Elmarie Madelyn Bruce and Another v Fleecytex Johannesburg CC and Others

The first applicant, Elmarie Madelyn Bruce, was the sole member of Baby Angel CC (the second applicant), which was placed in liquidation on 4 December 1997 by order of the Witwatersrand High Court. On the same day, an application for leave to appeal against the liquidation order was noted. Bruce contended that under Rule 49(11) of the Uniform Rules of Court, the liquidation order was suspended by the noting of the appeal, and she was still entitled to control the close corporation's affairs. The liquidator opposed this view, arguing that section 150(3) of the Insolvency Act applied to close corporations and that the winding up order was not suspended. Wunsh J upheld the liquidator's contention and dismissed Bruce's application for an interdict. Bruce then applied directly to the Constitutional Court on 29 January 1998, seeking a declaration that section 150(3) of the Insolvency Act was unconstitutional for depriving individuals and close corporations of access to courts under Rule 49(11), contrary to section 34 of the 1996 Constitution, and alternatively, for depriving them of the right to exercise their trade or profession freely.

• Whether the Constitutional Court should grant direct access to the applicant under Rule 17 and section 167(6) of the 1996 Constitution
• What constitutes 'exceptional circumstances' and 'interests of justice' for purposes of granting direct access to the Constitutional Court
• Whether the applicant had exhausted all other available remedies before seeking direct access
• The proper procedures to be followed when challenging the constitutionality of an Act of Parliament

The application for direct access was dismissed. All justices (Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J and Yacoob J) concurred in the judgment of Chaskalson P.

Direct access to the Constitutional Court will only be granted in exceptional circumstances, which ordinarily exist only where the matter is of such urgency or public importance that the delay necessitated by ordinary procedures would prejudice the public interest or the ends of justice. The Constitutional Court will not ordinarily deal with matters as both a court of first instance and last resort. Compelling reasons are required to justify direct access where High Courts and the Supreme Court of Appeal have constitutional jurisdiction to determine the matter, including the power to declare Acts of Parliament invalid (subject to confirmation) and to grant interim relief. An applicant must show that all other available remedies have been exhausted, or provide a proper explanation for not having done so. The mere fact that the constitutionality of an Act of Parliament is in issue does not in itself justify direct access. Applications for direct access are not to be entertained merely to avoid the consequences of incorrect procedures previously followed or issues not raised in lower courts.

The Court made several non-binding observations: (1) It expressed no opinion on whether there is any substance in the applicant's contention that section 150(3) of the Insolvency Act is invalid, stating nothing in the judgment should be construed as indicating support for such a proposition. (2) The Court noted that whether there are circumstances beyond those contemplated by Rule 17 which would justify granting direct access under section 167(6) of the 1996 Constitution need not be decided in this case. (3) The Court observed that while prospects of success are clearly relevant to applications for direct access, there are other considerations which are at least of equal importance, including: whether the Court would be called upon to deal with disputed facts requiring evidence; whether the constitutional issues are decisive of the litigation or might prove purely academic; and whether the Court would hear the case without the benefit of views of other courts having constitutional jurisdiction. (4) The Court noted that as yet no decision had been given on the circumstances in which it would be appropriate to note an appeal directly to the Constitutional Court from a court other than the Supreme Court of Appeal, and that the relevant considerations in such matters may well be different.

This case is significant for establishing the restrictive approach the Constitutional Court takes to applications for direct access under section 167(6) of the 1996 Constitution. It clarifies that the mere fact that the constitutionality of legislation is in issue does not in itself justify direct access. The judgment reinforces the multi-tiered court structure envisaged by the Constitution, emphasizing that High Courts have constitutional jurisdiction and should ordinarily be the first forum for constitutional challenges. The case establishes important principles about the appropriate use of direct access procedures and the need to exhaust other remedies before approaching the Constitutional Court directly. It also clarifies the relationship between Rule 17 of the Constitutional Court Rules (requiring 'exceptional circumstances') and section 167(6) of the 1996 Constitution (requiring 'interests of justice'), holding that the interests of justice will ordinarily be satisfied if the requirements of Rule 17 are met. The judgment promotes judicial economy and the development of constitutional jurisprudence through multiple levels of judicial consideration.