Legal Aid South Africa v Magidiwana and Others

• Jurisdiction: South Africa
• Citation: 2015 (2) SA 568 (SCA)

Legal Aid South Africa v Magidiwana and Others
2015 (2) SA 568 (SCA)

2015 (2) SA p568

Citation	2015 (2) SA 568 (SCA)
Case No	1055/13; [2014] ZASCA 141
Court	Supreme Court of Appeal
Judge	Ponnan JA, Maya JA, Swain JA, Zondi JA and Fourie AJA
Heard	September 8, 2014
Judgment	September 26, 2014
Counsel	GJ Marcus SC (with M Stubbs and E Nahlangu) for the appellant.; DC Mpofu (with M Qofa) for the first and second respondents.; S Wilson for the eighth and ninth respondents.; J Brickhill for the eighteenth respondent.

Flynote : Sleutelwoorde B

Appeal — Power of court of appeal — Power to dismiss appeal where judgment or order sought would have no practical effect or result — Discretion of court — Court unable to exercise discretion when all disputes between C parties settled by agreement — Superior Courts Act 10 of 2013, s 16(2)(a)(i).

Headnote : Kopnota

The Marikana Commission of Enquiry (the Commission) was appointed by the President to investigate the 16 August 2012 incidents at the Lonmin Mine D in Marikana (an event that became known as the Marikana Massacre). The respondents were involved as either victims or perpetrators. After Legal Aid South Africa (Lasa) had declined their application for legal assistance — it had previously granted funding to 23 families who had lost breadwinners during the incidents — they successfully applied to the high court for an order directing Lasa to provide adequate legal and equitable aid in respect E of future proceedings of the Commission and past costs. Leave to appeal was granted. However, prior to the hearing the parties entered into a settlement agreement in which all differences were resolved. Lasa nevertheless argued that in making the decision the high court had usurped the discretion of its CEO and supplanted its decision for that of Lasa, potentially opening the floodgates to claims on scarce resources and leaving its decision F to refuse applications for funding vulnerable to judicial scrutiny. It was therefore an appropriate matter for the exercise of the court's discretion to allow the appeal to proceed. The SCA —

Held (per Ponnan JA, Swain JA and Fourie AJA concurring): In a situation such as the present, where the parties had by agreement settled all disputes between them, there was — as a matter of principle — no discretion for the G court to exercise under s 16(2)(a)(i) of the Act. It followed that the appeal had to be dismissed. (Paragraph [22] at 579D – F.)

The minority (per Maya JA, Zondi JA concurring), though agreeing that the appeal had to be dismissed, were of the view that the courts may have a tightly circumscribed discretion to enquire into the merits of an appeal, even in the absence of a lis between the parties in an appropriate case. H (Paragraph [27] at 580J – 581A.)

Cases Considered

Annotations

Case law

Southern Africa

Absa Bank Ltd v Van Rensburg 2014 (4) SA 626 (SCA) ([2014] ZASCA 34): considered I

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to

Clear Enterprises (Pty) Ltd v Commissioner, South African Revenue Service and Others J [2011] ZASCA 164: referred to

2015 (2) SA p569

Coin Security Group (Pty) Ltd v SA National Union for Security Officers and Others A 2001 (2) SA 872 (SCA): considered

Ethekwini Municipality v South African Municipal Workers Union and Others [2013] ZASCA 135: referred to

Ewing McDonald & Co Ltd v M&M Products Co 1991 (1) SA 252 (A): referred to

Executive Officer, Financial Services Board v Dynamic Wealth Ltd B 2012 (1) SA 453 (SCA) ([2012] 1 All SA 135): referred to

Kenmont School and Another v DM and Others [2013] ZASCA 79: referred to

Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4) SA 506 (SCA) ([2005] 4 All SA 509): distinguished

Legal Aid Board v The State and Others 2011 (1) SACR 166 (SCA): C considered

Makhanya v University of Zululand 2010 (1) SA 62 (SCA) ([2009] 4 All SA 146; [2009] 8 BLLR 721): referred to

Minister of Trade and Industry v Klein NO [2009] 4 All SA 328 (SCA): referred to

Natal Rugby Union v Gould 1999 (1) SA 432 (SCA) ([1998] 4 All SA 258): D distinguished

Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA): approved

Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others 2013 (3) SA 315 (SCA): considered

Radio Pretoria v Chairman, Independent Communications Authority of South Africa and Another 2005 (1) SA 47 (SCA): E approved

Rand Water Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA): approved

S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793; [1995] ZACC 4): referred to

Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) (2012 (8) BCLR 785; [2012] ZACC 11): F referred to

The Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation 2002 (4) SA 273 (SCA): distinguished.

