Author: Gary Moore

Date: 14 November 2018

The Superior Courts Act, 2013[1] states that it is an Act to rationalise, consolidate and amend the laws relating to the Constitutional Court, Supreme Court of Appeal and High Court; and to make provision for administration of the judicial functions of all courts and administrative and budgetary matters relating to the Superior Courts.[2]

The Act deals inter alia with appeals. (An appeal lies against a decision of a Division of the High Court[3] as a court of first instance, if leave to appeal is granted[4] by the judge or judges concerned.[5] If the decision was by a court consisting of —

More than one judge, then appeal lies to the Supreme Court of Appeal;[6]

a single judge, then a judge or judges granting leave to appeal must direct that the appeal be heard by a full court[7] of the Division, unless they consider that—

the decision involves an important question of law;[8]

a Supreme Court of Appeal decision is required to resolve differences of opinion;[9] or

the administration of justice[10] requires that the Supreme Court of Appeal hear it.[11]

(An appeal against a decision of a Division given on appeal to it—from a Magistrate’s Court decision[12]—lies to the Supreme Court of Appeal, if the latter grants special leave.[13])

(It has been held that a statutory requirement that leave to appeal be granted is not inconsistent with the constitutional guarantee of access to the courts.[14])

Leave to appeal, “only” if appeal “would” have reasonable prospect of success

The Act states that leave to appeal may “only” be given where the judge or judges concerned are of the opinion that the appeal “would” have a reasonable prospect of success[15] (or there is some other compelling reason why the appeal should be heard[16]) inter alia.[17]

Courts have observed that this requirement of the Act (that leave to appeal can “only” be given if the judge is believes an appeal “would” have a reasonable prospect of success) has raised the threshold for granting a party leave to appeal,[18] in that the test which was applied previously was whether there were reasonable prospects that another court “may” come to a different conclusion.[19]

The Act (by requiring an applicant for leave to appeal to persuade the judge hearing his application that he will have reasonable prospects of success on appeal) forces a prospective appellant to overcome an added preliminary hurdle. This arguably violates the principle of the Rule of Law that there should be unimpeded right of access to a court.[20]

(On the other hand, it is said that the Rule of Law does not require that the entire apparatus of the judicial system be brought to bear on all disputes.[21])

Leave to appeal unless it will have “no practical effect or result”

Leave to appeal may only be given where the judge or judges concerned are of the opinion that: The appeal would have a reasonable prospect of success[22] or there is some other compelling reason why the appeal should be heard including conflicting judgments on the matter under consideration;[23] that the decision sought on appeal is not a decision which “will have no practical effect or result”;[24] and that, 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.[25]

If, at the hearing of an appeal, the issues are of such a nature that the decision sought “will have no practical effect or result”, the appeal may be dismissed on this ground alone.[26]

If, at any time prior to the hearing of an appeal, the President of the Supreme Court of Appeal, Judge President[27] or judge presiding[28] is “prima facie of the view that it would be appropriate to dismiss the appeal on the ground [that the decision sought will have no practical effect or result], he or she must call for written representations from the respective parties as to why the appeal should not be so dismissed.”[29]

On receipt of the representations,[30] the President of the Supreme Court of Appeal or Judge President[31] must refer the matter to three judges for their consideration.[32]

These three judges “may order that the question of whether the appeal should be dismissed on the ground [that the decision sought will have no practical effect or result] be argued before them”,[33] and, “whether or not they have so ordered”, may order that the appeal be dismissed[34] or order that it proceed in the ordinary course.[35]

To sum up: Only if a judge thinks an appeal will have practical effect may leave to appeal be given; before the appeal hearing, if the senior or presiding judge holds the view at first glance that the appeal will have no practical effect, he must invite representations from parties about why it should not be dismissed on this ground; the senior judge must refer this issue (will appeal have practical effect) to three judges; these three judges can order that this practical-effect issue be argued before them; but they can dismiss the appeal without ordering the arguing of this practical-effect issue.

It is plain that the object of these elaborate provisions is to limit the circumstances in which a court of first instance may grant leave to appeal against any of its decisions.[36]

Provisions in similar terms were inserted in the Superior Courts Act’s predecessor, the 1959 Supreme Court Act,[37] in 1993[38] and substituted in 1996.[39]

These provisions too, arguably violate the principle of the Rule of Law that there should be unimpeded right of access to the courts.[40]

On the other hand, it is said that statutes which stipulate that appeals require leave of the court, which may be granted or withheld on grounds defined by the statute, limit access to the courts as “a method of rationing scarce judicial resources”.[41]

In response to this, it could be contended that a litigant would know better whether to expend time, funds and effort pursuing an appeal that will be of no practical benefit to him.

