University of the Free State v Afriforum

The University of the Free State (UFS) adopted a new multilingual language policy on 11 March 2016, effective from 2017, which replaced parallel medium instruction in Afrikaans and English with English as the primary medium of instruction (with tutorials in Afrikaans and Sesotho) except in theology and teacher education faculties. Afriforum, a non-profit company, launched a review application challenging the Council's decision. On 21 July 2016, the Full Court of the Free State Division reviewed and set aside the Council's decision. The UFS sought leave to appeal, which was granted with conditional leave to the SCA. The appeal automatically suspended the Full Court's order. Afriforum then applied under section 18 of the Superior Courts Act for an order implementing the Full Court's judgment pending appeal. On 12 September 2016, the Full Court granted this order, directing that its judgment of 21 July 2016 not be suspended pending appeal. The UFS exercised its automatic right of appeal under section 18(4)(ii) of the Act against this order.

• Whether the Full Court correctly applied the requirements of section 18 of the Superior Courts Act 10 of 2013 in ordering implementation of its judgment pending appeal
• Whether exceptional circumstances existed to justify deviation from the norm that judgments are suspended pending appeal
• Whether Afriforum proved on a balance of probabilities that it would suffer irreparable harm if the order was not granted
• Whether Afriforum proved that the UFS would not suffer irreparable harm if the order was granted
• Whether costs should be awarded against an unsuccessful litigant purporting to vindicate constitutional rights

The appeal was upheld with costs, including the costs of two counsel. The order of the Full Court was set aside and replaced with an order dismissing the application to implement the order of the Full Court delivered on 21 July 2016, with costs including the costs of two counsel.

Section 18 of the Superior Courts Act 10 of 2013 introduces more onerous requirements than the common law for implementing a judgment pending appeal. An applicant must establish: (1) exceptional circumstances; (2) proof on a balance of probabilities that the applicant will suffer irreparable harm if the order is not made; and (3) proof on a balance of probabilities that the respondent will not suffer irreparable harm if the order is made. 'Exceptional circumstances' must be truly exceptional and fact-specific to the predicament of the litigants, justifying an extraordinary deviation from the norm that judgments are suspended pending appeal. The mere deprivation of a constitutional right, without proof of adverse consequences, does not constitute exceptional circumstances or irreparable harm. The prospects of success in the pending appeal remain a relevant factor in determining whether to grant relief under section 18. Courts granting orders under section 18 must provide proper reasons with substantive content, not mere conclusions, given the automatic right of appeal and the requirement under section 18(4)(i) to immediately record reasons.

The court observed that the Biowatch principle regarding costs in constitutional litigation is concerned with the nature of the issues, not the characterization of parties. The critical question is whether litigation has been undertaken to assert constitutional rights, whether constitutional issues are genuine and substantive, and whether there has been impropriety in the manner of litigation. The principle does not apply to purely factual questions about whether procedural requirements have been met, even if the underlying dispute involves constitutional rights. The court noted that the Full Court's failure to consider existing high court judgments on section 18 applications, all delivered before its order of 12 September 2016, was problematic. The judgment emphasized that furnishing proper reasons is an indispensable part of the judicial procedure, and failure to do so amounts to a grave lapse of duty and serious impediment to the appeal process.

This is the first case in which the Supreme Court of Appeal interpreted and applied section 18 of the Superior Courts Act 10 of 2013, which replaced the common law rule and Uniform Rule 49(11) regarding suspension of judgments pending appeal. The judgment establishes that section 18 imposes more onerous requirements than the common law, introducing a higher threshold requiring proof on a balance of probabilities of irreparable harm rather than merely weighing potentialities. The decision provides authoritative guidance on what constitutes 'exceptional circumstances' under section 18(1), emphasizing that circumstances must be 'truly exceptional' and fact-specific to justify the extraordinary deviation from the norm of suspension pending appeal. The judgment clarifies that prospects of success on appeal remain a relevant consideration despite being absent from the statutory text. It also emphasizes the importance of proper judicial reasoning when granting relief under section 18, given the automatic right of appeal and the requirement that reasons be immediately recorded. The case contributes to the jurisprudence on costs in constitutional litigation by clarifying the limited application of the Biowatch principle to genuine constitutional issues rather than procedural or factual matters.