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[2017] ZASCA 93
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Ntlemeza v Helen Suzman Foundation and Another (402/2017) [2017] ZASCA 93; [2017] 3 All SA 589 (SCA); 2017 (5) SA 402 (SCA) (9 June 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 402/2017
In
the matter between:
MTHANDAZO
BERNING NTLEMEZA
APPELLANT
and
HELEN
SUZMAN FOUNDATION
FIRST RESPONDENT
FREEDOM
UNDER LAW
SECOND RESPONDENT
Neutral
citation:
Ntlemeza
v Helen Suzman Foundation
[2017]
ZASCA 93
(9 June 2017)
Coram:
Navsa,
Ponnan, Majiedt, Dambuza, Mathopo JJA
Heard:
2
June 2017
Delivered:
9
June 2017
Summary:
Application
in terms of
s 18
of the
Superior Courts Act 10 of 2013
for execution
order pending finalisation of an appeal process: whether refusal of
an application for leave to appeal stultifies
application for leave
to execute notwithstanding that a further application for leave to
appeal to next highest court envisaged:
whether applicant for
execution order proved existence of exceptional circumstances as
contemplated in
s 18(1):
whether respondent, in terms of
s 18(3)
,
proved on balance of probabilities that it will suffer irreparable
harm in the event of the execution order not being granted
and that
the appellant would not: provisions of
s 18(4)
discussed: requirement
that court must ‘immediately record’ its reasons for
granting execution order: meaning of ‘next
highest court’
not entirely clear: whether two parallel appeal processes in the same
appeal court in the same case desirable.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Mabuse, Kollapen and Baqwa JJ
sitting as court of first instance):
1
The appeal is dismissed with costs including the costs of two
counsel.
2
The appellant is ordered to pay the costs personally.
JUDGMENT
Navsa
JA (Ponnan, Majiedt, Dambuza, Mathopo JJA concurring):
[1]
This appeal is concerned with whether the appellant,
Lieutenant-General Mthandazo Berning Ntlemeza (General Ntlemeza),
ought
to be permitted to continue in his post as National Head of the
Directorate for Priority Crime Investigations (DPCI), pending the
finalisation of an application for leave to appeal filed in this
court. It might appear strange and perhaps even confusing that
there
are two parallel processes being conducted in an appeal court in one
case, but that is on account of the provisions of
s 18
of the
Superior Courts Act 10 of 2013
, which gives an aggrieved party an
automatic right of appeal ‘to the next highest court’
against a decision of the
high court ordering the execution of an
earlier ruling issued by it, pending the finalization of an appeal or
an application for
leave to appeal. The background culminating in the
present appeal appears hereafter.
[2]
General Ntlemeza was appointed National Head of the DPCI on 10
September 2015 by the erstwhile Minister of Police, Mr Nkosinathi
Phiwayinkosi Thamsanqa Nhleko.
[1]
Before his aforesaid permanent appointment, General Ntlemeza had
served as acting National Head of the DPCI
[2]
for a period of approximately one year.
[3]
At this early stage it is necessary to locate the DPCI in its
constitutional and statutory setting. The South African Police
Service Act 68 of 1995 (the Act), in terms of which the DPCI was
established, has its genesis in s 205 of the Constitution, which
provides that the National Police Service must be structured to
function in the national, provincial and, where appropriate, local
spheres of government. Section 205(2) of the Constitution provides:
‘
(2)
National legislation must establish the powers and functions of the
police service and must
enable the police service to discharge its
responsibilities effectively, taking into account the requirements of
the provinces.’
Section
205(3) sets out the objects of the Police Service, which are to
prevent, combat and investigate crime, to maintain public
order, to
protect and secure the inhabitants of our country and their property
and to uphold and enforce the law. The political
responsibility for
the South African Police Service, in terms of s 206 of the
Constitution, vests in the Minister of Police. Moreover,
the Minister
is, in terms of that section, responsible for determining the
national policing policy.
[4]
The DPCI was established in terms of s 17C of the Act, which is in
part the legislation contemplated by the Constitution. The
material
part of s 17C reads as follows:
‘
(1)
The Directorate for Priority Crime Investigation is hereby
established as a Directorate in the Service.
(1A)
The Directorate comprises –
(a)
the
Office of the National Head of the Directorate at national level; and
(b)
the
Office of the Provincial Directorate in each province.
(2)
The Directorate consists of –
(a)
the
National Head of the Directorate at national level, who shall manage
and direct the
Directorate
and who shall be appointed by the Minister in concurrence with
Cabinet;
…
.
For
present purposes, we need not concern ourselves with the other
personnel that comprise the directorate. The DPCI’s functions
are set out as follows in s 17D of the Act:
‘
(1)
The functions of the Directorate are to prevent, combat and
investigate –
(a)
national
priority offences, which in the opinion of the National Head of the
Directorate need to be addressed by the Directorate
. . .
(aA)
selected
offences not limited to offences referred to in Chapter 2 and section
34
of the Prevention and Combatting of Corrupt Activities Act 12 of
2004…’
As
can be seen from all of the above, the National Head of the DPCI
occupies a pivotal position within the statutory scheme.
