Summary of Judgment

1. Introduction

These proceedings concerned an application for leave to appeal to the Constitutional Court and the furnishing of reasons for an earlier order granting leave. The judgment addressed, in particular, a preliminary procedural question about the correct Constitutional Court rule governing the route by which leave to appeal should be sought where the Supreme Court of Appeal has refused leave to appeal.

The appellants were Gabriel Ntleli Swartbooi and seventeen others, all of whom were members of the council of the Nala Local Municipality. The respondents were Lilian Ray Brink (first respondent) and Gerrit Niewoudt (second respondent).

The procedural history, as set out in this judgment, was that the Free State High Court had made an order setting aside two decisions of the municipal council and additionally ordered that the appellants, although not initially parties to the litigation, should pay the costs of those proceedings personally. The appellants sought leave to appeal; an application for leave to appeal to the Supreme Court of Appeal was refused, after which the appellants approached the Constitutional Court. The Constitutional Court granted leave to appeal on 21 November 2002, and these reasons were delivered later on 3 April 2003 (with the Court indicating that the appeal judgment and the reasons were delivered simultaneously, and that the appeal judgment contained the relevant facts).

The general subject-matter of the dispute, for purposes of these reasons, was the personal costs liability of elected municipal councillors arising from their conduct and voting in council proceedings, and the associated constitutional implications (including privileges and immunities for council members, freedom of speech in deliberative bodies, and separation of powers concerns).

2. Material Facts

The appellants were members of the council of the Nala Local Municipality. Two council decisions were taken at a full council meeting; those decisions were subsequently set aside in proceedings brought in the Free State High Court.

In addition to setting aside the decisions, the High Court made an order requiring the appellants to pay, out of their own pockets, the costs of the proceedings in which the council’s two decisions were reviewed and set aside. The High Court did so on the basis that the appellants had supported and voted for both impugned decisions and that their conduct during the deliberations culminating in the decisions justified a personal costs order.

After the High Court’s decision, the appellants sought leave to appeal. An application for leave to appeal was refused by the Supreme Court of Appeal. The appellants then applied to the Constitutional Court for leave to appeal, proceeding on the understanding that they were appealing against the Supreme Court of Appeal’s refusal, and thus invoked rule 20 of the Constitutional Court Rules.

A dispute arose (as a procedural question before the Constitutional Court) as to whether the appellants had used the correct rule, namely whether the application should have been brought under rule 18 (direct appeals from courts other than the Supreme Court of Appeal) or under rule 20 (appeals against decisions of the Supreme Court of Appeal). The appellants’ counsel submitted that if the incorrect procedure had been followed, the Court should condone the non-compliance.

Beyond these procedural facts, the judgment recorded that the High Court’s costs order was connected to its assessment that the decisions set aside could not reasonably have been made and were said to have undertones of racism and mala fides, but the Constitutional Court indicated that the full facts were set out in the simultaneously delivered main judgment on the appeal.

3. Legal Issues

The Court was required to determine the correct procedural route for seeking leave to appeal to the Constitutional Court in circumstances where the Supreme Court of Appeal has refused leave to appeal. This was primarily a question of law, involving the interpretation and application of the Constitutional Court’s own rules, especially the relationship between rule 18 and rule 20.

A further legal issue was whether non-compliance with the correct procedural rule should be condoned, which required an interests of justice evaluation. This involved the application of established standards (condonation and leave to appeal criteria) to the procedural facts.

The Court also had to determine whether the proposed appeal raised a constitutional matter and whether it was in the interests of justice to grant leave to appeal. This entailed a mixed inquiry: identifying the constitutional character of the dispute (a legal characterisation) and making an evaluative judgment about importance, novelty, and broader constitutional implications for democratic governance.

4. Court’s Reasoning

The Court approached the matter by first clarifying the scope and purpose of the two rules. It described rule 18 as governing applications for leave to appeal directly to the Constitutional Court from any court other than the Supreme Court of Appeal in constitutional matters, and emphasised that the text of rule 18 expressly stated that it applied irrespective of whether the Supreme Court of Appeal had refused leave or special leave to appeal. By contrast, rule 20 was described as governing appeals “against a judgment or order” of the Supreme Court of Appeal on a constitutional matter, and thus applying where there is an appealable decision of that Court.

Relying on its earlier decision in Mphahlele v First National Bank of South Africa Ltd, the Court reaffirmed that the refusal of a petition for leave to appeal to the Supreme Court of Appeal is not appealable. On that basis, where the Supreme Court of Appeal refuses leave to appeal, an application to the Constitutional Court is not properly characterised as an appeal against the Supreme Court of Appeal’s refusal. Instead, it is an attempt to appeal against the High Court decision itself, which falls within the ambit of rule 18. The Court therefore concluded that the appellants were incorrect to proceed under rule 20.

