Minister of Finance v Sakeliga NPC (Previously Afribusiness NPC) and Others 2022 (4) SA 401 (CC)

In the case of Sakeliga, the Constitutional Court (CC) dismissed the application with costs. After the applicants applied for direct access to the CC on an urgent application seeking a variation of the order that dismissed his application at the CC. The CC said that according to the applicant, he claims that the CC order lacked clarity and is thus susceptible to variation. According to the applicant the only thing that gives rise to the perceived problem with the order is the footnote in the minority judgment.

The CC stated that this is how the problem is said to arise. The CC added that with reference to the Supreme Court of Appeal’s (SCA) 12-month suspension of the declaration of invalidity, the footnote says ‘[t]he period of suspension expired on 2 November 2021’. The CC pointed out that the 2 November 2021 date is the end of 12 months from the date of the SCA’s order. The CC said that the applicant observes that the statement in the footnote was ‘very respectfully in conflict with section 18(1) of the Superior Courts Act [10 of 2013]’. The CC pointed out that the applicant correctly highlights the fact that the CC’s majority judgment does not respond to the content of the footnote.

The CC added that the applicant says, ‘the incorrect statement [in the footnote] is the only articulation of this … court’s position on the suspension period granted by the [SCA]’. The applicant concluded that the majority’s omission to address the content of the footnote has resulted in lack of clarity. The CC said to its understanding the applicant correctly suggests that this is exacerbated by the fact that the CC’s order simply says the appeal is dismissed and ‘does not purport to set aside, replace, substitute or in any way vary the order of the [SCA]’.

The CC pointed out that the applicant claims the confusion gave rise to three possible interpretations of the CC’s order. First, the CC said that the applicant submits that in terms of s 18(1) of the Superior Courts Act the operation of the order of the SCA was suspended from the date the applicant lodged an application for leave to appeal to the CC on 23 November 2020. And the operation of that order started running again when the CC dismissed the appeal on 16 February 2022. Second, the CC added that the order may be interpreted to mean that the Preferential Procurement Regulations, 2017 (the Regulations) were invalidated with immediate effect and prospectively from the date of dismissal of the appeal and without any suspension.

Third, the CC said that in accordance with the doctrine of objective constitutional invalidity, the order may be interpreted to mean that the invalidation is with effect from the date the Regulations were promulgated. The CC added that the applicant avers that each of these interpretations has support from the different interest groups. The CC pointed out that the applicant submitted that because of these three possible interpretations, the CC’s order is a candidate for variation in terms of r 42(1)(b) of the Uniform Rules of Court, which is made applicable to the CC by r 29 of the Rules of the Constitutional Court.

The CC explained that Rule 42(1)(b) provides that ‘[t]he court may … mero motu [of its own accord] or upon the application of any party affected, rescind or vary: … An order … to the extent of such ambiguity, error or omission’. The CC said the applicant submitted that variation is the ‘cleanest and least burdensome’ way to correct that lack of clarity in the order. The CC pointed out that variation would require only minor clerical edits to the order of the majority judgment and a correction of the footnote in the minority judgment.

The CC said that the first respondent, Sakeliga NPC, which was previously known as Afribusiness NPC, in the application for leave to appeal to the CC, opposes the present application brought by the applicant. Other respondents have opted not to enter the fray. The CC pointed out that Sakeliga contends that the application by the Minister of Finance is an exercise in futility, an abuse of the process of the CC and waste of judicial resources. Sakeliga argues that there is no need for the relief sought by the applicant as the period of suspension is regulated by the Superior Courts Act. That is so because, when the order is looked at in the light of the Superior Courts Act, there is no ambiguity, error, or omission.

The CC said that according to Sakeliga, this entails a simple calculation in accordance with the provisions of s 18(1) of the Superior Courts Act. And what the applicant is seeking to achieve is an amendment of the order of the SCA, which stands as a result of the CC’s dismissal of the appeal. The CC when looking at the merits, said the springboard of this application is the perceived confusion caused by the content of footnote 28 of the minority judgment. The CC said that the majority judgment opened by clearly stating what it agrees with in the minority judgment.

The CC pointed out that it does not include the content of footnote 28. The CC added that in any event, a minority judgment is just that. Unless parts of it have been adopted either expressly or impliedly. The CC said it does not understand how it can affect the meaning of an order granted by the majority. The CC added that the footnote has certainly not been adopted expressly. The CC said that it does not see the basis for an argument that it has been adopted impliedly. The CC added that it is worth noting that the applicant said the majority judgment was ‘silent’ on the footnote.

The CC said there is no basis whatsoever for suggesting that the majority judgment adopted the content of footnote 28 of the minority judgment. Therefore, the CC said it could not have given rise to any confusion in its order. The CC pointed out that the applicant is aware of the import of s 18(1) of the Superior Courts Act. According to the CC the applicant said that in terms of s 18(1) the operation of the order of the SCA was suspended from the date the applicant lodged an application for leave to appeal to the CC on 23 November 2020. The CC said the law is and has always been clear on the issue.

The CC said that plainly, execution of a judgment means giving effect to the judgment. Reference to ‘execution of the judgment in any other manner appropriate to the nature of the judgment appealed from’ gives a wide meaning to the word ‘execution’. The CC said put simply, it means giving effect to the order, whatever its nature. So, the suspension of the execution of judgment means ‘the judgment cannot be carried out and no effect can be given thereto’. The CC said that applies to whatever it is that is required to be done or must take place in terms of the judgment. The CC pointed out that in what effectively amounted to ‘a restatement of the common law’, r 49(11) of the Uniform Rules of Court provided:

‘Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs.’

The CC said that based on the clear statutory position, the operation and execution of the order of the SCA was halted. The CC added that in practical terms, what happened immediately after that order was granted was that the countdown on the 12-month period of suspension began. The CC said but the countdown was halted on the 21st day by the lodgement of the application for leave to appeal in the CC. Because s 18(1) suspends the operation and execution of a judgment ‘pending the decision of the application [for leave to appeal]’, the countdown resumed after the CC dismissed the appeal on 16 February 2022. The CC added that unsurprisingly, the applicant does realise that this is how the order ought to be interpreted.

Consequently, the court dismissed the application with costs, including costs of two counsel.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2023 (March) DR 22.