Court. Such an appeal is subject to the leave of this Court, which must be granted when it is in the interests of justice to do so. In Khumalo and Others v Holomisa[1] it was accordingly held that the “Constitution intends that the interests of justice (coupled with leave of this Court) be the determinative criterion for deciding when appeals should be entertained by this Court.” However, the decision in respect of which leave is sought must be on a constitutional matter.[2] Once it is clear that the case does raise a constitutional matter, the next question is whether it is in the interests of justice for an appeal to lie directly to this Court. This Court has developed criteria for deciding whether it is in the interests of justice or not and has made it clear that each case has to be decided on its own merits.[3]
Was the dismissal of the application a decision on a constitutional matter?
- ↑ 2002 (5) SA 401 (CC); 2002 (8) BCLR 771(CC) at para 8.
- ↑ Rule 18 specifically limits a direct appeal of this class to “a decision on a constitutional matter”. Id at para 7.
- ↑ Above n13 and Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party and Others 1998 (4) SA 1157 (CC); 1998 (7) BCLR 855 at para 32.
“National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; or (b) to appeal directly to the Constitutional Court from any other court.”
Rule 18(6) provides:
“(a) If it appears to the court hearing the application … that
(i) the constitutional matter is one of substance on which a ruling by the Court is desirable; and (ii) the evidence in the proceedings is sufficient to enable the Court to deal with and dispose of the matter without having to refer the case back to the court concerned for further evidence; and (iii) there is a reasonable prospect that the Court will reverse or materially alter the judgment if permission to bring the appeal is given, such court shall certify on the application that in its opinion …
(b) The certificate shall also indicate whether, in the opinion of the court concerned, it is in the interests of justice for the appeal to be brought directly to the Constitutional Court.”
