Bruce and Another v Fleecytex Johannesburg CC and Others (CCT1/98) [1998] ZACC 3; 1998 (2) SA 1143; 1998 (4) BCLR 415 (24 March 1998)

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[1998] ZACC 3
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Bruce and Another v Fleecytex Johannesburg CC and Others (CCT1/98) [1998] ZACC 3; 1998 (2) SA 1143; 1998 (4) BCLR 415 (24 March 1998)

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CONSTITUTIONAL COURT OF
SOUTH AFRICA
                                                                                                                     Â
     Â
Case CCT
1/98
ELMARIE MADELYN BRUCE
                                                                   Â
  Â
First Applicant
BABY ANGEL CC                                                                                       Â
Second
Applicant
versus
FLEECYTEX
JOHANNESBURG CC
                                                          Â
First Respondent
THE LIQUIDATOR OF BABY ANGEL CC                                Â
                Second
Respondent
THE MASTER OF THE HIGH COURT, PRETORIA                                    Third
Respondent
Decided on:    Â
24 March
1998
JUDGMENT
CHASKALSON P
:
[1]
            This is an application
for direct access brought in terms of Rule 17 of the Constitutional Court Rules
in
a matter in which the applicant seeks an order declaring that the provisions
of section 150(3) of the Insolvency Act are unconstitutional.
[1]
[2]
            Rule 17(1) provides:
“The Court
shall allow direct access in terms of section 100(2) of the [interim]
Constitution in exceptional circumstances only,
which will ordinarily exist
only where the matter is of such urgency, or otherwise of such public
importance, that the delay necessitated
by the use of the ordinary procedures
would prejudice the public interest or prejudice the ends of justice and good
government.”
This rule was adopted
under the provisions of section 100(2) of the interim Constitution
[2]
which stipulated:
“The rules of
the Constitutional Court may make provision for direct access to the Court
where it is in the interest of justice
to do so in respect of any matter over
which it has jurisdiction.”
[3]
            Section
167(6) of the 1996 Constitution
[3]
now provides:
“National
legislation or the rules of the Constitutional Court must allow a person, when
it is in the interests of justice and
with leave of the Constitutional Court -
(a)        to bring a matter directly to the
Constitutional Court; or
(b)        to appeal directly to the Constitutional Court from any other
Court.”
Section 167(6) was
considered by this Court in
S v Pennington and another
[4]
at a time when the
legislation and rules contemplated by the 1996 Constitution had not yet been
passed.  Although legislation
making provision for the adoption of rules for
the Constitutional Court has now been passed,
[5]
it is not yet in force, and for practical purposes the situation is the same as
it was at the time of the decision in
Pennington
.  Pending the coming
into force of the relevant legislation and the adoption of rules in terms of
its provisions, the rules adopted
under the interim Constitution remain in
force subject to their being consistent with the 1996 Constitution.
[6]
[4]
            According
to Rule 17 direct access to the Court is permissible in “exceptional
circumstances only”.Â
Different words are used in section 167(6) of the 1996
Constitution which permits such access in “the interests of justice and
with
leave of the Constitutional Court”.  The interests of justice will ordinarily
be satisfied if the requirements of Rule
17 are met.  Whether there are
circumstances beyond those contemplated by Rule 17 which would justify the
granting of direct access
under section 167(6) need not be decided in the
present case, which in my view is clearly one in which this Court ought not to
exercise its power under section 167(6) to permit direct access.  The reasons
for my decision are as follows.
[5]
            In terms of
the 1996 Constitution the President, Premiers, Members of Parliament and
Members of Provincial
Legislatures are entitled to bring certain matters
directly to this Court.
[7]
  There are also certain matters in respect of which this Court has
exclusive jurisdiction.
[8]
Â
But subject to these exceptions the 1996 Constitution recognises that there
should not ordinarily be an unqualified right to
approach this Court directly.
[6]
            This
applies to both the Court’s appellate jurisdiction and its original
jurisdiction to hear matters as
a court of first instance.  In dealing with
applications for leave to appeal against a decision of the Supreme Court of
Appeal
this Court has held that the prospects of success are of fundamental
importance.
[9]
  Such an appeal is the only remedy left to the applicant and if
there are reasonable prospects that the appeal will succeed there
are
compelling reasons for granting the leave that is necessary.  As yet no
decision has been given on the circumstances in which
it would be appropriate
to note an appeal directly to this Court from a court other than the Supreme
Court of Appeal.  In such
matters, however, the relevant considerations may well
be different for the aggrieved litigant has other remedies which can be pursued

before approaching this Court for its decision on the matter.
[7]
            Whilst the
prospects of success are clearly relevant to applications for direct access to
this Court,
[10]
there are other considerations which are at least of equal
importance.  This Court is the highest court on all constitutional matters.Â

