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[2013] ZACC 29
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Coetzee v National Commissioner of Police and Another (CCT 124/12) [2013] ZACC 29; 2013 (11) BCLR 1227 (CC) (29 August 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 124/12
[2013] ZACC 29
In the matter between:
JACK COETZEE
.............................................................................................
Applicant
and
NATIONAL COMMISSIONER OF POLICE
.....................................
First
Respondent
MINISTER OF SAFETY AND SECURITY
..................................
Second
Respondent
Heard on : 21 May 2013
Decided on : 29 August 2013
JUDGMENT
NKABINDE J (Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Mhlantla
AJ, Skweyiya J and Zondo J concurring):
Introduction
This
is an application for leave to appeal the decision of the Supreme
Court of Appeal on costs awarded against the applicant,
Mr Jack
Coetzee.
1
Also before us is an application for condonation for the late filing
of this application. The appeal before the Supreme Court
of Appeal
by the National Commissioner of Police and the Minister of Safety
and Security
2
(respondents) was against a costs order made by the North Gauteng
High Court, Pretoria
3
(High Court) in an urgent bail application.
Factual
background
The
bail application was a sequel to the arrest and detention of the
applicant by Tshwane Metropolitan Police (Metro Police) officers
on
Sunday, 15 November 2009 at approximately 17h00. The applicant
allegedly failed to stop at a roadblock when the Metro Police
officers signalled to him that he should. He alleged that he
suspected that the individual police officer who attempted to stop
him was not a genuine Metro Police officer. He therefore refused to
stop and drove through a red traffic light. A number of Metro
Police
officers gave chase and forced his vehicle off the road. The
applicant was arrested and thereafter detained at the Pretoria
West
Police Station. At the police station he was charged with “[failing]
to comply with instruction of traffic officer,
crimen injuria
and driving unlicensed and unregistered motor vehicle”.
4
The
applicant’s attorney, Mr Riaan Meyer (Mr Meyer), was given the
phone number of someone whom he thought was the investigating
officer. The person who answered the phone allegedly refused to
identify himself, refused to grant bail and cut the call short.
Attempts by Mr Meyer to get the assistance of the prosecutor were in
vain.
High
Court bail application
On
the same day of the applicant’s arrest, Mr Meyer launched an
urgent bail application before du Plessis AJ in the High
Court.
Affidavits by the applicant’s wife and Mr Meyer were filed in
support of the bail application. The applicant’s
wife
explained the applicant’s personal circumstances and said that
she could afford to pay the sum of R500 if the Court
decided to
release the applicant on bail. Mr Meyer stated, among other things,
that he had contacted someone he thought was the
investigating
officer and asked why he did not grant the applicant bail, and the
latter responded that he was off duty and proceeded
to end the
call.
5
He said that he had asked the person (whom he seemingly thought was
a member of the South African Police Services (SAPS)) why
he did not
offer the applicant bail, bearing in mind the powers granted to him
under the Criminal Procedure Act.
6
At
the bail hearing, the applicant was represented by counsel. There
was a dispute about whether the applicant had requested bail
from
the arresting officer as opposed to the investigating officer. Mr
Meyer testified on behalf of the applicant. The Station
Commissioner, Superintendent Malema, who had been contacted by
Mr Meyer, also testified. Superintendent Malema stated that
when Mr Meyer contacted him, he indicated that he was sleeping, said
that he did not know who the investigating officer was and
that he
had no information in that regard. The following exchange then took
place between the Court, applicant’s counsel
and two witnesses
(Superintendent Malema and Mr Meyer), as transcribed at the bail
application:
“
AJ
[Court]: Why he is not given bail or pays the fine?
SUP Malema: Confusion is caused
by this thing of “RTO” [Administrative Adjudication of
Road Traffic Offences Act 46
of 1998].
AJ [Court]: Do you know any
information about the Metro police who is
involved? Can you tell any
reason why this man is held over night?
SUP Malema: There is no reason.
AJ [Court]: Sup you are here
because I asked you to come its an order that I gave,
no information can be given.
