Mphahlele v First National Bank of South Africa Ltd (CCT23/98) [1999] ZACC 1; 1999 (2) SA 667; 1999 (3) BCLR 253 (1 March 1999)

75 Reportability

Constitutional Law

Brief Summary

Constitutional Law — Right to reasons for judicial decisions — Applicant, an attorney, sought reasons for the refusal of his petition for leave to appeal by the Supreme Court of Appeal, arguing that the Constitution obliges the judiciary to provide such reasons — Court held that there is no constitutional requirement for judges to furnish reasons for their decisions in applications for leave to appeal, as the refusal is not appealable and does not prejudice the litigant's rights — Application dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter was an application brought in the Constitutional Court of South Africa in which the applicant sought, by notice of motion, orders directed at judges of the Supreme Court of Appeal. The proceedings were framed as constitutional relief aimed at compelling the furnishing of reasons for a refusal of a petition for leave to appeal and, further, compelling the granting of leave to appeal.

The parties were Vincent Maredi Mphahlele (the applicant), an attorney, and First National Bank of South Africa Ltd (the respondent), his banker. Although the respondent was cited in the Constitutional Court application, the Court ultimately dealt with the matter at a preliminary stage and dismissed it without calling for a response from the respondent, pursuant to directions previously issued.

The procedural history commenced in the Transvaal High Court in December 1997, where the applicant sought relief concerning his trust account held with the respondent. Southwood J dismissed that application with costs on 11 December 1997. Thereafter, an application for condonation for the late noting of an application for leave to appeal (to the full bench or to the Supreme Court of Appeal) was brought and dismissed with costs during June 1998. The applicant then petitioned the Chief Justice for leave to appeal. In terms of section 21(3)(b) of the Supreme Court Act 59 of 1959, two judges of the Supreme Court of Appeal considered the petition and refused it without oral argument and without referring it to the Court, a procedure permitted under the governing statutory scheme and practice.

The general subject-matter of the Constitutional Court dispute was not the merits of the original banking/trust-account dispute, but whether the refusal of the petition by the Supreme Court of Appeal without furnishing reasons was constitutionally impermissible, and whether the Constitutional Court could order reasons to be supplied and leave to appeal to be granted.

2. Material Facts

It was common cause that the applicant was an attorney and the respondent was his banker, and that the original High Court litigation related to the applicant’s trust account held with the respondent. It was also not disputed that the High Court application was dismissed with costs, that a subsequent application for condonation and leave to appeal was dismissed with costs, and that the applicant then pursued a petition procedure to obtain leave to appeal.

It was further undisputed that the applicant’s petition for leave to appeal was considered under section 21(3)(b) of the Supreme Court Act 59 of 1959 by two judges of the Supreme Court of Appeal, and that they refused the petition without oral argument and without furnishing reasons, in accordance with the procedure they were entitled to adopt.

After the refusal, the applicant requested reasons from the Registrar of the Supreme Court of Appeal and was informed that it was the Court’s long-standing practice not to furnish reasons in such matters. The applicant then wrote to the Chief Justice criticising that practice as an “apartheid practice”. The Legal Administrative Officer in the Chief Justice’s chambers responded, explaining that an order refusing leave to appeal usually implies that the court considers the order below correct and that the appeal would lack reasonable prospects of success, and that this explained the practice of not giving formal reasons, which was said to apply in the applicant’s case.

The Constitutional Court noted, as background relied on to contextualise the matter’s importance to the applicant, that on the strength of Southwood J’s judgment the Law Society of the Transvaal was seeking to strike the applicant’s name from the roll of attorneys. The Court, however, recorded that the applicant did not contend that the original application before Southwood J or the later applications themselves raised any constitutional issue.

3. Legal Issues

The central questions for determination were whether the refusal by the Supreme Court of Appeal of a petition for leave to appeal without furnishing reasons raised a constitutional issue, and if so, whether that practice was inconsistent with the Constitution in the circumstances of this case.

The dispute primarily concerned a question of law and the application of constitutional norms to procedural practice, namely whether constitutional rights and founding values (including the rule of law, access to courts, access to information, and equality) require that reasons be furnished for refusals of leave to appeal by the Supreme Court of Appeal under the relevant statutory framework.

A further issue, raised but not decided conclusively, was whether the Constitutional Court had jurisdiction to order the Supreme Court of Appeal to grant leave to appeal. The judgment treated this as doubtful, and approached the case on the basis that even if such power existed, it would not arise absent a constitutional breach.

4. Court’s Reasoning

The Court accepted that judicial practices originating in the pre-constitutional era should be scrutinised for compatibility with the Constitution, but emphasised that the mere fact that a practice existed during apartheid does not, without more, render it unconstitutional. The Court noted that continuity of the judicial system was expressly provided for in both the interim and the 1996 Constitutions, and that the relevant inquiry was whether the attacked procedure was constitutionally objectionable.

The Court held that there is no express constitutional provision requiring judges to furnish reasons for their decisions. Nonetheless, the Court located the general importance of reasons within the rule of law as a founding value in section 1 of the Constitution, and explained that the rule of law requires that judges not act arbitrarily and that they be accountable. The ordinary mechanism for accountability was identified as the furnishing of reasons, which serves several functions: explaining the outcome to the parties and the public, disciplining decision-making to curb arbitrariness, enabling informed decisions about whether to appeal or seek leave to appeal, assisting appellate courts, and guiding the public in similar matters. The Court observed that, where a decision is subject to appeal, withholding reasons may violate the constitutional right of access to courts.

