Case CCT 266/24
[2026] ZACC 05
Hearing Date: 28 August 2025
Judgement Date: 11 February 2026
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, 11 February 2026, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the High Court of South Africa, Gauteng Division, Pretoria (High Court).
This matter arises from an application for leave to appeal and concerns whether a procurement decision of a private entity/body could be reviewed under the Promotion of Administrative Justice Act (PAJA), alternatively, under the principle of legality or alternatively, or under the common law.
The background to this matter is as follows. The applicant is Famous Idea Trading 4 (Pty) Limited, trading as Dely Road Courier Pharmacy, a company that unsuccessfully tendered for the delivery of medical courier pharmacy services for the Government Employee Medical Scheme (GEMS), the first respondent. The tender was instead awarded to the fourth and fifth respondents, Marara Pharmacy (Pty) Limited and Pharmacy Direct (Pty) Limited, who formed a joint venture (JV), as well as the sixth respondent, HH Durrheim (Pty) Limited, trading as Medipost Pharmacy.
On 9 March 2023, the applicant instituted a review application in the High Court, where it sought to challenge the decision made by GEMS. The two main issues were GEMS’ decision to reject its tender; and GEMS’ decision to award part of the tender to the JV (excluding the sixth respondent). In its main application, the applicant challenged the decision on three grounds:
- 1. The impugned decision constituted administrative action within the meaning of PAJA and that it was reviewable under the Act;
- 2. In the first alternative, in taking the impugned decision, GEMS exercised public power and the impugned decision was reviewable under the legality principle; and
- 3. In the second alternative, the impugned decision was reviewable under the common law.
The applicant further called on GEMS to deliver the record of the impugned decision in terms of rule 53 of the Uniform Rules of Court. GEMS refused to file the record, filing instead a rule 6(5)(d)(iii) notice raising two points of law. Before the High Court, GEMS submitted that it was not obliged to provide a record of its decision as it was not an organ of state, nor was it exercising public power at the time that the impugned decision was made; subsequently, its decision was not reviewable. The applicant argued that the courts have previously held that the obligation to disclose a rule 53 record is triggered by a review application itself, as well as review jurisdiction.
The High Court’s judgment found that the impugned decision was a commercial decision that related to the procurement of services by a medical scheme. It further held that it was not necessary to consider the merits of the main application when dealing with the jurisdictional challenge as the Supreme Court of Appeal, in GEMS and Others v Public Protector of the Republic of South Africa and Others (GEMS v Public Protector decision), had made a decision on GEMS’ specific, unique position. Furthermore, the Court held that a court should first determine whether it has review jurisdiction before making an order that compels the delivery of a record, and that this should be done before determining the merits of the review. The Court noted that it would be dangerous to set a precedent that allows for the decisions of private parties to appoint service providers to be reviewed, especially if the ambit of common law review is broadened. The Court held that GEMS’ use of rule 6(5)(d)(iii) was not incompetent.
It reasoned that GEMS was entitled to show cause why its decision should not be reviewed by way of a dispositive point of law
The applicant then filed an application for leave to appeal against the judgment, which was later dismissed, with the Court reasoning that there were no compelling grounds to grant leave to appeal, nor were there any reasonable prospects of success on appeal, and ordered costs against the applicant. The applicant then petitioned the Supreme Court of Appeal, which also dismissed the application for leave to appeal, with costs, on the grounds that there was no reasonable prospect of success nor any other compelling reasons to grant leave to appeal. The applicant then sought leave to appeal in this Court. It further sought condonation for the late filing of its application and, later, for leave to file a replying affidavit.
Before this Court, the applicant submitted that this Court’s constitutional and general jurisdiction were engaged. On constitutional jurisdiction, it submitted that there was a violation of its rights under sections 33 and 34 of the Constitution, as well as a breach of the principle of legality. On general jurisdiction, it submitted that the matter raises an arguable point of law and that the question of whether GEMS is insulated from any review (including common law) is an important legal consideration which the High Court did not adequately address. Additionally, the question of whether a court has jurisdiction to entertain the merits of a rule 53 review application when the record has not been disclosed must be pronounced by this Court.
