Ntlemeza v Helen Suzman Foundation

Lieutenant-General Mthandazo Berning Ntlemeza was appointed National Head of the Directorate for Priority Crime Investigations (DPCI) on 10 September 2015 by the Minister of Police, Mr Nhleko. The appointment was made in terms of s 17CA(1) of the South African Police Service Act 68 of 1995, which requires the appointee to be a "fit and proper person" with "conscientiousness and integrity". In March 2016, the Helen Suzman Foundation (HSF) and Freedom Under Law (FUL) challenged Ntlemeza's appointment in the High Court, arguing that the Minister had acted irrationally and unlawfully by failing to consider materially relevant factors, particularly adverse findings made against Ntlemeza by Matojane J in an earlier case (Sibiya v Minister of Police). In that case, Matojane J found that Ntlemeza acted in bad faith, was biased, dishonest, lacked integrity and honour, and made false statements under oath. On 17 March 2017, a full court of the High Court (Mabuse, Kollapen and Baqwa JJ) reviewed and set aside Ntlemeza's appointment, finding that the Minister failed to take into account the adverse judicial findings concerning Ntlemeza's integrity, and thus acted irrationally and unlawfully. Ntlemeza applied for leave to appeal, which was refused. HSF and FUL then brought a counter-application under s 18 of the Superior Courts Act 10 of 2013 for an order that the operation and execution of the review judgment not be suspended pending any appeals. The High Court granted this execution order. Ntlemeza appealed this execution order to the Supreme Court of Appeal under the automatic right of appeal provided by s 18(4)(ii).

• Whether the refusal of an application for leave to appeal removes the jurisdictional basis for a court to grant an execution order under s 18 of the Superior Courts Act, notwithstanding that a further application for leave to appeal to the next highest court is contemplated
• Whether exceptional circumstances existed as required by s 18(1) to justify departing from the default position that execution of a decision is suspended pending appeal
• Whether the applicants for the execution order proved on a balance of probabilities under s 18(3) that they would suffer irreparable harm if the order was not granted and that the respondent would not suffer irreparable harm
• The proper interpretation and application of s 18 of the Superior Courts Act 10 of 2013, including the requirement that a court 'immediately record' its reasons for granting an execution order
• The meaning of 'next highest court' in the context of s 18(4)(ii)
• Whether two parallel appeal processes in the same appeal court in the same case is desirable

1. The appeal is dismissed with costs including the costs of two counsel. 2. The appellant is ordered to pay the costs personally. The effect of the order is that the High Court's execution order remains in force, meaning that General Ntlemeza is unable to return to his post as National Head of the DPCI pending final determination of the application for leave to appeal and/or any further appeal processes regarding the merits of his appointment.

1. Under s 18(1) of the Superior Courts Act, the power of a court to order execution pending appeal is not dependent on a decision currently being subject to an application for leave to appeal; the suspension contemplated continues to operate in the event of further applications for leave to appeal to higher courts. 2. Courts have inherent jurisdiction under s 173 of the Constitution to grant anticipatory relief covering future appeal processes to avoid multiplicity of applications and to protect and regulate their own processes. 3. To grant an execution order under s 18, a court must find: (a) exceptional circumstances exist under s 18(1); and (b) the applicant proves on a balance of probabilities under s 18(3) that they will suffer irreparable harm if the order is not granted and that the other party will not suffer irreparable harm. 4. "Exceptional circumstances" under s 18(1) contemplates something out of the ordinary, unusual, uncommon, rare or different. Where statute directs departure from a fixed rule only under exceptional circumstances, a strict rather than liberal meaning should be applied, and alleged exceptional circumstances must be carefully examined. 5. Exceptional circumstances can include: adverse binding judicial findings regarding a person's integrity and honesty; the constitutional and statutory importance of the institution involved; statutory requirements for integrity in the position; and significant public interest considerations. 6. In assessing irreparable harm under s 18(3), reputational harm to a person who is the subject of existing binding adverse judicial findings does not constitute irreparable harm where the person continues to receive salary and has prospects of vindication through appeal processes.

1. The meaning of "next highest court" in s 18(4)(ii) is not entirely clear. The Court did not decide whether the "next highest court" could also be a full court of the High Court in circumstances where the execution order was issued by a single judge, but noted this was not necessary to determine for purposes of this case. 2. The Court expressed concern that s 18 has created a "curious and ostensibly undesirable position" where there are two parallel appeal processes in one appeal court in relation to the same case - one on the merits and one on the execution order. 3. The Court noted that the SCA might in future face a growing number of appeals against execution orders, particularly because the right to appeal is automatic under s 18(4)(ii), which might clog its roll. 4. While s 18(4)(i) requires that reasons be recorded "immediately", the Court stated it would be "a salutary practice to provide reasons pari passu with the order being issued", though strictly enforcing this requirement where the purpose of ensuring speedy appeal is achieved may not be necessary. 5. The Court observed that no further appeal beyond the SCA appears competent under s 18(4)(ii), though it was not necessary to decide this point definitively. 6. The Court noted the position in UFS v Afriforum regarding whether prospects of success on appeal should be considered when deciding execution applications, preferring the approach that such prospects can be considered (contrary to Incubeta), but found this receded into the background where, as here, an application for leave to appeal on the merits is pending in the same court. 7. The Court commented that the propriety of the State funding General Ntlemeza's personal appeal was beyond its scrutiny, though it noted this fact.

This case is significant for its comprehensive interpretation and application of s 18 of the Superior Courts Act 10 of 2013, which fundamentally altered the common law position on execution pending appeal. The judgment clarifies several important aspects of s 18: 1. It establishes that the automatic right of appeal under s 18(4)(ii) has made execution orders appealable, changing the previous position that such purely interlocutory orders were generally not appealable. 2. It confirms that the Legislature set a high bar for granting execution orders, requiring both "exceptional circumstances" under s 18(1) and proof on a balance of probabilities under s 18(3) of irreparable harm to the applicant and no irreparable harm to the respondent. 3. It provides guidance on what constitutes "exceptional circumstances", endorsing the approach that this contemplates something out of the ordinary, unusual, uncommon, rare or different, and that where statute directs departure from a fixed rule only under exceptional circumstances, a strict rather than liberal meaning should be applied. 4. It demonstrates how courts' inherent jurisdiction under s 173 of the Constitution allows them to grant anticipatory relief to avoid multiplicity of applications and protect their own processes. 5. It illustrates the principle that the proper functioning of critical constitutional institutions (like the DPCI) and public interest considerations can constitute exceptional circumstances justifying execution pending appeal. 6. The case is also significant in the administrative law context for applying the principles from Democratic Alliance v President (the Simelane judgment) regarding appointments to critical institutions and the requirement that appointees be objectively "fit and proper" persons, not merely considered so in the decision-maker's subjective view.