Case CCT 279/234
[2025] ZACC 26
Hearing Date: 11 September 2025
Judgement Date: 20 November 2025
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 20 November 2025, the Constitutional Court handed down judgment in confirmation proceedings concerning the constitutional validity of section 43(2)(c) of the Local Government: Municipal Structures Act 117 of 1998. The matter arose from a High Court order declaring the provision unconstitutional insofar as it requires that a tie in surplus vote calculations for membership of a municipal executive committee be resolved “by lot”—a process also known as sortition.
The applicant, the Socialist Agenda of Dispossessed Africans (SADA), is a political party that participated in the 2021 local government elections in the Fetakgomo Tubatse Local Municipality. Following the election, both SADA and the Democratic Alliance (DA) obtained two council seats each. When seats on the executive committee were allocated, their surplus vote calculations were equal. In terms of section 43(2)(c), the deadlock was broken by drawing lots; the DA obtained the disputed seat. SADA challenged the constitutionality of this tie-breaking mechanism.
The High Court held in SADA’s favour, reasoning that using a random lot disregarded the total number of valid votes cast for each party and thus infringed section 19(3)(a) (the right to vote) and section 160(8) of the Constitution (fair representation and democratic participation). It suspended the declaration of invalidity for 18 months and referred the order to this Court for confirmation.
Before the Constitutional Court, SADA repeated its argument that resolving ties by lot undermines the electorate’s will and fails to take account of the actual number of votes each party received. The Minister of Cooperative Governance did not participate in either the High Court or Constitutional Court proceedings despite multiple invitations to do so. At the Court’s request, counsel from the Pan African Bar Association (PABASA) appeared to advance arguments in defence of the statute.
The Court began by analysing the nature of executive committees within municipal councils. It explained that such committees possess no original legislative or executive authority; they operate solely through powers delegated by the municipal council, which retains the ultimate decision-making responsibility. Because section 19(3)(a) guarantees the right to vote only in elections for a “legislative body”, the Court held that the right is not implicated by disputes about the internal composition of a non-legislative committee.
Turning to section 160(8), the Court emphasised that the Constitution requires fair representation, not strict proportionality, in municipal committees. Drawing on its earlier decision in Democratic Alliance v Masondo N.O. [2002] ZACC 28; 2003 (2) SA 413 (CC), the Court reiterated that fair representation reflects the Constitution’s commitment to pluralistic and deliberative democracy and does not demand a mathematically precise mirror of electoral outcomes. Sortition, while unconventional, is a mechanism Parliament deliberately selected for resolving ties in surplus calculations for committee seats.
The Court stressed that elections to municipal councils already reflect proportional representation, and that nothing in the Constitution compels proportional representation to carry through to executive committees. The legislature chose a formulaic method for allocating executive committee seats and intentionally incorporated a randomised tie-breaker. Courts may not override such policy choices absent a clear constitutional violation. No such violation was found and the Court is bound to comply with the separation of powers principle by respecting this particular policy choice.
The Court also noted that other parts of the Act (such as the determination of tied ward-councillor elections and certain municipal office-bearer elections) also use lot-drawing, underscoring that sortition is an accepted statutory device.
As a result, the High Court’s reasoning was found to rest on a mistaken assumption that proportionality was constitutionally required at the committee level. Its invalidation of the provision could therefore not stand.
A further issue addressed in the judgment concerned the Minister’s repeated failure to participate. The Court expressed strong criticism of the Minister’s inaction, observing that a responsible Minister has a duty to assist courts when the constitutionality of legislation is challenged. The High Court’s difficulty in reaching a properly tested conclusion highlighted the prejudice caused by the Minister’s absence.
On costs, the Court held that SADA should not be penalised for bringing the constitutional challenge: under the Biowatch principle (Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14), unsuccessful constitutional litigants acting against the state should not bear adverse costs orders unless the litigation is frivolous. SADA’s challenge was not frivolous and a costs order against it is thus not warranted.
