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[2013] ZACC 47
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Director- General Department of Home Affairs and Another v Mukhamadiva (CCT 61/13) [2013] ZACC 47; 2014 (3) BCLR 306 (CC) (12 December 2013)
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 61/13
[2013]
ZACC 47
In
the matter between:
DIRECTOR-GENERAL
DEPARTMENT OF
HOME
AFFAIRS
….............................................................................
First
Applicant
MINISTER
OF HOME AFFAIRS
…...............................................
Second
Applicant
and
VIOLETTA
MUKHAMADIVA
................................................................
Respondent
Decided
on: 12 December 2013
JUDGMENT
MOSENEKE
DCJ (Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ,
Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J
concurring):
Introduction
[1]
This case concerns whether the Western Cape
High Court, Cape Town (High Court), having found that nobody was
guilty of contempt
of court arising from the failure to comply with
its order, could still direct one of the parties to provide it with a
report to
be examined by the High Court with a view to giving an
advisory opinion.
[2]
The matter comes before this Court as an
application for leave to appeal, following the refusal to grant leave
by the Supreme Court
of Appeal. The first applicant is the
Director-General in the Department of Home Affairs
(Director-General). The second
applicant is the Minister of
Home Affairs (Minister). They cite as the respondent, Ms Violetta
Mukhamadiva, a national of Uzbekistan,
who was refused entry into the
Republic of South Africa on 6 November 2011. She did not
participate in the proceedings before
this Court and as a result no
opposing papers were filed. Accordingly, this matter must be
determined with reference to the
papers filed by the applicants and
the written argument lodged by their counsel and counsel acting at
this Court’s request.
[3]
In
view of the fact that the respondent did not participate in these
proceedings, this Court sought assistance from counsel who
represented her in the High Court. We are grateful to all
counsel for the helpful written argument. As the Rules
stipulates,
this application was determined without the hearing of
oral argument.
[1]
Factual
background
[4]
On Sunday 6 November 2011, Ms Mukhamadiva
arrived at Cape Town International Airport, on board a Turkish
Airlines flight.
She was refused entry into South Africa by Mr
Grobler, an immigration officer in the Department of Home Affairs
(Department).
Aggrieved by this decision, she launched an
application in the High Court, on an urgent basis.
[5]
The High Court issued an order in the
following terms:
“
1.
That [the Director-General and Minister] shall appear before this
Court at 10h00 on Monday 7 November 2011 together with
[Ms
Mukhamadiva] in order to show cause why [Ms Mukhamadiva] should not
be permitted to enter the Republic of South Africa on appropriate
conditions.
2.
That [the Director-General and Minister of Home Affairs] permit
[Ms Mukhamadiva] to consult with her legal representatives
immediately.
3.
Costs shall stand over for later determination.”
[6]
But
before this order was executed at the airport, Ms Mukhamadiva
returned to her country of origin.
*
Flowing from her departure, the application she had instituted
against the Director-General and the Minister was not pursued
further.
The proceedings took a turn in the direction of an inquiry
into whether officials in the Department were guilty of contempt of
court. This arose from the fact that Ms Mukhamadiva had been
returned to her country of origin despite the court order.
[7]
It
is apparent from the papers that airline companies, on whose flights
passengers come into South Africa, are responsible for returning
passengers to where they came from in the event of them being refused
entry into the country. This is what happened here. When
Ms
Mukhamadiva was not admitted into South Africa, Turkish Airlines had
to take her back to Uzbekistan. At the time she boarded
the
return flight, none of the parties except Mr Grobler was aware of the
court order issued by the High Court.
*
That order reached the other relevant officials at Cape Town
International Airport after her departure.
[8]
The High Court, of its own accord,
investigated the circumstances that led to the order failing to
achieve its objective. It summoned
Mr Grobler to appear before it on
21 November 2011. He was required to show cause why he should
not be committed for contempt
of court for failing to implement the
order in question. Ms Mukhamadiva’s attorneys and Mr Grobler
testified at the hearing
on 21 November 2011.
