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[2016] ZACC 48
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Psychological Society of South Africa v Qwelane and Others (CCT226/16) [2016] ZACC 48; 2017 (8) BCLR 1039 (CC) (14 December 2016)

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
226/16
In the matter
between:
PSYCHOLOGICAL
SOCIETY OF SOUTH
AFRICA
Applicant
and
DUBULA
JONATHAN
QWELANE
First

Respondent
SOUTH
AFRICAN HUMAN RIGHTS
COMMISSION
Second

Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Third

Respondent
FREEDOM
OF EXPRESSION
INSTITUTE
Fourth

Respondent
Neutral citation:
Psychological Society of South Africa v Qwelane and Others
[2016]
ZACC 48
Coram:
Nkabinde ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J,
Mbha AJ, Mhlantla J, Musi AJ and Zondo J
Judgment:
The
Court
Decided on:
14 December 2016
Summary:
leave
to appeal — order of postponement — due process —
audi alteram partem —
legal standing of applicant who
was an
amicus curiae
in Court a quo
leave to appeal
refused — discretion to grant postponement not exercised
judicially — but not in interests of justice
to intervene —
circumstances may, in public interest, warrant acknowledging legal
standing of the
amicus curiae
to seek leave to appeal
ORDER
On appeal against an
order of postponement granted by the High Court of South Africa,
Gauteng Local Division, Johannesburg:
The following order
is made:
The application for
leave to appeal is dismissed.
JUDGMENT
THE COURT (Nkabinde
ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ,
Mhlantla J, Musi AJ and Zondo J concurring):
Introduction
[1]
This application for leave to appeal seeks to overturn an
order the High Court of South Africa, Gauteng Local
Division,
Johannesburg (High Court) granted.  The order for a
postponement was granted in favour of the first respondent,
Mr Dubula Jonathan
Qwelane (Mr Qwelane).  Leave to
appeal was not sought from either the High Court or the
Supreme Court of Appeal
(SCA).  Instead the applicant,
Psychological Society of South Africa
(PsySSA),
lodged an application for leave to appeal in the
SCA.  When the Registrar of that Court advised them to first
seek leave in
the High Court, it abandoned that application and
turned to this Court.
[2]
This Court has decided the application without written
submissions or oral argument.
Background
[3]
At issue is a claim of hate speech against lesbian, gay,
bisexual, transgender and intersex (LGBTI) persons.  On 20 July
2008,
Mr Qwelane published an article in the
Sunday Sun
: Call
me names but Gay is NOT okay.  In the article, Mr Qwelane
likened gay and lesbian people to animals.  They were,
he said,
responsible for the rapid degeneration of values in society.
The article attracted widespread notice, controversy
and response.
In the article itself, Mr Qwelane warned the second respondent,
South African Human Rights Commission
(SAHRC), that he
would not apologise for his expressed views.  And, indeed, when
SAHRC asked him to do so, he refused.
[4]
In December 2009, SAHRC filed a complaint in the Equality
Court sitting at the Johannesburg Magistrate’s Court (equality
proceedings).
The complaint cited Mr Qwelane and
Media24 Holdings (Pty) Limited (Media24), the publisher of the
Sunday Sun
.
[1]
SAHRC contended that the article amounted to hate speech and could be
construed to demonstrate an intention to be hurtful,
and to propagate
hatred.  The complaint was filed in terms of sections 10(1)
and 11 of the Promotion of Equality and
Prevention of Unfair
Discrimination Act
[2]
(Equality Act) read with sections 9(4) and 16 of the Constitution.
It asked for an order directing Mr Qwelane to apologise
for his
statements and to pay R100 000 to a gay and lesbian organisation
and also to perform community service.  The
Freedom of
Expression Institute and PsySSA joined the proceedings as
amici
curiae
(friends of the court).
[5]
On 31 March 2011, in default of appearance by Mr Qwelane,
SAHRC obtained a judgment against him.  But Mr Qwelane
successfully
applied for the rescission of this judgment.  It
was rescinded on 1 September 2011.  On 11 April 2012,
Mr Qwelane
filed an answering affidavit in the complaint
proceedings.  SAHRC replied on 7 May 2012.
[6]
Then on 1 June 2012, Mr Qwelane applied to the High Court for
an order declaring section 10 of the Equality Act
constitutionally
invalid.  He requested a stay of the equality
proceedings pending the determination of his constitutional
challenge.
[7]
The parties agreed that, in view of the constitutional
challenge before the High Court, the equality proceedings should
be
transferred to that Court.  They filed an application for
transfer.  The Johannesburg Magistrate’s Court transferred

