CONSTITUTIONAL COURT OF SOUTH AFRICA
Cases CCT 324/17 and CCT 63/18
CCT 324/17
In the matter between:
MATHYS JOHANNES CLOETE First Applicant
DANIEL NICHOLAS CLOETE Second Applicant
and
THE STATE Respondent
and
LEGAL AID SOUTH AFRICA Amicus curiae
CCT 63/18
In the matter between:
RAMMUTLANA BOELIE SEKGALA Applicant
and
NEDBANK LIMITED Respondent
Neutral citation: Cloete and Another v S; Sekgala v Nedbank Limited [2018]
ZACC 6
Coram: Mogoeng CJ , Basson AJ, Cameron J, Dlodlo AJ, Froneman J ,
Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
THERON J
2
Judgment: Theron J (unanimous)
Decided on: 19 February 2019
Summary: Appeal — section 17(2)(f) of the Superior Courts Act 10 of 2013
— Constitutional Court jurisdiction
ORDER
On appeal from the Supreme Court of Appeal (in terms of section 17(2)(f) of the
Superior Courts Act 10 of 2013):
Under CCT 324/17 (Cloete and Another v S):
1. The applications for condonation are granted.
2. The application for leave to appeal is dismissed.
3. There is no order as to costs.
Under CCT 63/18 (Sekgala v Nedbank Limited):
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
JUDGMENT
THERON J ( Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J,
Goliath AJ, Khampepe J, Mhlantla J, and Petse AJ concurring):
THERON J
3
Introduction
[1] These are two applications for leave to appeal against decisions made by the
President of the Supreme Court of Appeal (President) pursuant to section 17(2)(f) of
the Superior Courts Act1 (Act). The applications raise the same question, namely, is a
decision under section 17(2)(f) of the Act appealable to this Court?2
[2] Section 17(2)(f) confers on the President a discretion to refer a refusal of an
application for leave to appeal to the S upreme Court of Appeal for reconsideration
and, if necessary , variation (section 17(2)(f) decisio n). This may arise in
circumstances where an applicant has been denied leave to appeal by the
Supreme Court of Appeal on petition, pursuant to the provisions of section 17(2)(b) of
the Act. Following this Court’s decision in Liesching I, recourse in terms of section
17(2)(f) is available in both criminal and civil cases. 3 In both these applications, the
President refused to grant relief under section 17(2)(f).
Cloete application (CCT 324/17)
[3] The first applicant is Mr Mathys Johannes Clo ete and the second applicant is
his son, Mr Daniel Nicholas Cloete (Cloete applicants) . The respondent (State) did
not oppose this matter. Legal Aid South Africa applied and was admitted as amicus
curiae.
[4] The Cloete applicants, farmers from Boshoek, North West were charged and
convicted in the High Court of South Africa , North West Division, Mahikeng with
various offences, including murder, kidnapping and attempted murder . These charges
1 10 of 2013.
2 Section 17(2)(f) reads:
“The decision of the majority of the judges considering an application referred to in
paragraph (b), or the decision of t he court, as the case may be, to grant or refuse the
application shall be final: Provided that the President of the Supreme Court of Appeal may in
exceptional circumstances, whether of his or her own accord or on application filed within one
month of the d ecision, refer the decision to the court for reconsideration and, if necessary,
variation.”
3 Liesching v S [2016] ZACC 41; 2017 (2) SACR 193 (CC); 2017 (4) BCLR 454 (CC) (Liesching I).
THERON J
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arose out of an incident of theft that had occurred at their far m. The first applicant
was sentenced to an effective term of 18 years’ imprisonment and the second
applicant was sentenced to a term of 24 years’ imprisonment.
[5] The Cloete applicants unsuccessfully applied for leave to appeal to the
Supreme Court of Appea l. Their application to the President for reconsideration in
terms of section 17(2)(f) of the Act was dismissed on 4 June 2016.
[6] About a year later, the Cloete applicants again applied to the President under
section 17(2)(f). This application was granted and set down for hearing on
22 November 2017. However, on 13 September 2017, the Registrar of the Supreme
Court of Appeal advised the Cloete applicants that their application was dismissed and
that their matter was considered res judicata.
Sekgala application (CCT 63/18)
[7] The applicant is Mr Rammutlana Boelie Sekgala and t he respondent ,
Nedbank Limited, is a bank and a registered credit provider (Nedbank). Nedbank did
not oppose the matter.
[8] The facts in this matter are scant, partly because the applicant is self -
represented. Mr Sekgala obtained a home loan secured by a mortgage bond from
Nedbank. At some point, he defaulted on his repayments.
