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[2010] ZACC 15
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Greenfields Drilling CC and Others v Registrar of the Supreme Court of Appeal and Others (CCT 53/10) [2010] ZACC 15; 2010 (11) BCLR 1113 (CC) (7 September 2010)
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 53/10
[2010]
ZACC 15
In the matter between:
GREENFIELDS DRILLING
CC.................................................................. First
Applicant
MAGARETHA
MARIA
HIBBERS.................................................... Second
Applicant
MARIUS
HIBBERS.................................................................................... Third
Applicant
and
REGISTRAR
OF THE SUPREME
COURT OF
APPEAL.............................................................................First
Respondent
GOVERNMENT OF THE REPUBLIC
OF SOUTH
AFRICA..........................................................................Second
Respondent
MINISTER FOR JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT...............................................Third
Respondent
FIRSTRAND BANK
LIMITED...........................................................Fourth
Respondent
Decided
on : 7 September 2010
JUDGMENT
THE COURT:
1] The applicants wish to
appeal against a decision of the Supreme Court of Appeal refusing
them leave to appeal
1
against a High Court judgment.
2
They claim to be hamstrung in making the application for leave to
appeal to this Court because the Supreme Court of Appeal gave
no
reasons for refusing leave to appeal. They therefore apply to this
Court for direct access for the purpose of determining the
constitutionality of the practice of the Supreme Court of Appeal not
to give reasons for the refusal of applications for leave
to appeal.
2] The issue raised by the
applicant was, subject to one qualification, decided in this Court in
Mphahlele
.
3
This Court held that it was not inconsistent with the Constitution
for the Supreme Court of Appeal not to furnish reasons for
its
decisions refusing leave to appeal to it. The qualification just
referred to is that the position might well be different
if a
constitutional matter is involved and the Supreme Court of Appeal is
not the court of final instance, and finds expression
in the
following passage:
“
The refusal of leave to
appeal by the Supreme Court of Appeal is not appealable to any other
Court.
The failure to furnish reasons for a decision made
under section 21 of the Supreme Court Act cannot prejudice the
unsuccessful litigant
in taking the matter further. Except in
constitutional matters, the end of the litigation road has been
reached.”
4
(Footnote omitted.)
3] The applicants do not
claim that any constitutional issue will arise in the contemplated
application for leave to appeal to this
Court, and none appears from
their papers. In the circumstances, the application for direct
access must be adjudicated on the
basis that the Supreme Court of
Appeal was the court of final instance in the application for leave
to appeal that served before
it. The application for direct access
must accordingly be refused.
4] It is therefore not
necessary to consider the question whether the Supreme Court of
Appeal is obliged to furnish reasons when
it refuses leave to appeal
in a case in which a constitutional issue arises.
Order
5] In the result the
following order is made:
The application for
direct access is refused.
Ngcobo CJ, Moseneke
DCJ, Brand AJ, Cameron J, Froneman J, Khampepe J,
Mogoeng J, Nkabinde J, Skweyiya J
and Yacoob J.
1
The
order refusing leave to appeal was issued on 12 March 2010 under
case no 624/2009.
2
FirstRand
Bank Limited t/a Wesbank v Greenfields Drilling CC and Others
,
case no 7689/2008, North Gauteng High Court, Pretoria, 21 May 2009,
unreported.
3
Mphahlele
v First National Bank of SA Ltd
[1999] ZACC 1
;
1999 (3) BCLR 253
(CC);
1999 (2) SA 667
(CC).
4
Id
at para 14.