IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT34/95 In the matter betwee
O BESSERGLIK
and
COURT
PRIVATE BAG/PRiVAATSAK X32
1995 -12- 0 4 .,
BRAAMFONTEIN 2017
KONSTITUSIONELEHOF
applicant
MINISTER OF TRADE AND INDUSTRY AND TOURISM
PIENAAR, JACOBUS JOURDAAN PIENAAR, JACOBUS JOURDAAN MINISTER OF LAW AND ORDER FRANKEM, COL. WILLIAM JOHN FRANKEM, COL. WILLIAM JOHN MINISTER OF JUSTICE
1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent
INTERVENING PARTY
1ST RESPONDENT'S WRITTEN ARGUMENT
FILED BY:
1ST RESPONDENTS ATTORNEY THE STATE ATTORNEY
FEDLIFE FORUM
SOUTH TOWER, 4TH FLOOR VAN DER WALT STREET 268 PRIVATE BAG X91
PRETORIA
(3288)/...
TO: THE REGISTRAR SUPREME COURT PRETORIA
(3288/92/G2 /PP) TEL: 310 2758
C/0 THE STATE ATTORNEY 10THFLOOR
NORTH STATE BUILDING CNR KRUIS AND
MARKET STREETS JOHANNESBURG
(9905/95/P44)
AND
TO: APPLICANT'S ATTORNEY MOSS MORRIS INC
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RECEIVED COPY HEREOF DATE: V
APPLHQANT'S ATTORNEY MOSS * MORRIS INC.
ACCEPTED WITHOUT PREJUDICE
INTRODUCTION
THE FACTS
DIRECTIONS FROM THE CONSTITUTIONAL
COURT 2 - 4
THE FIRST RESPONDENTS ARGUMENT IN
ANSWER TO THE APPUCANT'S ARGUMENT 5 - 1 4
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT 34/95 In the matter between:
BESSERGLIK. OPED Applicant and
THE MINISTER OF TRADE AND
INDUSTRY AND TOURISM First Respondent PIENAAR. JACOBUS JORDAAN Second Respondent THE MINISTER OF LAW AND ORDER Third Respondent FRANKEM. COLONEL WILLIAM JOHN Fourth Respondent MINISTER OF JUSTICE Fifth Respondent
FIRST RESPONDENT'S ARGUMENT
1. INTRODUCTION:
1.1 The Applicant applies for an order that the matter be remitted back to the Transvaal Provincial Division of the Supreme Court for the matter to be considered in the light of a test for leave to appeal along the lines formulated by COETZEE, J in Magnum National Life Assurance Co Ltd v South African Bank of Athens 1985 (4) SA365 (W).
1.2 In the alternative the Applicant applies for the striking down of Section 20(4)(b) of the Supreme Court Act 50 of 1959.
2. THE FACTS:
2.1 The relevant facts appear from paragraphs 1.1 to 1.14 of the Applicant's argument.
2.2 As far as paragraph 1.15 of the Applicant's argument is concerned, it is respectfully submitted that it is not correct to say that the Applicant has exhausted all existing remedies in order to facilitate an appeal and it is not correct to say that the Applicant is precluded from filing a petition to the Appellate Division for leave to appeal on the merits. It is respectfully submitted that the Applicant could still petition the Honourable Chief Justice for leave to appeal on the merits. The Applicant would have to, at the same time, apply for condonation of the late filing of his petition.
3. DIRECTIONS FROM THE CONSTITUTIONAL COURT:
3.1 On 4 OCTOBER 1995 the First Respondent received a letter from the Registrar of the above Honourable Court setting out inter alia directions which had been issued by the President of the above Honourable Court. We deal hereunder with such directions:
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3.1 AD 3.1:
3.1.1 The Applicant could have sought a referral to this Court in terms of Section 102(1) of the Constitution.
3.1.2 The Applicant considered it more appropriate to first petition the Appellate Division.
3.1.3 It is respectfully submitted that the Applicant should have applied to CURLEWIS J. for the constitutional issues which are the subject of the Applicant's present application to be referred to this Court in terms of Section 102(1) of the Constitution.
3.1.4 The First Respondent, however, abides the decision of this Honourable Court in this regard.
3.2 AD 3.2:
3.2.1 The Applicant in his petition to the Chief Justice of the Appellate division sought a postponement of the filing of the petition for leave to appeal to enable the Applicant to approach the above Honourable Court for appropriate
relief. The petition was refused.
3.2.2 The Applicant has not in his argument dealt with the question whether or not the Applicant should have applied to the Appellate Division for the constitutional issues to be referred to this Honourable Court in terms of Section 102(6) of the Constitution.