The Constitutional Court did not confirm the High Court’s order declaring section 43(2)(c) unconstitutional. The provision requiring the determination of ties “by lot” therefore remains valid..
The Full judgment here
Case CCT 379/24
[2025] ZACC 25
Hearing Date: 02 March 2025
Judgement Date: 13 November 2025
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 13 November 2025, the Constitutional Court handed down judgment in an application for direct leave to appeal against a November 2024 judgment and order from the Land Court. The matter formed part of a fifteen-year litigation saga concerning a land restitution claim in Constantia.
The applicant in this matter was the South African Riding for the Disabled Association (SARDA), a non-profit organisation that provides equine therapy to children with disabilities in the Western Cape. The first respondent was the Regional Land Claims Commission, Western Cape (the Commission). The second to sixth respondents were representatives of several trusts composed of members of the Sadien family (collectively referred to as the Sadien family); and the seventh respondent was Sediek Sadien.
The dispossession centred around Erf 2274 Constantia, which had been in the Sadien family since 1902. Members of the extended Sadien family lived together on the land, using it to grow and sell fruits and vegetables. The Sadien family was dispossessed of their land as a result of the Group Areas Act and were forced to sell it in 1963 for a consideration significantly below its market value. After 1994, various descendants of the Sadien family filed land claims in respect of the dispossessed land, which were consolidated into one family claim by the Commission between 2001 and 2003.
In 2012, the Land Claims Court concluded that the Sadien brothers were dispossessed of their land as a result of racially discriminatory laws and practices and ordered that the state-owned Erf 1783 be transferred to Sediek Sadien in response to the family restitution claim. This order was varied in February 2013 to replace Erf 1783 with Erf 142 given the inadequate size of Erf 1783. The state-owned Erf 142 has been occupied by SARDA since 1980. SARDA, as the occupier of Erf 142, was not notified of the proceedings. SARDA subsequently filed applications for leave to intervene and appeal the inclusion of Erf 142 before the Land Claims Court and the Supreme Court of Appeal, all of which were rejected. SARDA then filed an application for leave to appeal to this Court in 2016.
On 23 February 2017, this Court held that SARDA’s interest as a lawful occupier of state-owned land gave it a direct and substantial interest to intervene in the restitution proceedings on the basis of its right to just and equitable compensation under section 35(9) of the Restitution of Land Rights Act 22 of 1994 (the Act). This Court went on to find that SARDA’s interest was limited to compensation and it did not have an interest in the transfer of Erf 142 to the Sadien family. This Court found it unnecessary to rescind the varied 2013 order and the matter was remitted to the Land Claims Court for the determination of SARDA’s compensation.
After a failed mediation process to determine SARDA’s compensation and a dispute between the Sadien family and Sediek Sadien surrounding the handling of the awarded land, various trusts representing the Sadien family filed a notice to intervene in the Land Claims Court in 2024 to substitute them as parties entitled to the substantive relief under the 2012 and 2013 orders. SARDA filed a counter-application, once again seeking to amend or rescind the 2012 and 2013 orders to remove Erf 142 from their remit. The court, which had been renamed to the Land Court, dismissed SARDA’s counter-application. It is this dismissal which was the basis for SARDA’s application for direct leave to appeal before this Court.
SARDA sought leave to appeal for two purposes: first, it asked this Court to set aside the Land Court’s 2024 substitution order on the grounds that it is incapable of execution, is incoherent and is bad in law. Second, it asked this Court to rescind the Land Claims Court’s 2013 varied order. The basis for both legs of SARDA’s challenge relied on its contention that it had a direct and substantial interest in the 2013 order and the 2024 substitution order beyond mere compensation.
SARDA argued that this Court’s 2017 order was interlocutory and capable of variation by the Land Court. In the event that the 2017 order was final, SARDA asked this Court to depart from that order on the ground that it was made per incuriam (through lack of care). In SARDA’s view, the interests of justice favoured granting direct leave to appeal because it maintained the matter could only come to finality through the consideration of whether this Court’s 2017 order was wrongly decided.