On the merits, the applicant submitted that the High Court erred in its findings for several reasons. First, the applicant contended that jurisdiction ought to have been decided during the adjudication of the merits, once the record was produced. It submitted that the facts supported its assertion that the impugned decisions were reviewable. Second, the applicant maintained that GEMS exercised public power, and not private contractual power, in reaching the impugned decision. It argued that the Court’s focus should have emphasised the nature of the power exercised rather than the nature of the functionary. Third, the applicant submitted that its case was based on common law and public law grounds of review. In concluding that the impugned decision was not reviewable, the Court, in the applicant’s view, only did so “in terms of the common law” and did not consider the public law grounds or the other grounds relied on by the applicant. Finally, the applicant persisted in its contention that GEMS’ rule 6(5)(d)(iii) notice was incompetent, as the record had not been produced. According to the applicant, such a notice had the effect of frustrating the review.
Both GEMS and the JV submitted that this Court’s constitutional jurisdiction is not engaged. However, GEMS conceded that this Court’s general jurisdiction might be engaged. The JV resisted making this concession. Regarding leave to appeal, both GEMS and the JV submitted that the matter was moot, as the agreement forming the subject matter of the review expired on 31 December 2023.
GEMS submitted that a review application must show jurisdiction in its founding papers. Should such papers be lacking on jurisdiction, there is no entitlement to disclose the record in order to bestow the Court with jurisdiction. In addition, GEMS argued that the Court did not find that it was common cause that the impugned decision was the exercise of private contractual power. The Court reached such a decision based on the common cause facts. GEMS alleged that the applicant confined itself to a common law review in both its written submissions and oral arguments. As such, the Court found that the impugned decision was not administrative action and, following from that, not reviewable. Asserting its support for the Court’s reliance on the GEMS v Public Protector decision in the High Court’s determination, GEMS submitted that its decision was made in the “business of medical scheme”.
The JV raised the contention that the parties specifically asked the Court to determine the jurisdictional point and that the applicant did not take the Court into its confidence by failing to disclose the agreement between the parties. Just as GEMS has submitted, the JV also accentuated the point that the purpose of the joint practice note was to inform the Court of the issues that were to be determined, borne out of agreement between the parties. In addressing the jurisdictional point raised by the applicant, the JV argued that the jurisdictional point was brought before the Court through the parties’ shared request and that it was dispositive of the applicant’s entire application. In raising confidentiality concerns in its answering affidavit to the rule 30A application, the JV once more highlighted that a litigant should not be able to, by way of a purported “review” application, obtain insight into information which it would not ordinarily be entitled to under PAIA, if the decision is not capable of being reviewed. In support of the High Court’s determination, the JV agreed that a dangerous precedent would be set if the decisions of private bodies to appoint service providers were capable of being reviewed.
In a unanimous judgment penned by Musi AJ, regarding jurisdiction, this Court held that the question of whether the applicant is entitled to the rule 53 record raises a constitutional issue, as it implicates the right to access to court. This Court further held that the question of whether GEMS was exercising a public power similarly raises a constitutional issue. For this reason, this Court’s constitutional jurisdiction was engaged. This Court recognised two arguable points of law of general public importance which engaged its general jurisdiction. The first was whether decisions which are neither administrative action nor exercises of public power or the performance of a public function are reviewable in terms of the common law. The second was whether rule 53 is applicable to the common law review of decisions made by private bodies. With regard to mootness, this Court concluded that, because the contract was renewed, and that renewed contract derived its validity from the initial contract, the matter was not moot. For these reasons, leave to appeal was granted.
This Court held that serving a rule 6(5)(d)(iii) notice before the record has been produced is competent. The Court reasoned that the purpose of such a notice is to resist an application devoid of legal grounds by raising a point in limine (preliminary legal objection). The effect of this is that the court does not have to consider the merits of the matter and may dispose of it early.