ADV: This is not a schedule 7,
police must exercise lawfully, I submit the
arrest was unlawfully on the
basis that there is physical address; he
should not have been kept
overnight.
AJ [Court]: I intend to give a
rule nisi, order his release all relevant parties must
give reasons:
Who do you think should come and
explain?
ATT [Meyer]: Metro police did
the arrest; police should exercise their discretion in
terms of 341.
They kept on the process that
makes them liable; cost is part of the
rule [nisi].
AJ[Court]: Sup I am going to
release this man drive with them so that this man
can be released, reasons must be
given why they did not allow him to
pay fine or get bail, the person
who is responsible for the arrest.”
Applicant’s
counsel submitted that the offence was not a Schedule 7 offence
7
and that “police must exercise [the discretion to arrest]
lawfully”. He argued that “the arrest was [unlawful]
on
the basis that [the applicant has a] physical address” and
that the applicant “should not have been kept overnight.”
The
High Court ordered (a) the applicant’s release with immediate
effect, and (b) the respondents to provide: (i) written
reasons why
the applicant was not given bail or an opportunity to apply for bail
and to pay a fine, which reasons were to be
presented to the Court
on the return day, 17 November 2009; (ii) the names of the station
commander of the Pretoria West Police
Station who was on duty during
the evening of 15 November 2009, as well as the name of the
investigating officer; and (iii) reasons
why the aforementioned
investigating officer and station commander should not be held
personally liable for the costs of the
bail application.
8
On the return day of the rule nisi (interim order)
Further affidavits were lodged by the assigned investigating officer
employed by the SAPS,
9
Detective Constable Mandla Steven Mtsweni, on the return day, 17
November 2009. He explained that the matter was allocated to
him on
the morning of Monday 16 November 2009, after the applicant’s
release had been ordered.
10
Constable Mtsweni also confirmed that the phone number that was
given to the applicant’s wife belonged to the Metro Police
officer, Constable Frans Moosa Sivayi, who was responsible for the
applicant’s arrest.
11
Based on the information in the SAPS occurrence book, Constable
Sivayi denied any knowledge of the applicant, his wife or Mr
Meyer
asking for bail.
12
Constable Sivayi confirmed the evidence of Constable Mtsweni and
maintained that he “was well within his rights to have
arrested the applicant and [detained] him.”
13
During
oral argument the respondents submitted that the arrest was lawful.
Those who were called to appear on the return day were
ordered to
provide reasons why no members of the SAPS considered the request
for bail and why no action was taken by them or
the station
commander on duty at the time pertaining to the applicant’s
position.
14
The
High Court delivered a judgment on 11 October 2010, approximately 11
months from the return day. It remarked that the “application
was urgently brought on the basis that an arrest was unlawful and
that [the Court] should release the applicant in terms of the
common
law.”
15
The Court held that there was no doubt that the applicant, his wife
and Mr Meyer had requested bail and that it had been refused.
16
Having made these findings regarding the bail application, the High
Court went further and discussed, at length, the lawfulness
of the
arrest and the law pertaining thereto. It dealt with section
35(1)(d) and (f) as well as section 35(2) of the Constitution
17
and held that the provisions of the Criminal Procedure Act
18
regarding arrest should be considered against the background of
these constitutional provisions.
19
Relying on certain authorities
20
the Court concluded that the arrest and detention were unlawful.
21
The
High Court cited various authorities including
Swartbooi and
Others v Brink and Others
as a justification for its costs
order.
22
It then ordered certain members of the SAPS and one Metro Police
officer to pay the costs of the applicant as well as the costs
of
the respondents
de bonis propriis
(from personal funds), on
the scale of attorney and own client.
23
The Court reasoned that the applicant’s constitutional rights
had been violated by the unlawful arrest and detention. It
further
remarked:
“
For
the public . . . to be forced to pay for the actions of wilful
,
mala fide
and
arrogant public officials, who have without hesitation breached the
Constitution, the fundamental rights of the applicant, and
who have
acted in violation of their obligations of the Constitution, is
simply not acceptable.
