Bruce and Another v Fleecytex Johannesburg CC and Others

The first applicant, Elmarie Madelyn Bruce, was the sole member of Baby Angel CC, which was placed in liquidation by an order of the Witwatersrand High Court on 4 December 1997. An application for leave to appeal against the liquidation order was noted on the same day. Bruce contended that, by virtue of Rule 49(11) of the Uniform Rules of Court, the liquidation order was suspended pending appeal and that she therefore retained control over the close corporation. The liquidator relied on section 150(3) of the Insolvency Act 24 of 1936, which provides that insolvency proceedings continue notwithstanding an appeal. The High Court (Wunsh J) upheld the liquidator’s argument and dismissed Bruce’s application for an interdict. Bruce then applied directly to the Constitutional Court for an order declaring section 150(3) unconstitutional on the basis that it infringed the right of access to courts (section 34 of the Constitution) and, alternatively, the right to freely exercise a trade or profession.

The application for direct access to the Constitutional Court was dismissed.

The case is an early and authoritative exposition of the principles governing direct access to the Constitutional Court under section 167(6) of the 1996 Constitution. It confirms that constitutional challenges to legislation should ordinarily be initiated in the High Courts and that direct access will be granted only in truly exceptional circumstances.