(Where an applicant sought leave to appeal and the only practical advantage of proceeding with an appeal was to clear his name of any stigma which might attach to him as a result of the findings of the court against whose judgment the appeal was sought, the court hearing the appeal application found that his desired ruling would have no practical effect or result and dismissed his application for leave to appeal[42] i.t.o. the corresponding provisions of the Superior Court Act’s predecessor.[43])

Property not liable to be seized in execution

The Act has a provision stating that the sheriff[44] may not seize, in execution of any process, “such belongings of the debtor as prescribed” by regulation made in terms of the Act.[45]

The Minister may, on the advice of the Chief Justice, make regulations regarding “property not liable to be seized in execution,” as contemplated in that provision.[46]

This provision[47] contains no criteria about the permissible scope of any regulations regarding property not liable to be seized in execution, to guide the Minister in making them or to guide the Chief Justice[48] in advising the Minister.

The lack of guiding criteria, in this provision authorising the making of regulations about property not liable to be seized in execution, violates the principle of the Rule of Law that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.

A discretion should ordinarily be narrowly defined. The broader and more loosely textured a discretion is, whether conferred on an official or a judge,[49] the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the Rule of Law.[50]

The Act states that any regulation made under it must be submitted to Parliament before its publication in the Gazette.[51] But the Act does not state, say, that such a regulation may then be ratified or annulled by Parliament.[52]

It is concluded that the Act’s requirement, that a regulation under it must be submitted to Parliament before its publication in the Gazette, does not mean that a regulation made under the Act’s unduly wide power to prescribe regulations accords with the Rule of Law.

Presiding judge must consent to instituting of civil proceedings against judges

The Act stipulates that no civil proceedings[53] may be instituted against any judge of a Superior Court,[54] except with the consent of the head of that court.[55]

This provision contains no criteria to guide the head of the court in deciding whether or not to consent to the institution of any particular proceedings against a judge.

This lack of guiding criteria violates the principle of the Rule of Law that questions of legal right and liability should not ordinarily be resolved by the exercise of discretion.

As mentioned, the broader a discretion, whether conferred on an official or judge, the greater the scope for subjectivity and arbitrariness, the antithesis of the Rule of Law.

At the least, the provision should indicate that the head of the court may consent to the institution of legal proceedings against a judge i.r.o. the judge’s personal or private matters unrelated to his judicial office.

The provision could also usefully authorise the head of the court to recuse himself in favour of his deputy if, say, he has any relationship with a party to the legal proceedings.[56]

 

[1] Superior Courts Act 10 of 2013.

[2] Superior Courts Act, Long title.

[3] Superior Courts Act s 1 sv “Division”.

[4] Superior Courts Act s 16(1)(a).

[5] Leave to appeal may be granted by the judge or judges against whose decision an appeal is to be made or, if not readily available, by any other judge or judges of the same court or Division. Superior Courts Act s 17(2)(a).

[6] Superior Courts Act s 16(1)(a)(ii).

[7] A court consisting of three judges. Superior Courts Act s 1 svv “full court”.

[8] Whether because of its general application or otherwise. Superior Courts Act s 17(6)(a)(i).

[9] Superior Courts Act s 17(6)(a)(i).

[10] Either generally or in the particular case.

[11] Superior Courts Act s 17(6)(a)(ii).

[12] See Magistrates’ Courts Act 32 of 1944 s 83 (appeal from magistrate’s court) read with s 48 (judgment) and chap IX (ss 61-79, execution).

[13] Superior Courts Act s 16(1)(b).

[14] It cannot be said that a screening procedure which excludes unmeritorious appeals is a denial of a right of access to a court, as long as the screening procedure enables a higher court to make an informed decision as to the prospects of success upon appeal. Besserglik v Minister of Trade, Industry and Tourism and Others (Minister of Justice intervening) 1996 (4) SA 331 (CC).

(Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. Constitution 1996 s 34 (access to courts).)

[15] Superior Courts Act s 17(1)(a)(i).

[16] Including conflicting judgments on the matter under consideration. Superior Courts Act s 17(1)(a)(ii).

[17] And that the decision sought on appeal is not a decision which will have no practical effect or result and that, 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. Superior Courts Act s 17(1)(b) read with s 16(2)(a), s 17(1)(c).

