IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable
Case 2026-138228
In the matter between:
UMKHONTO WESIZWE PARTY
UNITED AFRICANS TRANSFORMATION
First Applicant
Second Applicant
And
MATAMELA CYRIL RAMAPHOSA
First Respondent
VUYOLWETHU ZUNGULA
Second Respondent
AFRICAN TRANSFORMATION MOVEMENT
Third Respondent
THE ECONOMIC FREEDOM FIGHTERS
Fourth Respondent
SPEAKER OF THE NATIONAL ASSEMBLY
Fifth Respondent
CHAIRPERSON OF THE IMPEACHMENT
COMMITTEE
Sixth Respondent
In re:
MATAMELA CYRIL RAMAPHOSA Applicant
And
SPEAKER OF THE NATIONAL ASSEMBLY AND SIX
OTHERS
Respondents
Coram: Le Grange J, Francis J et Davis J
Heard: 21 August 2026
Delivered: 28 August 2026
Summary: Application for leave to appeal against an interim interdict restraining
public hearings in a s 89 impeachment enquiry — s 17(1) of the Superior Courts
Act 10 of 2013 — the conditions in paras (a), (b) and (c) are cumulative —
appealability governed by the interests of justice and going to the jurisdiction of
the court of appeal, which a grant of leave below does not bind — meaning of
“falls within the ambit of section 16(2)(a)” in s 17(1)(b) — the description of the
class of case is directed to the court of first instance, the discretion to hear a moot
appeal is reserved to the court of appeal — same result on the alternative
construction — order lapsing before any appeal can be heard — stare decisis and
earlier full bench decisions of the same Division sitting at first instance — leave
refused notwithstanding that two of the grounds raise unsettled questions of law.
__________________________________________________________________
ORDER
__________________________________________________________________
1. Leave to appeal is refused.
2. The costs of this application stand over for determination by the court
hearing the review under case number 2026-119182.
__________________________________________________________________
JUDGMENT ON LEA VE TO APPEAL
__________________________________________________________________
FRANCIS, J: (LE GRANGE ADJP et DA VIS J concurring):
Introduction
[1] On 24 July 2026, this Court, sitting as a court of first instance constituted of
three judges, restrained the Speaker of the National Assembly ('the Speaker') and
the Chairperson of the Impeachment Committee ('the Chairperson') from
proceeding with public hearings under rule 129M of the Rules of the National
Assembly. The restraint operates pending the determination of the first
respondent's ('the President's') review of the report of the s 89 Independent Panel
dated 30 November 2022, under case number 2026-119182.
[2] The Court was divided. I would have refused the interdict, for the reasons given
in the first judgment. Davis J took the opposite view, and Le Grange ADJP
concurred with her in a separate judgment. That division is relevant only insofar as
it forms part of the applicants' case for leave to appeal. It does not alter the present
enquiry. An application for leave to appeal is not an occasion to revisit the merits
of the order, and a dissent is not itself a ground of appeal.
[3] The sixth and seventh respondents in the interdict application, the uMkhonto
weSizwe Party and United Africans Transformation, are the applicants seeking
leave to appeal the judgment and order. They rely on both elements of s 17(1)(a) of
the Superior Courts Act 10 of 2013 ('the Act'). The Speaker and the Chairperson
neither support nor oppose the application.
[4] The application was heard out of the ordinary course and under shorter time
limits. We are indebted to counsel for keeping their submissions brief and focused.
The order and its duration
[5] Two features of the order are important. First, it is narrow. It restrains only the
holding of public hearings under rule 129M and leaves the Committee free to
continue with its preparatory activities. Second, the order terminates automatically
upon the determination of the review, after which it falls away without the need for
a further order.
[6] The review is set down for hearing from 2 to 4 September 2026.
