SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 935/2024
In the matter between:
HI-Q AUTOMOTIVE (PTY) LTD APPELLANT
and
ERGA INVESTMENTS (PTY) LTD FIRST
RESPONDENT
THE SHERIFF, MIDRAND SECOND
RESPONDENT
Neutral citation: Hi-Q Automotive (Pty) Ltd v Erga Investments (Pty) Ltd and
Another (935/2024) [2026] ZASCA 31 (18 March 2026)
Coram: PETSE, MBHA and DLODLO AJJA
Heard: 22 September 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and release d to SAFLII. The date and time for hand -down is deemed to be
18 March 2026 at 11h00.
2
Summary: Powers of appellate court – s 16(2)(a)(i) of the Superior Courts Act 10
of 2013 – power to dismiss appeal where decision sought will have no practical
effect or result – discretion of appellate court to entertain appeal notwithstanding
mootness – interests of justice warranting the hearing of the present appeal –
whether application for reconsideration in terms of the proviso to s 17(2) (f) falls
within the purview of s 18(1) – issue determined in the affirmative.
ORDER
On appeal from: Gauteng Division of the High Court, Johannesburg (Beyers AJ
sitting as court of first instance):
The appeal is dismissed with no order as to costs.
JUDGMENT
Petse et Dlodlo AJJA (Mbha AJA concurring):
Introduction
[1] This appeal raises a crisp and interesting question of law . It is this. Is an
application in terms of the proviso to s 17(2)(f) of the Superior Courts Act 10 of 2013
(the Act) to the President encompassed by the provisions of s 18 (1) of the Act. The
Gauteng Division of the High Court, Johannesburg (the high court) per Beyers AJ ,
answered this question in the affirmative. Before that, in the Kwa-Zulu Natal Division,
Pietermaritzburg, Moodley AJ had answered the same question in the negative.
Thus, the issue for determination in this appeal is whether Beyers AJ’s finding was
correct or not. The appeal came before us with the leave of the high court.
[2] Accordingly, the fate of this appeal hinges on the proper interpretation of
s 17(2)(f) and, in particular, the wording of the proviso thereto read with s 18(1) of
the Act . However, there is a pr ior procedural hurdle that the appellant, Hi -Q
Automotive (Pty) Ltd, must overcome . And, in the event that the appellant fails to
overcome such hurdle, that outcome would render it unnecessary to enter into the
substantive merits of the appeal. It bears mentioning at this juncture that the first
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respondent, Erga Investments (Pty) Ltd, has not taken part in this appeal presumably
because it is no longer in occupation of the premises that were in issue in the high
court. The second respondent, the Sheriff of the High Court, Midrand, too, does not
feature in this appeal. Indeed, the second respondent elected to remain supine from
the inception of these proceedings.
[3] At the outset it must be stated that both in his heads of argument and before
us, counsel for the appellant accepted upfront that since the first respondent is no
longer in occ upation of the appellant’s business premises the appeal is moot.
Therefore, this Court must before all else decide whether it should still delve into the
substantive merits of the appeal notwithstanding its mootness. We shall revert to this
issue after setting out the facts.
Background facts
[4] In certain proceedings instituted by the appellant against the first respondent
by way of urgency, Maier-Frawley J delivered a judgment on 21 February 2024. In
that judgment, the learned judge ordered the cancel lation of the written sub -lease
agreement concluded between the appellant as sub-lessor and the first respondent
as sub -lessee in respect of Shop No. 1[...], W[...] R[...] Shopping Centre, Vorna
Valley, Midrand ( the premises ) owned by the appellant. Consequent to the
cancellation, the first respondent was directed to vacate the premises on or before
15 March 2024, failing which the second respondent , as the Sheriff of Midrand, was
authorised to enlist the assistance of any person, including members of the South
African Police Service (SAPS), to ensure compliance with the eviction order.
[5] Aggrieved by the order made by Maier -Frawley J, the first respondent sought
leave to appeal, which was refused by the same court. A subsequent petition to this
Court for leave to appeal was lodged on 12 June 2024 . It was also dismissed by two
judges of this Court on the ground that the envisaged appeal would have no
judges of this Court on the ground that the envisaged appeal would have no
reasonable prospect of success. Nor , in their opinion, was there any other
compelling reason why the appeal should be heard . Undeterred, the first respondent
proceeded to apply for the reconsideration of the refusal of leave to appeal on
petition to this Court in terms of the proviso to s 17(2)(f) of the Act. For convenience,
this application will hereinafter be referred to as the reconsideration application.
4
[6] It is noteworthy that prior to the lodging of the reconsideration application in
terms of s 17(2) (f) of the Act, the Registrar of the high court had, on 20 June 2024 ,
issued a warrant of ejectment against the first respondent , authorising the execution
of the eviction order of Maier -Frawley J. However, the execution of the warrant was
effected by the second respondent only on 4 July 2024, which was one day after the
first respondent had filed its application for reconsideration. This then prompted the
first respondent to urgently approach the high court, for an interdict in terms of which
it sought a stay of execution of the Maier-Frawley J order.
[7] This application served before Beyers AJ who, on 29 July 2024 , granted an
interdict in favour of the first respondent , the effect of which was to restore its
undisturbed possession of the premises . Pursuant to the principal relief granted, the
high court directed the second respondent to unlock the premises and facilitate the
first respondent’s access thereto. The order further stipulated that, should the
second respondent fail to comply with such order within 24 hours of its issuance, the
first respondent would be entitled to engage the services of a locksmith to gain entry
into the leased premises and restore its lost possession. In addition, the appellant
was interdicted from instituting any proceedings aimed at executing the judgment
and order by Maier-Frawley J , thereby restraining it from interfering with the
possession of the premises as restored to the first respondent .1 It is necessary to
pause and mention that all of this took place while the outcome of the first
respondent’s reconsideration application to the President was still pending.
1 The order granted by the high court reads:
‘1. This application be enrolled and heard as an urgent application in terms of Rule 6(12) and that
the ordinary prescribed time limits, forms and services provided in the Rules be dispensed with.
2. Pending the final determination by the President of the Supreme Court of Appeal of the
Applicant’s application under s 17(2)(f) of the Superior Courts Act, 10 of 2013, under case
number 726/24 in respect of the dismissal of the Applicant’s petition for leave to appeal
against the judgment of the Honourable Maier -Frawley J dated 21 February 2024 (“the
judgment”);
2.1 The First Respondent is ordered to restore undisturbed possession to the Applicant of
the premises situated at Shop no 1[...], W[...] R[...] Shopping Centre, Vorna Valley,
Midrand (“the premises”);
2.2 The Second Respondent is directed to unlock the premises and, in the event that the
Second Respondent fails to do so within 24 hours of this Order, the Applicant may seek
the services of a lock smith to unlock the premises in order for Applicant gain access
thereto; and
2.3 The First Respondent is prohibited from taking fresh steps to execute the judgment.
3. The First Respondent is liable for the costs of this application.’
5
[8] The underlying reason for the grant of the interdictory relief by Beyers AJ was
the pending determination by the President of this Court in respect of the first
respondent’s reconsideration application under s 17(2) (f) of the Act , which , in the
view that Beyers AJ took of the matter, had the effect of suspending the execution of
the Maier-Frawley J order in terms of s 18(1) of the Act.
[9] Dissatisfied with the order of the high court reinstating the first respondent’s
possession of the leased premises, the appellant sought and was granted leave to
appeal to this Court by Beyers AJ. Hence the present appeal before us.
Statutory framework
[10] Of prime importance in this appeal are the provisions of both s 17(2) (f), in
particular the proviso thereto, and s 18(1) of the Act. Section 17(2) (f), in relevant part
reads as follows:
‘The decision of the majority of the judges considering an application referred to in
paragraph (b), or…,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 within one month of the decision, refer the decision
to the court for reconsideration and, if necessary, variation.’ (Emphasis added.)
[11] Section 18, which is headed ‘Suspension of decision pending appeal’
provides, in relevant part, as follows:
‘(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision which is the
subject of an application for leave to appeal or of an appeal, is suspended pending the
decision of the application or appeal.
(2) …
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party
who applied to the court to order otherwise, in addition proves on a balance of probabilities
that he or she will suffer irreparable harm if the court does not so order and that the other
that he or she will suffer irreparable harm if the court does not so order and that the other
party will not suffer irreparable harm if the court so orders.
(4)(a) If a court orders otherwise, as contemplated in subsection (1)-
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest court;
6
(iii) the court hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such order will be automatically suspended, pending the outcome of such
appeal.
(b) “Next highest court”, for purposes of paragraph (a)(ii), means-
(i) a full court of that Division, if the appeal is against a decision of a single judge
of the Division; or
(ii) the Supreme Court of Appeal, if the appeal is against a decision of two judges
or the full court of the Division.
(5) For the purposes of subsections (1) and (2), a decision becomes the subject of an
application for leave to appeal or of an appeal, as soon as an application for leave to appeal
or a notice of appeal is lodged with the registrar in terms of the rules.’ (Emphasis added.)
We have put the words of the proviso to s 17(2) (f) and sub -section 18(5) in
parenthesis for reasons that will become apparent later in this judgment.
[12] As already indicated in paragraph 7 above, after hearing argument from
counsel on behalf of the protagonists, Beyers AJ, having regard to the urgency of the
matter, issued an order in the terms s et out in his order of 24 July 2024. 2 On 29 July
2024 the learned judge, in keeping with abiding judicial authority, provided written
reasons underpinning his order. After making a reference to the facts of the case
before him, the learned judge proceeded to describe the ‘critical legal issue’ with
which he was confronted as the question ‘whether section 18 of the [Superior Courts
Act] suspends the operation of a decision which is the subject of an application for
reconsideration under section 17(2)(f)’ of the Act.
[13] Beyers AJ went on to answer the question he had posed in the affirmative. In
this regard, he noted that previously the very question – set out in the preceding
paragraph – was considered and answered by Aucamp AJ in a recent judgment
reported sub -nomine Ekurhuleni Metropolitan Municipality v Business Connexion
reported sub -nomine Ekurhuleni Metropolitan Municipality v Business Connexion
(Pty) Ltd and Others.3 In Business Connexion the following was stated:
‘It is trite that in terms of s18(1) of the Superior Court’s Act, subject to subsections (2) and
(3), unless the court under exceptional circumstances orders otherwise, the operation and
2 See footnote 1 above.
3 Ekurhuleni Metropolitan Municipality v Business Connexion (Pty) Ltd and Others [2024] ZAGPJHC
378; 2024 (4) SA 571 (GJ) (Business Connexion).
7
execution of a decision which is the subject matter of an application for leave to appeal or of
an appeal is suspended pending the decision of the application or appeal.
