Maphahlele v First National Bank of SA Ltd

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Krieler J, Madala J, Mokgoro J, O'Reagan J, Sachs J and Yacoob J
• Judgment Date: 01 March 1999
• Citation: 1999 (1) SACR 373 (CC)
• Hearing Date: 01 March 1999
• Counsel: E Seima (with him J Mguni) for the applicant submitted written argument The respondent was not required to submit written argument
• Court: Constitutional Court

Goldstone J:

D [1] The applicant is an attorney and the respondent is his banker. In December 1997, the applicant applied to the Transvaal High Court for an order relating to the applicant's trust account with the respondent. On 11 December 1997 Southwood J dismissed the application with costs. Some time later, the applicant sought condonation for the late noting of an application for leave to appeal to the Full E Bench of the High Court or to the Supreme Court of Appeal. During June 1998 that application was also dismissed with costs. The applicant then petitioned the Chief Justice for leave to appeal. In terms of s 21(3)(b) of the Supreme Court Act 1959 [1] (the Supreme Court Act) the petition was considered by two Judges of the F Supreme Court of Appeal. They refused the petition without argument and without referring it to the Court, a procedure they were entitled to adopt. [2]

[2] By letter, the applicant approached the Registrar of the Supreme Court of Appeal for reasons for the refusal of his petition. He was informed by the Registrar G that the long-standing practice of the Court is that reasons are not furnished in such matters. The applicant then addressed a letter to the Chief Justice in which he submitted that 'the long-standing practice of the Court' refers to 'apartheid practice which was oppressive and destined to intimidate the poor masses'.

[3] The Legal Administrative Officer in the Chambers of the Chief Justice H replied to the applicant, saying, inter alia:

'Usually implied in the order refusing an application for leave to appeal to the Supreme Court of Appeal is the conclusion that the order of the Court a quo is correct and the appeal would not have any reasonable prospects of success. It is for this reason that the practice has been not to give any formal reasons for an order refusing leave to appeal. It also applies in the instant case.'

I [4] By notice of motion filed in this Court, the applicant seeks orders directing the two Judges of the Supreme Court of Appeal, who considered the petition, to furnish reasons for dismissing it and directing J

Goldstone J

them to grant leave to appeal. The main ground on which the order is sought is A that the Constitution binds the Judiciary [3] and obliges it to furnish reasons for orders it issues.

[5] The President of this Court issued directions requiring the applicant to lodge written argument in support of his application, whereafter consideration would be given to the manner in which the application should be dealt with. Pending such B decision, and any further directions, the respondent was not required to respond to the applicant's written argument. The applicant's argument was duly filed.

[6] I have given careful consideration to the application, the reasons of the applicant in support thereof and the written argument of his counsel. In my opinion, the application should be dismissed at this stage without calling for a response from the respondent. The following are the reasons for that conclusion. C

[7] The applicant does not suggest that the original application before Southwood J or the subsequent applications for condonation and for leave to appeal in themselves raised any constitutional issue. It is thus not necessary for D this Court to consider the nature or detail of those applications. Suffice it to say that the matter is one of substantial importance to the applicant: on the strength of the judgment of Southwood J, the Law Society of the Transvaal is seeking to strike the applicant's name from the roll of attorneys. What is said to be a constitutional E issue is the dismissal by the Supreme Court of Appeal of the petition without furnishing any reasons. That, however, on the face of it, is a matter of procedural practice and whether it raises a constitutional question is open to doubt. However, I shall approach the matter as if there is a constitutional issue involved.

[8] In their written argument, counsel for the applicant refer in some detail to F the transformation of our society brought about by the Constitution and especially the Bill of Rights. They submit that the furnishing of reasons for all decisions will make the accountability of Judges more apparent, and help restore the legitimacy of, and maintain public...