About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2007
>>
[2007] ZACC 8
|
|
University of Witwatersrand Law Clinic v Minister of Home Affairs and Others (CCT08/07) [2007] ZACC 8; 2008 (1) SA 447 (CC); 2007 (7) BCLR 821 (CC); 2007 (8) BCLR 900 (CC) (7 June 2007)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 08/07
UNIVERSITY OF WITWATERSRAND LAW CLINIC Applicant
versus
THE MINISTER OF HOME AFFAIRS First Respondent
MICHAEL SIRELA Second Respondent
and
ISMAIL
EBRAHIM JEEBHAI Applicant for Joinder
Decided
on : 11 April 2007
Revised
on : 7 June 2007
1
JUDGMENT
THE
COURT:
This is an application by the University of Witwatersrand Law
Clinic (the Clinic), purportedly in terms of Constitutional Court
Rule 19(2),
2
for direct appeal to this Court. The Clinic was an amicus curiae
in proceedings in the Pretoria High Court. In those
proceedings, Mr Jeebhai, who was the applicant, had sought
declaratory relief
concerning the arrest, removal, detention and
subsequent disappearance of Mr Khalid Mahmood Rashid. On 16
February 2007, the
full bench in the Pretoria High Court dismissed
the application. The present application by the Clinic is directed
against that
decision.
On
2 March 2007, Mr Jeebhai lodged with the Pretoria High Court an
application for leave to appeal to the Supreme Court of Appeal.
That application has yet to be determined.
On
22 March 2007, Mr Jeebhai, through his attorneys, lodged with this
Court an application in which he sought (a) âleave to
joinâ the
Clinicâs application to this Court; and (b) leave to appeal
directly to this Court. This application, however,
makes no
mention of the application for leave to appeal that was lodged with
the Pretoria High Court on 2 March 2007. The Clinic
has however
subsequently filed a further affidavit purporting to comply with
Rule 19 by drawing attention to the application
for leave to appeal
in the High Court.
The
sole question for decision at present is whether it is in the
interests of justice to grant these applications at this stage
while an application for leave to appeal is pending in the High
Court
Mr
Jeebhai has elected to pursue an appeal first in the Supreme Court
of Appeal. He was entitled to do so and his choice must
be
respected. The Clinic, as an amicus, cannot take over the
litigation and determine an appellate forum for Mr Jeebhai. The
decision of this Court in
Campus Law Clinic
,
University
of KwaZulu-Natal v Standard Bank of South Africa Ltd and Another
,
3
relied upon by the Clinic, is clearly distinguishable from the
present case. That case did not, as the present case does, involve
a direct appeal to this Court while an application for leave to
appeal is pending in the High Court.
The
application filed by Mr Jeebhai is defective in two material
aspects. In the first place, it purports to be an application
to
join the amicus in an application for direct appeal to this Court.
This is impermissible. As he is dominus litis, he must
lodge his
own application and not seek to join an application lodged by an
amicus. This Court made it clear in
Campus Law Clinic
4
that an amicus curiae would ordinarily be permitted to appeal
against an order of another court only where the actual parties
to
that litigation were not seeking to pursue an appeal and there was
a clear public interest requiring it to be permitted to
lodge the
appeal. Where a party to the litigation seeks leave to appeal,
that party must launch its own application for leave
to appeal in
terms of the rules and set out all the considerations relevant to
its application To permit a party to join an
application for leave
to appeal made by an amicus would be to subvert the clear
understanding in
Campus Law Clinic
that parties to
litigation are those who in the first place must seek to prosecute
the litigation.
In
the second place, the application, contrary to Constitutional Court
Rule 19(3)(d),
5
does not indicate that an application is pending in the High Court
and the status of that application. The purpose of this rule
is to
avoid the duplication of proceedings and more importantly to enable
this Court to determine whether it is in the interests
of justice
to consider the matter while an application for appeal is pending
in another court. It is not in the interests of
justice to have
two courts consider applications for leave to appeal at the same
time without each knowing that another court
is considering an
application for leave to appeal in the same matter
We
accept that the matter is one which evokes public interest. The
disappearance of a human being following an arrest is a matter
of
grave concern. It is therefore a matter that must be accorded the
attention that it deserves. This in itself does, however,
not
justify a departure from the rules relating to applications for
leave to appeal. An application for leave to appeal is presently
pending in the Pretoria High Court. There is no suggestion that
there has been an unreasonable delay in dealing with the
application
for leave to appeal.
6
In
all the circumstances it is not in the interests of justice to
grant the application for leave to appeal at this stage. Both
applications must therefore be dismissed. This is not a case in
which an order for costs ought to be made.
In
the event the following order is made:
The applications are dismissed.
Moseneke
DCJ, Madala J, Mokgoro J, Navsa AJ, Ngcobo J, Nkabinde J, OâRegan
J, Sachs J, Skweyiya J and Van der Westhuizen J.
1
Unusually for this Court, this judgment was revised after the Court
became aware that a patent error existed in paragraph 8 of
the
judgment originally handed down. In terms of Rule 29 of the Rules
of this Court, Rule 42(1)(b) of the Uniform Rules of Court
also
applies in this Court. That Rule provides that â
â
The
Court may, in addition to any other powers it may have,
mero motu
or upon the application of any party affected, rescind or vary:
. . .
an
order or judgment in which there is an ambiguity, or a patent error
or omission, but only to the extent of such ambiguity,
error or
omissionâ.
This Court
has approved the dictum in
Firestone South Africa (Pty) Ltd v
Genticuro A.G.
1977 (4) SA 298
(A) at 306H-307H in which four
circumstances were identified when a court may vary its judgment or
order. See
Minister of Justice v Ntuli
[1997] ZACC 7
;
1997 (3) SA 772
(CC);
1997 (6) BCLR 677
(CC) at paras 22-24; and
Ex parte Womenâs
Legal Centre: In re Moise v Greater Germiston Transitional Local
Council
2001 (4) SA 1288
(CC) at para 4. One of those
circumstances is where the judgment contains a patent error which
may be deleted without altering
the intended sense or substance of
the judgment. The patent error in this case suggested that the
applicant had made a submission
which it had not that reflected
negatively on its professional competence. It can be deleted
without affecting the sense or substance
of the judgment. The Court
gave notice to the parties that it intended to delete paragraph 8
from its judgment, and having received
no objection, duly issues a
revised judgment from which the original paragraph 8 has been
deleted.
2
Rule 19(2) provides as follows:
â
A
litigant who is aggrieved by the decision of a court and who wishes
to appeal against it directly to the Court on a constitutional
matter shall, within 15 days of the order against which the appeal
is sought to be brought and after giving notice to the other
party
or parties concerned, lodge with the Registrar an application for
leave to appeal: Provided that where the President has
refused leave
to appeal the period prescribed in this rule shall run from the date
of the order refusing leave.â
3
[2006] ZACC 5
;
2006 (6) SA 103
(CC);
2006 (6) BCLR 669
(CC).
4
Id at para 21.
5
Rule 19(3)(d) provides:
â
An
application referred to in subrule (2) shall be signed by the
applicant or his or her legal representative and shall contain-
.
. .
a
statement indicating whether the applicant has applied or intends
to apply for leave or special leave to appeal to any other
court,
and if so-
which
court;
whether
such application is conditional upon the application to the Court
being refused; and
the outcome of such application, if known at the time
of the application to the Court.â
6
Minister of Health and Another v New Clicks South Africa (Pty)
Ltd and Others
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at
paras 68-73.