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

On 22 September 1997, the President appointed a commission of inquiry to investigate certain financial and administrative aspects of the South African Rugby Football Union (SARFU) under section 84(2)(f) of the Constitution. SARFU, the Gauteng Lions Rugby Union, the Mpumalanga Rugby Union and Dr Louis Luyt challenged this appointment in the Transvaal High Court, seeking to set aside the appointment and proclamation. After hearing oral evidence, including testimony from the President himself, De Villiers J made an order on 17 April 1998 reviewing and setting aside both the President's decision to appoint the commission and the proclamation under the Commissions Act. Reasons for the judgment were only provided on 7 August 1998, in a judgment exceeding 1000 pages. On 15 May 1998, before reasons were given, the President applied for leave to appeal to the Supreme Court of Appeal. On 11 September 1998, the President lodged a notice of appeal to the Constitutional Court (filed late) and simultaneously applied for condonation.

• Whether an order setting aside the President's proclamation appointing a commission of inquiry constitutes an order of constitutional invalidity within the meaning of section 172(2)(a) and (d) of the Constitution
• Whether section 167(4)(e) applies to all conduct of the President alleged to be inconsistent with the Constitution or only to failures to fulfil positive constitutional obligations
• Whether section 172(2)(d) applies only to constitutional matters of substance or to all orders of constitutional invalidity
• Whether the Constitutional Court has exclusive jurisdiction over appeals against orders of constitutional invalidity concerning the President's conduct
• Whether interlocutory orders made during the High Court proceedings are 'issues connected with decisions on constitutional matters' within section 167(3)(b)
• Whether the applicants waived their right to appeal to the Constitutional Court by applying for leave to appeal to the Supreme Court of Appeal
• Whether condonation should be granted for the late noting of the appeal

The application for condonation was granted. The parties were ordered to pay their own costs of the application. Directions were given for the appeal to proceed, including timelines for lodging the record and written arguments, and the matter was set down for hearing in March 1999.

Section 172(2)(d) of the Constitution confers an unqualified right of direct appeal to the Constitutional Court for any person or organ of state with sufficient interest against any order of constitutional invalidity concerning Acts of Parliament, provincial Acts, or the President's conduct. The requirement of 'sufficient interest' pertains only to standing, not to the substantive nature of the constitutional issues. There is no requirement that such appeals must relate to 'constitutional matters of substance' - that requirement applies only to discretionary appeals under section 167(6) requiring leave of the Court. Orders of constitutional invalidity concerning the President's conduct have no force or effect unless confirmed by the Constitutional Court, which has a constitutional duty to supervise all such orders. Issues connected with decisions on constitutional matters, including relevant interlocutory matters and factual findings necessary to determine constitutional validity, fall within the jurisdiction of the Constitutional Court when they arise in the context of section 172(2) appeals.

The Court observed that section 167(4)(e), when read with section 172(2)(a), should be given a narrow meaning and likely applies only to positive obligations to act rather than all conduct of the President that may be inconsistent with the Constitution, though the precise scope need not be decided. The Court noted there is much to be said for the view that the Constitutional Court has exclusive jurisdiction over appeals against orders of constitutional invalidity under section 172(2), given the unusual nature of a procedure that would permit simultaneous appeals to different courts where one court lacks power to make a binding confirmation. The Court observed that it adopts a more flexible approach to costs than other courts and frequently does not order unsuccessful parties to pay costs. The Court also noted that challenges based on the doctrine of legality, including arguments about 'public concern' under the Commissions Act, vagueness of terms of reference, and failure to consult the Deputy President, all raise constitutional issues in light of Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council.

This case is a foundational judgment establishing the Constitutional Court's jurisdiction over appeals from orders of constitutional invalidity concerning the President's conduct. It clarifies the distinction between appeals under section 172(2)(d) (which do not require leave and relate to orders of constitutional invalidity) and appeals under section 167(6) (which require leave and must involve constitutional matters of substance). The judgment affirms the Constitutional Court's supervisory role over all orders of constitutional invalidity affecting Acts of Parliament, provincial Acts, or the President's conduct, emphasizing the constitutional principle of separation of powers and comity between branches of government. It establishes that 'limping invalidity' - where orders have no force until confirmed by the Constitutional Court - is a key feature of South Africa's constitutional architecture designed to protect the integrity of decisions by the highest legislative and executive organs.