|This case concerned the Constitutional Court’s amplified jurisdiction to hear cases that do not raise a constitutional issue in the context of an application for leave to appeal premised on a contractual dispute.
Factually the case concerned a dispute around the right of pre-emption envisaged in the lease agreement between the respective parties.
The pre-emptive right, as per the lease agreement, provided the lessee a 30 day period in which the right should be exercised, and at the heart of the dispute was the exact date at which this 30 day period began to run.
By way of judicial history, the dispute was heard in both the High Court and the SCA, culminating in the present application for leave to appeal to the Constitutional Court. The applicant (“Tiekiedraai”), brought the application in terms of the Constitutional Court’s amplified jurisdiction in terms of S167(b)(ii) of The Constitution of the Republic of South Africa (as amended by the Constitution Seventieth Amendment Act of 2012).
However, the argument raised by the applicant, in an attempt to pass the test for leave to appeal established for the court’s amplified jurisdiction, had not been raised by them in the court a quo, nor in the SCA on appeal. This led the Constitutional Court to traverse the legal principles applicable to its amplified jurisdiction and expand on those principles in the manner detailed below
|The Constitutional Court reiterated that the locus classicus on its amplified jurisdiction was the case of Paulsen v Slip Knot Investments 777 (Pty) Ltd 2015 (5) BCLR 509 (CC). According to the aforegoing case the test for leave to appeal in instances where no constitutional issues are present is the existence of an arguable point of law of general public importance which ought to be considered by the court.
In the present case, the Constitutional court expanded on the requirements laid down in the Paulsen case and held that the correct interpretation of the test entailed the existence of an arguable point of law, that such point of law is of public importance and that the interests of justice require the court to entertain such arguable points of law in that specific case.
The court held further that incidental to the interests of justice requirement is the requirement that the arguable point of law sought to be relied on by the applicant must have been raised in the litigation preceding the application for leave to appeal to the Constitutional Court.
The court’s rationale for the aforegoing was that the interests of justice are not served by the apex court sitting as the court of first and last instance, and that policy dictates that the issues should be fully considered and argued before they are placed before the Constitutional Court as a “super-appeal” court.
Therefore, when the court applied the test for leave to appeal to the facts of the present case the court held that the application failed on two heads. In the first instance the interpretation of the right of pre-emption in the present contract was not of general public intertest but rather restricted to the interests of the parties to the contract. In the second instance the failure to argue the alleged arguable points of law before the high court and the SCA meant that the interests of justice would not be served by the court granting leave to appeal despite the merit behind the points of law raised by the applicant in this matter.
|This case appears to develop on the principles laid down in the Paulsen case in relation to the test applied in instances when the Constitutional Court is asked to act as a court of appeal in the absence of a clear constitutional issue.
It is evident from this judgment that the portion of the test which states that “the court ought to hear the matter” translates into a requirement that the interests of justice must be served by the court hearing the appeal.
Further to the above, is that an applicant can only show that the interests of justice require the court to consider the matter as a court of appeal if they have raised the arguable points of law which they seek to rely on in the lower courts.
Lastly this case serves as authority for the position that a litigant seeking leave to appeal to the Constitutional court, by virtue of the court’s extended jurisdiction, is incapable of raising the purported arguable points of law for the first time in the application for leave to appeal to the Constitutional Court.
Written by Sethu Khumalo and supervised by Omphile Boikanyo