THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 986/2023
In the matter between:
BIDVEST PROTEA COIN SECURITY (PTY) LTD APPLICANT
and
MANDLA WELLEM MABENA RESPONDENT
Neutral citation: Bidvest Protea Coin Security (Pty) Ltd v Mandla Wellem
Mabena (986/2023 ) [2025] ZASCA 23 (26 March 2025)
Coram: MOKGOHLOA ADP and MBATHA and UNTERHALTER JJA
and VALLY and MODIBA AJJA
Heard : 12 March 2025
Delivered : 26 March 2025.
Summary: Section 17(2) (f) of the Superior Courts Act 10 of 2013 –
reconsideration of a decision of the Supreme Court of Appeal to refuse special
leave to appeal – finality of such decision – exceptional circumstances as a
jurisdictional fact – who decides whether a reconsideration is permissible.
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ORDER
On appeal from: Mpumalanga Division of the High Court, Middelburg
(Mphahlele DJP and Mankge and Vukeya J J, sitting as a court of appeal ):
(i) The matter is struck from the roll ;
(ii) The applicant is to pay the costs incurred by the respondent in opposing the
application for reconsideration.
JUDGMENT
Unterhalter JA ( Mokgohloa ADP and Mbatha JA and Vally and Modiba
AJJA concurring):
Introduction
[1] The applicant, Bidvest Protea Coin Security (Pty) Ltd (Bidvest) provided
security services to the owner of the Wonderfontein mine, a mine outside
Middelburg, in the province of Mpumalanga. In March 2016, the Association of
Mine Workers and Construction Union ( AMCU ), the representative union,
embarked upon a protected strike. Members of AMCU employed at the mine,
including the respondent, Mr Mabena, participated in the strike. On 4 April 2016,
the striking workers, including Mr Mabena, engaged in industrial action by
demonstrating and picketing in an area that had been designated for this purpose,
and was agreed as between the employer and AMCU. A harvester belonging to a
farmer, Mr Bezuidenhout, entered the picketing area in order to gain access to an
adjoin ing field in which soya was planted. The harvester drove into a black
vehicle (belonging to one of the striking workers) , and then entered the field. The
striking workers , in response, threw stones at the harvester and at employees of
Bidvest who were in p lace to secure the mine. Employees of Bidvest, as they had
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done earlier in the day, in two groups, advanced upon the workers, and opened
fire with rubber bullets. The striking workers ran into the nearby bushes, where
Mr Mabena was struck by a rubber bullet in his left eye, as a result of which he
lost the sight of his eye.
[2] Mr Mabena instituted an action against Bidvest to claim compensation for
the loss of his eye. Pleadings were exchanged. The parties agreed to separate the
issue of liability and quantum. The trial was heard b efore Brauckmann AJ in the
Mpumalanga Division of the High Court, Middelburg (the trial court). The trial
court, having separated the issue of liability for determination, held that Bidvest
was 100% liable for the damages that Mr Mabena may prove.
[3] The treatment by the trial court of Bidvest’s defence is the matter that now
assumes some importance. In its plea, Bidvest denied that the events alleged by
Mr Mabena t hat led to his injury had occurred at all; but if they did, there was no
intent or negligence attributable to the employees of Bidvest, acting in the course
and scope of their employment; but if this was proven, then, in the alternative, the
employees of Bidvest acted in a situation of sudden and unexpected emergency;
and, in the further alt ernative, Mr Mabena’s own negligence contributed to the
incident leading to his injury.
[4] At the commencement of the proceedings before the trial court , counsel for
Bidvest, Mr Boot SC, indicated that he had proposed to counsel for Mr Mabena,
Mr Mkize , that Mr Mkize lead evidence on three questions: (i) was Mr Mabena
injured by employees of Bidvest; (ii) if so, ‘whether the projectile that injured the
plaintiff . . . was fired [in] circumstances of necessity ’; (iii) if so, that was ‘the
end of the matter’, that is to say, it would be a complete defence, but if not, was
Mr Mabena a joint wrongdoe r who contributed to his own injuries, and to what
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extent? The status of this pronouncement is a matter of some controversy before
us. However, the trial court decided the case in the following manner.
[5] The trial court found that Bidvest relied upon the defence of sudden and
unexpected emergency, but had failed to plead the defence of necessity. It
concluded that Mr Mabena was shot at point blank range by an employee of
Bidvest causing him to lose his left eye. The trial court went on to decide that ,
even if it considered the defence of necessity (disclosed only in the opening
address), Bidvest had, on the evidence, failed to discharge its onus to prove
necessity or, indeed, sudden emergency. As a result, the trial court ordered, in
relevant part, that Bidvest is 100% liable to Mr Mabena for all the damages he
may prove, and must pay his costs.