The crisp issue presented to this court for consideration is whether s 18(1) equally applies to
a request made in terms of s 17(2)(f). Put differently, does a request to the President of the
Supreme Court of Appeal in terms of s 17(2)(f) of the Act automatically suspend the
operation and execution of the judgement pending the final decision of the President?
…
On a proper interpretation of ss 17 and 18 of the Superior Court’s Act, applying the principles
as stated read with the authorities referred to the position seems to be that (a) s 17(2)(f) is
part of the appeal process (b) that it is intended to keep the door of justice ajar in order to
cure errors or mistakes and (c) that it serves as a means of preventing an injustice. The very
same qualities that one finds in an application for leave to appeal and/or an appeal.
…
In the result I find that s18 of the Superior Court’s Act applies to a request made in terms of
s 17(2)(f) of the same Act and that the execution of the underlying judgment or order is
suspended pending the final determination thereof by the President of the Supreme Court of
Appeal.
Notwithstanding the aforesaid findings and even if I am wrong on the applicability of s18(1)
as far as and in relation to a s 17(2)(f) request, I would have stayed the execution pending
the announcement of the President’s decision. S ection 173 of the Constitution provides any
Superior Court with an inherent jurisdiction to regulate its own processes in the interest of
justice. Section 173 provides:
“The Constitutional Court, the Supreme Court of Appeal and the High Court each has the
inherent power to protect and regulate their own process, and to develop the common law,
taking into account the interests of justice.”
In South African Broadcasting Corp Ltd v National Director of Public Prosecutions the nature
In South African Broadcasting Corp Ltd v National Director of Public Prosecutions the nature
of the inherent power of the Superior Courts under section 173 is described as follows:
“The power in section 173 vests in the judiciary the authority to uphold to protect and to fulfil
the judicial function of administering justice in a regular, orderly and effective manner. Said
otherwise, it is the authority to prevent any possible abuse of process and to allow a Court of
act effectively within its jurisdiction.”
In Mokone v Tassos Properties CC and Another Madlanga J referred to s 173 as providing
the basis for the courts mentioned in the section to regulate their own processes taking into
account the interests of justice. Madlanga J invoked the Constitutional Court ’s inherent
8
power and, after being satisfied that it was in the interest of justice to do so, stayed
proceedings for the eviction of the applicant pending the finalisation of associated
proceedings.’4
[14] The learned Judge proceeded to note that the underlying reason ing in
Business Conexion was compelling and jurisprudentially sound. He further noted that
he was bound by Business Connexion, unless he found it to be clearly wrong. And
that far from finding Business Connexion to be clearly wrong, he was, on the
contrary, in respectful agreement therewith. Hence the learned judge granted the
interdict as already indicated in paragraph 7 above.
Issues
[15] Accordingly, what falls to be determined in this appeal are two issues. First,
we must decide whether the interests of justice dictate that we should enter into the
substantive merits of the appeal notwithstanding that the appeal is undoubtedly
moot. The mootness of the appeal came about because the first respondent vacated
the leased premises before the appeal was enrolled for hearing following the judicial
cancellation of the sub-lease on 21 February 2024 . Second, in the event we decid e
to entertain the appeal on its merits , we must consider whether the conclusion
reached by Aucamp AJ in Business Connexion is jurisprudentially sound. This is
particularly so having regard to the fact that in Member of the Executive Council for
Co-operative Governance and Traditional Affairs v Nquthu Municipality and Others ,5
the court there decided the very same issue to the contrary.
[16] The second issue self-evidently entails that we must undertake an interpretive
exercise and determine, in the light of the context, purpose and language employed
in both s 17(2) (f) and s 18 of the Act , read together, which of the two diametrically
opposing conclusions reached in Business Connexion and Nquthu Municipality is
correct. Therefore, barring the preliminary point as set out in the preceding
correct. Therefore, barring the preliminary point as set out in the preceding
paragraph, it is important to emphasise at the outset what this appeal is all about.
Simply put, the issue is whether there is any intersectionality between s 18(1) and
4 Business Connexion above paras 11-12, 27 and 36-39.
5 Member of the Executive Council for Co -operative Governance and Traditional Affairs v Nquthu
Municipality and Others [2020] ZAKZPHC 40; 2021 (1) SA 432 (KZP) (Nquthu Municipality).
9
the proviso to s 17(2)(f) of the Act. Differently couched, the crucial question is: does
s 18(1) encompass or extend to applications for reconsideration of the decision
made under s 17(2) (b) of the Act. This will be the sole issue for determination, once
we decide to entertain the merits of the appeal notwithstanding mootness, nothing
more. We pause to remark that before now there has been no occasion for this Court
to consider and determine this issue.
Submissions by the first respondent
[17] Before Beyers AJ the first respondent contended that both the second
respondent, the Sheriff , and the appellant acted unlawfully in proceeding with the
execution of the judgment and order of Maier-Frawley J, notwithstanding the fact that
they had been served with and informed of its pending reconsideration application in
terms of s 17(2)(f) of the Act. Briefly then, the first respondent’s submission was that,
in the light of the pending reconsideration application, it ought to have been
permitted to retain possession of the premises and to continue conducting its
business operations therefrom, until the final determination of its reconsideration
application.
[18] In support of its contention, the first respondent invoked s 18(1) of the Act as
the statutory foundation for its case. It submit ted that s 18 (1) reaffirms the long -
standing common -law principle that the execution of a judgment or order is
automatically suspended pending the outcome of an appeal or application for leave
to appeal , as the case may be . Accordingly, execution of a judgment may not
proceed until a decision on the appeal or application for leave to appeal has been
finally made.
[19] The first respondent further submitted that the statutorily reinforced automatic
suspension of a judgment or order subject to an appeal or application for leave to
appeal operates as the default legal position . Thus, any party seeking to execute a
appeal operates as the default legal position . Thus, any party seeking to execute a
judgment or order pending appeal is required to apply to court for leave to do so. In
the absence of such an application and order, contended the first respondent, the
execution of the judgment of Maier -Frawley J was not only premature but also
unlawful. As a result, the execution of the Maier-Frawley J order while still the
subject of a reconsideration application in terms of s 17(2) (f) was in breach of the
provisions of s 18(1). It further argued that the courts have come to recognise that
10
reconsideration applications form part of the appeal process, and therefore fall within
the purview of s 18(1) of the Act, which explicitly provides for the suspension of the
operation and execution of a decision subject to an application for leave to appeal or
of an appeal pending the determination of such application for leave to appeal or
appeal.
[20] In the alternative, the first respondent contended that the conduct of the
appellant amounted to spoliation, entitling it to the restoration of the peaceful
possession and use of the premises it previously enjoyed . It submitted that the
appellant’s conduct in locking the premises on 4 July 2024 unlawfully disrupted its
continued business operations and constituted an unlawful deprivation of
possession. It further argued that in taking unilateral steps to evict it from the leased
premises, the appellant had effectively taken the law into its own hands , thereby
acting unlawfully as the law firmly sets its face against anyone taking the law into
their hands. It is of course trite that the law does not countenance self-help.6
Submissions by the appellant
[21] For its part, t he appellant contested the argument advanced by the first
respondent that an application for reconsideration in terms of s 17(2) (f) of the Act
forms part of an appeal process as contemplated in s 18(1) and, in consequence,
triggers the automatic suspension of the execution of the Maier-Frawley J order.
[22] It further contended that in this case the high court erred in upholding the first
respondent’s contentions and in granting the interdictory relief sought. The appellant
further submitted that the judgment of Beyers AJ is flawed in that it failed to properly
interpret s 18(1) of the Act, which, as the argument went , applies only in instances
where an application for leave to appeal or an appeal is still pending and has not yet
been finally determined. Accordingly, the appellant maintained that the
been finally determined. Accordingly, the appellant maintained that the
reconsideration application under s 17(2)(f) in issue here did not, in and of itself,
6 See, for example in this regard: Chief Lesapo v North West Agricultural Bank and Another [1999]
ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR 1420 para 11; Union for Police Security and Corrections
Organisation v South African Custodial Management (Pty) Ltd and Others [2021] ZACC 41; 2022 (1)
BCLR 118 (CC); (2022) 43 ILJ 341 (CC) para 29; Public Servants Association obo Ubogu v Head of
the Department of Health, Gauteng and Others, Head of the Department of Health, Gauteng and
Another v Public Servants Association obo Ubogu [2017] ZACC 45; 2018 (2) BCLR 184 (CC); (2018)
39 ILJ 337 (CC); [2018] 2 BLLR 107 (CC); 2018 (2) SA 365 (CC) paras 66-68.
11
suspend the operation or execution of the judgment . Thus, no lawful impediment
existed to preclude the second respondent, on instructions from the appellant, from
executing the warrant of ejectment. We propose to address the opposing contentions
of the parties later when we deal with the substantive merits of the appeal.
Has the appeal become moot in light of the intervening developments
[23] As already alluded to above, s 16(2) (a)(i) of the Act provides that an appeal
may be dismissed solely on account of mootness if at the hearing the issues are of
such a nature that the decision sought will have no practical effect or result.
Invariably, an appellate court will ordinarily dismiss an appeal that is moot unless, of
course, the interests of justice dictate that such an appeal should nevertheless be
entertained. In this regard, it is necessary to mention that according to s 16(2) (a)(ii)
of the Act the question whether the decision would have no practical effect or result
should be determined without reference to any consideration of the issue of costs,
save under exceptional circumstances.
[24] In that context, t his Court, in Solidariteit Helpende Hand NPC and Others v
Minister of Cooperative Governance and Traditional Affairs ,7 invoking the decision of
the Constitutional Court in Minister of Tourism and Others v Afriforum NPC and
Another,8 held as follows:
‘A case is moot between the parties which would be practically affected in one way or
another by a court’s decision or which would be resolved by a court’s decision. A case is
also moot when a court’s decision would be of academic interest only.’
[25] This principle is directly applicable to the present matter. The central issue ,
namely, the prevention or prohibition of the eviction of the first respondent from the
leased premises , has already been overtaken by intervening events, as the first
respondent has since vacated the leased premises upon the termination of the sub -
respondent has since vacated the leased premises upon the termination of the sub -
lease. At present, the first respondent is no longer conducting business operations at
the appellant’s premises . The effect of this is that the appellant no longer requires
the intervention of this Court to regain possession and control of its premises.
7 Solidariteit Helpende Hand NPC and Others v Minister of Cooperative Governance and Traditional
Affairs (104/2022) [2023] ZASCA 35 (31 March 2023) (Solidariteit) para 19.
8 Minister of Tourism and Others v Afriforum NPC and Another [2023] ZACC 7; 2023 (6) BCLR 752
(CC) para 23.
