In South African appellate procedure, finality is a foundational principle. Yet, in rare and exceptional cases, our legal system recognises the need for a procedural safeguard to prevent grave injustice, even after a refusal of leave to appeal by the Supreme Court of Appeal (SCA). Section 17(2)(f) of the Superior Courts Act 10 of 2013 provides for this safeguard in the form of a reconsideration application.
This seldom-invoked mechanism permits the President of the SCA, either on their own motion or upon application, to revisit a decision refusing leave to appeal. Crucially, this discretionary power arises only after a petition for leave to appeal has been dismissed, and it serves a narrowly defined purpose: to remedy injustice in exceptional circumstances. The threshold is stringent, and the process is not to be misconstrued as an extension of the appeal process or a “second bite at the cherry”.
The Legal Framework of Section 17(2)(f)
Section 17(2)(f) allows a party to request that the President of the SCA refer a dismissal of leave to appeal for reconsideration, and if warranted, for variation. This must be done within one month of the refusal. Importantly, the decision made under this section, whether to grant or deny reconsideration, is final and not appealable, as confirmed by the Constitutional Court in Cloete and Another v S 2019 (2) SACR 130 (CC).
The Constitutional Court in Liesching and Others v S 2018 (11) BCLR 1349 (CC) clarified that this mechanism is not intended to give unsuccessful applicants an opportunity to relitigate issues already canvassed. Rather, it provides the SCA with the latitude to correct decisions where significant procedural or substantive errors may have resulted in injustice.
Judicial Interpretation and Limitations
The case of Avnit v FirstRand Bank Ltd t/a WesBank and Others 2014 JOL 32336 (SCA) illustrates the strict limits of section 17(2)(f). The court emphasised that the President must be satisfied that the case presents genuinely exceptional circumstances warranting reconsideration. Applications that merely rehash rejected arguments or express dissatisfaction with an outcome will not succeed.
As the court held:
“An application that merely rehearses the arguments that have already been made, considered and rejected will not succeed, unless it is strongly arguable that justice will be denied unless the possibility of an appeal can be pursued.”
This pronouncement underscores that reconsideration is not an alternative avenue for disappointed litigants, but a judicial tool to guard against manifest injustice in a system where appellate relief has otherwise been exhausted.
Potential for Abuse and Procedural Safeguards
Although well-intentioned, the reconsideration process is not immune from procedural abuse. Litigants may exploit this mechanism to delay enforcement or prolong finalisation of litigation, particularly in high-stakes civil or criminal matters. Nevertheless, the procedure is designed to be efficient, with strict timelines for the exchange of affidavits and prompt adjudication by the President of the SCA.
What mitigates against its misuse is the judiciary’s consistent insistence on exceptionality as a threshold requirement. An application brought without a compelling demonstration of such circumstances is unlikely to succeed, even where it is unopposed.
Conclusion
Section 17(2)(f) of the Superior Courts Act is a powerful but narrowly confined remedy. It does not permit a second appeal, nor does it exist to indulge litigants dissatisfied with an outcome. Its purpose is clear: to prevent grave injustice in exceptional cases where the refusal of leave to appeal may have been legally or procedurally flawed.
In an era where procedural expediency is crucial to maintaining public confidence in the judiciary, courts must continue to strike a balance between finality and fairness. Reconsideration applications under section 17(2)(f) remain an important, albeit extraordinary, instrument to achieve that end.
