President of the Republic of South Africa and Others v South African Rugby Football Union and Others

On 22 September 1997, the President appointed a commission of inquiry under section 84(2)(f) of the Constitution to investigate financial and administrative aspects of SARFU. SARFU, Gauteng Lions Rugby Union, Mpumalanga Rugby Union and Dr Louis Luyt challenged this appointment in the Transvaal High Court, seeking to have the commission and proclamation set aside. De Villiers J referred the matter for oral evidence under Rule 6(5)(g), ordered the President to testify personally, and after hearing evidence, set aside the President's appointment on 17 April 1998. Reasons for judgment were provided on 7 August 1998 in a judgment exceeding 1000 pages. The President applied for leave to appeal to the Supreme Court of Appeal on 15 May 1998, and on 11 September 1998 noted an appeal to the Constitutional Court, seeking condonation for the late filing.

• Whether an order setting aside the President's proclamation appointing a commission of inquiry constitutes an order of constitutional invalidity within section 172(2)(a) and (d) of the Constitution
• Whether such an order is a decision that the President failed to fulfil a constitutional obligation under section 167(4)(e)
• Whether interlocutory orders made during the High Court proceedings are 'constitutional matters' or 'issues connected with decisions on constitutional matters' under section 167(3)(b)
• What is the proper forum for appeals against orders of constitutional invalidity concerning conduct of the President - the Constitutional Court or Supreme Court of Appeal
• Whether lodging an application for leave to appeal to the Supreme Court of Appeal constituted an election not to appeal directly to the Constitutional Court (waiver)
• Whether condonation should be granted for late noting of appeal to the Constitutional Court

1. The application for condonation was granted. 2. The parties were ordered to pay their own costs of the application. 3. Directions were given for the appeal: record to be lodged by 11 January 1999; appellants' written argument by 3 February 1999; respondents' argument by 10 March 1999; hearing set down for 23-26 and 29 March 1999.

Section 172(2)(d) of the Constitution confers an unqualified right of appeal to the Constitutional Court for any person or organ of state with sufficient interest against orders of constitutional invalidity concerning conduct of the President. 'Sufficient interest' qualifies who may appeal, not the subject matter of the appeal. No requirement exists that the appeal must raise 'constitutional matters of substance'. Section 172(2) creates a special procedure distinct from section 167(6) appeals: orders of constitutional invalidity concerning the President, Parliament or provincial Acts have no force unless confirmed by the Constitutional Court, and must be referred to it. The purpose is to preserve comity between branches of government by ensuring only the highest constitutional court can effectively invalidate conduct of the highest organs of state. Issues inextricably related to constitutional questions, including factual matters underlying constitutional findings and allegations of bias affecting procedural fairness under section 34, are 'issues connected with decisions on constitutional matters' within the Constitutional Court's jurisdiction under section 167(3)(b). Lodging an application for leave to appeal to another court does not constitute waiver or election where no leave has been granted, no appeal has been noted, and the applicant indicates willingness to abandon that application.

The Court observed that section 167(4)(e) (concerning failure to fulfil a constitutional obligation) should be given a narrow meaning when read with section 172(2)(a), but did not definitively determine what that meaning should be, noting it may depend on facts and the precise nature of challenges. The Court noted it is 'at least doubtful' whether the Supreme Court of Appeal has jurisdiction over orders of constitutional invalidity concerning presidential conduct, and stated 'there is much to be said for the view' that the Constitutional Court is the only court competent to deal with appeals against such orders, but expressly declined to decide this question. The Court commented that it would be 'an unusual procedure' to have one court (SCA) able to reverse an order but unable to make a binding confirmation, while another court (Constitutional Court) has authority to confirm, vary or refuse confirmation. The Court also noted that not all matters raised in paragraph 1.2 of the notice of appeal (interlocutory orders) may be appealable, but did not decide this question as no argument was heard on it. Chaskalson P observed that the Constitutional Court 'adopts a more flexible approach to costs than do other courts' and frequently does not order costs against unsuccessful parties.

This case is critically important for establishing the Constitutional Court's exclusive supervisory jurisdiction over orders of constitutional invalidity concerning Acts of Parliament, provincial Acts, and conduct of the President. It clarifies the distinction between appeals under section 172(2)(d) (which are as of right for orders of constitutional invalidity) and appeals under section 167(6) (which require leave and must be in the interests of justice). The judgment establishes that section 172(2)(d) does not require appeals to raise 'constitutional matters of substance' - the constitutional nature of the order itself provides the jurisdictional basis. The decision reinforces the separation of powers and the principle that only the Constitutional Court may effectively invalidate conduct of the President or Acts of Parliament, preserving comity between branches of government. It also establishes that 'issues connected with decisions on constitutional matters' (section 167(3)(b)) can include factual and procedural matters inextricably related to constitutional issues. The flexible approach to costs and condonation in constitutional matters of public importance is also noteworthy.