the proceedings on 11 September 2012.
[8]
But Mr Qwelane withdrew his constitutional challenge.
Then, 15 months later, he changed course again.  On 27 September

2013, he launched a fresh constitutional challenge.  SAHRC and
the
amici
were now respondents.  This time he applied for
an order declaring sections 10(1) and 11 of the Equality Act
inconsistent
with section 16 of the Constitution.
[3]
He also sought a stay of the equality proceedings.
[9]
SAHRC filed its answering affidavit on 30 October 2013 and
Mr Qwelane replied on 4 April 2014.  The constitutional
challenge
was set down for hearing on 13 and 14 November 2014.
But SAHRC successfully applied for the two applications –

the constitutional challenge and the equality proceedings – to
be consolidated.
[4]
[10]
It is this consolidated application that is before us now.
Months in advance, at the instance of the Judge President, it was
set
down for hearing from 29 August to 9 September 2016.  But,
just days before the hearing, on Thursday, 25 August
2016, Mr
Qwelane’s attorneys wrote to SAHRC and the
amici
,
requesting a postponement.  They reasoned that Mr Qwelane
suffered from multiple chronic conditions.
[5]
He was therefore not fit to attend the proceedings.  The
third respondent, the Minister
of Justice and
Constitutional Development
(Minister), assented, but
SAHRC objected.  Mr Qwelane’s attorneys wrote again
on Friday, 26 August 2016.
They attached a medical report by Dr
Ameen Seedat.
[11]
This time PsySSA wrote back.  It requested that an
independent medical specialist examine Mr Qwelane to confirm his
medical
conditions and to determine whether he was fit to attend the
proceedings and to give evidence.  Mr Qwelane objected.
He
stated that PsySSA was an
amicus curiae
(friend of the court)
and did not have an interest in the proceedings other than to assist
the court on issues of law.  Mr
Qwelane did not seek their
permission.  At this, SAHRC, the complainant, made an identical
request.  Mr Qwelane’s
attorneys refused this too.
They said there was no basis for anyone other than Dr Seedat to
conduct the medical examinations.
[12]
On the very eve of the trial, Sunday, 28 August 2016,
Mr Qwelane served an application for the hearing to be postponed
sine die
(without any specified date for reconvening).
[6]
He stated that the severity of his medical condition precluded him
from attending the proceedings.  He would not be
able to testify
or follow the proceedings.  Mr Qwelane stated that he struggles
to breathe without artificially supplied oxygen.
He battles to
remember pertinent events.  He would therefore be prejudiced if
compelled to attend the trial.
[13]
There was, he contended, no way to determine when his
condition would improve.  Hence the formal request for a
postponement
sine die
.  But during the hearing, when
probed about the length of the postponement, his counsel changed
tack.  He said that the
postponement should be for more or less
three months.
[14]
PsySSA and SAHRC opposed the postponement.  They asked
the Court to order that Mr Qwelane subject himself to an
examination
by their own doctors to confirm the veracity of his
reasons for seeking a postponement.
High Court
[15]
The High Court (Moshidi J) delivered an
ex tempore
judgment.  It granted the postponement
sine die
.
The Court directed the parties to approach the Deputy Judge President
