Minister), against a judgment of the Supreme Court of Appeal. In its judgment , the
Supreme Court of Appeal had declared invalid the Preferential Procurement
Regulations.2 These are Re gulations that were made by the Minister in terms of the
Preferential Procurement Policy Framework Act .3 The Supreme Court of Appeal
suspended the declaration of invalidity for 12 months to enable corrective action.
[2] The Minister now brings an urgent application for direct access seeking a
variation of the order that dismissed his appeal. He claims that this Court’s order is
ambiguous or lacks clarity and is thus susceptible t o variation. According to
the Minister, the only thing that gives rise to the perceived problem with the order is a
footnote in the minority judgment .4 Here is how the problem is said to arise . With
reference to the Supreme Court of Appeal’s 12 -month suspension of the declaration of
1 Minister of Finance v Afribusiness [2022] ZACC 4; [2022] JOL 52147 (CC) (Afribusiness).
2 Preferential Procurement Regulations, GN R32 GG 40553, 20 January 2017.
3 5 of 2000.
4 Afribusiness above n 1 at fn 28.
MADLANGA J
3
invalidity, the footnote says “[t]he period of suspension expired on 2 November 2021”.
This date is the end of 12 months from the date of the Supreme Court of Appeal’s order.
The Minister observes that the statement in the footnote was “ very respectfully in
conflict with section 18(1) of the Superior Courts Act ”.5 The Minister correctly
highlights the fact that th is Court’s majority judgment does not respond to the content
of the footnote. He says “the incorrect statement [in the footnote] is the only articulation
of this . . . Court’s position on the suspension period granted by the [Supreme Court of
Appeal]”. The Minister concludes that the majority’s omission to address the content
of the footnote has resulted in lack of clarity. If I understand the Minister correctly, he
suggests that this is exacerbated by the fact that this Court’s order simply says the appeal
is dismissed6 and “does not purport to set aside, replace, substitute or in any way vary
the order of the [Supreme Court of Appeal]”.
[3] The confusion gives rise to three possible interpretations of this Court’s order,
so claims the Minister. First, the Minister submits that in terms of section 18(1) of the
Superior Courts Act the operation of the order of the Supreme Court of Appeal was
suspended from the date the Minister lodged an application for leave to appeal to
this Court on 23 November 2020. And the operation of that order started running again
when this Court dismissed the appeal on 16 February 2022. Second, the order may be
interpreted to mean that the Regulations were invalidated with immediate effect and
prospectively from the date of dismissal of the appeal and without any suspension.
Third, and in accordance with the doctrine of objective constitutional invalidity, the
order may be interpreted to mean that the invalidation is with effect from the date
the Regulations were promulgated.
[4] The Minister avers that each of these interpretations has support from different
interest group s. He submits that, as a result of the se three possible interpretations,
this Court’s order is a candidate for variation in terms of rule 42(1)(b) of the
5 10 of 2013.
6 This Court’s order simply said: “The appeal is dismissed with costs, including the costs of two counsel.”
MADLANGA J
4
Uniform Rules of Court, which is made applicable to this Court by rule 29 of this
Court’s Rules. Rule 42(1)(b) provides that “[t]he court may . . . mero motu [of its own
accord] or upon application of any party affected, rescind or vary . . . an order or
judgment in which there is an ambiguity, or patent error or omission, but only to the
extent of such ambiguity, error or omission”.
[5] The Minister submits that the patent error, patent omission, and ambiguity that
render this Court’s order liable to variation in terms of rule 42(1)(b) consist in the
content of the footnote referred to earlier.
[6] The Minister submits that variation is the “cleanest and least burdensome” way
to correct the lack of clarity in the order . Variation would require only minor clerical
edits to the order of the majority judgment and a correction of the footnote in the
minority judgment.
[7] The first respondent, Sakeliga NPC (Sakeliga), which was cited by its previous
name, Afribusiness NPC, in the application for leave to appeal to this Court, opposes
the present application. The Rule of Law Project and the Economic Freedom Fighters,
the second and third respondents , respectively, have opted not to enter the fray .
Sakeliga contends that the application is an exercise in futility, an abuse of the process
of this Court and a waste of judicial resources. It argues that there is no need for the
relief sought by the Minister as the period of suspension is regulated by the
Superior Courts Act. That is so because, when the order is looked at in the light of the
Superior Courts Act, there is no ambiguity, error or omission. The argument continues
that this is a matter of arith metical calculation. According to Sakeliga, this entails a
simple calculation in accordance with the provisions of section 18(1) of the Superior
Courts Act. What the Minister is seeking to achieve is an amendment of the order of
the Supreme Court of Appe al, which stands as a result of this Court’s dismissal of the
appeal. The Minister cannot get that outcome using rule 42, submits Sakeliga.