[18] Mont Chevaux Trust v Tina Goosen and 18 others 2014 JDR 2325 (LCC) at para [6] per Bertelsmann J.

[19] Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 890B; BWM Financial Services (SA) (Pty) Ltd v Finlay and others (2017] ZAGPPHC 383 per Hughes J; Vosloo v Cloete (19 Feb 2018) ZAGPPHC (unreported) per Van der Schyff AJ.

[20] Lord Bingham, “The Rule of Law” (Sixth Sir David Williams Lecture, 2006, Centre for Public Law, Univ of Cambridge), fifth sub-rule.

[21] “Courts and the Rule of Law”, Murray Gleeson (then Chief Justice of Australia), The Rule of Law Series, Melbourne Univ, 7 Nov 2001.

[22] Superior Courts Act s 17(1)(a)(i).

[23] Superior Courts Act s 17(1)(a)(ii).

[24] Superior Courts Act s 17(1)(b) read with s 16(2)(a).

[25] Superior Courts Act s 17(1)(c).

[26] Superior Courts Act s 16(2)(a)(i).

[27] Of the relevant Division of the High Court. See Superior Courts Act s 1 svv “head of court” par (iii).

[28] As the case may be.

[29] Superior Courts Act s 16(2)(b).

[30] Or, failing which, at expiry of the time determined for their lodging.

[31] As the case may be.

[32] Superior Courts Act s 16(2)(c).

[33] At a place and time appointed. Superior Courts Act s 16(2)(d).

[34] With or without an order as to the costs incurred in any courts below or i.r.o. the costs of appeal, including the costs i.r.o. the preparation and lodging of the written representations. Superior Courts Act s 16(2)(d)(i).

[35] Superior Courts Act s 16(2)(d)(ii).

[36] City of Cape Town v South African National Roads Agency Ltd (2014) ZAHCWC per Binns-Ward J par [5].

[37] Supreme Court Act 59 of 1959 s 21A.

[38] General Law Third Amendment Act 129 of 1993 s 22.

[39] Judicial Matters Amendment Act 104 of 1996 s 7.

[40] See above.

[41] “Courts and the Rule of Law”, Gleeson, The Rule of Law Series, 2001 (see above).

[42] Western Cape Education Department and another v George [1998] 2 All SA 623 (A) per Howie JA, Mahomed CJ and Olivier, Zulman and Streicher JJA concurring.

[43] Supreme Court Act 59 of 1959 s 21A.

[44] Or a deputy-sheriff.

[45] Superior Courts Act s 45 (property not liable to be seized in execution) read with s 1.

But the court concerned may in exceptional circumstances and on such conditions as it may determine, in its discretion allow a specific deviation from the prescribed provisions. Superior Courts Act s 45 ibid.

[46] Superior Courts Act s 49 (regulations) ss (1)(e) read with s 45.

[47] Superior Courts Act s 49(1)(e).

[48] Not all acts by a judge are judicial in nature.

A decision by a judge in chambers requesting assistance by a foreign State in obtaining evidence to aid a criminal investigation amounts to administrative action. Kolbatschenko v King NO and ano [2001] 4 All SA 107 (C). See the International Co-operation in Criminal Matters Act 75 of 1996.

[49] “To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand.” Scott v Scott [1913] AC 417 477 (HL) per Lord Shaw of Dunfermline.

[50] Bingham, “The Rule of Law” (supra), fifth sub-rule.

[51] Superior Courts Act s 49(1).

[52] By resolutions passed during the same session during which it was tabled. Contrast Public Safety Act 3 of 1953. See Metal and Allied Workers Union and ano v State President and others [1986] 2 All SA 584 (D).

[53] By way of summons or notice of motion.

[54] And no subpoena i.r.o. civil proceedings may be served on any judge of a Superior Court.

[55] Or, in the case of a head of court or the Chief Justice, with the consent of the Chief Justice or the President of the Supreme Court of Appeal, as the case may be. Superior Courts Act s 47(1).

[56] It is said that, when the Judge President of the Western Cape High Court, John Hlophe, granted permission to Oasis Group Holdings to sue Judge Siraj Desai of the same court for defamation, there had been a long-standing pecuniary relationship between Judge Hlophe and Oasis, and that Judge Hlophe had been receiving regular monthly payments from the company as a member of the board of its Crescent Retirement Fund.

See H McCreath, R Koen, “Defending the absurd: the Iconoclast’s guide to Section 47(1) of the Superior Courts Act 10 of 2013”, Potchefstroomse Elektroniese Regsblad vol 17 no 5 2014.

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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