for a new date.
[16]
PsySSA was aggrieved that the Court granted the postponement
after only oral submissions had been made – and, more
importantly,
before SAHRC and PsySSA could file papers opposing the
application, which they had received barely hours before.
[7]
The Court thought giving these parties the chance to respond was
unnecessary.  It was not convinced that any answering
affidavit
would change Mr Qwelane’s physical condition.  “If
a person is sick”, the Court said in granting
the postponement,
“[he] is sick”.  The Court declared that, after
considering all aspects, including possible
prejudice to the other
parties and the interests of justice, the application was
well-grounded and
bona fide
(in good faith).
In this Court
PsySSA’s submissions
[17]
PsySSA roots its legal standing in this Court’s decision
in
Campus Law Clinic
.
[8]
There, the applicant sought leave to appeal against a judgment
of the SCA, to which it was neither a party nor involved as
an
amicus
curiae
.  It sought to do so on the ground that this was in
the public interest.  The Court embraced this principle.
It
said there could be standing to appeal against a judgment in the
public interest.  It held that the fact that a party was not
a
party to the proceedings in the lower court is not an absolute bar to
it being accorded standing to seek leave to appeal.
[9]
[18]
PsySSA complains that by postponing the matter
sine die
,
the High Court caused PsySSA and the LGBTI persons whose interests it
seeks to advance an injustice.  The Court denied it
an
opportunity to file opposing papers.  A postponement
sine die
in effect amounted to a permanent stay.  This was because
Mr Qwelane’s condition is, on his own showing, chronic
and
likely to deteriorate.  His prognosis is not good.  Hence
it was in the interests of justice for the hearing to be
expedited
and the Court should have found a just means of doing so.
Mr Qwelane’s submissions
[19]
Mr Qwelane opposes the application on a number of grounds.
These include that PsySSA, an
amicus curiae
, has no standing;
the impugned order is not appealable; and the matter is moot since a
date for resuming the trial has already
been set.
[20]
Mr Qwelane submits that PsySSA joined the proceedings merely
as an
amicus curiae
.  Its role is to assist the
court by making submissions on issues of law the other parties have
not made.  It is not
a party and is therefore not entitled to
seek its own relief.  Additionally, SAHRC has not supported the
application.
Instead SAHRC has applied to the Deputy Judge
President for a date for the resumed hearing.  PsySSA’s
reliance on
Campus Law Clinic
, he says, is misplaced.
That judgment, he says, allows for a party who was not party to the
lower court proceedings to appeal
in the public interest.  But
here, PsySSA is acting in its own interest.  So it does not fall
within
Campus Law Clinic
.
[21]
Mr Qwelane urges that PsySSA’s contention that the High
Court order is final in effect cannot be maintained.  It is
clear
from SAHRC’s letter requesting a special allocation of a
date for the renewed hearing that it considered the postponement
to
be until Mr Qwelane is fit to attend.  SAHRC does not
endorse PsySSA’s contention that the order is indeterminate.
[22]
During oral argument before the High Court, Mr Qwelane’s
counsel adapted his cloth to request a three-month postponement.  And