Regarding the reviewability of the decision, this Court held that, if a party fails to establish on the facts that a decision is reviewable under PAJA, the principle of legality or the common law, it will have failed to engage the court’s review jurisdiction. Under these circumstances, the party is not entitled to a review record. A court’s review jurisdiction may be challenged by way of a rule 6(5)(d)(iii) notice. For this reason, the issue of jurisdiction must be determined before the record is produced. Accordingly, this Court concluded that POLMED and Murray were wrongly decided.
In considering the High Court review jurisdiction, this Court noted that GEMS is not an organ of state. Based on the Supreme Court of Appeal’s reasoning in GEMS v Public Protector, it concluded that the business of a medical scheme does not entail the exercise of public power or the performance of a public function. GEMS’ decision was therefore not administrative action. This Court therefore held that the PAJA and the principle of legality were not applicable and that the High Court did not have review jurisdiction in terms of these pathways. This Court further held that the High Court had indeed considered the public law grounds when it considered the question of jurisdiction and concluded that GEMS’ decision had been commercial and not administrative.
This Court then went on to consider whether a private law review was appropriate. It noted that, despite the courts’ general reluctance to interfere in the affairs of private entities, interference may be warranted where the entity exercises decision-making or adjudicative powers in terms of a private contract. When tender conditions pursuant to a public invitation for the procurement of goods and services by private entities, like GEMS, stipulate that the acceptance of those conditions constitute a contract between the procurer and the tenderer, the latter may subsequently claim, depending on the contractual terms, that the rules of natural justice should be implied as a term of their contract. Although GEMS exercised an adjudicatory function when it decided to grant the contract to the JV, the applicant did not plead that the tender conditions constituted a contract between it and GEMS. This Court therefore held that a private law quasi review was not supported.
For the reasons elucidated above, this Court held that the appeal should be dismissed. As there was no reason why costs should not follow the result, this Court ordered costs against the applicant..
The Full judgment here
Case CCT 315/25
[2026] ZACC 04
Hearing Date: 10 december 2025
Judgement Date: 30 January 2026
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 19 December 2025, the Constitutional Court issued an order in an urgent application granting leave to appeal and upholding the appeal against a judgment of the Competition Appeal Court (CAC). On 30 January 2026 at 10h00, the Constitutional Court handed down judgment containing the reasons for that order.
This case concerns Lewis Stores (Pty) Limited’s (Lewis) attempt to intervene in large merger proceedings between Pepkor Holdings Limited, the acquiring firm, and Shoprite Holdings Limited, the target firm. The Competition Commission recommended the conditional approval of the merger, which the Competition Tribunal was required to consider. During those proceedings, Lewis applied to intervene, contending that the merger raised serious competition concerns for low- and medium-income furniture consumers.
The Tribunal granted Lewis limited participatory rights in an order issued on 23 July 2025. On 5 September 2025, the Tribunal handed down reasons for that order, holding that Lewis had advanced a credible, merger-specific theory of harm, that aspects of the Commission’s investigation appeared insufficiently probed, especially in relation to local market overlaps, the competitive constraints in the low-income furniture market, and the dynamics of store location and credit offerings, and that Lewis had access to information that could meaningfully assist the Tribunal.
The merger parties appealed to the CAC, contending that Lewis had failed to demonstrate unique or otherwise unobtainable information, that Lewis’ participation would inevitably introduce substantial delay, and that the Tribunal had misconstrued the legal test for intervention under section 53(c)(v) of the Competition Act. The CAC upheld the appeal on 8 October 2025.
Lewis thereafter sought leave to appeal in this Court. The issues before this Court were:
- (a) whether leave to appeal should be granted;
- (b) whether the CAC applied the correct test for intervention in merger proceedings, and, if not, what the correct test is; and
- (c) whether the CAC impermissibly interfered with the Tribunal’s discretion.