[9] In 2011, Nedbank obtained default judgment against Mr Sekgala for arrear
payments. Mr Sekgala applied for, and was granted, an interim interdict staying the
warrant of execution which had been obtained by Nedbank . Mr Sekgala then applied
for rescission of the default judgment. According to Mr Sekgala, during this time a
case was pending under case numbe r 40429/2011 in the High Court of South Africa,
Gauteng Local Division, Johannesburg. In 2014, Nedbank instituted new proceedings
under case number 12231/2014 in the High Court of South Africa, Gauteng Division,
THERON J
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Pretoria.4 Thereafter the respondent filed a notice of withdrawal in case number
40429/2011.
[10] On 15 September 2015, Makume J handed down judgment in favour of
Nedbank and dismissed the application for rescission. Mr Sekgala applied for leave to
appeal which was denied. Mr Sekgala unsuccessfully petitioned the Supreme Court of
Appeal for leave to appeal. He later made application to the President under
section 17(2)(f). That application was dismissed on 27 February 2018 on the ground
that no exceptional circumstances exist.
In this Court
[11] The Cloete applicants submit that their second application under
section 17(2)(f) differed from the first application in material respects and that the
President erred in refusing to consider it. They submit that the second application was
lodged after new evidence came to light disclosing exceptional circumstances, which
constituted sufficient grounds for her to vary her decision of 4 June 2016.
[12] The essence of Mr Sekgala’s submissions is that the President should have
found that exceptional circumstances existed warranting reconsideration.
[13] After this Court’s decision in Liesching II,5 the Chief Justice issued directions
in this matter on 16 October 2018 inviting the parties to make submissions on the
following issues:
“(a) What is the nature of the Presi dent’s decision in terms of section 17(2)(f) of
the Superior Courts Act? Is it a decision of a court?
(b) Does this Court have jurisdiction to hear an appeal against a President’s
decision in terms of section 17(2)(f) under section 167(6)(b) of the
Constitution?
4 Mr Sekgala refers to this as the “Gauteng division”.
5 Liesching v S [2018] ZACC 25; 2018 JDR 1448 (CC); 2018 (11) BCLR 1349 (CC) (Liesching II).
THERON J
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(c) The general principle is that the exercise of public power should be subject to
review. The President exercises a discretion under section 17(2)(f). Should
the exercise of this power be subject to review or appeal by this Court or
another court such as the High Court?
(d) May a litigant appeal to this Court within the narrow ambit of section 17(2)(f)
and thereafter, again approach this Court to consider the merits of her appeal?
(e) If this Court were to find that no appeal lies against a dismissal of an
application pursuant to section 17(2)(f), is there any prejudice that an
applicant could suffer that cannot be cured by an appeal to this Court, in the
normal course?”
[14] All the parties made useful submissions to this Court , including those who had
originally elected not to participate in these proceedings . For this, the Court expresses
its gratitude.
[15] The Cloete applicants emphasise this Court’s findings in Liesching I and II that
section 17(2)(f) affords the President a discretion which ought to be exercised
judicially.6 They submit that , in practice, the President sits as a Court in chambers
when deciding these applications. On this basis, they argue that the nature of the
discretion is a judicial one, albeit a limited one, and reviewable in the same way as an
ordinary judicial decision. Relying on section 167(6)(b),7 they submit that it is in the
interests of justice that an appeal against the President ’s decision in term s of
section 17(2)(f) lies directly to this Court, albeit on narrow grounds.8
[16] The Cloete applicants contend that there is a dual appeal process, one in respect
of a section 17(2)(f) decision and a further appeal in respect of the merits. The State
6 Liesching I above n 3 at para 55; Liesching II above n 5 at para 140.
7 Section 167(6) reads:
“National legislation or the rules of the Constitutional Court must allow a person, when it is in
the interests of justice and with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.”
8 They list the narrow groun ds as that the President erroneously refused the application or did not consider the
substance of the application because she incorrectly considered herself functus officio or that no exceptional
circumstances existed.
THERON J
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and Mr Sekgala support this submission. Nedbank differs with the rest of the parties
on this point. Nedbank submits that a litigant may not appeal to this Court within the
narrow ambit of a section 17(2)(f) decision and, thereafter, again approach this C ourt
to consider the merits of her appeal. The amicus argues that a section 17(2)(f) appeal
may not always be available because it is a narrow appeal. Mr Sekgala further
submits that a section 17(2)(f) decision is connected to an appeal in terms of
section 168(3)(b)(ii) of the Constitution 9 and, like the Cloete applicants, contends that
the functions of the President are judicial and not administrative.10
[17] Nedbank submits that a section 17(2)(f) decision should not be appealable to
this Court. Relying on Mabaso,11 it contends that this approach would not prejudice a
prospective appellant because it would not bar her from approaching this Court for
leave to appeal on the merits. Nedbank further submits that section 167(6)(b) of the
Constitution does not confer jurisdiction on this Court to decide an appeal ag ainst the
President’s decision and that not every exercise of power must be reviewable,
particularly when it comes to judicial decisions. Nedbank submits that the mere fact
that the President must exercise her powers lawfully and rationally does not mean that
there is any entitlement to review or appeal her decision.