[7] The current state of the impeachment proceedings was placed before us from
the Bar without objection. The Committee's terms of reference are not yet fulfilled
and fall to be considered on 1 September 2026. The President has objected to the
proposed chief evidence leader, and a legal opinion has been sought. No assistant
evidence leaders had been appointed. Once the evidence leader briefs the
Committee on the Panel report, a call for evidence, statements, and witness lists
will follow. No hearing under rule 129M is thus imminent.
The statutory test
[8] Section 17(1) of the Act provides that leave to appeal may be given only where
the judge or judges concerned are of the opinion that:
(a)(i) the appeal would have a reasonable prospect of success, or (ii) there is some
other compelling reason why the appeal should be heard, including conflicting
judgments on the matter under consideration; and
(b) the decision sought on appeal does not fall within the ambit of s 16(2)(a); and
(c) where the decision sought to be appealed does not dispose of all the issues in
the case, the appeal would lead to a just and prompt resolution of the real issues
between the parties.
[9] The structure of the section matters. Paragraphs (a), (b) and (c) are not
alternatives. The word "and" stands at the end of each of the first two, and all three
must be satisfied before leave may be given. An applicant who shows reasonable
prospects or a compelling reason why the appeal should be heard satisfies
paragraph (a) and no more.
[10] The threshold is demanding. A reasonable prospect requires a sound rational
basis for concluding that the appeal has a realistic chance of success. A merely
arguable case or one that is not hopeless is insufficient (see MEC for Health,
Eastern Cape v Mkhitha and Another (1221/15) [2016] ZASCA 176 para [17]).
Appealability
[11] On the issue of appealability, the President's first answer, taken in the heads of
argument filed on his behalf, is that the order is not appealable at all. Measured
against the attributes identified in Zweni v Minister of Law and Order 1993 (1) SA
523 (A) at 532I -533A, the answer would be a short one. The order is not final in
effect, it is not definitive of the rights of the parties, and it does not dispose of any
part of the relief claimed in the review. That is no longer the enquiry. During
argument, Mr Budlender, the President's counsel, correctly accepted that the old
Zweni attributes do not provide the governing test.
[12] In United Democratic Movement and Another v Lebashe Investment Group
(Pty) Ltd and Others [2022] ZACC 34; 2023 (1) SA 353 (CC), the Constitutional
Court held that appealability is now determined by the interests of justice and
whether the order constitutes a decision for purposes of s 16(1)(a) of the Act. What
is decisive, even where the Zweni attributes are not fully met, is where the interests
of justice lie in the particular case, and whether an order lacking one or more of
those attributes is a decision for the purposes of s 16(1)(a) of the Act (Lebashe para
[45]). The enquiry involves no discretion. It is a value judgment on a question of
law. The Supreme Court of Appeal has said the same of interim restraints in
particular. In Eskom Holdings Soc Ltd v Lekwa Ratepayers Association and
Others; Eskom Holdings Soc Ltd v Vaal River Development Association (Pty) Ltd
and Others (870/20) [2022] ZASCA 10; 2022 (4) SA 78 (SCA) para [7], adopting
what Meyer AJA had earlier said sitting as Meyer J in Old Mutual Ltd and Others v
Moyo and Another [2020] ZAGPJHC 1 para [103], it held that although it is
generally not in the interests of justice to permit an appeal against an interim
interdict, there are limited circumstances in which the interests of justice dictate
that such an order be appealable, and that whether they exist is a fact -specific
enquiry. In that matter, the parties agreed that the interdicts were appealable, and
the Court accepted the concession (Eskom para [6]).
[13] On occasion, the nature and effects of an order have rendered interim orders
appealable (see, for example, South African Informal Traders Forum and Others v
City of Johannesburg and Others 2014 (4) SA 371 (CC)). An interim order
restraining Parliament in the exercise of the accountability function assigned to it
by s 89 of the Constitution is a grave intrusion upon the exercise of public power
and affects Parliament's constitutional accountability function. That consideration
weighs in favour of appealability. Against that stands the features I have already set
out. The order is narrowly circumscribed. It does not restrain the Committee from
doing what it is currently able to do. It lapses when judgment is delivered in a
review to be heard in the next week. And the two respondents whom it binds have
not objected to it in this Court.