The Commission disputed SARDA’s claim to standing and submitted that there was no basis for granting SARDA direct leave to appeal. The Commission said that SARDA impermissibly asked this Court to depart from its earlier decision and sought a complete rehearing of the 2017 matter. Similarly, according to the Sadien family, SARDA was requesting a rehearing of this Court’s 2017 judgment which definitively ruled on SARDA’s interest in respect of the land claim without finding a need to rescind the 2013 order. The Sadien family contended that there was no coherent or compelling reason for this Court to depart from its 2017 order, and public policy considerations and the interests of justice emphasise the need for finality.
In a unanimous judgment written by Kollapen J (with Mlambo DCJ, Majiedt J, Mathopo J, Rogers J, Savage AJ, Theron J and Tshiqi J concurring), this Court held that SARDA lacked standing to oppose the intervention application in the Land Court, lacked standing to bring a counter-application and, finally, lacked standing to bring this appeal.
Standing “goes to the substance of an applicant’s entitlement to come to court” and is crucial to determine if a matter is properly before a court. The onus rests on the party instituting proceedings to allege and prove that it has standing. In establishing its standing, the obstacle SARDA faced was that in 2017 this Court decided that SARDA’s interest in relation to the restitution proceedings is limited to compensation.
SARDA initially attempted to side-step this Court’s 2017 finding as it argued that this Court’s order in relation to the scope of its limited standing was interlocutory because the Court’s limitation of their right did not elevate the status of the order to that of a final order and that the matter was open to the Land Court to reconsider this Court’s 2017 order on good cause shown. This argument could not be sustained.
It was clear that the 2017 order was final and definitive in effect and thus was not interlocutory. This Court found that SARDA’s direct and substantial interest in the litigation was confined to intervening for the purposes of determining its right to compensation and for this purpose only. The order made rested on a substantive interpretation of section 35(9) of the Act and made clear that the rights of lawful occupiers who reside on land do not trump the rights of claimants to have their land restored. The order irreparably precluded any other relief SARDA would be minded to seek in the restitution proceedings and limited them to compensation. It could never be suggested that another court, seized with the question of SARDA’s standing, could alter this Court’s finding after it had pronounced on it.
SARDA also contended that this Court’s 2017 order was wrongly decided and should be rescinded, though its legal representative conceded during the hearing that no rescission application had been brought in respect of the 2017 order and one should have been brought for this Court to properly consider rescission. In the interest of legal certainty and finality, and absent an application, this Court cannot consider rescission.
Given the final nature of this Court’s 2017 order and that no proper application for rescission served before this Court, this Court shared the sentiments of the lower court that it was “puzzling and somewhat troubling” that SARDA considered itself entitled to bring these proceedings. In 2017, this Court found that SARDA “misconceived the extent of its interest” by seeking to involve itself in the Sadien family’s land claim. The Court held that the application before it extended beyond a mere misconception to what could only be viewed as a refusal to accept the extent of its interest and a disregard of this Court’s 2017 order.
In conclusion and in urging a resolution of this long outstanding matter, this Court raised its importance in the broader context of restitution within which this dispute is located. Restitution is the means for the state, and society at large, to begin to address and rectify the injustices of the past which in many respects are still pervasive more than 30 years into our democracy. Addressing past injustices and providing equitable redress inherently requires finality. The Sadien family were dispossessed of their land in 1963 and, over 60 years later and 13 years after the original restitution award, they still have not been able to regain possession of that which is owed to them. Through repeated legal challenges and the disregard for this Court’s 2017 judgment, SARDA has furthered the delay in the finalisation of this long outstanding claim for restitution.
The Sadien family has waited long enough to receive the right in land to which they are legally entitled. SARDA’s continuous attempts to challenge the settled 2013 order cannot be overlooked in light of the injustice faced by the Sadien family and the significance of restitution.
On the matter of costs, the Court highlighted that the awarding of costs remains within the Court’s discretion. The respondents had requested that, even if the Biowatch principle were to apply, this Court should depart from it and make an appropriate costs order against SARDA due to its conduct in delaying the restitution process through protracted litigation processes. The Biowatch principle is not unqualified. If the application seeking to enforce an applicant’s constitutional rights against the state is frivolous or vexatious, or in any other way manifestly inappropriate, it will be treated as an ordinary civil case.