12
[26] Accordingly, the dispute between the protagonists no longer presents a live
controversy requiring adjudication by this Court . The matter is moot. This leads to
the next issue for consideration: namely, whether this Court should nevertheless, in
the exercise of its discretion, proceed to enter into the substantive merits of the
dispute that served before Beyers AJ in the high court. On this score, it is as well to
recall that the high court reinstated the first respondent’s possession of the premises
on the sole ground that the first respondent’s application for reconsideration in terms
of s 17(2)(f) fell within the purview of s 18(1) of the Act.
This Court’s approach in relation to mootness
[27] Ordinarily, and in line with s 16(2) (a)(i) of the Act , once it has been
determined that a matter is moot, that in the normal course would mark the end of a
judicial inquiry. In Mhlontlo Local Municipaity and Others v Ngcangula and Another ,9
with reference to the Constitutional Court decision in National Coalition of Gay and
Lesbian Equality and Others v Minister of Home Affairs and Others ,10 the following
principle was affirmed:
‘A case is moot and therefore not justi ciable if it no longer presents an existing or live
controversy which should exist if the Court is to avoid giving advisory opinions on abstract
propositions of law.’ (Our emphasis.)
[28] In Police and Prisons Civil Rights Union v South Africa Correctional Services
Workers’ Union and Others,11 the Constitutional Court held that:
‘This Court’s jurisprudence regarding mootness is well settled. As a starting point, this Court
will not adjudicate an appeal if it no longer presents an existing or live controversy . This is
because this Court will ge nerally refrain from giving advisory opinions on legal questions, no
matter how interesting, which are academic and have no immediate practical effect or result.
Courts exist to determine concrete legal disputes and their scarce resources should not be
Courts exist to determine concrete legal disputes and their scarce resources should not be
frittered away entertaining abstract propositions of law.’12 (Our emphasis.)
9 Mhlontlo Local Municipaity and Others v Ngcangula and Another [2024] ZSACA 5; [2024] 3 BLLR
239 (SCA); (2024) 45 ILJ 775 (SCA) para 17.
10 National Coalition of Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) at fn 18.
11 Police and Prisons Civil Rights Union v South Africa Correctional Services Workers’ Union and
Others [2018] ZACC 24; [2018] 11 BLLR 1035 (CC); 2018 (11) BCLR 1411 (CC); (2018) 39 ILJ 26 46
(Police and Prisons Civil Rights Union).
12 Ibid para 43. See also Normandien Farms (Pty) Limited v South African Agency for Promotion of
Petroleum Exportation and Exploitation (SOC) Limited and Others [2020] ZACC 5; 2020 (6) BCLR
748 (CC); 2020 (4) SA 409 (CC) (Normandien) para 47.
13
[29] However, mootness is not always an automatic bar to an appeal being
entertained. This is e specially true in instances where the interests of justice
necessitate that the matter be dealt with. In Police and Prisons Civil Rights Union ,
Cachalia AJ said:
‘The Court may entertain an appeal, even if moot, where the interests of justice so require. In
making this determination the Court exercises a judicial discretion based upo n a number of
factors. These include, but are not limited to, considering whether any order may have some
practical effect, and if so its nature or importance to the parties or to others .’13 (Our
emphasis.)
[30] The factors that a court will take into account when considering how it should
exercise its discretion to adjudicate an issue on appeal even if it is moot were
restated in City of Cape Town v Aurecon South Africa (Pty) Ltd .14 There, the
Constitutional Court expressed itself thus:
‘A prerequisite for the exercise of the discretion is that any order which this Court may make
will have s ome practical effect either on the parties or on others . Other factors that may be
relevant will include the nature and extent of the practical effect that any possible order might
have, the importance of the issue , its complexity and the ful lness or otherwise of the
argument advanced… .’15 (Emphasis added.)
[31] In Solidariteit this Court had occasion to say:
‘…[C]ourts, in a number of cases, have dealt with the merits of an appeal, notwithstanding
the mootness of the dispute between the parties. Those cases involved legal issues “of
public importance . . . that would affect matters in the future and on which the adjudication of
this court was required.”’16
[32] As can be deduced from the passages referenced above, the overarching
principle guiding appellate courts on how they should exercise their discretion as to
whether they must entertain an appeal that is moot is what the interests of justice
whether they must entertain an appeal that is moot is what the interests of justice
13 Police and Prisons Civil Rights Union fn 11 above para 44. See also Normandien above paras 46
and 48.
14 City of Cape Town v Aurecon South Africa (Pty) Ltd [2017] ZACC 5; 2017 (6) BCLR 730 (CC); 2017
(4) SA 223 (CC).
15 Ibid para 54. See also Independent Electoral Commission v Langeberg Municipality 2001 (3) SA
925 (CC); 2001 (9) BCLR 883 (CC) para 11.
16 Solidariteit fn 7 above para 14. See also Botha v Smuts and Another [2024] ZACC 22; 2024 (12)
BCLR 1477 (CC); 2025 (1) SA 581 (CC) para 43.
14
require. Finally, it is necessary to also refer to a judgment of t his Court in Minister of
Justice and Correctional Services and Others v Estate Late James Stransham-Ford
and Others.17 There, the following was stated:
‘…the Constitiuitonal Court has reserved to itself a discretion, if it is in the interest of justice
to do so, to consider and determine matters even though they have become moot. It is a pre-
requisite for the exercise of the discretion that any order the Court may ultimately make will
have some practical effect either on the parties or on others. Other factors that may be
relevant will include the nature and extent of the practical effect that any possible order might
have, the importance of the issue, its complexity and the fullness or otherwise of the
argument.’18 (Citations omitted.)
[33] Moreover, that there are presently discordant judgments of the high court in
relation to the issue before us is also sufficient and good a reason for this Court to
entertain th is appeal notwithstanding it’s mootness in order to settle the
jurisprudential discord. And where a matter raises a discrete legal issue of public
importance, particularly one that is capable of having a prospective effect on future
cases, this Court is obligated to adjudicate the issue , notwithstanding the mootness
of the dispute between the parties. This pr inciple is said to affirm the Courts ’
constitutional role in settling the law to promote legal certainty, even in
circumstances where the controversy between the immediate parties has ceased to
exist.
Whether the matter raises a discrete legal issue of sufficient importance to
warrant adjudication by this Court, notwithstanding mootness.
[34] Against the foregoing backdrop, it is necessary to consider next whether in
the context of the facts of this case it is appropriate and desirable to entertain this
appeal despite its mootness. The appellant submitted that the present case raises a
appeal despite its mootness. The appellant submitted that the present case raises a
discrete legal issue of public importance, which bears directly on the interests of
justice.
17 Minister of Justice and Correctional Services and Others v Estate Late James Stransham-Ford and
Others [2016] ZASCA 197; [2017] 1 All SA 354 (SCA); 2017 (3) BCLR 364 (SCA); 2017 (3) SA 152
(SCA) (Stransham-Ford).
18 Para 22.
15
[35] It was further contend ed that the very circumstance that there are two
discordant judgments19 of the high court concerning the question whether an
application for reconsideration to the President of this Court, governed by the proviso
to s 17(2) (f) automatically suspends the executability of a judgment or order, as
contemplated in s 18(1) of the Act imperatively calls for the determination of this
appeal.
[36] In the third place, the appellant submitted that a definitive ruling by this Court
on the matter would serve to clarify the legal position, thereby preventing fu ture
uncertainty and unnecessary litigation on the same issue. Furthermore, the appellant
argued that such clarity would promote judicial efficiency and uphold the rule of law,
particularly in cases involving the execution of judgments before appellate processes
have been exhausted.
[37] In Gcaba v Minister for Safety and Security and Others 20 the Constitutional
Court held that:
‘One of the purposes of the law is to regulate and guide relations in a society… Yet the
legislature, courts, legal representatives and academics often create complexity and
confusion rather than clarity and guidance’.
Thus, to fulfil this legal purpose bestowed upon the courts and other s, this Court is
duty bound to provide clarity and guidance when ever the opportunity arises and
circumstances dictate so.
[38] A similar sentiment was expressed in Beadica 231 CC and Others v Trustees
for the time being of the Oregon Trust and Others (Beadica).21 There, the
Constitutional Court held that where there are conflicting or different interpretations
or outlooks between two courts on a particular issue , that results in uncertainty,
which has been recognised as problematic and undesirable , an appellate court
19 MEC for Co-Operative Governance and Traditional Affairs, KZN v Nquthu Municipality and Others
[2020] ZAKZPHC 40; 2021 (1) SA 432 (KZP) and Ekurhuleni Metropolitan Municipality v Business
[2020] ZAKZPHC 40; 2021 (1) SA 432 (KZP) and Ekurhuleni Metropolitan Municipality v Business
Connexion (Pty) Ltd and Others [2024] ZAGPJHC 378; 2024 (4) SA 571 (GJ).
20 Gcaba v Minister for Safety and Security and Others [2009] ZACC 26; 2010 (1) SA 238 (CC) ; 2010
(1) BCLR 35 (CC); (2010) 31 ILJ 296 (CC); [2009] 12 BLLR 1145 (CC) paras 1-2.
21 Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others [2020]
ZACC 13; 2020 (5) SA 247 (CC); 2020 (9) BCLR 1098 (CC).
16
would ordinarily be required in such situations to resolve the uncertainty . In such
instances, the Court proceeded to hold that:
‘It also presents an opportunity to resolve the perceived divergence between the approach of
[those courts] by engaging in a doctrinal analysis that seeks to make the best sense of our
jurisprudence on these issues and present a coherent account thereof.’22
[39] The Court continued:
‘When interpreting jurisprudence, our courts must make the best sense of judicial reasoning
across a diverse set of cases. This requires engagement with sustained lines of reasoning
within a particular case and across cases, rather than the selective lifting of isolated judicial
statements to support a predisposed interpretation. There will always be outlier cases, but
doctrinal analysis should offer an account that is coherent and best fi ts our jurisprudence as
a whole. Coherence speaks not only to the avoidance of contradiction, but to an inner unity
or logic in which legal reasoning corresponds to its broader aims.’23
[40] There are other several cases in which this Court, in particular, entertained
appeals despite the fact that the issue as between the litigants themselves was
found to be moot. 24 On the other hand there are cases where this Court declined to
entertain the appeal because the issue between the parties had become moot. 25
Generally speaking, the reason why, in some cases, this Court entertained the
appeal notwithstanding mootness while it declined to do so in others was that in the
former category there was a discrete legal issue that went beyond the interests of
the litigants and which would affect future cases whereas in respect of the latter
category no issue of the kind was involved. 26 In the context of s 21A of the repealed
Supreme Court Act ,27 which was functionally equivalent to s 1 6(2)(a)(i) of the Act ,
22 Ibid para 18.
23 Ibid at fn 26.
24 Natal Rugby Union v Gould 1999 (1) SA 432 (SCA); [1998] 4 All SA 258 (A); "Merak S" (Name of
Ship) Sea Melody Enterprises SA v Bulktrans (Europe) Corporation 2002 (4) SA 273 (SCA); Land &
Landbouontwikkelingsbank van Suid Afrika v Conradie [2005] 4 All SA 509 (SCA); 2005 (4) SA 506
(SCA); Executive Officer: Financial Services Board v Dynamic Wealth Ltd and Others [2011] ZASCA
193; 2012 (1) SA 453 (SCA); [2012] 1 All SA 135.