[6] With leave, Bidvest appealed the judgment and order of the trial court to
the full court of the trial court (the full court). Mankge J (Mphahlele DJP and
Vuyeka J concurring) dismissed the appeal, with costs. First, the full court found
no basis to interfere with the trial court’s assessment of the evidence, and the
conclusions it reached. Second, it held that the defence of necessity had not been
pleaded and should not have been raised, as it was, at the start of the trial. Third,
it doubted that the defen ce of sudden emergency, as pleaded, ‘would have
succeeded’. Fourth, on viewing the video footage of the events of the day, the full
court concluded the striking workers were ‘at a state of sudden emergency’
created by the harvester that was approaching them, and not ‘the other way
round’. It then observed, ‘I will however . . . not comment beyond this on the
defence of necessity’.
[7] Bidvest sought special leave from this Court to appeal the judgment and
order of the full court. The application was considered by Mabindla -Boqwana JA
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and Mali AJA , and was dismissed, with costs (the decision on petition). Bidvest
then brought an application in terms of s 17(2) (f) of the Superior Courts Act 10
of 2013 (the SC Act) seeking from the President of this Court (the President) a
referral of the decision on petition for reconsideration, and if necessary, variation.
Bidvest’s affidavit in support of its application invoked exceptional
circumstances that, it contended, warranted the referral of the decision on petition
to this Cour t for reconsideration and vari ation. On 1 March 2024, Mocumie ADP
(on behalf of the President) ordered that the decision on petition be referred to
this Court for reconsideration, and, if necessary, variation. This referral now
serves before us.
The referral issue
[8] The question that arises is this: what must we reconsider? The referral is
made to us by the President. Does s 17(2) (f), and the referral made to us by the
President , require us simply to reconsider the decision on petition, or does it also
require us first to decide whether there are exceptional circumstances that warrant
the reconsideration of the decision on petition, and only if we so find, then to
reconsider the decision on petition?
[9] In Motsoeneng ,1 this Court held that it is for the Court to which the referral
is made in terms of s 17(2) (f) to decide whether there are exceptional
circumstances. This, it said, is a jurisdictional fact. Ponnan JA framed the
proposition as follows : ‘Counsel appeared not to appreciate that the requirement
for the existence of exceptional circumstances is a jurisdictional fact that had to
first be me t, and that absent exceptional circumstances, the s 17(2) (f) application
was not out of the starting stalls’ .2
1 Motsoeneng v South African Broadcasting Corporation Soc Ltd and Others [2024] ZASCA 80.
2 Motsoeneng para 19.
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[10] Section 17(2) (f), of application as at the date of the referral by Mocumie
ADP, read thus: ‘The decision of the majority of the judges considering an
application referred to in paragraph (b), or the decision of the court, as the case
may be, to grant or refuse the application shall be final: Provided that the
President of the Supreme Court of Appeal may in exceptional circumstances,
whether of his or her own accord or on application filed wit hin one month of the
decision, refer the decision to the court for reconsideration and, if necessary,
variation’ .3 This provision has a number of features. First, the power conferred
upon the President is a special competence that permits of the possibility of
revisiting the finality that ordinarily attaches to a decision on petition ; finality that
is affirmed by s 17(2) (f). Second, by reason of how unusual it is to permit of this
possibility, the standard is very high: exceptional circumstances. Third, the
referral to this Court follows upon the exercise of the power enjoyed by the
President. In Avnit ,4 this Court understood the power as one, ‘likely to be
exercised only when the President believes that some matter of importance has
possibly been overlooked, or a grave injustice will otherwise result’. Fourth, the
power may be exercised, either in response to an application by a party or of the
President’s own accord, and in response to the grant or refusal of a petition. The
President may either dismiss the application or refer it to this Court.
[11] Once the President has exercised her power, the question posed in
paragraph [8] above then arises. On one interpretation, what the President refers
for reconsideration is simply the decision on petition. The President alone enjoys
3 Section 17(2) (f) was amended by s 28 of the Judicial Matters Amendment A ct 15 of 2023 which came into effect
on 3 April 2024. The effect of the amendment is to alter the standard for referral from exceptional circumstances
to the following test: ‘where a grave failure of justice would otherwise result, or the administration of justice may
be brought into disrepute ’. The change of standard does not however change the essential question before this
Court.
4 Avnit v First Rand Bank L td [2014] ZASCA 132 para 7 .
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the power to decide whether there are exceptional circumstances that warrant this
Court reconsidering the merits of the decision on petition. That is certainly an
interpretation that accords with one reading of the text of s 17(2) (f), in that it
confers a power upon the President to refer, and the subject matter of that referral
is the decision on petition, and not, in addition, the President’s power to refer. I
shall refer to this interpretation as ‘the exclusivity interpretation’ because it is for
the Pre sident alone to decide whether there are exceptional circumstances.
