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[2003] ZACC 8
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Ingledew v Financial Services Board (CCT6/02) [2003] ZACC 8; 2003 (8) BCLR 825 ; 2003 (4) SA 584 (CC) (13 May 2003)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 6/02
NORMAN MURRAY INGLEDEW Applicant
versus
THE FINANCIAL SERVICES
BOARD Respondent
In re:
THE FINANCIAL SERVICES
BOARD Plaintiff
and
JS VAN DER MERWE First Defendant
NORMAN
MURRAY INGLEDEW Second Defendant
Heard on : 18 February
2003
Decided on : 13 May 2003
JUDGMENT
NGCOBO J:
Introduction
[1]
This is an application for
leave to appeal against the decision of the Pretoria High Court (the High Court)
dismissing an interlocutory
application by Mr. NM Ingledew, the applicant
herein. In that application, the applicant had sought an order compelling the
Financial
Services Board, the respondent herein, to furnish him with certain
information before pleading in an action instituted against him
by the
respondent. The background to this application may be stated
briefly.
Factual Background
[2]
On 26 May 2000, the
Financial Services Board instituted action against the applicant and a certain
Mr. JS van der Merwe, alleging
a contravention of the provisions of the Insider
Trading Act, 1998 (the Act).
[1]
The
gravamen of the complaint was that they, in their respective capacities as
directors of a company called Skills Accel (Pty)
Ltd (“Skills”), had
acquired inside information and on the strength of it purchased and sold shares
at a profit. That
information related to the appointment of certain individuals
as directors of Skills and the acquisition of a distribution licence
and
business by it. Mr. van der Merwe has pleaded to the summons and we are not
concerned with him in this application.
[3]
The applicant has yet to
plead. After entering an appearance to defend, he served the respondent with a
notice in terms of rule 35(14)
of the Uniform Rules of Court. That subrule
provides:
“After appearance to defend has been entered, any party to any action may,
for purposes of pleading, require any other party
to make available for
inspection within five days a clearly specified document or tape recording in
his possession which is relevant
to a reasonably anticipated issue in the action
and to allow a copy or transcription to be made
thereof.”
[4]
In that notice he called
upon the respondent to make available to him certain documents, books and
transcriptions or tape recordings
relating to his interrogation and that of
other persons under the provisions of the Act. When the information sought was
not forthcoming,
the applicant brought an application in the High Court to
compel the respondent to comply with the
notice.
[5]
The applicant claimed that
having regard to the powers of the respondent to investigate and interrogate
witnesses and thereafter prosecute
alleged contraventions of the provisions of
the Insider Trading Act, either by way of criminal charges or a civil action, he
is entitled
to have sight of all witness statements and documents in the
possession of the respondent. He alleged that he has a constitutional
right to
such information in order to defend and protect his right to a fair trial, which
he claimed was guaranteed to him by sections
9(1)
[2]
,
34
[3]
and
35(3)
[4]
of the Constitution. He
claimed that section 32 read with item 23(2)(a) of Schedule
6
[5]
to the Constitution entitled him
to have access to the information he sought.
[6]
The application was resisted
by the respondent on various grounds but principally on the ground that the
applicant does not require
the information to
plead.
[7]
The High Court found that
the applicable constitutional provision was section 32 of the Constitution and
that the Promotion of Access
to Information
Act
[6]
(PAI Act) was not applicable.
It also found that: (a) section 32 could be constitutionally limited by a law of
general application
and that rule 35 was such a law; (b) during the course of
litigation, a party could exercise the right of access to documents through
rule
35 only and not through section 32; (c) the matter therefore had to be
considered as an application to enforce rule 35(14);
and (d) save for the
transcript relating to his interrogation, the applicant had not made out a case
that he required the information
to enable him to plead. It accordingly
dismissed the application with costs.
[8]
The present application for
leave to appeal is the sequel.
The
preliminary matters
[9]
The applicant has applied
for the condonation of the late filing of his application for leave to appeal,
replying affidavit and written
argument. He is also seeking leave to file a
replying affidavit.
