Cloete and Another v S and a Similar Application

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
• Judgment Date: 19 February 2019
• Citation: 2019 (2) SACR 130 (CC)
• Docket Number: CCT 324/17 and CCT 63/18 [2018] ZACC 6
• Hearing Date: 19 February 2019
• Counsel: CCT 324/17N Jagga for the applicants. M Moeketsi for the respondent. H Alberts (with NL Skibi) for the amicus curiae. CCT 63/18Applicant unrepresented. S Budlender (with T Ramogale) for the respondent.
• Court: Constitutional Court

Theron J (Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Petse AJ concurring):

Introduction I

[1] These are two applications for leave to appeal against decisions made by the President of the Supreme Court of Appeal (President), pursuant to s 17(2)(f) of the Superior Courts Act (Act). [1] The applications raisethe

Theron J (Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Petse AJ concurring)

same question, namely, is a decision under s 17(2)(f) of the Act A appealable to this court? [2]

[2] Section 17(2)(f) confers on the President a discretion to refer a refusal of an application for leave to appeal to the Supreme Court of Appeal for reconsideration and, if necessary, variation (s17(2)(f) decision). B This may arise in circumstances where an applicant has been denied leave to appeal by the Supreme Court of Appeal on petition, pursuant to the provisions of s 17(2)(b) of the Act. Following this court's decision in Liesching I, recourse in terms of s 17(2)(f) is available in both criminal and civil cases. [3] In both these applications the President refused to grant relief under s 17(2)(f). C

Cloete application (CCT 324/17)

[3] The first applicant is Mr Mathys Johannes Cloete and the second applicant is his son, Mr Daniel Nicholas Cloete (Cloete applicants). D The respondent (state) did not oppose this matter. Legal Aid South Africa applied and was admitted as amicus curiae.

[4] The Cloete applicants, farmers from Boshoek, North West, were charged and convicted in the High Court of South Africa, North West Division, Mahikeng, with various offences, including murder, kidnapping E and attempted murder. These charges arose out of an incident of theft that had occurred at their farm. The first applicant was sentenced to an effective term of 18 years' imprisonment and the second applicant was sentenced to a term of 24 years' imprisonment.

[5] The Cloete applicants unsuccessfully applied for leave to F appeal to the Supreme Court of Appeal. Their application to the President for reconsideration in terms of s 17(2)(f) of the Act was dismissed on 4 June 2016.

[6] About a year later the Cloete applicants again applied to the G President under s 17(2)(f). This application was granted and set down for hearing on 22 November 2017. However, on 13 September 2017, the Registrar of the Supreme Court of Appeal advised the Cloete applicants that their application was dismissed and that their matter was considered res judicata.

Theron J (Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Petse AJ concurring)

Sekgala application (CCT 63/18) A

[7] The applicant is Mr Rammutlana Boelie Sekgala and the respondent, Nedbank Ltd, is a bank and a registered credit provider (Nedbank). Nedbank did not oppose the matter.

[8] B The facts in this matter are scant, partly because the applicant is self-represented. Mr Sekgala obtained a home loan secured by a mortgage bond from Nedbank. At some point he defaulted on his repayments.

[9] In 2011 Nedbank obtained default judgment against Mr Sekgala for C arrear payments. Mr Sekgala applied for, and was granted, an interim interdict staying the warrant of execution which had been obtained by Nedbank. Mr Sekgala then applied for rescission of the default judgment. According to Mr Sekgala, during this time a case was pending under case No 40429/2011 in the High Court of South Africa, Gauteng Local Division, Johannesburg. D In 2014 Nedbank instituted new proceedings under case No 12231/2014 in the High Court of South Africa, Gauteng Division, Pretoria. [4] Thereafter the respondent filed a notice of withdrawal in case No 40429/2011.

[10] On 15 September 2015 Makume J handed down judgment in E favour of Nedbank and dismissed the application for rescission. Mr Sekgala applied for leave to appeal which was denied. Mr Sekgala unsuccessfully petitioned the Supreme Court of Appeal for leave to appeal. He later made application to the President under s 17(2)(f). That application was dismissed on 27 February 2018 on the ground that no exceptional circumstances exist.

