Brief Summary

Constitutional Law — Right of access to courts — Challenge to constitutionality of section 20(4)(b) of the Supreme Court Act, 59 of 1959 — Applicant sought direct access to challenge provision requiring leave to appeal from provincial or local divisions — Claimed violation of rights to equality and access to courts under sections 8 and 22 of the Constitution — Court held that the leave to appeal procedure does not constitute a denial of access to courts, as it allows for informed decisions on the merits of appeals — Direct access granted due to the applicant's lack of alternative remedies.

Comprehensive Summary

Summary of Judgment

Introduction

This matter was an application to the Constitutional Court for direct access in terms of section 100(2) of the Constitution of the Republic of South Africa, Act 200 of 1993, read with rule 17 of the Constitutional Court rules. The applicant sought a constitutional declaration concerning the validity of a statutory provision governing leave to appeal in civil matters.

The applicant was Oded Besserglik. The respondents were the Minister of Trade, Industry and Tourism and others. The Minister of Justice intervened as an intervening party.

The procedural history arose from civil proceedings in the Transvaal Provincial Division. On 16 August 1994, Curlewis J dismissed the applicant’s action for damages for wrongful prosecution, with costs. The applicant then sought leave to appeal, which was refused by Curlewis J on 15 May 1995, together with a refusal to postpone the leave application pending an approach to the Constitutional Court. The applicant petitioned the Appellate Division on 31 May 1995 for relief aimed at enabling him to approach the Constitutional Court; that petition was refused. On 18 September 1995, the applicant approached the Constitutional Court for direct access, seeking to challenge the constitutionality of section 20(4)(b) of the Supreme Court Act 59 of 1959.

The general subject-matter of the dispute was whether the statutory leave-to-appeal requirement for civil appeals from provincial or local divisions unlawfully limited constitutional rights, particularly equality and access to courts under Chapter 3 of the 1993 Constitution, and whether the Constitutional Court should entertain the challenge by way of direct access given the available procedural mechanisms for referral.

Material Facts

The court treated the relevant facts largely as procedural and essentially undisputed. The applicant’s underlying civil claim was for damages for wrongful prosecution. That action was dismissed by Curlewis J on 16 August 1994, with an adverse costs order against the applicant. This dismissal triggered the applicant’s attempt to appeal.

When the applicant’s application for leave to appeal was heard on 15 May 1995 in the Transvaal Provincial Division, he requested a postponement of the leave application pending an intended approach to the Constitutional Court. Curlewis J refused the postponement and also refused leave to appeal. The applicant thereafter petitioned the Appellate Division on 31 May 1995, seeking relief framed as a postponement-related mechanism to enable him to approach the Constitutional Court. The petition was refused.

The applicant then launched an application on 18 September 1995 for direct access to the Constitutional Court. The constitutional challenge was directed at section 20(4)(b) of the Supreme Court Act 59 of 1959, which provides that, in civil matters, an appeal from a provincial or local division may proceed only with leave granted either by the court a quo or, if refused, by the Appellate Division. The applicant contended that this statutory precondition was inconsistent with the 1993 Constitution, relying on section 8 (equality) and section 22 (access to courts).

A further procedural fact material to the disposition was the applicant’s late attempt, after notice of judgment had been given, to file a written reply long out of time. The court recorded that the applicant was approximately five months out of time, had not brought a condonation application, and had provided no explanation for the delay or for the late delivery of a reply dated earlier. The court refused an informal request to postpone judgment and declined to accept the late reply.

Legal Issues

The first central legal question was procedural and concerned the proper route to the Constitutional Court: whether the applicant’s use of direct access under section 100(2) and rule 17 was appropriate, or whether he should instead have sought a referral of the constitutional issue under section 102 of the Constitution (including the mechanisms in section 102(1) and potentially section 102(4)–(6)).

The second set of questions was substantive and constitutional: whether section 20(4)(b) of the Supreme Court Act 59 of 1959 was inconsistent with the Constitution, specifically whether it infringed section 22 (the right to have justiciable disputes settled by a court of law or other appropriate independent and impartial forum) and section 8 (equality before the law and equal protection of the law), on the basis that it imposed a leave-to-appeal screening mechanism for civil appeals.

These issues involved primarily questions of law, including constitutional interpretation and the application of constitutional standards to the statutory scheme governing appeals. The direct access enquiry additionally involved a discretionary or evaluative determination of whether exceptional circumstances existed and whether granting direct access was in the interests of justice, as contemplated by the Constitution and rule 17.

Court’s Reasoning

On the procedural issue of direct access, the court reiterated that direct access is an extraordinary procedure available only in exceptional circumstances. The court referred to its prior statements that a relevant consideration is whether an applicant has exhausted other remedies or procedures ordinarily available. Against that framework, the court considered the applicant’s failure to invoke the mechanisms for referral of a constitutional issue at the appropriate time.

The court observed that, when the leave-to-appeal application was before the Provincial Division, the applicant did not apply for the constitutional challenge to be referred to the Constitutional Court, even though the issue fell within the Constitutional Court’s exclusive jurisdiction and might have been decisive of the proceedings. The court further noted that the petition to the Appellate Division might have used the procedures contemplated by section 102(4)–(6), but it did not. While the court recognised that this failure might have been influenced by the novelty of the constitutional procedures at the time, it weighed this against the practical position that the applicant had almost no further recourse and would be unlikely to obtain relief elsewhere if direct access were refused. In those circumstances, the court held it appropriate to grant direct access.

