“The reversal of the decision not to appeal happened within a very short period of three days, unlike in SANDU where there was a lapse of two weeks and the peremptor was nevertheless allowed to appeal. The central feature of this case is the mother of all historical and stubbornly persistent problems in our country: undisguised racism. This, coupled with this Court’s constitutional duty to help entrench the values of equality, non-racialism and human dignity, demand that this application be appealable in the interests of justice. And the issue central to this dispute requires the attention of the highest Court in the land, at such a time as this. . . . . .” [para 39].
South African Revenue Service v CCMA (CCT19/16) [2016] ZACC 38 (8 November 2016) per Mogoeng CJ (Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J concurring):
Excerpts without footnotes
Peremption
[24] After the challenge to Mr Kruger’s dismissal had been upheld by the CCMA, the Labour Court and the LAC, SARS’ attorneys, apparently on instructions from their client, informed Mr Kruger that SARS would not lodge an appeal against the order of the LAC[1] that was in his favour. He was also advised to consult with a certain SARS official to make arrangements for his return to work. Three days later, he was informed of the reversal of the decision not to appeal and that he should no longer return to work. Based on these developments, Mr Kruger contends that peremption has taken place.
[25] The first question that arises here is whether SARS deliberately and undoubtedly abandoned or perempted its right of appeal as argued by Mr Kruger. The second is, if so, whether there are overriding policy considerations that nevertheless militate against the enforcement of peremption of SARS’ right of appeal.
[26] Peremption is a waiver of one’s constitutional right to appeal in a way that leaves no shred of reasonable doubt about the losing party’s self‑resignation to the unfavourable order that could otherwise be appealed against. Dabner[2] articulates principles that govern peremption very well in these terms:
“The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it.”[3]
The onus to establish peremption would be discharged only when the conduct or communication relied on does “point indubitably and necessarily to the conclusion” that there has been an abandonment of the right to appeal and a resignation to the unfavourable judgment or order.
[27] The facts of this case leave one with no doubt that SARS had taken a conscious and firm decision not to appeal against the order of the LAC. Several factors must be taken into account in determining whether peremption has been established. Some of the key factors pointing to that conclusion, thus establishing peremption, are the:
(a) very clear written communication by SARS to Mr Kruger that the LAC judgment would not be appealed against;
(b) offer of reinstatement;
(c) fact that the letter of peremption was written at the instance of a SARS official who had previously deposed to an affidavit on its behalf in this same matter; and
(d) fact that it was SARS’ lawyers, who were presumably familiar with the merits and demerits of the case, who actually wrote and dispatched the letter to Mr Kruger. This involvement of lawyers reasonably suggests that SARS would have taken legal advice before it waived or abandoned its right to appeal.
Peremption having taken place,[4] the only relevant consideration remaining is whether there are overriding constitutional considerations that justify appealability or the non‑enforcement of peremption.
[28] The broader policy considerations that would establish peremption are that those litigants who have unreservedly jettisoned their right of appeal must for the sake of finality be held to their choice in the interests of the parties and of justice. But, where the enforcement of that choice would not advance the interests of justice, then that overriding constitutional standard for appealability would have to be accorded its force by purposefully departing from the abundantly clear decision not to appeal.[5] This principle was laid down by Nugent JA in SANDU:
“Bearing in mind the policy underlying [peremption,] it must necessarily be open to a court to overlook the acquiescence where the broader interests of justice would otherwise not be served.”[6]
As in SANDU, SARS’ peremption of its right to appeal was apparently based on incorrect legal advice. Upon further reflection and with the benefit of “perhaps sounder advice” the higher authorities “have since changed their minds”, hence this application for leave to appeal.[7]
[29] The reversal of the decision not to appeal happened within a very short period of three days, unlike in SANDU where there was a lapse of two weeks[8] and the peremptor was nevertheless allowed to appeal. The central feature of this case is the mother of all historical and stubbornly persistent problems in our country: undisguised racism. This, coupled with this Court’s constitutional duty to help entrench the values of equality, non-racialism and human dignity, demand that this application be appealable in the interests of justice.[9] And the issue central to this dispute requires the attention of the highest Court in the land, at such a time as this. But should the application for leave to appeal succeed?