National Credit Regulator v Lewis Stores (Pty) Ltd   

Appealing with leave considered by SCA and appeal from the decision of a high court under s 148(2)(b) lies with leave of that court sitting as a court of first instance.

“For those reasons I conclude that an appeal from the decision of a high court under s 148(2)(b), whether constituted of a single judge, or two judges, or as a full court, lies with leave of that court sitting as a court of first instance. Such leave should be sought in terms of s 16(1)(a) of the SC Act and not by way of an application for special leave to appeal from this court.” [para 56]

Essence

Appealing with leave or applying for special leave considered by the SCA and issue of whether the high court sitting as court of first instance or not.

Decision

(SCA 937/18) [2019] ZASCA 190 (13 December 2019).

Disallowed the appeal with costs.

Judges

Wallis JA (Nicholls and Dlodlo JJA and Eksteen and Hughes AJJA concurring)

Heard: 11 November 2019

Delivered: 13 December 2019

Reasons

“. . . .  This judgment deals with the question whether the procedure followed to bring this case before this court was correct. It came before us by way of special leave to appeal granted by this court in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013 (the SC Act). In the course of preparation for the appeal it transpired that in previous cases involving appeals to this court against decisions of the high court under s 148(2)(b) of the NCA inconsistent approaches to obtaining leave to appeal had been followed. In Barko the appeal was brought on the basis of leave granted by the high court under s 16(1)(a) of the SC Act, but in NCR v SAFPS special leave to appeal under s 16(1)(b) of the SC Act was sought and granted. It is desirable to resolve this issue and determine whether it affects the appeal.” [para 38]

Court summary

‘National Credit Act, 34 of 2005 (NCA) – interpretation – sections 100, 101(1)(a) and 102(1) – cost of credit – extended warranties in respect of goods sold not void by virtue of incomplete or inaccurate testimonial of agreement – charging subscriptions to Lewis Family Club not cost of credit – nature of proceedings before National Consumer Tribunal – appeal to high court in terms of s 148(2)(b) of NCA – high court sitting as court of first instance – leave to appeal to SCA in terms of s 16(1)(a) of Superior Courts Act 10 of 2013.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

Wallis JA (Nicholls and Dlodlo JJA and Eksteen and Hughes AJJA concurring):

[38] I have read the judgment prepared by my colleague Eksteen AJA on the merits of this appeal and concur in the judgment and the outcome.

This judgment deals with the question whether the procedure followed to bring this case before this court was correct.

It came before us by way of special leave to appeal granted by this court in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013 (the SC Act). In the course of preparation for the appeal it transpired that in previous cases involving appeals to this court against decisions of the high court under s 148(2)(b) of the NCA inconsistent approaches to obtaining leave to appeal had been followed. In Barko the appeal was brought on the basis of leave granted by the high court under s 16(1)(a) of the SC Act, but in NCR v SAFPS special leave to appeal under s 16(1)(b) of the SC Act was sought and granted. It is desirable to resolve this issue and determine whether it affects the appeal.

[39] Section 16(1) of the SC Act reads as follows:

‘(1) 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 issued 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’.

[40] Under ss 17(1) and (2) of the SC Act, the judge or judges who heard the case at first instance may grant leave to appeal, if they are of the opinion that the appeal would have reasonable prospects of success, or that there is some other compelling reason why the appeal should be heard. If the first instance court refuses leave to appeal it may be sought from the SCA, where two judges appointed by the President of the SCA consider the application. If special leave is required in terms of s 16(1)(b), an application must be made to the SCA in terms of s 17(3) of the SC Act for the grant of such leave. Special leave imposes a more stringent test for the grant of leave to appeal. There must be both reasonable prospects of success and compelling circumstances justifying the grant of special leave.

[41] The NCA provides, in s 148(2) that a participant in a hearing before a full panel of the National Consumer Tribunal may:

‘(a) apply to the High Court to review the decision of the Tribunal in that matter;
(b) appeal to the High Court against the decision of the Tribunal in that matter, other than a decision in terms of section 138 or section 69(2) or 73 of the Consumer Protection Act, 2008, as the case may be.’

The decision of the Tribunal in issue in this case is not one that is excluded from the right of appeal.

[42] The Tribunal is not a court or part of the judicial system set out in s 166 of the Constitution. It does not exercise judicial authority in terms of s 165 of the Constitution. Instead it is an independent and impartial tribunal of the kind contemplated in s 34 of the Constitution. While its role generally is one of adjudication, it is nonetheless a body of an administrative nature in the same way as the CCMA is an administrative body. As such its proceedings are subject to judicial review and this is recognised in s 148(1)(a).

[43] Within the framework of the judicial system, a decision by a court on appeal to it within the meaning of s 16(1)(b) of the SC Act is either an appeal from a magistrates’ court or an appeal from a high court sitting at first instance.