Condonation
[18] The Cloete applicants seek condonation for the late filing of their application
and written submissions. The State also s eeks condonation for the late filing of its
written submissions. The delay s were not significant and, more importantly, the
9 Section 168(3)(b) of the Constitution reads:
“The Supreme Court of Appeal may decide only—
(i) appeals;
(ii) issues connected with appeals; and
(iii) any other matter that may be referred.”
10 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17;
1999 (1) SA 374; 1998 (12) BCLR 1458 at para 45.
11 Mabaso v Law Society, Northern Provinces [2004] ZACC 8; 2005 (2) SA 117 (CC); 2005 (2) BCLR 129
(CC).
THERON J
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submissions were of assistance to this Court. For these reasons, condonation should
be granted.
Analysis
[19] As explained, the issue i n this matter is whether an appeal against a
section 17(2)(f) decision lies to this Court. In Liesching II, this Court did not decide
the question of whether an appeal lies to this Court pursuant to a “dismissal” of a
section 17(2)(f) application to the P resident. This question is an important one which
has implications for litigants beyond the immediate parties. This Court is now
presented with the opportunity to address this question. The issue has two
components: does this Court have jurisdiction ove r these appeals? If so, would this
Court ordinarily grant leave to appeal against a section 17(2)(f) decision?
[20] I first address the question of jurisdiction. I find that ordinarily this Court will
not have jurisdiction to hear these appeals because their grounds are factual in nature.
This is enough to dispose of this case, and so I leave open the further question of
whether the section 17(2)(f) decision is a decision of a court.
[21] Nonetheless, I find that even where this Court will have jurisdiction to hear the
appeal, the interests of justice will more often than not militate against the granting of
leave to appeal.
Jurisdiction
Is the President’s decision a decision of a court?
[22] This Court’s jurisdiction is delineated by section 167 of the Constitution. This
section requires that a litigant show that the matter raises a constitutional issue12 or
that it raises an arguable point of law of general public importance, 13 and that it is in
the interests of justice for leave to appeal to be granted. However, that is not the only
12 Section 167(3)(b)(i) of the Constitution.
13 Section 167(3)(b)(ii) of the Constitution.
THERON J
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pre-requisite for this Court to be vested with jurisdiction. Section 167(6) of the
Constitution states:
“National legislation or the rules of the Constitutional Court must allow a person,
when it is in the interests of justice and with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.”
[23] It is clear from this section , and in particular the words “from any other court”
that appeals to this Court must emanate from another court and be brought in terms of
some legislation or court rules. It is for this reason that this Court cannot entertain
appeals directly from, for example, the National Consumer Tribunal. This raises the
question, does a section 17(2)(f) decision amount to a decision of a court?
[24] The starting point in understanding the powers o f the President lies in
section 168(2) of the Constitution. It provides that:
“A matter before the Supreme Court of Appeal must be decided by the number of
judges determined in terms of an Act of Parliament.” (Emphasis added.)
[25] The Act of Parliament concerned is the Superior Courts Ac t. Sections 13(1)
and (2) of the Act provide that a n appeal before the Supreme Court of Appeal must be
presided over by three, five or more Judges and decided by a majority of those sitting.
Section 13(4) provides that two or more J udges have the power t o decide matters in
chambers, including applications for interlocutory relief.
[26] Section 17 of the Act deals with applications for leave to appeal. As far as an
application for leave to appeal to the Supreme Court of Appeal is concerned ,
section 17(2)(c) stipulates that a decision of the Supreme Court of Appeal on an
application for leave to appeal must be made by at least two Judges, with a third Judge
THERON J
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added if the two disagree .14 Section 17(2)(f) also provides that the decision to refuse
or grant leave to appeal “shall be final”.
[27] The section creates a n exception to this principle of finality in that it provides
that—
“the President of the Supreme Court of Appeal may in exceptional circumstances,
whether of his or her own accord or on application filed within one month of the
decision, refer the decision to the court for reconsideration and, if necessary,
variation.”
[28] In order to interpret the proper effect of this exception one must follow the now
familiar process of assessing the text, context and purpose of the provision.15
[29] Is the decision the President makes under the subsection a decision of the
Supreme Court of Appeal or not? A reading of the text may go either way. Below I
explore arguments for each interpretati on. But because I find that the President’s
decision cannot be appealed to this Court for other reasons, I refrain from making a
determinative ruling that her decision was one of a court.