. . .
Any public official who knows
that he would be ordered personally to pay costs of any court
application or litigation flowing from
his unlawful actions, instead
of the taxpayer having to carry such a burden, and such an official
not suffering any consequences
therefrom, will think twice before
acting in the manner and fashion those responsible in this matter had
acted.
. . .
[T]he time has come to order
such public officials, not only to right the wrong that has been
caused, and not only to avoid the
taxpayer to fund their unlawful
frolics . . . but also to act as a deterrent to public officials in
future, to grant an order in
terms of which all the costs of the
litigation caused should be carried by those responsible. . . .
Because senior superintendent
Moodley, his assistant, superintendent
Klopper, Captain Nhlazo and inspector Dulebu, as well as Metro Police
constable Mandla Steven
Ntsweni had been joined as respondents
to the proceedings, because they were represented by counsel and also
because they opposed
the relief sought and even argued that the
arrest and detention was lawful, I have no hesitation to come to the
conclusion that
a costs order can and should be made against them.
They infringed upon the constitutional right of the applicant not to
be detained
unlawfully, and therefore his right to freedom, and also
did not act in accordance with their constitutional obligations and
imperatives
as set out in the Constitution.
I also take further into account
that they did not play open cards with this court. I have already
explained above their approach
to the court and their approach to
disclosure of all the relevant facts to this court. In my view this
is an important factor that
weighs heavily against the persons
referred to above. They should never have opposed the matter, they
should not have attempted
to argue that the arrest and detention was
in fact lawful, and they should never have attempted to justify their
actions. The simple
fact that they had attempted to do so illustrates
the high-handed arrogance with which they have acted and with which
they acted
in this court.”
24
The
High Court dismissed the respondents’ application for leave to
appeal.
Supreme
Court of Appeal
The
respondents successfully petitioned the Supreme Court of Appeal. In
their notice of appeal they sought an order varying the
decision of
the High Court and replacing it with one discharging the rule nisi
and ordering the applicant to pay the costs of
the application. In
upholding the appeal, the Supreme Court of Appeal found that there
was no evidence before the High Court
that the applicant, his wife
or Mr Meyer ever asked that he be granted bail or that he be
released on warning.
The
Supreme Court of Appeal made observations on the invocation by the
High Court of the
interdictum de libero homine exhibendo
, the
common-law remedy used to release a person being unlawfully
detained.
25
The Court remarked that it found it “difficult to comprehend
how a refusal by a police officer to grant bail could render
an
otherwise lawful arrest and subsequent detention unlawful.”
26
Having dealt with the jurisdictional facts necessary for an arrest
under section 40 of the Criminal Procedure Act, the Court
held that
the interdict was inappropriate because it is a remedy employed only
when the detention of the person seeking release
was unlawful
ab
initio
(from the beginning).
27
Regarding
costs, the Supreme Court of Appeal expressed concern that
“unprecedented punitive costs orders” were made
at all
and said that the High Court’s reasoning in that regard was
untenable.
28
The Supreme Court of Appeal upheld the appeal with costs including
the costs of two counsel, set aside the order of the High
Court and
replaced it with an order dismissing the application with costs.
In this Court
The applicant sought leave to appeal the costs order awarded by the
Supreme Court of Appeal on appeal. The nub of his challenge
was that
the principle, that persons unlawfully detained ought to be
released, should be interpreted and understood in conjunction
with
his rights under section 35(1)(f) of the Constitution to be released
from detention if the interests of justice permit,
29
to challenge the lawfulness of the detention and, if the detention
is unlawful, to be released in terms of section 35(2)(d) of
the
Constitution.
30
The applicant argued that he was unlawfully arrested and detained.
He challenged the correctness of the factual and legal findings
made
by the Supreme Court of Appeal
31
and took issue with the finding that the lawfulness of the arrest
was never in dispute before the High Court. The applicant maintained
that he brought an urgent application in the High Court “on
the basis that the arrest was . . . unlawful.” He contended
that he was thus unlawfully detained and requested to be released in
terms of the
interdictum
de libero homine exhibendo
.
