THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 502/2023

In the matter between:
WILLEM TOBIAS HANEKOM N O FIRST APPELLANT
LOURENS HERMANUS TALJAARD N O SECOND APPELLANT
THE COMMUNITY SCHEMES OMBUD
SERVICE THIRD APPELLANT
ZAMA MATAYI N O FOURTH APPELLANT
and
NUWEKLOOF PRIVATE GAME RESERVE
FARM OWNERS’ ASSOCIATION RESPONDENT

Neutral citation: Hanekom N O and Others v Nuwekloof Private Game Reserve
Farm Owners’ Association (502/2023) [2024] ZASCA 154
(12 November 2024)
Coram: PONNAN, MAKGOKA and WEINER JJA and MANTAME and
MASIPA AJJA
Heard: 10 September 2024
Delivered: 12 November 2024

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Summary: Appeal from adjudicator under the Community Schemes Ombud
Service Act 9 of 2011 to the h igh court – two judges of the high court hearing
appeal – nature of proceedings before the adjudicator and the high court – whether
leave to appeal to this Court should have been sought from the high court in terms
of s 16(1)(a) of the Superior Courts Act 10 of 2013 (the SC Act) or special leave
to appeal from this Court in terms of s 16(1) (b) and 17(3) of the SC Act
adjudicator performs an administrative function – high court sits as a court of first
instance – special leave to appeal granted by this Court a nullity – no jurisdiction
to hear the appeal.

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ORDER


On appeal from: Western Cape Division of the High Court, Cape Town
(Nuku and Nziweni JJ, sitting as court of first instance):
The appeal is struck from the roll with costs, including the costs of two counsel,
where so employed.


JUDGMENT


Weiner JA (Makgoka JA and Mantame and Masipa AJJA concurring)

Introduction
[1] This appeal arises from an order of the Western Cape Division of the High
Court (the high court), which set aside an order of the fourth appellant, the
Community Schemes Ombud Service ( the CSOS) adjudicator (the adjudicator).
Although the question raised in this appeal was the correctness of the
adjudicator’s decision, a preliminary point arose, and this Court must first decide
whether it has jurisdiction to entertain this appeal. The primary question in this
appeal is whether the high court (consisting of two judges) sat as a court of appeal
in respect of the adjudicator’s decision under the Community Schemes Ombud
Service Act 9 of 2011 (the Act) or as a court of first instance. If the high court sat
as a court of first instance, the appellants should have sought leave to appeal from
the high court in terms of s 16(1)(a)1 of the Superior Courts Act 10 of 2013 (the

1 Section 16(1)(a) of the Superior Courts Act 10 of 2013 (the SC Act) provides:
‘(1) Subject to section 15 (1), the Constitution and any other law-
(a) an appeal against any decision of a Division as a court of first instance lies, upon leave having been granted -

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SC Act) and not special leave to appeal from this Court, in terms of s s 16(1)(b)2
and 17(3)3 of the SC Act, as they did.

[2] The first and second appellants are cited herein in their official capacities
as trustees of the WTH Trust (the Trust), established and registered with the
Master of the High Court under number IT 954/2011. The Trust owns one of the
properties in the Nuwekloof Private Game Reserve (the Reserve). The third
appellant is the CSOS, a juristic person established in terms of s 3 of the Act. It
provides a dispute resolution service in respect of a community scheme. The
fourth appellant is Zama Matayi N O cited in her official capacity as the
adjudicator, appointed as such in terms of s 21(2) (b) of the Act. The third and
fourth appellants take no part in these proceedings.

[3] The respondent is the Nuwekloof Private Game Reserve Farm Owners'
Association (the Association), a voluntary association which manages the
Reserve. The Reserve comprises six properties owned by various owners, which
have been leased to the Association. The Res erve is a community scheme as
defined in the Act.

Background facts
[4] The trustees of the WTH Trust (the Trust) concluded an agreement of sale
with the trustees of the Nuwekloof Trust in terms of which the Trust purchased
Portion 5 of the Farm 320, in the Kannaland Municipality, Ladysmith, Western

(i) if the court consisted of a single judge, either to the Supreme Court of Appeal or to a full court of that Division,
depending on the direction issued in terms of section 17 (6); or
(ii) if the court consisted of more than one judge, to the Supreme Court of Appeal;’
2 Section 16(1)(b) provides:
‘[A]n appeal against any decision of a Division on appeal to it, lies to the Supreme Court of Appeal upon special
leave having been granted by the Supreme Court of Appeal.’
3Section 17(3) of the SC Act provides:
‘An application for special leave to appeal under section 16 (1) (b) may be granted by the Supreme Court of

Appeal on application filed with the registrar of that court within one month after the decision sought to be
appealed against, or such longer period as may on good cause be allowed, and the provisions of subsection
(2) (c) to (f) shall apply with the changes required by the context.’