In this court F

[11] The Cloete applicants submit that their second application under s 17(2)(f) differed from the first application in material respects and that the President erred in refusing to consider it. They submit that the G second application was lodged after new evidence came to light disclosing exceptional circumstances, which constituted sufficient grounds for her to vary her decision of 4 June 2016.

[12] The essence of Mr Sekgala's submissions is that the President should have found that exceptional circumstances existed warranting H reconsideration.

[13] After this court's decision in Liesching II[5] the Chief Justice issued directions in this matter on 16 October 2018 inviting the parties to make submissions on the following issues:

(a)

I What is the nature of the President's decision in terms of section 17(2)(f) of the Superior Courts Act? Is it a decision of a court?

Theron J (Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Petse AJ concurring)

(b)

Does this Court have jurisdiction to hear an appeal against a A President's decision in terms of section 17(2)(f) under section 167(6)(b) of the Constitution?

(c)

The general principle is that the exercise of public power should be subject to review. The President exercises a discretion under section 17(2)(f). Should the exercise of this power be subject to review or appeal by this Court or another court such as the High Court? B

(d)

May a litigant appeal to this Court within the narrow ambit of section 17(2)(f) and thereafter, again approach this Court to consider the merits of her appeal?

(e)

If this Court were to find that no appeal lies against a dismissal of an application pursuant to section 17(2)(f), is there any prejudice C that an applicant could suffer that cannot be cured by an appeal to this Court, in the normal course?'

[14] All the parties made useful submissions to this court, including those who had originally elected not to participate in these proceedings. For this, the court expresses its gratitude. D

[15] The Cloete applicants emphasise this court's findings in Liesching I and II that s 17(2)(f) affords the President a discretion which ought to be exercised judicially. [6] They submit that, in practice, the President sits as a court in chambers when deciding these applications. On this basis they argue that the nature of the discretion is a judicial one, albeit a limited E one, and reviewable in the same way as an ordinary judicial decision. Relying on s 167(6)(b), [7] they submit that it is in the interests of justice that an appeal against the President's decision in terms of s 17(2)(f) lies directly to this court, albeit on narrow grounds. [8] F

[16] The Cloete applicants contend that there is a dual appeal process, one in respect of a s 17(2)(f) decision and a further appeal in respect of the merits. The state and Mr Sekgala support this submission. Nedbank differs with the rest of the parties on this point. Nedbank submits that a litigant may not appeal to this court within the narrow ambit of a s 17(2)(f) decision and, thereafter, again approach this court to consider G the merits of her appeal. The amicus argues that a s 17(2)(f) appeal may not always be available because it is a narrow appeal. Mr Sekgala further submits that a s 17(2)(f) decision is connected to an appeal in terms of

Theron J (Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Petse AJ concurring)

s 168(3)(b)(ii) A of the Constitution [9] and, like the Cloete applicants, contends that the functions of the President are judicial and not administrative. [10]

[17] Nedbank submits that a s 17(2)(f) decision should not be appealable to this court. Relying on Mabaso, [11] it contends that this approach B would not prejudice a prospective appellant because it would not bar her from approaching this court for leave to appeal on the merits. Nedbank further submits that s 167(6)(b) of the Constitution does not confer jurisdiction on this court to decide an appeal against the President's decision and that not every exercise of power must be reviewable, C particularly when it comes to judicial decisions. Nedbank submits that the mere fact that the President must exercise her powers lawfully and rationally does not mean that there is any entitlement to review or appeal her decision.

Condonation D

[18] The Cloete applicants seek condonation for the late filing of their application and written submissions. The state also seeks condonation for the late filing of its written submissions. The delays were not significant and, more importantly, the submissions were of assistance to this court. For these reasons, condonation should be granted.

Analysis E

[19] As explained, the issue in this matter is whether an appeal against a s 17(2)(f) decision lies to this court. In Liesching II this court did not decide the question of whether an appeal lies to this court pursuant to a F 'dismissal' of a s 17(2)(f) application to the President. This question is an important one which has implications for litigants beyond the immediate parties. This court is now presented with the opportunity to address this question. The issue has two components: Does this court have jurisdiction over these appeals? If so, would this court ordinarily G grant leave to appeal against a s 17(2)(f) decision?

[20] I first address the question of jurisdiction. I find that ordinarily this court will not have jurisdiction to hear these appeals because their grounds are factual in nature. This is enough to dispose of this...