ENGAGING THE CONSTITUTIONAL COURTS JURISDICTION: A QUICK REPORT ON WHETHER THE APEX COURT HAVE JURISDICTION TO HEAR A MATTER- LE GO

This is part two, where we engage with the Legal principle of Jurisdiction, specifically, Constitutional Court Jurisdiction.

We intend to delve a little into section 167(3)b of the Constitution of the Republic of South africa wherein we gain better insight that is more solid in understand the Constitutional Courts Jurisdiction.

We will begin by outling the law itself, being section 167(1)b of the Supreme law, then move on to explaining the law using the Constitutional Court explaination, because at the end of the day, whatever the law means, is what the Constitutional Court has ordered it means.

• SECTION 167(1)B CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA:

Section 167(3)(b) states that the Constitutional Court:

"may decide— (i) constitutional matters; and (ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court;"

Now as you can extrapoliate from the law outline above regarding when the Constitutional Court has jurisdiction to hear a matter, one can immediately tell that the apex court will have jurisdiction in the event that what being brought before it is a Constitutional Matter or if its not a constitutional matter then it has to be a Matter that raises an Arguable point of law of General Public Importance which ought ot be considered by the ConCourt.

Yes, we understand the words that makes up the law outline above, but do the words alone, tell how such a law applies in the real life setting. For us to understand what it means for a matter to be a constitutional matter and what it means for a matter to raise an arguable point of law that is of general public importance which the court out to consider hearing, we need to look at what the Constitutional court has ordered these requirements means. Le Go

• A CONSTITUTIONAL MATTER: WHAT MATTER IS REGARDED AS A CONSTITUTIONAL MATTER

The judgment of Sunwest International (pty)ltd perfectly captured the essense of what it means or a matter to be a constitutional matter. The Constitutional Court clarified that while its jurisdiction over "constitutional matters" under Section 167(3)(b)(i) is broad, it is not limitless.

The Court is Sunwest International provide that a constitutional matter is broadly defined as any issue involving the interpretation, protection, or enforcement of the Constitution. The constitutional court in its exploration of the meaning of Constitutional brought to our attention that in a system of constitutional supremacy, all law, including common law and statutory interpretation, derives its force from the Constitution, making it conceptually difficult to find any legal issue that does not technically touch upon constitutional principles. Basically anything can be a constitutional issues because all laws are founded from the Constitutions and its values. So any challenge to its is a constitutional matter on that premise.

However, the Court importantly emphasized that this jurisdictional scope is not boundless and does not mean that every legal dispute automatically qualifies as a constitutional matter simply because a litigant invokes a fundamental right.

The Court specifically cautioned against the practice of clothing an ordinary dispute in "constitutional garb", holding that a matter does not "morph" into a constitutional issue merely because an applicant labels a lower court's decision as "incorrect" or an "arbitrary deprivation of property". So saying that your rights have been infringed as a result of a judgment, does not automatically engage the apex's court jurisdiction to hear a matter. Its deeper than rap.

To truly engage jurisdiction of the Constitutional Court under Constitutional Matter requirement as outlined in section 167(3)(b)(i) , an applicant must demonstrate that the resolution of a constitutional rule or principle is reasonably necessary to determine the case's outcome. The Sunwest judgment established a rigorous plausibility test, requiring litigants to show a plausible case for supposing that a proper consideration of constitutional factors, such as the Section 39(2) duty to promote the spirit, purport, and objects of the Bill of Rights, would actually lead to a different outcome. In the context of statutory interpretation, if the Constitution "neither prohibits nor demands" a specific interpretive result and the issue can be resolved through non-constitutional factors like factual findings or ordinary points of law, the matter fails to meet the threshold of a constitutional issue. Ultimately, as seen in Sunwest, the Court refused to assume jurisdiction because the dispute over the taxability of "freeplay" credits was an ordinary matter of statutory interpretation that did not plausibly turn on the normative framework of the Constitution.

Basically the court jurisdiction will be engaged in terms of section 167(3)(b)(i) where the resolution of a constitutional rule or principle is reasonably necessary to decide the matter, rather than cases where the result is determined purely by factual disagreements or settled points of ordinary law.

FOR AN EXAMPLE: in the Fraser matter we see a matter where matter was regarded as a constitutional matter because it involves a resolution of a constitutional rule/principle as being reaonable necessary to decide the outcome of the matter.