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Cape (the property). In terms of the sale agreement, the Trust, upon registration
of transfer of the property into its name, became a member of the Association.

[5] The Trust failed to pay certain levies to the Association, which invoked
clause 5.13 of the Association’s 2017 Constitution4 which provided:
‘When a Member is in default of any payment obligation (general and/or special levies and/or
obligatory loans), or any other obligation as set out herein, to the Association the defaulting
Member shall (unless otherwise determined by the Trustees) not be e ntitled to any of the
privileges of Membership including (but not limited to):
5.13.1 his right to access and/or use of the Reserve and/or any of the common property and/or
any Services;
5.13.2 his right to vote in regard to any aspect;
until he shall have paid the full amount due, together with interest and costs and/or any other
amount which may be due and payable by him and/or had rectified any other breach in terms
hereof, to the Association.’

[6] On 24 February 2022, the Trust applied to the CSOS in terms of s 38 of the
Act5 for an order declaring clause 5.13 of the 2017 Constitution invalid. On 11
August 2022, the adjudicator made an order in which the relief sought by the
Trust was granted. The adjudicator declared clause 5.13 to be invalid and set it
aside and ordered the Association to remove clause 5.13 from its 2017
Constitution. The Association, being dissatisfied with the adjudicator’s order,
appealed to the high court in terms of section 57(1) of the Act6 to have the order
set aside. In terms of s 57(1) of the Act, an appeal against the adjudicator’s
decision is limited to a question of law. To bring its appeal within the purview of

4 There is a dispute over whether the Trust was bound by the Constitution, which it had not signed, but that issue
is not relevant to the appeal, in view of the decision to which I have come.
5 Section 38(1) of the Community Schemes Ombud Service Act 9 of 2011 (the Act) provides:

5 Section 38(1) of the Community Schemes Ombud Service Act 9 of 2011 (the Act) provides:
‘(1) Any person may make an application if such person is a party to or affected materially by a dispute.’
6 Section 57(1) of the Act provides:
‘(1) An applicant, the association or any affected person who is dissatisfied by an adjudicator's order, may appeal
to the High Court, but only on a question of law.’

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that provision, the Association contended that the adjudicator erred in law by
holding that clause 5.13 was contrary to public policy.

[7] The appeal served before two judges of the high court , on 18 November
2022, and it delivered its judgment on 30 January 2023. It upheld the
Association’s appeal; the order made by the adjudicator was set aside; and the
adjudicator’s order was replaced by one in which the Trust’s application was
dismissed.

[8] The trustees thereafter applied in terms of s 16(1) (b) and 17(3) of the SC
Act to this Court for special leave to appeal, which was granted on 5 May 2023.
The Trust contended that this Court, accordingly, has jurisdiction to hear this
appeal.

Status of the appeal
[9] Section 57(1) of the Act provides; ‘An applicant, the association or any
affected person who is dissatisfied by an adjudicator’s order, may appeal to the
[h]igh [c]ourt, but only on a question of law’. The Association contends that such
an appeal is similar, in material respects, to an appeal against a decision of the
National Consumer Tribunal under the National Credit Act 34 of 2005
(the NCA). In National Credit Regulator v Lewis Stores (Pty) Ltd and Another
(Lewis),7 this Court held that such an appeal is a statutory appeal and not a
‘judicial appeal’ and therefore the court seized with such an appeal is a court of
first instance. Accordingly, the proper approach in such cases is to follow the
procedure set out in s 16 (1)(b) of the SC Act. Thus, the Association argues that
having not sought and obtained leave from the high court, this Court had no
jurisdiction to hear the appeal.

7 National Credit Regulator v Lewis Stores (Pty) Ltd and Another (Lewis) [2019] ZASCA 190; 2020 (2) SA 390
(SCA); [2020] 2 All SA 31 (SCA) para 56.