[14] It is unnecessary for the purposes of this judgment to determine whether the
order is appealable, and I shall assume in the applicants ’ favour that it is. The
Supreme Court of Appeal, if called upon, will ultimately determine the issue.
Section 17(1)(b): the decision sought on appeal
[15] Section 17(1)(b) requires that the decision sought on appeal does not fall
within the ambit of s 16(2)(a). That subsection provides that a court of appeal may,
in its discretion, dismiss an appeal on the grounds that the decision sought will
have no practical effect or result, save where exceptional circumstances justify a
hearing.
[16] The decision sought on appeal in this matter is the setting aside of the interim
interdict. That interdict lapses when judgment in the review is delivered, and the
review is to be heard in the next week. Leave, were it given, would be followed by
the preparation and lodging of a record, the filing of heads, and enrolment before
the Supreme Court of Appeal. Even on an expedited basis, the applicants say they
would seek, and, assuming the President of that Court acceded to the request, an
appeal will not realistically be heard before the review is decided. Mr Mpofu, who
appeared for the applicants, did not contend otherwise. His answer lay elsewhere.
There were three of them.
[17] The first was that mootness cannot be tied to a future and uncertain event. No
court, he said, can predict how long another court will take to decide a complex
matter, and one iteration of this litigation took some eighteen months.
[18] That submission misconstrues the relevant enquiry. Section 17(1)(b) does not
require this Court to specify a date. It requires only an assessment of the current
circumstances and the likely effect of the decision sought. Nor does the
comparison with the earlier litigation assist. What took eighteen months was a
matter that travelled to the apex court. In the present matter, the review is fully
prepared and scheduled for a three -day hearing, much of which has already been
canvassed over two days of argument and in a judgment emanating from this
Court. Although the precise date of the review judgment cannot be predicted, it is
highly improbable that the Supreme Court of Appeal will adjudicate this interim
order before the review is decided.
[19] The second answer was that the President has reserved the right to seek a
further stay pending appeals against the judgment in the review, so that the restraint
may in truth run for years. That reservation was recorded in the first judgment at
paras [49] and [68] and was treated there as an aggravating feature of the relief
sought.
[20] The argument is a criticism of the relief granted. It does not advance the case
for leave. A stay of pending appeals against the review judgment would be a
different order, sought on different facts and at a different time, and it would be
granted or refused on its own merits. If granted, it could be challenged in its due
course. What it could not do is revive an order that has already lapsed. The
President's heads record that he sought to restrain the hearing only pending
judgment in the review, and Mr Budlender confirmed that position from the Bar,
though he stopped short of an undertaking. Taking the President's position as it
stands, this Court cannot give leave on the strength of an application that may
never be brought and, if brought, may not succeed.
[21] The third answer is the substantial one. Mootness, Mr Mpofu submitted, is no
absolute bar. An appellate court retains discretion to decide a discrete legal issue of
public importance, even when the decision will have no practical effect between
the parties. That discretion belongs to the Supreme Court of Appeal, and this Court
should not foreclose its exercise by refusing leave (see Qoboshiyane NO and
Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012] ZASCA 166;
2013 (3) SA 315 (SCA) para [5]).
[22] The premise is correct as far as it goes. The discretion exists, and section
16(2)(a)(i) confers it on a court of appeal. Solidariteit Helpende Hand NPC and
Others v Minister of Cooperative Governance and Traditional Affairs (104/2022)
[2023] ZASCA 35 (31 March 2023) para [18] says as much in terms.
[23] Solidariteit does not carry the matter beyond that, because it was concerned
with a different situation. The impugned regulations there had been repealed before
the matter was heard in the High Court, so that the cause of action had ceased to
exist before judgment in the court of first instance. What the Supreme Court of
Appeal held at para [18], is that a court in that position has no claim before it to
adjudicate, and that its function is to determine cases which present live issues
(quoting Minister of Justice and Correctional Services and Others v Estate Late
Stransham-Ford [2016] ZASCA 197; 2017 (3) SA 152 (SCA) paras 25 and 26).