in its request to the Deputy Judge President for a special
allocation, SAHRC provided for an additional three months.
So
the total postponement now envisaged is six months.  The order
is interim and not appealable.  So the application
should be
dismissed.
[23]
Mr Qwelane also submits that expecting him to attend the
proceedings in his current health is not in the interests of
justice.
It would violate his dignity and privacy.  The
Court should therefore refuse leave to appeal.  And if this
Court sets
down this application for oral argument, it may be heard
only in March or April 2017.  This is the very time the High
Court
will hear the postponed application.  So it would not be
sensible to uphold the application.
[24]
Both the Minister and SAHRC filed notices to abide.
[25]
But, in an explanatory affidavit, SAHRC explains that abiding
does not mean it agrees with the High Court’s order.  It

does not.  It supports PsySSA’s submissions that the High
Court erred in granting the postponement.  It sought
a set down
date from the Deputy Judge President only because it considered this
more expedient in ensuring the matter is heard
soon.  SAHRC also
submits that the High Court’s refusal to accept answering
affidavits in the postponement proceedings
was procedurally unfair.
Discussion
PsySSA’s legal standing
[26]
The applicant was not a party to the proceedings.  It was
an
amicus curiae
.
[10]
In
Campus Law Clinic
, this Court held that granting an
amicus
standing would depend on various factors:
“The factors that would be relevant would be: whether there is
another reasonable and effective manner in which the challenge
may be
brought; the nature of the relief sought and the extent to which it
is of general and prospective application; the range
of persons or
groups who may be directly or indirectly affected by any order made
by the Court and the opportunity that those persons
or groups have
had to present evidence and argument to the Court; the degree of
vulnerability of the people affected; the nature
of the rights said
to be infringed; as well as the consequences of the infringement.
The list of factors is not closed.”
[11]
[27]
It is wrong to claim that PsySSA is acting in its own
interest.  It is acting to vindicate the rights of many LGBTI
people
who, it says, felt injured, affronted and diminished by Mr
Qwelane’s column.  PsySSA states through its deponent,
Professor Juan
Nel, an expert in this field, that LGBTI people
have been hurt and degraded and that their constitutional rights were
violated
by Mr Qwelane’s published remarks.
[28]
The nature of the complaint, the time that has passed since
the complaint was originally filed, plus the constitutional challenge

to provisions in the Equality Act all indicate the high level of
importance of the proceedings and the public interest invested
in
them.
[12]
Given its professional stature in the field, PsySSA has standing to
bring the application to this Court.
[29]
It is worth noting that PsySSA erred in approaching the SCA by
simply filing a notice of appeal without first obtaining leave to

appeal in the High Court.  It took the view that
George
[13]
did not apply because there reference was made to the Supreme Court
Act,
[14]
which has since been repealed by the Superior Courts Act,
[15]
and that section 23 of the Equality Act confers a right of
appeal without leave.  This was wrong.  Even under the

Superior Courts Act, which replaced the Supreme Court Act, appeals
lie to the SCA only with leave of either the High Court or the
SCA
itself.
[16]
The Court in
George
made it plain that section 23 of the
Equality Act does not entitle a party to appeal without
leave.
[17]
The supersession of the Supreme Court Act by the Superior
Courts Act did not change this.
Postponement
[30]
Postponements are not merely for the taking.
[18]
They have to be properly motivated and substantiated.  And
when considering an application for a postponement a court
has to
exercise its discretion whether to grant the application.
[19]
It is a discretion in the true or narrow sense – meaning that,
so long as it is judicially exercised, another court
cannot
substitute its decision simply because it disagrees.
[20]
The decision to postpone is primarily one for the first instance
court to make.
[31]
In exercising its discretion, a court will consider whether
the application has been timeously made, whether the explanation for

the postponement is full and satisfactory, whether there is prejudice
to any of the parties and whether the application is opposed.
[21]
All these factors will be weighed to determine whether it is in the
interests of justice to grant the postponement.
And,
importantly, this Court has added to the mix.  It has said that
what is in the interests of justice is determined not
only by what is
in the interests of the immediate parties, but also by what is in the
broader public interest.
[22]
[32]
It is evident that the High Court omitted fully to weigh these
considerations here.  The Court seems to have adopted the “no

difference” approach.  This was that receiving answering
affidavits from SAHRC and PsySSA would have made no difference
to the
result.  Mr Qwelane was going to get his postponement anyhow.
[33]
That was wrong.  It is trite that at common law and in
terms of the tenets of natural justice, hearing the other party –
audi alteram partem
– is an indispensable condition of
fair proceedings.  As Donaldson LJ put it in
Cheall
:
“[N]atural justice is not always or entirely about the fact or
substance of fairness.  It has also something to do with
the
appearance of fairness.  In the hallowed phrase, ‘Justice
must not only be done, it must also be seen to be done’.”
[23]
[34]
The principle is underpinned by two important considerations
of legal policy.  The first is recognising the subject’s