[9]
In
an
ex
tempore
judgment,
[2]
the High Court
found that Mr Grobler was not guilty of contempt of court. Since Ms
Mukhamadiva was no longer pursuing the application
and the contempt
of court enquiry had been concluded, ordinarily the matter should
have been put to rest. But the High Court
issued a further
order directing the Head of Immigration in the Western Cape to file a
report in which the following issues were
to be addressed:
(a)
the procedures adopted by departmental
officials when served with a court order in a case of urgency; and
(b)
whether a plan has been adopted or will be
adopted to educate immigration officials in compliance with court
orders.
[10]
The order that required a report to be
filed was issued by the High Court, acting on its own initiative.
Indeed the report was furnished
to the Court, setting out the
procedures followed in executing a court order. Importantly,
the report recorded that there
is a cluster of agencies operating at
Cape Town International Airport that includes officials from the
Department. Each of
these agencies has a separate role to play.
The report pointed out, among other things, that access to the
international transit
zone is exercised by Border Police for security
reasons and that departmental officials are not allowed entry into
that area without
security clearance. This generally means that, if a
court order has to be executed in the international transit zone,
only members
of the Border Police may implement the order.
[11]
The High Court was not happy with parts of
this report, which it interpreted as saying that our Constitution and
laws did not apply
to some areas of the Cape Town International
Airport. The High Court addressed a letter to the parties’
counsel, asking them
to file argument on a specific hypothetical
question posed by the Court against the understanding that it is only
members of the
Border Police and persons with security clearance who
may enter the international transit zone. The High Court formulated
the hypothetical
question in these terms:
“
The
question that I wish to have addressed, particularly with reference
to the International Civil Aviation Organisation, is how
a court
order could be enforced in the following circumstances. Assume
a parent of a toddler approached the court as a matter
of urgency to
prevent her ex-husband from secreting her child out of the country.
An order is granted on an interim basis that
is subject to a rule
nisi on a 24 hour date of return. How could such a court order be
implemented in light of the discussions
in which I have made
reference concerning the [Convention on International Civil
Aviation]?”
[12]
This court-driven enquiry into hypothetical
issues escalated into a formal hearing on 19 March 2012. At the
request of the High
Court, counsel for the parties were asked to file
written argument before that date. On 19 March 2012, oral argument
was presented
to the High Court on its hypothetical question.
[13]
On
23 October 2012, the High Court delivered a judgment
[3]
on the hypothetical issue. But in its judgment the Court also
criticised the report filed by the Head of Immigration. The Court
found, incorrectly, that the report suggested that “territorial
laws of a country do not apply in certain parts of the airport”.
[4]
The Court held that the Convention on International Civil Aviation
does not provide so. In relevant part the judgment reads:
“
[The
report] . . . is manifestly flawed. It cannot, either under
international law nor under the Constitution, justify the
approach to
the enforcement of court orders that [the Head of Immigration]
outlined therein. There is case law which dictates that
the exact
opposite approach should be adopted. Were [the Head of Immigration’s]
approach to be followed, it would mean that
many orders of our courts
given on an urgent basis, and dealing for example, with the abduction
of children or other forms of criminal
activity would be stymied by
the Department of Home Affairs which it must be emphasised is not
above the law.”
[5]
[14]
The judgment does not make a specific
order. Instead, it concludes by stating:
“
For
these reasons this judgment will be made available to both
respondents with the objective that an adequate policy reflecting
the
Department’s commitment to the Constitution and the rule of law
be followed in the future. It will also be made
available to
the South African Human Rights Commission with a view to ensuring
that it assists the Department, if necessary, and
helps promote the
Department’s respect for the rule of law, within the specific
context of this kind of case.”
[6]
[15]
On 15 November 2012, the applicants sought
leave to appeal against the order from the High Court. In a judgment
delivered on 3 January
2013, the High Court refused leave. The
Court reasoned that, because its judgment contained no order and
amounted to nothing
more than an advisory opinion, it was not
appealable. The Court also held that there was no merit in the
grounds of appeal.