In light of this Court’s finding that SARDA had disregarded its previous order and prolonged the restitution process by intervening in processes where it lacked standing, this Court found no reason why SARDA should be protected by the Biowatch principle. No fundamental constitutional right against the state was sought to be enforced in these proceedings. Even if SARDA were to fall within the protective realm of Biowatch, the Court found that this was a suitable case for departure from the principle. What SARDA impermissibly sought to do was to re-litigate an issue which had been finally disposed of, and even then its attempt to do so was so procedurally inept and devoid of merit that it must be removed from the shield of Biowatch protection. However, this Court recognised that SARDA is a non-profit organisation which does important work to assist the disability community. The Court thus exercised its discretion and directed that the applicant paid the respondents’ costs in this Court, but not the costs of two counsel as requested by the first respondent.
In the circumstances, this Court concluded that SARDA had no standing to institute these proceedings. The result, therefore, was that the appeal must fail.
The Full judgment here
Case CCT 306/22
[2025] ZACC 24
Hearing Date: 07 March 2024
Judgement Date: 05 November 2025
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Wednesday, 5 November 2025, the Constitutional Court handed down judgment in an application for condonation and leave to appeal against a judgment and order of the Regional Court for the Eastern Cape, Mthatha. There are five judgments in this matter. The first judgment is penned by Mhlantla J and Theron J (Tshiqi J and Mathopo J concurring fully and Bilchitz AJ concurring with its order and, subject to qualifications, with its reasoning). This judgment is the majority judgment. The second judgment is penned by Dodson AJ (Madlanga J concurring). The third judgment is penned by Majiedt J (Zondo CJ concurring). The fourth judgment is penned by Bilchitz AJ. The fifth judgment is penned by Zondo CJ.
The background to this matter is as follows. The applicants are Mr Zolani Godloza and Mr Sibulele Mthetho were charged together with Mr Lungisa Grifhs, Mr Siphamandla Tayi and Mr Lwandile Jonas, with one count of murder of Mr Thulani Ntsikini while acting in common purpose. Their trial was in the Regional Court, and they pleaded not guilty and proffered alibi defences. On 28 November 2018, the applicants and Mr Grifhs were convicted of murder. Their conviction was solely based on the evidence of Mr Kwanele Bavu, a purported eyewitness. The Regional Court accepted Mr Bavu’s evidence notwithstanding the fact that Mr Bavu had previously made a mistake about two of the co-accused and his testimony was inconsistent.
The applicants and Mr Grifhs sought leave to appeal against their conviction and sentence on the basis that the Regional Court had erred in its application of the cautionary rule when considering the evidence of the single witness. On 13 June 2019, the application was dismissed for lack of prospects of success. They then filed a petition in the High Court Eastern Cape Local Division, Mthatha, for leave to appeal. This was refused on 9 October 2019.
Subsequently, the applicants and Mr Grifhs filed separate applications in the Supreme Court of Appeal for special leave to appeal, and these were considered by different panels of judges. On 15 May 2020, Mr Grifhs was granted special leave to appeal. On 13 August 2020, the applicants’ application was dismissed on the grounds that there were no special circumstances meriting a further appeal on the merits.
Mr Grifhs’ application came before the Supreme Court of Appeal on 1 September 2021. The Court held that there were “substantial unexplained contradictions between Mr Bavu’s oral testimony and his written statement to the police” and therefore, there were reasonable prospects of success. It granted Mr Grifhs leave to appeal to the High Court.
On learning of Mr Grifhs’ successful application, the applicants lodged an application for reconsideration in terms of section 17(2)(f) of the Superior Courts Act, informing the President of the Supreme Court of Appeal (President) that their co-accused had been granted special leave by that Court. On 21 February 2022, that application was dismissed on the basis that there were no exceptional circumstances.
