Cloete and Another v S; Sekgala v Nedbank Limited

Two separate applications for leave to appeal were brought before the Constitutional Court, both raising the same question: whether a decision by the President of the Supreme Court of Appeal under section 17(2)(f) of the Superior Courts Act 10 of 2013 is appealable to the Constitutional Court. In CCT 324/17, the Cloete applicants (father and son farmers) were convicted in the High Court of various offences including murder, kidnapping and attempted murder arising from a farm theft incident. The first applicant received an 18-year sentence and the second applicant 24 years. After being refused leave to appeal by the Supreme Court of Appeal, their first application to the President under section 17(2)(f) was dismissed on 4 June 2016. They made a second application about a year later based on new evidence, which was granted and set down for hearing. However, on 13 September 2017, the Registrar dismissed their application as res judicata. In CCT 63/18, Mr Sekgala defaulted on a home loan from Nedbank. Nedbank obtained default judgment in 2011, and Mr Sekgala sought rescission. On 15 September 2015, the High Court dismissed his rescission application. Leave to appeal was refused by the High Court and the Supreme Court of Appeal on petition. His application to the President under section 17(2)(f) was dismissed on 27 February 2018 on the ground that no exceptional circumstances existed.

• Whether a decision by the President of the Supreme Court of Appeal under section 17(2)(f) of the Superior Courts Act 10 of 2013 is a decision of a court
• Whether the Constitutional Court has jurisdiction under section 167(6)(b) of the Constitution to hear an appeal against a President's decision under section 17(2)(f)
• Whether a section 17(2)(f) decision is final and therefore appealable
• Whether allowing appeals against section 17(2)(f) decisions would create a dual appeal process
• Whether any prejudice results from refusing leave to appeal against a section 17(2)(f) decision
• Whether it is in the interests of justice to grant leave to appeal against a section 17(2)(f) decision

In CCT 324/17: (1) Applications for condonation granted; (2) Application for leave to appeal dismissed; (3) No order as to costs. In CCT 63/18: (1) Application for leave to appeal dismissed; (2) No order as to costs.

1. Appeals against decisions by the President of the Supreme Court of Appeal under section 17(2)(f) of the Superior Courts Act ordinarily do not fall within the Constitutional Court's jurisdiction under section 167(3)(b) of the Constitution because such appeals are factual in nature (concerning whether exceptional circumstances exist) and do not raise constitutional matters or arguable points of law of general public importance. 2. Even where the Constitutional Court might have jurisdiction, it will ordinarily not be in the interests of justice to grant leave to appeal against a section 17(2)(f) decision because: (a) The President's decision is ordinarily not final in effect - it is merely a limited procedural power to refer a matter for reconsideration, not a decision disposing of the issues or definitive of the parties' rights as required by Zweni v Minister of Law and Order; (b) Allowing such appeals would create an undesirable dual appeal process, inconsistent with established Constitutional Court jurisprudence that appeals from the Supreme Court of Appeal only lie where that Court has pronounced on the merits; (c) No prejudice results because unsuccessful litigants retain the right to appeal the underlying High Court judgment on the merits to the Constitutional Court within 15 days of the President's decision (as contemplated by Rule 19(2) of the Constitutional Court Rules). 3. Section 17(2)(f) functions as a safety net within the appeals process, not as a separate appealable decision. When the President refuses to refer a matter for reconsideration, the decision of the judges refusing leave to appeal stands as the final decision of the Supreme Court of Appeal, and any appeal lies to the Constitutional Court against the High Court judgment on the merits. 4. Litigants dissatisfied with a President's section 17(2)(f) decision must pursue their remedies through the ordinary appeal process by seeking leave to appeal the High Court judgment to the Constitutional Court, rather than by appealing the President's decision itself.

1. The Court expressly left open the question of whether a decision by the President under section 17(2)(f) constitutes a "decision of a court" for purposes of section 167(6)(b) of the Constitution. The Court found the statutory language ambiguous - it could be read either as the President (a single judge) making a referral to "the court" (suggesting it is not a court decision), or as a judicial determination by one judge of that Court as contemplated by section 168(2) of the Constitution read with the Superior Courts Act (suggesting it is a court decision). The Court declined to resolve this ambiguity definitively. 2. The Court acknowledged that in exceptional circumstances, a section 17(2)(f) decision might be considered final in nature and in principle appealable - for instance, where no appeal to the Constitutional Court on the merits of the court a quo's judgment is available to the applicant (such as where the grounds are purely factual). However, even in such cases, whether the appeal would engage the Constitutional Court's jurisdiction would remain a separate question, and in most instances it would not. 3. The Court noted without deciding that it expressed no view on whether the President's decision should be subject to appeal or review, restricting its findings to the facts before it (which concerned appeals). 4. The Court observed that perhaps the only example where an appeal against a section 17(2)(f) decision would engage the Constitutional Court's jurisdiction is where there is evidence showing the decision was taken in bad faith and out of malice. 5. The Court referenced the concept of the "tyranny of litigation" and emphasized that there must be limits to how many times a litigant can reapproach the courts, noting that the extensive procedural rights already available (High Court hearing, leave to appeal refusals at multiple levels, section 17(2)(f) application, and still the right to approach the Constitutional Court on the merits) are generous. 6. The Court reiterated its previous jurisprudence that it will only interfere in pending proceedings in lower courts in cases of "great rarity - where grave injustice threatens, and where intervention is necessary to attain justice."

This judgment clarifies an important procedural question regarding the appellate jurisdiction of the Constitutional Court in relation to the Superior Courts Act. It establishes that decisions by the President of the Supreme Court of Appeal under section 17(2)(f) are ordinarily not appealable to the Constitutional Court. The case is significant because it: 1. Prevents fragmentation of appeals and piecemeal litigation that would result from allowing separate appeals against procedural section 17(2)(f) decisions 2. Confirms the approach in earlier Constitutional Court jurisprudence (Mabaso, Swartbooi) that appeals to the Constitutional Court from the Supreme Court of Appeal only lie where that Court has pronounced on the merits 3. Protects the inherent power of the Supreme Court of Appeal to regulate its own processes 4. Balances access to justice concerns by preserving the right to appeal the underlying High Court judgment on the merits 5. Recognizes section 17(2)(f) as a safety net within the appeals process rather than creating a separate avenue of appeal 6. Guards against the "tyranny of litigation" by imposing reasonable limits on the number of times a litigant can reapproach the courts 7. Promotes efficient use of judicial resources by avoiding duplicative appeals The judgment leaves open the theoretical question of whether a section 17(2)(f) decision is a "decision of a court" for constitutional purposes, but resolves the practical issue by holding that such decisions are ordinarily not appealable on jurisdictional and interests of justice grounds.