The question raised by this case is whether such appeals are the only appeals with which s 16(1)(b) is concerned, or whether it applies equally to statutory appeals from persons, bodies or tribunals falling outside the judicial system.

[44] Statutes other than the NCA provide for appeals to the high court from decisions of administrative bodies or officials. There is a diverse range of such provisions. One instance is the appeal against decisions made by the registrar under s 33 of the Registration of Copyright in Cinematographic Films Act 62 of 1977. The statute provides that an appeal to the high court lies against a decision by the registrar. Other statutes have similar provisions. Under s 20 of the Health Professions Council Act 56 of 1974 an appeal lies to the high court against the decision of the Health Professions Council, a professional board or a disciplinary appeal committee. Under s 24(1) of the Pharmacy Act 53 of 1974 there is a similar right of appeal to the high court against any decision by the South African Pharmacy Council. The decisions thus rendered subject to appeal range from registration issues to disciplinary matters. By no means all are issues of law.

[45] When magistrates conduct enquiries in terms of s 9, read with ss 10 or 12, of the Extradition Act 67 of 1962, they are acting in an administrative capacity. Their decision is confined to whether the person concerned is liable to extradition, after which the decision on extradition itself is that of the Minister. In terms of s 13 of the Act the decision of the magistrate is appealable to the high court having jurisdiction. As the magistrate was not sitting as a court this is not the same as an appeal, whether civil or criminal, from a magistrates’ court to the high court.

[46] A further example, in what cannot purport to be a comprehensive survey, is provided by s 21(1) of the Films and Publications Act 65 of 1996, which provides that if the Review Board classifies a film as XX or X18, the publisher or distributor, or person who applied for its classification, may appeal to the high court against the decision. The court’s decision on the issue of classification is then deemed to be a decision by the Film and Publication Board. This is a decision of a purely administrative nature. So is the decision of the Air Services Licensing Council to grant or refuse a licence to a prospective air services provider in terms of s 16 of the Air Services Licensing Act 115 of 1990. However, it too is the subject of an appeal to the High Court in terms of s 25 of that Act.

[47] Some statutes are alive to problems that may arise from granting an appeal directly to the high court and address this specifically. Thus under the Patents Act 57 of 1978 decisions by the registrar are appealable to a Commissioner of Patents and, under s 76, decisions of the Commissioner are appealable to the court. Under s 29 of the Copyright Act 98 of 1978, the Commissioner of Patents is also the Copyright Tribunal and decisions by the Commissioner are likewise appealable to the court.

However, both statutes provide that the appeal is to be noted and prosecuted ‘in the manner prescribed by law for appeals against a civil order or decision of a single judge’. The appeal accordingly starts on the footing that it is dealt with from a procedural perspective as if the Commissioner were a court. That is not surprising given that the Commissioner is a judge or acting judge of the high court. By way of contrast under s 42 of the Designs Act 195 of 1993 a decision by the registrar is appealable to the court and the registrar’s decision is deemed to be an order or judgment of a magistrate.

[48] There does not appear to be any authority on the meaning to be accorded the words ‘given on appeal to it’ in terms of s 16(1)(b) or to whether any of these various kinds of appeals fall within those words or are treated when they come before the high court as being heard by a court of first instance. The same words appeared in s 20(4) of the Supreme Court Act 59 of 1959, the predecessor of the SC Act. It read:

‘No appeal shall lie against a judgment or order of the court of a provincial or local division in any civil proceedings or against any judgment or order of that court given on appeal to it except—
(a) in the case of a judgment or order given in any civil proceedings by the full court of such division on appeal to it in terms of subsection (3), with the special leave of the appellate division;
(b) in any other case, with the leave of the court against whose judgment or order the appeal is to be made or, where such leave has been refused, with the leave of the appellate division.’

[49] This provision confined the need to obtain special leave to appeal under sub-sec (a) to cases of an appeal to the full court against a decision by the high court. Statutory appeals did not fall under this section and accordingly, even if they were heard by the full court, that court was entitled to grant leave to appeal to this court under sub-sec (b). For that reason the appeal to this court in De Beer proceeded with the leave of the high court that had determined the appeal from the Medical and Dental Council under s 20 of Act 56 of 1974.

[50] In principle there are a number of reasons why s 16(1)(b) of the SC Act should be confined to applications for leave to appeal against decisions by the high court given on appeal to it from other courts within the judicial system, that is, the magistrates’ courts and full bench appeals from the high court sitting at first instance. The first is that there is a fundamental difference between an appeal from a court and an appeal from a body outside the judicial system. The latter may be an administrative tribunal, or a board or official dealing with purely administrative matters, where the decision in question may have little or no legal content, but may be a matter of administrative discretion.