However, the Court distinguished the general position from the specific context of applications for leave to appeal to a court of last instance, where practical considerations apply. It reasoned that it is not in the public interest to clog the rolls of such courts by permitting unmeritorious and vexatious matters to consume scarce judicial resources, and that the leave-to-appeal procedure exists to avoid waste of judicial time. In this context, the Court concluded that requiring the Supreme Court of Appeal to provide reasoned judgments (and potentially to listen to argument) in applications for leave to appeal that lack substance would defeat the purpose of the leave requirement, and that such matters “can and should be disposed of summarily.”

The Court further reasoned that the refusal of leave to appeal by the Supreme Court of Appeal is final and not appealable to any other court, relying on the statutory framework. It considered that failure to furnish reasons for a decision under section 21 of the Supreme Court Act cannot prejudice an unsuccessful litigant in taking the matter further, because (except in constitutional matters) the litigation ends at that point. The Court also noted that a litigant refused leave will already have had the reasons of the court of first instance (and sometimes a court of appeal), and that section 21 requires at least two judges of the Supreme Court of Appeal to consider those reasons. The refusal of leave informs the litigant, expressly or by implication, that there is no reasonable prospect of successfully challenging the order on appeal.

In addressing the specific constitutional provisions relied upon, the Court rejected the applicant’s reliance on section 32 (access to information) because, as the Constitution was deemed to read at the time, it applied only where information was required “for the exercise or protection” of a right. Given the finality of the Supreme Court of Appeal’s refusal of leave, the Court held that even if reasons were furnished, the applicant would not obtain any consequent right to take the matter further, and thus section 32(1) was misplaced on these facts.

The Court also rejected the reliance on equality under sections 9(1) and (2) on the basis that the provisions relating to applications for leave to appeal apply no less to criminal matters than to civil matters, so the asserted differential treatment was not established.

Finally, the Court addressed the applicant’s invocation of openness, accountability, and access to courts. It held that, in the applicant’s case, reasons had been furnished by Southwood J, and the applicant had been informed by the highest court with jurisdiction in the matter that there were no reasonable prospects of a different order being granted on appeal. It accepted that refusal of leave does not necessarily mean agreement with the lower court’s reasons, but found that the procedure followed was not inconsistent with an open and democratic society. On that basis, the Court found no breach of the Constitution. It added that even if the Constitutional Court had jurisdiction to order the Supreme Court of Appeal to grant leave to appeal, which it regarded as open to serious doubt, it could not do so where no constitutional breach had been shown.

On costs, the Court considered the issue raised to be important and stated that the applicant was entitled to have it considered. In accordance with its usual practice in such cases, it made no order as to costs.

5. Outcome and Relief

The Constitutional Court dismissed the application. It refused to order the judges of the Supreme Court of Appeal to furnish reasons for refusing the petition for leave to appeal, and it refused to direct that leave to appeal be granted.

No order as to costs was made.

Cases Cited

Buchanan v Marais NO and Others [1991] ZASCA 19; 1991 (2) SA 679 (A).

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

R v Hinse (1996) 130 DLR (4th) 54.

Legislation Cited

Constitution of the Republic of South Africa, 1996, sections 1(c), 8(1), 9(1) and (2), 32(1) and (2), 34, and the Sixth Schedule transitional arrangement relating to section 32(1).

Supreme Court Act 59 of 1959, section 21(3)(b) and section 21(3)(d).

Rules of Court Cited

No rules of court were cited.

Held

The Court held that, although furnishing reasons is an important incident of the rule of law and judicial accountability, the Constitution does not require the Supreme Court of Appeal to furnish reasons when it refuses a petition for leave to appeal under the statutory procedure contemplated by section 21 of the Supreme Court Act, particularly given the purpose of the leave requirement and the finality of such refusals.

The Court held further that the applicant’s reliance on the constitutional rights of access to information and equality was misplaced on the facts, and that the challenged practice did not breach the Constitution in this case. The application was therefore dismissed, with no order as to costs.

LEGAL PRINCIPLES

A court’s general duty to provide reasons for its decisions is closely connected to the rule of law, judicial accountability, openness, and the proper functioning of the appellate process. Reasons explain outcomes to litigants and the public, discipline judicial decision-making against arbitrariness, enable informed appellate choices, assist appellate adjudication, and provide guidance in analogous disputes.

The absence of an express constitutional provision requiring reasons does not preclude a constitutional evaluation of reasoning practices, but constitutionality depends on context. The procedural context of applications for leave to appeal to a court of last instance engages distinct public-interest considerations, including docket control and the avoidance of wasting judicial resources on unmeritorious or vexatious matters, which may justify summary disposition without reasons.

The constitutional right of access to information (as it was deemed to operate pending legislation) requires that the information be needed “for the exercise or protection” of a right. Where a refusal of leave to appeal is statutorily final, the absence of reasons does not, in itself, establish that information is required for the exercise or protection of a further right in litigation.

The equality guarantee is not infringed merely by a practice alleged to distinguish between civil and criminal litigants where the relevant leave-to-appeal provisions apply equally across those categories.