3.2.3 The First Respondent respectfully submits that the Applicant should have applied to the Appellate Division, simultaneously with the lodging of the petition for leave to appeal, for these issues to be referred to this Honourable Court in terms of Section 102(6) of the Constitution.
3.2.4 The First Respondent, however, abides this Honourable Court's decision in this regard.
3.3 AD 3.3. 3.4. 3.5 AND 3.6:
We deal with the Applicant's argument herein below.
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4. THE FIRST RESPONDENTS ARGUMENT IN ANSWER TO THE APPLICANT'S ARGUMENT:
4.1 The Applicant's argument is that the application of Section 20(4) (b) of the Supreme Court Act 50 of 1959, alternatively.
Section 20(4)(b) of the Act itself violates:
4.1.1 the right to equality enshrined in Section 8 of the Constitution; and
4.1.2 the right of access to Court enshrined in Section 22 of the Constitution.
4.2 Section 8 of the Constitution reads as follows:
"(1) Every person shall have the right to equality before the law and to equal protection of the law.
(2) No person shall be unfairly discriminated against directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience,
belief, culture or language.
(4) Prim a facie proof of discrimination on any of the grounds specified in sub-section (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that sub-section, until the contrary is established."
4.3 Section 22 of the Constitution reads as follows:
"Every person shall have the right to have ... disputes settled by a Court of law or, where appropriate, another independent and impartial forum."
4.4 The relevant sub-sections of Section 20 of the Supreme Court Act provide:
"(1) An appeal from a judgment or order of the court of a provincial or local division in any civil proceedings or against any judgment or order of such a court given on appeal shall be heard by the Appellate Division or a full court as the case may be.
(4) No appeal shall lie against a judgment or order of
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the court of a provincial or local division in any civil proceedings or against any judgment or order of that court given on appeal to it except-
(a) in the case of a judgment or order given in any civil proceedings by the full court of such division on appeal to it in terms of sub-section (3), with the special leave of the Appellate Division;
(b) In any other case, with the leave of the court against whose judgment or order the appeal is to be made or, where such leave has been refused, with the leave of the Appellate Division."
4.5 The procedure for appeals from the Supreme Court is governed by Rule 49 of the Uniform Rules of the Supreme Court. Rule 49(1 )(e) provides that applications for leave to appeal "shall be heard by the judge who presided at the trial or, if he is not available, by another judge of the division of which the said judge, when he so presided, was a member."
4.6 We respectfully agree with the submissions made in paragraphs 4.4 to 4.9 of the Applicant's argument.
4.7 On behalf of the First Respondent it is respectfully conceded that, generally, the right to a fair trial includes a right of appeal (although one wonders why, if that was the Legislature's intention, the right of appeal was not specifically provided for as in Section 25(3)(h)).
4.8 The right of appeal is, however, not an unlimited right. Section 102(11) of the Constitution provides that "appeals to the Appellate Division and the Constitutional Court shall be regulated by law, including the rules of such courts, which may provide that leave of the court from which the appeal is brought, or to which the appeal is noted, shall be required as a condition for such appeal."
(Our underlining.)
4.9 The provisions of Section 20(4) (b) of the Supreme Court Act, are clearly intra vires the provisions of Section 102(11) of the Constitution. That being so, it is respectfully submitted, there is no basis upon which Section 20(4) (b) of the Supreme Court Act could be struck down by this Honourable Court.
4.10 It is respectfully submitted that the right of appeal given in the Constitution is a limited right and that in casu there is no
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question of a limitation by law of general application of a right entrenched in Chapter 3 of the Constitution.
4.11 Alternatively to paragraph 4.10 above and in the event of this Honourable Court holding that the provisions of Section 20(4)(b) in fact constitute a limitation of a constitutional right, it is respectfully submitted that the limitation is in any event:
4.11.1 reasonable;
4.11.2 justifiable in an open and democratic society based on freedom and equality; and
4.11.3 does not negate the essential content of the right in question.
4.12 It is accepted that the onus of justifying a limitation upon a protected right rests on the State and in this regard the First Respondent relies on the Minister of Justice to provide the necessary justification. It is also respectfully submitted that the justification for the limitation appears from paragraph 4.5 of the Applicant's argument.
4.13 It is respectfully submitted that there is no merit in the Applicant's argument based on the equality clause.
4.14 It is so that there is a distinction drawn between appeals from decisions emanating from the Magistrates' Court on the one hand and appeals emanating from the Supreme Court on the other. There is, however, no distinction between persons or discrimination against persons. All persons litigating in the Magistrates' Courts have the right to appeal to the Supreme1 Court and ail persons involved in litigation in the Supreme Court, whether as a Court of first instance or as a Court of
appeal, have a right of appeal, subject to leave being first obtained, to the Appellate Division or in certain cases to the full bench of the provincial or local division of the Supreme Court or in constitutional matters to this Honourable Court.