[5]
General Ntlemeza’s appointment as National Head of the DPCI by
Minister Nhleko was purportedly effected in terms of s
17CA(1) of the
Act, read with s 17C(2)
(a)
. Section 17 CA(1) reads:
‘
(1)
The Minister, with the concurrence of Cabinet, shall appoint a person
who is –
(a)
a
South African citizen; and
(b)
a
fit and proper person
,
with
due regard to his or her experience,
conscientiousness and
integrity
, to be entrusted with the responsibilities of the
office concerned, as the National Head of the Directorate for a
non-renewable
fixed terms of not shorter than seven years and not
exceeding 10 years.’
(My
emphasis.)
[6]
During March 2016 General Ntlemeza’s appointment was challenged
in the Gauteng Division of the High Court, Pretoria, by
the first and
second respondents, the Helen Suzman Foundation (HSF) and Freedom
Under Law NPC (FUL), respectively. Both HSF and
FUL are non-profit
organisations
concerned
with promoting constitutional values and the rule of law. The
application to review and set aside General Ntlemeza’s
appointment was brought in their own and the national interest.
[7]
In its application, HSF and FUL noted that the DPCI is a premier law
enforcement agency, integral to the battle against corruption
and
maladministration, which is why the Act requires the National Head to
be a person of integrity. They contended that in appointing
General
Ntlemeza to that high office, Minister Nhleko acted irrationally and
unlawfully and failed to fulfill his constitutional
duty to protect
the integrity and independence of the DPCI. The principal ground of
review was that Minister Nhleko had not taken
into account materially
relevant considerations, more particularly, he failed to have proper
regard to a judgment of the High Court,
by Matojane J, in an earlier
case in which General Ntlemeza’s integrity was called into
question. The case was
Sibiya
v Minister of Police & others
(GP)
unreported case no 5203/15 (20 February 2015).
[8]
Sibiya
concerned the legality of General Ntlemeza’s
suspension of Major General Shadrack Sibiya, a Provincial Head of the
DPCI, and
the appointment, in his stead, of General Elias Dlamini, as
acting Provincial Head of the DPCI. General Ntlemeza had accused
General
Sibiya of being involved in the illegal rendition of certain
Zimbabwean citizens. In deciding the matter, Matojane J made adverse
findings against General Ntlemeza. He stated that the decision to
suspend General Sibiya ‘was taken in bad faith and for
reasons
other than those given. It [was] arbitrary and not rationally
connected to the purpose for which it was taken and accordingly,
it
[was] unlawful as it violate[d] applicant’s constitutional
right to an administrative action that is lawful, reasonable
and
procedurally fair’. Matojane J went on to make the following
order:
‘
1.
It is declared that the Notice to Suspension served on the applicant
on 20 January 2015 is unlawful, unconstitutional and invalid;
and
2.
It is declared that the appointment of Major-General Elias Dlamini as
the acting Provincial Head of DPCI Gauteng is unlawful,
unconstitutional and invalid.
3.
[The Office of the National Head Directorate for Priority Crime
Investigations: Acting Nationals Head-Major General Berning Ntlemeza]
is ordered to pay the costs of the applicant, which will include the
costs of a senior and junior counsel.’
[9]
Aggrieved, General Ntlemeza filed an application for leave to appeal
but did not hasten to have it set down for hearing. Thereafter,
General Sibiya filed an application under
s 18
of the
Superior Courts
Act, seeking
leave to execute the declaratory order referred to
above. Matojane J, in his judgment dealing with the application for
leave to
appeal by General Ntlemeza and the application to execute by
General Sibiya, had regard to correspondence sent to his registrar
on
behalf of General Ntlemeza, suggesting that he (Matojane J) had acted
improperly in privately engaging with General Sibiya’s
legal
representatives. Similar remarks were made in General Ntlemeza’s
affidavit filed in opposition to the application to
execute, brought
by HSF and FUL. In his assessment of the merits of the two
applications, Matojane J once again made remarks calling
into
question General Ntlemeza’s integrity. He accused General
Ntlemeza of misleading the court by not informing it of a
report by
the National Independent Police Directorate which exonerated General
Sibiya. According to Matojane J, General Ntlemeza
referred only to a
prior report by the Provincial Independent Police Directorate, which
incriminated General Sibiya. He went on
to say: ‘In my view,
the conduct of [General Ntlemeza] shows that he is biased and
dishonest. To further show that [General
Ntlemeza was] dishonest and
lack[ed] integrity and honour, he made false statements under oath’.
[10]
Matojane J, in dealing with exceptional circumstances, which, as will
be seen later, need to be established before an execution
order can
be granted, said the following:
‘
On
the question whether exceptional circumstances exist [General
Ntlemeza’s] contemptuous attitude towards the rule of law
and
the principle of legality and transparency makes this case unique and
exceptional.’
[11]
Matojane J dismissed the application for leave to appeal and granted
the application to execute. He ruled that the order he
had issued,
set out in para 8 above, ‘shall operate and be executed in full
until the final determination of all present
and future appeals . . .
The order will operate and be executed despite the delivery of any
present or future applications for
leave to appeal . . . and
any noting of any appeal by any party’. The court stated that
there was no need for General
Sibiya to furnish security for the
execution of the order.
