|In casu, this was application for reinstatement of a municipal official that claimed they had been unlawfully removed.
The abovementioned application was granted by a single judge of the High Court, siting as the court a quo, but the aforementioned application was not what the present court was called to adjudicate. Instead, the present court had to decide whether the appeal from the High Court lay with a full bench of the High Court or the Supreme court of Appeal (SCA).
The parties made submission pertaining to which court was the “next highest court” and the appropriate forum for the appeal to be heard in. Consequently, the court in the present matter traversed the law in relation to appeals from the high court in instances whereby leave to appeal has been granted for a judgment of the high court, delivered by a single judge.
|In its ratio the court held that the legal principles pertaining to an appeal from the judgment of a single judge are envisaged in section 17(6)(a) of the Superior Court Act (“the Act”).
The abovementioned provision of the Act holds as follows;
“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 SCA of the decision, in which case they must direct that the appeal be heard by the SCA
The court held that the abovementioned section of the Act mirrored its predecessor in the old Supreme Court Act, which was repealed and replaced by the Superior Court Act.
The court concluded that apart from the instances envisaged in S17(6)(a)(i) and (ii), or where the matter is complex or novel in nature, appeals from a single judge in the High court must be directed to the full bench of that division.
|This case appears to deal with the concept of “forum shopping” when seeking to lodge an appeal from a high court judgment delivered by a single judge.
What is evident from this judgment (and many others dealing with this procedural aspect of appeals from the High Court) is that our courts will not allow a litigant to bypass the full court and have an appeal heard in the SCA unless there exist compelling reasons in law.
Further to the above, it would appear that the court indirectly spoke to the discretion of the judge(s) granting leave to appeal in relation to which court should hear an appeal in the abovementioned circumstances. In respect of the aforegoing, it appears as if the court in this matter interpreted S17(6)(a) to be prescriptive, thus limiting the discretion of judges granting leave to appeal in deciding which forum should hear the appeal.
Consequently, when a litigant seeks to take a judgment, delivered by a single judge of the High Court on appeal to the SCA, they must discharge the onus placed on them and prove that their appeal relates to either an important question of law, a matter which is complex or novel, or that the interest of justice render the case one which warrants the attention of the SCA.
Written by Sethu Khumalo and supervised by Omphile Boikanyo