Summary of Judgment

1. Introduction

This judgment concerns applications for leave to appeal brought by the Minister of Mineral Resources and Energy, the National Nuclear Regulator, and the Chairperson of the Board of Directors of the National Nuclear Regulator (collectively, “the respondents”). They sought leave to appeal to the Supreme Court of Appeal against an earlier judgment of the Western Cape High Court delivered on 19 January 2023.

The applicant in the underlying proceedings was Mr Peter Becker. In the principal matter, he challenged the Minister’s decision to discharge/remove him on the ground of “misconduct” under section 9(1)(c) (as referred to in the judgment). The present judgment does not rehearse the full merits of that earlier decision, but addresses whether the respondents met the statutory threshold for leave to appeal.

Procedurally, the respondents each advanced multiple grounds of appeal, contending that there were reasonable prospects of success and, additionally, compelling reasons for an appellate court to hear the matter because the court’s findings allegedly had broader implications beyond the immediate dispute. Mr Becker, in turn, delivered a conditional application for leave to appeal directed at the court’s failure (in the main judgment) to grant relief sought in prayer 3 of his amended notice of motion dated 23 May 2022.

The general subject-matter of the dispute, as it emerged in the leave-to-appeal proceedings, concerned the judicial review of the Minister’s removal decision on a misconduct basis, including the proper approach to assessing “misconduct”, the rationality and fairness of the decision, and whether the court in the main judgment impermissibly crossed the boundary between review and appeal.

2. Material Facts

The materially relevant and largely undisputed facts for purposes of the leave-to-appeal determination were that the court had already delivered a substantive judgment on 19 January 2023 concerning the Minister’s removal of Mr Becker for “misconduct”, and that the respondents now sought leave to appeal that outcome to the Supreme Court of Appeal.

It was also common cause that the respondents relied on the statutory tests in section 17(1)(a)(i) and section 17(1)(a)(ii) of the Superior Courts Act 10 of 2013, namely that leave may be granted if there are reasonable prospects of success, or if there are compelling reasons why an appeal should be heard.

A further fact relied upon by the court was that the respondents’ critique of the main judgment included contentions that the court had: treated review as if it were an appeal; misconceived the statutory reference to “misconduct” as a jurisdictional requirement; and made evaluative comments (including about how Mr Becker’s conduct “should have been dealt with better”) that the respondents characterised as impermissible or irrelevant.

The court also treated as material the existence of public statements attributed to the Minister, including statements made in a Newsroom interview on 3 February 2022 and later at an ANC conference on 7 May 2022, as part of its explanation for why it considered the Minister to have pre-judged Mr Becker’s conduct (as reflected in the main judgment’s analysis, reaffirmed in this leave-to-appeal judgment).

Finally, the court relied on its earlier factual conclusion (reiterated here) that, on the material placed before the Minister by the second respondent, no actionable misconduct by Mr Becker could be deduced, and that the Minister’s stated reasons for discharge (including as set out in the discharge letter of 22 February 2022) were not consistent with the Minister’s later answering affidavit in the litigation, which the court treated as indicative of irrationality.

3. Legal Issues

The central legal questions in the leave-to-appeal proceedings were whether the respondents had satisfied the requirements for leave to appeal under section 17 of the Superior Courts Act 10 of 2013, specifically whether there was a sound and rational basis to conclude that there were reasonable prospects of success on appeal, or whether there were compelling reasons for the appeal to be heard.

Embedded within that enquiry was whether the respondents’ proposed grounds of appeal genuinely revealed appealable error, including their contention that the court in the main judgment improperly moved from review reasoning to appeal reasoning, and whether it wrongly treated the statutory reference to “misconduct” in section 9(1)(c) as a matter permitting the court itself to determine correctness as a matter of fact.

The dispute in this judgment primarily concerned the application of law to fact, guided by the statutory test for leave to appeal. It also involved an evaluative assessment of whether the asserted grounds of appeal rose above disagreement with the main judgment and established genuine prospects of success or compelling reasons warranting an appeal.

4. Court’s Reasoning

The court’s reasoning proceeded from the statutory framework governing leave to appeal. It emphasised that leave to appeal is not granted merely because a party disagrees with a judgment or offers an alternative reading of it; rather, the applicants for leave must establish a sound, rational basis for prospects of success, and/or compelling reasons for appellate consideration, as contemplated in section 17 of the Superior Courts Act 10 of 2013 and confirmed in Supreme Court of Appeal authority.