If, as a matter of course, constitutional matters could be brought directly to
it, we could be called upon to deal with disputed
facts on which evidence might
be necessary, to decide constitutional issues which are not decisive of the
litigation and which
might prove to be purely academic, and to hear cases
without the benefit of the views of other courts having constitutional
jurisdiction.Â
These factors have been referred to in decisions given by this
Court on applications for direct access under the interim Constitution,
[11]
and are clearly relevant to
the granting of direct access under the 1996 Constitution.Â
[8]
            It is,
moreover, not ordinarily in the interests of justice for a court to sit as a
court of first and last
instance, in which matters are decided without there
being any possibility of appealing against the decision given.  Experience

shows that decisions are more likely to be correct if more than one court has
been required to consider the issues raised.  In
such circumstances the losing
party has an opportunity of challenging the reasoning on which the first
judgment is based, and of
reconsidering and refining arguments previously
raised in the light of such judgment.
[9]
            Under the
1996 Constitution, High Courts as well as the Supreme Court of Appeal have
constitutional jurisdiction
including the jurisdiction to make an order
concerning the validity of the provisions of an Act of Parliament.
[12]
Â
Although an order made by such Courts declaring an Act of Parliament to be
invalid has no force unless confirmed by this Court,
[13]
the court making the order may
grant a temporary interdict or other temporary relief pending the decision of
this Court.
[14]
Â
The procedure contemplated by the 1996 Constitution is that such orders of
constitutional invalidity will be referred to this
Court for confirmation, and
that appropriate procedures in such cases will be provided for by national legislation.
[15]
  This Court has held that
pending the enactment of such legislation it has the competence to give
directions as to the procedures
to be followed in respect of such referrals.
[16]
  Bearing in mind the
jurisdiction of the High Courts and the Supreme Court of Appeal, and the
matters referred to in paragraphs
7 and 8 of this judgment, compelling reasons
are required to justify a different procedure and to persuade this Court that
it should
exercise its discretion to grant direct access and sit as a court of
first instance.
[10]
            The
background to the present application is as follows
.
 The first applicant (Bruce) is the sole member of a
close corporation (Baby Angel) which was placed in liquidation on 4 December

1997 by an order of the Witwatersrand High Court.  On the same day an
application for leave to appeal against the liquidation
order was noted.  A
liquidator appointed pursuant to the winding up order sought to proceed with
the winding up of Baby Angel
but Bruce objected to this.  She contended that in
terms of Rule 49(11) of the Uniform Rules of Court
[17]
the
winding up order had been suspended by the noting of the application for leave
to appeal, and that as sole member of Baby Angel
she was still entitled to
control its affairs.  On 23
January 1998 Bruce brought an urgent
application in the High Court in the name of Baby Angel for an interdict
restraining the liquidator
from proceeding with the winding up.
[11]
            The liquidator opposed
the application contending that section 150(3) of the Insolvency Act is
applicable
to the winding up of close corporations, and that the provisions of
the winding up order were accordingly not suspended by the noting
of the
application for leave to appeal.  The liquidator’s contention was upheld by
Wunsh J and the application for an interdict
was dismissed with costs.
[12]
            On 29 January 1998
Bruce applied urgently to this Court for an order declaring that section 150(3)
of the
Insolvency Act is invalid in that it
“. . .
deprives individuals, companies and Close Corporations who appeal against
sequestration or liquidation orders of the right
of access to the Court in
terms of Rule 49(11) which is part of section 20 of Act 59 of 1959 and which
gives an individual and/or
a company and/or a Close Corporation the right of
access to the Court pending an Appeal against a Sequestration Order or a
Liquidation
Order, in conflict with [section] 34 of the [1996] Constitution.”
In the alternative an order of
invalidity was sought on the grounds that the section
“. . .
deprives an individual and/or a company and/or a Close Corporation of the right
to exercise its trade or profession freely
pending an Appeal . . .”
against a sequestration or liquidation
order.
[13]
            Apart from
a reference to the importance to her of a decision on the constitutionality of
the section, the
only ground advanced by Bruce in support of her contention
that the case was one in which direct access should be permitted was
that the
delay caused by following the ordinary court procedures would prejudice her.Â
She stated in her application:
“[I]f I had to
wait for some Higher Court, including the Appeal Court, to decide whether
Wunsch J [sic] was right or wrong in
applying section 150(3), which he was
bound to apply as it stands as part of an Act of Parliament, then the whole
purpose of the
appeal will be defeated . . . .”
[14]
            If the
constitutionality of the section had been raised before him, Wunsh J would not
have been bound to
apply section 150(3) of the Insolvency Act.  He would have
been entitled in terms of section 172(2) of the 1996 Constitution to
consider
that question, and if he was of the opinion that the section was inconsistent
with the 1996 Constitution, to declare it
to be invalid, and to grant the
applicant interim relief pending a decision by this Court in the confirmation
proceedings.  I
express no opinion on whether there is any substance in the
applicant’s contention that the section is invalid and nothing in
this judgment
should be construed as indicating support for such a proposition.  What is
important as far as this judgment is
concerned is that the High Court has
jurisdiction to consider the constitutionality of Acts of Parliament and to
deal with the
matters raised by the applicant in her application for direct
access.
[15]
            The constitutionality
of section 150(3) of the Insolvency Act was apparently not raised in the
hearing before
Wunsh J.  The application for direct access contains no
explanation for this omission, nor does it say why it was considered necessary

to approach this Court directly instead of applying to the High Court for the
relief that is claimed in the notice of motion.Â
The application seems to have
been launched on the incorrect assumption that this Court is the only court
with jurisdiction to
deal with the matter.
[16]
            A direction
was given by the President of the Court calling upon the applicant to make
written submissions
as to why direct access should be granted, having regard in
particular to the provisions of section 172(2) of the 1996 Constitution
and the
decisions of this Court, inter alia, in
Transvaal Agricultural Union
and
Besserglik v Minister of Trade, Industry and Tourism and others (Minister of
Justice Intervening)
.
[18]
[17]
            In
Transvaal
Agricultural Union
it was said that:
“. . . jurisprudential
policy dictates, that this Court should ordinarily not deal with matters as
both a Court of first instance
and as one of last resort.”
[19]
Â
And in
Besserglik
it was held that in applications for direct access one of the relevant
considerations will be:
“. . . whether
an applicant can show that he or she has exhausted all other remedies or
procedures that may have been available.”
[20]
[18]
            In the
written argument submitted pursuant to the direction, counsel contended that
the relief sought could
not be secured through the use of ordinary procedures,
and that the matter was of such urgency and of such public importance that

direct access should be granted.  He also contended that a failure to follow
the correct procedures was not necessarily fatal
to an application for direct
access, and sought to rely on the decision of this Court in
Besserglik
for that proposition.
[19]
            It was
pointed out in
Transvaal Agricultural Union
that the mere fact that the
validity of a provision of an Act of Parliament is in issue does not in itself
justify an application
for direct access.
[21]
  There must in addition be sufficient urgency or public importance,
and proof of prejudice to the public interest or the ends of
justice and good
government, to justify such a procedure.  There is no greater importance in
securing a definitive ruling on the
constitutionality of section 150(3) of the
Insolvency Act than would ordinarily exist in securing a ruling on the
constitutionality
of provisions of other Acts of Parliament, and there is no
substance in the contention that the matter is of such public importance
that
direct access should be allowed.  The relief claimed in the present case is
within the jurisdiction of the High Court.Â
If Bruce had followed the normal
procedures she could have pursued her claim in that court, and if successful,
she could have secured
effective relief there.  There was no need for her to
launch an urgent application in this Court for that purpose.
[20]
            The
reliance on
Besserglik
is also misplaced.  In that case the applicant
had sued the Minister of Justice for damages alleging that he had been
wrongfully
prosecuted.  His claim was dismissed and he then sought leave to
appeal to the Appellate Division (as it then was).  That application
and a
subsequent petition to the Chief Justice for leave to appeal were also
dismissed.  He then applied to this Court for an
order declaring that section
20(4)(b) of the Supreme Court Act,
[22]
which prescribes the requirement that leave to appeal be obtained
in such matters, be declared unconstitutional on the grounds that
it infringed
his rights under section 22 of the interim Constitution to have justiciable
disputes settled by a court of law.Â
He raised this issue only after his
attempts to secure leave to appeal had failed and at a time when he had
exhausted all other
remedies open to him.  He did so, however, without
following the procedures prescribed by section 102 of the interim
Constitution.Â
It was against this background that O’Regan J who delivered the
judgment of the Court said:
“The
applicant’s failure to follow the correct procedures may have been influenced
by the novelty of the [interim] Constitution
and its procedures.  At this
stage, the applicant has almost no further recourse available to him.  Should
we refuse to hear
his application for direct access, it is unlikely that he
will obtain relief elsewhere.”
[23]
[21]
            The
circumstances of the present case are different.  At the time of
Besserglik
the Constitutional Court was the only court which had jurisdiction to determine
matters in which the constitutionality of provisions
of an Act of Parliament
were in issue.
[24]
  This is no longer the position.
[25]
Â
If Bruce is entitled to any relief she can obtain it from the High Court.  In
effect what she is now seeking to do through the
application for direct access
is to appeal against the decision of Wunsh J on an issue that was not raised in
the proceedings before
him, and to avoid the normal appeal procedures by
launching proceedings for direct access to this Court.
[22]
            Kentridge
AJ made it clear in his judgment in
S v Zuma and others
[26]
that applications for direct access are
to be entertained only in exceptional circumstances and not merely to avoid the
consequences
of incorrect procedures that have been followed.  If,
notwithstanding the pending appeal, Bruce is entitled to raise the
constitutionality
of section 150(3) of the Insolvency Act in separate
proceedings, she can initiate such proceedings in the High Court; but if she
is
not entitled to do so, she cannot avoid the consequences of her earlier
omission by applying to this Court for relief.
[23]
            I am
satisfied that grounds for direct access have not been established and that
this is not a proper case
for the granting of such relief.  The application for
direct access is accordingly dismissed.
Langa DP, Ackermann J,
Goldstone J, Kriegler J, Madala J, Mokgoro J, O’Regan J, Sachs J and Yacoob J
concur in the judgment of
Chaskalson P.
For the applicants:                    AS Van der Spuy SC instructed by
CA Schoeman Attorney.
[1]
Section 150(3) of Act 24 of 1936 provides:
“
When an appeal has been noted
(whether under this section or under any other law), against a final order of
sequestration, the provisions
of this Act shall nevertheless apply as if no
appeal had been noted: Provided that no property belonging to the sequestrated
estate
shall be realized without the written consent of the insolvent
concerned.”
[2]
The Constitution of the Republic of South Africa Act 200 of
1993.
[3]
The Constitution of the Republic of South Africa, 1996.
[4]
1997 (4) SA 1076
(CC);
1997 (10) BCLR 1413
(CC).
[5]
Section 3 of the Constitutional Court Complementary Act
Amendment Act 79 of 1997.
[6]
Items 2 and 16 of schedule 6 of the 1996 Constitution.
[7]
Sections 79, 80, 121 and 122 of the 1996 Constitution.
[8]
Section 167(4) of the 1996 Constitution.
[9]
Pennington
above n 4 at paras
27 and 44.
[10]
Transvaal Agricultural Union v Minister of Land Affairs and
another
[1996] ZACC 22
;
1997 (2) SA 621
(CC);
1996 (12)         BCLR
1573
(CC) at para 46.
[11]
See, for instance,
Brink v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at paras 11-14,
              Transvaal
Agricultural Union
above n 10 at para 18, and
S v Bequinot
[1996] ZACC 21
;
1997 (2)
SA 887
(CC);
1996 (12) BCLR 1588
(CC) at para 15.
[12]
Section 172(2)(a) of the 1996 Constitution.
[13]
Section 172(2)(a) of the 1996 Constitution.
[14]
Section 172(2)(b) of the 1996 Constitution.
[15]
Section 172(2)(c) of the 1996 Constitution.
[16]
Parbhoo and others v Getz NO and another
1997 (4) SA 1095
(CC);
1997 (10) BCLR 1337
(CC) at para          4.
[17]
Rule 49(11) provides:
“
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.”
[18]
1996 (4) SA 331 (CC); 1996 (6) BCLR 745 (CC).
[19]
Above n 10 at para 18.
[20]
Above n 18 at para 6.
[21]
Above n 10 at para 18.
[22]
Act 59 of 1959.
[23]
Above n 18 at para 7.
[24]
Section 98(3) of the interim Constitution.
[25]
See para 9 above.
[26]
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 11.