A petition to the Supreme Court of Appeal
was dismissed on 24 April 2013, hence the present application.
[16]
In my judgement, leave to appeal should be
refused because:
(a)
the “order” of the High Court is not appealable;
(b)
there is no live issue between any of the parties;
(c)
any order made by this Court will have no practical effect; and
(d)
there are no compelling factors that nonetheless make it in the
interests of justice to hear the appeal.
Is
the High Court order appealable?
[17]
Our
courts have had many occasions to express themselves on when an order
of court is appealable.
[7]
For
instance, in
Ntshwaqela
it was stated:
“
When
a judgment has been delivered in Court, whether in writing or orally,
the Registrar draws up a formal order of Court which
is embodied in a
separate document signed by him. It is a copy of this which is
served by the Sheriff. There can be
an appeal only against the
substantive order made by a court, not against the reasons for
judgment.”
[8]
[18]
In
Von Abo
the Court stated:
“
Several
considerations need to be weighed up, including whether the relief
granted was final in its effect, definitive of the rights
of the
parties, disposed of a substantial portion of the relief claimed”.
[9]
[19]
The
following similar considerations are set out in
Zweni
:
[10]
the judgment must be final in effect and not open to change by a
court of first instance; it must be definitive of the rights of
the
parties; and it must dispose of a substantial portion of the relief
sought in the main proceedings.
[20]
The
applicants contend that the High Court made “an operative
injunctive order”, which is appealable. They submit that
it
amounts to an order, the character of which is “a structural or
quasi-structural interdict”. They submit that to
ascertain the
purpose and intention of an order, it needs to be considered in the
light of the judgment as a whole to fully grasp
the reach and effect
of the order.
[11]
[21]
In making this submission, the applicants
seem to disregard the judgment of the High Court dismissing their
application for leave
to appeal. In it, the High Court stated
that—
“
[the
judgment] did not decide a live dispute between the parties, nor did
it order the [applicants] to do or refrain from doing
anything. . .
.[I]t merely comments on the approach followed by the Department . .
. without making any binding findings about
the illegality of any
policies . . . or conduct”.
[12]
[22]
It is quite telling that the respondent in
the High Court is not part of this application for leave to appeal.
Thus the application
is unopposed. This is hardly surprising.
There is no residual dispute between the applicants and
Ms Mukhamadiva.
As a result, the Court requested the Cape
Bar Council to recommend counsel to assist it in coming to a proper
decision.
[23]
Counsel
appointed by the Court submitted that the High Court judgment is not
appealable. He referred to the Supreme Court
of Appeal decision
of
Von
Abo
[13]
where the principles relevant in determining whether an order is
appealable were set out.
[14]
Counsel also referred to
ITAC
where it was also observed that, ordinarily when a court considers an
application for leave to appeal, its reasons to grant or
refuse leave
often serve as additional reasons for the original order. The
additional reasons sometimes clarify the ambit
and effect of the
original order.
[15]
Here
too, the High Court’s judgment dismissing the application for
leave to appeal, which the applicants seem not to
place much weight
on, is important to the question of appealability. It discloses
the purpose and ambit of the “order”.
[24]
The application for leave to appeal setting
aside what the applicants call an order of the High Court must fail.
The judgment made
no specific order, and simply reflected on the
report and legal position surrounding the enforcement of court orders
in international
airports. There was no basis upon which the
applicants could appeal the judgment of the High Court. The
High Court
wrote a judgment in response to the report the
Director-General had furnished and the submissions made by the
parties on the hypothetical
question it had put to them. The stated
objective of the judgment was to assist the Director-General in
formulating a policy that
complied with the Constitution and the rule
of law in the enforcement of court orders. At best, the judgment
proffered by the High
Court was advisory in nature. This is
clear from the High Court’s subsequent judgment dismissing the
application for
leave to appeal. Further, there is no merit in the
applicant’s contention that the judgment of the High Court
amounts
to an operative injunctive order. As is plain from
paragraph 21 of its judgment, that Court did not order anybody to do
anything.