[12]
A full court (the high court) comprising three judges (Mabuse,
Kollapen and Baqwa JJ) probably because of the national importance
of
the case, was constituted to hear the review application brought by
HSF and FUL to have General Ntlemeza’s appointment
set aside.
As Part A of that application, HSF and FUL sought an interim
interdict preventing General Ntlemeza from exercising any
power or
discharging any function or duty as head of the DPCI, pending the
final determination of the review application. The application
for
interim relief was dismissed by Tuchten J, whose judgment featured in
the decision by the high court and in argument before
us. It is an
aspect to which I shall revert. A judgment by the high court in the
review application (Mabuse J, with the other two
judges concurring)
was delivered on 17 March 2017.
[13]
The high court held in favour of HSF and FUL. It reasoned as set out
in this and the following two paragraphs.
Section 17CA
, referred to
in para 5 above, requires an appointee as National Head of the DPCI
to be a fit and proper person who is also conscientious
and has
integrity. The high court had regard to the decision of the
Constitutional Court in
Democratic
Alliance v President of the Republic of South Africa & others
[2012] ZACC 24
;
2013 (1) SA 248
(CC) (the
Simelane
judgment), which involved the appointment of Mr Menzi Simelane as
National Prosecuting Authority Head, and held that the Minister,
like
the President, had an obligation to ensure that there were no
disqualifying factors impinging on the appointment of an individual
as the Head of an important national constitutional institution.
[14]
The high court found that the criteria set by the relevant provisions
of the Act were objective and constituted essential jurisdictional
facts on which General Ntlemeza’s appointment had to be
predicated. Mabuse J, with reference to the
Simelane
judgment,
said the following (para 33):
‘
In
the Simelane case, the Constitutional Court accepted the approach of
the Supreme Court of Appeal. In paragraph [14] of the said
case this
is what the Constitutional Court had to say:
“
The
Supreme Court of Appeal concluded that the President’s decision
was irrational irrespective of whether the decision taken
by the
President was subjective or whether the criteria for appointment of
the National Director were objective. It nevertheless
concluded, for
the purpose of giving guidance, that the requirement that the
National Director must be a fit and proper person
constituted a
jurisdictional fact capable of objective ascertainment.”
Accordingly,
even where the relevant decision maker has, in terms of the law, a
discretion relating to the person to be appointed,
the person who is
ultimately appointed must be a fit and proper person in the eyes of
the Minister:
“
Second,
and as the Supreme Court of Appeal correctly points out, the Act
itself does not say that the candidate for appointment
as National
Director should be fit and proper ‘in the President’s
view’. The Legislature could easily have done
so if the purpose
was to leave it in the complete discretion of the President.
Crucially, as the Supreme Court of Appeal again
pointed out, the
section ‘is couched in imperative terms. The appointee “must”
be a fit and proper person”’
.
[15]
The high court considered the judicial pronouncements by Matojane J
referred to above, that reflected negatively on General
Ntlemeza, to
be crucial in the assessment of whether the criteria set by s 17CA of
the Act had been satisfied for the appointment
of General Ntlemeza.
Mabuse J had regard to Minister Nhleko’s affidavit filed in
opposition to the application by HSF and
FUL challenging General
Ntlemeza’s appointment, in which he stated that he had been
aware of the remarks made in the judgments
but took the view that
they could be discounted. The high court held that the Minister was
not entitled to ignore Matojane J’s
findings concerning General
Ntlemeza’s lack of honesty and integrity. It found that it was
for the Minister to determine
positively from the objective facts
whether General Ntlemeza was a fit and proper person. It reasoned
that Minister Nhleko failed
to do so. In that regard it stated, at
para 37 of its judgment:
‘
The
judicial pronouncements made in both the main judgment and the
judgment in the application for leave to appeal are directly
relevant
to and in fact dispositive of the question whether Major General
Ntlemeza was fit and proper if one considers his conscientiousness
and integrity. Absent these requirements Lieutenant General Ntlemeza
is disqualified from being appointed the National Head of
the DPCI.’
The
court concluded that Minister Nhleko failed to take into account
relevant factors such as the findings by Matojane J, and thus
acted
irrationally and unlawfully. It made the following order:
‘
1.
The decision of the Minister of 10 September 2015 in terms of which
Major General Ntlemeza was appointed the National Head of
the
Directorate of Priority Crimes Investigations is hereby reviewed and
set aside.
2.
The first and second respondents, in their official capacities, are
hereby ordered to pay the applicant’s costs, including
the
costs consequent upon the employment of two counsel, the one paying
the other to be absolved.’
[16]
Subsequently, General Ntlemeza applied to the high court for leave to
appeal that order (the principal order). HSF and FUL,
in turn, filed
a ‘counter-application’, in terms of which they sought,
inter alia, as a matter of urgency, a declarator
that the operation
and execution of the principal order not be suspended by virtue of
any application for leave to appeal or any
appeal. That court
dismissed General Ntlemeza’s application for leave to appeal,
upheld the counter-application and made
an order in the following
terms:
‘…
2.
The operation and execution of the order granted by this court under
case no. 23199/16 on 17 March 2017 is not suspended and
will continue
to be operational and executed in full whether or not there are any
applications for leave to appeal and appeals
or whether or not there
is any petition for leave to appeal against the said order.