[30] On the one hand, the President is not given a power to grant leav e to appeal
herself or make a final decision in this regard . The ex tent of her power under
section 17(2)(f) is to “refer” the decision “to the court” for reconsideration or
14 Section 17(2)(b) read with section 17(2)(c) indicates that an appeal may be granted by the “Supreme Court of
Appeal” and such appeal must be considered by two Judges of that Court. The sections read:
“(b) If leave to appeal in terms of paragraph (a) is refused, it m ay be granted by the
Supreme Court of Appeal on application filed with the registrar of that court within
one month after such refusal, or such longer period as may on good cause be allowed,
and the Supreme Court of Appeal may vary any order as to costs ma de by the judge
or judges concerned in refusing leave.
(c) An application referred to in paragraph (b) must be considered by two judges of the
Supreme Court of Appeal designated by the President of the Supreme Court of
Appeal and, in the case of a differen ce of opinion, also by the President of the
Supreme Court of Appeal or any other judge of the Supreme Court of Appeal
likewise designated.”
15 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) at
para 19.
THERON J
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variation. She is but one member of that Court , but not the “court” herself. Section
17(2)(f) makes this plain by saying that the President may refer the matter to “the
court” for decision.
[31] The Act generally requires that every decision of the Supreme Court of Appeal,
as a court, must be made by at least two J udges.16 Section 17(2 )(f) does not
necessarily alter this. Indeed, the section expressly provides that the decision of the
President is merely a decision about whether to refer an already dismissed application
for leave to appeal, for reconsideration. It is not a decision to grant or refuse leave to
appeal. A referral by the President, as a single J udge and member of the Court, can
thus not be said to be a decision of the Supreme Court of Appeal.
[32] On the other hand, however, the text is also reasonably capable of being
understood merely as a furth er indication of the number of J udges that must decide a
particular matter in terms of section 168(2) of the Constitution, which provides that “a
matter before the Supreme Court of Appeal must be decided by the number of judges
determined in terms of an Act of Parliament”.
[33] Seen in context, as previously held by this Court in Liesching I , the
section 17(2)(f) procedure is part of the appeal process. 17 It involves making a
judicial determination on a defined legal issue between the lit igating parties. 18 The
16 See above n 14.
17 Liesching I above n 3 at paras 60-1:
“Sections 327(1) and 17(2)(f) are both geared at preventing an injustice. They serve the same purpose,
but at different stages. Section 17(2)(f) does so while the appeal proc ess is still open while
section 327(1) applies after the appeal processes are spent and permanently closed. The section 327
procedure is also not a substitute for an appeal. It is a proc ess beyond the appeal stage that is meant to
be the final net in order to avoid a grave injustice.
Even after the section 17(2)(f) application is dismissed, the applicants can still approach this Court with
an application for leave to appeal. If successfu l, they could even apply to adduce further evidence in
this Court.”
18 Id at para 55:
“The President is given a discretion, to be exercised judiciously, to decide whether there are
exceptional circumstances that warrant referral of the matter to the Court for reconsideration or, if
necessary, variation. The President must therefore decide whether there are exceptional circumstances.
This will depend on the facts and circumstances of each case.”
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President’s decision under section 17(2)(f) of the Act thus falls comfortably within the
judicial function and purpose of the Supreme Court of Appeal leave to appeal process,
in this instance, to be exercised by one Judge of that Court, its President.
[34] The Act is, in this sense, ambiguous. This ambiguity is not resolved in this
judgment. This is because I find , f or independent reasons , that the President’s
decision cannot be appealed to this Court. Whether that decision is a decision of a
court will have to be decided on another day.
Factual grounds of appeal
[35] It is difficult to envisage how an application to appeal a decision of the
President under section 17(2)(f) could fall within the parameters of this Court’s
jurisdiction under section 167(3). In Liesching II, this Court held that in order for the
President to exercise her power in terms of section 17(2)(f), there must be exceptional
circumstances warranting the exercise of this power. 19 As this Court explained in
Liesching I, whether there are exceptional circumstances “will depend on the facts and
circumstances of each case”.20
[36] It would follow that, if an appeal lies against the decision of the President, it
would essentially amount to an appeal against the factual findings of the President on
whether exceptional circumstances exist. 21 An appeal against pu rely factual findings
does not ordinarily raise a constitutional matter, 22 nor does it usually give rise to an
arguable point of law, sufficient to bring the matter within this Court’s jurisdiction in
terms of section 167(3)(b) of the Constitution. 23 This means that ordinarily, even if a
section 17(2)(f) decision is final because the merits of the court a quo’s judgment
19 Liesching II above n 5 at para 137.
20 Liesching I above n 3 at para 55.
21 I also express no view on whether the President’s decision should be appealed or reviewed. Before us was an
appeal, and I restrict my findings to the facts of this case.