That is not the position here. The proceeding before us is still live. What is said to
lack practical effect is not this application, but the decision sought on appeal.
Solidariteit tells us where the discretion under s 16(2)(a)(i) lies. It does not answer
the question before us.
[24] Nor do I rest on any proposition that this Court may not consider how another
court would exercise its discretion. The answer to Mr Mpofu's submission lies
elsewhere. It is to be found in the words of s 17(1)(b) itself.
[25] Section 17(1)(b) does not ask whether the Supreme Court of Appeal would
dismiss the appeal. It asks whether the decision sought on appeal falls within the
ambit of s 16(2)(a). An ambit is a description of a class. The class is described in s
16(2)(a)(i), which speaks of issues that are of such a nature that the decision sought
will have no practical effect or result. The same subsection then confers a power,
exercisable at the hearing of an appeal, to dismiss on that ground alone. The
Legislature has separated the description of the class from the power to act upon it.
Section 17(1)(b) directs the description to the court of first instance and leaves the
power to act upon it to the appellate court.
[26] This conclusion is not in conflict with Lebashe. That judgment displaced the
common-law test, the Zweni attributes, which had been used too rigidly. Section
16(2)(a) is a statutory provision, not a common -law provision, and s 17(1)(b)
requires that it be complied with before this Court may grant leave. The interests of
justice cannot override a law set by the Legislature.
[27] The question is therefore a narrow one. It is not a question of whether an
appeal would or should be entertained. It is whether the issues are of such a nature
that the decision sought will have no practical effect or result.
[28] That question is not limited to just these parties. As the Constitutional Court
stated in Independent Electoral Commission v Langeberg Municipality [2001]
ZACC 23; 2001 (3) SA 925 (CC) para [11], a prerequisite for the exercise of the
discretion is that any order which the court may make will have some practical
effect either on the parties or on others. So, the applicants' argument about public
importance is not necessarily excluded by s 17(1)(b).
[29] Between these parties, setting aside an order that has already lapsed gives the
applicants nothing. Beyond them, what is sought is an authoritative statement of
the law governing interim restraints on the exercise of public power, to guide
courts and litigants in matters yet to come. That has value. But it is not a practical
effect or result within the meaning of s 16(2)(a)(i). It is an advisory opinion, and a
court does not give one (see Solidariteit at para [12]).
[30] A related matter was put to Mr Mpofu from the Bench. The order restrains the
Speaker and the Chairperson. Neither seeks leave, nor does either support this
application. What practical result, then, would the applicants derive from setting
the order aside? His answer was that the parties he represents have a direct interest
in the enquiry going forward and that, between them, they represent millions of
South Africans. I do not doubt the interest. Parties represented in the Assembly
have a genuine stake in the exercise of the accountability function conferred on
that House by s 89, and the constituencies behind them are considerable.
[31] The answer, however, addresses a different question. Sufficiency of interest
goes to standing, and standing is not in issue. What s 16(2)(a)(i) asks is whether the
decision sought will have a practical effect or result. A party may have a substantial
interest in an order and still gain nothing from its reversal. That is the position
here. The order does not bind the applicants. It binds two office -bearers who have
not complained of it, and it will in all likelihood have expired before any appeal is
heard.
[32] I am, accordingly, of the view that the decision sought on appeal falls within
the ambit of s 16(2)(a). Section 17(1)(b) is not satisfied, and this Court has no
power to give leave.
[33] The applicants may, of course, petition the Supreme Court of Appeal under s
17(2)(b). It holds the discretion under s 16(2)(a) which this Court does not, and it
will form its own opinion on the questions I have addressed. Nothing in this
judgment is intended to foreclose that. I deal with the grounds below so that the
Court, in considering any petition, has our view of them.
