THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 475/2021
In the matter between:

TSHIOMA MATAMELA
APPELLANT

and

DAVID MASILO MULAUDZI

RESPONDENT

Neutral citation:
Matamela v Mulaudzi (475/2021) [2022] ZASCA 71 (23 May 2022)
Coram:
ZONDI, CARELSE and HUGHES JJA and TSOKA and SAVAGE AJJA
Heard:
16 May 2022
Delivered:  23 May 2022
Summary: Appeal – Section 16(1)(b) of the Superior Courts Act 10 of 2013 – appeal
of the decision of the high court sitting as an appeal court – leave to appeal wrongly
granted by the full court - special leave of the Supreme Court of Appeal is required –
absence of jurisdiction – appeal is struck from the roll.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Limpopo Division, Thohoyandou (AML Phatudi J and Makhafola J)
sitting as full court of appeal:

The appeal is struck from the roll with costs.

___________________________________________________________________

JUDGMENT
___________________________________________________________________
Hughes JA (Zondi and Carelse JJA and Tsoka and Savage AJJA concurring)

[1] On 16 May 2022 we granted an order striking the matter off the roll with costs
and indicated that the reasons would follow. These are the reasons. The crisp question
to be determined in the appeal is whether this Court has jurisdiction to hear this appeal,
leave having been granted to this Court by the full court, Limpopo Division,
Thohoyandou (the high court).

[2] The origin of the appeal before us emanates from a judgment of the
Thohoyandou Magistrate’s Court which ordered the eviction of the appellant from the
immovable property of the respondent. The appeal against that order served before
the high court on 18 September 2020. The high court removed the matter from the roll.
On the very same day, following the order of the high court, the appellant filed an
application for leave to appeal to this Court. The high court entertained the application
for leave to appeal and accordingly granted the appellant leave to appeal to this Court.
The appeal before us is thus with the leave of the high court.

[3] Briefly, on the day in question the events evolved as follows before the high
court, AML Phatudi J and Makhafola J presiding.  At the commencement of the appeal
hearing, the court remarked as follows:
‘COURT: I see. I see. Thank you very much. Thank you very much. Right. This is what I am
just going to place on record as of now. On the 30th of July 2020 the judge president of this
division minuted in a meeting that there is a complaint that the judges of this division have
been captured by among others Ramaano Attorneys Incorporated. The complaint is still under
investigation. Due to such serious and vicious allegations against the judges of this division
this appeal court is still unable to deal with this appeal. In that Anton Ramaano Incorporated,
being attorneys of record representing the appellant. Thus we are left with no option but to
remove this matter from the roll. The order. The matter is removed from the roll. Pending Anton
Ramaano Attorneys attending to this hurdle and there shall be no order as to costs.’

[4] On 25 September 2020, the appellant requested reasons for the order in terms
of rule 49(1)(b) of the Uniform Rules of Court and launched an application for leave to
appeal the high court’s order. To date no reasons were forthcoming and the application
for leave to appeal was heard on 16 March 2021. On 18 March 2021, the high court
handed down its judgment granting the appellant leave to appeal its order to this Court.

[5] The judgment of the high court on leave to appeal records that the meeting
between the Judge President of the Limpopo Division of the High Court and the judges
of Thohoyandou Division, on 30 July 2020, is the catalyst for  the situation in which the
presiding officers found themselves. In this meeting the Judge President stated that
the judicial officers of that court ‘have been captured by Netshipale Attorneys,
Advocate Kevin Maluleka, Anton Ramaano Attorneys and SO Ravele Attorneys.’ In
light of this statement the presiding judges were of the view that their independence as
judges had apparently been placed in question. They acknowledged that by refusing
the litigant the right to be represented by an attorney of their own choice, in fact,
infringes on the litigant’s right of access to the courts as set out in s 34 of the
Constitution of the Republic of South Africa. Thus, in the interest of justice leave to this
Court was granted.