The applicants first filed their application in this Court on 15 March 2022. They, however, re-filed it in September 2022 with an application for condonation, due to the Registrar’s inability to locate the original application. The applicants submitted that no prejudice arises to the respondents from this delay, while they would suffer grave injustice if condonation was not granted. The applicants argued that both this Court’s constitutional and general jurisdiction were engaged and that their rights to a fair trial, equal treatment before the law, freedom and security of the person and freedom of movement were violated.
As a basis for their appeal, the applicants raised several grounds. First, they contended that the Regional Court did not apply the cautionary rule properly as there were material contradictions and inconsistencies between Mr Bavu’s oral evidence and witness statements. Second, they contended the trial court failed to explain the provisions of section 51(1) of the Criminal Law Amendment Act. Third, they contended the Regional Court failed to explain the provision of section 93ter of the Magistrates’ Court Act. Fourth, they contended the President’s dismissal of their reconsideration application, while granting Mr Grifhs’ leave to appeal, violated their fair trial rights and amounted to unfair differential treatment. Finally, they submitted that during sentencing, the Regional Court failed to consider their circumstances, including their chance of rehabilitation as first-time offenders.
The respondent submitted that there was substantial compliance with section 93ter of the Magistrates’ Court Act and that the applicants were appropriately apprised of the provisions of section 51 of the Criminal Law Amendment Act. However, the respondent submitted that the differential granting of leave between Mr Grifhs and the applicants created an untenable scenario as their cases involve identical material aspects. The respondent agreed that the Regional Court failed to apply the cautionary rule, and that it would be “foolhardy” to rely on the contradictory evidence of a single witness as a sufficient basis for conviction. Since a similar issue may arise in the future, the respondent submitted that it is in the interests of justice for this Court to grant leave to appeal. Regarding remedy, the respondent submitted that the appeal, if granted, must be heard by the High Court.
The first judgment
The first judgment, penned by Mhlantla J and Theron J, held that condonation should be granted as there was an adequate explanation for the delay and there is no potential prejudice to the respondent, while the applicants would suffer significant prejudice if condonation were not granted.
On jurisdiction, the first judgment considered five potential grounds for jurisdiction: (a) the alleged misapplication of the cautionary rule; (b) the alleged non-compliance with section 93ter; (c) the alleged inadequate warning of the applicable minimum sentence; (d) the alleged violation of the rights to equality, a fair trial and access to courts emanating from the dismissal of the reconsideration application (the grave injustice argument); and (e) the alleged violation of the right not to be deprived of freedom arbitrarily without just cause.
First, this judgment held that the misapplication of the cautionary rule constituted a misapplication of the law, which in itself does not engage this Court’s jurisdiction. Second, the first judgment concluded that the section 93ter argument was raised for the first time in this Court. In any event, counsel indicated during the hearing that this argument had been abandoned. The same is true regarding the applicable minimum sentence argument, which counsel indicated to have been abandoned.
Regarding the dismissal of the reconsideration application, the first judgment held that the granting of leave to Mr Grifhs, in itself, did not constitute an exceptional circumstance that would clothe this Court with jurisdiction. Referencing the principle that the right to equality does not guarantee equality of outcome in litigation, the first judgment held that the applicants and Mr Grifhs were accorded the same rights. The alleged unfairness emanated from an exercise of judicial discretion, in which different outcomes were inherent. Thus, the dismissal of the applicants’ reconsideration application did not violate their right to appeal.
The first judgment found constitutional jurisdiction based on the potential infringement of the applicants’ rights to a fair trial and to freedom and security of the person. It is well established that an alleged breach of the right to a fair trial is a constitutional issue. Similarly, the potential breach of the right not to be deprived of one’s freedom arbitrarily and without just cause also raised a constitutional issue. The first judgment held that the scope of a court’s jurisdiction in respect of fundamental rights violations, particularly those involving liberty and human dignity, is an established element of constitutional systems.
In this case, the applicants demonstrated potential violations of their right to a fair trial and to freedom and security of the person.
