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

In September 1997, the President of the Republic of South Africa appointed a commission of inquiry into the financial and administrative affairs of the South African Rugby Football Union (SARFU) under section 84(2)(f) of the Constitution, and issued a proclamation applying the Commissions Act 8 of 1947. SARFU, two provincial rugby unions, and Dr Louis Luyt challenged the appointment and proclamation in the Transvaal High Court. De Villiers J reviewed and set aside both the President’s decision to appoint the commission and the proclamation, holding them constitutionally invalid. The President, the Minister of Sport and Recreation, and the Director-General of Sport and Recreation sought to appeal. Procedural uncertainty arose as to whether the appeal lay to the Constitutional Court or the Supreme Court of Appeal, whether condonation should be granted for late filing, and whether the applicants had waived their right to approach the Constitutional Court.

The Constitutional Court held that it was the proper forum to hear the appeal against the High Court’s order of constitutional invalidity concerning the conduct of the President, rejected the jurisdictional and waiver objections raised by the respondents, and allowed the matter to proceed before it (with condonation for late filing to be considered).

This case clarified the Constitutional Court’s exclusive supervisory role over orders of constitutional invalidity concerning the conduct of the President under section 172(2). It distinguished appeals under sections 167 and 172, rejected the notion that only ‘constitutional matters of substance’ qualify, and strengthened the principle of legality and separation of powers by confirming the Court’s final authority over invalidation of presidential conduct.