The Superior Courts Act, 2013 provides that an application for leave to appeal, or an appeal, suspends the operation and execution of a decision, pending the outcome of the application or appeal. Consequently, a court order cannot be executed until the appeal proceedings are determined.
This was reaffirmed by the Constitutional Court in the recently delivered judgment in Minister of Finance v Sakeliga.
The Supreme Court of Appeal declared the Regulations made by the Minister of Finance, in terms of the Preferential Procurement Policy Framework Act, 2000, as invalid. The declaration of invalidity was suspended for 12 months. According to a footnote in the minority judgment of the SCA, the suspension expired on 2 November 2021 (being 12 months from the date of the SCA's order). The minister applied for leave to appeal to the Constitutional Court, which was dismissed. In a further application to the Constitutional Court, the minister sought a variation of the Constitutional Court's order on the basis that it was ambiguous and lacked clarity.
It was argued that the footnote in the minority judgment, which recorded the expiration of the declaration period, was in conflict with the Superior Courts Act. It was argued on behalf of the minister that the Constitutional Court's order dismissing the appeal without setting aside, replacing or substituting the SCA's order created three confusing interpretations:
- The SCA's order was suspended from the date the application for leave to appeal was lodged and the operation of that order started running when the Constitutional Court dismissed the application for leave to appeal;
- The Regulations were invalidated with immediate effect from the date of dismissal of the application for leave to appeal by the Constitutional Court without any suspension; or
- The invalidation of the order is with effect from the date the Regulations were promulgated.
In dealing with these submissions, the Constitutional Court highlighted that the SCA's judgment expressly recorded in the opening paragraphs which aspects of the minority judgment it agreed with, and the footnote was not one of those aspects. The majority's silence on the footnote could not be construed as an adoption of the minority's judgment.
Turning to section 18(1) of the Superior Courts Act, the Constitutional Court pointed out that the law is clear on this point. The SCA's order was suspended from the date the minister lodged an application for leave to appeal. The consequence is that the countdown of the 12-month suspension period halted upon delivery of the application for leave to appeal and it resumed once the appeal was dismissed.
The court also confirmed that the reference to "execution" in this section had a wide meaning. It means "giving effect to the order" and any such suspension means that the order cannot be carried out and no effect can be given to the order prior to the determination of the application for leave to appeal.
The Constitutional Court dismissed the minister's application on the basis that the legal position is clear. In dismissing the application, the court commented that confusion could have only arisen if the order was interpreted in a vacuum without due regard to section 18(1).
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