22 S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at para 15(a).
23 Paulsen v Slip Knot Investments 777 (Pty) Ltd [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR 509 at
para 20.
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cannot be appealed to this Court, an appeal against such a decision will not engage the
jurisdiction of this Court.24
[37] The appeal in this mat ter is a case in point. Its grounds are purely factual in
nature as they target the President’s decision regarding the existence of ex ceptional
circumstances. An appeal of this nature does not engage the jurisdiction of this Court.
Leave to appeal
[38] Even where an appeal against a section 17(2)(f) decision engages this Court’s
jurisdiction, it will often not be in the interests of justice to grant leave to appeal. This
is because the decision will often not be final, granting leave could create a dual
appeal process, and no prejudice will result from a refusal to grant leave.
Final decision
[39] It is well accepted in our law that only final decisions or decisions having final
effect are appealable, unless the interests of justice require otherwise .25 It is useful to
have regard to the general approach of the Supreme Court of Appeal to appeal ability
as explained in Zweni:
“A ‘judgment or order’ is a decision which, as a general principle, has three
attributes, first, the decision must be final in effect and not susceptible of alteration by
the court of first instance; second, it must be definitive of the rights of the parties;
and, third, it must have the effect of disposing of at least a substantial portion of the
relief claimed in the main proceedings. The second is the same as the oft -stated
requirement that a decision, in order to qualify as a judgment or order, must grant
definite and distinct relief.”26
24 Perhaps the only example of where such an appeal will engage the jurisdiction of this Court is where there is
evidence showing that the section 17(2)(f) decision was taken in bad faith and out of malice.
25 Tshwane Cityv Afriforum [2016] ZACC 19; 2016 (6) SA 279 (CC) ; 2016 (9) BCLR 1133 (CC ) at para 40;
Grancy Property Limited v Seena Marena Investment (Pty) Ltd [2014] ZASCA 50; [2014] 3 All SA 123 (SCA)
at paras 12-22; and Zweni v Minister of Law and Order [1992] ZASCA 197; 1993 (1) SA 523 (A) at 532J-533A.
26 Zweni id.
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[40] Does the exercise of the President’s power under section 17(2)(f) give rise to a
final decision? The answer invariably depends on the facts. In the ordinary course,
the President’s power under section 17(2)(f) is merely a limited procedural power to
ensure that, in truly exceptional cases, a further decision can be taken by the
Supreme Court of Appeal . In essence, the power of the President is a power of
referral to the Court. It does not dispose of any of the issues or portion thereof. The
decision not to refer cannot be said to be appealable , if only because it does not meet
the requirements outlined in Zweni.27 It is not itself a final decision , nor definitive of
the rights of the parties , nor has the effect of disposing of at least a substantial portion
of the relief sought in the main proceedings. This means that in the ordinary course,
the decisi on is not appealable, unless there are some other overarching interests of
justice that require this Court to grant leave to appeal.
[41] This conclusion – that a section 17(2)(f) decision is not final – must be read
with a caveat. It may be that in exception al circumstances a section 17(2)(f) decision
is considered final in nature and hence, in principle, appealable. This is where, for
instance, no appeal to this Court on the merits of the court a quo’s judgment is
available to the applicant. 28 In such cases the decision may be final and appealable,
but whether the application to appeal that decision will engage this Court’s
jurisdiction, for reasons outlined above, is a different question. In most instances, as
in this case, it will not.
Avoiding a dual-appeal process
[42] The conclusion, that ordinarily it will not be in the interests of justice to grant
leave to a ppeal against a section 17(2)(f) decision, is supported by a further
consideration. Section 17(2)(f) d oes not create a dual -appeal process, which would
enable a litigant to approach this Court for leave to appeal against the refusal of an
27 Id.
28 This is because, for example, the grounds of appealing the merits are purely factual.
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application in terms of that section and then again in respect of the merits . Why do I
say so?
[43] The proviso in section 17(2)(f) performs the funct ion of a safety-net, giving the
President the power to intervene , in order to cure errors or mistakes , prevent an
injustice or where a failure to intervene would result in the administration of justice
being brought into disrepute. 29 In doing so, it create s a diversion from the usual
appeal process by allowing for the reconsideration by the Court of the refusal of leave
to appeal by two Judges, at the instance of the President. The path that the matter then
takes along the appeal process is determined by t he manner in which the President
exercises her discretion.