dignity and sense of worth.  Second, there is a more pragmatic
consideration.  This is that
audi
alteram partem
inherently conduces to better justice.  Milne JA summarised both
considerations in
South African Roads Board
.
[24]
He said  the application of the
audi alteram partem
principle—
“has a two-fold effect.  It satisfies the individual’s
desire to be heard before he is adversely affected; and
it provides
an opportunity for the repository of the power to acquire information
which may be pertinent to the just and proper
exercise of the
power.”
[25]
[35]
So the “no difference” approach is generally
anathema.
[26]
Courts resist accepting that the right to a hearing disappears when
it is unlikely to affect the outcome.  This was
elucidated in
Zenzile
:
[27]
“It is trite . . . that the fact that an errant employee may
have little or nothing to urge in his own defence is a factor
alien
to the inquiry whether he is entitled to a prior hearing.  Wade
Administrative Law
6th ed puts the matter thus at 533-534:
‘Procedural
objections are often raised by unmeritorious parties.  Judges
may then be tempted to refuse relief on the
ground that a fair
hearing could have made no difference to the result.  But in
principle it is vital that the procedure and
the merits should be
kept strictly apart, since otherwise the merits may be prejudged
unfairly’”.
[28]
[36]
The complaint against Mr Qwelane was set down for two weeks.
SAHRC and PsySSA, and those whose interests they seek to advance,
had
waited many years for their day in court.  Whether rightly or
wrongly – it is not necessary for us to determine
this –
they felt aggrieved that the matter had been repeatedly delayed at
the instance of Mr Qwelane.  At the end of
all this, they asked
that the matter be stood down so they could file answering
affidavits.  The Judge’s time had been
set aside.
There is no shadow of doubt about this: both convenience and
entitlement gave PsySSA and SAHRC the right to be
properly heard on
whether a postponement should be granted.
[37]
After all, SAHRC and PsySSA were best placed to help the Court
determine whether the postponement would be prejudicial to them or
to
the public – and to weigh that prejudice against Mr Qwelane’s.
The Court should have permitted them time to
make submissions.
And it should have taken what they said into account before ruling on
the postponement.  This would
have enabled it to balance the
prejudice on to them were the postponement granted, against prejudice
to Mr Qwelane, were it
refused.  Prejudice to SAHRC was a
legitimate factor in the exercise of the discretion.
[29]
The High Court was duty bound to take it into account.
[38]
The High Court controls its process.  It does so with a
measure of flexibility.  At the forefront, when it does so, is
a
litigant’s right to due process.  Granting the
postponement before PsySSA and SAHRC could file answering papers did

them an injustice.  They sought to submit evidence, including an
expert opinion that might affect consideration of Mr Qwelane’s

medical evidence.  It was neither procedurally nor substantively
justified to deny them this.  It resulted in a miscarriage
of
justice.
[39]
Whether the evidence would have changed the outcome is not the
issue.  The fact is that there was a denial of fair process.

That it occurred in a case of high public interest, where injurious
words are alleged to have been published, accentuates the injustice.
Leave to appeal
[40]
Should this conclusion lead to this Court granting relief to
PsySSA?  This Court has emphasised repeatedly that the power to

intervene in unconcluded proceedings in lower courts will be
exercised only in cases of great rarity – where grave injustice

threatens, and where intervention is necessary to attain
justice.
[30]
In
Afriforum
Mogoeng CJ said:
“It is indeed a general principle of our law that leave to
appeal against an interim order would ordinarily be refused unless

the applicant is able to demonstrate that irreparable harm would
otherwise ensue.”
[31]
[41]
But the fact that an order is temporary does not in itself
determine whether the interests of justice require that leave to
appeal
be granted.
[32]
A court has to consider the circumstances and decide “whether
allowing the appeal would lead to piecemeal adjudication
and prolong
the litigation or lead to the wasteful use of judicial resources or
costs”.
[33]
Equally, whether “the fact that a final determination of the
main dispute between the parties, which decisively contributes
to its
final resolution, might be more expeditious and cost-effective”.
[34]
[42]
Interference on appeal in a lower court’s exercise of a
discretion is possible only if the discretion was not judicially
exercised.
[35]
Because of the procedural injustice, this is established here.
[43]
But that is not the end of the story.  Following the
postponement, on 23 September 2016, SAHRC’s attorneys
wrote
to the Deputy Judge President.  The letter noted that
SAHRC had instructed them not to appeal against the High Court
order.
Instead, they requested a specified date for the
hearing, in March or April 2017.  They also noted that during
oral submissions,
Mr Qwelane’s counsel requested a postponement
of three months.  If the matter were heard in March or April
2017, Mr Qwelane
would be afforded six months to recover.
[44]
And according to correspondence between the parties and the
Deputy Judge President of the High Court, filed in this
Court,
the matter will in all likelihood be heard from 6 to
17 March 2017.
[45]
These facts mean it is inapt for this Court to intervene at
this stage.  Though the High Court dealt roughly with PsySSA and