[25]
Besides the insurmountable difficulty
facing the applicants in seeking to appeal against the reasons in a
judgment and not against
an order of the High Court, no order
susceptible to an appeal was made. This conclusion alone is
dispositive of the application
for leave to appeal. I
nonetheless consider it expedient to explore the other elements that
go to the interests of justice.
Is
there a live dispute?
[26]
In applying for leave to appeal in the High
Court, the applicants contended that that Court had no jurisdiction
to continue to enquire
into the departmental policies after Ms
Mukhamadiva had left the country and Mr Grobler had been acquitted on
a charge of contempt
of court. Persisting with the argument,
the applicants submitted that, with the acquittal of Mr Grobler, the
matter should
have been taken to have been finalised as there was no
further dispute between the parties. Invoking the principle
that once
a court has pronounced a final judgment it becomes
functus
officio
, the applicants contended that,
because the High Court had finally exercised its jurisdiction over
the case, its authority over
it had ceased.
[27]
The applicants question whether in the
specific circumstances of this case the High Court, having finally
exercised its jurisdiction
on the matter and acquitted Mr Grobler
on a charge of contempt of court, had authority to enquire into the
policies of the
Department.
[28]
It
is a fundamental principle of our law that, once a court has finally
pronounced its judgment on a case, its authority over that
case
ceases.
[16]
This accords with
the principle of finality in litigation, a basic principle of our
law. This principle applies with equal force
to constitutional
litigation.
[17]
The High Court
erred in its reliance on section 172(1)(b) of the Constitution for
the proposition that a court may require government
departments to
file reports in the circumstances that occurred in this case. Section
172(1)(b) does not change the position.
[18]
On the contrary section 172(1) fortifies this principle.
[29]
The section obliges courts when deciding a
constitutional matter to declare conduct or law inconsistent with the
Constitution invalid.
Section 172(1)(b) in particular empowers
a court to make any order that is just and equitable, including an
order suspending the
declaration of invalidity or limiting the
retrospective effect of the declaration of invalidity. Implicit in
this provision is
the fact that the order granted must be just and
equitable to the parties to the litigation. The remedial power in
section 172
is exercised when resolving a live dispute between
protagonist parties in litigation.
[30]
The section does not authorise any court to
reopen a case once it has been finalised. Barring well-defined
special circumstances,
our courts have no power to pronounce on
issues once a final judgment is given. Those circumstances are not
present here.
The principle of finality in litigation is of
importance in constitutional cases as well. It is not
permissible to have litigation
in a particular case extended beyond
the final judgment, except where a structural interdict has been
issued.
[31]
What is more, the High Court here did not
reconsider an earlier order. Rather, it adopted a different course
altogether after finalising
the contempt of court enquiry. It
proceeded to enquire into the constitutionality of the Department’s
policies as set
out in the report. The filing of this report in
turn was not required, to monitor progress made in resolving any live
dispute.
The circumstances in which the report was asked for by
the High Court were unusual.
[32]
It was not competent for the High Court, in
the present circumstances where no live dispute existed between the
parties, to issue
an order requiring a report; raise a hypothetical
question and direct the parties to present argument; and deliver a
judgment that
was intended to be an advisory opinion. And it
would not be appropriate for this Court to decide a matter where no
dispute
exists.
Will
any order made by this Court have a practical effect?
[33]
Long
before our constitutional dispensation, the principle has always been
clear: courts should not decide matters that are abstract
or academic
and which do not have any practical effect either on the parties
before the court or the public at large. In
Geldenhuys
[19]
Innes CJ stated, in the context of the granting of declaratory orders
where no rights have been infringed, that courts of law exist
to
settle concrete controversies and actual infringements of rights, and
not to pronounce upon abstract questions, or give advice
on differing
contentions.