In a unanimous judgment penned by Majiedt J, the Court held that this matter plainly engaged this Court’s general and constitutional jurisdiction. It raised an arguable point of law of general public importance concerning the scope of the Tribunal’s exercise of discretion, and the proper test for intervention in large merger proceedings, a point of law whose arguability is firmly established by the divergent outcomes reached by the Tribunal and the CAC. This Court agreed with submissions made by the applicant, that Constitutional jurisdiction was engaged, as the CAC either introduced a novel intervention test or applied the test incorrectly. This amounted to an error of law that implicated a litigant’s right of access to courts under section 34 of the Constitution.
The second question this Court considered was whether the CAC applied an incorrect test for the intervention of third parties in large merger proceedings. Section 53(c) of the Act permits participation in merger hearings by specified parties, and by any other person recognised by the Tribunal. Rule 46 of the Rules of the Competition Tribunal (Rules), allows a person with a material interest in the proceedings to apply to intervene, subject to any limitations necessary to ensure orderly and expeditious proceedings.
This Court, looking at its previous jurisprudence, and that of the CAC over the years, summarised the settled test for intervention as requiring a prospective intervener to show either:
- (a) a material interest in the proceedings; or
- (b) an ability to assist the Tribunal.
The CAC’s previous jurisprudence has consistently held that intervention in merger proceedings does not require a material and substantial interest. In the case Community Healthcare, endorsing the CAC’s finding in Anglo SA Capital, the CAC held that a party may be admitted as a party to merger proceedings by demonstrating an ability to assist the Tribunal in applying the purposes of the Competition Act. In Northam, reaffirming its decision in Africa Data Centres, the CAC held that the Tribunal must weigh the likely assistance of a prospective intervener against the need for expedition, and that the scope of participation must enable constructive contribution to the two theories of harm which have been accepted as the basis of its rights of participation. In Africa Data Centres and Sunrise Energy, the CAC reiterated that intervention is not automatic, and must be justified by evidence showing that the applicant will assist the Tribunal in its enquiry.
This authority shows that the settled test for intervention asks whether the prospective intervener has demonstrated, through credible evidence, either a material interest in the proceedings or an ability to assist the Tribunal in adjudicating the merger. In this case, however, a far more stringent novel or, at best, erroneous test was introduced by the CAC.
It required an intervening applicant to demonstrate possession of special or unique insights that could not be obtained from any other source.
This Court concluded that this created an unworkable and well-nigh impossible test for intervention. This is especially so given that, at the intervention stage, the Tribunal does not and should not determine the correctness of the intervener’s averments, nor resolve disputes about market dynamics or the anti-competitive effects of the merger. Those matters are properly addressed at the merger hearing itself. If intervention were permitted only where the Tribunal would otherwise lack access to the evidence, intervention would be rendered impossible, given the Tribunal’s inquisitorial powers to subpoena witnesses or direct further investigation. It is therefore untenable to refuse intervention on the basis that any investigative gaps could be cured without it. The proper enquiry is whether the application was reasonably instituted when brought.
The CAC held that Lewis offered only generalised market descriptions and failed to identify any specialised knowledge that could assist the Tribunal. However, in its founding affidavit, Lewis outlined the parties’ operations in the national furniture retail market, supported by maps, graphs, statistics and factual data, identified material deficiencies in the Commission’s analysis of market definition and competitive effects, and explained the specific contributions it sought to make as an intervener. This Court concluded that in light of the detailed, fact-based evidence presented by Lewis, the Tribunal was justified in concluding, through a carefully reasoned application of the settled legal test, that the requirements for intervention had been satisfied.
This Court concluded that it was not necessary to determine whether the CAC formally introduced a new test or misapplied the existing one. In either event, it impermissibly elevated the threshold for intervention beyond that contemplated by section 53(c)(v), by requiring proof of unique or otherwise unobtainable evidence. That error sufficed to justify setting aside its decision. Applying the correct test, this Court held that Lewis made out a case for intervention, as the Tribunal correctly found.
