Case   CCT182/20
[2022] ZACC 40

Hearing Date: 25  November 2021

Judgement Date: 29 November 2022

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 Tuesday, 29 November 2022, the Constitutional Court handed down a judgment of an application brought by Mr Justice Nhlanhla Lebea (applicant) against Mr Sango Menye (Mr Menye) and the MEC for Public Works and Infrastructure, Free State (MEC).

The application relates to a dispute between the applicant and Mr Menye about whether or not the applicant should be granted leave to intervene in proceedings between Mr Menye and the MEC in order to appeal against a certain adverse credibility finding that was made by the Magistrates’ Court, Bloemfontein in a judgment in those proceedings.

Mr Menye worked for the Free State Department of Public Works and Infrastructure (DPWI) as the Director: Supply Chain Management. He was charged with misconduct and faced a disciplinary hearing. The applicant is an attorney. He was hired by the DPWI to lead evidence on behalf of the DPWI in the disciplinary enquiry. At some stage of the disciplinary proceedings, according to Mr Menye and his lawyers, the applicant told Mr Menye’s lawyers that the Head of Department of the DPWI had undertaken to pay Mr Menye’s legal costs arising from a certain postponement of the disciplinary proceedings. Later the DPWI refused to pay such costs and said that it had not made any undertaking. Mr Menye then sued the DPWI for such costs on the basis of the representation allegedly made by the applicant. In the subsequent trial relating to the legal costs, the applicant gave evidence and denied that he had made the alleged representation. Mr Menye’s attorney and advocate testified and said the applicant had made the representation. The Magistrates’ Court found that the applicant had lied to Mr Menye’s lawyers by saying that the Head of Department of DPWI had undertaken to pay Mr Menye’s legal costs for the postponement. The Magistrates’ Court, nevertheless, concluded that the MEC was bound to pay Mr Menye’s legal costs. It ordered the MEC to pay.

The applicant later brought an application in the Magistrates’ Court in terms of Rule 28 for leave to intervene in the proceedings so that he could challenge the adverse finding on appeal.

The court dismissed his application on the basis that, as he was only a witness in the matter and the order of the court did not adversely affect him, he had no direct and substantial interest in the matter and that, for that reason, it would not grant him leave to intervene. His appeal to the High Court, Bloemfontein, failed for the same reason. He then applied to this Court for leave to appeal. Mr Menye opposed the applications and appeals in all the courts.

The Constitutional Court has refused the applicant’s application for leave to appeal for the same reason given by the High Court and the Magistrates’ Court. That is that he does not have a direct and substantial interest in the matter between Mr Menye and the MEC for DPWI, Free State as the order does not affect him. The order that was made in the matter between Mr Menye and the MEC was that the MEC should pay Mr Menye’s legal costs for the postponement. It said the applicant had made the representation but he should not have made it. It said that the Head of Department was bound by the representation because the applicant was his agent.

The Constitutional Court acknowledged that an adverse credibility finding against a witness affects the witness’ right to human dignity and ordinarily any person whose constitutional right is adversely affected by anyone’s statement should have recourse to the courts. That notwithstanding, the Constitutional Court concluded that there would simply be too many challenges that would arise in our legal system if it allowed a witness to intervene in other parties’ proceedings in order to challenge adverse credibility findings made against them. One of the challenges is that to allow a witness to do so may unduly prolong litigation with the attendant costs. The court said that this is a problem that should receive the attention of Parliament in order to see what legislative intervention it can make to come to the assistance of people in the applicant’s position.

The Constitutional Court refused leave to appeal with costs.

The Full judgment  here