Brief Summary

Constitutional Law — Direct access — Application for direct access to the Constitutional Court challenging the legitimacy of local government entities and alleging infringement of the right to a fair hearing — Applicant contended that the Butterworth Transitional Local Council and the Butterworth Municipality were fictitious entities and that he was barred from being heard in the High Court — Court found that the application was essentially a disguised appeal against prior High Court judgments and that the applicant had not demonstrated the necessity for direct access — Application dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an application for direct access to the Constitutional Court in terms of section 167(6)(a) of the Constitution and rule 17 of the Constitutional Court Rules. The applicant, Mr Arthur Gcali, appeared in person, although he indicated that he had received assistance in drafting from his former attorney.

The respondents were the Member of the Executive Council for Housing and Local Government in the Eastern Cape (first respondent), a former MEC (Mr Maxwell Mutile Mamase, second respondent), the Butterworth Transitional Local Council (third respondent, as cited by the applicant), a former mayor (Mr Anthony Mnoneleli Bam, fourth respondent), The Daily Dispatch Media (Pty) Limited (fifth respondent), and the Mnquma Local Municipality (sixth respondent).

The application arose from extensive prior litigation in the Transkei High Court. In that litigation the applicant had instituted an action for damages (including a wrongful dismissal claim and defamation claims). During those proceedings, the High Court made a sequence of procedural and case-management orders, including orders relating to exceptions, a directive that the applicant file an apology affidavit for remarks said to verge on contempt, an order barring him from taking further steps until he complied, and later an order setting aside his amended particulars of claim as irregular under Uniform Rule 30 while also substituting a municipal defendant.

The general subject matter before the Constitutional Court was not the merits of the applicant’s damages claims. Instead, it concerned whether the Constitutional Court should grant direct access to review or set aside High Court orders and judgments, based on the applicant’s complaints that (a) certain cited municipal entities were “bogus” or “fictitious”, and (b) the High Court’s handling of the matter infringed his section 34 right of access to courts and a fair hearing.

2. Material Facts

The Constitutional Court treated the applicant’s papers as raising two recurring factual themes: the alleged non-existence in law of the Butterworth Transitional Local Council and the Butterworth Municipality (with the applicant asserting that only the Mnquma Local Municipality was the legitimate local government organ in the relevant area), and the applicant’s complaint that he had been treated unfairly by the High Court and was ultimately barred from being heard.

Chronologically, the material litigation history was as follows. On 26 February 1999, the applicant instituted an action in the High Court under case number 425/99 against (among others) the MEC, Mr Mamase, the Butterworth Transitional Local Council (as cited), Mr Bam, and The Daily Dispatch, advancing a claim arising from his dismissal as Town Clerk and additional claims based on allegedly defamatory statements.

An exception to the particulars of claim was upheld on 21 December 2000 by Ponnan AJ, with leave to amend. The applicant amended, but the amended particulars were met with further procedural challenge, leading to three High Court hearings that were central to the present application.

At the first hearing on 25 September 2001 (before Dotwana AJ), counsel for the respondents contended that the applicant had made offensive remarks in affidavits concerning the competence of the judges of the Division, bordering on contempt. The High Court ordered a postponement, directed the applicant to file an affidavit apologising unreservedly by a set date, and ordered him to pay wasted costs including costs of two counsel.

At the second hearing on 8 November 2001 (before Jafta AJP), the applicant had not filed the ordered apology affidavit. Instead, he filed a notice challenging the High Court’s authority to make the earlier order and indicated he would not comply. In a written judgment delivered on 15 November 2001, Jafta AJP treated the applicant’s conduct as contemptuous and held he should be barred from taking any further step until he purged his contempt. The High Court postponed the matter sine die, barred him from setting the matter down or being heard until compliance, ordered attorney-and-client costs (including two counsel), and directed the Registrar to send the judgment to the Director of Public Prosecutions. The applicant was advised by the High Court to obtain legal representation given the complexity and potential cost consequences.

At the third hearing on 5 September 2002, certain respondents applied under Uniform Rule 30 to set aside the applicant’s amended particulars as irregular. By then, the applicant had filed an apology affidavit but had not paid the wasted costs; the costs had not yet been taxed. At this hearing the applicant was represented by his legal representative, Mr Gcobani Bam, but the High Court refused to grant either counsel or the applicant a right of audience. The applicant remained present and recorded the proceedings. The High Court condoned the respondents’ delay, substituted the Butterworth Municipality (not the Mnquma Local Municipality) as third defendant in case 425/99, declared the amended particulars irregular and set them aside, granted leave to amend within 30 days after an order confirming compliance with the prior High Court orders, ordered attorney-and-client costs (including two counsel), directed personal service of the order, and recorded that the applicant was present throughout.

