Bruce and Another v Fleecytex Johannesburg CC and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J, Yacoob J
• Judgment Date: 24 March 1998
• Docket Number: CCT 1/98
• Hearing Date: 24 March 1998
• Counsel: A S Van Der Spuy for the applicants submitted written arguments in support of the application The respondents were not represented
• Court: Constitutional Court

Chaskalson P:

[1] This is an application for direct access brought in terms of Rule 17 of the Constitutional Court Rules in a matter in which the applicant seeks an order declaring that the provisions of s 150(3) of the Insolvency Act are unconstitutional. [1] F

[2] Rule 17(1) provides:

'The Court shall allow direct access in terms of s 100(2) of the (interim) Constitution in exceptional circumstances only, G which will ordinarily exist only where the matter is of such urgency, or otherwise of such public importance, that the delay necessitated by the use of the ordinary procedures would prejudice the public interest or prejudice the ends of justice and good government.'

This Rule was adopted under the provisions of s 100(2) of the interim Constitution [2] which stipulated:

'The Rules of the Constitutional Court may make provision for direct access to the Court where it is in the interest of H justice to do so in respect of any matter over which it has jurisdiction.'

[3] Section 167(6) of the 1996 Constitution [3] now provides:

Chaskalson P

'National legislation or the Rules of the Constitutional Court must allow a person, when it is in the interests of justice and A 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.'

Section 167(6) was considered by this Court in S v Pennington and Another [4] at a time when the legislation B and Rules contemplated by the 1996 Constitution had not yet been passed. Although legislation making provision for the adoption of Rules for the Constitutional Court has now been passed, [5] it is not yet in force, and for practical purposes the situation is the same as it was at the time of the decision in Pennington. Pending the C coming into force of the relevant legislation and the adoption of Rules in terms of its provisions, the Rules adopted under the interim Constitution remain in force subject to their being consistent with the 1996 Constitution. [6]

[4] According to Rule 17 direct access to the Court is permissible in 'exceptional circumstances only'. Different words are used in s 167(6) of the 1996 Constitution which permits such access 'in the interests of justice and D with leave of the Constitutional Court'. The interests of justice will ordinarily be satisfied if the requirements of Rule 17 are met. Whether there are circumstances beyond those contemplated by Rule 17 which would justify E the granting of direct access under s 167(6) need not be decided in the present case, which, in my view, is clearly one in which this Court ought not to exercise its power under s 167(6) to permit direct access. The reasons for my decision are as follows.

[5] In terms of the 1996 Constitution the President, Premiers, Members of Parliament and Members of Provincial Legislatures are entitled to bring certain matters directly to this Court. [7] There are also certain matters F in respect of which this Court has exclusive jurisdiction. [8] But subject to these exceptions the 1996 Constitution recognises that there should not ordinarily be an unqualified right to approach this Court directly.

[6] This applies to both the Court's appellate jurisdiction and its original jurisdiction to hear matters as a Court of G first instance. In dealing with applications for leave to appeal against a decision of the Supreme Court of Appeal this Court has held that the prospects of success are of fundamental importance. [9] Such an appeal is the only remedy left to the applicant and if there are reasonable prospects that the appeal will succeed there are H compelling reasons for granting the leave that is necessary. As yet no decision has been given on the circumstances in which it would be appropriate to note an appeal directly to this Court from a court other than the Supreme Court of Appeal. In such matters,

Chaskalson P

however, the relevant considerations may well be different, for the aggrieved litigant has other remedies which A can be pursued before approaching this Court for its decision on the matter.

[7] Whilst the prospects of success are clearly relevant to applications for direct access to this Court, [10] there are B other considerations which are at least of equal importance. This Court is the highest Court on all constitutional matters. If, as a matter of course, constitutional matters could be brought directly to it, we could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be purely academic, and to hear cases without the benefit of C the views of other Courts having constitutional jurisdiction. These factors have been referred to in decisions given by this Court on applications for direct access under the interim Constitution, [11] and are clearly relevant to the granting of direct access under the 1996 Constitution.

[8] It is, moreover, not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in D which matters are decided without there being any possibility of appealing against the decision given. Experience shows that decisions are more likely to be correct if more than one court has been required to consider the issues raised...