Constitutional Court
Jurisdiction
Under section 167(3) of the Constitution, the Constitutional Court's jurisdiction was limited to constitutional matters and issues connected with decisions on constitutional matters. [1] In matters other than constitutional matters, the SCA was the highest court in the land. This arrangement was overturned by the Seventeenth Amendment but prevailed at the time of the dispute, and the Constitutional Court's jurisdiction was therefore an open question.
Writing for a unanimous bench, Justice Johann van der Westhuizen held that it was "neither necessary nor desirable" to:
attempt to define the limits of the term 'constitutional matter' rigidly... Philosophically and conceptually, it is difficult to conceive of any legal issue that is not a constitutional matter within a system of constitutional supremacy. All law is after all subject to the Constitution and law inconsistent with the Constitution is invalid. [2]
Nevertheless, van der Westhuizen continued, section 167(3)(b) of the Constitution presupposed that a meaningful line must be drawn between constitutional and non-constitutional matters, and it was the court's responsibility to delineate that line. [3] In this regard, a contention that a lower court reached an incorrect decision "is not, without more, a constitutional matter". Moreover, the Constitutional Court would not assume jurisdiction over a non-constitutional matter "only because an application for leave to appeal is couched in constitutional terms". It was incumbent upon the applicant to demonstrate the existence of "a bona fide constitutional question". As van der Westhuizen cautioned, "An issue does not become a constitutional matter merely because an applicant calls it one." [4]
Although the applicant had not challenged the constitutional validity of any of the provisions of POCA itself or of the restraint order, he claimed that the SCA's interpretation of POCA was constitutionally problematic. [5] Section 39(2) of the Constitution, van der Westhuizen held, "requires more from a Court than to avoid an interpretation that conflicts with the Bill of Rights. It demands the promotion of the spirit, purport and objects of the Bill of Rights." [6] The applicant contended that the SCA had failed to promote the spirit, purport and objects of the Bill of Rights, particularly the right to a fair trial. This, van der Westhuizen found, was a constitutional matter, which meant that the Constitutional Court had jurisdiction to hear it. [7]
Leave to appeal
Section 167(6) of the Constitution provides for appeals from another court to the Constitutional Court "when it is in the interests of justice and with leave of the Constitutional Court." The Constitutional Court determines whether it is in the interests of justice to grant leave to appeal "through a careful and balanced weighing up of a number of factors." [8] The court held that leave to appeal to it in the present matter should be granted, because the constitutional matter raised was of considerable importance and complexity and because "it cannot be said that there are no prospects of success." [9]
Merits
The court upheld the SCA's decision to allow ABSA to intervene in the proceedings, but held that the SCA had erred in ruling that ABSA's claim against the applicant was secured against the provision for his reasonable legal expenses. A decision to allow a creditor to intervene does not automatically result in an order to "ring-fence" its claim against competing claims, including the defendant's claim for reasonable legal expenses.
The court's interpretation of POCA was informed by the constitutional protections for fair-trial rights. When a defendant applied in terms of section 26(6) for provision for reasonable legal expenses in a restraint order, the High Court had the discretion to provide for legal expenses. It also had the discretion to permit any creditor who applied to intervene to join the proceedings, and to then grant an order which was fair under all the prevailing circumstances. In doing so the Court had to take into account an accused person's right to legal representation, as well as the interest of the state in preserving the property and the interests of creditors.
Under the circumstances of this case, the court held that it would be fair as well as practical to refer the matter back to the High Court to exercise its discretion in terms of section 26(6) of POCA.
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