Mphahlele v The First National Bank of South Africa Limited

The applicant, an attorney, applied to the Transvaal High Court for an order relating to his trust account with the respondent bank in December 1997. Southwood J dismissed the application with costs on 11 December 1997. The applicant later sought condonation for late noting of leave to appeal to the full bench or Supreme Court of Appeal, which was dismissed with costs in June 1998. He then petitioned the Chief Justice for leave to appeal. In terms of section 21(3)(b) of the Supreme Court Act 1959, the petition was considered by two judges of the Supreme Court of Appeal who refused it without argument or referring it to the Court. The applicant requested reasons for the refusal but was informed this was not the practice of the Court. He challenged this practice as unconstitutional and sought an order from the Constitutional Court directing the judges to furnish reasons and grant leave to appeal. The matter had serious consequences for the applicant as the Law Society of the Transvaal was seeking to strike him from the roll of attorneys based on Southwood J's judgment.

• Whether the Constitution requires judges to furnish reasons for refusing applications for leave to appeal to the Supreme Court of Appeal
• Whether the practice of not furnishing reasons for refusing leave to appeal violates the right of access to courts under section 34 of the Constitution
• Whether the practice violates the right to information under section 32 of the Constitution
• Whether the practice violates the right to equality under section 9 of the Constitution
• Whether the Constitutional Court has jurisdiction to order the Supreme Court of Appeal to grant leave to appeal

The application was dismissed. No order as to costs was made as the Court found the issue raised was important and the applicant was entitled to have it considered by the Court, in accordance with usual practice in such cases.

The binding legal principles established are: (1) While the rule of law requires judges to be accountable and ordinarily furnish reasons for decisions to avoid arbitrary decision-making, there is no absolute constitutional requirement to furnish reasons in all circumstances. (2) The practice of the Supreme Court of Appeal refusing applications for leave to appeal without furnishing reasons does not violate the Constitution where: (a) the litigant has already received reasons from the court of first instance; (b) the refusal is final and not subject to further appeal; (c) the refusal carries the clear implication that there is no reasonable prospect of success on appeal; and (d) requiring reasons would defeat the purpose of the leave requirement which is to prevent unmeritorious matters from wasting judicial time. (3) The right to information under section 32(1) only applies where information is required for the exercise or protection of a right; where a decision is final with no further recourse, reasons are not required for the exercise or protection of rights. (4) Summary procedures for disposing of applications for leave to appeal to courts of last instance serve legitimate public interest purposes and are consistent with an open and democratic society.

Goldstone J made several non-binding observations: (1) The judiciary has a responsibility to scrutinize pre-constitutional practices carefully to ensure compatibility with constitutional provisions and precepts, though practices from the apartheid era are not necessarily bad or unconstitutional merely because of their vintage. (2) Where a decision is subject to appeal, it would likely be a violation of the constitutional right of access to courts if reasons were withheld by a judicial officer. (3) Courts of last instance should furnish reasons for their final decisions on the merits. (4) The refusal of leave to appeal does not necessarily mean the appeal court agrees with the reasons of the lower court - it may mean only that there is no reasonable prospect of a different order on appeal whether for those reasons or other legal considerations. (5) The Constitutional Court's jurisdiction to order the Supreme Court of Appeal to grant leave to appeal is open to serious doubt, though the Court did not need to definitively decide this issue. (6) It would be appropriate to deal with certain other matters summarily without reasons, such as unopposed applications where the matter is clear or applications for direct access to the Constitutional Court.

This case is significant in South African constitutional law as it clarifies the extent to which the constitutional principle of the rule of law requires judicial accountability through reasoned decisions. The judgment establishes that while courts generally must furnish reasons for decisions as part of accountability under the rule of law, there are legitimate exceptions for summary procedures designed to protect judicial resources. It confirms that the practice of refusing leave to appeal without reasons in courts of last instance does not violate constitutional rights to access to courts, information, or equality. The case demonstrates judicial restraint in scrutinizing pre-constitutional practices, holding that not all apartheid-era practices are necessarily unconstitutional - each must be examined on its merits. It provides important guidance on the proper functioning of the leave to appeal mechanism and the boundaries of the Constitutional Court's jurisdiction in relation to the Supreme Court of Appeal. The judgment also illustrates the balancing of transparency and accountability values against practical considerations of judicial efficiency.