Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Pages: 243-259
• Published date: 24 May 2019
• Date: 24 May 2019
• Citation: (1999) 12 SACJ 243
• Author: Michael Cowling

Recent Cases • Vonnisse



243

Criminal Procedure

MICHAEL COWLING

University of Natal, Pietermaritzburg

Appeal — refusal of leave — absence of reasons

A long-standing practice has existed in respect of the refusal of leave to

appeal from t e High Court to t e Supreme Court of Appeal by t e latter

to t e effect that reasons for such refusal will not be furnished. In

Mphahlele v

(1999) 12 SACJ 243

© Juta and Company (Pty) Ltd

244



SA CJ

• (1999) 12 •

SAS

First National Bank of SA Ltd

1999 (1) SACR 373 (CC) the applicant

challenged this practice on the basis that it was part of 'apartheid practice

which was oppressive and destined to intimidate the poor masses'.

The more formal legal basis for this challenge rested on the fact that the

Constitution binds the judiciary (s 8(1) of the Constitution) together with

the existence of the right to information (s 32(1)). The focus of the applicant's

argument centered on the principle that the judiciary has been rendered

more accountable by the Constitution and that this should be manifested by

the furnishing of reasons for all decisions. At the same time the failure to

furnish such reasons was said to constitute a denial of the fundamental right

to information.

By way of explaining this practice of not furnishing reasons the legal

administrative officer in the chambers of the chief justice stated that it is

usually implied in the order refusing an application for leave to appeal to the

Supreme Court of Appeal that the order of the court

a quo

is correct and

the appeal would not have any reasonable prospects of success. In addition

mention must be made of the fact that courts of first instance invariably

furnish reasons for their decisions to grant or refuse leave to appeal and such

reasons are before the Supreme Court of Appeal when the decision as to

whether or not leave will be granted or refused is made.

The Constitutional Court (per Goldstone J) dismissed the application on

the grounds that 'there is no express constitutional provision which requires

judges to furnish reasons for their decisions' (at 376e). However, the learned

judge was quick to point out that the rule of law 'undoubtedly

requires Judges not to act arbitrarily and to be accountable' (at 376f). This

was ordinarily achieved by furnishing reasons for decisions which served to

explain to the parties and the public at large why a case was decided as it

was. It also enabled the losing party to take an informed decision regarding

an appeal.

However, a refusal of leave to appeal by the Supreme Court of Appeal is

not appealable to any other court and hence such a decision could well be

governed by different considerations because an unsuccessful litigant cannot

be prejudiced thereby since he or she cannot take the matter any further.

Such litigant would already have been informed by the court of first instance

and, in any event, the clear implication of such refusal is that prospects of

success do not exist.

The court further considered this issue within the context of the

provision that leave to appeal must be required otherwise court rolls would

inevitably be clogged with unmeritorious and vexatious issues resulting in

waste of judicial time. Requiring the furnishing of reason for refusal of

leave to appeal would defeat the objects of requiring such leave in the first

place.

© Juta and Company (Pty) Ltd