25 Rand Water Board v Rotek Industries (Pty) Ltd [2003] ZASCA 22; 2003 (4) SA 58 (SCA) ; Clear
Enterprises (Pty) Ltd v Commissioner for South African Revenue Services and Others [2011] ZASCA
164; 83 SATC 136; Ethekwini Municipality v South African Municipality Workers Union and Others
[2013] ZASCA 135; Legal-Aid South Africa v Magidiwana and Others [2014] ZASCA 141; 2015 (2) SA
568 (SCA); [2014] 4 All SA 570 (SCA).
26 See, for example, Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and
Others [2012] ZASCA 166; 2013 (3) SA 315 (SCA).
27 Supreme Court Act 59 of 1959.
17
this Court explained the rationale for the appellate courts ’ refusal to hear appeals
that are moot thus:
‘The purpose and effect of s 21A has been explained in the judgment of Olivier JA in the
case of Premier, Provinsie Mpumalanga en’n Ander v Groblersdalse Stadsraad 1998 (2) SA
1136 (SCA). As is there stated the section is a reformulation of principles previously adopted
in our courts in relation to appeals involving what were called abstract, academic or
hypothetical questions. The principle is one of longstanding.’28
[41] It is therefore beyond question that on the facts of this case there exists a
discrete issue of public importance that will self -evidently affect other matters in the
future which requires adjudication by this Court.
[42] Having regard to the increasing number of applications for reconsideration
under the proviso to s 17(2)(f) of the Act that have come before this Court in recent
years, there is a strong likelihood that disputes of a similar nature will continue to
arise. In such circumstances, parties and lower courts will inevitably seek clarity and
guidance on the legal con sequences of such applications, particularly regarding
whether the operation or execution of a decision that is the subject of an application
in terms of the proviso to s 17(2) (f) is subject to the remedial device provided for in
s 18(1). It is therefore both necessary and appropriate for this Court to engage with
the merits of the present matter, notwithstanding its mootness, in order to provide
authoritative guidance and bring finality to this recurring and unsettled legal
controversy. This approach accords with the principle restated in Normandien Farms
(Pty) Limited v South African Agency for Promotion of Petroleum Exportation and
Exploitation (SOC) Limited and Others that ‘mootness is not an absolute bar to the
justiciability of an issue and that this Court has the discretion to entertain an appeal
that is moot if the interests of justice so demand’.29
that is moot if the interests of justice so demand’.29
[43] Entertaining the present appeal, even though moot, would serve the interests
of justice, promote legal certainty, and assist in the uniform application of the law
across the courts of the land . Providing an answer to the question raised is of
importance, not only to the parties in this matter but also on account of the fact that
28 Coin Security Group (Pty) Ltd v SA National Union for Security Officers and Others [2000] ZASCA
48; 2001 (2) SA 872 (SCA) para 7.
29 Normandien fn 12 above para 48.
18
this Court’s decision would have a prospective effect on future cases . The two
divergent interpretations from the high court pertaining to the applicability or
otherwise of s 18(1) of the Act to a reconsideration application , ha ve undoubtedly
caused uncertainty. There can be no doubt that to allow such an undesirable state of
affairs to continue would be inimical to the rule of law. And a s t he Constitutional
Court emphasised in Beadica that in such instances, there will be an opportunity for
the courts confronted with such a dilemma to resolve the different interpretations by
‘engaging in a doctrinal analysis that seeks to make the best sense of our
jurisprudence’.30 Addressing this matter now will therefore not only resolve the
immediate dispute but , as already mentioned, also provide clarity and authoritative
guidance on a recurring legal issue, thereby promoting legal certainty and assisting
the various Divisions of the High Court and litigants alike in navigating similar
disputes in the future.
Analysis of the two conflicting cases
[44] As indicated above, t here are two divergent interpretations regarding the
question whether an application for reconsideration in terms of the proviso to s
17(2)(f) of the Act operates to suspend the executability of a judgment or order, as
contemplated in s 18(1). These discordant approaches have been articulated in two
reported decisions of the high court, which merit closer examination.
[45] The first approach is reflected in the judgment of the Kwa Zulu-Natal Division
in Nquthu Municipality in which Moodley AJ answered the question in the negative .
He went on to hold that an application under the proviso to s 17(2)(f) does not form
part of the appeal process and, consequently, does not trigger the automatic
suspension envisaged in s 18(1) as a result of an appeal or an application for leave
to appeal that is still pending.
[46] The second approach, adopted by the Gauteng Division in Business
[46] The second approach, adopted by the Gauteng Division in Business
Connexion, where Aucamp AJ decided the issue to the contrary. The learned judge
held that an application for reconsideration under the proviso to s 17(2) (f) does
indeed form part of the appeal process and therefore has the effect of suspending
30 Beadica fn 20 above para 18.
19
the operation and execution of a decision sought to be taken on appeal as
contemplated in s 18(1) of the Act. However, insofar as this Court is concerned the
issue is, as already indicated above, still undetermined. Thus, it is now the task of
this Court to settle the ensuing conflict.
Nquthu Municipality decision
[47] In Nquthu Municipality the applicant, the Member of the Executive Council for
Co-operative Governance and Traditional Affairs, KwaZulu-Natal (the MEC) ,
instituted review proceeding s before Go rven J , seeking an order setting aside the
renewal of the employment contracts of the third to fifth respondents. Gorven J
upheld the application, finding that the contracts were unlawful and ultra vires, and
accordingly set them aside.
[48] Aggrieved by Goven J’s order, the respondents pursued an application for
leave to appeal before the same Division, which was dismissed. Dissatisfied with the
adverse outcome, they petitioned this Court for leave t o appeal, which was similarly
refused. This then prompted the respondents to lodge an application for
reconsideration with the President of this Court in terms of the proviso to s 17(2)(f) of
the Act.
[49] In the interim, the third to fifth respondents declined to vacate their positions
notwithstanding G orven J’s order declaring their contracts unlawful. The MEC
consequently approached the same Division seeking enforcement of the Gorven J
order. The respondents opposed the application, contending that it was
impermissible to enforce such a decision while the application pending before the
President of this Court had still not been decided. In support of their contention, t hey
relied on s 1 8(1) of the Act, submitting that the provision operated to suspend the
order sought to be enforced by the MEC pending the outcome of the reconsideration
application.
[50] In countering the respondents’ contentions, c ounsel for the MEC argued that
[50] In countering the respondents’ contentions, c ounsel for the MEC argued that
s 17(2)(f) provides that, once an application for leave to appeal is dismissed under
s 17(2)(b), such decision is final. It is common ground that prior to the amendment of
s 17(2)(f) that took effect on 4 April 2024 the President was empowered to refer a
20
reconsideration application to the court only if exceptional circumstances exist ed.
Since the amendment, the President may do so only if a grave failure of justice
would result or the administration of justice would be brought into disrepute if the
decision under s 17(2) (b) is not referred to the court for reconsideration. It was
submitted that such reconsideration did not constitute an application for leave t o
appeal or an appeal within the meaning of s 18(1), and therefore did not suspend the
operation of the order granted by Gorven J.
[51] Conversely, counsel for the respondents persisted in his contention that the
appeal process had not been finally concluded and that the order could not be
enforced until the reconsideration application was determined. In rejecting the
respondents’ contentions, Moodley AJ held:
‘[T]he refusal of a petition to the Supreme Court of Appeal for leave t o appeal was a final
determination of the application for leave to appeal, which refusal revived the operation and
execution of the order [sought to be] appealed against. An application for reconsideration of
such refusal did not suspend the original order…’.31
Business Connexion decision
[52] On 31 January 2023, the court in Business Connexion declared the
agreement concluded between the applicant and the first respondent valid and
binding; confirmed the applicant’s indebtedness in the amount of R85 479 535.26
together with interest ; directed payment of that amount ; and awarded costs against
the applicant. The applicant’s subsequent applications for leave to appeal – first to
the high court and thereafter to this Court – were dismissed.
[53] On 21 November 2023, the applicant lodged an application for
reconsideration with the President in terms of the proviso to s 17(2)(f) of the Act. On
17 January 2024 t he first respondent delivered its answering affidavit. Pending the
determination of the application for reconsideration , the first respondent obtained a
determination of the application for reconsideration , the first respondent obtained a
warrant of execution and, on 30 November 2023, instructed the sheriff to attach the
applicant’s Absa Bank account with a view to satisfy the court’s judgment in its
favour and against the applicant.
31 Nquthu Municipality fn 5 above para 33.
21
[54] On 19 January 2024, shortly after filing its answering affidavit, the first
respondent advised the applicant that it had instructed the sheriff to transfer the
attached funds from the applicant’s account into the sheriff’s trust account in order to
pay the available funds to the first respondent. This development prompted the
applicant to approach the court by way of a notice of motion on an urgen t basis
seeking an order declaring that its application for reconsideration under the proviso
to s 17(2) (f) operated to stay the operation and execution of the judgment . In the
alternative, the first respondent sought an order staying the warrants of execution
pending the outcome of the reconsideration application and any further appeal
processes. The court upheld the applicant’s contentions and granted an order that:
‘The applicant’s request made to the President of the Supreme Court of Appeal in terms of
section 17(2)(f) of Superior Courts Act 10 of 2013 on 21 November 2023 stayed the
execution of the judgment and order of Dlamini J pursuant to and in terms of section 18(1) of
the Superior Courts Act 10 of 2013.’32
Discussion
The first interpretation favoured in Nquthu Municipality
[55] The first interpretation favours the proposition that an application for
reconsideration of a decision under s 17(2) (b), as contemplated in the proviso to
s 17(2)(f) of the Act, does not fall within the ambit of s 18(1). The latter provision, the
court opined, is designed only to suspend the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal. The court
was driven to this conclusion because in its view an application in terms of the
proviso to s 17(2)(f) cannot properly be characterised as an application for leave to
appeal. Nor, as the court found, can it be regarded as forming part of the appeal
process. On this construction, the court held, the suspension of the order sought to
process. On this construction, the court held, the suspension of the order sought to
be appealed against ceased once leave to appeal was refused by the two judges of
this Court, resulting in such order being revived and thus becoming, once more,
operative.
[56] In order to address the viewpoint espoused by the first interpretation in
Nquthu Municiaplity, a two-stage enquiry must be undertaken by this Court. The first
32 Business Connexion fn 3 above para 39.
22
stage is whether the proviso to s 17(2)(f) forms part of the appeal process or not.