[20]
[34]
This
principle, which is fundamental in the conception of the function of
the court,
[21]
was confirmed
in subsequent cases of the Appellate Division.
[22]
In
Graaff Reinet
Municipality
Watermeyer
CJ found that though this principle originated as a rule of practice,
it has since crystallised into a rule of law.
[23]
And in
Flats
Milling Co
the Court again highlighted the principle that courts do not normally
decide academic questions of law,
[24]
and stressed the need for the pronouncement made by the Court not to
be an academic decision but an operative decision that has
a
practical effect on persons before it.
[25]
[35]
In
Premier
van die Provinsie van Mpumalanga
[26]
Olivier JA, after discussing the rationale behind section 21A of the
Supreme Courts Act,
[27]
laid
down the importance of avoiding vague concepts such as “abstract”,
“academic” and “hypothetical”
as yardsticks
for the exercise of an appeal court’s jurisdiction to hear an
appeal. The question is a positive one,
whether a judgment or
order of the court will have a practical effect and not whether it
will be of importance for a hypothetical
future case.
[28]
[36]
Following
on earlier judicial statements, in
JT
Publishing
[29]
Didcott J wrote, in the context of declaration orders, that the
well-established and uniformly observed policy directs courts not
to
exercise their discretion in favour of deciding issues that are
merely abstract, academic or hypothetical.
[30]
He added that this Court would not be obliged to determine an issue
which, because of its abstract, academic or hypothetical
nature, once
determined would produce no concrete or tangible result.
[31]
[37]
The
position as set out in
JT
Publishing
was
confirmed and developed by this Court in subsequent judgments.
[32]
In
President
of the Ordinary Court Martial
this principle was accepted and extended to confirmation proceedings
brought in terms of section 172(2) of the Constitution.
Again,
the Court was enjoined, in exercising its powers, to consider whether
any order it made would have a practical effect on
the parties before
it or on others.
[33]
And
in
National
Coalition
the Court noted that a matter is moot and not justiciable if it no
longer presents an existing or live controversy.
[34]
[38]
The High Court did not take heed of these
salutary judicial pronouncements. Once the contempt of court
proceedings had been
concluded no further issues remained to be
determined. The actions of the High Court overstepped the
bounds of what it was
called upon to decide and were superfluous.
[39]
It follows without more that the order we
would make, if we were to hear the appeal, would not resolve a live
dispute and will have
no practical or useful consequence. It
would amount to a dissipation of scarce judicial resources.
Any
other compelling factors?
[40]
The
fact that a matter may be moot in relation to the parties before the
Court is not an absolute bar to the Court considering it.
The Court
retains discretion, and in exercising that discretion it must act
according to what is required by the interests of justice.
[35]
And what is required for the exercise of this discretion is that any
order made by the Court has practical effect either on the
parties or
others. Other relevant factors that could be considered include: the
nature and extent of the practical effect the order
may have; the
importance of the issue; and the fullness of the argument
advanced.
[36]
Another
compelling factor could be the public importance of an otherwise moot
issue.
[41]
This Court invited the applicants and the
counsel appointed by the Court to make submissions whether there are
any other factors
indicating that it is in the interests of justice
for the Court to entertain the appeal. Both took the view,
albeit for divergent
reasons, that this Court should hear the
appeal. Counsel appointed by the Court submitted that the
appeal should be heard
because it would demonstrate that “Davis
J was correct to be seriously concerned about the ability and
willingness of the
Department officials to implement court orders at
international airports”. Further, counsel hoped that a
definitive
judgment by this Court on the responsibility and
accountability of immigration officers at international airports
would bring certainty
to the rights of those who seek to enter the
Republic.
[42]
On the other hand, the applicants submitted
that the appeal should nonetheless be entertained. This is
because “the
court a quo misdirected itself by holding that
[an] immigration official may be deputed to enter an area that they
are not authorised
to proceed into in order to implement a court
order”.
[43]
None of these submissions hold water.