[7]
Save for the
application for the condonation of the late filing of the application for leave
to appeal, the other applications are
opposed by the respondent. The reasons
for the delay advanced in each of these applications are far from satisfactory.
They demonstrate
a disregard for the rules of this Court and directions issued
by the Court. However, we have already heard argument on the merits
of the
application for leave to appeal. In these circumstances, it seems to me that
the proper course to follow is to grant the
applications for the condonation of
the late filing of the application for leave to appeal and the written argument
and to order
the applicant to pay the costs of these
applications.
[10]
Different considerations,
however, apply to the application for the condonation of the late filing of the
replying affidavit as well
as the application seeking leave to file that
affidavit. The attempt by the applicant to file a replying affidavit triggered
an
opposing affidavit from the respondent. The respondent’s opposing
affidavit was also used in support of the application by
the respondent in which
it sought (a) directions to have the entire record of the proceedings in the
High Court filed; and (b) the
expansion of the issues in this Court to include
the question whether section 7 of the PAI Act, or item 23(2)(a) of Schedule 6 of
the Constitution applied in this case. The respondent’s opposing
affidavit precipitated a further application by the applicant
to strike out
certain paragraphs in the respondent’s opposing
affidavit.
[11]
Save perhaps for the
application to expand the issues, all these documents are related. They deal
with the record of the High Court.
These documents were apparently filed to
supplement the appeal record, because the initial directions did not call for
the filing
of the record of the proceedings in the High Court. However, once
the entire record of the proceedings in the High Court was filed,
the need for
the replying affidavit, the opposition to it and the application to strike out
that the opposition precipitated, fell
away. That is the attitude that was
adopted by the respondent in argument before us. Indeed, we were not referred
to any of those
documents in argument. The proper order to make in these
circumstances is to refuse the application by the applicant for the condonation
of the late filing of the replying affidavit including leave to file that
affidavit, as well as the application to strike out, and
direct that the parties
pay their own costs in relation to these
applications.
[12]
In the view I take of this
matter, the respondent’s application to expand the issues which was not
persisted with during argument,
was unnecessary. However, it was apparently
precipitated by the new allegations made by the applicant in the replying
affidavit.
While that is no basis for bringing an unnecessary application, it
is a factor to be taken into consideration with regard to costs.
The
application must be refused and no order should be made in relation to the costs
of that application. The application by the
respondent to file the record was
part of its application to have the issues extended and only one affidavit was
filed on behalf
of the respondent in support of both applications. The same
affidavit was also used for opposing the filing of the applicant’s
replying affidavit. The applicant did not oppose the application to file the
record. In these circumstances, the application to
file the record is granted
and no order is made in relation to the costs of that
application.
The application for leave to
appeal
[13]
The decision whether to
grant or refuse leave to appeal is a matter for the discretion of this
Court.
[8]
Leave to appeal will be
granted if, firstly, the application raises a constitutional
matter
[9]
and secondly, it is in the
interests of justice to grant leave to
appeal.
[10]
Thus, a finding that
the application raises a constitutional issue is not decisive. Leave to appeal
may be refused if it is not
in the interests of justice to hear the
case.
[11]
I therefore proceed to
consider whether these two criteria have been
met.
The applicant’s contention
[14]
In this Court, the
applicant advanced two main arguments. Firstly, he contended that he was
entitled to information under rule 35(14).
He submitted that, in view of the
penal nature of the proceedings, the subrule should be construed purposively and
in a manner that
accords with section 32(1)(a) of the Constitution. Secondly,
in the alternative, the applicant contended that he was nevertheless
entitled to
information sought directly under section 32(1)(a). Both these are
constitutional matters.
[15]
Both section 32(1)(a) and
rule 35(14) confer a right to obtain information. However, section 32 confers a
general and an unqualified
right to information. By contrast, the subrule
confers a limited right. It can only be invoked during litigation by a litigant
after appearance to defend an action has been entered and its terms
unequivocally limit the nature of the documents and tape recordings
covered by
the rule to those “relevant to a reasonably anticipated issue in an
action” and further limits the documents
in question to those required
“for purposes of
pleading.”
[12]
There is no
reasonable constitutional construction of the rule that could broaden such
purpose to accommodate the construction of
it contended for by the applicant.