England

Ainsbury v Millington [1987] WLR 379 (HL): referred to

Bowman v Fels [2005] EWCA Civ 226 ([2005] 4 All ER 609): referred to G

Donaldson v Secretary of State for the Home Department [2014] CSIH 31: referred to

Fletcher and Others v NHS Pensions and Others [2006] EWCA Civ 517: referred to

Neath Port Talbot Country Borough Council v Ware [2007] EWCA Civ 1359: referred to H

PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132: referred to

R v Board of Visitors of Dartmoor Prison, Ex parte Smith [1987] QB 106: referred to

R v Lambeth [2010] EWHC 507 (Admin) ([2010] All ER (Admin) 129): referred to I

R v Secretary of State for the Home Department [2014] EWHC 2015 (Admin): referred to

R v Secretary of State for the Home Department, Ex parte Abdi [1996] 1 WLR 298: referred to

R v Secretary of State for the Home Department, Ex parte Salem [1999] 2 WLR 483 (HL) ([1999] 2 All ER 42): considered. J

2015 (2) SA p570

Statutes Considered

Statutes A

The Superior Courts Act 10 of 2013, s 16(2)(a)(i): see Juta's Statutes of South Africa 2013/14 vol 1 at 2-281.

Case Information

GJ Marcus SC (with M Stubbs and E Nahlangu) for the appellant.

DC Mpofu (with M Qofa) for the first and second respondents.

S Wilson for the eighth and ninth respondents. B

J Brickhill for the eighteenth respondent.

An appeal from the North Gauteng High Court, Pretoria (Makgoka J sitting as court of first instance).

Order C

The appeal is dismissed in terms of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 and each party is ordered to pay its own costs.

Judgment

Ponnan JA (Swain JA and Fourie AJA concurring):

D [1] In this appeal counsel were, at the outset of the hearing, required to address argument on the preliminary question of whether the appeal and any order made thereon would, within the meaning of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 (the Act), [1] have any practical effect or result. After hearing argument on this issue the appeal was dismissed on 8 September 2014 in terms of that section and each party was ordered E to pay its own costs of the appeal. It was intimated then that reasons would follow. These are those reasons.

[2] Courts should not and ought not to decide issues of academic interest only. That much is trite. In Radio Pretoria v Chairman, Independent Communications Authority of South Africa and Another 2005 (1) SA 47 (SCA) F this court expressed its concern about the proliferation of appeals that had no prospect of being heard on the merits, as the order sought would have no practical effect. It referred to Rand Water Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA) para 26 where the following was said:

G 'The present case is a good example of this Court's experience in the recent past, including unreported cases, that there is a growing misperception that there has been a relaxation or dilution of the fundamental principle . . . that Courts will not make determinations that will have no practical effect.'

[3] Section 16(2)(a)(i) provides:

H 'When 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.'

Of its predecessor, s 21A of the Supreme Court Act 59 of 1959, [2] this court stated in Coin Security Group (Pty) Ltd v SA National Union for Security Officers and Others I 2001 (2) SA 872 (SCA) para 7:

2015 (2) SA p571

Ponnan JA (Swain JA and Fourie AJA concurring)

'The purpose and effect of s 21A has been explained in the judgment of A Olivier JA in the case of Premier, Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad 1998 (2) SA 1136 (SCA). As is there stated the section is a reformulation of principles previously adopted in our Courts in relation to appeals involving what were called abstract, academic or hypothetical questions. The principle is one of long standing.' B

[4] The primary question therefore, one to which I presently turn, is whether the judgment sought in this appeal will have any practical effect or result. It arises against the backdrop of the following facts: On 26 August 2012 and by virtue of the powers vested in him by s 84(2)(f) C of the Constitution, [3] the President of the Republic of South Africa (the President) appointed what has come to be as described as the Marikana Commission of Enquiry (the Commission) to:

'(I)nvestigate matters of public, national and international concern arising out of the tragic incidents at the Lonmin Mine in Marikana . . . D from Saturday 11 August to Thursday 16 August, 2012 which [led] to the deaths of approximately 44 people, more than 70 persons being injured, approximately 250 people being arrested and damage and destruction to property.' [The Marikana incident.]

According to the terms of reference of the Commission, it is...