I have already held that it would not be appropriate to decide on the
alleged misdirection
of the High Court in circumstances where there
is no actual respondent in the appeal; where no appealable order has
been made;
and where the outcome of the appeal would have no
practical effect. In the same vein, it would be undesirable, in
a vacuum,
to make abstract and academic pronouncements on the
responsibility and accountability of immigration officials at an
international
airport, without a factual context that may inform a
just resolution of the dispute or provide guidance for future
conduct.
[44]
It is so that the present matter does raise
a constitutional issue of some import relating to the proper exercise
of judicial powers.
However, an appeal against the High Court’s
judgment will achieve nothing. It resolves no dispute. It
declares
no rights, duties or powers. And it has no practical
effect on either the parties before the Court or the public at
large.
Despite the importance of the Court’s duties and
powers in terms of section 172 of the Constitution, this is not an
appropriate
case in which this Court should delineate or give content
to the adjudicatory powers of the courts for an advisory purpose.
Conclusion
[45]
The application falls to be dismissed
because the judgment of the High Court is not appealable. There is no
live dispute that cries
out for resolution. An order of this
Court will have no practical effect on either the parties before the
Court or the public
at large. Also, there is no overriding
consideration that makes it nonetheless in the interests of justice
for us to hear
the appeal. A concern that the High Court may
have overstepped its mark by providing an advisory opinion to the
Executive
is not alone sufficient to make us hear the appeal.
Moreover, there is no order of the High Court to upset on
appeal. It
follows that it is not in the interests of justice
to grant leave.
Costs
[46]
Since there was no opposition, the issue of
costs does not arise.
Order
[47]
The following order is made:
1.
The application for leave to appeal is dismissed.
2.
There is no order as to costs.
For
the applicants:
Advocate
M Albertus SC and Advocate A Erasmus
instructed by the State Attorney.
Appointed
by the Court:
Advocate
A Katz SC, Advocate D Simonsz and Advocate M Bishop.
[1]
Rule
19(6) of the Rules of this Court provides:
“
(a)
The Court shall decide whether or not to grant the appellant leave
to appeal.
(b)
Applications for leave to appeal may be dealt with summarily,
without receiving oral or written argument other than that contained
in the application itself.
(c)
The Court may order that the application for leave to appeal be set
down for argument and direct that the written argument
of the
parties deal not only with the question whether the application for
leave to appeal should be granted, but also with the
merits of the
dispute. The provisions of Rule 20 shall, with necessary
modifications, apply to the procedure to be followed in
such
procedures.”
*
On
11 March 2014, in response to a letter from counsel, the Court
amended this sentence to correct a factual error. The original
sentence read: “But before this order could be executed at the
airport, Ms Mukhamadiva returned to her country of origin.”
*
On
11 March 2014, in response to a letter from counsel, the Court
amended this and the following sentence to correct a factual
error.
The original sentences read: “At the time she boarded the
return flight, none of the parties was aware of the court
order
issued by the High Court. That order reached the relevant
officials at Cape Town International Airport after her
departure.”
[2]
A judgment given at the conclusion of the hearing without the
judgment being reserved.
[3]
Mukhamadiva
v Director-General Department of Home Affairs and Another
[2012] ZAWCHC 337
(High Court judgment).
[4]
Id
at para 9.
[5]
Id
at para 20.
[6]
Id
at para 21.
[7]
See,
for example,
Health
Professions Council of South Africa v Emergency Medical Supplies and
Training CC t/a EMS
[2013]
ZASCA 87
;
2010 (6) SA 469
(SCA) and
Constantia
Insurance Co v Nohamba
1986
(3) SA 27
(A).
[8]
Administrator,
Cape and Another v Ntshwaqela and Others
1990 (1) SA 705
(A) (
Ntshwaqela
)
at 715D.
[9]
Government
of the Republic of South Africa and Others v Von Abo
[2011] ZASCA 65
;
2011 (5) SA 262
(SCA) (
Von
Abo
)
at para 17.