Accordingly, the subrule grants a right to information that is narrower, to that
extent, than
the right in section 32(1)(a).
[16]
Neither in this Court nor
in the High Court, did the applicant seek to have rule 35(14) declared
constitutionally invalid. The issue
raised in the alternative remains, namely,
whether he is nevertheless entitled to obtain the information sought directly
under section
32(1)(a).
[17]
The central question raised
by the applicant's alternative argument is whether the applicant can, during the
course of litigation,
obtain information directly under section 32(1)(a) without
challenging the constitutionality of the
subrule.
The obstacles facing the
applicant
[18]
There are a number of
obstacles that have to be overcome by the applicant before leave to appeal can
be granted. The first is that
access to information for the purpose of
litigation is regulated by rules of court. The rules distinguish between
information required
for the purpose of pleading and information that has to be
made available after pleadings have closed. The applicant initiated his
claim
for information by invoking rule 35(14) contending that he required the
information sought by him for the purpose of pleading.
The High Court held that
the applicant was able to plead without such information and that his claim in
so far as it was based on
rule 35(14) had to be dismissed. That finding has not
seriously been challenged by the applicant, nor could it have been in this
Court.
[19]
Attempting to avoid the
consequences of this finding, counsel for the applicant sought to rely directly
on section 32 of the Constitution,
contending that in terms of section 32(1)(a)
the applicant has an unrestricted right to obtain “any information held by
the
state”. Although the matter commenced as a rule 35(14) application,
the applicant raised a constitutional claim to the information
sought in his
founding affidavit, and in the High Court argued that he had rights both under
section 32(1) of the Constitution and
under rule 35(14). That argument was
dismissed by the High Court on the ground that rule 35(14) was a law of general
application
which reasonably and justifiably limited the constitutional right.
The applicant argued that he has a concurrent right to the information
under
section 32(1) regardless of any restriction that rule 35(14) might
impose.
[20]
This Court has adopted the
doctrine of objective constitutional
invalidity.
[13]
The effect of this
doctrine is that any law in existence prior to the Constitution coming into
effect, and inconsistent with the
Constitution, becomes invalid the moment the
Constitution comes into operation, and that any constitutionally inconsistent
law passed
after the Constitution, becomes invalid from the moment it is passed.
It is important to appreciate, however, that the doctrine only
determines the
moment of invalidity - in the absence of any constitutional provision to the
contrary -
once the law in question has been declared invalid
. As
pointed out earlier, at no stage has the applicant challenged the
constitutionality of rule 35 (14). That being so the rule
must be taken to be
valid.
[21]
The central constitutional
question raised by the applicant’s contention is thus whether he has two
rights which are compatible
and can be invoked by him at his option - a right
under the rules of court and a right under the
Constitution.
[22]
In
Member of the
Executive Council for Development Planning and Local Government, Gauteng v
Democratic Party and Others
[14]
this Court pointed out that “considerable difficulties stand in the way of
the adoption of a procedure which allows a party
to obtain relief which is in
effect consequent upon the invalidity [of a statutory provision] without any
formal declaration of invalidity
of that provision.” Grave doubts were
expressed whether such a procedure was compatible with section 172(1) of the
Constitution,
which obliges a court to declare a statutory provision which is
inconsistent with the Constitution invalid to the extent of the
inconsistency.
[15]
This case is not
directly in point. The appellant expressly challenged a statutory provision
that, in his submission, was inconsistent
with a constitutional
provision.
[16]
He sought a
declaratory order to give effect to that constitutional provision, but omitted
any prayer for the statutory provision
to be declared invalid. There was no
suggestion that, as has been argued in the present case, two concurrent rights
might exist.
[23]
In
NAPTOSA and Others v
Minister of Education, Western Cape and
Others
[17]
the Cape High Court
was concerned with the appropriateness or otherwise of granting relief directly
under section 23(1) of the Constitution
without a complaint that the Labour
Relations Act
[18]
was
constitutionally deficient in the remedy it provides. The High Court held that
it could not “conceive that it is permissible
for an applicant, save by
attacking the constitutionality of the LRA, to go beyond the regulatory
framework which it
establishes.”
