Litigants who have had their applications for leave to appeal dismissed by the Supreme Court of Appeal (SCA) are not without recourse. South African law provides a mechanism that allows such applicants to request that the matter be reconsidered, ensuring that procedural justice remains safeguarded. This article, prepared by Mayet & Associates, a leading Supreme Court of Appeal Correspondent in Bloemfontein, explores how this process operates and what the recent legislative amendment means for litigants and practitioners.
The Statutory Framework
The procedure is anchored in section 17 of the Superior Courts Act 10 of 2013. Typically, applications for leave to appeal are considered by two judges of appeal, either permanent or acting, applying the test under section 17(1)(a). This test requires either:
- a reasonable prospect of success on appeal, or
- another compelling reason justifying why the appeal should be heard, such as conflicting judgments.
This standard was examined in MEC for Health, Eastern Cape v Mkhitha and Another where the court highlighted that leave should not be granted unless there is a genuine likelihood of success. Earlier judgments, such as S v Smith 2012 (1) SACR 567 (SCA), further clarified that prospects of success must be realistic and based on a rational foundation.
The Discretion of the President of the SCA
Where leave to appeal is dismissed, litigants may petition the President of the SCA in terms of section 17(2)(f). Historically, the threshold required the presence of “exceptional circumstances” before a matter could be referred for reconsideration. However, following concerns about clarity and accessibility, the legislature amended the provision.
The current wording provides that the President may refer a decision for reconsideration if:
- A grave failure of justice would otherwise result, or
- The administration of justice may be brought into disrepute if reconsideration is denied.
This amendment aligns with Constitutional Court jurisprudence, particularly S v Liesching and Others 2019 (4) SA 219 (CC), where the court stressed the importance of protecting against grave injustice and safeguarding public confidence in the judicial system.
Practical Implications for Litigants and Lawyers
For litigants and their legal representatives, including those working with a lawyer in Bloemfontein experienced in appellate litigation, the amendment underscores the importance of framing applications for reconsideration with precision. Applicants must demonstrate either a significant risk of injustice or show how the refusal to reconsider would undermine confidence in the administration of justice.
It is also clear that the process involves an element of judicial subjectivity. Two judges may reasonably disagree about whether prospects of success exist, and applicants must be prepared for this uncertainty. The ability to petition the President acts as a safeguard, ensuring that justice is not thwarted by oversight or lack of specialised expertise in complex areas of law, such as maritime or constitutional litigation.
The Constitutional Significance
The decision by Parliament to retain section 17(2)(f) rather than repeal it reflects the constitutional imperative of ensuring access to justice. This provision operates as a vital corrective tool, giving the President of the SCA the authority to intervene when necessary to prevent injustice or protect the court’s reputation.
For practitioners such as Mayet & Associates, who regularly act as Supreme Court of Appeal Correspondents in Bloemfontein, the amendment reinforces the need to advise clients on strategic appellate options. It also highlights the continuing importance of specialist appellate advocacy in navigating the nuanced requirements of the Superior Courts Act.
Conclusion
The reconsideration mechanism under section 17(2)(f) of the Superior Courts Act remains an essential safeguard in South Africa’s appellate framework. While the test has shifted from “exceptional circumstances” to preventing grave injustice or disrepute to the administration of justice, the underlying principle is unchanged: access to the Supreme Court of Appeal must not be unjustly curtailed.
For litigants, engaging an experienced lawyer in Bloemfontein or a firm like Mayet & Associates is critical in ensuring that applications for leave to appeal and petitions for reconsideration are drafted persuasively and strategically. As appellate jurisprudence develops, these applications will continue to play a decisive role in shaping the balance between judicial efficiency and the right to a fair hearing.
