Dormehl v Minister of Justice and Others (CCT10/00) [2000] ZACC 4; 2000 (2) SA 825 ; 2000 (5) BCLR 471 (CC) (14 April 2000)

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[2000] ZACC 4
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Dormehl v Minister of Justice and Others (CCT10/00) [2000] ZACC 4; 2000 (5) BCLR 471 (CC); 2000 (2) SA 987 (CC) (14 April 2000)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
                                                                                                                    Â
Case
CCT 10/2000
JOHAN GEORG DORMEHL                                                                                  Â
Applicant
                                                                                                                                                     Â
versus
THE MINISTER OF JUSTICE                                                                     Â
First
Respondent
THE REGISTRAR OF COMPANIES                                                     Â
Second
Respondent
CHAIRMAN OF THE JUSTICE SUB COMMITTEE                                 Third
Respondent
MR JUSTICE J P ROUX                                                                          Â
Fourth
Respondent
THE JUSTICE AND PEACE CATHOLIC CHURCH, PRETORIA            Fifth
Respondent
Decided on     :           14
April 2000
JUDGMENT
CHASKALSON P :
[1]
The applicant has applied in terms of Rule 17 for direct access to this
Court.
[1]
  The
proceedings, initiated by the applicant in person, are not in conformity with
the requirements of the rules of this Court.
[2]
Â
The application was launched by a document entitled “Application for Direct
Access” supported by an affidavit deposed to
by the applicant.  The
“Application for Direct Access” is not in the form of a notice of motion as the
rules require.  It
consists of a mixture of arguments, averments of fact, and
statements of the relief sought which are not always clear or coherent.Â
The
applicant does not appear to have had the benefit of legal advice and in the
particular circumstances of this case I consider
it appropriate to ignore the
formal defects in the “notice” launching the application and deal with it on
its merits.
[1]
It is possible to discern from the “application” the relief that the
applicant wishes to claim.  It is as follows: First, that
this Court order that
the following rules and “practices” are inconsistent with the Constitution and
are accordingly invalid:
a)         Rule 17 of the rules of the Constitutional
Court requiring the applicant to obtain the leave of this Court in
order to
approach it directly.
b)
That corporations have to be represented in legal proceedings in
superior courts by a legal practitioner who has a right of audience
before such
court, and cannot be represented by a lay person. Â
c)
Any provision requiring a litigant to furnish security for costs.
d)
Any provision requiring an unsuccessful litigant to obtain leave to
appeal in order to prosecute an appeal to a higher court.  In
particular, the
applicant has challenged the constitutionality of such a requirement in rule 18
of the rules of this Court.
[3]
Secondly, the
applicant seeks a mandamus against the fourth respondent, a judge of the High
Court, requiring him to “submit a
proper written judgment of his findings on
the 2
nd
of April 1998” in a matter in which an oral judgment was
given by the judge on that date.
[2]
The applicant has cited as respondents the Minister of Justice, the
Registrar of Companies, the Chairman of the Justice Sub-Committee
(it appears
from the papers that the person intended to be cited is the Chairman of the
National Assembly’s Portfolio Committee
on Justice and Constitutional Affairs),
the Judge referred to in paragraph 3 above, and “the Justice and Peace Catholic
Church
Pretoria”.  The applicant does not indicate what direct interest each of
the respondents has in the various orders sought by
him.  Nor does he indicate
what direct interest he has in the relief that he claims.  In the view that I
take of this matter,
however, nothing turns on these procedural defects.  The
applicant has not made out a case for direct access, and the matter can
be dealt
with in terms of rule 17(5) which entitles this Court to deal with the
application
“. . . summarily, without
hearing oral or written argument other than that contained in the application
itself. . .”
The constitutionality of rule 17
[3]
It is convenient to deal first with the contention that Rule 17 is
unconstitutional.  It is contended that the requirement of the
rule that direct
access is permissible only with leave of the Court infringes the right of
“everyone” under section 34 of the
Constitution to have
“. . . any dispute that
can be resolved by the application of law decided in a fair public hearing
before a court . . .”
There is no merit in this
contention.  The procedure requiring such leave is specifically sanctioned by
the Constitution
[4]
.  In any
event section 34 does not confer on litigants a right to approach any court in
the court hierarchy for relief.  As long
as there is a right to approach a
court of competent jurisdiction for the relief claimed, the requirements of the
section are met.Â
The high courts have jurisdiction in constitutional matters
[5]
and litigants are entitled to bring claims concerning such matters before those
courts.  Rule 17 regulates the circumstances in
which litigants may bypass the
high courts, which are ordinarily the courts of first instance in such matters
and approach the
Constitutional Court directly for relief.
[4]
There are good reasons for rule 17.  They have been explained in
previous judgments of this Court dealing with applications for
direct access.
[6]
Â
Briefly, they are as follows:      Â
a)
The Constitutional Court is the highest court in all constitutional
matters.  It acts as a court of appeal and in limited circumstances
as a court
of first instance.
b)
It is not ordinarily in the interests of justice for a court to sit as a
court of first and last instance, without there being any
possibility of an
appeal against its decisions.  Nor is it in the interests of justice for eleven
judges of the highest court
in constitutional matters to hear matters at first
instance which can conveniently be dealt with by a single judge of a high
court.
c)
The Constitution recognises this and for that reason provides that
direct access to the Constitutional Court is permissible only
with leave of the
Court and if the interests of justice so require.
d)
One of the factors to be taken into account in dealing with such matters
is the prospects of success.  But this is not the only
consideration.  Since a
high court has jurisdiction in constitutional matters and is the court which
ought ordinarily to be approached
to deal with constitutional matters at first
instance, compelling reasons are required to justify a different procedure. Â
An
applicant for direct access must establish that there are such reasons, and
that the circumstances of the case justify a departure
from the ordinary rule,
and the granting of direct access.
Can a
corporation appear before a court “in person”?
[5]
The applicant objects to the provisions of rule 7(1).  This rule
provides:
“Except where the Court
or the President directs otherwise, no person shall be entitled to appear on
behalf of any party at any
proceedings of the Court unless he or she is
entitled to appear in the high courts.”
The effect of this rule is that
persons having a right of audience in high courts will also have a right of
audience in the Constitutional
Court.
[6]
The applicant’s objection to rule 7(1) apparently arises out of a
judgment given in 1964 in the matter of
Dormehl’s Garage (Pty) Ltd v
Magagula
[7]
in
which it was held that a company may not be represented in a high court unless
represented by an advocate.  The applicant asks
that this decision “be declared
unconstitutional”.  The decision was given long before the Constitution came
into force.Â
No question can arise now as to its validity then.  If a
corporation in which the applicant has an interest is presently engaged
in litigation,
and if the corporation wishes to challenge the correctness of the decision in
the
Dormehl’s Garage
case that issue can be raised in such proceedings.Â
The opposing litigant will then have an opportunity of dealing with that