A further fact relied upon by the Constitutional Court was that the applicant did not appeal against the High Court orders arising from the first, second, or third hearings. The applicant asserted that he had no effective remedy by appeal because he would need leave from the very court that had barred him and which (he contended) would refuse to hear his applications for leave. The Constitutional Court treated this asserted inability to appeal as a key factual basis advanced to justify direct access.

3. Legal Issues

The central legal question was whether the applicant satisfied the requirements for direct access under section 167(6)(a) of the Constitution read with rule 17 of the Constitutional Court Rules, namely whether granting direct access would be in the interests of justice and whether exceptional circumstances existed to justify the Constitutional Court entertaining the matter as a court of first instance.

Closely connected to this was whether the application was, in substance, an impermissible disguised application for leave to appeal against High Court orders, rather than a proper direct access matter.

A further issue was whether the applicant’s contention that he could not pursue ordinary appeal remedies because of the High Court’s barring orders had legal merit, and thus whether there was a realistic alternative remedy in the ordinary appellate hierarchy.

The dispute predominantly concerned the application of established procedural and constitutional standards to the litigation history (application of law to fact), rather than the determination of substantive merits of the underlying damages action. The Court also identified that aspects of the relief sought would likely generate disputes of fact, which bore on whether it was appropriate for the Constitutional Court to hear the matter directly.

An additional, ancillary issue was the applicant’s request (embedded in the papers rather than framed as a substantive prayer) for the Court to appoint a legal representative to argue the matter on his behalf, raising questions about when the Constitutional Court will facilitate representation in civil matters in the interests of justice.

4. Court’s Reasoning

The Court approached the matter by characterising the application formally as one for direct access but substantively as a disguised attempt to appeal against the three High Court decisions. It relied on its prior statement that rule 17 is a procedure for direct access and “is not an appeal procedure” and cannot be used for disguised appeals.

Applying the direct access test, the Court reiterated that an applicant must show both that direct access is in the interests of justice and that exceptional circumstances warrant it. In assessing exceptional circumstances, the Court identified relevant factors drawn from its jurisprudence, including whether disputes of fact may arise, whether issues were properly traversed in other courts, the attitude of other parties, whether relief is available in another court, the importance of the issues, the desirability of an immediate decision, and—emphasised as particularly important—the undesirability of the Constitutional Court being the court of both first and final instance.

On the applicant’s explanation for not appealing, the Court held the excuse to be legally unsound. It rejected the contention that the barring order prevented the applicant from applying for leave to appeal in the High Court or the Supreme Court of Appeal. The Court reasoned that if, in an application for leave to appeal, it were contended that a barring order was wrongly granted (whether on fact or law), the court hearing that application would have to consider the merits of that contention in order to decide the leave application. This reasoning was applied equally to the applicant’s complaints regarding the status and substitution of parties: the substitution order and other procedural orders were matters capable of being pursued on appeal in the ordinary course.

The Court then evaluated the nature of the complaints raised. It held that the applicant’s grievances were essentially procedural and litigation-management issues, including issues relating to exceptions, substitution of parties, compliance with court orders, and circumstances under which non-compliant parties may be barred. Even insofar as those matters might be presented as constitutional, the Court regarded them as the type of issues that ought to be dealt with fully by the High Courts and the Supreme Court of Appeal before being brought to the Constitutional Court. On that basis, the Court concluded that granting direct access under these circumstances would be far removed from the interests of justice.

The Court also found an additional consideration militating strongly against direct access: several of the claims advanced would “undoubtedly” produce disputes of fact, and it would not be in the interests of justice for the Constitutional Court to resolve such disputes in the context of direct access.

The Court considered whether it should, as an indulgence to a lay litigant, treat the application as one for leave to appeal. It declined to do so, reasoning that the issues involved the application of common law and procedural rules that should, as a matter of course, be heard by the Supreme Court of Appeal; the Court further indicated that even if proper procedures were followed, the matter was not appropriate for a direct appeal to the Constitutional Court.

On the request for appointed representation, the Court treated it as if properly sought but held there is no express constitutional right to free legal representation in civil matters. While acknowledging that the Court has, on occasion and of its own accord, arranged such representation where necessary in the interests of justice, it held the present case did not call for it. The Court considered that the complexities were largely of the applicant’s own making and linked to his tendency to ignore or circumvent court orders, and accordingly found no merit in the request.