3.
The second respondent in the counter-application is hereby ordered to
pay the costs of this counter-application.’
It
is against that order (the execution order) and the conclusions on
which it was based, that the present appeal, in terms of
s 18
of the
Superior Courts Act, is
directed. Since
s 18(4)(ii)
gives a person
against whom an execution order was granted an automatic right of
appeal, it was not necessary for leave to appeal
to have been
sought.
[17]
In heads of argument filed in this court and at the outset of oral
argument before us, counsel on behalf of General Ntlemeza
relied on a
jurisdictional point which they submitted, was dispositive of the
appeal. The proposition was framed as follows:
In
terms of
s 18(1)
, a pending decision on an application for leave to
appeal or an appeal was a jurisdictional requirement before a court
considering
an application to enforce an order was empowered to make
an execution order of the kind set out in the preceding paragraph. It
was contended that sequentially the application for leave to appeal
by General Ntlemeza had been refused before FUL’s
counter-application
was upheld and thus the high court was precluded
from considering HSF and FUL’s counter-application, because the
jurisdictional
fact of a pending decision in relation to an appeal or
an application for leave to appeal was absent.
[18]
It is necessary to consider whether that contention is well-founded.
To that end, I propose to first consider the position
at common law
in relation to such applications before the enactment of
s 18
of the
Superior Courts Act. In
the event of it being held that the
preliminary point is without substance, I propose to deal with the
further provisions of
s 18
to determine whether HSF and FUL satisfied
its requirements thereby justifying the grant of the execution order.
[19]
This court, in
South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty)
1977 (3) SA 534
(A) at 544H-545G, set
out the common law position as follows:
‘
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 automatically 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
party 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 levy under a
writ of execution or by execution of the
judgment in any other manner
appropriate to the nature of the judgment appealed from . . . The
court to which application for leave
to execute is made has a wide
general discretion to grant or refuse leave and, if leave be granted,
to determine the conditions
upon which the right to execute shall be
exercised . . . In exercising this discretion the court should, in my
view, determine
what is just and equitable in all the circumstances,
and, in doing so, would normally have regard, inter alia, to the
following
factors:
(1)
the
potentiality of irreparable harm or prejudice being sustained by the
appellant on appeal (respondent in the application) if
leave to
execute were to be granted;
(2)
the
potentiality of irreparable harm or prejudice being sustained by the
respondent on appeal (applicant in the application) if
leave to
execute were to be refused;
(3)
the
prospects of success on appeal, including more particularly the
question as to whether the appeal is frivolous or vexatious
or has
been noted not with the
bona
fide
intention of seeking to reverse the judgment but for some indirect
purpose, eg, to gain time or harass the other party; and
(4)
where
there is the potentiality of irreparable harm or prejudice to both
appellant and respondent, the balance of hardship or convenience,
as
the case may be.’ (Authorities omitted.)
[20]
In
South
Cape
this
court held that in an application for leave to execute the onus rests
on the applicant to show that he or she is entitled to
such an
order.
[3]
The court went on to
hold that an order granting leave to execute pending an appeal was
one that had to be classified as
being purely interlocutory and was
thus not appealable. There were exceptions to the rule that purely
interlocutory orders were
not appealable.
It
is necessary to point out that a number of judgments of this court
relaxed this rule on the basis that an appeal may be heard
in the
exercise of the court’s inherent jurisdiction in extraordinary
cases where grave injustice was not otherwise preventable.
In
Philani-Ma-Afrika
&
others v Mailula & others
[2009] ZASCA 115
;
2010 (2) SA 573
(SCA) this court considered the
position where a high court had granted leave to execute an eviction
order despite having granted
leave to appeal. It held the execution
order to be appealable in the interests of justice.
[4]
It must also be borne in mind that before the advent of
s 18
, the
position at common law was that the court had a wide general
discretion to grant or refuse an execution order on the basis
of what
was just and equitable whilst appreciating that the remedy was one
beyond the norm.
[21]
Until its repeal on 22 May 2015, Rule 49(11) of the Uniform Rules,
read as follows:
‘
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 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
was a restatement of the common law and formed the basis on which
applications of this kind were determined.
[22]
Section 18
of the
Superior Courts Act introduced
on 23 August 2013
[5]
reads as follows:
‘
18
Suspension of decision pending appeal
(1)
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.
(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 an 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.
(4)
If a
court orders otherwise, as contemplated in subsection (1) –
(i)
the
court must immediately record its reasons for doing so;
(ii)
the
aggrieved party has an automatic right of appeal to the next highest
court;
(iii)
the
court hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv)
such
order will be automatically suspended, pending the outcome of such
appeal.
(5)
For
the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an appeal,
as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the rules.’
[23]
As can be seen,
s 18(4)(ii)
has made orders to execute appealable,
fundamentally altering the general position that such being purely
interlocutory orders,
they were not appealable. Moreover, it granted
to a party against whom such an order was made, an automatic right of
appeal. In
addition
s 18(3)
requires an applicant for an
execution order to prove on a balance of probabilities that he or she
‘will’ suffer irreparable
harm if the order is not
granted and that the other party ‘will not’ suffer such
harm.