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[10] It was submitted by the Trust that an adjudication in terms of the CSOS is
not an administrative appeal and (contrary to the decision in Lewis) because s
56(2)8 of the Act requires the registrar of a court to register an adjudication order
as an order of the high court. But this submission ignores the fact that s 152 of
the NCA9 also provides that any order of the National Credit Tribunal may be
enforced ‘as if it were an order of the [h]igh [c]ourt’. In Lewis, this Court found
that that provision did not change the status of the statutory appeal to a judicial
appeal.

[11] Despite the fact that the registrar of the court is required to register the
order as an order of court in terms of s 56, this does not alter the principle that the
status of an adjudication order remains an administrative decision. The order must
only be registered if a party lodges the order and requests registration. 10 The
registration is an administrative formality to facilitate enforcement, when
invoked. That formality, which only arises when the party wishes to enforce the
order, does not convert the substantive nature of the original decision from an
administrative one to a judicial one.

[12] This Court, in Lewis, considered why it was undesirable that s 16(1)(b) of
the SC Act should apply to appeals from bodies outside the judicial system. It
bears repeating what was said in Lewis, as such principles apply with equal force
to appeals from the adjudicator under the CSOS. Wallis JA stated as follows:
‘In principle there are a number of reasons why s 16(1)(b) of the SC Act should be confined to
applications for leave to appeal against decisions by the high court given on appeal to it from

8 Section 56(2) of the Act provides:
‘(2) If an adjudicator's order is for the payment of an amount of money or any other relief which is beyond the
jurisdiction of the magistrate's court, the order may be enforced as if it were a judgment of the High Court, and a

registrar of such a Court must, on lodgement of a copy of the order, register it as an order in such Court.’
9 Section 152 of the National Credit Act 34 of 2005 provides:
‘(1) Any decision, judgment or order of the Tribunal may be served, executed and enforced as if it were an order
of the High Court. . .’
10 CSOS Practice Directive on Dispute Resolution of 2019, para 31.4.

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other courts within the judicial system, that is, the magistrates’ courts and full bench appeals
from the high court sitting at first instance. The first is that there is a fundamental difference
between an appeal from a court and an appeal from a body out side the judicial system. The
latter may be an administrative tribunal, or a board or official dealing with purely
administrative matters, where the decision in question may have little or no legal content, but
may be a matter of administrative discretion. The ‘appeal’ brings it before the court for the first
time. By contrast, once a matter has been heard by a court of first instance and the dissatisfied
party has exercised a right of appeal, the right to a further appeal should depend not only on
the question whether there are reasonable prospects of success, but also on the existence of
some compelling circumstances warranting a further appeal. The reason for such a limitation
lies in the principle that there should be finality in litigation. Accordingly, the law places a limit
on the number of appeals that may be pursued within the court system and empowers appellate
courts to regulate the cases that come to them by way of provisions requiring leave to appeal
from those courts.11
The second point of principle lies in the fact that an appeal within the justice system is a clearly
defined process, whereby the correctness of the decision of the court appealed from is assessed
within defined boundaries. The appeal proceeds on the recor d of the proceedings in the lower
court and the factual findings of that court and its exercise of discretion in reaching its decision
are given respect and only departed from on limited grounds. That is by no means true of
statutory appeals from tribunals and officials.’12
The first issue in a statutory appeal is to ascertain the nature of the right of appeal conferred by
the statute. In determining that question courts follow the taxonomy laid down by Trollip J

the statute. In determining that question courts follow the taxonomy laid down by Trollip J
in Tikly v Johannes . … Unlike appeals within the judicial system therefore statutory appeals
may have a widely varying nature and involve different types of hearing.13
The third point concerns the nature of a statutory appeal and the terms in which the right of
appeal is granted. These may, when properly construed, mean that the appeal to the high court
is final and not subject to any further appeal at all. That may espe cially be the case when the
statute provides that the decision by the court will stand in the place of or be deemed to be the
decision of the original decision -maker. If the appeal to the high court is taken to result in a