SAHRC and the important public interests they represent, it is not in
the interests of justice to intervene.  The postponement
is no
longer indefinite.  The matter should be heard in March 2017.
That tips the scales of justice against intervention.
[46]
The application for leave to appeal to this Court against the
High Court’s order must in all the circumstances be refused.
Order
[47]
The following order is made:
The application for leave to appeal is dismissed.
[1]
SAHRC withdrew the complaint against Media24 on 23 May 2011.
[2]
4 of 2000.
[3]
Section 16 of the Constitution provides:
“Freedom of expression
(1) Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.”
[4]
Qwelane v Minister of Justice and Constitutional Development
2015 (2) SA 493 (GJ).
[5]
Chronic obstructive airways disease, insulin-dependent diabetes
mellitus, fibrosis alveolitus, hypertension and cardiac failure.
As
a result of his condition, Mr Qwelane was dependent on oxygen
support for 24 hours a day.
[6]
The application was served on SAHRC, the Minister and the amici,
with an original copy handed up to the Judge on Monday, 29 August

2016.
[7]
The Minister and the Freedom of Expression Institute did not oppose
the application for a postponement.
[8]
Campus Law Clinic, University of Kwa-Zulu Natal v Standard Bank
of South Africa Ltd
[2006] ZACC 5
;
2006 (6) SA 103
(CC);
2006
(6) BCLR 669
(CC) (
Campus Law Clinic
).
[9]
Id at para 20.
[10]
In
Hoffmann v South African Airways
[2000] ZACC 17
;
2001 (1)
SA 1
(CC);
2000 (11) BCLR 1235
(CC) at para 63, about the status of
an
amicus
in court proceedings, Ngcobo J said:
“An
amicus
curiae
assists the Court by
furnishing information or argument regarding questions of law or
fact.  An
amicus
is not a party to litigation, but
believes that the Court’s decision may affect its interest.
The
amicus
differs from an intervening party, who has a
direct interest in the outcome of the litigation and is therefore
permitted to participate
as a party to the matter.  An
amicus
joins proceedings, as its name suggests, as a friend of the court.
It is unlike a party to litigation who is forced into
the
litigation ”.
[11]
Campus Law Clinic
above n 8 at para 21.
[12]
In
McCarthy Retail Ltd v Shortdistance Carriers CC
[2001]
ZASCA 14
;
2001 (3) SA 482
(SCA) at para 28, Schutz JA said:
“A party opposing an application to postpone an appeal has a
procedural right that the appeal should proceed on the appointed