[6] I now turn to the proceedings before this Court. On 20 April 2022 and prior to
the hearing of this appeal the Registrar of this Court was directed to write the following
to the parties:
‘This is an appeal against a ruling made by Phatudi and Makhafola JJ, sitting as a court of
appeal of the Limpopo Local Division, Thohoyandou against the judgment of the Magistrate's
Court in terms of which it granted an order evicting the appellant from certain premises.
Thereafter leave to appeal to this Court was sought from, and, granted by Phatudi and
Makhafola JJ. In terms of s 16(b) of the Superior Courts Act 10 of 2013 special leave to appeal
should have been sought and obtained from this Court against the judgment of the Limpopo
Local Division sitting as a full court. In the circumstances, is this appeal properly before this
Court? The parties are called upon to furnish an answer by no later than Tuesday, 19 April
2022.’

[7] In compliance with the aforesaid directive, the appellant filed supplementary
submissions whilst the respondent filed a letter tendering his response. Apparent from
the appellant’s supplementary submissions was a request that we exercise our
‘inherent jurisdiction’ to regulate the proceedings and entertain the appeal in the
interest of justice.  The respondent, on the other hand, contended that the order of the
high court is not appealable. Unfortunately for the appellant, this Court does not have
the authority to do so, as is demonstrated below.

[8] In addressing this Court’s jurisdiction, it is now trite that this Court does not have
inherent jurisdiction to regulate its own proceedings and is circumscribed to exercise
such within the limitations of statute. As was aptly pointed out in Tadvest Industrial
(Pty) Ltd v Anthea Hanekom & others (Tadvest Industrial) at paragraph 8:
‘As it was put in Snyders v De Jager [2015] ZASCA 137; 2016 (5) SA 218 (SCA) para 8:
“First, this court does not have original jurisdiction. Its jurisdiction is determined by the
Constitution and by statute. Its inherent power to protect and regulate its own process does
not extend to the assumption of jurisdiction not conferred upon it by statute.”’1

1 Tadvest Industrial (Pty) Ltd v Anthea Hanekom & others [2019] ZASCA 19; 2019 (5) SA 125. Tonkin
v The State (938/12) [2013] ZASCA 179; 2014 (1) SACR 583 at para 6(c):
‘As to this court’s inherent jurisdiction to regulate its own proceedings, it goes without saying that it is
to be exercised within the confines of statutory limitations. With regard to appeals against judgments
and orders by the high court, the procedure is dictated by s 20(4)(b).’

[9] The relevant section of the Superior Courts Act 10 of 2013 (the Act) which deals
with the jurisdiction of this Court to preside over and regulate appeals is s 16 read with
s 19 of the Act. This was alluded to by this Court in Van Wyk v The State and Galela v
The State:
‘The jurisdiction of this court to hear appeals from the high court whether as a court of first
instance, or an appeal court is derived from this section [s 16 of the Superior Courts Act 10 of
2013] and s 19 of the Act. Whereas under s 20(4) of the [the Supreme Court Act 59 of 1959],
the special leave of this court was only required in respect of an appeal from a decision of the
full court (three judges) given on appeal to it, the special leave of this court is now also required
where leave to appeal is sought in respect of a decision of two judges, given on appeal to it.’2

[10] In this instance, s 19, which deals with the powers of the court when hearing
appeals, is not relevant. The relevant section is s 16 of the Act which, in its relevant
part, provides as follows:
‘(1) Subject to section 15(1), the Constitution and any other law-
(a) …
(b) an appeal against any decision of a Division on appeal to it, lies to the Supreme Court of
Appeal upon special leave having been granted by the Supreme Court of Appeal; and
(c) …

[11] It is clear from s 16(1)(b), that an appeal against a decision of a high court on
appeal to it, lies with this Court, upon special leave having been granted. Put differently,
a high court which sits as an appeal court, lacks the authority to grant leave to this
Court. The jurisdictional fact is that this Court requires that special leave be sought by
the litigants for it to entertain such appeal. That much was expressed by this Court in
Tadvest Industrial where Swain JA said:
‘Consequently, because the high court sitting as an appeal court lacks power to grant leave to
appeal to the SCA, as special leave of the SCA is required in terms of s 16(1)(b) of the Act…’3

[12] Unfortunately, in these circumstances, the high court lacked the jurisdictional
power to grant leave to appeal to this Court, and as such, the order of the high court is

2 Van Wyk v The State and Galela v The State [2014] ZASCA 152; [2014] 4 All SA 708 (SCA) para 19.
3 Tadvest Industrial para 11.

a nullity.4 In the result, the high court sitting as a court of appeal could not have granted
the order that it did and this Court therefore has no jurisdiction to entertain the appeal.

[13] In argument before us counsel for the appellant was constrained to concede
that in the absence of special leave, this Court, does not have jurisdiction to hear this
matter. An application for special leave to appeal is necessary because leave is a
jurisdictional requirement. With regards to the issue of costs, I am of the view that the
respondent is entitled to costs. The respondent was constrained to oppose the appeal
in light of the appellant’s insistence that leave granted by the high court conferred
jurisdiction on this Court to hear the appeal. The respondent is, however, not entitled
to costs of two counsel. The matter did not warrant the employment of two counsel.

[13] Accordingly, the appeal is struck from the roll with costs.

___________________
W Hughes
Judge of Appeal

4 Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd [2015] ZASCA 25; 2015 (4) SA 34
(SCA) para 13; Snyders v De Jager [2015] ZASCA 137; 2016 (5) SA 218 (SCA) para 18.

APPEARANCES
For the Appellant:
Adv.  M S Ramaite SC
Instructed by:
Anton Ramaano Inc, Thohoyandou

Matsepes Inc, Bloemfontein.

For the Respondent:
Adv.  P M Van Ryneveld
Adv.  J H F Le Roux
Instructed by:
Danie Van Ryneveld Attorneys, Thohoyandou
Symington & De Kok Inc, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

Status:

Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Matamela v Mulaudzi (475/2021) [2022] ZASCA 71 (23 May 2022)
Today the Supreme Court of Appeal (SCA) struck an appeal from the Limpopo Division of the
High Court, Thohoyandou (high court) from the roll.
The appeal originated from an order of the Thohoyandou Magistrate’s Court. The matter had
progressed to the high court on appeal and, subsequent to the order removing the matter from
the roll, an application for leave to appeal was filed. The high court granted the application and
granted leave to appeal to the SCA.
In the high court’s judgment granting leave to appeal to this Court, it was recorded that a
meeting between the Judge President of the high court and the judges of the high court revealed
that allegations were levelled against a number of legal firms in the high court’s jurisdiction.
These allegations were that the judges of the high court were captured by these firms. One of
the firms represented the litigant in the matter before the high court. The high court refused to
hear the matter, hence the removal thereof. It reasoned, that the firm ought to rectify ‘the
capture’ allegations before that firms presences at the high court would be entertained. In
granting the litigant leave to appeal to the SCA, the high court acknowledged that by refusing
the litigant the right to be represented by an attorney of their own choice infringed on the
litigant’s right of access to the courts as set out in s 34 of the Constitution of the Republic of
South Africa. Thus, in the interest of justice, leave to this Court was granted.

Prior to the hearing of this appeal, the Registrar of the SCA had written to the parties and
inquired whether the matter was properly brought before this Court, as s 16(b) of the Superior
Courts Act 10 of 2013 required that leave to appeal could only have been granted by this Court.
The appellant contended that the SCA should exercise its ‘inherent jurisdiction’ and entertain
the appeal in the interests of justice. However, the SCA did not have inherent jurisdiction to
regulate its own proceedings and was circumscribed to perform its duties within the ambit of
statute. This Court found that a high court which sat as an appeal court, lacked the authority to
grant leave to this Court. The jurisdictional fact was that this Court required that special leave
should have been sought by the litigant in order to have entertained such an appeal.
Accordingly, the high court lacked the jurisdictional power required to have granted leave to
appeal to this Court, and the order was therefore a nullity. In the result the high court could not
have granted the order and this Court did not have the jurisdiction to entertain the appeal.
In the result, the appeal was struck from the roll with costs.

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