[19]
In
NEHAWU v University of Cape Town and
Others
,
[20]
this Court refrained
from expressing any opinion on the correctness of this
decision.
[24]
These cases cast doubt on
the correctness of the proposition that a litigant can rely upon the
Constitution, where there is a statutory
provision dealing with the matter
without challenging the constitutionality of the provision
concerned.
[25]
There is a line of cases in
the high courts which might be understood to support the applicant’s
contention that in an action
against the State, a litigant may, in addition to
the right to require discovery in terms of rule 35, seek relief in terms of
section
32. These cases include
Swissborough Diamond Mines (Pty) Ltd and
Others v Government of the Republic of South Africa and
Others
,
[21]
Phato v
Attorney-General, Eastern Cape, and Another; Commissioner of the South African
Police Services v Attorney-General, Eastern
Cape, and
Others
,
[22]
Khala v Minister
of Safety and Security
,
[23]
and
Van Niekerk v Pretoria City
Council
.
[24]
[26]
The applicant in the
Van
Niekerk
case sought information to enable him to decide whether or not to
institute action against the State. His claim was based on section
23 of the
interim Constitution, which at that time restricted the right to information
from the State to information required for
the exercise or protection of the
applicant’s rights. An argument that the applicant was not entitled to
information in terms
of section 23, if that information could in any event be
acquired by using discovery procedures was rejected. In rejecting this
contention, Cameron J held that it would:
“place an unacceptable constriction upon the operation of s 23. Myburgh J
in any event disposed of this point in
Khala
, where it was argued that s
23 was not intended to be used in litigation to obtain discovery from a
government department or other
organ of government. Myburgh J expressly
rejected the argument that s 23 was not to be used ‘as an additional aid
in obtaining
discovery in litigation between a person and a government
department’, concluding that it was ‘particularly apt to use
s 23 to
obtain discovery of documents from the State’.”
[25]
[citations
omitted]
[27]
Both
Khala
and
Phato
related to whether the right of access to information under section
23 of the interim Constitution overrode the blanket common law
privilege
relating to information contained in police dockets. In both cases, the court
held that this was the effect of section
23. In
Phato
, a Full Bench of
the Eastern Cape High Court held that it was “inevitable . . . that the
constitutional right of access to
information in terms of s 23 must also apply .
. . to both civil and criminal litigation by the
State”.
[26]
The
Swissborough
case concerned the question of discovery after the close of
pleadings in civil litigation against the government. Although the Court
held
there that a “litigant who engages the State as referred to in s 32(1) has
the right to utilise s 32(1) and/or rule 35
in order to obtain access to
documentation in the possession of the
State,”
[27]
the applicant had
relied on rule 35 and the judgment was directed to the application of that rule
in the light of the Constitution.
[28]
However, cases such as
Inkatha Freedom Party and Another v Truth and Reconciliation
Commission and Others
[28]
and
Alliance Cash & Carry (Pty) Ltd v Commissioner, South African Revenue
Service
[29]
have cast doubt on
the correctness of the
Swissborough
line of cases. In
Alliance Cash
and Carry
, the Full Bench of the Transvaal High Court, although finding it
unnecessary to decide the point, took the view that the only way
in which
discovery can be obtained against the State during the course of litigation, is
through the rules of court. Similar views
were expressed by the Cape High Court
in the
Inkatha Freedom Party
case. The High Court, in the present case,
adopted this approach, holding that once litigation commences, a litigant may
only obtain
discovery through the rules.
[29]
While there is much to be
said for the view that once litigation has commenced discovery should be
regulated by the rules of court,
such a view may give rise to certain anomalies.
Under the wording of section 32(1)(a), the applicant would
prima facie
have been entitled to all the documents he now seeks until the day before
summons was served on him. Moreover, a third party might
have approached
another for access to those documents during the course of the applicant’s
litigation. In the present case,
however, it is not necessary to deal with
these issues or the different views expressed in the decided cases and I prefer
to leave
those issues open. For the reasons that follow, I am satisfied, in any
event, that in the particular and unusual circumstances of
this case it is not
in the interests of justice to grant leave to
appeal.