The ‘appeal’ brings it before the court for the first time. By contrast, once a matter has been heard by a court of first instance and the dissatisfied party has exercised a right of appeal, the right to a further appeal should depend not only on the question whether there are reasonable prospects of success, but also on the existence of some compelling circumstances warranting a further appeal. The reason for such a limitation lies in the principle that there should be finality in litigation. Accordingly the law places a limit on the number of appeals that may be pursued within the court system and empowers appellate courts to regulate the cases that come to them by way of provisions requiring leave to appeal from those courts.

[51] The second point of principle lies in the fact that an appeal within the justice system is a clearly defined process, whereby the correctness of the decision of the court appealed from is assessed within defined boundaries. The appeal proceeds on the record of the proceedings in the lower court and the factual findings of that court and its exercise of discretion in reaching its decision are given respect and only departed from on limited grounds. That is by no means true of statutory appeals from tribunals and officials.

[52] The first issue in a statutory appeal is to ascertain the nature of the right of appeal conferred by the statute. In determining that question courts follow the taxonomy laid down by Trollip J in Tikly v Johannes. Broadly speaking there are three possibilities.

  • The appeal may be a complete rehearing and fresh determination of the subject of the appeal.
  • It may be an appeal in the conventional sense of a rehearing on the merits, but on the same evidence and information as was before the original decision-maker, subject to the limitation inherent in the decision-maker not necessarily being in the same situation as a court of record.
  • Thirdly the appeal may be a review, involving a limited rehearing, with or without additional information and evidence, to examine not the merits of the decision, but the manner in which it was arrived at.

Unlike appeals within the judicial system therefore statutory appeals may have a widely varying nature and involve different types of hearing.

[53] The third point concerns the nature of a statutory appeal and the terms in which the right of appeal is granted. These may, when properly construed, mean that the appeal to the high court is final and not subject to any further appeal at all. That may especially be the case when the statute provides that the decision by the court will stand in the place of or be deemed to be the decision of the original decision-maker. If the appeal to the high court is taken to result in a decision by that court given on appeal to it there will be conflict between the statute conferring the right of appeal and the SC Act. That is manifestly undesirable.

[54] The fourth point is that it is almost inevitable, as recognised expressly in s 148(2)(a) of the NCA, that the decisions of statutory bodies and officials in these matters will constitute administrative action and be subject to judicial review under the provisions of PAJA. Such proceedings are conventionally pursued in the high court before a single judge sitting at first instance. That judge will deal with the question of leave to appeal against the judgment and may direct that it be heard before either a full court or this court, depending on the nature and complexity of the issues raised. It seems anomalous that, if the dissatisfied party was content to proceed by way of an appeal on the record of the administrative decision-maker, any appeal flowing from the judgment would require special leave to appeal from this court, when common experience teaches that there may be considerable overlap between appeal and review grounds.

[55] Finally, I revert to the point made earlier that the test for granting special leave to appeal is more stringent than the test for leave to appeal, Given the fact that restrictions on the right of appeal have been held by the Constitutional Court to constitute a limitation on the right of access to courts under s 34 of the Constitution, it seems to me that we should prefer an interpretation of s 16(1)(b) that least restricts the ability of a disappointed litigant to seek relief by way of an appeal within the justice system.

[56] For those reasons I conclude that an appeal from the decision of a high court under s 148(2)(b), whether constituted of a single judge, or two judges, or as a full court, lies with leave of that court sitting as a court of first instance. Such leave should be sought in terms of s 16(1)(a) of the SC Act and not by way of an application for special leave to appeal from this court.

[57] That leaves the disposal of this appeal. The parties were understandably anxious that having come this far they should receive a judgment on the merits. They came in good faith having received special leave to appeal from this court, without any query being raised as to the correctness of that approach until shortly before the hearing. To strike the appeal from the roll only for them to retrace their steps through the high court and, if refused leave, back to this court, but against a lesser standard for the grant of leave to appeal, would be a gross technicality and waste of resources. Even more so would be a repeat hearing of an issue that has been fully argued.

[58] It seems to me that this constitutes special circumstances in which the court can in the exercise of its inherent jurisdiction to regulate its own procedure condone the irregular manner in which this appeal reached us. There are clear indications in the high court’s judgment that, had leave to appeal been sought from it, the application for leave would have been dismissed. Inevitably that would have led to an application for leave to appeal to this court and, given that an application for special leave was granted, the conclusion must be that ordinary leave would have been granted.

Accordingly in the special circumstances of this case, which will not be repeated, because the issue of the proper approach to the application of s 16(1)(b) will be resolved by this judgment, the appeal should be dealt with on its merits in accordance with the judgment of Eksteen AJA.