4.15 In the premises, it is respectfully submitted that the Applicant has not made out any case for the striking down of Section 20(4) (b) of the Supreme Court Act.
4.16 The Applicant further argues that the application of the provisions of Section 20(4) (b) of the Supreme Court Act is unconstitutional and that the said Section should rather be
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interpreted as imposing a test for leave to appeal along the lines formulated by COETZEE J. in the Magnum National Life Assurance Co Ltd-case. supra.
4.17 The Applicant argues that the desired end, namely to control the work load of Courts of appeal and to prevent entirely hopeless appeals from flooding the system to the detriment of appeals with real prospects of success, could be achieved through the adoption of a less exacting test for leave to appeal.
4.18 The Applicant concedes that the requirement of leave to appeal effectively reduces the number of appeals.
4.19 It is not clear on what basis it is suggested that the number of appeals would be reduced and hopeless appeals would be prevented from flooding the system through the adoption of a less exacting test for leave to appeal.
4.20 In Van Heerden v Cronwright and Others 1985 (2) 342 (T) at 343 ELOFF, J. as he then was, at 343 F said that, since the Legislature clearly intended to limit the number of cases which might be taken on appeal, it would have achieved very little in that direction if in all but hopeless cases leave to appeal is to be
granted.
4.21 The Appellate Division, in Westinghouse Brake & Equipment (Ptv) Ltd v Bilaer Engineering (Ptv) Ltd 1986 (2) SA 555 (AD) at 561 E, approved the judgment in Van Heerden v Cronwright.
supra, and held that the judgment in Magnum National Life Assurance Co Ltd v South African Bank of Athens Ltd. supra, was clearly wrong and confirmed the normal criterion of a reasonable prospect of success.
4.22 Over many years one of the requirements for leave to appeal has been held to be a reasonable prospect of success.
See: R v Baloi 1949 (1) SA 523 (A) at 524; R v Nxumalo 1939 AD 580 at 581; R v Noubane and Others 1945 AD 185 at 187; Capital Building Society v De Jager and Others: De Jaqer and Another v Capital Building Society 1964 (1) SA 247 (A); Afrikaanse Pers Bpk v Olivier 1949 (2) SA 980 (O) at 892 to 893 and S v Sikosana 1980 (4) SA 559 (A) at 562.
4.23 In our respectful submission the requirement of "reasonable prospects of success on appeal" is in itself reasonable and therefore permissible in terms of Section 33 of the Constitution.
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See: S v Mhlunau and Others 1995(3) SA 867 (CC) at 895 where this Honourable Court adopted a reasonable prospect of success as a sine qua non of a referral in terms of Section 102(1) of the Constitution.
4.24 It is respectfully submitted that it would serve absolutely no purpose to allow appeals where the appellants do not have reasonable prospects of success on appeal. It would simply overload the Courts of appeal (including this Honourable Court) and prevent appeals with real prospects of success from being dealt with expeditiously by the Courts of appeal.
4.25 In the premises it is respectfully submitted that the Applicant has not made out a case for any of the relief sought and that the application should be dismissed.
5. Should the Honourable Court decide to impose a test for leave to appeal different to the test applied by CURLEWIS, J. and to refer the matter back to the Transvaal Provincial Division for the matter to be considered in the light of the nearly formulated test, it is respectfully submitted that there is no reason why the matter should be heard by a different judge. There is no
indication that CURLEW1S, J. would not properly apply the newly formulated test.
6. In conclusion it is respectfully submitted that the Application should be dismissed with costs, including the costs of two counsel.
SIGNED at PRETORIA t h i s - S ^ d a y of NOVEMBER 1995.
FffTERBLANCH
R /
FOR FIRST RESPONDENT
LIST OF AUTHORITIES
1. Magnum National Life Assurance Co Ltd v South African Bank of Athens, 1985(4) SA365 (W);
2. Van Heerden v Cronwright and Others, 1985(2) 342 (7) at 343;
3. Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd, 1986(2) SA555 (A);
4. R v Baloi 1949 (1) SA 523 (A);
5. R v Nxumalo 1939 AD 580;
6. R v Ngubane and Others 1945 AD 185;
7. Capital Building Society v De Jager and Others; De Jager and Another v Capital Building Society 1964 (1) SA 247 (A);
8. Afrikaanse Pers Bpk v Olivier 1949 (2) SA 980 (O);
9. S v Sikosana 1980 (4) SA 559 (A) at 562;
10. S v Mhlungu and Others, 1995(3) SA 867 (CC).