11 Lewis para 50.
12 Ibid para 51.
13 Ibid para 52.

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decision by that court given on appeal to it there will be conflict between the statute conferring
the right of appeal and the SC Act. That is manifestly undesirable.14
The fourth point is that it is almost inevitable, as recognised expressly in s 148(2)(a) of the
NCA, that the decisions of statutory bodies and officials in these matters will constitute
administrative action and be subject to judicial review under the provisions of PAJA. Such
proceedings are conventionally pursued in the high court before a single judge sitting at first
instance. That judge will deal with the question of leave to appeal against the judgment and
may direct that it be heard before either a full court or thi s court, depending on the nature and
complexity of the issues raised. It seems anomalous that, if the dissatisfied party was content
to proceed by way of an appeal on the record of the administrative decision-maker, any appeal
flowing from the judgment wou ld require special leave to appeal from this court, when
common experience teaches that there may be considerable overlap between appeal and review
grounds.15
Finally, I revert to the point made earlier that the test for granting special leave to appeal is
more stringent than the test for leave to appeal, Given the fact that restrictions on the right of
appeal have been held by the Constitutional Court to constitute a limitation on the right of
access to courts under s 34 of the Constitution, it seems to me that we should prefer an
interpretation of s 16(1)(b) that least restricts the ability of a disappointed litigant to seek relief
by way of an appeal within the justice system.16
For those reasons I conclude that an appeal from the decision of a high court under s 148(2)(b),
whether constituted of a single judge, or two judges, or as a full court, lies with leave of that
court sitting as a court of first instance. Such leave should be sought in terms of s 16(1)(a) of

the SC Act and not by way of an application for special leave to appeal from this court. ’17
(footnotes omitted).

[13] As pointed out in Lewis,18 where the decision of the statutory body is also
subject to judicial review, an anomaly would arise between the situation where
there is an appeal against a review judgment and the situation where there is an

14 Ibid para 53.
15 Ibid para 54.
16 Ibid para 55.
17 Ibid para 56.
18 Lewis para 56.

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appeal against a statutory appeal judgment, if the latter would always require
special leave from this Court, but the former would not. This too, points to the
conclusion that the appeal is not a judicial appeal.

This Court’s inherent powers under s 173 of the Constitution
[14] The Appellants have submitted in the alternative that in the ‘special
circumstances’ of this case,19 this Court should exercise its inherent powers under
s 173 of the Constitution, to regulate its own procedure, by deciding this appeal.
For this proposition, the appellants relied on the exception carved out in Lewis.
There this Court found that leave should have been granted by the high court, and
not by this Court.20 As a result, the order of this Court granting special leave was
a nullity. Despite this finding, the Court heard the appeal, based on what it
considered ‘special circumstances.’ Those included that the parties came in good
faith having received special leave to appeal from this Court. 21 To strike the
appeal from the roll, reasoned Wallis JA, would be a gross technicality and waste
of resources, given that the parties were likely to revert to the high court to seek
leave, and if refused, they wo uld end up again in this Court. 22 These
considerations, the court concluded, constituted ‘special circumstances in which
the court can in the exercise of its inherent jurisdiction to regulate its own
procedure condone the irregular manner in which this appeal reached us.’23

[15] A similar approach was taken in Gaone Jack Siamisang Montshiwa
(Montshiwa),24 where the court of first instance comprised two judges. The
application for leave to appeal was considered, and refused, by a single judge.

19 Special leave to appeal having been granted by this Court, without demur from the respondents. The appellants
contending that if special leave was granted, it follows that leave would have been granted by the high court.
20 Lewis op cit para 56.
21 Ibid para 57.
22 Ibid.
23 Ibid para 58.

20 Lewis op cit para 56.
21 Ibid para 57.
22 Ibid.
23 Ibid para 58.
24 Gaone Jack Siamisang Montshiwa (Montshiwa) (Ex Parte Application) [2023] ZASCA 19 ; 2023 JDR 0647
(SCA).

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The applicant applied to this Court for leave to appeal. The minority held that the
proceedings in the application for leave to appeal were irregular and the
consequent order a nullity. As such, the matter ought to have been struck from
the roll. The majority reasoned that to strike the matter from the roll would have
amounted to an absurdity as in all probability, the matter would end up before
this Court again. This would serve only to waste the Court and the applicant’s
resources. The majority consequently held that by virtue of this Court’s inherent
powers under s 173 of the Constitution, it was entitled to consider the merits of
the application for leave to appeal and, if appropriate, to determine the appeal. It
did so and dismissed the application.

[16] The Trust urged upon us to follow the same approach adopted in Lewis and
Montshiwa. With specific reference to Lewis, it was contended that there are also
‘special circumstances’ to hear the appeal. The same circumstances as relied upon
in Lewis, were cited by the appellants. But these circumstances were all
considered in Lewis, when, Wallis JA cautioned that the result in that case was
an ‘exception’ which would not apply again, as parties were now aware of the
correct procedure to follow in cases such as the present. 25 It is clear that Wallis
JA did not seek to lay down a general exception.