Regarding leave to appeal, the first judgment held that the interests of justice were determinative in this case. While it could not automatically follow that applicants should be granted leave because their co-accused had been, the facts in this case warranted such a result. The applicants were convicted of murder on the same factual complex as Mr Grifhs. The State also conceded that it cannot support or defend the conviction. In such a criminal matter, the unequal treatment implicated the right not to be deprived of freedom arbitrarily and without just cause and the right to equality.
A denial by this Court to make an order redressing the harm to the applicants would carry the risk of a denial of justice. The applicants had been sentenced to prison sentences of 16 years, while Mr Grifhs had been out on bail since September 2020. This constituted disparate treatment. The first judgment concluded that there is no effective alternative remedy and there were reasonable prospects of success in the matter, as evidenced by the concessions by the State and the judgment of the Supreme Court of Appeal in Mr Grifhs’ application for special leave.
For these reasons, the first judgment held that this Court’s constitutional jurisdiction was engaged and leave to appeal was granted. As there was a pending appeal concerning Mr Grifhs, the majority held that it would be most appropriate and expedient for these appeals to be heard together.
The second judgment
The second judgment, penned by Acting Justice Dodson, agreed with the first and third judgments insofar as they held that the misapplication of the cautionary rule did not engage this Court’s jurisdiction. It also agreed with the first judgment on condonation and in finding against the applicants’ arguments pertaining to section 93ter of the Magistrates’ Courts Act and section 51 of the Criminal Law Amendment Act. Further, the second judgment agreed with the third judgment that the outcome proposed by the first judgment would possibly lead to an avalanche of criminal matters.
The second judgment differed with respect to the refusal by the President of the Supreme Court of Appeal of the application in terms of the proviso to section 17(2)(f) of the Superior Courts Act (the proviso). It held that the proviso extends the “appeal road by adding a further remedy”.
Referencing this Court’s interpretation in the other judgments, the second judgment reiterated that “exceptional circumstances” under the proviso require that grave injustice would ensue or that the administration of justice would be brought into disrepute in the absence of a reconsideration. One such example was where “contrary orders in two cases which were materially identical were made by different panels of the Supreme Court of Appeal”. Hence, while “ordinarily” this Court would lack jurisdiction to consider an appeal against the President’s decision in terms of the proviso, different outcomes from different panels of the Supreme Court of Appeal in respect of the same set of factual and legal circumstances go a long way toward establishing exceptional circumstances. In this case, the second judgment held that because the applicants and Mr Grifhs were so similarly situated, unequal outcomes from different panels of the Supreme Court of Appeal would create a strong prima facie case for exceptional circumstances warranting intervention.
On the first judgment’s criticism of the second judgment as giving rise to a dual appeal system, the second judgment disagreed. It held that where issues of inconsistent outcomes for similarly situated litigants are concerned, the proviso requires a judicial assessment based on a mixture of fact, law, fairness and judicial experience. Absent compelling circumstances, an appeal would not lie against a decision of the President for refusing reconsideration if the applicant can apply to this Court for leave to appeal on the merits. Further, if this Court’s jurisdiction is engaged and if it is in the interests of justice to grant leave to appeal against the decision of the court a quo on the merits, it would not be in the interests of justice to grant leave to appeal against the President’s decision pursuant to section 17(2)(f). Thus, the second judgment held that there were no dual avenues of appeal.
Had it commanded a majority, the second judgment would have granted leave to appeal against the decision of the President of the Supreme Court of Appeal dismissing the applicants’ application in terms of the proviso to section 17(2)(f) of the Superior Courts Act 10 of 2013.
The third judgment
The third judgment, penned by Majiedt J, disagreed with the outcome and reasoning of the first judgment in respect of jurisdiction. It held that this Court lacked jurisdiction in this matter. Consequently, the third judgment would have refused leave to appeal.