contention.  Such an issue cannot ordinarily be brought before this Court as an
abstract question of law divorced from any concrete
dispute.
[8]
Security for
costs
[7]
The applicant makes a general averment that any provision requiring a
litigant to furnish security for costs is unconstitutional.Â
There are
provisions in various statutes and rules of court dealing with the furnishing
of security for costs, some of which have
been the subject of constitutional
challenges.
[9]
  The
applicant does not say which particular provision he challenges, but as he has
cited the Registrar of Companies as the second
respondent in these proceedings,
he presumably intends the challenge to include at least the requirements of
section 13 of the
Companies Act 61 of 1973.  The constitutionality of this
provision was dealt with by a high court in
Lappeman Diamond Cutting Works
(Pty) Ltd v MIB Group (Pty) Ltd (No 1)
[10]
where the court held that the section is not inconsistent with the
Constitution.  If the applicant is associated with a company
which is engaged
in litigation and is affected by the requirements of section 13, or any other
provision requiring security for
costs to be furnished, the question of the
constitutionality of such provisions must be raised in that litigation so that
the opposing
litigants have an opportunity of dealing with it.  What is said in
paragraph 7 applies to this claim as well.Â
Leave to
appeal
[8]
The same considerations apply to this issue.  The matter is yet again
raised as an abstract question of law unrelated to a concrete
dispute.Â
Moreover, this Court has already held that a requirement that leave be obtained
to appeal against decisions of the high
courts in both criminal and civil cases
is not unconstitutional.
[11]
  As far as
rule 18 is concerned, the provision that leave of this Court is ordinarily
required for appeals to it from other courts,
is specifically sanctioned by the
Constitution.
[12]
  There is
accordingly no merit in this contention. Â
The mandamus
[9]
It appears from the application that an oral judgment was given by the
fourth respondent in a high court some two years ago in a
matter in which the
applicant has an interest.  The applicant seeks a written transcript of that
judgment.  The oral judgment
was recently transcribed but not revised or signed
by the judge.  The correspondence attached to the application indicates that