On the merits under section 22, the court addressed the applicant’s contention that the right of access to courts necessarily includes a right of appeal, and that a statutory leave-to-appeal mechanism infringes that implied right. The court drew on its earlier decision in S v Rens, where a comparable leave-to-appeal scheme in criminal matters was upheld against a fair-trial challenge premised on an express constitutional right to appeal or review. The court reasoned that the considerations supporting the constitutionality of a screening mechanism in Rens were equally applicable to civil appeals, notwithstanding that the criminal right in section 25(3)(h) is textually distinct and not directly applicable to civil proceedings.

The court also referred to Bernstein v Bester, in which doubts had been expressed about reading section 22 as necessarily encompassing a right of appeal, although the point had not required definitive resolution there. The court stated that, even if the applicant’s characterisation of section 22 were accepted, the applicant still needed to show that the combined leave-to-appeal and petition procedures under section 20(4)(b) failed to provide an adequate right of appeal. The court concluded that the applicant did not establish this. In the court’s analysis, a screening procedure that excludes unmeritorious appeals is not, without more, a denial of access to courts, provided that the mechanism enables a higher court to make an informed decision about prospects of success. On that basis, the court held that section 20(4)(b) was not inconsistent with section 22.

On the section 8 equality argument, the applicant’s complaint was that appeal procedures differ between the Supreme Court (where leave to appeal is required) and magistrates’ courts (where an appeal is described as automatic). The court adopted the reasoning in S v Rens, where the Constitutional Court rejected an analogous equality argument concerning different appellate procedures for different tiers of courts. The court held that equality before the law and equal protection of the law do not require identical appeal procedures across different levels of courts; rather, the equality requirement is met where all persons appealing from (or to) a particular court are subject to the same procedures. The court also noted that it was not suggested that the differentiation amounted to unfair discrimination, whether direct or indirect, on any listed or analogous ground. Accordingly, the court held that the section 8 challenge could not be sustained.

Finally, the court dealt with the applicant’s late attempt to file a reply after notice that judgment would be handed down. The court emphasised non-compliance with the court’s directions and rules, the absence of a condonation application, and the absence of any explanation for the delay. It refused the request to withhold judgment and declined to accept the reply.

Outcome and Relief

The Constitutional Court granted direct access but rejected the constitutional challenge on the merits. It declared that section 20(4)(b) of the Supreme Court Act 59 of 1959 was not inconsistent with the Constitution of the Republic of South Africa, Act 200 of 1993.

The judgment contains no separate costs order in the final order as recorded, and the relief granted was confined to the declaratory order upholding the provision’s constitutionality.

Cases Cited

S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC).

Executive Council, Western Cape and others v President of the Republic of South Africa and others [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC).

Ferreira v Levin and others; Vryenhoek and others v Powell and others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC).

S v Mbatha; S v Prinsloo [1996] ZACC 1; 1996 (3) BCLR 293 (CC).

Luitingh v Minister of Defence CCT 29/95, unreported judgment of the Constitutional Court dated 4 April 1996.

S v Rens [1995] ZACC 15; 1996 (1) SA 1218 (CC); 1996 (2) BCLR 155 (CC).

S v Ntuli [1995] ZACC 14; 1996 (1) SA 1207 (CC); 1996 (1) BCLR 141 (CC).

Bernstein v Bester (CCT 23/95, unreported decision of the Constitutional Court dated 27 March 1996).

Legislation Cited

Constitution of the Republic of South Africa, Act 200 of 1993, including section 8, section 22, section 25(3)(h), section 100(2), and section 102 (including references to section 102(1) and section 102(4)–(6)).

Supreme Court Act 59 of 1959, section 20(4)(b).

Criminal Procedure Act 51 of 1977, section 316.

Rules of Court Cited

Constitutional Court rule 17.

Held

The Constitutional Court held that, although the applicant had not followed the ordinarily available referral procedures under section 102 at the appropriate time, direct access was justified in the circumstances because the applicant had limited remaining recourse and refusal to entertain the application would likely foreclose relief.

On the merits, the court held that section 20(4)(b) of the Supreme Court Act 59 of 1959 did not infringe section 22 of the 1993 Constitution, because a leave-to-appeal system that screens out unmeritorious appeals does not amount to a denial of access to courts where it permits a higher court to make an informed decision about prospects of success.

The court also held that the provision did not violate section 8 of the Constitution. Differences between appeal procedures applicable to different tiers of courts do not, without more, offend equality, provided that persons within the same tier are subject to the same procedures and absent a showing of unfair discrimination.

LEGAL PRINCIPLES

A grant of direct access under section 100(2) and rule 17 is an exceptional remedy. In assessing whether exceptional circumstances exist, the court treats the availability and non-exhaustion of other procedures, including possible statutory or constitutional referral mechanisms, as relevant considerations; however, practical considerations of whether the applicant has any realistic remaining recourse may support the grant of direct access in the interests of justice.

A statutory leave-to-appeal requirement in civil proceedings is not, merely because it limits automatic access to an appellate hearing, inconsistent with the constitutional right of access to courts under section 22, where it operates as a rational screening mechanism and allows a higher court to consider, on an informed basis, whether an appeal has prospects of success.

The equality guarantee in section 8 does not require identical appellate procedures across different levels of courts. Differentiated procedures between court tiers are compatible with equality where litigants within the same tier are subject to the same appeal requirements, and where no unfair discrimination on listed or analogous grounds is established.

Besserglik v Minister of Trade Industry and Tourism and Others (Minister of Justice intervening) (CCT34/95) [1996] ZACC 8; 1996 (6) BCLR 745; 1996 (4) SA 331 (14 May 1996)