Democratic Alliance v President of RSA

Full bench of the High Court considered the formidable appeal threshold which now exists in sec 17(1)(a) of the Superior Courts Act 10 of 2013 and that before concluding that there are prospects of success of appeal there must be a sound and rational basis for granting such leave. Leave to appeal is not simply there for the taking. Alternatively there needs to be a compelling reason and whether issues of significant public importance are raised in the matter before the court.

Essence

A full bench of the High Court refused leave to appeal and stressed the formidable appeal threshold that now exists given the change of wording from ‘might’ to ‘would’ come to a different conclusion.

Decision

(21424/2020) [2020] ZAGPPHC 326 (29 July 2020)

Order:

Refused leave to appeal with costs, including costs of two counsel.

Judges

Court (Mlambo JP, Davis JP and Molefe J)

Reasons

‘[21] But what is the compelling reason which was raised? It cannot be that there is a contradictory judgment for there is none. The argument of the existence of a compelling reason dissolves upon a careful examination of Mr Cockrell’s submissions. He submitted that the real issue was that this Court had ordered that the Minister “must” take account of impugned criteria, whereas there would not have been such a difficulty if the court had merely said that the Minister “may” take account of the impugned criteria. What this effectively means is that if the Minister decided to exercise a discretion to take account of the impugned criteria (given the use of the word’ may’) and assuming that the criteria were rationally calibrated to the purpose of the funds, there would be no objection thereto. The difference therefore between the outcome of the ‘may’ and the ‘must’ in these circumstances poses its own question as to where the compelling importance might lie. As we have indicated earlier, absent regulations which would show the extent to which the Minister attributes importance to the various impugned criteria in the regulations so promulgated, it is impossible to evaluate whether these regulations would pass legal muster. In short, there is nothing of such compelling importance in the judgment granted by this Court to justify the conclusion that there is a compelling reason to grant leave to appeal.”

Quotations from judgment

Note: Footnotes omitted and emphasis added