[44] In the event that the President exercises her discretion to refer the decision for
reconsideration or variation to the Court, the matter would then be heard by the
Supreme Court of Appeal. It will be reconsidered and thereafter may be entertained in
full by the Supreme Court of Appeal or dismissed once more . In the ordinary course,
an appeal against the decision of the Supreme Court of Appeal (dealing with the
reconsideration) may lie to this Court depending on whether it results in a reasoned
judgment.
[45] In instances where the President does not refer the decision for reconsideration,
the matter would revert to the ordinary, default appeal process. This would mean that
the decision of the two Judges refusing leave to appeal would stand as a final decision
of the Supreme Court of Appeal and appeal may lie to this Court against the last
reasoned judgment.30
[46] I am fortified in this view by the provision in section 17(2)(f) that the decision
of the Judges considering an application for leave to appeal under section 17(2)(b)
29 See generally Liesching I above n 3; Avnit v First Rand Bank Ltd [2014] ZASCA 132; 2014 JDR 2014 (SCA).
30 Mabaso above n 11 at para 18; Swartbooi v Brink [2003] ZACC 5; 2003 (5) BCLR 497 (CC) (Swartbooi I) at
paras 3-4.
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“shall be final”. The finality of that decision is only disturbed in cases where the
President exercises her discretion to “refer the decision” refusing leave to appeal to
the Supreme Court of Appeal for reconsideration.
[47] To find , as a matter of course, that an appeal lies to this Court against the
decision of the President acting in terms of section 17(2)(f) would in effect create a
dual appeal process. It would allow a litigant to appeal to this Court within the narrow
ambit of section 17(2)(f): either on the basis that the President was wrong to find that
there were no exceptional circumstances or that she failed to exercise her discretion
judiciously. Practically, the door would then be open for the same litigant to later
appeal to this Court in respect of the merits of the same matter.
[48] In addition, to find that a litigant may appeal to this Court against the
section 17(2)(f) decision would be inconsistent with the approach this Court has
adopted in regard to appeals from the Supreme Court of Appeal. 31 Nedbank, in
supporting this reasoning, appropriately refers to Mphahlele, where this Court held,
before the enactment of the S upreme Court Act, that the refusal of leave to ap peal by
the S upreme Court of Appeal “is not appealable to any other court” .32 This Court
further held in Mabaso that where leave to appeal is refused in terms of rule 19 ,
subsequent appeals to this Court are not against that refusal:
“It is clear from the text of rule 19, however, that where an application for leave to
appeal to the Supreme Court of Appeal is refused by the President of the
Supreme Court of Appeal , a refusal which is ordinarily unaccompanied by reasons,
any subsequent appeal to this Court is considered to be an appeal, not against the
decision of the Supreme Court of Appeal , but against the High Court decision, and
the time for lodging the appeal is duly extended. This is consistent with the
jurisprudence of this Court under the earlier rules.”33
31 Mabaso id at para 18; Swartbooi I id at paras 3 -4; Mphahlele v First National Bank of SA [1999] ZACC 1;
1999 (2) SA 667 (CC); 1999 (3) BCLR 253 (CC).
32 Mphahlele id at para 14.
33 Mabaso above n 11 at para 18.
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[49] In Swartbooi I, t his Court had to consider the situation where the
Supreme Court of Appeal had refused leave to appeal and the litigant wished to apply
to this Court for leave to appeal. The question was whether the applicatio n for leave
to appeal would lie against the decision of the relevant High Court on the merits or the
decision of the Supreme Court of Appeal refusing leave to appeal. This Court
expressly held that the application for leave to appeal had to be brought aga inst the
decision of the High Court on the merits and not against the decision of the
Supreme Court of Appeal refusing leave to appeal:
“When the Supreme Court of Appeal refuses to grant leave to appeal in a case, the
appeal to this Court is not an appeal against the Supreme Court of Appeal’s refusal of
leave to appeal to it but an appeal against the High Court decision itself.”34
[50] The approach adopted in Swartbooi I was su bsequently confirmed by this
Court in Basson I,35 Mabaso36 and Basson II,37 unanimously on each occasion. Two
principles emerging from these cases are of relevance in this matter. First, that an
appeal only lies to this Court against a decision of the Supreme Court of Appeal where
that Court has pronounced on the merits of the dispute. Second, where that Court has
refused leave to appeal or refused condonation , an appeal would lie to this Court
against the judgment of the High Court on the merits.