The respondents opposed the application.
Issues
It is
necessary to deal with two preliminary questions after which I will
determine the merits – regarding the competency
of the costs
award by the Supreme Court of Appeal. The merits will be considered
only if the jurisdictional requirements for
granting leave to appeal
are met. The first question relates to condonation of the late
filing of this application and the second
to whether leave to appeal
should be granted. Before I deal with the preliminary issues, it
needs to be stressed that although
the applicant framed his
application as relating to the finding on the costs order as well as
other findings pertaining to his
arrest and detention, the decision
appealed against is only about the costs award. This was conceded
during oral argument, and
rightly so, since the application relates
to the costs order and to nothing else. For this reason, nothing
need be said about
the correctness or otherwise of the Supreme Court
of Appeal’s findings regarding the applicant’s arrest
and detention.
32
I emphasise that the urgent application in the High Court was a bail
application for the release of the applicant and that that
bail
application was not brought “on the basis that the arrest and
detention were unlawful” as was stated by the
High Court.
33
Should condonation be granted?
The
applicant sought condonation for the delayed lodging of this
application. He explained that he was not notified of the outcome
of
the proceedings in the Supreme Court of Appeal and that he had
approached a different attorney for advice on the implications
of
the decision of the Supreme Court of Appeal. The respondents did not
oppose the condonation application. The explanation proffered
is
satisfactory. The delay is short-lived
34
and the respondents have not been prejudiced thereby. I would
therefore condone the delayed filing of the application for leave
to
appeal.
Should leave to appeal be granted?
It is
now settled that this Court will grant leave to appeal if a
constitutional matter is raised or if the issue is connected
with a
decision on a constitutional matter
35
and it is in the interests of justice that the Court should hear the
appeal.
36
For our purposes, the first question for determination is whether a
matter of genuine constitutional import has indeed arisen.
Differently put, whether the first jurisdictional requirement is
met.
Does
the case raise a constitutional matter?
In
deciding the question regarding this jurisdictional aspect, it is
critical to appreciate the nature of the issue involved.
37
Also, merely labelling the litigation as constitutional and dragging
in specious references to sections of the Constitution would,
of
course, not be enough in itself to raise a constitutional issue.
38
In
Biowatch,
this Court remarked:
“
The
issues must be genuine and substantive, and truly raise
constitutional considerations relevant to the adjudication. The
converse
is also true, namely, that when departing from the general
rule a court should set out reasons that are carefully articulated
and
convincing. This should not only be of assistance to an appellate
court, but would also enable the party concerned and other potential
litigants to know exactly what had been done wrongly, and what should
be avoided in the future.”
39
In
Stainbank v SA Apartheid Museum at Freedom Park and Another
,
40
the High Court had made an order for costs on the scale of attorney
and own client against the applicant and, in the event of
the
applicant being unable to pay, costs
de
bonis propriis
against the applicant’s attorney on the same scale. In the
application for leave to appeal against the competency of the
costs
awards, this Court, per Khampepe J, said:
“
[I]f
the
issue
of
bias is before us, a costs order arising therefrom would be connected
with that
issue
and we would therefore have the requisite jurisdiction”.
41
(Emphasis added.)
The Court
held that the costs order was intricately interwoven with the bias
challenge. It concluded that the costs order was therefore
an issue
connected with a decision on constitutional matters in terms of
section 167(3)(b) of the Constitution.
42
It
is, therefore, important to appreciate the “nature of the
proceedings”
43
or “the character of the ligation”
44
involved, and “the nature of the issues”
45
raised in each and every case in which costs awards are challenged.
In what follows, I set out reasons why the costs award in
this case
does not raise a constitutional issue.
As is
evident from the transcript of the urgent bail application and the
affidavits lodged by the applicant’s wife and Mr
Meyer on 15
November 2009, it cannot be gainsaid that the proceedings were for
the release of the applicant on bail. The proceedings
are criminal
in nature. Needless to say, generally costs orders in such
proceedings, where the matter relates directly to criminal
proceedings instituted by the state, are not made.