The answer to that question will , in turn, inform the second stage of the enquiry ,
namely whether s 18(1) finds application. In Nquthu Municipality it was held that:
‘If the legislature intended that such an order would be suspended pending the outcome of
the reconsideration application, one would have expected it to make provision for this in the
Act.’33
[57] In interpreting the wording of the proviso to s 17(2)(f), the minority in Liesching
and Others v S (Liesching II)34 emphasised the distinction between an application for
leave to appeal under s 17(2) (b) and an application under s 17(2) (f). It noted that
‘[t]he latter is not an application for leave to appeal. It is an application to the
President for the referral of a decision of the Court, refusing leave to appeal, to the
Court for reconsideration. It is another bite at the cherry for an unsuccessful litigant
to have the refusal of its application for leave to appeal reconsidered by the Supreme
Court of Appeal on referral by the President in exceptional circumstances ’.35 (Our
emphasis.)
[58] On the contrary, t he majority in Liesching II observed that the proviso to
s 17(2)(f) ‘prescribes a departure from the ordinary course of an appeal process’ .36
(Our emphasis.) It proceeded to say that the provision is not intended to afford
disappointed litigants a further opportunity to obtain relief already refused, but rather
to enable the President to intervene where injustice might otherwise result.37
[59] Accordingly, the proviso to s 17(2)(f) operates as a safeguard, ie a procedural
mechanism to prevent injustice. This interpretation was endorsed in Cloete and
Another v S; Sekgala v Nedbank Limted (Cloete) in which the following was stated:38
‘Section 17(2)(f) performs the function of a safety -net, giving the President the power to
intervene, in order to cure errors or mistakes, prevent an injustice or where a failure to
intervene, in order to cure errors or mistakes, prevent an injustice or where a failure to
intervene would result in the administration of justice being brought into disrepute. In doing
33 Nquthu Municipality fn 5 above para 32.
34 Liesching and Others v S [2018] ZACC 25; 2018 (11) BCLR 1349 (CC) ; 2019 (1) SACR 178 (CC);
2019 (4) SA 219 (CC) (Liesching II).
35 Ibid para 35.
36 Ibid para 136.
37 Ibid para 139.
38 Cloete and Another v S; Sekgala v Nedbank Limited [2019] ZACC 6; 2019 (5) BCLR 544 (CC);
2019 (4) SA 268 (CC); 2019 (2) SACR 130 (CC) (Cloete).
23
so, it creates a diversion from the usual appeal process by allowing for the reconsideration
by the Court of the refusal of leave to appeal by two Judges, at the instance of the
President.’39 (Our emphasis.)
In our view the use of the phrase ‘it creates a diversion from the usual appeal
process’ by the Constitutional Court in Liesching II is telling. This expression seems
to us to imply that the s 17(2)(f) process serves as an alternative route to the normal
appeal process once the proviso to s 17(2) (f) is invoked after the ‘usual appeal
process’ has run its course . In Godloza and Another v S , the Constitutional Court
affirmed the view point that the proviso to s 17(2)(f) is a means to prevent injustice.40
[60] While still on this topic it is necessary to underscore what the Constitutional
Court said in Liesching and Others v S and Another (Liesching I)41 where it held:
‘The proviso in section 17(2)(f) is very broad. It keeps the door of justice ajar in order to cure
errors or mistakes, and for the consideration of a circumstance, which, if it was known at the
time of the consideration of the petition might have yielded a different outcome…This would
include new or further evidence that has come to light or that became known after the
petition had been considered and determined.’42
[61] If the reconsideration application is dismissed by the President because in his
or her view no exceptional circumstances exist, the unsuccessful litigant will have
exhausted his or her appellate avenues in this Court. Cloete, also confirmed that:
‘In the ordinary course, the President ’s power under section 17(2) (f) is merely a limited
procedural power to ensure that, in truly exceptional cases, a further decision can be taken
by the Supreme Court of Appeal. I n essence, the power of the President is a power of
referral to the Court. It does not dispose of any of the issues or portion thereof.43
[62] The Constitutional Court in Liesching I44 reiterated that even after a s 17(2) (f)
[62] The Constitutional Court in Liesching I44 reiterated that even after a s 17(2) (f)
application is dismissed, an applicant may still approach that Court for leave to
appeal and, if successful, seek to adduce further evidence. 45 This view point was
39 Ibid para 43.
40 Godloza and Another v S (CCT 306/22) [2025] ZACC 24 (5 November 2025) para 128 (Godloza).
41 Liesching and Others v S and Another [2016] ZACC 41; 2017 (4) BCLR 454 (CC); 2017 (2) SACR
193 (CC) (Liesching I).
42 Ibid para 54.
43 Cloete fn 37 above para 40.
44 Liesching I fn 40 above.
45 Ibid para 61.
24
also confirmed in Godloza, where both Majiedt J and Dodson AJ in their respective
separate judgments stated that: a refusal of a reconsideration application does not
bar the applicant from thereafter applying to the Constitutional Court for leave to
appeal on the merits of the original high court judgment.46
[63] The second leg of the enquiry, and the principal issue in contention in this
case, concerns the question whether s 18(1) of the Act also encompasses an
application for reconsideration under the proviso to s 17(2) (f). To address this
question, it is necessary to pay due regard to the principles of statutory interpretation
which are well settled . In S v Toms ; S v Bruce this Court , whil e dealing with this
topic, said:
‘Where the language of a statute, so viewed, is clear and unambiguous effect must be given
thereto, unless to do so would lead to absurdity so glaring that it could never have been
contemplated by the Legislature, or where it would lead to a result contrary to the intention of
the Legislature, as shown by the context or by such other consideration as the Court is
justified in taking into account…’47
[64] In Natal Joint Municipal Pension Fund v Endumeni Municipality ,48 this Court
had the following to say regarding statutory interpretation:
‘The general rule is that the words used in a statute are to be given their or dinary
grammatical meaning unless they lead to absur dity.’49 It was further held that:
‘[C]onsideration must be given to the language used in the light of the ordinary rules of
grammar and syntax; the context in which the provision appears; the apparent purpose to
which it is directed and the material known to those responsible for its production. Where
more than one meaning is possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective. A sensible meaning is to be preferred to one
that leads to insensible or unbusinesslike results or undermines the apparent purpose of the
that leads to insensible or unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against, the temptation to substitute what they
regard as reasonable, sensible or businesslike for the words actually used. To do so in
regard to a statute or statutory instrument is to cross the divide between interpretation and
legislation…The ‘inevitable point of departure is the language of the provision itself’, read in
46 See: Godloza fn 39 above paras 164 and 237.
47 S v Toms; S v Bruce 1990 (2) SA 802 (A) at 807H-I.
48 Natal Joint Municipal Pension Fund v Endumeni Municipal [2012 ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) (Endumeni).
49 Ibid para 17.
25
context and having regard to the purpose of the provision and the background to the
preparation and production of the document.’50
[65] Similarly, in Cool Ideas 1186 CC v Hubbard and Another (Cool Ideas) 51 the
following, relating to statutory interpretation, was stated:
‘A fundamental tenet of statutory interpretation is that the words in a statute must be given
their ordinary grammatical meaning, unless to do so would result in an absurdity.’52
It is therefore against that backdrop that we now turn to interpret s 18 of the Act.
Section 18 has already been quoted in paragraph 11 above.
[66] As already mentioned, s 18(1) suspends the execution or operation of a
decision that has been taken on appeal or is the subject of an application for leave to
appeal. Accordingly, as a general rule such a decision cannot be enforced for as
long as the outcome of the appeal or application for leave to appeal remains
pending, unless a court orders otherwise.
[67] In Ntlemeza v Helen Suzman Foundation and Another ,53 this Court explained
the purpose of s 18(1) thus:
‘The primary purpose of s 18(1) is to re -iterate the common law position in relation to the
ordinary effect of appeal processes – the suspension of the order being appealed – not to
nullify it. It was designed to protect the rights of litigants who find themselves in the position
of General Ntlemeza, by ensuring, that in the ordinary course, the orders granted against
them are suspended whilst they are in the process of attempting, by way of the appeal
process, to have them overturned. The suspension contemplated in s 18(1) would thus
continue to operate in the event of a further application for leave to appeal to this court and
in the event of that being successful, in relation to the outcome of a decision by this court in
respect of the principal order.’54 (Our emphasis.)
The Business Connexion interpretation
50 Ibid para 18.
The Business Connexion interpretation
50 Ibid para 18.
51 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8)
BCLR 869 (CC).
52 Ibid para 28.
53 Ntlemeza v Helen Suzman Foundation and Another [2017] ZASCA 93; [2017] 3 All SA 589 (SCA);
2017 (5) SA 402 (SCA) (Ntlemeza).
54 Ibid para 28.
26
[68] As already mentioned, t he interpretation adopted in Business Connexion was
to the contrary, namely that s 18(1) of the Act applies to reconsideration applications
brought under the proviso to s 17(2)(f). According to this vi ew point, s 18(1) brings
the operation and execution of a court decision that is the subject -matter of an
application for reconsideration in terms of the proviso to s 17(2)(f) to a temporary
pause. In support of this interpretation, the high court in Business Connexion invoked
Liesching I and Liesching II as authorit ies for the proposition that an application
under the proviso to s 17(2)(f) forms part of the appeal process. It further relied on
Cloete, where the Constitutional Court stated:
‘this Court in Liesching I [held that] the section 17 (2)(f) procedure is part of the appeal
process.’55
[69] It is not without significance that before the introduction of s 17(2) (f) the
refusal of a petition by two or three judges of this Court under the statutory regime
repealed by the Act meant that the unsuccessful litigant had exhausted all appeal
avenues in this Court. With the introduction of s 17(2) (f) a new statutory regime was
introduced for such litigants. This was first noted by Mpati P in Avnit v First Rand
Bank Ltd56 as follows:
‘As s 17(2)(f) is a new section vesting the President of this court with a power that the
incumbent has not hitherto possessed, I think it desirable to set out the approach to be taken
to such applications.’57
The learned President went on to explain how it came about that s 17(2) (f) was
enacted and the remedy it is designed to provide.58
[70] Explaining the scope and breadth of the proviso to s 17(2) (f) in Liesching I 59
the Constitutional Court said the following:
‘The proviso in section 17(2)(f) is very broad. It keeps the door of justice ajar in order to cure
errors or mistakes and for the consideration of a circumstance, which, if it was known at the
errors or mistakes and for the consideration of a circumstance, which, if it was known at the
time of the consideration of the petition might have yielded a different outcome. It is therefore
a means of preventing an injustice. This would include new or further evidence that has
come to light or became known after the petition had been considered and determined.