In Fraser v ABSA, what happened is that the Supreme Court of Appeal had interpreted Section 26(6) of the Prevention of Organised Crime Act (POCA), but the applicant argued that this interpretation failed to promote his right to a fair trial(which is endorsed by the Constitution). To this argument in order to engage the ConCourts jurisdiction and the Constitutional Court determined that its jurisdiction was engaged because specific constitutional principles, specifically the right to legal representation and the right to have a criminal trial conclude without unreasonable delay, were factors that "may not be ignored in the interpretation". The Court found that the resolution of these fair trial principles was necessary because it was plausible that attaching proper weight to them would lead to a different legal outcome than the one reached by the lower court

• Matter that raises an Arguable point of law of General Public Importance which ought ot be considered by the ConCourt

Now in the event that a matter you seek to have the Constitutional court is not one which is a Constitutional matter, then the alternative is to argue that the matter you are brining, raises an arguable point of law+ that is of general public importance+ and such matter ought to be considered by the apex.

To understand what this means, we will look into the Constitutional court's explaination of what it means for a matter to raise a arguable point of law of general public importance which ought to be considered by the Constitutional Court.

As established in Section 167(3)(b)(ii) of the Constitution, this jurisdiction is defined by three conjunctive requirements: the matter must raise a point of law, that point must be arguable, and it must be of general public importance such that the Court ought to consider it.

In Big G Restaurants (Pty) Ltd v Commissioner for SARS, the Court clarified that for a point of law to be "arguable," it does not need to be immediately convincing but must possess a measure of plausibility and some degree of merit. This legal inquiry must be distinguished from a purely factual dispute; as seen in Sunwest International (Pty) Ltd v Western Cape Gambling and Racing Board, the Court will refuse jurisdiction if the issue is merely an ordinary matter of statutory interpretation that affects only the narrow interests of the specific litigants rather than legal doctrine.

Similarly, in Shiva Uranium (Pty) Ltd v Tayob (Dhiva), the Court noted that while a matter might deal with a common phenomenon of corporate life, such as business rescue, it must still present a novel or contested legal question to be considered truly "arguable".

On the General Public Importance element:

This requires that the legal issue "transcends the narrow interests of the litigants" and implicates the interests of a significant part of the public. In Big G Restaurants, this threshold was met because the interpretation of tax allowances affected franchisees spread across the "length and breadth of South Africa," meaning the judgment would have a broad impact on a specific industry.

Contrastingly, in Sunwest International, the Court found that the dispute over "freeplay" credits failed this test because there was no evidence that the issue was a "common-place" industry phenomenon or that other casino operators used the same specific business software.

The Court in Capitec Bank Limited v SARS further refined this by holding that jurisdiction is engaged when a legal question involves a major economic sector, such as the banking industry’s VAT obligations, because such questions carry "substantial and broad-based consequences" that bear upon the national fiscus and the broader economy.

On the "Matter Ought to be Considered" element

Finally, the requirement that a matter "ought to be considered" by the Court is an interest-of-justice inquiry that grants the Court discretion even when the first two legs are satisfied.

In Shiva Uranium (Dhiva), the Court illustrated that even if a matter falls within its general jurisdiction due to its corporate importance, it may still refuse to hear the case if there are no "reasonable prospects of success" in reversing the lower court's decision.

Collectively, these judgments emphasize that the Constitutional Court is not a generalist appellate court for correcting every incorrect lower court decision; rather, as the "ultimate guardian of the Constitution," it reserves its resources for points of law that provide necessary clarity on statutory provisions governing common phenomena of social, economic, or corporate life

• WHATEVER HAS A BEGINNING HAS AN END NEO

In conclusion, a constitutional matter is defined by Section 167(7) as any issue involving the interpretation, protection, or enforcement of the Constitution, but its engagement of the Court’s jurisdiction under Section 167(3)(b)(i) requires that the resolution of a constitutional rule or principle be reasonably necessary to determine the case outcome.

As clarified in the Sunwest judgment, to determine whether a matter requires a resolution of a constitutional rule for principle to determine the outcome, litigants must pass a plausibility test, demonstrating a plausible case that the application of constitutional factors, such as the Section 39(2) duty, would lead to a different legal result rather than merely "clothing" an ordinary statutory or factual dispute in "constitutional garb".

Parallel to this, a matter raising an arguable point of law of general public importance under Section 167(3)(b)(ii) requires a conjunctive showing that the issue is a point of law (not fact), that it is "arguable" by possessing some measure of plausibility and merit, and that it transcends the narrow interests of the litigants to implicate a significant part of the public or a major economic sector.

Even when these thresholds are met, the Court maintains the final discretion to decide if a matter "ought to be considered," through an inquiry rooted in the interests of justice which ensures the apex court remains focused on matters of profound national or legal significance rather than functioning as a generalist appellate court for error correction

Disclaimer: The views and analyses expressed on this blog are for informational and educational purposes only. This site serves as a self-guiding diary intended to facilitate my personal understanding of specific subjects and does not serve as an authoritative reference. Information is provided "as is" without any guarantees of completeness or accuracy. Please consult a local, professionally trained individual in the subject matter or you can conduct your own research for any formal inquiries or professional advice. PSA, dont corner an attorney at a Maza or a Braai on a weekend and consult there. Preferably arrange an appointment with the office