[24]
Since a court of three judges was constituted to hear the matter,
this court, so it was submitted, was ‘the next highest
court’
envisaged in
s 18(4)(ii).
It is on that basis that the present appeal
came to be set down on an expedited basis before this court, because
s 18(4)(iii)
directed that the appeal had to be dealt with as a
matter of extreme urgency. Understandably, because it is such a
dramatic change,
only one appeal to ‘the next highest court’
is permissible. No further appeal beyond this court appears competent
–
for
present purposes it is not necessary to decide this point. Nor, is it
necessary to determine whether the next highest court
could, as well,
be the full court of the high court in circumstances where the
execution order was issued by a single Judge.
[6]
Whatever else, this matter, which is properly before this court,
requires the consideration of a novel statutory provision and
it
would be in the interests of justice for us to do so.
[25]
In order to embark on a determination of whether the preliminary
jurisdictional point raised on behalf of General Ntlemeza,
set out in
para 17 above, has substance, it is necessary to consider the
provisions of
s 18(1)
and (2). These sections provide for two
situations.
First,
a judgment (the principal order) that is final in effect, as
contemplated in
s 18(1):
In such a case the default position is that
the operation and execution of the principal order is suspended
pending ‘the
decision of the application for leave to appeal or
appeal’. Second, in terms of
s 18(2)
, an interlocutory order
that does not have the effect of a final judgment: The default
position (a diametrically opposite one to
that contemplated in
s
18(1))
is that the principal order is not suspended pending the
decision of the application for leave to appeal or appeal. This might
at first blush appear to be a somewhat peculiar provision as,
ordinarily, such a decision is not appealable. However, this
subsection
appears to have been inserted to deal with the line of
cases in which the ordinary rule was relaxed referred to in para 20
above.
[26]
Both sections empower a court, assuming the presence of certain
jurisdictional
facts,
to
depart from the default position. It is uncontested that the high
court’s judgment on the merits of General Ntlemeza’s
appointment is one final in effect and therefore
s 18(1)
applies.
This section provides that the operation and execution of a decision
that is the ‘subject of an application for
leave to appeal or
appeal’ is suspended pending the decision of either of those
two processes.
Section 18(5)
defines what the words ‘subject of
an application for leave to appeal or appeal’ mean: ‘a
decision becomes the
subject of an application for leave to appeal or
of an appeal, as soon as an application for leave to appeal or a
notice of appeal
is lodged with the registrar in terms of the rules.’
[27]
When the high court made its decision on the merits of General
Ntlemeza’s appointment on 17 March 2017, that order immediately
came into operation and could be executed. When General Ntlemeza, on
23 March 2017, filed his application for leave to appeal,
the order
(the principal order) of that court was suspended pending a decision
on that application. HSF and FUL’s ‘counter-application’,
seeking the execution order, was thus well within the parameters of
s
18(1).
Did the dismissal of General Ntlemeza’s application for
leave to appeal prior to a decision on the execution application
remove the jurisdictional underpinning for an execution order? The
short answer is no. The reasons for that conclusion are set out
hereafter.
[28]
The primary purpose of
s 18(1)
is to re-iterate the common law
position in relation to the ordinary effect of appeal processes –
the suspension of the order
being appealed – not to nullify it.
It was designed to protect the rights of litigants who find
themselves in the position
of General Ntlemeza, by ensuring, that in
the ordinary course, the orders granted against them are suspended
whilst they are in
the process of attempting, by way of the appeal
process, to have them overturned. The suspension contemplated in
s
18(1)
would thus continue to operate in the event of a further
application for leave to appeal to this court and in the event of
that
being successful, in relation to the outcome of a decision by
this court in respect of the principal order.
Section 18(1)
also sets
the basis for when the power to depart from the default
position comes into play, namely, exceptional circumstances
which
must be read in conjunction with the further requirements set
by
s18(3).
As already stated and as will become clear later, the
Legislature has set the bar fairly high.
[29]
The preliminary point on behalf of General Ntlemeza referred to in
para 17 above does not accord with the plain meaning of
s 18(1).
As
pointed out on behalf of HSF and FUL, and following on what is set
out in the preceding paragraph,
s 18(1)
does not say that the court’s
power to reverse the automatic suspension of a decision is dependent
on that decision being
subject to an application for leave to appeal
or an appeal. It says that, unless the court orders otherwise, such a
decision is
automatically suspended
.
[30]
Moreover, contextually, the power granted to courts by
s 18
must be
seen against the general inherent power of courts to regulate their
own process. This inherent jurisdiction is now enshrined
in s 173 of
the Constitution which provides:
‘
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into account
the interests of justice.’
[31]
A further application for leave to appeal the principal order was
filed in this court on 21 April 2017. This was always highly
likely
and always in prospect. The nature of the contestation in the high
court, including the negative aspersions concerning the
character of
the head of a leading crime-fighting unit of the South African Police
Service, leads to that compelling conclusion.
So too, one would
imagine, whatever this court decides it is unlikely to be the final
word on the matter. The execution order by
the high court reasonably
anticipated further appeal processes. This was in any event what was
sought by HSF and FUL in their counter
application. In their notice
of motion, they sought an order that the operation and execution of
the principal order not be suspended
‘by any application for
leave to appeal or any appeal, and the order continues to be
operational and enforceable and operate
… until the final
determination of all present and future leave to appeal applications
and appeals…’ A court
charged with the adjudication of
an application for an execution order would be astute to avoid a
multiplicity of applications.