MADLANGA J
5
[8] Sakeliga also argues that footnote 28 of the minority judgment is of no
consequence and cannot affect the majority judgment.
[9] What must I make of these submissions?
[10] The application does warrant direct access. Zuma tells us that it would be
inappropriate for any other court to entertain an application in terms of rule 42
pertaining to an order made by this Court.7
[11] Coming to the merits, the springboard of this application is the perceived
confusion caused by the content of footnote 28 of the minority judgment. The majority
judgment opens by clearly stating what it agrees with in the minority judgment. 8 That
does not include the content of footnote 28. In any event, a minority judgment is just
that. Unless parts of it have been adopted either expressly or impliedly, I do not
understand how it can affect the meaning of an order granted by the majority. The
footnote has certainly not been adopted expressly. Nor do I see a basis for an argument
that it has been adopted impliedly. It is worth noting that the Minister says the majority
judgment is “silent” on the content of the footnote. There is no basis whatsoeve r for
suggesting that the majority judgment adopted the content of footnote 28 of the minority
judgment. Therefore, the footnote could not have given rise to any confusion in this
Court’s order.
[12] Crucially, the Minister is aware of the import of section 1 8(1) of the
Superior Courts Act. He says in terms of this section the operation of the order of the
Supreme Court of Appeal was suspended from the date the Minister lodged an
application for leave to appeal to this Court on 23 November 2020. The law is, and has
always been, clear on the issue. In Ntlemeza the Supreme Court of A ppeal traces the
7 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud
in the Public Sector Including Organs of State (Council for the Advancement of the South African Constitution
and Democracy in Action as Amicus Curiae) [2021] ZACC 28; 2021 JDR 2069 (CC); 2021 (11) BCLR 1263 (CC)
at para 49.
8 Afribusiness above n 1 at para 96.
MADLANGA J
6
law from the common law position before any statutory intervention. 9 It quotes South
Cape Corporation, which held:
“Whatever the true position may have been in the Dutch Courts, and more particularly
the Court of Holland . . . it is today the accepted common law rule of practice . . . that
generally the execution of a judgment is aut omatically suspended upon the noting of
an appeal, with the result that, pending the appeal, the judgment cannot be carried out
and no effect can be given thereto, except with the leave of the court which granted the
judgment. To obtain such leave the par ty in whose favour the judgment was given
must make special application . . . . The purpose of this rule as to the suspension of a
judgment on the noting of an appeal is to prevent irreparable damage from being done
to the intending appellant, either by l evy under a writ of execution or by execution of
the judgment in any other manner appropriate to the nature of the judgment appealed
from.”10
[13] Plainly, execution of a judgment means giving effect to the judgment. And
reference to “execution of the judgment in any other manner appropriate to the nature
of the judgment appealed from”11 gives a wide meaning to the word “execution”. We
should not be led to think it relates only to execution under a writ of execution. Put
simply, it means giving effect to the order, whatever its nature. So, the suspension of
the execution of a judgment means “ the judgment cannot be carried out and no effect
can be given thereto”.12 And that applies to whatever it is that is required to be done or
has to take place in terms of the judgment.
[14] In what effectively amounted to “a restatement of the common law”, rule 49(11)
of the Uniform Rules of Court provided:
“Where an appeal has been noted or an application for leave to appeal against or to
rescind, correct, review or vary an order of a court has been made, the operation and
9 Ntlemeza v Helen Suzman Foundation [2017] ZASCA 93; 2017 (5) SA 402 (SCA) at para 19.
10 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at
544H-545B.
11 Emphasis added.
12 South Cape Corporation above n 10 at 544H.
MADLANGA J
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execution of the order in question shall be suspended, pending the decision of such
appeal or application, unless the court which gave such order, on the application of a
party, otherwise directs.”
This rule has since been repealed.13
[15] The position is now governed by section 18(1) of the Superior Courts Act. This
section provides:
“Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision which is the
subject of an application for leave to appeal or of an appeal, is suspended pending the
decision of the application or appeal.”14
This too is in line with the common law position which has already been explained.
And “operation” which the section couples with “execution” (“operation and
execution”) does not alter the legal position stated above.
[16] Based on this clear statuto ry position, the operation and execution of the order
of the Supreme Court of Appeal was halted. In practical terms, what happened
immediately after that order was granted was that the countdown on the 12 -month
period of suspension began. But the countdown was halted on the 21st day by the
lodgment of the application for leave to appeal in this Court. 15 Because section 18(1)
suspends the operation and execution of a judgment “pending the decision of the
13 Rule 49(11) was repealed by means of GN R317 GG 38694, 17 April 2015.
14 Section 18(2) and (3) provides:
“(2) Subject to subsection (3), unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision that is an interlocutory order not having the
effect of a final judgment, which is the subject of an application for leave to appeal or of an
appeal, is not suspended pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party
who applied to the court to order otherwise, in addition proves on a balance of probabilities that
he or she will suffer irreparable harm if the court does not so order and that the other party will
not suffer irreparable harm if the court so orders.”
