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The "next highest court"

July 2017

South Africa

Without Prejudice
On 10 November 2016, the full bench of the High Court of South Africa, Gauteng Division, Pretoria in the case of the Member of the Executive Council for Co-Operative Governance, Human Settlements and Traditional Affairs & 43 Others v Mogalakwena Local Municipality & Another, High Court of South Africa, Gauteng Division, Pretoria, Case Number 89657/2014, held that the "next highest court" referred to in section 18(4)(ii) of the Superior Courts Act (10 of 2013) is, in this instance, the full bench of the Gauteng Division.

In the case at hand, a dispute between the parties involved whether the next highest court in terms of section 18(4) was the Supreme Court of Appeal or a full bench of that court, in the case where a single judge in that court has heard the matter. The court invited the respective parties to file supplementary written submissions on the point. 

Ranchod J, writing for the unanimous court (full bench), stated that the starting point in construing any piece of legislation or a section or a phrase, is the text itself, which must be read with the statute and its subject. The court quoted the "golden rule", as stated in Venter v R 1907 TS 910, that you need to look at the intention of the legislature. This was achieved by taking the "language of the instrument, or of the relevant portion of the instrument, as a whole; and, when the words are clear and unambiguous, to place upon them their grammatical construction and give them their ordinary effect". 

The court noted that there are certain instances when giving the ordinary meaning to the words in the statute would lead to absurdity never envisaged by the legislature or where giving the words their ordinary meaning would lead to a result that is contrary to the intention of the legislature. In these instances the court may depart from the ordinary meaning to the extent necessary to remove the absurdity and give effect to the true intention of what the legislature intended. 

Ranchod J looked at sections 16(1)(a) and (b), as well as section 17(6)(a) of the Act, where the phrase "next highest court" is to be found. In terms of sections 16(1)(a) and (b), it provides: 

"subject to section 15(1), the Constitution and any other law – 

(a) An appeal against any decision of a Division as a court of first instance lies, upon leave having been granted – 

(i) If the court consisted of a single judge, either to the Supreme Court of Appeal or to a full court of that Division, depending on the direction in terms of section 17(6); or 
(ii) If the court consisted of more than one judge, to the Supreme Court of Appeal

(b) An appeal against any decision of a Division on appeal to it, lies to the Supreme Court of Appeal upon special leave having been granted by the Supreme Court of Appeal";
(emphasis added by the court). 

Section 17(6)(a) provides: 

"(a) If leave is granted under subsection (2)(a) or (b) to appeal against a decision of a Division as a court of first instance consisting of a single judge, the judge or judges granting leave must direct that the appeal be heard by a full court of that Division, unless they consider – 

(i) that the decision to be appealed involves a question of law of importance, whether because of its general application or otherwise, or in respect of which a decision of the Supreme Court of Appeal is required to resolve differences of opinion; or 
(ii) that the administration of justice, either generally or in the particular case, requires consideration by the Supreme Court of Appeal of the decision, in which case they must direct that the appeal be heard by the Supreme Court of Appeal." 
(emphasis added by the court). 

Ranchod J then went on to consider the Act's predecessor, the Supreme Court Act (59 of 1959) (the previous Act). In the case of MTN Service Provider (Pty) Ltd v Afro Call (Pty) Ltd 2007 (6) SA 620 (SCA), it was held that section 20(2) of the previous Act, makes it clear that the primary court of appeal from a single judge of a high court lies to the full court – unless the questions of law or fact or other considerations that are involved, dictate that the matter should be decided by the Supreme Court of Appeal. Therefore, section 17(6)(a) follows the same principle as stated in the MTN Service Provider case of section 20(2) of the previous Act and Ranchod J stated that it is still applicable. 

The use of the words "must" and "unless" are a further indications of the intention of the legislature that in the event of an appeal against a decision of a single judge, the next highest court is the full court of that Division. However, one must have regard to the default position which can be changed when the circumstances in sub-sections 17(6)(a)(i) and (ii) are applicable. 

The court noted that both the Act, and the previous Act, are silent in the instance where a party has an automatic right of appeal, except as is provided for in terms of section 18(4)(ii) of the Act. The court stated that in cases where there is an automatic right of appeal, the provisions of the Act must be considered and there is no mechanism to change the default position. It follows, therefore, that there is no reason to differentiate between an automatic right to appeal and where leave to appeal is required. When one has regard to the context of section 18(4), it is clear that it dictates that an appeal must be from a single judge to a full court of the same Division as is required by section 17(6)(a), which is the next highest court. Therefore, it follows that where an order in terms of section 18(1) is granted by the decision of a court constituted by more than one judge, an automatic right of appeal lies with the Supreme Court of Appeal, being the next highest court.

It is clear from the judgement of Ranchod J that the phrase "next highest court" used in the Act, when used in the case of a single judge, means the full bench of that Division. 

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