- within International Law, Environment and Antitrust/Competition Law topic(s)
Section 17(2)(f) of the South African Superior Courts Act, 2013 ("the Act") deals with reconsiderations and variations of the Supreme Court of Appeal ("SCA"). It states that the President of the SCA ("the President") may, where a grave failure of justice would arise or if the administration of justice may be brought into disrepute, refer a decision of the SCA, granting / rejecting a petition for special leave to appeal the judgment of a lower court, for reconsideration and if necessary, variation.
In Bidvest Protea Coin Security (Pty) Ltd v Mandla Wellem Mabena, the SCA was dealt with how this provision operated and is interpreted.
Facts
Bidvest provided security services to the owner of a mine. A protected strike commenced and after a scuffle ensued, where an employee of Bidvest shot Mr Mabena ("Mr Mabena") with a rubber bullet, striking his left eye. As a result, Mr Mabena lost vision in that eye.
Mr Mabena instituted proceedings against Bidvest in the Mpumalanga Division of the High Court, Middleburg ("the High Court"), claiming compensation.
In the High Court
In the trial court, Bidvest pleaded the defence of unexpected emergency. It raised the defence of necessity at the beginning of the trial it but did not plead this defence, which the trial court was cognisant of. The trial court rejected the defence of sudden emergency and found that even if it considered the defence of necessity, the evidence revealed that Bidvest failed to discharge the onus to prove the defence of necessity. The trial court accordingly found Bidvest to be 100% liable for the damages that Mr Mabena may prove.
Aggrieved by this decision, Bidvest appealed to the full bench of the High Court ("the full court"). The full court was critical of Bidvest's failure to plead the defence of necessity and held that since the defence was not pleaded, it should not have been raised at the beginning of the trial. The full court concurred with the findings of the trial court.
SCA Proceedings
Not content with the findings of the full court, Bidvest petitioned the SCA for special leave to appeal the judgment and order of the full court. The SCA dismissed the application for special leave to appeal with costs. Bidvest then brought an application in terms of section 17(2)(f) of the Act, seeking from the President a referral of the decision for reconsideration and if necessary, variation.
Bidvest argued that the full court did not consider its defence of necessity, which constituted unfair treatment, and this was an exceptional circumstance which warranted a reconsideration and variation of the SCA order.
The Court clarified that, following its earlier decision in Motsoeneng, the existence of exceptional circumstances is a jurisdictional fact that must be established before reconsideration can proceed. The court rejected the "exclusivity interpretation" of section 17(2)(f) of the Act, which interprets the provision in a manner whereby the President alone determines the existence of exceptional circumstances. Instead, the court held that the "jurisdictional fact interpretation" model is applicable, namely, that the panel of the SCA to which the matter is referred for reconsideration and if necessary, variation, must make the determination of whether exceptional circumstances exist.
Conclusion
The SCA concluded that there was no procedural unfairness or exclusion of Bidvest's defence in the trial and full courts and thus no exceptional circumstances were present to warrant reconsideration of the refusal to grant special leave to appeal. The jurisdictional fact of exceptional circumstances was therefore not established. The matter was accordingly struck from the roll with costs.
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