46
However, costs orders in criminal proceedings are not always
incompetent. For example, in a case of an unsuccessful appeal
brought by the state, the court dismissing the appeal may order the
state to pay the costs to which the respondent may have been
put in
opposing the appeal.
47
We are not engaged with such a case. Notably, no urgent application
was ever brought on the basis that the arrest of the applicant
was
unlawful or for the applicant’s release in terms of the
common-law
interdictum
de libero homine exhibendo
, as
intimated by the High Court.
48
Other
than relying on what the High Court stated in the opening paragraph
of its judgment, it is not suggested by the applicant
that his
complaint in the urgent application was about the unlawfulness of
his arrest and detention. In any event, any such suggestion
would
not be supported by the telling evidence, part of which is set out
in [5] above. Moreover, counsel for the applicant asked
Mr Meyer
during the bail hearing what the basis of the application was, to
which question he responded that the applicant’s
wife told him
that they “came from [Hartebeespoort Dam] when the Metro
Police told him to stop and he told them that he
will stop at the
nearest police station”. The High Court then asked what the
normal procedure to be followed was for the
offences in question, to
which Mr Meyer answered that it would be normal for the police to
ask the applicant to pay a fine of
R500 or R1000.
It is
indeed correct that the level of crime in our country “should
not justify a departure from the democratic and constitutional
principles . . . safeguarding the population from any excess use of
power and deprivation of freedom by government institutions
and
authorities.”
49
However, having regard to the character of the litigation in the
High Court and the manner in which the costs award was made
by the
High Court, it cannot be said that the costs in issue arose from
proceedings in which a challenge against the excessive
use of power
or the deprivation of human dignity and freedom was made.
It
bears repeating that the question concerning the unlawfulness of the
arrest was raised by the applicant’s counsel for
the first
time during oral submissions at the urgent bail hearing and that
became a clasp on which much of the reasoning of the
High Court was
pegged.
Additionally,
a challenge to the findings of the Supreme Court of Appeal on the
basis that it was factually incorrect is neither
a constitutional
matter nor an issue connected with a decision on a constitutional
matter.
50
In the circumstances of this case, the costs award in the urgent
bail proceedings cannot be said to be connected with a decision
on
constitutional issues.
I
conclude that the costs award which is the subject of the appeal is
not a constitutional matter or an issue connected with a
decision on
a constitutional matter over which this Court has jurisdiction under
section 167(3)(b) of the Constitution. In the
view I take of the
matter, I consider that it is not necessary to determine whether the
interests of justice warrant a hearing.
Accordingly,
I would refuse leave to appeal.
Order
[30] In the result, the following order is made:
1. Condonation is granted.
2. Leave to appeal is refused.
3. There is no order as to costs.
For
the Applicant: Advocate GC Muller SC and Advocate JJ Gerber
instructed by Marius Coertze Attorneys.
For
the Respondents: Advocate SJ Maritz SC and Advocate TP Krüger
instructed by the State Attorney
.
1
National
Commissioner of Police and Another v Coetzee
[2012] ZASCA 161
;
2013 (1) SACR 358
(SCA) (Supreme Court of Appeal judgment). It is
worth mentioning that the applicant framed his application to this
Court in terms
of the finding on the costs order as well as other
findings made pertaining to his arrest and detention. It must be
emphasised
that what may be appealed against is only the order made
by the court a quo.
2
These
respondents, instead of the State, are cited as such in the
transcript of the urgent bail application and consistently in
the
subsequent proceedings. It is not clear from the record on what
basis the two respondents were cited as parties during the
bail
proceedings.
3
Coetzee
v National Commissioner of Police and Others
[2010] ZAGPPHC 155;
2011 (2) SA 227
(GNP) (High Court judgment).
4
Id
at para 9.
5
As
will become apparent later in the judgment, it emerged that the
investigating officer was only appointed to investigate the
case
after the hearing of the urgent application in the High Court and
the subsequent release of the applicant.