[12] The other interpretation is this. The President may only decide to exercise
the power conferred upon her if there are exceptional circumstances. The text of
s 17(2) (f) does not refer to exceptional circumstances as a state of affairs that exist
if the President forms the opinion that this is so. Rather, exceptional
circumstances must exist for the President to enjoy the power of referral.
Exceptional circumstances thus constitute, as this Court found in Motsoeneng , a
jurisdictional fact. If they do not exis t, the Court to which the referral is made is
duty-bound to so find. Absent the existence of exceptional circumstances, there
is no basis for the exercise of the power conferred upon the President, and hence,
no basis for this Court to consider again the merits of the decision on petition.
The finality of the decision on petition stands. I shall refer to this interpretation
as ‘the jurisdictional fact interpretation’ because it is ultimately for this Court to
decide whether there are exceptional circumstanc es.
[13] Both the exclusivity interpretation and the jurisdictional fact interpretation
have some foundation in the text of s 17(2) (f). As we have observed, the power
is conferred upon the President and its exercise is to refer the decision on petition
to the Court. That framing supports the exclusivity interpretation. However, the
text confers the power upon the President if there are e xceptional circumstances ,
and does not make the determination of those circumstances the exclusive
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preserve of the President. If the exercise of a power depends upon the existence
of a state of affairs (here exceptional circumstances), absent a clear expression to
the contrary, the repository of the power will not lightly be found simultaneously
to exercise the power and be the only judge as to whether the state of affairs exists
that permit s of the exercise of such power. Hence, it lies with the Court to which
the referral is made by the President to be the ultimate arbiter as to whether the
jurisdictio nal fact for the exercise of the power exists. This reasoning supports
the jurisdictional fact interpretation.
[14] Since the text is not decisive of the issue, we are required to enrich our
interpretation of s 17(2) (f) by recourse, in addition, to context and purpose . The
following is salient. Section 17 sets out the sequence of decision -making by
recourse to which a litigant may seek to secure a right of appeal. The sequence is
hierarchical in nature. In essence, if the trial court that made the order does not
grant leave to appeal, this Court may do so, upon a decision on petition. That is a
decision taken by two judg es of this Court, and in the event of their disagreement
by a third judge of this Court.
[15] Given this hierarchical sequence of decision -making, it would be a
discordant institutional norm if s 17(2) (f) were to be interpreted to allow a single
judge of this Court, albeit the head of court, to undo the finality of a decision
taken by two (and sometimes three) judges of the same court. It lends much
greater institutional coherence to the principle of hierarchical reconsideration if
the jurisdictional fact that is required to reconsider t he presumptive finality of a
decision on petition is taken by a panel of this Court to which the matter is referred
by the President. That would better accord with the scheme of s 17. The refusal
of leave by the trial court is reconsidered on petition by two (and sometimes three)
judges of this Court. If their decision is to be judged worthy of reconsideration
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(and hence rendered not final) , that is done by recourse to a stringent standard
and one ultimately determined by a panel of this Court. Hence s 17(2) (f) does not
use language which references exceptional circumstances to have been found to
exist ‘in the opinion of the President’. Rather, exceptional circumstances are
referenced as an objective state of affairs that must exist as a predicate for the
exerci se of the power by the President. If the predicate does not exist, then this
Court has no competence to engage upon a reconsideration of the decision on
petition . The President’s referral cannot invest this Court with jurisdiction to
reconsider the decision on petition, if the jurisdictional predicate for such
consideration is absent.
[16] I observe that this principle of institutional coherence is also of a piece
with another feature of s 17. The substantive standard for the grant of leave to
appeal increases in its stringency once a litigant has had the benefit of an appeal
before a full bench of the trial court. Special leave requires the satisfaction of a
more stringent test than leave from the judgment and order of a single judge of
the trial court. So too, the test for reconsideration from a decision on petition is
yet more stringent. And rightly so. Once the grant of leave has been refused (in
the usual case) by a puisne judge in the trial court, and by way of a decision on
petition by this Court, a very high bar must be met to have the question of leave
to appeal reconsidered by this Court. It would be an oddity if the substantive test
for reconsideration were to be more stringent, but the institutional arrangements
under which a decision on petition could be reconsidered is determined by a
single judge, the President, to undo the fina lity of a decision taken by two judges
of this Court.
[17] For these reasons, I consider the position taken in Motsoeneng to be
correct. And in consequence, we are required, as a threshold question, to
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determine whether there are exceptional circumstances that permit of the referral
to us for reconsideration of the decision on petition to refuse special leave. If we
should find that there are no exceptional circumstances, then that puts an end to
the matter, and we need not consider whether the refusal to grant leave on petition
was correctly decided, much less whether the judgment and order of the full court
are correct.
Were there exceptional circumstances?