15 The Supreme Court of Appeal made the order of invalidation on 2 November 2020 , and the application for
leave to appeal to this Court was lodged on 23 November 2020.
MADLANGA J
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application [for leave to appeal] or appeal ”, the countdown resumed after this Court
dismissed the appeal on 16 February 2022. Unsurprisingly, the Minister does realise
that this is how the order ought to be interpreted. He says he is seeking confirmation
that—
“the [Supreme Court of Appeal’s] order as a whole was suspended when the Mi nister
applied for leave to appeal to this Court; that the order of suspension by the
[Supreme Court of Appeal], once suspended by the application for leave to appeal, did
not take effect until this Court dismissed the Minister’s appeal; and that the declaration
of invalidity as ordered by the [Supreme Court of Appeal] remains suspended and the
period of suspension commenced running again after this Court dismissed the
Minister’s appeal on 16 February 2022.”
For the reasons I have given, there is no need for this clear legal position to be
confirmed.
[17] As at 16 February 2022, of the 12-month period of suspension, less than a month
had elapsed.
[18] With the legal position as plain as it is, I do not understand how the confusion
we hear about from the Minister could have arisen. It could have arisen only if
the Minister and the interest groups to which he refers interpreted the order without due
regard to the law; that is, the provisions of section 18 (1). Of course, there is no
justification for interpreting the order in a vacuum.
[19] In sum, there is no substance in the Minister’s submissions.
[20] The Director -General of the National Treasury, who is the deponent to
the Minister’s founding affidavit, informs this Court that subsequent to the dismissal of
the appeal and as a result of the perceived problem with the order, he sent out a
communication, the effect of which was to halt government procure ment pending the
MADLANGA J
9
outcome of the present application. Obviously, this decision was the result of a
misunderstanding of the law. It has nothing to do with the order of this Court.
[21] The Minister sought several alternative remedies in the event of the variation
order prayed for not being granted.16 The springboard for all the relief
sought – main and alternative – is the idea that there is something wrong with this
Court’s order. Well, there is not. That must mean the alternative relief must also fail.
16 The notice of motion reads:
“Take notice that the applicant (the Minister) hereby applies in terms of rules 12(1), 18 and 29
of the Rules of the Constitutional Court, read with rule 42 of the Uniform Rules of Court and
(to the extent necessary) section 167(6)(a) of the Constitution, for an order:
1. Enrolling this application as an urgent application and, insofar as may be necessary,
dispensing with the procedures prescribed by the Rules of the Constitutional Court,
and directing that the application be heard as one of urgency under rule 12(1) thereof ;
2. Granting the Minister direct access to the Constitutional Court in terms of
section 167(6)(a) of the Constitution.
3. Varying the order of the Constitutional Court in the matter CCT 279/20 (main case) to
make clear:
3.1. that the operation of the peri od of suspension in paragraph 2(a) of the order
of the Supreme Court of Appeal was suspended pending the Constitutional
Court’s decision of the appeal in the main case, and recommenced from
16 February 2022, being the date of the Constitutional Court’s order; and
3.2. that tender processes conducted by organs of state under the Preferential
Procurement Regulations, 2017, are not affected until the expiration of the
suspension period,
and by—
3.2.1 inserting appropriate sub -paragraphs to the order of the majority
judgment of Madlanga J; and
3.2.2 to the extent necessary, excising the second sentence of footnote 28
from the minority judgment of Mhlantla J.
4. In the alternative to, or together with, the relief sought in paragraph 3 and 4 above,
granting declaratory relief to the effect that the import of the judgment and order of the
Constitutional Court in the main case is what is set out in 3.1 and 3.2 above.
5. In the further alternative to the relief sought in paragraphs 3 and 4 above, granting
declaratory relief to the effect that the import of the judgment and order of the
Constitutional Court in the main case is what is set out in 3.1 and 3.2 above.
6. In the further alternative to paragraphs 3, 4 and 5 above, by declaring that the
declaration of invalidity shall operate prospectively only from the date of this Court’s
judgment.
7. Ordering any of the respondents who oppose the application to pay the Minister’s
costs, including the costs of two counsel, on a joint and several basis with any other
respondent who opposed the application.
8. Granting further and/or alternative relief.”
MADLANGA J
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Order
[22] Consequently, the following order is made:
The application is dismissed with costs, including costs of two counsel.
For the Applicant:
For the First Respondent:
N Maenetje SC and M Stubbs instructed
by the State Attorney, Pretoria
T Strydom SC and J P Slabbert
instructed by Kriek Wassenaar and
Venter Incorporated