55 Cloete fn 37 above para 33.
56 Avnit v First Rand Bank Ltd (20233/14) [2014] ZASCA 132 (23 September 2014).
57 Ibid para 1.
58 Ibid para 2.
59 Liesching I fn 41 above.
27
The President is given a discretion, to be exercised judiciously, to decide whether there are
exceptional circumstances that warrant referral of the matter to the Court for reconsideration
or, if necessary, variation. The President must therefore decide whether there are
exceptional circumstances. This will depend on the facts and circumstances of each case.’60
[71] Barely two years later , in Liesching II, the Constitutional Court had occasion
again to explain both the import of the proviso and what the concept of ‘exceptional
circumstances’ entailed. The Court said:
‘Without being exhaustive, exceptional circumstances, in the context of section 17(2)(f), and
apart from its dictionary meaning, should be linked to either the probability of grave individual
injustice (per Avnit) or a situation where, even if grave individual injustice might not follow,
the administration of justice might be brought into disrepute if no reconsideration occurs. A
relevant example may be the kind of situation that occurred in Van der Walt, where “contrary
orders in two cases which were materially identical” were made by the Supreme Court of
Appeal, and considered in this Court.
In summary, section 17(2)(f) is not intended to afford disappointed litigants a further attempt
to procure relief that has already been refused. It is intended to enable the President to deal
with a situation where otherwise injustice might result and does not afford litigants a parallel
appeal process in order to pursue additional bites at the proverbial appeal cherry.’61
[72] In his minority judgment in Godloza, Dodson AJ referred to what the learned
author E A Kellaway says– with reference to both local and foreign jurisprudence –
that:
‘Where a statute is remedial of a mischief or grievance it ought to be construed liberally, so
as to afford the utmost relief which the fair meaning of its language will allow’62
Bearing in mind that the proviso to s 17(2)(f) is an innovation introduced by the Act to
Bearing in mind that the proviso to s 17(2)(f) is an innovation introduced by the Act to
address the shortcomings of the repealed Supreme Court Act, there can be no doubt
that it is a remedial statutory provision as it accords an entitlement to a litigant whose
petition has yielded an unfavourable outcome to seek redress subject to certain
stringent requirements that must first be satisfied.63
60 Ibid paras 54-55.
61 Liesching II fn 33 above paras 138-139.
62 E A Kellaway . 1995. Principles of Legal Interpretation of Statutes, Contracts and Wills .
Butterworths, Durban, at 105.
63 These requirements are:
28
[73] A little over two decades earlier, White J, dealing with a comparable situation,
also endorsed this principle in Manase v Minister of Safety and Security and
Another64 and said:
‘As it was the intention of the Legislature to protect the claimant's right to have his justiciable
claim settled by a court of law, the provisions of s 57(5) should, in my opinion, be applied in
a beneficial manner in respect of the claimant. In Steyn Die Uitleg van Wette 5th ed at 116
the learned author states that when an enactment was manifestly intended to benefit a
person or class of persons, it must receive a beneficial interpretation in favour of those
persons.’65
[74] We revert to Cloete again, albeit only with a view to highlighting a different
point we seek to make. There, the Constitutional Court, in the process of considering
the question whether a decision made by the President in the context of a s 17(2) (f)
application can appropriately be described as a decision of this Court since the
President acts alone in the disposition of such applications, made the following
instructive remarks:
‘Seen in context, as previously held by this Court in Liesching I, the section 17(2) (f)
procedure is part of the appeal process. It involves making a judicial determination on a
defined legal issue between the litigating parties. The President’s decision under section
17(2)(f) of the Act thus falls comfortably within the judicial function and purpose of the
Supreme Court of Appeal leave to appeal process, in this instance, to be exercised by one
Judge of that Court, its President.’66
[75] True, s 17(2)(f) says that the decision of the judges under s 17(2)(b), following
the refusal of leave to appeal by the high court, is final . But in terms of the proviso
thereto, if, as in this instance, the President is of the view that such decision will
result in a grave failure of justice or otherwise bring the administration of justice into
result in a grave failure of justice or otherwise bring the administration of justice into
disrepute, she or he can then refer the decision to the court for reconsideration to
prevent such result from eventuating. In that event, the court to which the decision is
referred for reconsideration would then step into the shoes of the judges who made
(a) where refusal of an application for reconsideration would result in a grave failure of justice;
and
(b) where such refusal would bring the administration of justice into disrepute.
64 Manase v Minister of Safety and Security and Another 2003 (1) SA 567 (Ck) para 42.
65 Ibid para 42 (at 582C-D).
66 Cloete fn 37 above para 33.
29
the decision under reconsideration. Effectively, the court would then consider the
application for leave to appeal afresh. Understood in this way, it is in our view not
surprising that the Constitutional Court in Liesching I opined that the statutory
dispensation in terms of the proviso is part of the appeal process. In this regard , it is
as well to remember that the manifest purpose of s 18(1) of the Act, as previously
mentioned, is to prevent potential irreparable prejudice that the unsuccessful party
may suffer if it succeeds on appeal but the parties cannot, as a result, be restored to
their respective positions before the judgment was put into operation or executed
upon.
[76] Although the decision – to refuse or grant leave to appeal – made under s
17(2)(b) is in the ordinary course final, its finality is, however, subject to the proviso.
This is so, because in the event that the President refers such decision to the court
for reconsideration, and if necessary, variation it might well be varied if the court is
satisfied that to allow it to stand would either result in grave injustice or otherwise
bring the administration of justice into disrepute.67
[77] As this Court rightly noted in Motsoeneng v South African Broadcasting
Corporation SOC Ltd and Others ,68 the court to which the application for
reconsideration has been referred ‘steps into the shoes of the Judges’ whose
decision is the subject of the reconsideration application. What the court must then
determine is one of two things. First, whether the reconsideration application
amounts to no more than a rehearsal of the arguments that have already been
considered and rejected. In that event the decision will be left undisturbed, leading to
the dismissal of the reconsideration application. On the other hand , if the court is of
the view that to refuse the application for reconsideration would result in a denial of
justice or bring the administration of justice into disrepute it will vary the decision
justice or bring the administration of justice into disrepute it will vary the decision
under s 17(2) (b), grant leave and thereafter determine the appeal itself. 69 Seen in
67 There have been previous instances where the decision refusing leave to appeal was varied by the
court to one granting leave to appeal and thereafter resulting in the appeal itself, being upheld. See,
for example: Schoeman v Director of Public Prosecutions [2025] ZASCA 124; 2025 (2) SACR 561
(SCA) ( Schoeman). Ditlhakanyane v S [2025] ZASCA 90; 2025 (5) SA 273 (FB); KET Civils CC v
Member of the Executive Committee: Police, Roads & Transport, Free State and Others [2024]
ZASCA 56; Japhtha v S [2025] ZASCA 80; 2025 (2) SACR 305 (SCA).
68 Motsoeneng v South African Broadcasting Corporation SOC Ltd and Others [2024] ZASCA 80;
2025 (4) SA 122 (SCA) (Motsoeneng).
69 Compare Shoeman fn 67 above.
30
this light, the reconsideration application is, in the words of Theron J in Liesching II,
part of the appeal process. In this regard what the Constitutional Court said in Cloete
bears repeating to underscore this point. There, the Court said:
‘The President’s decision under section 17(2)(f) of the Act thus falls comfortably within the
judicial function and purpose of the Supreme Court of Appeal leave to appeal process, in this
instance, to be exercised by one Judge of that Court, its President.’70
[78] Accordingly, if a reconsider ation application is part of the appeal process
whose object is to determine whether the judgment and order sought to be appealed
against in the first place is sustainable on the peculiar facts of the case under
consideration it is encompassed by the reference in s 18(1) to an application for
leave to appeal for , after all, the reconsideration application’s primary objective is to
secure leave to appeal. Looked at from this perspective the fact that s 18(1) does not
explicitly mention an application for reconsideration is of no material consequence. It
is in principle no different from a situation where, for example, leave to appeal is
refused by the high court under s 17(2) (a); and the aggrieved party petition s the
Supreme Court of Appeal under s 17(2) (d), which application will either succeed or
fail. In the event that such application is unsuccessful, the dissatisfied party may
approach the President who, if satisfied that exceptional circumstances exist, will
refer the matter to the court for reconsideration of the decision under s 17(2)(b) and,
if necessary, variation.
[79] Therefore, the proviso to s 17(2) (f) opens another statutorily ordained avenue
to litigants who wish, on proper grounds, to pursue their quest for leave to appeal
until they have exhausted their remedies in this Court. However, for the Court to vary
the decision that refused leave to appeal, there must be a compelling reason to do
the decision that refused leave to appeal, there must be a compelling reason to do
so, like for example, if not to do so would result in a grave failure of justice or
otherwise bring the administration of justice into disrepute.
[80] In sum the position is therefore as follows : (a) an unsuccessful litigant in the
high court who desires to take an unfavourable judgment on appeal may apply for
leave to appeal in terms of s 17(2) (a) either to the full court or this Court . That
application would be heard by the judge or judges of the same division; (b) if such
70 Cloete fn 38 above para 59.
31
application is dismissed, the unsuccessful litigant may petition this Court in terms of
s 17(2)(b) and the petition would be considered by two judges designated by the
President, and in the event of a disagreement between the two judges , a third judge,
also designated by the President, would consider the petition and the decision of the
majority will then prevail as provided for in s 17(2) (f). In both instances, the litigant
who seeks leave to appeal must establish that there is either a reasonable prospect
that the envisaged appeal would succeed or alternatively that there is some other
compelling reason why the appeal should be heard; (c) if the applicant on petition
suffers a similar fa te to the one in the high court, the litigant concerned may invoke
the proviso to s 17(2)(f) and seek reconsideration of the decision under s 17(2)(b).
[81] Here, the discretion of the President to refer the decision under s 17(2)(b) to
the court for reconsideration is circumscribed. The President may do so only if she or
he is satisfied that a grave failure of justice would result or the administration of
justice might be brought into disrepute. In invoking the remedy under the proviso, the
applicant is still pursuing its desire to procure leave to appeal. In that context , it
becomes evident that the statutory regime under the proviso ‘ forms part of the
appeal process’. And having regard to the manifest purpose of s 18(1) which, as
rightly stated in Ntlemeza, is to ‘protect the rights of litigants…by ensuring that in the
ordinary course, the orders granted against them are suspended whilst they are in
the process of attempting, by way of the appeal process, to have them overturned’.
This, in our view, therefore impels the conclusion that the remedial right provided for
in the proviso is encompassed by the reference in s 18(1) to ‘an application for leave
to appeal’. As the learned author E A Kellaway pertinently noted , a right-conferring
to appeal’. As the learned author E A Kellaway pertinently noted , a right-conferring
remedy must be benevolently interpreted to the extent that its language permits in
order to give full effect to the benefit conferred by such remedy.
