Brummer v Gorfil Brothers Investments (Pty) Ltd and Others

The applicant’s right in pending civil litigation was attached and sold in execution in 1993 to satisfy an unpaid costs order arising from earlier proceedings. The purchaser of that right was a company controlled by the opposing litigants. The applicant sought to have the sale in execution set aside as an abuse of process and contrary to public policy. His claim was dismissed by the High Court and, on appeal, by the Supreme Court of Appeal. More than nine months after the SCA judgment, the applicant applied to the Constitutional Court for special leave to appeal together with condonation for the late filing, relying primarily on constitutional arguments based on the right of access to courts.

The application for condonation was dismissed. No order as to costs was made.

The case is important for clarifying the Constitutional Court’s approach to condonation and leave to appeal, emphasising that the overriding standard is the interests of justice. It also confirms the general non-retroactivity of constitutional rights to pre-Constitution transactions and illustrates the Court’s cautious approach to retrospective development of the common law.