The interests of justice
[30]
A consideration of what is
in the interests of justice involves evaluation of all the circumstances of a
particular case. The exercise
involves the weighing up of a number of
factors.
[30]
In
Khumalo and
Others v Holomisa
,
[31]
this
Court summed up some of the factors that are relevant in considering the
interests of justice, albeit in the context of an application
for leave to
appeal against an order dismissing an exception, and
said:
“The next question is whether it is in the interests of justice for leave
to be granted to the applicants to appeal against
the order dismissing the
exception before the trial had started. In answering this question, it is
necessary to take into account,
amongst other things, the following
considerations: the nature of the exception and, in particular, the effect that
upholding the
exception may have upon the trial proceedings in the High Court;
the extent to which the exception raises the question of the development
of the
common law in which case a decision by the Supreme Court of Appeal on the matter
may be desirable before the case is heard
by this Court; whether the matter is
appealable to the Supreme Court of Appeal; the stage of the proceedings in the
High Court; the
importance of a determination of the constitutional issues
raised by the exception; and the applicants’ prospects of success
upon
appeal.”[footnotes omitted].
[31]
In deciding what is in the
interests of justice in this case it is necessary to take into account, amongst
other things, the following
factors: the effect that the refusal of the
application may have upon the trial, in particular, whether the applicant will
be prejudiced
in the conduct of the trial if he does not get the information
sought at this stage; the desirability of deciding the issues raised;
the
importance of a determination of the constitutional issues raised by the
application; the fact that the issues raised arose during
a hiatus period before
the coming into operation of the PAI Act; and the stage of the proceedings in
the High Court. In the view
I take of the other factors, I do not consider the
prospects of success to be decisive in this application. This Court has held
that though the prospects of success is an important factor in an application
for leave to appeal, it is not decisive in every
case.
[32]
(a)
Prejudice to applicant if the application is refused.
[32]
In the first place, we are
concerned with an order made at a very early stage of pleading, a stage prior to
the delivery of a plea.
It is patently clear from the record that the applicant
is able to formulate and articulate his defences, in particular, if regard
is
had to the nature of the allegations against him. The matter must therefore be
approached on the footing that even if the applicant
were to be refused the
information sought, he would be able to plead. The order made by the High Court
does not prejudice the applicant
in any way in the future conduct of the case.
This immediately distinguishes it from other orders, which might well influence
how
a litigant conducts the case.
[33]
The applicant seeks
information for use in his pending insider trading trial. He will not be
prejudiced if leave to appeal is refused.
Once the pleadings are closed, the
issues will become crystallised and the issues for trial will be defined. If
the applicant feels
that the information presently sought is relevant to the
issues for trial, he can utilise the pre-trial discovery procedures set
out in
the rest of rule 35. It was contended on behalf of the applicant that there is
potential prejudice in obtaining the information
later. As I understand the
submission, such prejudice derives from the fact that pre-trial discovery is
limited to issues for trial
and such information will not only be narrow but it
will come too late for him to broaden the issues for
trial.
[34]
The submission rests on the
assumption that the information held by the respondent might yield further
defences of which the applicant
might not be aware. If regard is had to the
nature of the allegations against the applicant, it is difficult to fathom what
other
possible defences, of which the applicant himself has no knowledge, could
emerge from information held by others. The complaint
against him is that at
the material time he used inside information, which he had obtained as a
director to make profit out of buying
the securities of Skills. Whether that is
so is a matter that is manifestly within his subjective knowledge. He does not
require
information about what other interrogatees said in order to determine
his defence. Counsel for the applicant was invited to indicate
the type of
defence she had in mind, but not surprisingly, she was unable to suggest
any.
[35]
Finally, the papers in the
High Court show that the respondent intends to claim privilege in respect of
some or all of the documents
sought by the applicant. The High Court did not
address this issue. We did not hear argument on this issue either. Therefore,
even if we were to uphold the appeal, we would have to refer the matter back to
the High Court for it to decide the question of privilege.
Having regard to the
fact that the applicant is able to plead and that he can renew his right to
information at the time of pre-trial
discovery, the application serves little
purpose other than to delay the
proceedings.