[32]
There can be no doubt that an application by HSF and FUL for leave to
execute, had there not been one earlier, could have been
brought and
would have been competent after the application for leave to appeal
was filed in this court. Courts must be the guardians
of their own
process and be slow to avoid a to-ing and fro-ing of litigants.
[7]
The high court’s order achieved that end. A proper case had
been made out by HSF and FUL for anticipatory relief. The high
court
reasonably apprehended on the evidence before it that further appeals
were in the offing and issued an order that sought
not just to
crystallize the position but also to anticipate further appeal
processes. For all the reasons aforesaid there
is no merit in the
preliminary point.
[33]
There is a further point taken on behalf of General Ntlemeza that
requires only brief attention. The high court’s order
was
handed down on 12 April 2017 and the reasons for the order were
provided on 10 May 2017. It was submitted on behalf of General
Ntlemeza that since s 18(4)(i) states that a court must immediately
record its reasons for ordering ‘otherwise’, the
high
court by not doing so was in contravention of a peremptory provision,
which must be seen in conjunction with the provisions
of s18(4)(iii)
that provides that the court hearing the automatic appeal must
deal with it as a matter of extreme urgency.
The consequence, so it
was contended, was that General Ntlemeza was frustrated in asserting
his constitutionally guaranteed right
of access to court. It appears
to be suggested that this somehow nullified the proceedings related
to the application for leave
to execute the principal order. It must
be pointed out that General Ntlemeza filed his notice of appeal in
this court a day after
the order upholding the application for leave
to execute was issued, on 13 April 2017. The application for leave to
appeal in relation
to the principal order was filed on 21 April 2017.
General Ntlemeza’s notice of appeal was amended on 11 May 2017,
after
the high court had provided its reasons. The present appeal was
heard on 2 June 2017. Far from being frustrated, General Ntlemeza
has
had a speedy hearing. Furthermore, since the order to execute was
suspended pending the finalisation of the present appeal,
no
prejudice appears to have been occasioned. Simply put, the purpose of
s 18(4) namely, to ensure a speedy appeal, was achieved.
That being
said it would be a salutary practice to provide reasons
pari
passu
with the order being issued.
[34]
That leads us to a consideration of whether the high court in
granting the order to execute had due regard to the relevant
provisions of s 18 and applied them correctly.
[35]
Section 18(1) entitles a court to order otherwise ‘under
exceptional circumstances’. Section 18(3) provides a further
controlling measure, namely, a party seeking an order in terms of s
18(1) is required ‘in addition’, to prove 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.
[36]
In
Incubeta Holdings & another v Ellis & another
2014
(3) SA 189
(GJ) para 16, the court said the following about s 18:
‘
It
seems to me that there is indeed a new dimension introduced to the
test by the provisions of s 18. The test is twofold. The requirements
are:
·
First,
whether or not “exceptional circumstances” exist; and
·
Second,
proof on a balance of probabilities by the applicant of –
o
the
presence of irreparable harm to the applicant/victor, who wants to
put into operation and execute the order; and
o
the
absence of irreparable harm to the respondent/loser, who seeks leave
to appeal.’
[37]
As to what would constitute exceptional circumstances, the court, in
Incubeta
, looked for guidance to an earlier decision (on
Admiralty law), namely,
MV Ais Mamas Seatrans Maritime v Owners,
MV Ais Mamas, & another
2002 (6) SA 150
(C), where it was
recognised that it was not possible to attempt to lay down precise
rules as to what circumstances are to be regarded
as exceptional and
that each case has to be decided on its own facts. However, at
156H-157C, the court said the following:
‘
What
does emerge from an examination of the authorities, however, seems to
me to be the following:
1.
What
is ordinarily contemplated by the words “exceptional
circumstances” is something out of the ordinary and of an
unusual nature; something which is excepted in the sense that the
general rule does not apply to it; something uncommon, rare or
different; “besonder”, “seldsaam”,
“uitsonderlik”, or “in hoë mate ongewoon”.
2.
To be
exceptional the circumstances concerned must arise out of, or be
incidental to, the particular case.
3.
Whether
or not exceptional circumstances exist is not a decision which
depends upon the exercise of a judicial discretion: their
existence
or otherwise is a matter of fact which the Court must decide
accordingly.
4.
Depending
on the context in which it is used, the word “exceptional”
has two shades of meaning: the primary meaning
is unusual or
different; the secondary meaning is markedly unusual or specially
different.
5.
Where,
in a statute, it is directed that a fixed rule shall be departed from
only under exceptional circumstances, effect will,
generally
speaking, best be given to the intention of the Legislature by
applying a strict rather than a liberal meaning to the
phrase, and by
carefully examining any circumstances relied on as allegedly being
exceptional.’