This Court also dealt briefly with the CAC’s impermissible interference with the Tribunal’s exercise of its discretion to grant Lewis participatory rights. The CAC has repeatedly affirmed – in the cases of Sunrise Energy, Imerys and Schumann Sasol – that the decision whether to permit intervention lies within the Tribunal’s discretion. In doing so, deference is owed to the Tribunal as a specialist body with a thorough grasp of the policy considerations relevant to merger analysis. The Tribunal’s discretion may be interfered with only where it was not judicially exercised, was based on wrong principles or misdirection, or produced a decision that no properly directed tribunal could reasonably have reached.
The CAC held that the Tribunal did not consider at all rule 46 of the Tribunal Rules, and the prescription that the Tribunal decline to admit an intervener if it provides evidence already brought before it by another participant. That conclusion was incorrect. The Tribunal expressly referred to rule 46 and identified material gaps in the Commission’s assessment, including local market overlaps, pricing interactions and the role of credit.
Clearly therefore, the Tribunal did consider the shortcomings in the Commission’s assessment and held that Lewis’ information could fill those shortcomings.
The CAC was therefore not entitled to substitute its own view of the usefulness of the evidence for that of the Tribunal. The CAC accordingly erred in interfering with the Tribunal’s lawful and rational exercise of its discretion.
The final issue concerned the ambit of the Tribunal’s participation order. The merger parties contended that the Tribunal improperly outsourced its statutory merger control functions to Lewis, granted intervention rights in respect of issues not sought in the intervention application, acted inconsistently by granting intervention in relation to countervailing power while stating in its reasons that this aspect was denied, and dismissed intervention on public interest grounds while nonetheless granting Lewis access to the entire merger record, including material relating solely to public interest.
This Court concluded that these wide-ranging criticisms were unfounded. Lewis’ notice of motion and founding affidavit in the intervention application made plain that it sought full participatory rights. The Tribunal admitted Lewis as a knowledgeable and comparable competitor and permitted participation on the basis that it could assist in understanding competitive dynamics and assessing unilateral theories of harm. Importantly, the Tribunal granted intervention within a defined and curtailed scope, limited participation to specified competition issues, and refused intervention on beds and mattresses, buyer power and public interest. Its order was carefully circumscribed, fact specific, and consistent with established intervention jurisprudence.
The Full judgment here
Case CCT 280/24 ; CCT190/25
[2026] ZACC 03
Hearing Date: 04 November 2025
Judgement Date: 23 January 2026
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 23 January 2026 at 11h30 the Constitutional Court handed down a unanimous judgment authored by Justice Theron in two applications that were heard together.
The first application, CCT 280/24, was the Schultz matter. The applicants in Schultz sought condonation and leave to appeal against a judgment of the Supreme Court of Appeal. The second application, CCT 190/25, was the Cholota matter. The applicant in Cholota sought direct leave to appeal against a judgment of the High Court of South Africa, Free State Division, Bloemfontein.
In the Schultz matter, the first respondent, Mr Jonathan Schultz, approached the High Court of South Africa, Gauteng Division, Pretoria in 2022 after obtaining information that the National Prosecuting Authority (NPA) intended to seek his extradition from the U.S. He sought, amongst others, a declarator that only the Minister of Justice, in his capacity as a member of the national Executive, has the power to make extradition requests to foreign states. The Pretoria High Court dismissed Mr Schultz’s application. On appeal, the Supreme Court of Appeal reversed the High Court’s order and declared that the Minister of Justice, not the NPA, has the authority to request Mr Schultz’s extradition from the U.S.
In the Constitutional Court, the applicants in Schultz sought an order limiting the retrospectivity of the order of the Supreme Court of Appeal, and condonation for the late filing of their application for leave to appeal.