[18] I consider next whether there are exceptional circumstances established by
Bidvest that permit of the reconsideration of the decision on petition. Both in its
application to the President in terms of s 17(2) (f), and before this Court, Bidvest
contended that exceptional circumstances existed that warranted the
reconsideration of the decision on petition. Bidvest complained that it had not
been treated fairly in the full court. The full court had found that Bidvest was
bound by its pleaded defence of sudden emergency, and could not rely on t he
defence of necessity. This deprived Bidvest of its right to have its sole defence
considered by the full court . Bidvest accepted that its case could rest only on the
defence of necessity , since the evidence established that an employee of Bidvest
had shot Mr Mabena and the defence of sudden emergency could not be sustained.
Bidvest submitted that it had raised the defence of necessity at the outset of the
trial; that Mr Mabena’s counsel ha d not demurred; that the trial had been
conducted on this basis; a nd hence both the trial court and the full court were
bound, as a matter of high authority ,5 to consider this defence on its merits ; that
the full court did not do so ; that t his was unfair ; and this then disclosed
exceptional circumstances that warranted a reconsideration of the decision on
petition.
5 Builders Ltd v Union Government 1928 AD 46 at 53; Natal Joint Municipal Pension Fund v Endumeni
Municipality 2012 (4) SA 593 SCA; Shill v Milner 1937 AD 101 at 105 .
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[19] Counsel made submissions at some length in oral argument as to whether
Bidvest was required to amend its plea to include the defence of necessity or
whether it sufficed that the defence was invoked at the commencement of the trial
and evidence was led and cross -examination was directed to the merits of this
defence. Counsel for Mr Mabena disavowed any agreement on his part to the triad
of questions that counsel for Bidvest had proposed in his opening address to the
trial court.
[20] It is unnecessary to resolve these matters. A careful reading of the judgment
of the full court does not show that Bidvest was denied a consideration of its
defence of necessity. To see why this is so, I must revert to the reasoning of the
trial court. The trial court concluded (correctly) that the defences of sudden
emergency and necessity are distinct, and that Bidvest only pleaded the defence
of sudden emergency. The trial court then undertook a full analysis of the
evidence led at trial. It then postula ted the following: ‘even if I consider the
defence (only disclosed in the opening address ) of necessity’, it nevertheless
came to the conclusion, ‘[O]n the evidence before me the defence of necessity
was not proven’. The trial court thus did consider the defence of necessity, and
there was no unfairness suffered by Bidvest on the basis that its defence was
excluded because it was not pleaded.
[21] What then of the treatment of this issue in the appeal before the full court?
The full court was critical of the failure by Bidvest to plead the defence of
necessity. In an important passage from its judgment, the full court stated: ‘Even
though I do not agree with the trial court in its approach of accepting the issue at
the opening address stage, I however agree with the trial court’s ultimate finding
on the issue of necessity’. This affirmation of the trial court must be read together
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with the acceptance by the full court that the findings of the trial court, underlying
its order, could not be faulted. There are certain references in the judgment of the
full court which might suggest that it considered the defence of necessity with
circumspection . So, for example, upon its viewing of the video evidence, the full
court concluded thus: ‘the defence of necessity would have probably be met with
difficulties looking at the events as they unfold in the video recording’. (Emphasis
added .) But i ts viewing of the video evidence also led the full court to conclude
that it was the striking workers who were faced with a situation of sudden
emergency and the following finding is then made: ‘I will however not comment
beyond this on the defence of necessity. Therefore, the conclusion by the trial
court should stand, even on this basis alone ’. (Emphasis added .)
[22] A fair reading of the judgment of the full court indicates that it did have
regard to the evidence led at trial and concluded that it could find no error that
the trial court had made as to the defence of necessity. Once this is so , there was
no unfairness of the kind attributed by Bidvest to the full court. And hence there
are no exceptional circumstances disclosed that permit of a reconsideration of the
decision on petition.
[23] Section 17(2) (f) requires that this Court must decide whether exceptional
circumstances exist. If they do not, as I find, then the jurisdictional fact has not
been established that permits of a reconsideration of the decision on petition. The
decision on petition remains the final word on whether Bidvest may appeal the
judgment and order of the full court. It may not. And hence the matter must be
struck from the roll.
[24] In the result:
(i) The matter is struck from the roll ;
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(ii) The applicant is to pay the costs incurred by the respondent in opposing
the application for reconsideration.
______________________
D N UNTERHALTER
JUDGE OF APPEAL
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Appearances
For the applicant : Adv B Boot SC
Instructed by: Weavind & Weavind, Pretoria
Hattingh Attorneys, Bloemfontein
For respondent: Adv L P Mkize
Instructed by: Mkize Attorneys, Delmas
Phatshoane Henney Inc. , Bloemfontein .