[38]
In
UFS
v Afriforum & another
[2016] ZASCA 165
(17 November 2016), para 9, this court stated that
it was immediately discernable from ss 18(1) and (3) that the
Legislature proceeded
from the well-established premise of the common
law, that the granting of relief of this nature constituted an
extraordinary deviation
from the norm that, pending an appeal, a
judgment and its attendant orders are suspended. It noted that the
exceptionality is further
underscored by the requirement of s
18(4)(i); that the court making such an order ‘must immediately
record its reasons for
doing so’. I interpose to state that the
reasons contemplated in s 18(4)(i) must relate to the court’s
entire reasoning
for deciding ‘otherwise’ and must
therefore also include its findings on irreparable harm as
contemplated in s 18(3).
[39]
In
UFS,
this
court agreed that whether exceptional circumstances were present
depended on the facts of each case. The circumstances must
be such as
to justify the deviation from the norm.
[8]
The high court, in deciding the application in terms of s 18(1),
after referring to
Incubeta,
went
on to consider the facts. It took into account that the DPCI was an
essential component of South Africa’s democracy and
that given
its functions, it was vital that the National Head had to be someone
of integrity. In this regard it considered the
judicial
pronouncements of Matojane J to be crucial.
[40]
Before the high court, counsel on behalf of General Ntlemeza had
submitted that HSF, FUL and the high court itself had not
taken into
account the remarks of Tuchten J in his judgment declining to grant
an interim interdict pending finalization of the
application to have
General Ntlemeza’s appointment declared unlawful.
[9]
It was contended that those remarks had the effect of neutralizing
the negative judicial pronouncements of Matojane J.
[41]
It is apt at this stage to pause and consider the remarks made by
Tuchten J. He considered Matojane’s adverse comments,
referred
to in para 8 above, and the accusation that Matojane J had met
privately with the legal representatives of one party.
According to
Tuchten J, these statements had ‘distressed’ Matojane
J.
[10]
Tuchten J considered
the further negative findings by Matojane J, referred to in paras 9
and 10 above, which were based on events
related to the application
for leave to appeal and the ‘counter-application’. He
said the following (para 27):
‘
It
is difficult to understand how the conduct of [General Ntlemeza] in
relation to the application to put the main judgment into
force
pending appeal could have a bearing on the ground of appeal.’
He
went on to state (para 66):
‘
I
do not think that in
Sibiya
,
in relation to the application for leave to appeal and to put the
order into operation pending the appeal, I would have judged
[General
Ntlemeza] as severely as did Matojane J. I think one must make some
allowance for an aggrieved litigant. In addition the
preposterous
conclusion to which [General Ntlemeza] came regarding the probity of
the learned judge was probably fueled by absurd
legal advice.
[General Ntlemeza] and probably one or more of his lawyers jumped to
a wholly unjustified conclusion. But that, as
I see it, does not
necessarily, or even probably, prove a lack of integrity.’
[42]
To the submissions by counsel on behalf of General Ntlemeza in
relation to the remarks of Tuchten J, referred to in para 41
above,
the high court responded as follows:
‘
[General]
Ntlemeza and the Minister sought leave ... to appeal the
Sibiya
judgment and leave to appeal was refused. The Minister thereafter
petitioned the Supreme Court of Appeal against Matojane’s
judgment in which he made remarks about General Ntlemeza. The
Minister’s application for leave to appeal was dismissed….’
[11]
Later
the court said:
‘
It
is our considered view that those remarks which constituted the
foundation upon which the applicants launched the main application
themselves constitute exceptional circumstances as envisaged by s
18(1) of the Act.’
[12]
[43]
In adjudicating the application for leave to execute the principal
order the high court considered General Ntlemeza’s
prospects of
success on appeal in relation to the finding that his appointment was
unlawful. It concluded that the findings by
Matojane J which
reflected negatively on General Ntlemeza were a major obstacle for
him to overcome and held that his prospects
of success were ‘severely
limited’.
[44]
In
UFS,
this
court, after considering that
Incubeta
had held that the prospects of success in the pending appeal played
no part in deciding whether to grant the application, preferred
the
contrary approach of the court in
The
Minister of Social Development Western Cape & others v Justice
Alliance of South Africa & another
(WCC) unreported case no 20806/13 (1 April 2016). However, in
UFS
,
in deciding the matter before it, this court recorded that the review
record was not before it and thus had no regard to the prospects
of
success. We are in the same position in the present appeal. As in
UFS
,
but more so, because of the application for leave to appeal the
principal order pending in this case, before us the question of
prospects of success recedes into the background. As stated at the
commencement of this judgment, s 18 has now had as a consequence
the
curious and ostensibly undesirable position that there are two appeal
processes in one appeal court in relation to the same
case.
[45]
Before us it was submitted that the appellants had failed to show
exceptional circumstances and that the high court had erred
in
deciding the contrary. I disagree, for the reasons provided by that
court, referred to above, and those submitted on behalf
of HSF and
FUL. I agree with the remarks of the high court in relation to the
pronouncements by Tuchten J. In my view he misconceived
his role. He
was not sitting as a court of appeal or review. His remarks do not,
as suggested by counsel for HSF and FUL, have
a neutralising or any
other effect of disturbing the findings of Matojane J. The proper
functioning of the foremost corruption
busting and crime fighting
unit in our country dictates that it should be free of taint. It is a
matter of great importance. The
adverse prior crucial judicial
pronouncements and the place that the South African Police Service
maintains in the constitutional
scheme as well as the vital role of
the National Head of the DPCI and the public interests at play, are
all factors that weighed
with the court in its conclusion that there
were exceptional circumstances in this case.