Against that standard, the court rejected the respondents’ characterisation that it had “slipped” from review to appeal. The court explained that the impugned executive action in the underlying matter was a discharge decision founded on “misconduct”, and that assessing rationality, reasonableness, and procedural fairness in that setting necessarily required an analysis of what “misconduct” meant in the applicable statutory context and whether the evidentiary material before the decision-maker could sustain such a conclusion. The court therefore treated its engagement with “misconduct” not as an impermissible substitution of the court’s view for that of the Minister, but as part of a proper review enquiry into the rationality and fairness of the decision taken on that basis.

The court further reasoned that the respondents’ attack relied on what it considered a selective reading of the main judgment. In the court’s view, the respondents elevated certain comments into “findings” while failing to grapple with the central defect identified in the main judgment: that on the material before the Minister, no actionable misconduct could be deduced, yet the sanction imposed was discharge for misconduct. In that context, the court held that the reasonableness, rationality, and fairness of the decision were “attendant upon” whether there was misconduct, and that the absence of such misconduct undermined any rational foundation for the Minister’s discharge decision.

In addition, the court treated as significant that the Minister’s reasons in the discharge letter were inconsistent with the Minister’s later answering affidavit in the review proceedings, which the court regarded as a clear indication that the decision was irrational. The court also reiterated its view that the Minister’s public statements (referred to by date and forum) supported the inference that the Minister had pre-judged Mr Becker’s conduct, thereby reinforcing the court’s earlier conclusions about the flawed decision-making process.

The court also addressed the respondents’ contention that the classification of the Minister’s power as “executive” or “administrative” was complex and required appellate scrutiny. It rejected that submission, stating that the issue had been dealt with in prior judgments of the Supreme Court of Appeal and the Constitutional Court, and that it did not regard the matter as complex in the way suggested by the respondents.

In evaluating the leave-to-appeal threshold, the court relied on authority emphasising that leave should be granted only where there is a sound, rational basis for prospects of success, and it concluded that the respondents had not demonstrated such a basis. The court considered that the respondents had not truly identified compelling reasons for an appeal other than advancing their preferred interpretation of the main judgment. In the court’s assessment, such disagreement did not meet the statutory threshold.

Finally, the court addressed Mr Becker’s conditional application for leave to appeal concerning the court’s failure to deal with prayer 3 of the amended notice of motion. The court stated that, insofar as it had misunderstood and failed to deal with that prayer, this was regrettable and it apologised unconditionally. However, because the respondents’ leave-to-appeal applications were refused, the conditional application could not proceed.

5. Outcome and Relief

The court refused the applications for leave to appeal brought by the first, second, and third respondents.

As a consequence of that refusal, the applicant’s conditional application for leave to appeal (directed at the omission relating to prayer 3) could not be proceeded with.

The respondents were ordered to pay the costs of the leave-to-appeal application.

Cases Cited

Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA)

Fusion Properties 233 CC v Stellenbosch Municipality [2021] ZASCA 10 (29 January 2021)

Nwafor v The Minister of Home Affairs and Others [2021] ZASCA 58 (12 May 2021)

Chithi and Others; In re: Luhlwini Mchunu Community v Hancock and Others [2021] ZASCA 123 (23 September 2021)

Legislation Cited

Superior Courts Act 10 of 2013 (section 17(1)(a)(i) and section 17(1)(a)(ii))

Section 9(1)(c) (statutory provision governing removal/discharge on the ground of “misconduct”, as referred to in the judgment)

Companies Act (referred to, but not further identified in the judgment)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the respondents failed to satisfy the threshold in section 17 of the Superior Courts Act 10 of 2013 for leave to appeal. On the court’s reiterated conclusion that there was no evidentiary basis for actionable misconduct attributable to Mr Becker on the material placed before the Minister, there was no sound or rational basis to conclude that the respondents had reasonable prospects of success on appeal, nor were compelling reasons demonstrated for appellate consideration.

It was further held that the respondents’ grounds largely amounted to substituting their preferred reading of the judgment for the court’s analysis, which did not justify leave to appeal. Leave to appeal was accordingly refused with costs, and the applicant’s conditional leave-to-appeal application did not proceed.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal under section 17 of the Superior Courts Act 10 of 2013 requires more than disagreement with the judgment. There must be a sound, rational basis for concluding that there are reasonable prospects of success on appeal, and/or demonstrated compelling reasons why an appeal should be heard.

It further applied the principle that where an impugned decision is taken on the basis of “misconduct”, a review court assessing rationality, reasonableness, and procedural fairness may need to engage substantively with whether the material before the decision-maker could sustain a finding of misconduct, because the validity of the sanction is dependent on the existence of the misconduct foundation asserted.

The judgment also reflects the applied principle that material inconsistencies between the reasons originally furnished for a decision and reasons later advanced in litigation may support a conclusion of irrationality, particularly where the decision is defended on shifting or incompatible bases.