the judge has said that he is not willing at this late stage to revise and sign
the judgment which will require him to refresh
his memory on the matter unless
“there are compelling reasons” for him to do so.  The applicant does not say
why at this stage
he requires the transcription of the oral judgment to be
revised and signed by the judge.  The applicant is not entitled to institute

legal proceedings against a judge of a high court without the consent of that
court.
[13]
  He has not
alleged that he has procured such leave.  If the applicant has good reasons for
having the judgment reduced to writing
at this stage, he should bring those
reasons to the attention of the judge concerned, who can then consider whether
they are sufficient
to warrant his going into the matter after the lapse of so
long a period of time. Â
The Order
[10]
It follows that none of the issues raised by the applicant meets the
requirements for direct access which have been laid down by
this Court.  In the
circumstances the following order is made: The application for direct access is
refused.
____________________
CHASKALSON P
Langa DP,
Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J,
Yacoob J and Cameron AJ concur in the judgment
of Chaskalson P.
[1]
         Â
Rule 17(1) provides:
“An application for direct access as contemplated in
section 167(6)(a) of the Constitution shall be brought on notice of motion

which shall be supported by an affidavit which shall set forth the facts upon
which the application relies for relief.”
[2]
         Â
Rule 10(2) requires applications to be brought on
notice of motion which “... shall be as near as may be in accordance with Form

1 or 2, as the case may be.”  Forms 1 and 2 appear in Schedule 1 of the Rules.
[3]
         Â
Rule 18 concerns appeals to this Court from courts
other than the Supreme Court of Appeal.  Rule 18(7) requires a party wishing
to
appeal to this Court from such a court to lodge an application for leave to
appeal with the registrar.
[4]
         Â
Section 167(6) of the Constitution provides:
“National legislation or the rules of the
Constitutional Court must allow a person, when it is in the interests of
justice and
with the leave of the Constitutional Court –
(a) to bring a matter directly to the
Constitutional Court; or
(b) to appeal directly to the Constitutional Court
from any other court.”
[5]
         Â
This jurisdiction, however, is subject to the
provisions of section 167(4) which are not relevant to the present matter.
[6]
         Â
See
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at paras
4 - 9 and
Christian Education South Africa v Minister of Education
1999
(2) SA 83
(CC);
1998 (12) BCLR 1449
(CC) at para 8.
[7]
         Â
1964 (1) SA 203
(T).  See also
Yates Investments
(Pty) Ltd v CIR
1956 (1) SA 612
(A).
[8]
         Â
See, for example,
President, Ordinary Court
Martial, and Others v Freedom of Expression Institute and Others
[1999] ZACC 10
;
1999 (4)
SA 682
(CC);
1999 (11) BCLR 1219
(CC);
S v Dlamini
,
S v Dladla and
Others
,
S v Schietekat
1999 (4) SA 623 (CC); 1999 (7) BCLR 771 (CC).
[9]
         Â
See, for example,
Shepherd v O’Niell
1999 (11)
BCLR 1304
(N) which resulted in the amendment of the relevant rule. See
Government
Notice
R1299 of 29 October 1999.
[10]
       Â
1997 (4) SA 908 (W).
[11]
       Â
See for example,
S v Rens
[1995] ZACC 15
;
1996 (1) SA 1218
(CC);
1996 (2) BCLR 155
(CC)
Besserglik v Minister of Trade, Industry and
Tourism and Others (Minister of Justice Intervening)
[1996] ZACC 8
;
1996 (4) SA 331
(CC);
1996 (6) BCLR 745
(CC) and
S v Twala (Human Rights Commission Intervening)
2000 (1) BCLR 106 (CC).
[12]
       Â
See above note 4.
[13]
       Â
Section 25 (1) of the Supreme Court Act, 59 of 1959.