Finally, the Court recorded that it dealt with the application summarily under rules 17(5) and 18(10)(b), and that its conclusion was reached solely on the basis of the applicant’s own papers (notwithstanding the applicant’s objection to the fifth respondent’s opposition).

5. Outcome and Relief

The Constitutional Court held that it was not in the interests of justice to grant direct access and that the requirements for direct access were not met. It therefore dismissed all the applications.

The judgment did not record any separate or additional order as to costs in the Constitutional Court proceedings.

Cases Cited

The judgment referenced the following authorities: Shongwe v S [2003] ZACC 9; 2003 (8) BCLR 858 (CC); Bruce and Another v Fleecytex Johannesburg CC and Others [1998] ZACC 3; 1998 (4) BCLR 415 (CC); 1998 (2) SA 1143 (CC); Christian Education South Africa v Minister of Education 1998 (12) BCLR 1449 (CC); 1999 (2) SA 83 (CC); Dormehl v Minister of Justice and Others 2000 (5) BCLR 471 (CC); 2000 (2) SA 987 (CC); National Gambling Board v Premier of KwaZulu-Natal and Others [2001] ZACC 8; 2002 (2) BCLR 156 (CC); 2002 (2) SA 715 (CC); Van der Spuy v General Council of the Bar of South Africa and Others [2002] ZACC 17; 2002 (10) BCLR 1092 (CC); 2002 (5) SA 392 (CC); Satchwell v President of the Republic of South Africa and Another [2003] ZACC 2; 2003 (4) SA 266 (CC); Ex parte: Ahmed Raffik Omar (Case CCT 32/03, judgment delivered on 11 September 2003) (as described in the judgment as unreported); De Freitas and Another v Society of Advocates of Natal (Natal Law Society intervening) 1998 (11) BCLR 1345 (CC); Van der Spuy v The General Council of the Bar and Others [2002] ZACC 17; 2002 (10) BCLR 1092 (CC); 2002 (5) SA 392 (CC) (referred to again on a further point); and Xinwa and Others v Volkswagen SA (Pty) Ltd [2003] ZACC 7; 2003 (6) BCLR 575 (CC). The High Court judgment of Jafta AJP delivered on 15 November 2001 was also referred to as unreported.

Legislation Cited

The judgment cited the Constitution of the Republic of South Africa, 1996, specifically section 167(6)(a) and section 34.

Rules of Court Cited

The judgment cited Rule 17(1), Rule 17(2), and Rule 17(5) of the Rules of the Constitutional Court; Rule 18(10)(b) of the Rules of the Constitutional Court; and Rule 30 of the Uniform Rules of Court.

Held

The Court held that the application, though framed as one for direct access, was in substance a disguised appeal against High Court orders. It held further that the applicant failed to establish exceptional circumstances and that it was not in the interests of justice to grant direct access, particularly given the availability of ordinary appellate routes and the undesirability of the Constitutional Court acting as a court of first and final instance on procedural matters.

The Court held that the applicant’s explanation for not appealing—namely that the barring orders prevented him from seeking leave to appeal—was incorrect in law, because courts hearing leave applications would be obliged to consider the merits of a contention that a barring order was wrongly granted.

The Court also held that it was not appropriate to appoint legal representation for the applicant in these civil proceedings, and that the case did not warrant the Court arranging such representation in the interests of justice.

LEGAL PRINCIPLES

Direct access under section 167(6)(a) and rule 17 requires a showing that direct access is in the interests of justice and that exceptional circumstances exist. In assessing exceptional circumstances and the interests of justice, relevant considerations include the likelihood of disputes of fact, whether issues have been properly considered in other courts, the availability of alternative remedies, the importance and urgency of the legal issues, and the strong institutional consideration that it is generally undesirable for the Constitutional Court to act as the court of both first and final instance.

Rule 17 cannot be used as a substitute appeal mechanism. A litigant may not use a direct access application to mount a disguised appeal against decisions that should be pursued through ordinary appeal procedures.

A barring order does not, as a matter of principle, preclude a litigant from pursuing ordinary appellate remedies. If the correctness of a barring order is raised in an application for leave to appeal, the court considering leave must consider that contention in deciding whether leave should be granted.

There is no express constitutional right to free legal representation in civil matters, although the Constitutional Court may, in appropriate cases and in the interests of justice, facilitate representation; whether to do so depends on the circumstances of the case as assessed by the Court.

Gcali v Member of the Executive Council for Housing and Local Government, Eastern Cape and Others (CCT29/03) [2003] ZACC 17; 2003 (11) BCLR 1203 (CC) (6 October 2003)