[10]
Zweni
v Minister of Law and Order
[1992] ZASCA 197
;
1993 (1) SA 523
(A) at 532I-533A.
[11]
For
this proposition the applicants relied on
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010] ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) (
ITAC
)
at para 71.
[12]
High
Court judgment dismissing the application for leave to appeal at 5.
[13]
Von
Abo
above n 9.
[14]
Id
at para 17.
[15]
ITAC
above n 11 at para 71.
[16]
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977 (4) SA 298
(A);
Estate
Garlick
v
Commissioner for Inland Revenue
1934
AD 499
; and
West
Rand Estates Ltd v New Zealand Insurance Co Ltd
1926 AD 173.
[17]
Ex
parte
Minister
of Social Development and Others
[2006] ZACC 3
;
2006 (4) SA 309
(CC);
2006 (5) BCLR 604
(CC) at para
50.
[18]
Section
172(1) provides:
“
When
deciding a constitutional matter within its power, a court—
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(b)
may make any order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority
to correct the
defect.”
[19]
Geldenhuys
and Neethling v Beuthin
1918
AD 426
(
Geldenhuys
).
[20]
Id
at 441.
[21]
Ex
parte
Ginsberg
1936 TPD 155
at 157-8.
[22]
Attorney-General,
Transvaal v Flats Milling Co (Pty) Ltd and Others
1958
(3) SA 360
(A) (
Flats
Milling Co
)
and
Graaff-Reinet
Municipality v Van Ryneveld’s Pass Irrigation
Board
1950 (2) SA 420 (A).
[23]
Graaf-Reinet
Municipality
id
at 424.
[24]
Flats
Milling Co
above n 22 at 372. See also
R
v Singh
1944
AD 366.
[25]
Flats
Milling Co
above
note 22 at 374.
[26]
Premier
van die Provinsie van Mpumalanga v Stadsraad van Groblersdal
[1998] ZASCA 20; 1998 (2) SA 1136 (SCA).
[27]
The
principles set out above were initially legislated in the
General
Law Third Amendment Act 129 of 1993
, which inserted
section 21A
into
the Supreme Courts Act 59 of 1959. This was then substituted
by the
Judicial Matters Amendment Act 104 of 1996
.
Section 21A(1)
provided:
“
When
at the hearing of any civil appeal to the Appellate Division or any
Provincial or Local Division of the Supreme Court the
issues are of
such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed
on this
ground alone.”
The
Supreme Court Act has since been repealed and replaced by the
Superior Courts Act 10 of 2013
which provides in
section
16(2)(a)(i):
“
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.”
[28]
Premier
van die Provinsie van Mpumalanga
above n 26 at 1141. See also
President
of the Ordinary Court Martial and Others v The Freedom of Expression
Institute and Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC);
1999 (11) BCLR 1219
(CC)
(
President
of the Ordinary Court Martial
)
at para 13-4and
Simon
NO v Air Operations of Europe AB and Others
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at 226.
[29]
JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC);
1996 (12) BCLR 1599
(CC) (
JT
Publishing
)
at 525A-F.
[30]
Id
at 525B. This principle was accepted with the necessary caveat
that it could be departed from in special circumstances
after taking
into account certain relevant factors.
[31]
Id.
[32]
See
Wiese
v Government Employees Pension Fund and Others
[2012]
ZACC 5
;
2012 (6) BCLR 599
(CC) at para 22;
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council and Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) at
para 27;
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999]
ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) (
National
Coalition
)
at para 21;
President
of the Ordinary Court Martial
above
n 28 at paras 13-8; and
President
of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at paras
51 and 54.
[33]
President
of the Ordinary Court Martial
above n 28 at paras 13-8.
[34]
National
Coalition
above n 32 at para 21.
[35]
Van
Wyk v Unitas Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 231
(CC);
Radio
Pretoria v Chairman of the Independent Communications Authority of
South Africa and Another
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC); and
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) at
paras 9-14.
[36]
Langeberg
Municipality
id at paras 9-14.