The Supreme Court of Appeal’s judgment in the Schultz matter became pivotal to the Cholota matter. Ms Nomalanga Moroadi Selina Cholota was extradited from the U.S. in 2024 following an extradition request made by the Director of Public Prosecutions (DPP). During a criminal trial in the Bloemfontein High Court, Ms Cholota raised four grounds in a special plea challenging the High Court’s jurisdiction over her on the basis that her extradition was unlawful. A trial-within-a-trial ensued. During her closing address, Ms Cholota’s counsel produced a copy of the Supreme Court of Appeal’s judgment in Schultz and argued that Ms Cholota’s extradition was made by the incorrect state functionary. The Bloemfontein High Court found that it was bound by that judgment and that, as a result, it did not have criminal jurisdiction over Ms Cholota.
In a unanimous judgment penned by Theron J (with Mlambo DCJ, Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Musi AJ, Nicholls AJ, Rogers J, Savage AJ, and Tshiqi J concurring), the Constitutional Court found that the Cholota matter engages its constitutional and general jurisdiction as the matter raises both key constitutional issues and arguable points of law of general public importance. The Court also found that direct leave to appeal should be granted, as it would be in the interests of justice to finalise the matter on an urgent basis.
On the merits of the Cholota matter, the Court held that the State’s right to be heard was infringed during the trial-within-a-trial, in that counsel for Ms Cholota raised the argument that Ms Cholota’s extradition was unlawful because it was issued by the NPA for the first time during her closing address. Advancing a new ground for a special plea during the closing address deprived the State of the opportunity to respond, in violation of section 106(3) of the Criminal Procedure Act. The Bloemfontein High Court erred in dismissing the State’s objection on this issue.
The second issue the Court considered was which state functionary possesses the authority to make outgoing extradition requests. The Court affirmed that the legal process of outgoing extradition requests, by its nature, functions at the intersection between domestic and international law. Domestically, the prosecuting authority usually initiates a prosecution and prepares the requisite documents for an extradition request. Internationally, the requesting state generally transmits the request to another state. Necessarily, the international stage of this process involves acts of external sovereignty.
In assessing the NPA’s powers in this process, the Court held that the final authority to make extradition requests to foreign states is not an implied power of prosecutorial authority. This is because the international stage of outgoing extradition requests entails sensitive diplomatic and foreign relations considerations, which fall squarely within the domain of the national Executive. In other words, the international stage of outgoing extradition requests cannot be entirely subsumed under prosecutorial proceedings, and the separation of powers principle forbids the NPA from controlling the entire process.
While the Court recognised the importance of prosecutorial independence, it found that prosecutorial independence does not license the NPA to exercise powers beyond its ambit of authority. The NPA possesses broad powers over prosecutorial proceedings, which cover much of the domestic stage of outgoing extraditions. As a domestic state organ, however, it cannot represent South Africa at a state-to-state level. Therefore, although the final authority to make outgoing extradition requests could affect domestic prosecutions, the Court found that the NPA cannot exercise the external sovereignty inherent in such requests.
Regarding the national Executive’s authority, the Court found that as the state organ clothed with the duty to exercise external sovereignty on behalf of the Republic, it is the appropriate functionary to make extradition requests to foreign states. The Executive cannot merely participate in the issuance of outgoing extradition by playing an administrative role akin to that of a “conduit” – it must apply its mind to the extradition request and exercise a concomitant discretion. The Court, however, held that the Supreme Court of Appeal erred by concluding that only the Minister of Justice can make outgoing extradition requests. That power is vested within the national Executive broadly.
Therefore, the Court concluded that in the case of Ms Cholota, the DPP did not have the power to make a request for her extradition. To the extent that the Bloemfontein High Court found that her extradition was, for this reason, irregular and unlawful, it was correct.
The Court next considered the status of the U.S. court order. The DPP argued that because Ms Cholota was extradited pursuant to an unchallenged U.S. court order, South African courts could not impugn that extradition. The Court found that argument to be misconceived. Ms Cholota challenged acts of South African officials in requesting her extradition, not the conduct of U.S. officials. South African courts are empowered to examine the lawfulness of the exercise of public power by South African officials, and the U.S. court order does not preclude such examination.