[17] Heeding both Wallis JA’s cautionary note, and previous authorities dealing
with the issue of lack of jurisdiction, this Court is at liberty not to follow the
approach taken in Lewis and Montshiwa and refuse to entertain this appeal. Both
Lewis and the majority in Montshiwa acknowledged that they did not have
jurisdiction to hear the matters before them. However, they adopted what they
deemed a pragmatic approach. The approach adopted does not accord with the

25 Lewis para 58.

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earlier jurisprudence of this Court. It is trite that this Court can only entertain an
appeal, if it has jurisdiction to do so. As stated in Moch v Nedtravel (Pty) Ltd:26
‘[L]eave to appeal is one of the jurisdictional requirements of ss 20 and 21 of the Supreme
Court Act . . .and the petitioner did not seek leave from the court a quo to appeal against the
final order. . . That being the case this court is not competent either to grant leave or to entertain
an appeal against the final order without leave. . .[T]his court’s “inherent reservoir of power to
regulate its procedures in the interests of the proper administration of justice” does not extend
to the assumption of jurisdiction not conferred upon it by statute. Rex v Milne and Erleigh (6)
1951 (1) (A) SA 1 at 5 in fin,
“[this] Court was created by the South African Act and its jurisdiction is to be ascertained from
the provisions of that Act as amended from time to time and from any other relevant statutory
enactment.”
Nowadays its jurisdiction derives from the Supreme Court Act and other statutes but the
position remains basically the same.’27

[18] The court’s inherent power under s173 of the Constitution cannot be
resorted to when the court lacks jurisdiction. As Bosielo JA explained in
Oosthuizen v Road Accident Fund 2011 (6) SA 31 (SCA) para 17:
‘A court’s inherent power to regulate its own process is not unlimited. It does not extend to the
assumption of jurisdiction which it does not otherwise have. In this regard see National Union
of Metal Workers of South Africa & others v Fry’s Metal (Pty) Ltd where this Court stated that:
“While it is true that this Court’s inherent power to protect and regulate its own process is not
unlimited – it does not, for instance, “extend to the assumption of jurisdiction not conferred
upon it by statute”.

[19] Thus, if the high court was sitting as a court of first instance, leave to appeal
should have been sought from it. That being so , this Court did not have

should have been sought from it. That being so , this Court did not have
jurisdiction and erroneously granted special leave to appeal. Such order is a
nullity and can, as found in Master of the High Court Northern Gauteng High

26Moch v Nedtravel (Pty) Ltd. t/a American Express Travel Service [1996] ZASCA 2; 1996 (3) SA 1 (SCA).
27 Ibid para 4 and 32.

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Court, Pretoria v Motala NO and Others (Motala),28 be disregarded by this Court,
where Ponnan JA, stated:
‘Being a nullity a pronouncement to that effect was unnecessary. Nor did it first have to be set
aside by a court of equal standing. For as Coetzee J observed in Trade Fairs and Promotions
(Pty) Ltd v Thomson & another 1984 (4) SA 177 (W) at 183E: “[i]t would be incongruous if
parties were to be bound by a decision which is a nullity until a Court of an equal number of
Judges has to be constituted specially to hear this point and to make such a declaration”.’29

[20] In Department of Transport and Others v Tasima (Pty) Limited ,30 the
Constitutional Court held that:
‘Motala is only authority for the proposition that if a court “is able to conclude that what the
court [that made the original decision] has ordered cannot be done under the enabling
legislation, the order is a nullity and can be disregarded” . . . Motala correctly holds that where
an order is made without jurisdiction. . . another court may refuse to enforce it. Again, it is the
court that is entitled to act, not the party.’31

[21] This Court is, accordingly, not bound to follow the decisions in Lewis and
Montshiwa, which appear to be clearly wrong. As stated in Patmar Explorations
(Pty) Ltd and Others v Limpopo Development Tribunal and Others:32
‘A decision will be held to have been clearly wrong where it has been arrived at on some
fundamental departure from principle, or a manifest oversight or misunderstanding, that is,
there has been something in the nature of a palpable mistake. This Court will only depart from
its previous decision if it is clear that the earlier court erred or that the reasoning upon which
the decision rested was clearly erroneous.’