Turning to condonation, the Court treated the condonation question as intertwined with the leave-to-appeal inquiry, since both turned on the interests of justice. It referred to the general approach that condonation is usually granted where it is in the interests of justice to do so.

In considering whether leave to appeal should be granted, the Court identified the portion of the High Court order at issue as the decision to impose a personal costs order against elected councillors based on their conduct during council deliberations. The Court treated this as raising constitutional issues because the appellants invoked the protection of section 161 of the Constitution (as given effect to by section 28(2) of the Local Government: Municipal Structures Act 117 of 1998) concerning privileges and immunities for municipal councils and their members. The Court also reasoned that a personal costs order made against democratically elected municipal council members for conduct in council proceedings implicated broader constitutional concerns, including the freedom of speech of members of elected deliberative bodies and the separation of powers between the judiciary and the legislative/executive branches within South Africa’s constitutional democracy.

The Court considered the issues important to the functioning and growth of a constitutional democracy, with potential relevance extending beyond the immediate dispute to the functioning of municipal councils and the conduct of their members generally. It also noted the novelty of the questions presented, indicating they had not been decided before. For these reasons, the Court concluded that it was in the interests of justice both to condone the non-compliance with rule 18 and to grant leave to appeal.

5. Outcome and Relief

The Constitutional Court held that the correct procedural route for the appellants’ application was rule 18, not rule 20, because the Supreme Court of Appeal’s refusal of leave to appeal is not appealable and the intended appeal lay against the High Court decision.

The Court nonetheless condoned the appellants’ non-compliance with rule 18, finding that condonation was warranted in the interests of justice.

The application for leave to appeal was granted on 21 November 2002. This judgment delivered on 3 April 2003 provided the reasons for that earlier grant of leave. The judgment, as provided, did not record a costs order in relation to the leave application.

Cases Cited

Mphahlele v First National Bank of South Africa Ltd [1999] ZACC 1; 1999 (2) SA 667 (CC); 1999 (3) BCLR 253 (CC) (paragraph 14).

Brummer v Gorfil Brothers Investments (Pty) Ltd and Others [2000] ZACC 3; 2000 (2) SA 837 (CC); 2000 (5) BCLR 465 (CC) (paragraph 3).

Khumalo and Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) (paragraph 7).

National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and Another 2003 (2) BCLR 182 (CC) (paragraph 15).

Swartbooi and Others v Brink and Another 2003 (1) BCLR 21 (CC) (delivered on 21 November 2002).

L R Brink and G Niewoudt v The Speaker of the Nala Municipality and Another OPD 2125/2001 (Free State High Court, 10 December 2001, unreported).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 161; sections 157 and 158; Chapter 7; section 172(2)(a); sections 167 and 168 (referred to in contextual discussion of institutional roles).

Local Government: Municipal Structures Act 117 of 1998, section 28(2).

Rules of Court Cited

Rules of the Constitutional Court, rule 18 (including rule 18(1)).

Rules of the Constitutional Court, rule 20 (including rule 20(1) and rule 20(2)).

Held

The Court held that where the Supreme Court of Appeal refuses leave to appeal, an application to the Constitutional Court is not an appeal against that refusal, because such refusal is not appealable. The correct procedural route is to seek leave to appeal against the judgment of the court below (here, the High Court), and the applicable rule is rule 18.

The Court further held that, notwithstanding the procedural misstep, condonation was justified because the proposed appeal raised constitutional issues concerning the personal liability of elected municipal councillors for costs arising out of their participation in council deliberations, implicating constitutional protections relating to privileges and immunities, and raising broader concerns about freedom of speech in deliberative bodies and separation of powers.

LEGAL PRINCIPLES

The refusal by the Supreme Court of Appeal of a petition for leave to appeal is not appealable, and an approach to the Constitutional Court in such circumstances is properly directed at the underlying decision of the lower court rather than at the refusal itself.

Rule 18 of the Constitutional Court Rules governs applications for leave to appeal directly to the Constitutional Court from courts other than the Supreme Court of Appeal on constitutional matters, and it applies even where the Supreme Court of Appeal has refused leave or special leave to appeal.

Rule 20 is confined to appeals against appealable judgments or orders of the Supreme Court of Appeal on constitutional matters and does not provide a route to challenge the Supreme Court of Appeal’s refusal of leave to appeal.

Condonation for non-compliance with procedural rules is determined by the interests of justice, and where the application for condonation is closely connected to an application for leave to appeal, both inquiries are assessed together through the interests of justice lens.

A personal costs order made against democratically elected municipal councillors arising from their conduct in council deliberations may raise a constitutional matter, particularly where privileges and immunities under section 161 of the Constitution (as given effect to by statute) are implicated, and where the issue bears on the freedom of speech in elected deliberative bodies and the separation of powers.