The Court next had to determine whether, despite the unlawfulness of her extradition, the Bloemfontein High Court nonetheless had jurisdiction over Ms Cholota. The Bloemfontein High Court’s sole basis for declining to exercise criminal jurisdiction was that Ms Cholota’s extradition was requested by the incorrect state functionary. It relied on S v Ebrahim for the principle that “if there were unlawful or improper conduct on the part of the organs or the functionaries of the South African State in foreign territory aimed at securing the presence of an accused in South Africa, the South African Courts are precluded from trying anyone for crimes committed within its borders”.
The Court found that there could be no doubt that the Ebrahim principle remains an important feature of South African law. The rule of law and the constitutional guarantee of procedural fairness in criminal cases must be jealously guarded. However, following a survey of foreign jurisprudence which considered the Ebrahim judgment, the Court found that, while Ebrahim established an important precedent, it does not mean that any irregularity in extradition proceedings, no matter how insignificant, should result in a court declining to exercise its criminal jurisdiction. Such reasoning is not supported by the facts of Ebrahim, and would not strike an appropriate balance between the concern for lawful process and the imperative to combat impunity. A court is only divested of its criminal jurisdiction in cases where the exercise thereof would bring the administration of justice into disrepute.
The Court found that in the Cholota case, the Bloemfontein High Court failed to recognise that Ms Cholota’s case differed from the facts in Ebrahim in material respects. Importantly, the NPA operated under the bona fide assumption that it had the necessary authority to request extradition. It was only after the delivery of the Supreme Court of Appeal’s judgment in Schultz that the NPA had to grapple with the question of whether it had authority to do so. There was no suggestion that, had the Executive and the NPA been aware of the correct legal position, Ms Cholota’s extradition would not have been requested correctly. Consequently, the Bloemfontein High Court erred in declining to exercise its jurisdiction over Ms Cholota on the sole basis that her extradition was requested by the NPA. For this reason, the appeal had to succeed.
In the Schultz matter, the applicants sought condonation for the late filing of their application for leave to appeal. The Court held that condonation is not there for the taking. The applicants filed their application for leave to appeal approximately three months after the 15-day deadline period prescribed by the Rules of the Constitutional Court had lapsed. A three-month delay is substantial, and the Court found that it had refused condonation for shorter delays in the past.
The Court found that the explanation for the delay proffered by the applicants left much to be desired. They blamed most of the delay on their misunderstanding that the Department of Justice and Constitutional Development intended to launch an appeal, and on difficulties they had in briefing counsel, given the State Attorney’s cumbersome briefing policy.
The Court found that neither of these reasons was satisfactory. A litigant cannot escape the obligation to comply with the Court’s rules on the mere allegation that it thought another cited party would lodge an appeal. The applicants abandoned their appeal in respect of the merits and instead only sought an order limiting the retrospective effect of the judgment of the Supreme Court of Appeal. The judgment, they argued, would result in catastrophic consequences for the administration of justice, as it potentially provides a basis for persons whose extraditions had previously been requested by the NPA to challenge and invalidate such extradition requests. This was the ground on which the NPA based its argument that the importance of the issue warranted granting condonation.
The Court found that, on the Ebrahim principle as articulated, a court ought not to decline to exercise its criminal jurisdiction on the sole basis that the accused’s extradition request was authorised by the NPA and not the Executive authority. This principle would hold true for any extradition request already made. Accordingly, even without the relief sought by the applicants to limit the retrospectivity of the Supreme Court of Appeal’s judgment, the harm they feared to the administration of justice is largely, if not completely, ameliorated. Accordingly, the NPA could not slip past the requirement of condonation by relying on the importance of the issue. Thus, condonation had to be refused and the application for leave to appeal had to fail on that basis..
The Full judgment here