Dormehl v Minister of Justice and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J, Cameron AJ
• Judgment Date: 14 April 2000
• Docket Number: CCT 10/2000
• Court: Constitutional Court
• Hearing Date: 14 April 2000
• Citation: 2000 (2) SA 987 (CC)

Chaskalson P:

[1] The applicant has applied in terms of Rule 17 for direct access to this Court. [1] The proceedings, initiated by the applicant in person, are not in conformity with the requirements of the Rules of this Court. [2] The application was launched by a document entitled 'Application for direct access' supported by an affidavit deposed to by the applicant. G The 'Application for direct access' is not in the form of a notice of motion as the Rules require. It consists of a mixture of arguments, averments of fact, and statements of the relief sought which are not always clear or coherent. The applicant does not appear to have had the benefit of legal advice and in the particular circumstances of this H case I consider it appropriate to ignore the formal defects in the 'notice' launching the application and deal with it on its merits.

Chaskalson P

[2] It is possible to discern from the 'application' the relief that the applicant wishes to claim. It is as follows: First, A that this Court order that the following Rules and 'practices' are inconsistent with the Constitution and are accordingly invalid:

(a)

Rule 17 of the rules of the Constitutional Court requiring the applicant to obtain the leave of this Court in order to approach it directly. B

(b)

That corporations have to be represented in legal proceedings in superior Courts by a legal practitioner who has a right of audience before such Court and cannot be represented by a lay person.

(c)

Any provision requiring a litigant to furnish security for costs. C

(d)

Any provision requiring an unsuccessful litigant to obtain leave to appeal in order to prosecute an appeal to a higher Court. In particular, the applicant has challenged the constitutionality of such a requirement in Rule 18 of the Rules of this Court. [3]

Secondly, the applicant seeks a mandamus against the fourth respondent, a Judge of the High Court, requiring him to 'submit D a proper written judgment of his findings on 2 April 1998' in a matter in which an oral judgment was given by the Judge on that date.

[3] The applicant has cited as respondents the Minister of Justice, the Registrar of Companies, the chairman of the Justice E Sub-Committee (it appears from the papers that the person intended to be cited is the Chairman of the National Assembly's Portfolio Committee on Justice and Constitutional Affairs), the Judge referred to in para [3] above and 'the Justice and Peace Catholic Church Pretoria'. The applicant does not indicate what direct interest each of the respondents has in the various orders sought by him. Nor F does he indicate what direct interest he has in the relief that he claims. In the view that I take of this matter, however, nothing turns on these procedural defects. The applicant has not made out a case for direct access and the matter can be dealt with in terms of Rule 17(5) which entitles this Court to deal with the application G

'. . . summarily, without hearing oral or written argument other than that contained in the application itself . . .'.

The constitutionality of Rule 17

[4] It is convenient to deal first with the contention that Rule 17 is unconstitutional. It is contended that the requirement of the Rule H that direct access is permissible only with leave of the Court infringes the right of 'everyone' under s 34 of the Constitution to have

'. . . any dispute that can be resolved by the application of law decided in a fair public hearing before a court . . .'. J

Chaskalson P

There is no merit in this contention. The procedure requiring such leave is specifically sanctioned by the A Constitution. [4] In any event s 34 does not confer on litigants a right to approach any court in the court hierarchy for relief. As long as there is a right to approach a court of competent jurisdiction for the relief claimed, the requirements of the section are met. The High...