South African Municipal Workers Union v The City of Cape Town

The South African Municipal Workers Union (SAMWU) approached the Cape of Good Hope High Court seeking an order to set aside a decision by the City of Cape Town to establish a municipal police force. The City had made this decision without first consulting SAMWU. The High Court dismissed the application. SAMWU then sought a certificate from the High Court under rule 18 to appeal directly to the Constitutional Court, and alternatively sought leave to appeal to the Supreme Court of Appeal. The High Court issued a certificate stating there was no constitutional matter of substance involved and that it was not in the interests of justice for the matter to go directly to the Constitutional Court. However, the High Court did certify that there was a reasonable prospect the Constitutional Court would reach a different conclusion and that there was sufficient evidence on record for the Court to dispose of the matter. The High Court also granted leave to appeal to the Supreme Court of Appeal if the Constitutional Court refused leave. The first and second respondents opposed the application for direct appeal.

• Whether leave to appeal directly to the Constitutional Court should be granted
• Whether the matter raised a constitutional matter of substance warranting direct access to the Constitutional Court
• Whether it was in the interests of justice for the Constitutional Court to hear the matter on direct appeal
• Whether a matter primarily concerning statutory interpretation should be heard first by the Supreme Court of Appeal before the Constitutional Court

The application for leave to appeal directly to the Constitutional Court was refused. Costs were ordered to be costs in the appeal to the Supreme Court of Appeal.

Where a matter concerns primarily the interpretation of a statute rather than the interpretation of a constitutional provision, and there are no other compelling reasons for the Constitutional Court to consider the matter on direct appeal, it is not in the interests of justice for the Constitutional Court to grant leave to appeal directly, and the matter should be heard first by the Supreme Court of Appeal.

The Court made an important obiter observation that in refusing the application for direct access, it was not confirming the High Court's finding that the application did not raise a constitutional matter of substance. This suggests that the Court viewed the matter as potentially having constitutional dimensions, but nonetheless determined that the proper procedural route was through the Supreme Court of Appeal first. The Court also observed that it was not unreasonable for the applicant to have approached the Constitutional Court directly, justifying the costs order that costs should be costs in the appeal rather than ordering costs against the unsuccessful applicant.

This case is significant for establishing principles regarding direct access to the Constitutional Court under rule 18. It demonstrates the Court's approach to managing its jurisdiction and ensuring that matters primarily concerning statutory interpretation are dealt with first by the Supreme Court of Appeal before reaching the Constitutional Court. The case illustrates that even where a constitutional dimension may exist, the Constitutional Court will not necessarily exercise its discretion to grant direct access if the matter is more appropriately dealt with through the ordinary appeal process. It also shows the Court's nuanced approach to costs where an application is declined but was not unreasonable to bring.