Section 17(1)(c): the real issues
[34] There is an independent and, in my view, compelling reason why the
application cannot succeed. Section 17(1)(c) is not satisfied. The order does not
dispose of the issues in the review. The real dispute between the parties is whether
the Independent Panel report falls to be set aside. That review is already enrolled
for hearing from 2 to 4 September 2026.
[35] An appeal against the interim restraint would not decide that issue. It would
not advance its adjudication, nor shorten the road to a final answer. It would run
alongside the review, at further cost to the parties and to the court, and, on the
current timetable, the review judgment would overtake it.
[36] Section 17(1)(c) is not satisfied merely because an appeal may resolve an
interlocutory question correctly. The question is whether the appeal would lead to a
just and prompt resolution of the real issues between the parties. On the facts
before us, it would not. The review is the proceeding in which those issues will be
determined.
The grounds of appeal
[37] My conclusions under paragraphs 17 (1) (b) and (c) make it unnecessary to
determine whether the applicants have a reasonable prospect of success on their
grounds of appeal. Still, I address the principal grounds, both to explain why the
conclusion does not rest on an artificial threshold and to identify the issues which
may arise should the applicants petition the Supreme Court of Appeal.
Jurisdiction
[38] The first ground is that this Court lacked jurisdiction to restrain an
impeachment process already under way. The Court was unanimous in rejecting
that contention. Zuma v Minister of Police and Others [2021] ZAKZPHC 40 is
distinguishable. There, the applicant sought to stay execution of an order of the
Constitutional Court. Here, the relief was directed at the Independent Panel report,
which was not an order of the Constitutional Court and is the subject of a review
before a court in this Division. The applicants' notice of appeal does not engage
with that distinction. This ground does not establish a reasonable prospect of
success.
[39] The submission that the matter falls within the Constitutional Court's
exclusive jurisdiction under s 167(4)(e) of the Constitution calls for careful
consideration. That provision confers exclusive jurisdiction on the Constitutional
Court to decide that Parliament or the President has failed to fulfil a constitutional
obligation. The application before this Court, however, is a review of the report of
an Independent Panel appointed under the National Assembly's rules, coupled with
interim relief ancillary to that review. The fact that the relief may affect the
operation of Parliament does not, without more, bring every such review within s
167(4)(e). On the case as presented to this Court, I am not persuaded that this
ground establishes a reasonable prospect of success.
Res judicata and issue estoppel
[40] The second ground is res judicata or issue estoppel arising from Economic
Freedom Fighters and Another v Speaker of the National Assembly and Others
(CCT 35/24) [2026] ZACC 17. The Constitutional Court's judgment determined
the constitutional validity of rule 129I and the validity of the National Assembly's
vote of 13 December 2022. It did not finally determine the merits of the President's
review of the Independent Panel report. In particular, for purposes of the review,
the judgment does not finally determine whether the Panel correctly construed and
applied rule 129G. What the Constitutional Court said concerning the Panel may
bear on the strength of the review; it does not, in itself, establish the definitive
effect contended for. I, accordingly, do not regard this ground as establishing a
reasonable prospect of success.
The framing of the relief
[41] The third ground rests on three complaints. The first is that interdictory relief
was not available to stop a process already begun. The first judgment took the
reading of the notice of motion most favourable to the President, treated the relief
as a stay of the continuation of the enquiry, and found against him even on that
footing. The applicants gain nothing from a construction which, on the Court's own
reasoning, made their position stronger.
[42] The second complaint is that the President amended his relief in argument
without complying with Uniform rule 28, and has infringed s 34 of the
Constitution. There was no amendment. The President narrowed the relief he
sought, and he did not need to amend his notice of motion to do that. The Court
was dealing with an interim interdict, and it was entitled to entertain the narrower
relief as long as the parties had the opportunity to address it (see Hotz and Others v
University of Cape Town 2017 (2) SA 485 (SCA) fn 8). The applicants had that
opportunity in argument. They pointed to no prejudice, and I can see none. As to s
34 of the Constitution, which is the right to have a legal dispute resolved in a fair
public hearing, no argument was advanced to explain how it was infringed, and I
do not understand how it could have been. In my view, to hold a party to relief he
no longer seeks would serve nothing.