day.  It is also in the public interest that there should be an
end to litigation.”
[13]
Minister of Environmental Affairs and Tourism v George
[2006]
ZASCA 57
;
2007 (3) SA 62
(SCA) (
George
).
[14]
59 of 1959.
[15]
10 of 2013.
[16]
Section 16 provides:
“(1) Subject to section 15(1), the Constitution and any other
law—
(a) an appeal against any decision of a Division as a court of first
instance lies,
upon leave having been granted
—
(i) if the court consisted of a single judge, either to the Supreme
Court of Appeal or to a full court of that Division, depending
on
the direction issued in terms of section 17(6); or
(ii) if the court consisted of more than one judge, to the Supreme
Court of Appeal;
(b) an appeal against any decision of a Division on appeal to it,
lies to the Supreme Court of Appeal upon special leave having
been
granted by the Supreme Court of Appeal; and
(c) an appeal against any decision of a court of a status similar to
the High Court, lies to the Supreme Court of Appeal
upon leave
having been granted by that court or the Supreme Court of Appeal,
and the provisions of section 17 apply with
the changes
required by the context.”
[17]
George
above n 13 at paras 15-6.
[18]
National Police Service Union v
Minister of Safety and
Security
[2000] ZACC 15
;
2000 (4) SA 1110
(CC);
2001 (8) BCLR
775
(CC) at para 4 and
Lekolwane v
Minister of Justice and
Constitutional Development
[2006] ZACC 19
;
2007 (3) BCLR 280
(CC) at para 17.
[19]
R v Zackey
1945 AD 505
at 510-11.
[20]
Trencon Construction (Pty) Limited v Industrial Development
Corporation of South Africa Limited
[2015] ZACC 22
;
2015 (5) SA
245
(CC);
2015 (10) BCLR 1199
(CC) at paras 83-9, citing
Ex parte
Neethling
1951 (4) SA 331
(A) at 335A-E and
Media Workers
Association of South Africa v Press Corporation of South Africa
Limited
[1992] ZASCA 149
;
1992 (4) SA 791
(A) at 800E.
[21]
Myburgh Transport v Botha t/a SA Truck Bodies
1991 (3) SA 310
(NmS) at 314F-315J.  See also
National Coalition for Gay and
Lesbian Equality v Minister of Home Affairs
[1999] ZACC 17
;
2000
(2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 3 and
Shilubana v
Nwamitwa
[2007] ZACC 14
;
2007 (5) SA 620
(CC);
2007 (9) BCLR 919
(CC) at paras 10-2.
[22]
National Police Service Union
above n 18 at para 5.
[23]
Cheall v Association of Professional Executive Clerical and
Computer Staff
[1983] 1 QB 126
at 144B.
[24]
South African Roads Board v Johannesburg City Council
[1991]
ZASCA 63; 1991 (4) SA 1 (A).
[25]
Id at 13B-C.
[26]
See
Friedland v The Master
1992 (2) SA 370
(W) at 378A-C;
Muller v Chairman Ministers’ Council, House of
Representatives
1992 (2) SA 508
(C) at 514F-G;
Fraser v
Children’s Court, Pretoria North
[1997] ZACC 1
;
1997 (2) SA 218
(T) at
231H-233B; and
Yuen v Minister of Home Affairs
1998 (1) SA
958
(C) at 969J-970G.
[27]
Administrator Transvaal v Zenzile
1991 (1) SA 21
(AD)
(
Zenzile
).
[28]
Id at 37C-D.
[29]
Myburgh Transport
above n 21.
[30]
See
City of Tshwane Metropolitan Municipality v Afriforum
[2016]
ZACC 19
;
2016 (6) SA 279
(CC);
2016 (9) BCLR 1133
(CC) (
Afriforum
)
at para 40;
South African Informal Traders Forum v City of
Johannesburg; South African National Traders Retail Association v
City of Johannesburg
[2014] ZACC 8
;
2014 (4) SA 371
(CC);
2014
(6) BCLR 726
(CC) (
Informal Traders
) at para 20;
Magidiwana
v President of the Republic of South Africa
[2013] ZACC 27
; 2013
JDR 1788 (CC);
2013 (11) BCLR 1251
(CC) at para 11;
National
Treasury v Opposition to Urban Tolling Alliance
[2012] ZACC 18
;
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
(CC) (
OUTA
) at
paras 24-5;
Albutt v Centre for the Study of Violence and
Reconciliation
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5)
BCLR 391
(CC) at paras 22-3; and
Machele v Mailula
[2009]
ZACC 7
;
2010 (2) SA 257
(CC);
2009 (8) BCLR 766
(CC) at paras 22-4.
[31]
Afriforum
id at para 48.  At para 39, the Court stated
that the appealability of interim orders in terms of the common law
depends
on whether they are final in effect.  See also
OUTA
id at paras 24-5 and
Zweni v Minister of Law and Order
1993
(1) SA 523
(A) at 531H-533A.
[32]
Albutt
above n 30 at para 22.
[33]
Informal Traders
above n 30 at para 20(g).
[34]
Albutt
above n 30 at para 23.
[35]
National Coalition for Gay and Lesbian Equality
above n 21 at
para 11.  See also
Naylor v Jansen
[2006] ZASCA 94
;
2007
(1) SA 16
(SCA) at para 14.