The Supreme Court of Appeal (SCA) remains South Africa’s ultimate appellate authority in non-constitutional matters, and its decisions are rarely revisited once finalised. However, Section 17(2)(f) of the Superior Courts Act 10 of 2013 introduces a narrow but crucial exception that allows the President of the Supreme Court of Appeal to refer a matter back to the court for reconsideration or variation in limited circumstances.
This exceptional remedy may only be exercised if a grave injustice would result or if the integrity of the administration of justice would otherwise be compromised.
The Case of Bidvest Protea Coin Security (Pty) Ltd v Mabena
The judgment in Bidvest Protea Coin Security (Pty) Ltd v Mandla Wellem Mabena serves as a key authority on how Section 17(2)(f) is applied and interpreted by the Supreme Court of Appeal.
Background
Bidvest, a security company, was contracted to provide services at a mining site. During a protected strike, an altercation broke out in which one of Bidvest’s employees discharged a rubber bullet that struck Mr Mabena in the eye, causing permanent blindness in that eye.
Mr Mabena subsequently sued Bidvest in the Mpumalanga Division of the High Court, Middelburg, claiming damages for his injuries.
The High Court’s Findings
Bidvest initially relied on the defence of sudden emergency and, during trial, attempted to introduce the defence of necessity, even though it had not been pleaded. The trial court noted this procedural irregularity and dismissed both defences, holding that Bidvest had failed to prove that the shooting was necessary or justified. The company was found fully liable for Mr Mabena’s damages.
Bidvest appealed to the Full Bench of the High Court, which confirmed the trial court’s decision, criticising Bidvest for raising a new defence not contained in its pleadings.
The Petition to the Supreme Court of Appeal
Still dissatisfied, Bidvest petitioned the Supreme Court of Appeal for special leave to appeal. The petition was dismissed with costs.
Bidvest then invoked Section 17(2)(f) of the Superior Courts Act, requesting that the President of the SCA refer the matter for reconsideration or variation. The company argued that the failure of the lower courts to engage fully with its defence of necessity constituted exceptional circumstances justifying intervention.
The Supreme Court of Appeal’s Reasoning
Relying on its earlier authority in Motsoeneng v SABC, the SCA reaffirmed that “exceptional circumstances” are a jurisdictional requirement that must be proven before the President can refer a matter for reconsideration.
The Court rejected the argument that only the President determines whether exceptional circumstances exist (the so-called “exclusive interpretation”) and instead held that the panel considering the matter must itself assess the existence of such circumstances, the “jurisdictional fact interpretation.”
In Bidvest’s case, the Court found no evidence of procedural unfairness or exclusion of defences at the trial or appeal stage. Consequently, the threshold for exceptional circumstances was not met, and the application was struck from the roll with costs.
Key Takeaway for Legal Practitioners and Correspondent Attorneys
This decision underscores how extraordinarily limited the scope of Section 17(2)(f) applications is. The Supreme Court of Appeal will only entertain reconsideration in truly exceptional cases where a failure of justice is manifest.
For firms acting as Supreme Court of Appeal Correspondent Attorneys or Correspondent Attorneys in Bloemfontein, it is vital to ensure that petitions and appeals are procedurally sound and comprehensively argued at the outset. Once the SCA has ruled, opportunities for reconsideration are rare and highly restricted.
Professional Assistance from Correspondent Attorneys in Bloemfontein
At Mayet & Associates, our Supreme Court of Appeal Correspondent Attorneys in Bloemfontein assist law firms and clients across South Africa with appellate procedures, record preparation, and compliance with the SCA Rules. Whether your firm requires representation, filing assistance, or advisory support in complex appeal matters, our team ensures that every procedural step meets the stringent requirements of the Supreme Court of Appeal.