[43] The third complaint is that the order permitted a disguised collateral review of
the Chairperson's refusal to halt the process, contrary to Oudekraal Estates (Pty)
Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) and MEC for Health,
Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC).
The premise is wrong. The President did not proceed collaterally. He instituted a
direct review of the report, under a separate case number, and sought interim relief
ancillary to it. Whether he should instead have attacked the Chairperson's decision
goes to the availability of alternative remedies. In my view, none of the three
complaints has a reasonable prospect of success.
Non-joinder and misjoinder
[44] The non -joinder and misjoinder grounds likewise do not, on the material
before this Court, establish a reasonable prospect of success. The President was the
applicant and was fully before the Court. Whether he should also have been cited
in an official capacity depends upon the legal nature of the relief and the interest
said to require separate citation. The applicants have not demonstrated that the
absence of such citation caused the non -joinder of a party with a direct and
substantial interest in the order. Nor have they shown that the Panel members, who
are cited in the review and abide by it, have a direct and substantial interest in the
interim order.
[45] The challenge to the form of the order is likewise insufficiently particularised
to establish a reasonable prospect of success. The order identifies the conduct
restrained, the office -bearers restrained, and the duration of the restraint by
reference to the review. The applicants have not demonstrated in what respect the
order is incapable of being understood or complied with.
Stare decisis
[46] The applicants' reliance on stare decisis raises a more substantial question. A
court of first instance is ordinarily bound by a decision of a court of coordinate
jurisdiction unless satisfied that the earlier decision is clearly wrong (Patmar
Explorations (Pty) Ltd and Others v Limpopo Development Tribunal and Others
[2018] ZASCA 19; 2018 (4) SA 107 (SCA) para [3]). The Constitutional Court has
likewise emphasised the rule -of-law importance of adherence to precedent in
Camps Bay Ratepayers' and Residents' Association and Another v Harrison and
Another [2010] ZACC 19; 2011 (4) SA 42 (CC) para [28].
[47] The applicants relied on Public Protector v Speaker of the National Assembly
and Others (2107/2020) [2020] ZAWCHC 117 and Public Protector of South
Africa v Speaker of the National Assembly and Others (8500/2022) [2022]
ZAWCHC 117. Both were decisions of full courts of this Division sitting at first
instance. In each, the Court declined to restrain a removal enquiry under s 194 of
the Constitution pending a challenge to its lawfulness.
[48] Those decisions therefore required express treatment. They could have been
followed, distinguished, or held to be clearly wrong, but in each case, reasons were
required for the course adopted. The failure to engage with them was a defect in
the reasoning of the majority judgment of this Court, which the applicants were
entitled to identify on appeal.
[49] That does not, however, mean that the earlier decisions necessarily govern the
present case. A s 194 removal enquiry and a s 89 process are not identical. The s 89
process at issue here involves an Independent Panel report and an Impeachment
Committee process that does not, by itself, finally determine the President's
removal. Whether that distinction is sufficient to distinguish the earlier cases is
arguable. I do not decide the question. Even assuming, in the applicants' favour,
that this ground gives rise to a reasonable prospect of success, the requirements of
s 17(1)(b) and (c) remain unsatisfied.
Compelling reasons
[50] The applicants rely, in the alternative, on s 17(1)(a)(ii). They identify two
important and unsettled questions. The first concerns the relationship between
Economic Freedom Fighters v Gordhan and Others; Public Protector and Another
v Gordhan and Others [2020] ZACC 10; 2020 (6) SA 325 (CC) and the later
discussion in Eskom Holdings SOC Ltd v Vaal River Development Association
(Pty) Ltd and Others [2022] ZACC 44; 2023 (4) SA 325 (CC) (' Eskom CC ')
concerning the level at which a prima facie right should be assessed in interim
interdict proceedings. The second concerns the weight that may be given, in the
balance of convenience, to the possibility that an operative decision may later be
set aside, having regard to Oudekraal and Kirland.