[51] As was e xplained in Mabaso, there are sound jurisdictional reasons for this
approach:
“This approach would protect the inherent power of the Supreme Court of Appeal, as
confirmed by the Constitution, ‘to protect and regulate [its] own process ’. It would
avoid this Court having regularly to second-guess the Supreme Court of Appeal when
34 Swartbooi I above n 30 at paras 3-4.
35 S v Basson [2004] ZACC 13; 2005 (1) SA 171 (CC); 2004 (6) BCLR 620 (CC) (Basson I) at paras 79–81.
36 Mabaso above n 11 at para 18.
37 S v Basson [2005] ZACC 10; 2007 (3) SA 582 (CC) ; 2005 (12) BCLR 1192 (CC) (Basson II) at paras 129 -
134.
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it refuses condonation which might undermine the Supreme Court of Appeal 's
autonomous regulation of its own process.”38
[52] This Court also explained that this approach would not prejudice a prospective
appellant because it would not be a bar to approaching this Court for leave to appeal
on the merits. All that mean s is that the prospective appellant would have to seek
leave from this Court to appeal against the merits of the judgment of the High Court,
rather than against the refusal of leave to appeal or refusal of condonation by the
Supreme Court of Appeal.39
[53] Admittedly, at the time when these cases were decided, section 17(2)(f) of the
Superior Courts Act did not exi st. Nevertheless, as submitted by Nedbank, the
approach adopted by this Court remains instructive as to the nature of the decision of
the President and the proper approach to dealing with po tential appeals against
section 17(2)(f) decisions by the President.
Is there any prejudice if the President’s decision is not appealable?
[54] The parties agreed that there is little or no prejudice to a litigant if it is held that
there is ordinarily no appeal against a section 17(2)(f) decision, which cannot be cured
by the avenue of an appeal on the merits. The refusal of a section 17(2)(f) decision is
not the end of the road for a litigant; an appeal to this Court is still available. This is a
further reason supporting the conclusion that an appeal will not lie against a
section 17(2)(f) decision unless there are compelling circumstances.
[55] A litigant who has had her section 17(2)(f) application refused by the President,
has already—
(a) had a full hearing in the High Court and not succeeded on the merits;
(b) sought and been refused leave to appeal from the High Court;
38 Mabaso above n 11 at para 23.
39 Id at para 24.
THERON J
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(c) sought leave to appeal from the Supreme Court of Appeal and been
refused leave by two Judges (at the very least); and
(d) sought and been refused a referral order by the President under
section 17(2)(f).
Moreover, a litigant still has the right, a fter the President’s refusal, to approach this
Court for leave to appeal against the High Court judgment on the merits.
[56] This is an extensive and generous set of procedur al rights and entitlements.
There is no need to contend that, in addition, a litigant necessarily has a right to
approach this Court to contest the validity of the President ’s section 17(2)(f) decision.
There is a phenomenon referred to as the “tyranny o f litigation”40 and there must be
limits to how many times a litigant is able to reapproach the courts.
[57] In any event, this Court has held that in considering whether to grant leave to
appeal, it is necessary to consider whether “allowing the appeal would l ead to
piecemeal adjudication and prolong the litigation or lead to the wasteful use of judicial
resources or costs” .41 Similarly, in TAC I, this Court stated that “it is undesirable to
fragment a case by bringing appeals on individual aspects of the case prior to the
40 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78 ; 2008
(5) SA 339 (SCA) at para 16; Golden International Navigation SA v Zeba Maritime Co Ltd 2008 (3) SA 10 (C)
at para 19. In Juta & Co Ltd v Legal and Financial Publishing Co (Pty) Ltd 1969 (4) SA 443 (C); [1969] 4 All
SA 311 (C) at 445C-F van Wyk J discussing the “tyranny of litigation” stated:
“This decision also has a bearing on the issue as to whether the Court should, in the
circumstances, allow the applicant to proceed with the application for an interdict pendente
lite. If one bears in mind the long delays, for which no explanation has been given, that as far
back as December the applicant had numerous clear cases of copying in its possession,
according to the letter written by the applicant, and that up to now no acti on has been
instituted, it seems that the applicant has erred in selecting this method, namely, an application
for an interdict pendente lite , but even if it was the appropriate procedure at the time the
applicant has, by reason of the facts stated above, forfeited its rights to this temporary relief.
Had it issued summons at the time when the notice of motion proceedings were instituted, the
trial could already have taken place.
There is such a thing as the tyranny of litigation, and a court of law should not allow a party to
drag out proceedings unduly. In this case we are considering an application for an interdict
pendente lite which, from its very nature, requires the maximum expedition on the part of an
applicant.”
41 South African Informal Traders Forum v City of Johannesburg [2014] ZACC 8; 2014 (4) SA 371 (CC); 2014
(6) BCLR 726 (CC) at para 20(g) (Informal Traders).