28 Master of the High Court Northern Gauteng High Court, Pretoria v Motala NO and Others [2011] ZASCA
238; 2012 (3) SA 325 (SCA).
29 Ibid para 14.
30 Department of Transport and Others v Tasima (Pty) Limited [2016] ZACC 39; 2017 (1) BCLR 1 (CC); 2017

(2) SA 622 (CC).
31 Ibid para 197 and fn 156 therein.
32 Patmar Explorations (Pty) Ltd and Others v Limpopo Development Tribunal and Others [2018] ZASCA 19;
2018 (4) SA 107 (SCA) para 3.

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[22] As this Court lacked jurisdiction to grant special leave to appeal, the matter
is not properly before us. We are accordingly not free to enter into the substantive
merits of the appeal.

[23] The following order is made:
The appeal is struck from the roll with costs, including the costs of two counsel,
where so employed.

_______________________
S E WEINER
JUDGE OF APPEAL

Ponnan JA (Concurrence)
[24] The preliminary question that confronts us in this matter is whether we
have jurisdiction to entertain the appeal. As a starting point this Court does not
have any original jurisdiction.33 Its jurisdiction is derived from the Constitution
and is principally limited to decide appeals and issues connected with appeals
(which includes applications for leave to appeal).34

[25] The jurisdictional requirements for a civil appeal from the high court sitting
as a court of first instance are twofold: first, there is a ‘decision’ of that court
within the meaning of s 16(1) (a) of the SC Act; and, second, the required leave
to appeal has been granted under s 17(2) of the SC Act.35 Both requirements must
be met. It is only the second that occupies our attention in this matter. The right

33 Moch fn 26 paras 4-5; Pharmaceutical Society of South Africa and Others v Minister of Health and Another;
New Clicks South Africa (Pty) Limited v Tshabalala-Msimang and Another [2004] ZASCA 122; 2005 (3) SA 238
(SCA); [2005] 1 All SA 326 (SCA); 2005 (6) BCLR 576 (SCA) para 19 (Pharmaceutical Society).
34 Ibid; Constitution s 168(3); S v Basson [2004] ZACC 13; 2004 (6) BCLR 620 (CC) para 103.
35 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 531B-C; DRDGOLD Limited and Another v Nkala
and Others [2023] ZASCA 9; 2023 (3) SA 461 (SCA) (DRDGOLD) para 17.

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to appeal to this Court is neither automatic, nor absolute, since leave to appeal is
required. Leave is a condition for exercising the right or, put differently, it is a
jurisdictional fact for an appeal. As Brand JA said in Newlands Surgical Clinic:
‘Leave to appeal . . . constitutes what has become known, particularly in administrative law
parlance, as a jurisdictional fact. Without the required leave, this court simply has no
jurisdiction to entertain the dispute.’36

[26] Where, as here, the high court, whose judgment is sought to be appealed,
sat as a court of first instance, it must first be approached for leave. If that is
granted, the condition is met. If it is refused, the party wishing to appeal has a
right to petition this Court for such leave. As Corbett CJ pointed out in National
Union of Metalworkers of SA v Jumbo Products CC (Jumbo Products):
‘. . . no appeal lies to this Court . . . except either where the Court a quo has itself granted leave
to appeal or where, the Court a quo having refused such leave, such leave has been granted by
this Court. Thus, as is clear from the subsection, this Court’s jurisdiction to grant leave itself is
dependent on the Court a quo having refused such leave. The proper procedure, as imperatively
laid down by section 20(4)(b), is for the would-be appellant to apply for leave first to the court
against whose judgme nt the appeal is to be made. If that Court grants leave, then this Court
may entertain the appeal. If that Court refuses leave, then (but only then) may this Court
consider an application for leave to appeal. Thus section 20(4)(b) not only prescribes the proper
procedure, but it also defines the jurisdiction of this Court to entertain an application for leave
to appeal.’37
Although, said with reference to s 20(4)(b) of the Supreme Court Act 59 of 195938
(the predecessor to the SC Act), the principle so firmly established in Jumbo
Products applies equally here.

Products applies equally here.

36 Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd 2015 (4) SA 34 SCA; [2015] 2 All SA 322
(SCA) para 13.
37 National Union of Metalworkers of SA v Jumbo Products CC [1996] ZASCA 87; 1996 (4) SA 735 (A) 740A-
D.
38 Section 20(4) provides: ‘No appeal shall lie against a judgment or order of the court of a provincial or local
division [read: high court] in any civil proceedings . . . except -
. . . .
(b) . . . with the leave of the court against whose judgment or order the appeal is to be made or, where such leave
has been refused, with the leave of the [Supreme Court of Appeal].’