6
51
of 1977.
7
Schedule
7 of the Criminal Procedure Act, which deals with “lesser
offences” when compared to those contemplated in
Schedule 1,
includes public violence, culpable homicide, bestiality, assault
involving the infliction of grievous bodily harm,
any offence
relating to extortion, fraud, forgery or uttering if the amount of
value involved in the offence does not exceed
R20 000, and any
conspiracy, incitement or attempt to commit any offence referred to
in the schedule. Schedule 1 offences include,
inter alia, sedition,
public violence, murder, rape, sexual assault, robbery, kidnapping
and childstealing.
8
The
Order reads:
“
1. The respondents are
ordered to immediately release the applicant from custody at the
Pretoria West Police Station, or any other
place where the applicant
may be held.
2. The respondents are called up to provide written
reasons why the applicant was not given bail or an opportunity to
apply for
bail, and why the applicant was not given an opportunity
to pay a fine for the alleged contravention committed, which reasons
shall be presented to the above Honourable Court and judge, in the
urgent court on 17 November 2009.
3. The respondents are ordered to provide this Court on
17 November 2009 with the names of the station commander of the
Pretoria
West Police Station that was on duty during the evening of
15 November 2009, as well as the name of the investigating officer
of the applicant.
4. The respondents are further ordered to provide
reasons why the investigating officer and the station commander
aforesaid, should
not be held personally liable for the costs of
this application.”
9
The
investigating officer was appointed on 16 November 2009, after the
order releasing the applicant had been issued.
10
High
Court judgment at para 10.
11
Id.
He completed all the relevant documents which included the SAPS 3M
Form (the crime docket), the SAPS 3MB documents (the statement),
the
preamble to the statement, the SAPS Form 21 (a report on the
investigation of the crime dated 15 November 2009) and the SAPS
6
checklist (see in this regard High Court judgment at para 15).
12
High
Court judgment at paras 11-2.
13
Id
at para 14.
14
Id
at para 19.
15
Id
at para 1.
16
Id
at para 20.
17
Id
at paras 28-9.
18
The
provisions of the Criminal Procedure Act referred to include section
40. Section 40 provides for arrest by a peace officer
without a
warrant. It provides, in relevant part:
“
(1) A peace officer may
without warrant arrest any person—
who commits or attempts to commit any offence in his
presence;
whom he reasonably suspects of having committed an
offence referred to in Schedule 1, other than an offence of escaping
from lawful
custody”.
19
High
Court judgment at para 30.
20
For
example,
Louw and Another v Minister of Safety and Security and
Others
2006 (2) SACR 178
(T).
21
High
Court judgment at paras 21 and 50-1.
22
[2003]
ZACC 25
;
2006 (1) SA 203
(CC);
2003 (5) BCLR 502
(CC).
23
The
High Court order reads:
“
1. The following persons
shall pay the costs of the applicant as well as the costs of the
first and second respondent
de
bonis propriis
on
the scale of attorney and own client:
the station commander of the Pretoria West Police
Station: Senior Superintendent Moodley;
Superintendent Klopper of the Pretoria West Police
Station;
Captain Nhlazo of the Pretoria West Police Station;
Inspector Dulebu of the Pretoria West Police Station;
Tshwane Metro Police Constable Frans Moosa Sivayi.
2. In the event, and only in the event of all execution
steps having been taken, finalised and exhausted against the
abovementioned
officials, the first and second respondents shall be
ordered to pay any further outstanding costs of the applicant on a
scale
of attorney and own client.”
24
High
Court judgment at paras 96-8 and 100.
25
This
remedy is well-established in our law and is translated to mean “to
produce in public (i.e. in court) and to make it
possible to see and
touch the man”. The order or writ
de
libero homine exhibendo
may be applied where a person has been unlawfully deprived of his or
her freedom and is analogous to the writ of
habeas
corpus ad subjiciendum
(
habeas
corpus
) of the
English Law. Latin for “that you have the body”, the
writ
of
habeas
corpus
originated
as a means to protect individuals from illegal detention and is used
to bring a prisoner or other detainee before
the court to determine
if the person’s imprisonment or detention is lawful.
