Andrew Lionel Phillips v South African Reserve Bank

The appellant instituted proceedings in the North Gauteng High Court in January 2009 seeking: (a) an order reviewing and setting aside a decision by the South African Reserve Bank not to return foreign currency seized from him at Oliver Tambo International Airport on 10 February 2008; and (b) orders declaring that the Exchange Control Regulations promulgated in Government Notice R 1111 of 1 December 1961, or certain provisions thereof, were inconsistent with the Constitution and invalid. When the application was set down for hearing on 1 June 2010, it was postponed sine die by Makgoba J, who ordered the appellant to pay the respondents' wasted costs, including those of two counsel. The judge made this order because he found that the appellant had not complied with Rule 16A of the Uniform Rules of Court, which requires notice of constitutional issues to be given to the registrar, who must place it on a designated notice board for 20 days. The judge found there was no indication the Rule 16A notice was filed or put on the notice board as required. He also found the notice did not adequately set out the basis of the constitutional challenge. The appellant's application for leave to appeal was refused, but the SCA granted leave on petition.

• Whether the findings and order for the appellant to pay wasted costs are appealable
• Whether the presumption of regularity applies where there is no evidence that the Rule 16A notice was dealt with by the registrar under Rule 16A(1)(c) and (d)
• Whether the notice compiled by the appellant's attorney complied with Rule 16A(1)(b) requiring a 'clear and succinct description of the constitutional issue concerned'
• Whether the appellant or the registrar bears the duty to ensure that a Rule 16A notice is placed on the notice board for 20 days
• Whether it is appropriate for organs of state to raise alleged non-compliance with Rule 16A at a stage preventing correction of the defect
• Whether the general rule as to costs in constitutional matters (not ordering costs against unsuccessful litigants) applies to ancillary orders in such cases

1. The appeal is upheld with costs, including the costs of two counsel. 2. The costs order of the court below is set aside.

1. An order postponing a constitutional matter and awarding wasted costs based on alleged non-compliance with Rule 16A is appealable even though not final, as it may cause prejudice and impede justice if wrongly made. 2. It is the registrar's duty under Rule 16A(1)(c) and (d) to place a Rule 16A notice on the designated notice board and ensure it remains there for 20 days. An attorney who files the notice with the registrar is entitled to assume the registrar will comply with these duties. 3. The presumption omnia praesumuntur rite esse acta (official acts are presumed properly performed until the contrary is proved) applies to the registrar's duties under Rule 16A. 4. The general principle in constitutional litigation that an unsuccessful litigant should not be ordered to pay costs applies not only to orders on the merits but also to ancillary procedural matters, as technical or procedural lapses should not deter parties from vindicating constitutional rights through fear of adverse costs orders. 5. On the interpretation of Rule 16A(1)(b): (Majority view - Farlam JA): A notice complies with Rule 16A(1)(b) if it correctly identifies the statutory provisions being challenged; it need not specify the detailed grounds of the constitutional challenge, as prospective amici can examine the court file for details. (Minority view - Majiedt JA): A notice must briefly describe the basis of the constitutional challenge, including which constitutional rights are allegedly infringed, not merely recite the orders sought.

1. In future constitutional cases, it is advisable that founding affidavits include an allegation that a Rule 16A notice has been prepared and filed, with a copy annexed. The notice should be included among the documents before the judge after removal from the notice board. 2. Attorneys for state respondents should check compliance with Rule 16A as soon as papers are received and, if it appears non-compliant, bring this to the applicant's attorney's attention timeously. Constitutional litigation should not be a game of forfeit and state respondents should assist applicants to raise constitutional issues with minimum obstruction. 3. While no finding could be made on the available evidence that state organs have adopted a deliberate practice of raising Rule 16A compliance issues belatedly, the court noted this appeared to have occurred in several cases and provided guidance to prevent such practices. 4. A prospective amicus curiae will in almost all cases need to peruse the founding affidavit to ascertain whether there are new contentions to raise, as this is required for admission as amicus curiae.

This case provides important guidance on the interpretation and application of Rule 16A of the Uniform Rules of Court concerning notice of constitutional issues. It clarifies: (1) the level of detail required in a Rule 16A notice (with differing views in the majority and minority); (2) that it is the registrar's duty to place the notice on the board and the presumption of regularity applies; (3) that organs of state should raise Rule 16A compliance issues timeously, not at a stage preventing remedy; (4) that the principle against adverse costs orders in constitutional litigation applies to ancillary procedural matters, not just the merits, to avoid deterring constitutional challenges through technical lapses. The case emphasizes that constitutional litigation should not be treated as 'a game of forfeit' and that state respondents should assist applicants in raising constitutional issues with minimum obstruction. The differing views on what constitutes adequate description of constitutional issues under Rule 16A(1)(b) provide important guidance for practitioners.