Minister of Finance v Sakeliga NPC (previously known as Afribusiness NPC) and Others

This case arose from the Minister of Finance's urgent application for direct access to the Constitutional Court seeking variation of an earlier order. In the earlier case (Afribusiness), the Constitutional Court dismissed by majority decision the Minister's appeal against a Supreme Court of Appeal judgment that declared the Preferential Procurement Regulations (made under the Preferential Procurement Policy Framework Act 5 of 2000) invalid. The Supreme Court of Appeal had suspended its declaration of invalidity for 12 months to enable corrective action. The Minister applied for leave to appeal to the Constitutional Court on 23 November 2020, and the appeal was dismissed on 16 February 2022. Subsequently, the Minister brought this application claiming that the Constitutional Court's order was ambiguous because of a footnote in the minority judgment stating that the suspension period expired on 2 November 2021 (12 months from the Supreme Court of Appeal's order). The Minister argued this created confusion about when the suspension period actually expired, given section 18(1) of the Superior Courts Act which suspends the operation of an order when leave to appeal is noted.

• Whether the Constitutional Court's order dismissing the appeal was ambiguous or contained a patent error or omission warranting variation under rule 42(1)(b) of the Uniform Rules of Court
• Whether a footnote in the minority judgment could create ambiguity in the majority judgment's order
• The proper interpretation of the effect of section 18(1) of the Superior Courts Act 10 of 2013 on the suspension period granted by the Supreme Court of Appeal
• When the 12-month suspension period granted by the Supreme Court of Appeal commenced and resumed running

The application was dismissed with costs, including costs of two counsel.

The binding legal principles established are: (1) A footnote or statement in a minority judgment cannot affect the meaning of an order made by the majority unless it has been expressly or impliedly adopted by the majority judgment. (2) An order is not ambiguous under rule 42(1)(b) merely because parties may have interpreted it without proper regard to applicable statutory provisions. (3) Under section 18(1) of the Superior Courts Act, when leave to appeal is sought, both the operation and execution of a judgment are suspended, including any suspension period granted by the lower court, and such suspension remains in place pending the decision of the application for leave or the appeal itself. (4) Court orders must be interpreted in accordance with the applicable legal framework, including relevant statutory provisions, and not in isolation. (5) The suspension of "operation and execution" of a judgment under section 18(1) has a wide meaning encompassing whatever is required to be done or has to take place in terms of the judgment - the judgment cannot be carried out and no effect can be given to it.

The Court noted that the Director-General of the National Treasury had sent out a communication halting government procurement pending the outcome of this application, but observed that this decision was the result of a misunderstanding of the law and had nothing to do with the order of the Constitutional Court. The judgment also traced the historical development of the law on suspension of orders pending appeal, noting that section 18(1) of the Superior Courts Act effectively restated the common law position established in cases like South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A), and previously codified in the now-repealed rule 49(11) of the Uniform Rules of Court. Madlanga J characterized Sakeliga's description of the application as "an exercise in futility, an abuse of the process of this Court and a waste of judicial resources" but did not need to make a definitive finding on this characterization given the dismissal on the merits.

This case is significant for clarifying the operation of section 18(1) of the Superior Courts Act 10 of 2013 regarding the automatic suspension of orders when leave to appeal is sought. It confirms that when an application for leave to appeal is lodged, not only is the execution of an order suspended, but any suspension period granted by the lower court is also halted and only resumes running when the appeal is finally determined. The case also establishes important principles about the interpretation of court orders: (1) footnotes or statements in minority judgments cannot create ambiguity in majority judgments unless expressly or impliedly adopted; (2) court orders must be interpreted in light of applicable statutory and common law principles, not in a vacuum; and (3) rule 42 variation applications will not succeed where there is no actual ambiguity in the order itself but rather a misunderstanding of the applicable law. The judgment reinforces judicial economy by discouraging applications that seek to vary orders based on misinterpretations of clear legal provisions.