[46]
The high court turned its attention to the requirements of s 18(3),
namely the irreparable harm that would be suffered by either
party.
It took into account the submission on behalf of General Ntlemeza
that removal from his office, ‘even if it is momentary’
would be a devastating blow to his ‘long and unblemished’
career. The high court held that the damage that had been
done was
not as a consequence of the main application but because of the
findings of Matojane J, and stated that it failed to see
how the
enforcement order would wreak the harm General Ntlemeza complained
would be occasioned. It took into account that he continued
to be
paid his full salary and that he still had the possibility of
vindication by way of an appeal, should it ensue as a result
of a
favourable outcome of his petition and a subsequent appeal to this
court. Before us, counsel for General Ntlemeza appeared
to restrict
himself to the contention that General Ntlemeza was suffering
reputational harm. But given the findings of Matojane
J, the
submission that being kept out of his office occasions him
reputational harm does not withstand scrutiny. I may add that
General
Ntlemeza sought to appeal against the judgment of Matojane J, but his
petition to this court failed. In the result, the
findings by
Matojane J are no longer susceptible to reconsideration.
[47]
Insofar as the requirements of s 18(3) are concerned the high court
cannot be faulted for its approach in respect of the question
of
irreparable harm to General Ntlemeza. On the other side of the coin
there is the public interest and the crucial place that
the DPCI
enjoys in our young democracy as set out above.
[13]
In
my view the high court cannot be criticized for concluding that HSF
and FUL had proved, on a balance of probabilities, that the
public
will suffer irreparable harm if the court does not grant the order,
and that General Ntlemeza will not suffer irreparable
harm in light
thereof.
[48]
For completeness, it is necessary to record that Minister Nhleko, the
decision-maker in relation to General Ntlemeza’s
appointment,
made common cause with him in his opposition to the challenge by HSF
and FUL. The Minister of Police and General Ntlemeza
applied for
leave to appeal the judgment. On 11 April 2017 Minister Nhleko’s
successor, Minister Mbalula, withdrew the application
for leave to
appeal and tendered costs. The present Minister played no part in
this appeal. Simply put, the present Minister did
not seek to defend
Minister’s Nhleko’s decision to appoint General
Ntlemeza.
[49]
Even though the present appeal is being pursued by General Ntlemeza
in his personal capacity, it became apparent towards the
end of
proceedings before us that his case was funded by the State. The
propriety of that course is beyond our scrutiny. There
is of course
no reason in the present case for a costs order to attach in any
other way than personally.
[50]
It must by now be apparent that the appeal is bound to fail. The
effect of the order that follows is that the high court’s
execution order set out in para 16 above remains extant with the
consequence that General Ntlemeza is unable to return to his post
pending the final determination of the present application for leave
to appeal and/or any further appeal processes in relation
to the
merits of his appointment.
[51]
For all the reasons aforesaid the following order is made:
1
The appeal is dismissed with costs including the costs of two
counsel.
2
The appellant is ordered to pay the costs personally.
_____________________
M S Navsa
Judge
of Appeal
APPEARANCES:
Appellant:
N Dukada SC (with Z Madlanga)
Instructed
by:
Ngidi
& Company Inc., Pretoria
Bahlekazi
Attorneys, Bloemfontein
Respondents:
D
Unterhalter SC (with C Steinberg)
Instructed
by:
Webber
Wentzel Attorneys, Sandton
Symington
& De Kok Attorneys, Bloemfontein
[1]
Minister Nhleko
was
subsequently removed from that position by the President of South
Africa and appointed as Minister of Public Works. He was
succeeded
by the present Minister of Police, Mr Fikile Mbalula.
[2]
From December 2014
to September 2015.
[3]
At 548C-D.
[4]
See also
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Services
1996 (3) SA 1
(A
);
S v Western Areas Ltd & others
2005 (5) 214 (SCA), and
Nova
Property Group Holdings Ltd & others v Cobbett & another
[2016] ZASCA 63; 2016 (4) SA 317 (SCA).
[5]
Issued in terms of
GN R36,
GG
36774, 22 August 2013.
[6]
This court might
in future face a growing number of appeals against execution orders,
particularly because the right to appeal
is automatic, which might
clog its roll.
[7]
I
n
Copthall
Stores Ltd. v Willoughby's Consolidated Co. Ltd.
(1)1913
AD 305 at 308, this court stated that it has an inherent right to
control its own judgments, and in the light of the circumstances
of
each case to say whether or not execution should be suspended
pending an application for special leave to appeal. See also
Fismer
v Thornton
1929 AD 17
at
19.
[8]
UFS v Afriforum
& another
[2016] ZASCA 165
(17 November 2016) p
ara
13.
[9]
Helen Suzman
Foundation & another v Minister of Police & others
(GP) unreported case no 23199/15 (19 April 2016).
[10]
Ibid, p
ara
25.
[11]
Para 14.
[12]
Para 16.
[13]
Helen Suzman
Foundation & another v Minister of Police & others
(GP) unreported case no 23199/15 (19 April 2016) para 30.