26
Supreme
Court of Appeal judgment at para 12.
27
Id
at para 15.
28
Id
at para 17.
29
Section
35(1)(f) provides:
“
Everyone who is arrested for
allegedly committing an offence has the right to be released from
detention if the interests of justice
permit, subject to reasonable
conditions.”
30
Section
35(2)(d) provides:
“
Everyone who is detained,
including every sentenced prisoner, has the right to challenge the
lawfulness of the detention in person
before a court and, if the
detention is unlawful, to be released”.
31
He
said that the findings that he at no point asked for bail, that the
lawfulness of the arrest was never an issue before the
High Court
and that the question whether the arresting officer had properly
exercised his discretion did not arise were incorrect.
32
Whilst
the applicant sought “leave to appeal against a judgment and
order that was granted by the Supreme Court of Appeal
. . . in terms
of rule 19(2) of the Constitutional Court rules, including certain
findings that were made by that court”,
it is trite that an
application for leave to appeal is aimed at the order itself.
Indeed, as Mpati P pointed out in the judgment
a quo, the appeal was
against the costs order made by the High Court. See Supreme Court of
Appeal judgment at para 1.
33
High
Court judgment at para 1.
34
The
Supreme Court of Appeal judgment was delivered on 16 November 2012
and the application was lodged in this Court on 11 December
2012. In
terms of Rule 19(2) of the Constitutional Court Rules the
application for leave to appeal ought to have been lodged
within 15
days of the order against which the appeal is sought. This means
that the application was filed two days late.
35
Section
167(3)(b) of the Constitution provides that the Constitutional Court
may decide only constitutional matters, and issues
connected with
decisions on constitutional matters.
36
Section
167(6) of the Constitution read with Rule 20 of the Constitutional
Court Rules in relation to appeals from the Supreme
Court of Appeal.
See also
Abahlali baseMjondolo Movement SA and Another v Premier
of the Province of KwaZulu-Natal and Others
[2009] ZACC 31
;
2010
(2) BCLR 99
(CC) at para 11.
37
See
Biowatch Trust v Registrar, Genetic Resources and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC)
(
Biowatch
) at para 10 and
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) (
Boesak
).
38
See
Biowatch
above n 37 at para 25 and
Affordable Medicines
Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 138, with the
overarching principle of not discouraging the pursuit of
constitutional claims.
39
Biowatch
above n 37 at para 25.
40
[2011]
ZACC 20
;
2011 (10) BCLR 1058
(CC).
41
Id
at para 27.
42
Id.
43
See
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO
and Others
[1996] ZACC 27
;
1996 (2) SA 621
(CC);
1996 (4) BCLR
441
(CC) at para 3, also cited with approval in
Biowatch
above
n 37 at paras 7-8.
44
Biowatch
above n 37 at para 20.
45
Id
at para 16.
46
See
Sanderson v Attorney-General, Eastern Cape
[1997] ZACC 18
;
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC) at para 44 and
Buchanan v Marais NO and Others
[1991] ZASCA 19
;
1991
(2) SA 679
(A) at 684H-685B. See also
Harksen v President of the
Republic of South Africa and Others
[2000] ZACC 29
;
2000 (2) SA
825
(CC),
2000 (5) BCLR 478
(CC) at para 30 and
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 59.
47
Section
311(2) of Criminal Procedure Act provides:
“
If an appeal brought by the
attorney-general or other prosecutor under this section or
section 310 is dismissed, the court
dismissing the appeal may
order that the appellant pay the respondent the costs to which the
respondent may have been put in
opposing the appeal, taxed according
to the scale in civil cases of that court: Provided that where the
attorney-general is the
appellant, the costs which he is so ordered
to pay shall be paid by the State.”
48
High
Court judgment at para 1.
49
High
Court judgment at para 43.
50
See
Boesak
above n 37 at para 15.