The third judgment also disagreed with the second judgment’s finding that the President’s decision engaged this Court’s jurisdiction. It emphasised three important criminal law propositions, which are that— (a) not every wrong judgment is a miscarriage of justice; (b) unequal outcomes for litigants in petitions for leave to appeal do not automatically constitute a grave injustice warranting reconsideration; and (c) the alleged inadequacy of evidence to sustain a conviction cannot establish this Court’s jurisdiction. If so, then every wrong decision would clothe this Court with jurisdiction, leading to an avalanche of cases.
The third judgment also underscored this Court’s jurisprudence on two different outcomes in petitions for leave to appeal to the Supreme Court of Appeal. It emphasised that in Van der Walt v Metcash Trading Limited, this Court held that its jurisdiction is not engaged in such situations. The third judgment held that Metcash is binding authority in both civil and criminal cases and that the first two judgments failed to recognise this aspect.
Regarding the applicants’ constitutional arguments, the third judgment held that they were simply the dressing up in constitutional garb of different outcomes in the Supreme Court of Appeal petitions. This, the third judgment found, was to overcome the binding precedent of this Court, which states that (a) this Court’s jurisdiction is not engaged where there are two different outcomes in respect of leave to appeal applications of different litigants; and (b) the misapplication of an established legal principle does not engage this Court’s jurisdiction. The third judgment further held that conflicting outcomes do not equate to infringement of constitutional prescripts. As this Court made plain in Metcash, “the Constitution does not and could hardly ensure that litigants are protected against wrong decisions”.
Finally, the third judgment cautioned against a possible opening of the floodgates in this Court as a result of the jurisdictional findings in the first and second judgments.
The fourth judgment
The fourth judgment, penned by Bilchitz AJ, agreed with the first judgment with qualifications. It agreed that the constitutional jurisdiction of this Court was engaged and that leave to appeal should be granted. It preferred the approach of the first judgment to the second judgment, given that both the pleadings and the oral argument were structured in terms of the applicants’ fundamental rights. The relief provided by the first judgment also corrected the central violation of rights that had taken place and required all the accused persons to be placed in the same position by having their appeal heard by the High Court in Mthatha. The fourth judgment further added that there were good reasons of fairness and practicality for the applicants’ appeal to be heard with Mr Grifhs’.
However, the fourth judgment departed from the first judgment in two respects. First, it refused to affirm the principles articulated in Metcash and expressed the view that that judgment may have crossed the threshold of being ‘clearly wrong’. It also took issue with the third judgment’s transposition of this troubling precedent in the criminal arena. The fourth judgment rejected the notion that divergent decisions which result in differential treatment of the kind at issue must be accepted in the judicial process, especially when the right to appeal is designed to enable higher courts to address inequitable outcomes.
The second qualification was that the fourth judgment did not accept the first judgment’s holding that, in all cases, applicants may not appeal to this Court against the decision of the President of the Supreme Court of Appeal in terms of the proviso. The fourth judgment found that it was unnecessary to make a definitive pronouncement in this regard and that compelling reasoning to the contrary had been provided in the second judgment. The fourth judgment also disagreed with the dicta in the first judgment concerning the contour of exceptional circumstances under section 17(2)(f).
The fifth judgment
The fifth judgment, penned by Zondo CJ, agreed with the third judgment with qualifications.
With regard to the decision of the President of the Supreme Court of Appeal refusing the application for reconsideration, the fifth judgment held that even if that decision were appealable, the applicants did not apply for leave to appeal against it. Consequently, that decision was not before this Court. As the first judgment made plain, the applicants conceded that they did not apply for leave to appeal.
Apart from these qualifications and with the elaborations contained therein, the fifth judgment concurred with the dismissal order of the third judgment.
Therefore, leave to appeal was granted, and the appeal succeeded in part. The order of the Supreme Court of Appeal was set aside and substituted with the following: firstly, the applicants’ petition for leave to appeal in terms of section 309C of the Criminal Procedure Act 51 of 1977 against both conviction and sentence was granted. Secondly, the applicants were granted leave to appeal to the High Court of South Africa, Eastern Cape Local Division, Mthatha. Finally, if practically possible, their appeal should be considered together with that of Mr Lungisa Grifhs.
The Full judgment here