Besserglik v The Minister of Trade, Industry and Tourism and others

The applicant, Oded Besserglik, brought an action for damages for wrongful prosecution which was dismissed by Curlewis J on 16 August 1994 with costs. The applicant sought leave to appeal against this judgment. On 15 May 1995, when the application for leave came before the Transvaal Provincial Division, the applicant sought a postponement pending an application to the Constitutional Court, which was refused. The application for leave to appeal was also refused. On 31 May 1995, the applicant petitioned the Appellate Division seeking a postponement to enable him to approach the Constitutional Court, but this petition was also refused. On 18 September 1995, the applicant applied to the Constitutional Court for direct access to challenge the constitutionality of section 20(4)(b) of the Supreme Court Act 59 of 1959, which requires leave to appeal as a precondition for civil appeals from provincial or local divisions.

• Whether direct access to the Constitutional Court was appropriate in the circumstances or whether the applicant should have sought referral under section 102(1) or section 102(6) of the Constitution
• Whether section 20(4)(b) of the Supreme Court Act 59 of 1959 is inconsistent with section 22 of the Constitution (right of access to courts)
• Whether section 20(4)(b) of the Supreme Court Act 59 of 1959 is inconsistent with section 8 of the Constitution (equality clause)
• Whether the right of access to courts under section 22 includes an implied right of appeal without leave requirements

The Constitutional Court declared that the provisions of section 20(4)(b) of the Supreme Court Act 59 of 1959 are not inconsistent with the Constitution of the Republic of South Africa, Act 200 of 1993. The application challenging the constitutionality of the provision was dismissed.

The binding legal principles established are: (1) Section 22 of the Constitution (right of access to courts) does not guarantee an automatic right of appeal without leave requirements; a screening procedure that excludes unmeritorious appeals does not violate the right of access to courts provided it enables a higher court to make an informed decision as to the prospects of success upon appeal; (2) Section 8 of the Constitution (equality clause) does not require identical appeal procedures for different tiers of courts; as long as all persons appealing from or to a particular court are subject to the same procedures, the requirement of equality is met; (3) Direct access to the Constitutional Court is an extraordinary procedure to be granted in exceptional circumstances only, and applicants should ordinarily exhaust all other remedies or procedures, particularly referral procedures under section 102 of the Constitution, before seeking direct access.

The Court noted considerable doubts about the correctness of the approach that section 22's purpose is to ensure that persons have the right to have their disputes determined fairly by a court of law until final determination, including a right of appeal, referring to doubts expressed in Bernstein v Bester, though it was unnecessary to make a firm decision on that point. The Court also made observations regarding the applicant's failure to follow proper procedures, suggesting this may have been influenced by the novelty of the Constitution and its procedures at the time. Finally, the Court made strong observations regarding the applicant's attorneys' blatant disregard for the court's directions and rules in attempting to file reply arguments five months out of time without explanation or application for condonation.

This case is significant in South African constitutional jurisprudence for several reasons: (1) It confirms that the right of access to courts under section 22 of the interim Constitution does not require an automatic right of appeal without leave requirements; (2) It establishes that leave to appeal procedures coupled with petition procedures provide adequate access to appeal mechanisms and do not violate constitutional rights; (3) It clarifies that equality before the law does not require identical procedures for appeals from different tiers of courts; (4) It reinforces the exceptional nature of direct access to the Constitutional Court and emphasizes the importance of exhausting other available remedies and procedures, particularly referral procedures under section 102 of the Constitution; (5) It demonstrates the Court's approach to procedural fairness in civil appeals, extending principles established in criminal appeal cases like S v Rens to the civil context.