[51] These are not trivial questions. In Economic Freedom Fighters v Gordhan and
Others para [42], the Constitutional Court stressed the need for strong prospects on
the underlying review where interim relief restrains the exercise of public power.
In Eskom CC, Madlanga J, writing for the majority, cautioned against pitching the
prima facie right enquiry at the level of a clear right (see para 245). At para [251],
he explained that where the legal question is complex or novel, a court may
conclude that there is prima facie enough pointing to the determination of that
question in the applicant's favour. The judgments therefore warrant reconciliation
in an appropriate case. I do not, however, regard this application as the appropriate
vehicle for undertaking that reconciliation.
[52] Importance does not by itself constitute a compelling reason to hear this
appeal. The question under s 17(1)(a)(ii) is whether there is a compelling reason
why this appeal should be heard in its present procedural setting. Here the interim
order is likely to have lapsed before the appeal is heard; the underlying review will
already have been determined; and the review judgment may itself be the subject
of further appellate proceedings.
[53] The legal questions identified by the applicants will not disappear. They may
recur when an interim restraint against the exercise of public power is challenged
in a case in which the answer will have operative consequences. Such a case may
provide a better vehicle for their authoritative determination than an appeal whose
practical subject will already have disappeared.
[54] The suggested conflict within this Division does not alter that conclusion. The
two earlier full -court decisions ought to have been addressed. Whether the
judgment under appeal is reconcilable with them, and whether any irreconcilability
amounts to conflicting judgments for purposes of s 17(1)(a)(ii), need not be
decided here.
[55] It is also relevant that, on 12 August 2026, the Constitutional Court refused
direct leave to appeal against the interim order in this matter. That refusal does not
determine the merits, does not create res judicata and does not bind this Court in
relation to an application for leave to the Supreme Court of Appeal. It is still a
procedural fact concerning the same order and the same imminent review. The
basis on which the Constitutional Court declined to entertain the matter at that
stage was the impending determination of the review and the likelihood that the
interim order would thereby become moot. The factual basis for that assessment
has, if anything, become stronger. I treat the refusal as relevant, but not
determinative, to the present enquiry.
[56] There is, in my view, no compelling reason why this appeal should be heard in
its present form.
Costs
[57] The President seeks the costs of this application, including the costs of two
counsel on scale C. The applicants seek an order that costs follow the appeal.
[58] Costs ordinarily follow the result, and the unsuccessful party is liable for
costs. Two considerations lead me to adopt a different course. The first is that the
costs of the interdict application already stand over for the court hearing the
review, and the issues raised in this application are so closely connected to those in
the review application that it would be artificial to separate them. The second is
that the applicants raised real questions about the restraint of Parliament in the
exercise of its constitutional accountability function, and they relied on matters on
which this Court was divided and which may yet require final determination.
[59] In those circumstances, it is appropriate to stand the costs of this application
over for determination by the court hearing the review.
Order
In the result, the following order is made:
1. Leave to appeal is refused.
2. The costs of this application stand over for determination by the court hearing
the review under case number 2026-119182.
____________________
M FRANCIS
Judge of the High Court
____________________
A LE GRANGE
Acting Deputy Judge President of the High Court
____________________
D M DA VIS
Judge of the High Court
Appearances:
For the First and Second Applicants (MK and UAT):
Adv Dali Mpofu SC
Adv Katlego Monareng
Adv Boitumelo Khokho
Instructing Attorneys
KMNS Inc.
For the First Respondent (President):
Adv Geoff Budlender SC
Adv Ndumiso Luthuli
Instructing Attorneys
Harris Nupen Molebatsi Attorneys