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proper resolution of the matter in the court of first instance”. 42 This is one of the main
reasons why interlocutory orders are generally not appealable while final orders are.43
[58] This Court has held that it will only interfere in pending proceedings in the
lower courts in cases of “great rarity – where grave injustice threatens, and where
intervention is necessary to attain justice”.44
[59] Granting leav e to appeal against the President ’s decision in terms of
section 17(2)(f) would normally result in the same difficulties that arise with the
determination of interlocutory orders – leaving protracted litigation pending,
piecemeal adjudication of issues and ultimately wasting court resources at the expense
of the parties .45 If this Court were to entertain app eals against a
section 17(2)(f) decision, it would first have to decide whether the President’s
decision falls to be reviewed and set aside. If it does, this Court would likely refer the
matter back to the President to decide afresh. In the event that the President decided
to refer the matter for reconsideration that would mean that the Supreme Court of
Appeal would decide whether or not to grant leave to appeal. If they granted leave to
appeal, the appeal would be heard by that Court. At the end of that process, an
unsuccessful litigant would have the right to approach this Court again, for an appeal
on the merits, this time.
[60] In my view, this approach is simply not consistent with the interests of justice.
This is especially so where there is a readily available mechanism to prevent an y
injustice, let alone a grave injustice. This is to direct that a litigant dissatisfied with
the President’s decision must instead seek leave to appeal to this Court against the
High Court decision on the merits. Indeed, rule 19(2) of this Court’s Rules expressly
42 Minister of Health v Treatment Action Campaign (No 1) [2002] ZACC 16; 2002 (5) SA 703 (CC); 2002 (10)
BCLR 1075 (CC) (TAC I) at para 9.
43 Cipla Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation [2017] ZASCA 134; 2018 (6) SA 440 (SCA) at
para 48; African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A) at 47.
44 Psychological Society of South Africa v Qwelane [2016] ZACC 48; 2017 JDR 0062 (CC) ; 2017 (8) BCLR
1039 (CC) at para 40.
45 Informal Traders above n 41 at para 20.
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recognises thi s. It states that while leave to appeal must be sought from this Court
within 15 days of the delivery of the judgment being appeal ed against, this is subject
to the proviso—
“that where the President has refused leave to appeal the period prescribed in this rule
shall run from the date of the order refusing leave.”
[61] That rule has been interpreted to refer to the refusal o f leave to appeal by the
Supreme Court of Appeal (as opposed to the refusal of a section 17(2)(f) application
by the President),46 and its intent is clear. Once a litigant has exhausted her options in
the S upreme Court of Appeal she may then apply for leave to appeal to this Court
within 15 days.
[62] On this approach, there is no possible prejudice to the litigant caused by this
Court not normally hearing appeals from the President’s section 17(2)(f) decision.
Once the President has made her section 17(2)(f) decision, the litigant has 15 days to
approach this Court to seek leave to appeal against the High Court decision.
[63] Two results are possible. If this Court grants leave to appeal, then there is
plainly no prejudice. If this Court refuses leave to appeal, it means that the litigant has
then failed to persuade four different judicial fora that she has reasonable prospec ts of
success – the High Court Judge, the two J udges in Supreme Court of Appeal , the
President of the Supreme Court of Appeal and this Court. It is then perfectly fair and
non-prejudicial to say that the matter has come to an end.
Conclusion
[64] Section 17(2)(f) is simply a further safety net within the appeals process. It is
not necessary for an appeal against a section 17(2)(f) decision to be available
separately where a litigant may still approach this Court on appeal. It would not
46 Mabaso above n 11 at para 18.
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prejudice a prospective appellant, because the avenue to appeal to this Court would
still be available.47
[65] I am compelled to the conclusion that normally no appeal lies against the
decision of the President pursuant to section 17(2)(f) . An applicant who wis hes to
appeal must do so within the ordinary appeal process.
Costs
[66] There is no reason to award costs in this matter. Both applications were not
opposed and the subsequent participation of the parties , after the issuing of directions,
assisted this Court in reaching a just and reasoned outcome.
[67] The following order is made:
Under CCT 324/17 (Cloete and Another v S):
1. The applications for condonation are granted.
2. The application for leave to appeal is dismissed.
3. There is no order as to costs.
Under CCT 63/18 (Sekgala v Nedbank Limited):
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
47 Id at para 24.
For the Applicants in CCT 324/17:
For the Respondent in CCT 324/17:
For the Amicus Curiae in CCT 324/17:
For the Applicant in CCT 63/18:
For the Respondent in CCT 63/18:
N Jagga instructed by Du Plessis
Viviers Inc
M D Moeketsi instructed by the
Director of Public Prosecutions
H Alberts and N L Skibi instructed by
Legal Aid South Africa
Unrepresented
S Budlender and T Ramogale
instructed by Enderstein & Van Der
Merwe Inc