[82] It is true that s 18(1) does not explicitly mention the proviso to s 17(2) (f). Nor
can it be said that on its clear wording it nevertheless does so by necessary
implication. The appellant’s case, stated in a nutshell, is that the high court erred in
coming to the conclusion it did. More specifically, the contention is that the high court
should rather have found that an application for reconsideration under the proviso to
s 17(2) (f) did not have the effect of automatically suspending the operation and
execution of the judgment of Maier -Frawley J. It was further submitted that s 18(1)
32
was, on its terms, limited in its application to either an application for leave to appeal
or an appeal only that is pending and not yet finally determined. Therefore, so went
the argument, the high court should have declined to follow the decision in Business
Connexion on the ground that it was clearly wrong. Instead, the high court should
have followed the decision in Nquthu Municipality that represents the correct state of
the law on the subject.
[83] Counsel for the appellant further submitted that ‘the essence of the power of
the President is a power of referral’ to the court. Proceeding from this premise,
counsel contended that the finality of the d ecision under s 17(2) (b) is therefore not
disturbed once an application is brought to the President’, but can only be disturbed
‘if and when the Judges on reconsideration rescind and vary their order dismissing
the leave application’. Counsel sought to draw a distinction between an application
for leave to appeal under s 17(2) (b) on the one hand and an application for
reconsideration in terms of the proviso to s 17(2) (f) on the other. In elaboration,
counsel argued that the latter application is ‘not an application for leave to appeal’.
Rather, so the argument went, it ‘is an application to the President for the referral of
a decision of the Judges refusing leave to appeal’ to the court for reconsideration.
Therefore, continued the argument, it is only when the court that is empowered, in
circumscribed circumstances, to vary the decision refusing leave to appeal under s
17(2)(b) and granting leave to appeal would the operation or enforcement of the
judgment sought to be appealed be suspended. For this proposition, counsel called
into aid Liesching II.71
[84] In our view the central premise upon which the various contentions advanced
on behalf of the appellant was predicated is unsound for several reasons. First, it
entirely overlooks the fact that even in relation to an application for leave to appeal
entirely overlooks the fact that even in relation to an application for leave to appeal
the operation and execution of a decision is suspended merely upon the lodgement
of an application for leave to appeal or a notice of appeal and not when leave has
been granted or the appeal itself determined. This is what s 18(5) of the Act itself
decrees. There seems to us to be no legally tenable reason or principle why this
should not apply to an application for reconsideration of the decision under s
71 Liesching II fn 33 above para 46.
33
17(2)(b). Second, and more importantly, to contend that the finality of a decision
taken under s 17(2) (b) is not disturbed unless and if such decision is varied by the
court is, on the principles of statutory interpretation, not sustainable. This is so
because the finality of such decision is subject to the proviso that empowers the
President ‘in exceptional circumstances’ either on application or of her own accord to
refer the decision to the court for reconsideration. When this happens, and upon
reconsideration, the court seized with the reconsideration application is in turn
empowered to vary the decision by, for example, granting leave to appeal in
instances where leave to appeal had previously been refused under s 17(2)(b). Once
it is accepted that the statutory dispensation catered for in terms of the proviso to s
17(2)(f) is, as the Constitutional Court acknowledged, 72 part of the appeal process
the notion that s 18(1) does not encompass applications for reconsideration will be
dispelled.
[85] It is trite that when a court engages in an interpretative process it must do so
‘having regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole…’ and the purpose to which the
provision or provisions are directed, paying due regard to the language of the
provision under consideration. In the context of an application for leave to appeal
which is dealt with in s 17 of the Act, it is significant that even though in terms of s
17(2)(f) the decision made under s 17(2) (b) is ordinarily final, its finality is subject to
the strictures of the proviso thereto if and when either unsuccessful litigants
themselves or the President herself, o f her own accord, invokes the proviso and
refers the s 17(2) (b) decision to the court for reconsideration notwithstanding its
finality in the ordinary course.
[86] Thus, it should be accepted that an application for reconsideration of a
[86] Thus, it should be accepted that an application for reconsideration of a
decision under s 17(2) (b) brought in terms of the proviso to s 17(2) (f) is part of the
appeal process in the sense that it is after all and ultimately equally aimed at
obtaining leave to appeal against an unfavourable judgment or order similarly to
applications for leave to appeal brought under either paragraph (a) or (b) of s 17(2).
Therefore, the conspicuous absence of a reference to an application for
72 See Liesching I and Liesching II and later Cloete in which this position was reaffirmed.
34
reconsideration in s 18(1) does not necessarily assume significance. The remedy
afforded to an unsuccessful litigant under s 17(2) (b) who seeks relief from the Court
as a matter of last resort is still one aimed at securing a variation of the decision of
the two (or three) judges who refused leave to appeal under s 17(2) (b). Therefore, in
principle this is no different from a situation where a litigant who is dissatisfied with
an adverse decision made under s 17(2) (a) would, as a result of such adverse
decision, approach this Court on petition in terms of s 17(2)(b).
[87] As already mentioned, in Nquthu Municipality, Moodley AJ came to a different
conclusion to that reached in Business Connexion in which Aucamp AJ had decided
to the contrary. The ratio decidendi in Nquthu Municipality was expressed in the
following terms:
‘It follows from what has been stated above in Liesching, the proviso in s 17 (2) (f) is a
deviation from the ordinary appeal process. Ordinarily under section 18 (1) subject to sub -
sections (2) and (3), and unless the court, under exceptional circumstances, orders
otherwise, the operation and execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision of the application or
appeal. Sub-section (2) does not suspend the operation and execution of a decision that is
an interlocutory order not having the effect of a final judgment which is the subject matter of
an application for leave to appeal or of an appeal unless the court, under exceptional
circumstances, orders otherwise. Importantly, section 18 does not deal with what effect an
application against the refusal of a petition to the Supreme Court of Appeal will have on an
order granted by a lower court which order was the subject matter of the petition. If the
Legislature intended that such an order would be suspended pending the outcome of the
Legislature intended that such an order would be suspended pending the outcome of the
reconsideration application, one would have expected it to make provision for this in the Act.
It did not do so. In my view and based on the observations referred to above in Liesching the
refusal of the petition was a final determination of the application for leave to appeal against
the order granted by Gorven J which refusal revived the operation and execution of his
order. I am fortified in this view when one considers the wording of section 17 (2) (f)
contextually within the framework of the Act and the ordinary grammatical meaning of the
word final. The Merriam Webster dictionary defines the word “final” as: “not to be altered or
undone”; “of or relating to a concluding court action or proceeding”; “coming at the end:
being the last in a series, process, or progress”.
35
Accordingly, I am of the view that the refusal of the petition to the Supreme Court of Appeal
brought the appeal process to an end and the application for reconsideration of such refusal
does not suspend the order granted by Gorven J.’73
[88] The learned judge proceeded to refer to s 18(1) of the Act which he believed
reinforced his underlying reasoning and stated the following:
‘Another point which I believe is supportive of the view which I take in this matter is that
under section 18 (1) the operation and execution of an order would be suspended only if the
court orders otherwise. In other words, the order would not be suspended merely on the
bringing of an application to suspend such order. In order to attain the suspension of the
order there has to be an order from the court. Similarly with respect to the proviso in s 17 (2)
(f), an application for a reconsideration of the refusal of a petition against the order granted
would of itself not suspend the operation of the order. The President would have to rule on
the matter and until such ruling is made and even if the proviso to s 17 (2) (f) (a)
contemplated a suspension of the order (which for reasons mentioned above, I do not think it
does), the order would not be suspended until a favourable decision to the applicant is
pronounced on the reconsideration of the petition.’74 (Our emphasis.)
[89] At first blush there appears to be force in this reasoning. However, upon close
scrutiny it seems to us that there are fundamental considerations which tend to
detract from the apparent force of the learned judge’s reasoning. As will have been
seen from the passage quoted from the Nquthu Municipality judgment in paragraph
87 above in which the learned judge held that ‘under section 18(1) the operation and
execution of an order would be suspended only if the court orders otherwise ’. (Our
emphasis) However, this statement by the learned judge is, with respect, not borne
emphasis) However, this statement by the learned judge is, with respect, not borne
out by the language of s 18(1) which explicitly says the opposite. In our view, there
are only two situations in which the court may in terms of s 18(1) ‘under exceptional
circumstances’ order otherwise. First, the court would do so ‘if the party who applied
to the court to order otherwise, in addition proves on a balance of probabilities that
he or she will suffer irreparable harm if the court does not so order, whereas the
other party ‘will not suffer irreparable harm if the court so orders’. 75 In the second
place, as provided for in s 18(2) of the Act, interlocutory orders not having the effect
73 Nquthu Municipality fn 5 above para 32.
74 Ibid para 33.
75 See s 18(3) of the Act.
36
of a final judgment, ‘which [are] the subject of an application for leave to appeal’ are
not automatically suspended pending the decision of such an application or appeal.
As decreed by s 18(2) itself, the operation and execution of interlocutory orders o f
the kind identified is not automatically suspended following either the lodgement of
an application for leave to appeal or of an appeal save where the Court orders
otherwise.
[90] Further, it was stated that ‘the order would not be suspended merely on the
bringing of an application to suspend such order. In order to attain the suspension of
the order there has to be an order from the court’. Based on his understanding of
how s 18(1) must be construed, the learned judge proceeded to state that on the
same basis the proviso to s 17(2) (f) must then mean that ‘an application for a
reconsideration of the refusal of a petition against the order granted would of itself
not suspend the operation of the order ’, this being a reference to the decision made
under s 17(2) (b). (Our emphasis.) The inevitable consequence of this, so said the
learned judge, was that the s 17(2) (b) unfavourable decision, in this instance, would
not be suspended ‘until a favourable decision to the applicant is pronounced on the
reconsideration of the petition’.
[91] What s 18(1) does, on the contrary, is to expressly provide that ‘the operation
and execution of a decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the decision of the application or appeal
unless the court under exceptional circumstances orders otherwise subject to
subsections (2) and (3) of s 18. Read contextually and purposively, as s 18(1) must
be, and paying due regard to its wording, the court would only order otherwise if, for
example, the successful litigant in the high court has sought to enforce the judgment
of the court notwithstanding the lodgement of an application for leave to appeal or of
of the court notwithstanding the lodgement of an application for leave to appeal or of
an appeal. Thus, the default position is that by simple operation of the law ‘the
operation and execution’ of a decision of the high court is, in the ordinary course,
temporarily halted for as long as there is a process underway to have such decision
overturned.
[92] However, in the event that the successful party in the high court seeks to
enforce the judgment notwithstanding the appeal process, the court may, in terms of
37
s 18(3) , deviate from the default position and order otherwise albeit only under
exceptional circumstances. It is only in relation to interlocutory orders that do ‘not
have the effect of a final judgment’ whose operation and execution is not suspended
pending the decision of an application for leave to appeal or of an appeal unless,
again, the high court in exceptional circumstances orders otherwise which finds no
application in this case.