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[27] It must thus follow that the order granting special leave to the appellant to
appeal to this Court is a nullity. The consequence, ordinarily at any rate, is that
the matter falls to be struck from the roll. However, the contention advanced is
that this Court can, in the exercise of its inherent jurisdiction to regulate its own
procedure, entertain the appeal . In that regard, reliance was placed on the
approach adopted in Lewis,39 which thereafter found favour with the majority in
Montshiwa.40

[28] Although this Court, like the Constitutional Court and High Courts, has the
inherent power to protect and regulate its own process, that ‘does not extend to
the assumption of jurisdiction not conferred upon it by statute.’ 41 If the
Constitution or a statute does not provide for such a right that is the end of the
matter and this Court cannot assume the power.42 As Van der Merwe JA observed
in DRDGOLD Limited v Nkala:
‘This court has no original jurisdiction and its common law inherent power to regulate its own
procedures – now entrenched in s 173 of the Constitution – does not clothe it with
jurisdiction.’43

[30] No authority was cited in Lewis for the rather radical departure from the
established jurisprudence of this Court. Indeed, as Innes CJ made plain in Jumbo
Products, this Court’s jurisdiction to grant leave itself is dependent on the high
court having refused such leave. The would-be appellant in Lewis did not apply
for leave from the court of first instance and thus failed to take the first step. 44
Therefore, as the high court in Lewis had not refused leave, it was not open to this
Court to even consider an application for leave to appeal, much less deal with the

39 Lewis paras 57-58.
40 Montshiwa para 26.
41 Moch paras 4-5. See also Sefatsa v Attorney-General, Transvaal 1989 (1) SA 821 (A) at 834E.
42 Pharmaceutical Society para 20.
43 DRDGOLD fn 35 para 13.
44 Pharmaceutical Society para 23.

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appeal on its merits. The matter was approached on the footing that had leave to
appeal been sought from the high court it would have been refused and, inasmuch
as an application for special leave had succeeded, ordinary leave would have been
granted by this Court on petition to it.

[31] The Court accordingly entered into the merits in Lewis without the required
leave and absent a necessary jurisdictional fact. In that, it too k the view that it
could ‘in the exercise of its inherent jurisdiction to regulate its own procedure
condone the irregular manner in which this appeal reached us’.45 However, absent
the requisite leave, this Court lacked jurisdiction and could not ‘condone the
irregular manner in which the appeal had reached [it]’ – certainly not by dint of
‘the exercise of inherent jurisdiction to regulate its own procedure’. Inasmuch as
the Court had no jurisdiction to dispose of the matter, the only course open to it,
were it disinclined to strike the appeal from the roll as being a nullity, would have
been for it to defer the hearing or determination of the appeal to enable t he
appellant to obtain the necessary leave.46 However, as Harms JA pointed out in
Pharmaceutical Society , ‘the circumstances should be appropriate before this
extraordinary procedure may be adopted’.47

[32] I do not subscribe to the view that it was open to this Court ‘to carve out
an exception’ (the exact contours of which remain undefined) in Lewis or to adopt
a ‘pragmatic approach’ in Montshiwa, to the question of jurisdiction. As a matter
of simple logic, the Court in each instance either had jurisdiction to entertain the
appeal or it did not. If it did not, that ought to have been the end of the matter.
Jurisdiction is a logically anterior question. In Lewis, two judgments were
penned. Both dealt fairly e xtensively with the issues raised and the substantive

45 Lewis para 58.
46 See Pharmaceutical Society paras 25–26 and the cases there cited.
47 Ibid para 26.

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merits of the appeal. Although jurisdiction merited a mention in the last two
paragraphs of the second judgment, the question , in truth, remained unresolved,
because the stance adopted was that the Court could condone the irregular manner
in which the appeal had reached it. In my view, h owever, it could not by the
simple expedient of the grant of condonation clothe itself with jurisdiction that it
did not otherwise possess.

[33] The considerations that weighed with the court in Lewis, which came to be
described as ‘special circumstances’, could hardly be invoked to trump principle.
And, despite the cautionary note in that matter that the special circumstances of
the case will not be repeated, it will not take a great deal of ingenuity for other
would-be appellants to contend, as in Montshiwa and this matter, that there are
indeed special circumstances present that warrant a consideration of their appeal.

