Sizwe Lindelo Snail Ka Mtuze v Bytes Technology Group South Africa (Pty) Ltd and Others

The applicant was an attorney practising under the name "Snail Attorneys @ Law". Previously employed as a professional assistant by CHH law firm, he accepted instructions to represent Mr Michael (fourth respondent) in High Court proceedings involving the first three respondents. The manner in which the applicant conducted himself when representing Mr Michael, in communications with opposing attorneys, and when appearing in person before Potterill J, led to the High Court granting a punitive costs order against him de bonis propriis (from his own pocket). Potterill J also directed that the matter be referred to the Law Society for investigation. The applicant's applications for leave to appeal to Potterill J and the Supreme Court of Appeal were dismissed. He then applied to the Constitutional Court for leave to appeal, which was dismissed with costs on 28 May 2013. The applicant subsequently brought an application for "reconsideration" of the Constitutional Court's order, claiming he had not been allowed to file a supplementary affidavit to address "new allegations" in the respondents' answering affidavit.

• Whether the Constitutional Court has power under common law or inherent jurisdiction to reconsider and vary its final orders outside the scope of Rule 29 read with Rule 42
• Whether the applicant's application for reconsideration should be entertained despite not being cast as a rescission application
• Whether the interests of justice required the Court to reconsider its dismissal order of 28 May 2013
• The application and interpretation of Rule 19 of the Constitutional Court Rules regarding leave to appeal applications
• The doctrine of functus officio and its application to final court orders

The application for reconsideration was dismissed with costs.

Once a court makes a final decision, it becomes functus officio and has no power to reconsider its decision except under provisions relating to rescission or variation of judgments (such as Rule 29 read with Rule 42 of the Constitutional Court Rules). While the question of whether the Constitutional Court has power under common law or inherent jurisdiction to vary past orders was left open, any such power would only be exercised in very exceptional circumstances where the interests of justice clearly require reconsideration. Rule 19 of the Constitutional Court Rules does not provide for a reply by an applicant in leave to appeal applications, as the Court should be able to determine from the application, response, and underlying judgment whether it is in the interests of justice to entertain an appeal. The rationale for finality is that parties need certainty to arrange their affairs and it would be untenable if courts could freely reconsider and change their decisions.

The Court observed that if the applicant had brought his application as a rescission application under Rule 42(1)(a) (order erroneously granted), he would not have succeeded because the information he sought to place before the Court was largely irrelevant and did not demonstrate reasonable prospects of success or that it was in the interests of justice to entertain the matter. The Court noted that the applicant, being a practising attorney, would have been aware of rescission procedures and his election not to bring such an application must have been deliberate. The Court also commented that even if all the information the applicant wanted to present had been before it when making the original order, it would still have dismissed the application for leave to appeal with costs.

This case affirms the Constitutional Court's adherence to the principle of finality in litigation and the doctrine of functus officio. It clarifies that the Constitutional Court's procedural rules regarding applications for leave to appeal (Rule 19) are designed to enable efficient determination of whether appeals should be entertained without requiring multiple rounds of submissions. The judgment reinforces that applications to reconsider final orders will only be entertained in very exceptional circumstances where the interests of justice clearly require it, maintaining the important principles of certainty and finality in judicial decision-making. The case also demonstrates the Court's approach to dealing with vexatious or unmeritorious applications that attempt to circumvent established procedures.