[93] What falls to be decided by this Court in this appeal is, as alluded to above,
whether an application for reconsideration brought in terms of the proviso to s
17(2)(f) falls within the purview of s 18 (1) in the light of the discordant decisions of
the Gauteng Division of the High Court on the one hand and that of the Kwa -Zulu
Natal Division on the other . As rightly noted by this Court in Ntlemeza, s 18(1)
suspends, but does not nullify, the operation and execution of a judgment or order
being appealed. This is the default position. The rationale for this statutory provision
is ‘to protect the rights of litigants…by ensuring that, in the ordinary course, the
orders granted against them are suspended whilst they are in the process of
attempting, by way of the appeal process, to have them overturned’.
[94] The proviso to s 17(2) (f) of the Act creates a special statutory dispensation in
terms whereof, for example, unsuccessful litigants whose applications for leave to
appeal on petition to this Court under s 17(2) (b) have been dismissed to approach
the President to ‘throw them a lifeline’ in their quest to secure leave to appeal. This,
the President may do only if he or she is satisfied that exceptional circumstances
exist, in which event the President would refer the decision of the two (or three)
Judges of this Court under s 17(2) (b) – which is ordinarily final – to the Court for
reconsideration and, if necessary, variation. But, if on the other hand the President
reconsideration and, if necessary, variation. But, if on the other hand the President
finds that no exceptional circumstances exist such an outcome would signify the ‘end
of the road’ for an unsuccessful litigant on available appeal avenues in this Court .
Put differently, unsuccessful litigants will accordingly have exhausted their appeal
avenues to have the judgment and order sought to be appealed against overturned.
[95] However, as already mentioned, once the President is satisfied that a proper
case has been made out under the proviso in s 17(2)(f) she would refer the decision
refusing (or granting) leave to appeal to the court for reconsideration. Such a
38
favourable decision would then reopen the court ’s door to a dissatisfied litigant to
pursue his or her or its desire to have another proverbial third bite at the cherry. On
this score what Liesching I76 tells us bears repeating. There, the Constitutional Court
made the following instructive remarks:
‘The proviso in section 17(2) (f) is broad. It keeps the door of justice ajar in order to cure
errors or mistakes and for the consideration of a circumstance, which, if it were known at the
time of the consideration of the petition, might have yielded a different outcome. It is
therefore a means of preventing an injustice. This would include new or further evidence that
has come to light or became known after the petition had been considered and determined.77
[96] Once the application for reconsideration reaches the court to which the
decision has been referred, the members of the bench concerned will ‘step into the
shoes of the two (or three) Judges’ who made the decision subject to reconsideration
by the Court. It would then be open to the Court, if it is satisfied on reconsideration of
the decision, that there would be a reasonable prospect of success in the envisaged
appeal or there is some other compelling reason why an appeal should be heard, to
vary the order refusing leave, by granting leave. Thereafter, the court would enter
into the substantive merits of the appeal and determine the appeal itself. If the
appeal succeeds, as has happened in several cases in the past, the judgment
appealed against would be overturned.
[97] We have, in para graph 67 above, already dealt with what the manifest
purpose that s 18(1) is designed to serve. This then begs the following question. If
the remedial statutory dispensation created in terms of the proviso in s 17(2)(f) does
not provide for an additional avenue in the appeal process, would such a
construction of the proviso not result in the very prejudice that s 18(1) is designed to
construction of the proviso not result in the very prejudice that s 18(1) is designed to
prevent, ie operation and execution of the judgment and order that is subsequently
reversed on appeal. And this situation would be exacerbated in circumstances where
the successful party on appeal can no longer be put back to its position prior to
execution purely because the initial successful litigant was allowed to execute the
judgment or order in circumstances where its reversal remained a possibility –
76 Liesching I fn 40 above.
77 Ibid para 54.
39
because there was a pending application for reconsideration under the proviso in s
17(2)(f) – should this ultimately be the outcome of the reconsideration application.
[98] In the light of the foregoing reasons we are driven to conclude that although
an application for reconsideration in terms of the proviso to s 17(2) (f) is not explicitly
mentioned in s 18(1) of the Act, such application is nevertheless, on a contextual and
purposive interpretation of s 18(1) read with the proviso to s 17(2) (f) – and for
reasons articulated above – also encompassed by s 18(1) because , after all, it is an
integral part of the appeal process. Accordingly, we are impelled to conclude that the
view expressed in Business Connexion and followed by Bester AJ in the high court
in this case should prevail, and not the contrary one expressed by Moodley AJ in
Nquthu Municipality. Thus, to the extent that the latter decision held that s 18(1) finds
no application to an application for the reconsideration of the decision made under s
17(2)(b) in terms of the proviso in s 17(2) (f), it is wrong and, in the result, it is
overruled.
Conclusion
[99] It is to be noted that a decision of two judges (or three) made under paragraph
(b) is susceptible to reconsideration in terms of the proviso in s 17(2)(f). In contrast,
in circumstances where two judges designated by the President to consider a
petition under s 17(2) (b) are of the opinion that circumstances so require, they may
refer the petition to the court for consideration in terms of s 17(2) (d). In that event,
the court ‘may thereupon grant or refuse’ such application. It is significant to note
that a petition referred to the court for consideration under s 17(2) (d) is, once
adjudicated by the court, not subject to reconsideration in terms of the proviso. The
obvious consequence of this distinction is that an outcome of an application for leave
to appeal considered and refused by the court under s 17(2) (d) will spell the end of
to appeal considered and refused by the court under s 17(2) (d) will spell the end of
the road for an unsuccessful litigant in this Court. The proviso in s 17(2)(f) would find
no application. But not so, if the application is, for example, instead refused by two
judges (or three judges, as the case may be) to whom such application was
assigned by the President. In the latter situation, the unsuccessful litigant is thrown a
useful lifeline in terms of the proviso in s 17(2) (f) to pursue its quest for leave to
appeal.
40
[100] Significantly, at a practical level an application brought in terms of the proviso
is to all intents and purposes still an application for leave to appeal, albeit that it
would be incumbent on an applicant for reconsideration to satisfy the stringent
requirements stipulated by the proviso. As was noted in Liesching I78 one of the ways
of meeting the threshold would be to establish, for example, that there is ‘a
circumstance, which if it were known at the time of the consideration of the petition,
might have yielded a different result’. This would include ‘new or further evidence
that has come to light or become known after the petition had been considered and
determined’. And, as Cloete decrees, when the President exercises the power under
the proviso to s 17(2) (f) and refers a decision taken under s 17(2) (b) to the court for
reconsideration, she does so in order for ‘a further decision [to] be taken by [the
Court] upon reconsideration. That further decision might also result in the decision
under s 17(2)(b) being varied’. This means that if such a decision was , for example,
a refusal of the petition as in this instance, a variation thereof would result in leave to
appeal being granted.
[101] Accordingly, the proviso in s 17(2) (f) is a statutorily ordained mechanism in
terms of which the decision made under s 17(2)(b) may be reconsidered either at the
instance of a litigant dissatisfied with such decision or the President of his or her own
accord. However, it bears emphasising that this remedial device avails only in
circumstances where a grave failure of justice would otherwise result or the
administration of justice would be brought into disrepute if the s 17(2) (b) decision is
not reconsidered. Seen in this light, it follows from the general tenor of s 17 itself that
if leave to appeal is refused under s 17(2) (a) the unsuccessful litigant may pursue its
quest for leave to appeal under s 17(2) (b) by petitioning this Court. If that process
quest for leave to appeal under s 17(2) (b) by petitioning this Court. If that process
does not yield a favourable outcome, the litigant may, as a last resort, invoke the
proviso in s 17(2) (f) provided, of course, that such litigant meets the stringent
requirements stipulated in the proviso itself and therefore secure a reconsideration of
the s 17(2)(b) decision. And, if the court finds that this is warranted, it would vary the
decision made in terms of s 17(2)(b).
78 Liesching I fn 41 above para 54.
41
[102] We are fortified in this view by the very fact that the proviso itself explicitly
empowers the President to ‘refer the decision to the court for reconsideration and, if
necessary, variation’. And in the context of s 17(2) (f) the decision concerned is the
one referred to in paragraph (b) which pertains to an application for leave to appeal
previously refused by the high court under s 17(2) (a) of the Act. This therefore
means that s 17(2) of the Act contemplates three successive steps that a litigant
seeking to have an unfavourable decision overturned, by way of the appeal process,
may alternatively first invoke paragraph (a) or, if this does not yield the desired
result, paragraph (b) and, failing this, the proviso in s 17(2) (f), all of which may
successively be pursued in order to secure a favourable outcome in the appeal
process.
[103] That the legislature did not mention the proviso located in s 17(2)(f) in s 18(2)
is not something we consider curious. This is because although s 18(1) does not
explicitly refer to an application for reconsideration, it would have put matters beyond
doubt, had it done so. However, that no such reference has been made in s 18(1)
does not detract from our reasoning that having regard to the overall framework of
the Act and the overarching scheme of s 17 in particular, read holistically,
contextually and purposefully, an application for reconsideration, which is after all still
in pursuit of a litigant’s quest to have the s 17(2) (b) decision reconsidered and, if
necessary, varied, too, falls within the purview of s 18(1) of the Act.
[104] In our view, the conclusion to which we have come has by no means been
winkled from contextual crevices in the text of s 17 of the Act . Nor have we, in
frontally confronting the conundrum created by s 18(1), prematurely seized an
‘exhilarating opportunity of anticipating a [principle] which may [still] be in the womb
of time, but whose birth is distant’.79
Costs
of time, but whose birth is distant’.79
Costs
[105] Before making the order, it remains to say something about the question of
costs. As indicated above, the first respondent did not participate in the appeal
presumably because it had already vacated the leased premises when its sub -lease
79 See, in this regard, the remarks of Learned Hand J in Spector Motor Service, Inc. v. Walsh , 139
F.2d 809 (2d Cir. 1944) at 823.
42
was terminated. Moreover, the appellant itself did not seek costs against the first
respondent in the event of the appeal succeeding. However, the conclusion to which
we have arrived is that the appeal falls to be dismissed, which is not what the
appellant had hoped for. Since the first respondent elected to remain supine and did
not participate in the appeal it can safely be assumed that it has not incurred any
costs relative to the appeal. Thus, no costs order shall be made.
Order
[106] In the result the following order is made:
The appeal is dismissed with no order as to costs.
X M PETSE
ACTING JUDGE OF APPEAL
_____________________
D V DLODLO
ACTING JUDGE OF APPEAL
43
Appearances:
For the Appellant: J J Nepgen SC with J Beckett and M Erasmus
Instructed by: Padgens Inc., Gqeberha
Honey Attorneys, Bloemfontein
For the respondent: None
Instructed by: None
.