(b) The importance of deciding
the constitutional issues raised.
[36]
The constitutional issues
that are raised in this application arose during what was referred to in
argument as “the hiatus period”,
that is, the period between the
passing of the PAI Act on 2 February 2000 and its coming into operation on 9
March 2001.
[33]
Our ruling on the
issues raised in this application will therefore affect those applications for
discovery made during the hiatus
period and would in all likelihood have been
disposed of by now. The latter group will be governed by the PAI Act while, in
the
other group, the issue will not arise. The resolution of the constitutional
issues raised in this application will not therefore
be likely to have
implications beyond the immediate needs of the applicant, who, as I have already
found, will suffer no prejudice
if the application is
refused.
[34]
Conclusion
[37]
For all these reasons, it
is not in the interests of justice to grant leave to appeal in this matter. It
follows that the application
for leave to appeal must be
refused.
Costs
[38]
Counsel for the applicant
submitted that if the application fails, there should be no order for costs. I
am not persuaded.
[39]
As a general matter, this
Court adopts a cautious approach towards unsuccessful litigants who assert their
fundamental rights against
the State. This approach derives from the reluctance
to discourage individuals from asserting their constitutional rights in the
fear
that if they do so and fail, they might be saddled with
costs.
[35]
It is however not an
inflexible rule. In the present case the costs order is justified. What
distinguishes the present case and
justifies the costs order is the fact that it
must at all times have been clear to the applicant and his legal advisers that
the
order of the High Court, against which the appeal is sought to be brought,
could cause him no prejudice in the conduct of the action,
for the reasons given
in this judgment. The application is therefore purely dilatory. By ordering
the applicant to bear the costs
of this futile application, we take no risk of
“chilling” prudent and reasonable litigants seeking to invoke their
constitutional
rights.
[40]
In these circumstances,
there is good reason why the applicant should be ordered to pay the costs of the
abortive proceedings.
[41]
Finally, I consider it
necessary to comment on the state of the record. Paragraph (c) of the
directions issued on 12 July 2002 directed
the parties to lodge only those
portions of the record that are not common cause and on which they intended to
rely. Instead the
entire record was lodged. During the course of argument, we
were referred to very few pages of the record. It was therefore completely
unnecessary to file the entire record. The record itself was not properly
prepared as required by the rules. In future, such conduct
will not be
tolerated and this Court will consider a special order for costs. Since the
applicant prepared the record and has been
ordered to pay the costs of the
application, there is no need for such an order in this
case.
Order
[42]
In the event, the following
order is made:
(a) The applications by the applicant for the condonation of the late filing of
the application for leave to appeal and the late
filing of the written argument
are granted. The costs of these applications are to be borne by the
applicant.
(b) The applications by the applicant for the condonation of the late filing of
the replying affidavit and the application for leave
to file that affidavit are
refused. There will be no order for costs.
(c) The application to strike out by the applicant is refused and there will be
no order for costs.
(d) The application by the respondent to expand the issues is refused and there
will be no order for costs.
(e) The application by the respondent that the record of proceedings in the High
Court be lodged is granted and there will be no
order for costs.
(f) The application for leave to appeal is dismissed with costs, such costs to
include costs consequent upon the employment of two
counsel.
Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J,
Madala J, Mokgoro J, Moseneke J and Yacoob J concur in the judgment of Ngcobo
J.
For the applicant: MM Jansen SC and I Ellis instructed by Hannes Gouws &
Partners Inc., Pretoria.
For the respondent: BS Spilg SC and A Freund instructed by Noko Inc.,
Johannesburg.
[1]
Act 135 of 1998.
[2]
Section 9(1) provides:
“Everyone is equal before the law and has the right to equal protection
and benefit of the
law.”
[3]
Section
34 provides:
“Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing
before a court or, where
appropriate, another independent and impartial tribunal or
forum.”
[4]
Section 35(3) guarantees every accused person a right to a fair trial.
[5]
Item 23(2)(a) of Schedule 6
provides in part:
“Until the legislation envisaged in [section] 32(2) . . . of the new
Constitution is enacted –
(a) section 32(1) must be regarded to read as
follows:
‘(1) Every person has the right of access to all
information held by the state or any of its organs in any sphere of government
in so far as that information is required for the exercise or protection of any
of their rights.’”.
