Bidvest Protea Coin Security (Pty) Ltd v Mandla Wellem Mabena

Bidvest provided security services at Wonderfontein mine. In March 2016, AMCU embarked on a protected strike, with Mr Mabena participating. On 4 April 2016, striking workers were picketing in a designated area when a farmer's harvester entered the area and drove into a vehicle. Striking workers threw stones at the harvester and Bidvest security employees. Bidvest employees advanced and opened fire with rubber bullets. Mr Mabena was shot in his left eye while running into nearby bushes, resulting in loss of sight. Mr Mabena sued Bidvest for compensation. The trial court (Brauckmann AJ) found Bidvest 100% liable. Bidvest's defences included denial, no intent/negligence, sudden emergency, and contributory negligence. At trial commencement, Bidvest's counsel proposed the matter be decided on necessity defence, though this was not pleaded, only sudden emergency was pleaded. The full court dismissed Bidvest's appeal. Bidvest's petition for special leave to the SCA was refused by Mabindla-Boqwana JA and Mali AJA. Bidvest then sought reconsideration under s 17(2)(f) of the Superior Courts Act, which was referred by Mocumie ADP to the full court for reconsideration.

• Whether exceptional circumstances existed to warrant reconsideration of a decision refusing special leave to appeal under s 17(2)(f) of the Superior Courts Act 10 of 2013
• Who decides whether exceptional circumstances exist for reconsideration: the President of the SCA alone or the court to which the matter is referred
• Whether the requirement of exceptional circumstances constitutes a jurisdictional fact
• Whether Bidvest was treated unfairly by the courts below in not considering its defence of necessity

The matter was struck from the roll. Bidvest (the applicant) was ordered to pay the costs incurred by Mr Mabena (the respondent) in opposing the application for reconsideration.

The requirement of exceptional circumstances in s 17(2)(f) of the Superior Courts Act 10 of 2013 constitutes a jurisdictional fact that must be determined by the court to which the President refers the matter for reconsideration, not exclusively by the President. The President's power to refer is conditional upon the existence of exceptional circumstances as an objective state of affairs. Absent such circumstances, the court has no competence to reconsider the decision on petition, which remains final. This interpretation accords with institutional coherence and the hierarchical scheme of s 17, preventing a single judge from undoing the finality of decisions taken by multiple judges of the same court. The substantive stringency of the reconsideration test must be matched by appropriate institutional safeguards.

The Court observed that the scheme of s 17 demonstrates an increasing stringency of substantive standards as matters progress through the appellate hierarchy: ordinary leave to appeal requires a lower threshold than special leave, and reconsideration of a refusal of special leave requires exceptional circumstances. This graduated approach reflects the principle that once multiple levels of judicial consideration have occurred, an increasingly high bar must be met for further review. The Court also noted that s 17(2)(f) was amended by the Judicial Matters Amendment Act 15 of 2023 (effective 3 April 2024) to change the standard from 'exceptional circumstances' to 'where a grave failure of justice would otherwise result, or the administration of justice may be brought into disrepute', but this amendment did not affect the essential question of who determines whether the threshold is met.

This case clarifies the proper interpretation and application of s 17(2)(f) of the Superior Courts Act 10 of 2013 concerning reconsideration of decisions refusing special leave to appeal. It establishes important principles about the finality of decisions on petition and the limited circumstances under which they may be reconsidered. The judgment affirms that exceptional circumstances is a jurisdictional fact to be determined by the full court, not exclusively by the President, thereby protecting institutional coherence and the hierarchical decision-making structure within the appellate system. The case reinforces the high threshold for reconsideration and upholds the principle of finality in litigation, particularly after multiple levels of judicial consideration.