Advocate Carol Steinberg: Thulamela Chambers
Does section 18 of the Superior Courts Act offend the Constitution?
When an unsuccessful litigant applies to appeal a high court order, the operation of the order is automatically suspended pending the determination of the appeal. In exceptional circumstances, the court may decide that the order should be enforced pending the appeal.
The enforcement of an order pending an appeal is sometimes critical to the outcome of the case. For example, if a court interdicts the transfer of money from an account, if that order is suspended for even a minute, the money can be lost to the successful litigant forever. Or if a mother interdicts a father from taking their child out of the country, the suspension of the order can mean that the child can be spirited out of the country, and the mother might be unable to secure the return of the child, even if the father ultimately loses his appeal. In other words, even though a party might succeed both in the court a quo and in the appeal court, she may be denied effective relief.
The ability of the court to regulate the enforcement of its orders is therefore critical to the administration of justice. This process was governed by uniform rule 49(11) until August 2013, when the Superior Courts Act 10 of 2013 commenced. The new test for securing an enforcement order is more onerous. Importantly, on a literal interpretation, it removes judicial discretion: if an applicant for an enforcement order cannot meet certain requirements, the court must refuse the application. The question that arises is whether this removal of judicial discretion offends the Constitution.
Section 18(1) and (3) of the Superior Courts Act provides as follows:
“18. Suspension of decision pending appeal
(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.” (emphasis added)
Section 18 accordingly requires an applicant to satisfy three requirements in order to be granted an enforcement order:
- the existence of exceptional circumstances; and
- that it will, on a balance of probabilities, suffer irreparable harm if the Court does not grant the order; and
- that, on a balance of probabilities, if the order is not granted the respondent will not suffer irreparable harm;
Rule 49(11) provided as follows:
“When an appeal has been noted or an application for leave to appeal against or to rescind, correct or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such an appeal or application, unless the court which gave such order, on the application of a party, otherwise directs“.
Corbett JA authoritatively described the test in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 544H to 546B. The overriding consideration was the determination of what was just and equitable in all the circumstances, and the rule was aimed at preventing irreparable damage from being done to the intended appellant. The court, however, had a wide discretion to grant or refuse enforcement and if necessary to determine conditions upon which the right to execute could be exercised. This discretion emanated from the inherent jurisdiction of the Court to control its own judgments. The court would normally have regard to the following factors:
- the potential of irreparable harm to the respondent if enforcement is granted;
- the potential of irreparable harm to the applicant if enforcement is not granted;
- the prospects of success on appeal, including whether the appeal is frivolous or vexatious;
- where there is the potential of irreparable harm or prejudice to both parties, the balance of hardship or convenience, as the case may be.
The critical component of the approach under Rule 49(11) was judicial discretion, derived from the inherent jurisdiction of the court, to rule in accordance with the equities in a given case. The Court would ask which of the parties would be worse off if the order is granted or refused.
Section 18 has done away with the application of equities and brought in a new set of strict criteria.
“A hierarchy of entitlement has been created, absent from the [common law] test. Two distinct findings of fact must now be made, rather than a weighing up to discern a ‘preponderance of equities’”. 
These findings of fact are strict proof requirements, and a Court does not have the discretion to grant the order if an applicant is unable to prove both requirements. The applicant must prove that she will suffer irreparable harm, and that the respondent will not suffer irreparable harm if the order is granted.
There is no escape hatch in section 18(3) of the Superior Courts Act. If the court finds that the respondent will suffer irreparable harm, judicial discretion is removed, and the court’s hands are tied. There is no room for the court to balance the proportional harm that is likely to eventuate from the enforcement or non-enforcement of the order.
The question that arises is whether the lack of judicial discretion offends, among other provisions, section 34 of the Constitution.
Section 34 provides as follows:
“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
There is no doubt that the legislature is allowed to limit judicial discretion. However, where the court’s hands are completely tied, there is every possibility that the hearing will not be fair. In the absence of any discretion at all, a judge is unable to apply and adapt a statutory principle to the particular facts of a case, and might then have to hand down orders that are inconsistent with the Constitution. This is most extreme when a court order is rendered useless in the hands of a successful litigant who was unable to prove to the court that the unsuccessful litigant would not suffer irreparable harm if the order was enforced.
There is no reason of logic or law why an unsuccessful respondent’s interests should be given primacy over the successful applicant’s rights and interests in every case. Nor is there any reason why the determination of the enforcement of orders should not be based on a balance of convenience and the interests of justice. This would ensure the rights of both parties are given proper weight and protection.
 Section 18(1) of the Act; a survey of authorities and meaning of “exceptional circumstances” were discussed in MV Ais Mamas 2002 (6) SA 150 (C) and assessed in the context of section 18 of the Act in Incubeta Holdings (Pty) Ltd v Ellis 2014 (3) SA 189 (GJ). at paras 17 to 24.
 Section 18(3) of the Act; Liviero Wilge Joint Venture and Another v Eskom Holdings Soc Ltd (17321/2014)  ZAGPJHC 150 (12 June 2014) at para 21 confirms that both irreparable harm requirements must be determined on a balance of probabilities.
 Gauteng Province Driving School Association v Amaryllis Investments (Pty) Ltd  1 All SA 290 (SCA), para .
 Incubeta at para 12.
 Incubeta at para 21 and 24.
 UFS v Afriforum & another  ZASCA 165 (17 November 2016) at para 11.