[34] As the minority put it in Montshiwa (per Siwendu AJA, Van Der Merwe
JA concurring):
‘Significantly, several decisions by this Court consistently affirm that absent leave being
granted, it lacks the jurisdiction to entertain an appeal. The decision in Absa Bank Ltd v Snyman
(Absa Bank) illustrates this point. There, the court confirmed another decision by this Court in
Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd (Newlands) where under
the rubric of an ‘inherent reservoir of power to regulate its procedures in the interest of proper
administration of justice’ the cour t deliberated on whether it may entertain a matter not the
subject of the order granting leave to appeal. Confirming the often-cited decision of this Court
in [Moch], it held that such a power does not extend to an assumption of jurisdiction not
conferred upon it by statute. The upshot of these decisions, which have not been set aside, is
that this Court’s inherent power to regulate its affairs, condone an irregularit y or address

that this Court’s inherent power to regulate its affairs, condone an irregularit y or address
prejudice predominantly applies to matters regulated by its rules and not to m atters not
expressly provided by the governing statute. Even there, the power will be exercised sparingly
. . .’48

48 Montshiwa para 18.

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[35] It is thus well-settled that this Court cannot, under the guise of exercising
its inherent power , enter into the merits of an appeal over which it has no
jurisdiction. Jurisdiction is a necessary precondition for the exercise of its
inherent power. The conclusion that the order granting leave was a nullity and
that we therefore lack jurisdiction, has to be the end of the matter. In my view, it
must follow from this that the contrary approach adopted in Lewis and by the
majority in Montshiwa is plainly wrong.

[36] Before concluding , it is perhaps necessary to address the apparent
incongruity in adopting the reasoning in Lewis, as Weiner JA has done , in the
face of the conclusion that the Court in that matter suffered a want of jurisdiction.
It seems to me that even if the dicta relied on by Weiner JA were to be regarded
as having no status other than that of an expression of opinion by one Judge of
Appeal, concurred in by four others, its persuasive value is irresistible, with which
we would not readily disagree.49 In that regard, the following by Schreiner J,
albeit in a different context in Petersen v Jajbhay, is instructive:
‘I come now to the argument relating to the remarks made by the Chief Justice and Mr Justice
Watermeyer in Jajbhay v Cassim. It is contended that those expressions of opinion were obiter
dicta and that I should examine the whole question afresh in the light of the actual decision
given in that case. Now, there is no doubt that obiter dicta, however weighty, are not entitled
to be regarded as binding upon any court however humble it might be. An inferior Court – a
magistrate’s court – is entitled to disagree with an obiter dictum in the Appellate Division or
in the Privy Council. And indeed if a magistrate holds a clear view of the wrongness of such a
dictum it is his duty if there are no actual decisions binding him to give effect to the view he
holds. But I do not think that in t he present case it is either necessary or desirable for me to

pass by the views expressed by the Chief Justice and Watermeyer J, and to embark on a re -
examination of the position in the light of the decision in order to see whether I agree with the
views expressed by those learned Judges. The statements in question were deliberate statements

49 Durban City Council v Kempton Park (Pty) Ltd 1956 (1) SA 54 (N) at 59D-F and Rood v Wallach 1904 TS
187 at 195-6.

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closely related to the actual basis of a decision and they were intended to deal with cases of the
class which I have now to deal with. If I felt that those statements expressed a view with which
I disagree I would be obliged to investigate the matter further and more closely. Even though I
am not obliged to do so I am of course entitled to re -investigate the foundation of those
statements assuming, as I do, that they are obiter dicta. But I am not disposed to do so because
the views there expressed, if I m ay respectfully say so, appeal to me as in conformity with
public policy and sound reason.’50

[37] In the result, I agree with the conclusion reached by Weiner JA that the
matter falls to be struck from the roll.

______________
V M PONNAN
JUDGE OF APPEAL


50 Petersen v Jajbhay 1939 TPD 182 at 185. See also Turnbull-Jackson v Hibiscus Coast Municipality and
Others [2014] ZACC 24; 2014 (6) SA 592 (CC); 2014 (11) BCLR 1310 (CC) paras 54-71.

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Appearances

For the appellants: P Zietsman SC with JL van Dorsten
Instructed by: Michalowsky Geldenhuys & Humphries,
Cape Town
Lovius Block Attorneys, Bloemfontein

For the respondent: S Olivier SC with HL du Toit
Instructed by: De Klerk & Van Gend Inc, Cape Town
McIntyre & Van Der Post, Bloemfontein