[6]
Act 2 of 2000.
[7]
The application for leave to
file the replying affidavit was triggered by the fact that, under rule 18, there
is no provision for
the filing of a replying affidavit.
[8]
S v Boesak
[2000] ZACC 25
;
2001
(1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para 12;
NEHAWU v University of
Cape Town and Others
2003 (2) BCLR 154
(CC) at para 25.
[9]
Section 167(3) of the
Constitution provides:
“The Constitutional Court –
(a) is the highest court
in all constitutional matters;
(b) may decide only constitutional matters, and issues connected with
decisions on constitutional matters; and
(c) makes the final decision whether a matter is a constitutional matter or
whether an issue is connected with a decision on a constitutional
matter.”
See also
S v Boesak
above n 8 at para 12.
[10]
Section 167(6)(b) 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 leave of the
Constitutional Court –
. . .
(b) to appeal directly to the Constitutional Court from any other
court.”
[11]
S v Boesak
above n 8 at para 12;
NEHAWU v University of Cape Town
above n 8 at para 25.
[12]
Quayside Fish Suppliers
CC v Irvin & Johnson Ltd
2000 (2) SA 529
(C) at para 13;
Titus v RNE
Holdings
2002 (2) All SA 331
at paras 5–7.
[13]
Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at paras 26-29.
[14]
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998
(7) BCLR 855
(CC) at para 61.
[15]
Id at para 62.
[16]
Id at para 35.
[17]
2001 (2) SA 112
(C);
2001
(4) BCLR 388
(C).
[18]
Act 66 of 1995.
[19]
Above n 17 at 123I-J.
[20]
Above n 8 at para 17.
[21]
1999 (2) SA 279
(T) at 320
C-D.
[22]
1995 (1) SA 799
(E) at 815G;
1994 (5) BCLR 99
(E);
1994 (2) SACR 734
(E).
[23]
1994 (4) SA 218
(W) at 225F
and 226G;
1994 (2) BCLR 89
(W);
1994 (2) SACR 361
(W).
[24]
1997 (3) SA 839
(T) at
850B.
[25]
Van Niekerk v Pretoria
City Council
id at 848D-E.
[26]
Phato v Attorney-General,
Eastern Cape, and Another; Commissioner of the South African Police Services v
Attorney-General, Eastern
Cape, and Others
, above n 22 at 815F-G.
[27]
Swissborough Diamond
Mines (Pty) Ltd and Others v Government of The Republic of South Africa
and Others
above n 21 at 320C.
[28]
2000 (3) SA 119
(C);
2000
(5) BCLR 534
(C) at 135J – 137C.
[29]
2002 (1) SA 789
(T).
[30]
NEHAWU v University of
Cape Town and Others
above n 8 at para 25;
Khumalo and Others v
Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 10;
Islamic
Unity Convention v Independent Broadcasting Authority and Others
[2002] ZACC 3
;
2002 (4) SA
294
(CC);
2002 (5) BCLR 433
(CC) at para 15;
MEC for Development Planning and
Local Government, Gauteng v Democratic Party and Others
above n 14 at para
32.
[31]
Id at para 10.
[32]
S v Boesak
, above n 8
at para 12.
[33]
The PAI Act was assented to
and signed by the President on 2 February 2000 and published on 3 February 2000
but came into effect
on 9 March 2001. In terms of section 81 of the
Constitution, a Bill becomes an Act of Parliament once it is assented to and
signed
by the President, but “takes effect when published or on a date
determined in terms of [its provisions].”
[34]
NEHAWU v University of
Cape Town
above n 8 at para 28.
[35]
SA Commercial Catering
& Allied Workers Union v Irvin & Johnson Ltd (Seafoods Division Fish
Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC);
2000 (8) BCLR 886
(CC)
at para 51;
Motsepe v Commissioner for Inland Revenue
[1997] ZACC 3
;
1997 (2) SA 898
(CC);
1997 (6)
BCLR 692
(CC) at para 30.