By Derek Harms SC

As editor of Harms DR Civil Procedure in the Superior Courts (Durban: LexisNexis), I was recently told by a subscriber that the publication did not consider ‘the consequences of 17th Amendment to the Constitution, 1996, granting the Constitutional Court plenary appeal jurisdiction, have still not been considered throughout the commentary. This amendment means, importantly, that a “constitutional issue” is no longer a jurisdictional requirement for an application for leave to appeal to the Constitutional Court.’

The subscriber was of course referring to s 167(3) of the Constitution, which now (after the amendment with effect from 23 August 2013) reads as follows:

‘(3) The Constitutional Court

(a) is the highest court of the Republic; and

(b) may decide—

(i) constitutional matters; and

(ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court; and

(c) makes the final decision whether a matter is within its jurisdiction’ (my italics).

Section 167(3)(b)(i) – ‘constitutional matters’

It is accepted, obviously, that the Constitutional Court (CC) is the highest court in South Africa (SA) and may decide constitutional matters.

Ngcobo J in Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC) paras 293 – 299 in dealing with the jurisdictional relationship between the Supreme Court of Appeal (SCA) and the CC (prior to the 17th Amendment) held that the CC ‘is not just another court to which an appeal from the [SCA] lies. [The CC] has a special role to play in the context of our judicial system. It is the highest court, not in all matters, but in constitutional matters only’ (not that this dictum was always followed as is evident below).

Be that as it may, the 17th Amendment changed this by way of Parliamentary interference.

Section 167(3)(b)(ii) – ‘any other matter’

The simple difficulty with the plenary jurisdiction argument is that it avoids the most important word in s 167(3)(b)(ii) viz ‘if’.

Conditional clause

The use of the word ‘if’ is to introduce a conditional clause. In other words a party availing itself of the wording ‘any other matter’ in order to argue any unconstitutional matter it ought be satisfying the ‘if’ first.

The conditional clause in this section introduces two conditions, which must be present if the CC were to consider the grant of leave to appeal in a non-constitutional matter: ‘The matter raises an arguable point of law’ of ‘general public importance which ought to be considered’.

This obviously voids the plenary jurisdiction argument.

Section 167(3)(b)(ii) received consideration in Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC).

In sum, the CC found that:

• Arguable point of law – ‘in order to be arguable, a point of law must have some prospects of success’. ‘Ultimately, whether a point of law is arguable, depends on the particular circumstances of each case’.
• General public importance –‘ a “matter of general public importance warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: Its impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing up on the public interest.” This does not mean the requirement will be met only if the interests of society as a whole are implicated. English courts have found that an issue is of general public importance when it is likely to arise again in other cases and where its determination would affect a large class of persons rather than merely the litigants.’

CC – before the introduction of s 167(3)(b)(ii)

Note that the court in the past, before the advent of the section under discussion, ventured past its jurisdictional confines defined in the Lufuno Mphaphuli matter, as being ‘in constitutional matters only’ with some or other excuse.

An example, one of many, is Lee v Minister for Correctional Services 2013 (2) SA 144 (CC) where the court stated at para 23: ‘The issue relates primarily to the approach adopted by the Supreme Court of Appeal to the question of causation.’ This should have been the end of the inquiry as the Constitution was not in issue.

But, the court went on to say at para 30: ‘This matter falls within the jurisdiction of this court. The applicant sought to vindicate his right to freedom and security of the person under s 12(1) and right to be detained under conditions that are consistent with human dignity, including at least to be provided with adequate accommodation, nutrition and medical treatment under s 35(2)(e) of the Constitution. In addition, based on the state’s inherent constitutional obligations, the constitutional norms of accountability and responsiveness are, in my view, implicated.’ And at para 31: ‘The matter is of importance, not only to the parties, but also to other inmates and the health sector generally. It is thus in the interests of justice that leave to appeal should be granted.’

It is fortunate that the jurisdiction of the Constitutional Court has been changed (ie, by the 17th Amendment) and that it is no longer necessary for it to justify its decision to regard a matter as constitutional in such terms. The CC does not have unlimited jurisdiction, because of the conditional clause in s 167(3)(b)(ii).

Derek Harms SC BA LLB (Unisa) DIP (London) is senior counsel at the Cape Bar.

This article was first published in De Rebus in 2017 (April) DR 13.