Paulus Phillipus Brummer v Gorfil Brothers Investments (Pty) Ltd and Others

The applicant launched an action in 1987 claiming damages for alleged repudiation of a contract with the fourth respondent. In September 1991, at the close of the applicant's case, the third respondent and his father were absolved from the instance with costs. The taxed costs of R52,436.48 remained unpaid. The third respondent and his father caused the applicant's right in the pending case to be attached and sold in execution. The first respondent (a company in which the third respondent and his father were sole shareholders and directors) purchased the applicant's right at the sale in execution on 10 March 1993. The applicant issued combined summons in May 1995 to set aside the sale as an abuse of court process and contrary to public policy. The High Court dismissed the claim on 28 March 1996, and the Supreme Court of Appeal dismissed the appeal. The applicant then filed an application for special leave to appeal to the Constitutional Court on 15 December 1999, more than nine months after the Supreme Court of Appeal's judgment.

• Whether condonation should be granted for the late filing of an application for special leave to appeal
• Whether it is in the interests of justice to grant condonation in circumstances involving substantial and unexplained delays
• Whether the Constitution applies retrospectively to a sale in execution that took place before the interim Constitution came into operation
• Whether section 34 of the Constitution (right of access to courts) could apply to transactions concluded before the Constitution took effect
• Whether the common law could be developed retrospectively to set aside a sale in execution
• Whether it is in the interests of justice to allow litigation to continue nine years after it was last heard by a court

The application for condonation was dismissed. There was no order as to costs.

The binding legal principles established are: (1) An application for condonation in the Constitutional Court must be decided on the basis of whether it is in the interests of justice, considering all relevant factors including the nature of relief sought, extent and cause of delay, nature and cause of any defect, effect on administration of justice, prejudice, and reasonableness of the applicant's explanation; (2) The Constitution does not apply retrospectively to transactions concluded before the interim Constitution came into effect, unless there are extraordinary circumstances where enforcement of previously acquired rights would be grossly unjust and abhorrent (following Du Plessis v De Klerk); (3) Section 34 of the Constitution (right of access to courts) cannot be invoked to challenge the validity of a sale in execution that took place before the Constitution came into operation; (4) Even where a court has the power to develop the common law retrospectively, it will not do so where it is not in the interests of justice, particularly where allowing the applicant to proceed would result in litigation continuing many years after it was last before a court and where the applicant has been dilatory in pursuing remedies.

Yacoob J made several non-binding observations: (1) The Court assumed, without deciding, that it has the power to develop the common law retrospectively in appropriate cases, invoking section 173 of the Constitution; (2) The Court expressly stated it expressed no opinion on what the prospects of success would have been if the sale in execution had taken place after the interim Constitution came into operation, leaving open the possibility that such a challenge might succeed on constitutional grounds; (3) The Court noted that it does not ordinarily make orders for costs in applications dealt with summarily on the basis of affidavits without written or oral argument being called for, and found nothing to warrant departure from this practice in the present case. These observations suggest that the Court recognizes potential constitutional concerns about purchasing litigation rights to terminate proceedings, but only where such transactions occur in the constitutional era.

This case is significant in South African jurisprudence for several reasons: (1) It clarifies the approach to condonation applications in the Constitutional Court, establishing that condonation should be granted only where it is in the interests of justice, considering multiple factors beyond mere prospects of success; (2) It reinforces the principle established in Du Plessis v De Klerk regarding the non-retrospective application of the Constitution to transactions concluded before it came into effect, absent extraordinary circumstances of gross injustice; (3) It demonstrates that section 34's right of access to courts cannot be invoked retrospectively to set aside pre-constitutional transactions; (4) It illustrates the importance of diligence in pursuing legal remedies and the consequences of delay in the administration of justice; (5) It confirms the Constitutional Court's practice of not awarding costs in applications dealt with summarily without oral or written argument. The case serves as a warning about the consequences of dilatory conduct in litigation and the limits of constitutional rights' retrospective application.