Automatic appeal rights: SCA s 18(4) explained

Note: Footnotes omitted, emphasis added and certain personal details redacted to comply with law.

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[20] A general principle of statutory interpretation is that the words used in a statute should be understood in their normal grammatical sense unless this would lead to an absurd result.
In Cool Ideas 1186 CC v Hubbard and Another (Cool Ideas), [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) para 28 the Constitutional Court added three additional principles to this general rule. Firstly, statutes should be interpreted purposively. Secondly, the relevant statutory provision must be properly contextualized, and lastly, all statutes must be construed consistently with the Constitution. These three principles serve to guide the interpretation of statutes and ensure that the law is applied in a manner that aligns with the intended purpose and constitutional principles.

[21] Section 18(4) of the Act establishes a distinct provision that establishes a unique category of appeals, specifically designed to be utilized solely for orders made under s 18(3) of the Act. This provision carves out a specific and extraordinary avenue for appeals in exceptional circumstances, especially when it can be proved that irreparable harm would follow if the operation and execution of a decision is suspended. The provision enhances access to court on appeal by guaranteeing one automatic appeal, bypassing the typical screening process outlined in the general provisions of ss 16 and 17 of the Act. The purpose is to streamline and facilitate access to courts for these specific appeals, providing a more efficient and expedited avenue for seeking redress without infringing the s 34 Constitutional right of access to courts.

[22] We endorse Navsa JA’s obiter viewpoint in Ntlemeza v Helen Suzman Foundation,[2017] ZASCA 93; [2017] 3 All SA 589 (SCA); 2017 (5) SA 402 (SCA) para 24  that s 18(4) of the Act specifically allows for a single automatic right appeal indicating that multiple appeals are not permitted under the section. He expressed it as follows:

‘Understandably, because it is such a dramatic change, only one appeal to the “next highest court” is permissible. No further appeal beyond this court appears competent – for present purposes it is not necessary to decide this point.’

[23] The language of s 18(4)(ii) is explicit and straightforward.

As held [per MJD Wallis JA] in Natal Joint Municipal Pension Fund v Endumeni Municipality, [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) para 18

‘the inevitable point of departure is the language of the provision itself’. The provision in plain language states that a party who is aggrieved has an automatic right of appeal to the ‘next highest court’ (Own emphasis.) The use of the words ‘an’ and ‘court’ implies a singular meaning, indicating a restriction on further appeals. Considering the language, context, and purpose of the provision, the clear wording does not support a broader interpretation to support the appellant’s interpretation.”

[24] The Constitutional Court [per L Ackermann J] in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others, 2000 (2) SA 1; 2000 (1) BCLR 39 para 65-66 held that when determining whether words should be severed from a provision or added to it, the court takes into consideration two important factors. First, it focuses on ensuring that the resulting provision, after the severance or addition of words, aligns with the Constitution and its fundamental values. Second, the court aims to minimize any interference with the laws established by the legislature. This means that the court strives to maintain consistency with the Constitution while also respecting the legislative intent as much as possible.

[25] The Municipality contends that the fundamental right to access to courts in s 34 of the Constitution entails an automatic right of access to all appeal courts.

In National Union of Metal Workers of SA and Others v Fry’s Metal [2005] ZASCA 39; [2005] 3 All SA 318 (SCA) at para 29 this Court [per L Mpati DP and Edwin  Cameron JA] held that s 34 of the Constitution does not explicitly provide for a right of appeal. Unlike s 35(3)(o) of the Constitution, which specifically includes a right of appeal or review for accused persons in their right to a fair trial, the court explained that s 34 does not inherently imply the same right. The Court stated that even if it did, any such right could be subject to reasonable limitations and justifiable restrictions.

Moreover, the principle of legality applies to all court decisions, allowing them to be constitutionally reviewed. Therefore, it cannot be said that the court’s general appellate jurisdiction automatically extends to the appealability of all justiciable rights.”

Flynote:

Civil Procedure – Section 18(4) of the Superior Courts Act 10 of 2013 (the Act) – interpretation of the ‘next highest court’ – whether the appellant has a second right to an automatic appeal to approach the next highest court in terms of s 18(4) of the Act where a full court has already heard an appeal in terms of s 18(4) of the Act – whether the notice of appeal is irregular and the appeal void.

Summary: