THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 402/2017

In the matter between:

MTHANDAZO BERNING NTLEMEZA

APPELLANT

and

HELEN SUZMAN FOUNDATION

FIRST RESPONDENT
FREEDOM UNDER LAW

SECOND RESPONDENT

Neutral citation:
Ntlemeza v Helen Suzman Foundation [2017] ZASCA 93
(9 June 2017)
Coram:
Navsa, Ponnan, Majiedt, Dambuza, Mathopo JJA
Heard:
2 June 2017
Delivered:

9 June 2017
Summary:
Application in terms of s 18 of the Superior Courts Act 10 of 2013 for
execution order pending finalisation of an appeal process: whether refusal of an
application for leave to appeal stultifies application for leave to execute
notwithstanding that a further application for leave to appeal to next highest court
envisaged: whether applicant for execution order proved existence of exceptional
circumstances as contemplated in s 18(1): whether respondent, in terms of s 18(3),
proved on balance of probabilities that it will suffer irreparable harm in the event of
the execution order not being granted and that the appellant would not: provisions of
s 18(4) discussed: requirement that court must „immediately record‟ its reasons for
granting execution order: meaning of „next highest court‟ not entirely clear: whether
two parallel appeal processes in the same appeal court in the same case desirable.

________________________________________________________________
ORDER
_______________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Mabuse, Kollapen
and Baqwa JJ sitting as court of first instance):
1 The appeal is dismissed with costs including the costs of two counsel.
2 The appellant is ordered to pay the costs personally.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
Navsa JA (Ponnan, Majiedt, Dambuza, Mathopo JJA concurring):

[1] This appeal is concerned with whether the appellant, Lieutenant-General
Mthandazo Berning Ntlemeza (General Ntlemeza), ought to be permitted to continue
in his post as National Head of the Directorate for Priority Crime Investigations
(DPCI), pending the finalisation of an application for leave to appeal filed in this
court. It might appear strange and perhaps even confusing that there are two parallel
processes being conducted in an appeal court in one case, but that is on account of
the provisions of s 18 of the Superior Courts Act 10 of 2013, which gives an
aggrieved party an automatic right of appeal „to the next highest court‟ against a
decision of the high court ordering the execution of an earlier ruling issued by it,
pending the finalization of an appeal or an application for leave to appeal. The
background culminating in the present appeal appears hereafter.

[2] General Ntlemeza was appointed National Head of the DPCI on 10
September 2015 by the erstwhile Minister of Police, Mr Nkosinathi Phiwayinkosi
Thamsanqa Nhleko.1 Before his aforesaid permanent appointment, General
Ntlemeza had served as acting National Head of the DPCI2 for a period of
approximately one year.

1 Minister Nhleko was subsequently removed from that position by the President of South Africa and
appointed as Minister of Public Works. He was succeeded by the present Minister of Police, Mr Fikile
Mbalula.
2 From December 2014 to September 2015.

[3] At this early stage it is necessary to locate the DPCI in its constitutional and
statutory setting. The South African Police Service Act 68 of 1995 (the Act), in terms
of which the DPCI was established, has its genesis in s 205 of the Constitution,
which provides that the National Police Service must be structured to function in the
national, provincial and, where appropriate, local spheres of government. Section
205(2) of the Constitution provides:
„(2)
National legislation must establish the powers and functions of the police
service and must enable the police service to discharge its responsibilities effectively, taking
into account the requirements of the provinces.‟
Section 205(3) sets out the objects of the Police Service, which are to prevent,
combat and investigate crime, to maintain public order, to protect and secure the
inhabitants of our country and their property and to uphold and enforce the law. The
political responsibility for the South African Police Service, in terms of s 206 of the
Constitution, vests in the Minister of Police. Moreover, the Minister is, in terms of that
section, responsible for determining the national policing policy.

[4] The DPCI was established in terms of s 17C of the Act, which is in part the
legislation contemplated by the Constitution. The material part of s 17C reads as
follows:
„(1) The Directorate for Priority Crime Investigation is hereby established as a Directorate in
the Service.
(1A) The Directorate comprises –
(a)  the Office of the National Head of the Directorate at national level; and
(b) the Office of the Provincial Directorate in each province.
(2) The Directorate consists of –
(a) the National Head of the Directorate at national level, who shall manage and direct
the Directorate and who shall be appointed by the Minister in concurrence with
Cabinet;
….
For present purposes, we need not concern ourselves with the other personnel that
comprise the directorate. The DPCI‟s functions are set out as follows in s 17D of the
Act:
„(1) The functions of the Directorate are to prevent, combat and investigate –
(a) national priority offences, which in the opinion of the National Head of the
Directorate need to be addressed by the Directorate . . .

(aA) selected offences not limited to offences referred to in Chapter 2 and section 34
of the Prevention and Combatting of Corrupt Activities Act 12 of 2004…‟
As can be seen from all of the above, the National Head of the DPCI occupies a
pivotal position within the statutory scheme.

[5] General Ntlemeza‟s appointment as National Head of the DPCI by Minister
Nhleko was purportedly effected in terms of s 17CA(1) of the Act, read with
s 17C(2)(a).  Section 17 CA(1) reads:
„(1) The Minister, with the concurrence of Cabinet, shall appoint a person who is –
(a) a South African citizen; and
(b) a fit and proper person,
with due regard to his or her experience, conscientiousness and integrity, to be entrusted
with the responsibilities of the office concerned, as the National Head of the Directorate for a
non-renewable fixed terms of not shorter than seven years and not exceeding 10 years.‟
(My emphasis.)

[6] During March 2016 General Ntlemeza‟s appointment was challenged in the
Gauteng Division of the High Court, Pretoria, by the first and second respondents,
the Helen Suzman Foundation (HSF) and Freedom Under Law NPC (FUL),
respectively. Both HSF and FUL are non-profit organisations concerned with
promoting constitutional values and the rule of law. The application to review and set
aside General Ntlemeza‟s appointment was brought in their own and the national
interest.

[7] In its application, HSF and FUL noted that the DPCI is a premier law
enforcement agency, integral to the battle against corruption and maladministration,
which is why the Act requires the National Head to be a person of integrity. They
contended that in appointing General Ntlemeza to that high office, Minister Nhleko
acted irrationally and unlawfully and failed to fulfill his constitutional duty to protect
the integrity and independence of the DPCI. The principal ground of review was that
Minister Nhleko had not taken into account materially relevant considerations, more
particularly, he failed to have proper regard to a judgment of the High Court, by
Matojane J, in an earlier case in which General Ntlemeza‟s integrity was called into

question. The case was Sibiya v Minister of Police & others (GP) unreported case no
5203/15 (20 February 2015).

[8] Sibiya concerned the legality of General Ntlemeza‟s suspension of Major
General Shadrack Sibiya, a Provincial Head of the DPCI, and the appointment, in his
stead, of General Elias Dlamini, as acting Provincial Head of the DPCI. General
Ntlemeza had accused General Sibiya of being involved in the illegal rendition of
certain Zimbabwean citizens. In deciding the matter, Matojane J made adverse
findings against General Ntlemeza. He stated that the decision to suspend General
Sibiya „was taken in bad faith and for reasons other than those given. It [was]
arbitrary and not rationally connected to the purpose for which it was taken and
accordingly, it [was] unlawful as it violate[d] applicant‟s constitutional right to an
administrative action that is lawful, reasonable and procedurally fair‟. Matojane J
went on to make the following order:
„1. It is declared that the Notice to Suspension served on the applicant on 20 January
2015 is unlawful, unconstitutional and invalid; and
2. It is declared that the appointment of Major-General Elias Dlamini as the acting
Provincial Head of DPCI Gauteng is unlawful, unconstitutional and invalid.
3. [The Office of the National Head Directorate for Priority Crime Investigations:
Acting Nationals Head-Major General Berning Ntlemeza] is ordered to pay the costs of the
applicant, which will include the costs of a senior and junior counsel.‟

[9] Aggrieved, General Ntlemeza filed an application for leave to appeal but did
not hasten to have it set down for hearing. Thereafter, General Sibiya filed an
application under s 18 of the Superior Courts Act, seeking leave to execute the
declaratory order referred to above. Matojane J, in his judgment dealing with the
application for leave to appeal by General Ntlemeza and the application to execute
by General Sibiya, had regard to correspondence sent to his registrar on behalf of
General Ntlemeza, suggesting that he (Matojane J) had acted improperly in privately
engaging with General Sibiya‟s legal representatives. Similar remarks were made in
General Ntlemeza‟s affidavit filed in opposition to the application to execute, brought
by HSF and FUL. In his assessment of the merits of the two applications, Matojane J
once again made remarks calling into question General Ntlemeza‟s integrity. He
accused General Ntlemeza of misleading the court by not informing it of a report by

the National Independent Police Directorate which exonerated General Sibiya.
According to Matojane J, General Ntlemeza referred only to a prior report by the
Provincial Independent Police Directorate, which incriminated General Sibiya. He
went on to say: „In my view, the conduct of [General Ntlemeza] shows that he is
biased and dishonest. To further show that [General Ntlemeza was] dishonest and
lack[ed] integrity and honour, he made false statements under oath‟.

[10] Matojane J, in dealing with exceptional circumstances, which, as will be seen
later, need to be established before an execution order can be granted, said the
following:
„On the question whether exceptional circumstances exist [General Ntlemeza‟s]
contemptuous attitude towards the rule of law and the principle of legality and transparency
makes this case unique and exceptional.‟

[11] Matojane J dismissed the application for leave to appeal and granted the
application to execute. He ruled that the order he had issued, set out in para 8
above, „shall operate and be executed in full until the final determination of all
present and future appeals . . . The order will operate and be executed despite the
delivery of any present or future applications for leave to appeal . . .  and any noting
of any appeal by any party‟. The court stated that there was no need for General
Sibiya to furnish security for the execution of the order.

[12] A full court (the high court) comprising three judges (Mabuse, Kollapen and
Baqwa JJ) probably because of the national importance of the case, was constituted
to hear the review application brought by HSF and FUL to have General Ntlemeza‟s
appointment set aside. As Part A of that application, HSF and FUL sought an interim
interdict preventing General Ntlemeza from exercising any power or discharging any
function or duty as head of the DPCI, pending the final determination of the review
application. The application for interim relief was dismissed by Tuchten J, whose
judgment featured in the decision by the high court and in argument before us. It is
an aspect to which I shall revert. A judgment by the high court in the review
application (Mabuse J, with the other two judges concurring) was delivered on
17 March 2017.

[13] The high court held in favour of HSF and FUL. It reasoned as set out in this
and the following two paragraphs. Section 17CA, referred to in para 5 above,
requires an appointee as National Head of the DPCI to be a fit and proper person
who is also conscientious and has integrity. The high court had regard to the
decision of the Constitutional Court in Democratic Alliance v President of the
Republic of South Africa & others [2012] ZACC 24; 2013 (1) SA 248 (CC) (the
Simelane judgment), which involved the appointment of Mr Menzi Simelane as
National Prosecuting Authority Head, and held that the Minister, like the President,
had an obligation to ensure that there were no disqualifying factors impinging on the
appointment of an individual as the Head of an important national constitutional
institution.

[14] The high court found that the criteria set by the relevant provisions of the Act
were objective and constituted essential jurisdictional facts on which General
Ntlemeza‟s appointment had to be predicated. Mabuse J, with reference to the
Simelane judgment, said the following (para 33):
„In the Simelane case, the Constitutional Court accepted the approach of the
Supreme Court of Appeal. In paragraph [14] of the said case this is what the Constitutional
Court had to say:
“The Supreme Court of Appeal concluded that the President‟s decision was irrational
irrespective of whether the decision taken by the President was subjective or whether the
criteria for appointment of the National Director were objective. It nevertheless concluded, for
the purpose of giving guidance, that the requirement that the National Director must be a fit
and proper person constituted a jurisdictional fact capable of objective ascertainment.”
Accordingly, even where the relevant decision maker has, in terms of the law, a discretion
relating to the person to be appointed, the person who is ultimately appointed must be a fit
and proper person in the eyes of the Minister:
“Second, and as the Supreme Court of Appeal correctly points out, the Act itself does not
say that the candidate for appointment as National Director should be fit and proper „in the
President‟s view‟. The Legislature could easily have done so if the purpose was to leave it in
the complete discretion of the President. Crucially, as the Supreme Court of Appeal again
pointed out, the section „is couched in imperative terms. The appointee “must” be a fit and
proper person”‟.

[15] The high court considered the judicial pronouncements by Matojane J referred
to above, that reflected negatively on General Ntlemeza, to be crucial in the
assessment of whether the criteria set by s 17CA of the Act had been satisfied for
the appointment of General Ntlemeza. Mabuse J had regard to Minister Nhleko‟s
affidavit filed in opposition to the application by HSF and FUL challenging General
Ntlemeza‟s appointment, in which he stated that he had been aware of the remarks
made in the judgments but took the view that they could be discounted. The high
court held that the Minister was not entitled to ignore Matojane J‟s findings
concerning General Ntlemeza‟s lack of honesty and integrity. It found that it was for
the Minister to determine positively from the objective facts whether General
Ntlemeza was a fit and proper person. It reasoned that Minister Nhleko failed to do
so. In that regard it stated, at para 37 of its judgment:
„The judicial pronouncements made in both the main judgment and the judgment in
the application for leave to appeal are directly relevant to and in fact dispositive of the
question whether Major General Ntlemeza was fit and proper if one considers his
conscientiousness and integrity. Absent these requirements Lieutenant General Ntlemeza is
disqualified from being appointed the National Head of the DPCI.‟
The court concluded that Minister Nhleko failed to take into account relevant factors
such as the findings by Matojane J, and thus acted irrationally and unlawfully. It
made the following order:
„1. The decision of the Minister of 10 September 2015 in terms of which Major
General Ntlemeza was appointed the National Head of the Directorate of Priority Crimes
Investigations is hereby reviewed and set aside.
2. The first and second respondents, in their official capacities, are hereby ordered to
pay the applicant‟s costs, including the costs consequent upon the employment of two
counsel, the one paying the other to be absolved.‟

[16] Subsequently, General Ntlemeza applied to the high court for leave to appeal
that order (the principal order). HSF and FUL, in turn, filed a „counter-application‟, in
terms of which they sought, inter alia, as a matter of urgency, a declarator that the
operation and execution of the principal order not be suspended by virtue of any
application for leave to appeal or any appeal. That court dismissed General
Ntlemeza‟s application for leave to appeal, upheld the counter-application and made
an order in the following terms:
„…

2. The operation and execution of the order granted by this court under case no.
23199/16 on 17 March 2017 is not suspended and will continue to be operational and
executed in full whether or not there are any applications for leave to appeal and appeals or
whether or not there is any petition for leave to appeal against the said order.
3. The second respondent in the counter-application is hereby ordered to pay the
costs of this counter-application.‟
It is against that order (the execution order) and the conclusions on which it was
based, that the present appeal, in terms of s 18 of the Superior Courts Act, is
directed. Since s 18(4)(ii) gives a person against whom an execution order was
granted an automatic right of appeal, it was not necessary for leave to appeal to
have been sought.

[17] In heads of argument filed in this court and at the outset of oral argument
before us, counsel on behalf of General Ntlemeza relied on a jurisdictional point
which they submitted, was dispositive of the appeal. The proposition was framed as
follows:
In terms of s 18(1), a pending decision on an application for leave to appeal or an
appeal was a jurisdictional requirement before a court considering an application to
enforce an order was empowered to make an execution order of the kind set out in
the preceding paragraph. It was contended that sequentially the application for leave
to appeal by General Ntlemeza had been refused before FUL‟s counter-application
was upheld and thus the high court was precluded from considering HSF and FUL‟s
counter-application, because the jurisdictional fact of a pending decision in relation to
an appeal or an application for leave to appeal was absent.

[18] It is necessary to consider whether that contention is well-founded. To that
end, I propose to first consider the position at common law in relation to such
applications before the enactment of s 18 of the Superior Courts Act. In the event of
it being held that the preliminary point is without substance, I propose to deal with
the further provisions of s 18 to determine whether HSF and FUL satisfied its
requirements thereby justifying the grant of the execution order.

[19] This court, in South Cape Corporation (Pty) Ltd v Engineering Management
Services (Pty) 1977 (3) SA 534 (A) at 544H-545G, set out the common law position
as follows:
„Whatever the true position may have been in the Dutch Courts, and more particularly
the Court of Holland . . . it is today the accepted common law rule of practice . . . that
generally the execution of a judgment is automatically suspended upon the noting of an
appeal, with the result that, pending the appeal, the judgment cannot be carried out and no
effect can be given thereto, except with the leave of the court which granted the judgment.
To obtain such leave the party in whose favour the judgment was given must make special
application . . . The purpose of this rule as to the suspension of a judgment on the noting of
an appeal is to prevent irreparable damage from being done to the intending appellant,
either by levy under a writ of execution or by execution of the judgment in any other manner
appropriate to the nature of the judgment appealed from . . . The court to which application
for leave to execute is made has a wide general discretion to grant or refuse leave and, if
leave be granted, to determine the conditions upon which the right to execute shall be
exercised . . . In exercising this discretion the court should, in my view, determine what is
just and equitable in all the circumstances, and, in doing so, would normally have regard,
inter alia, to the following factors:
(1) the potentiality of irreparable harm or prejudice being sustained by the appellant on
appeal (respondent in the application) if leave to execute were to be granted;
(2) the potentiality of irreparable harm or prejudice being sustained by the respondent on
appeal (applicant in the application) if leave to execute were to be refused;
(3) the prospects of success on appeal, including more particularly the question as to
whether the appeal is frivolous or vexatious or has been noted not with the bona
fide intention of seeking to reverse the judgment but for some indirect purpose,
eg, to gain time or harass the other party; and
(4) where there is the potentiality of irreparable harm or prejudice to both appellant and
respondent, the balance of hardship or convenience, as the case may be.‟
(Authorities omitted.)

[20] In South Cape this court held that in an application for leave to execute the
onus rests on the applicant to show that he or she is entitled to such an order.3 The
court went on to  hold that an order granting leave to execute pending an appeal was
one that had to be classified as being purely interlocutory and was thus not
appealable. There were exceptions to the rule that purely interlocutory orders were

3 At 548C-D.

not appealable. It is necessary to point out that a number of judgments of this court
relaxed this rule on the basis that an appeal may be heard in the exercise of the
court‟s inherent jurisdiction in extraordinary cases where grave injustice was not
otherwise preventable. In Philani-Ma-Afrika & others v Mailula & others [2009]
ZASCA 115; 2010 (2) SA 573 (SCA) this court considered the position where a high
court had granted leave to execute an eviction order despite having granted leave to
appeal. It held the execution order to be appealable in the interests of justice.4 It
must also be borne in mind that before the advent of s 18, the position at common
law was that the court had a wide general discretion to grant or refuse an execution
order on the basis of what was just and equitable whilst appreciating that the remedy
was one beyond the norm.

[21] Until its repeal on 22 May 2015, Rule 49(11) of the Uniform Rules, read as
follows:
„Where an appeal has been noted or an application for leave to appeal against or to
rescind, correct, review 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 appeal
or application, unless the court which gave such order, on the application of a party,
otherwise directs.‟
This was a restatement of the common law and formed the basis on which
applications of this kind were determined.

[22] Section 18 of the Superior Courts Act introduced on 23 August 20135 reads
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.
(2) Subject to subsection (3), unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision that is an interlocutory order not
having the effect of an final judgment, which is the subject of an application for leave

4 See also Moch v Nedtravel (Pty) Ltd t/a American Express Travel Services 1996 (3) SA 1 (A); S v
Western Areas Ltd & others 2005 (5) 214 (SCA), and Nova Property Group Holdings Ltd & others v
Cobbett & another [2016] ZASCA 63; 2016 (4) SA 317 (SCA).
5 Issued in terms of GN R36, GG 36774, 22 August 2013.

to appeal or of an appeal, is not 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.
(4) If a court orders otherwise, as contemplated in subsection (1) –
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest court;
(iii) the court hearing such an appeal must deal with it as a matter of extreme urgency;
and
(iv) such order will be automatically suspended, pending the outcome of such appeal.
(5) For the purposes of subsections (1) and (2), a decision becomes the subject of an
application for leave to appeal or of an appeal, as soon as an application for leave to
appeal or a notice of appeal is lodged with the registrar in terms of the rules.‟

[23] As can be seen, s 18(4)(ii) has made orders to execute appealable,
fundamentally altering the general position that such being purely interlocutory
orders, they were not appealable. Moreover, it granted to a party against whom such
an order was made, an automatic right of appeal. In addition  s 18(3) requires an
applicant for an execution order to prove on a balance of probabilities that he or she
„will‟ suffer irreparable harm if the order is not granted and that the other party „will
not‟ suffer such harm.

[24] Since a court of three judges was constituted to hear the matter, this court, so
it was submitted, was „the next highest court‟ envisaged in s 18(4)(ii). It is on that
basis that the present appeal came to be set down on an expedited basis before this
court, because s 18(4)(iii) directed that the appeal had to be dealt with as a matter of
extreme urgency. Understandably, because it is such a dramatic change, only one
appeal to „the next highest court‟ is permissible. No further appeal beyond this court
appears competent – for present purposes it is not necessary to decide this point.
Nor, is it necessary to determine whether the next highest court could, as well, be
the full court of the high court in circumstances where the execution order was

issued by a single Judge.6 Whatever else, this matter, which is properly before this
court, requires the consideration of a novel statutory provision and it would be in the
interests of justice for us to do so.

[25] In order to embark on a determination of whether the preliminary jurisdictional
point raised on behalf of General Ntlemeza, set out in para 17 above, has substance,
it is necessary to consider the provisions of s 18(1) and (2). These sections provide
for two situations. First, a judgment (the principal order) that is final in effect, as
contemplated in s 18(1): In such a case the default position is that the operation and
execution of the principal order is suspended pending „the decision of the application
for leave to appeal or appeal‟. Second, in terms of s 18(2), an interlocutory order that
does not have the effect of a final judgment: The default position (a diametrically
opposite one to that contemplated in s 18(1)) is that the principal order is not
suspended pending the decision of the application for leave to appeal or appeal. This
might at first blush appear to be a somewhat peculiar provision as, ordinarily, such a
decision is not appealable. However, this subsection appears to have been inserted
to deal with the line of cases in which the ordinary rule was relaxed referred to in
para 20 above.

[26] Both sections empower a court, assuming the presence of certain
jurisdictional facts, to depart from the default position. It is uncontested that the high
court‟s judgment on the merits of General Ntlemeza‟s appointment is one final in
effect and therefore s 18(1) applies. This section provides that the operation and
execution of a decision that is the „subject of an application for leave to appeal or
appeal‟ is suspended pending the decision of either of those two processes. Section
18(5) defines what the words „subject of an application for leave to appeal or appeal‟
mean: „a decision becomes the subject of an application for leave to appeal or of an
appeal, as soon as an application for leave to appeal or a notice of appeal is lodged
with the registrar in terms of the rules.‟

[27] When the high court made its decision on the merits of General Ntlemeza‟s
appointment on 17 March 2017, that order immediately came into operation and

6 This court might in future face a growing number of appeals against execution orders, particularly
because the right to appeal is automatic, which might clog its roll.

could be executed. When General Ntlemeza, on 23 March 2017, filed his application
for leave to appeal, the order (the principal order) of that court was suspended
pending a decision on that application. HSF and FUL‟s „counter-application‟, seeking
the execution order, was thus well within the parameters of s 18(1). Did the dismissal
of General Ntlemeza‟s application for leave to appeal prior to a decision on the
execution application remove the jurisdictional underpinning for an execution order?
The short answer is no. The reasons for that conclusion are set out hereafter.

[28] The primary purpose of s 18(1) is to re-iterate the common law position in
relation to the ordinary effect of appeal processes – the suspension of the order
being appealed – not to nullify it. It was designed to protect the rights of litigants who
find themselves in the position of General Ntlemeza, by ensuring, that in the ordinary
course, the orders granted against them are suspended whilst they are in the
process of attempting, by way of the appeal process, to have them overturned. The
suspension contemplated in s 18(1) would thus continue to operate in the event of a
further application for leave to appeal to this court and in the event of that being
successful, in relation to the outcome of a decision by this court in respect of the
principal order. Section 18(1) also sets the basis for when the power to  depart from
the default position comes into play, namely, exceptional circumstances which must
be read  in conjunction with the further requirements set by s18(3). As already stated
and as will become clear later, the Legislature has set the bar fairly high.

[29] The preliminary point on behalf of General Ntlemeza referred to in para 17
above does not accord with the plain meaning of s 18(1). As pointed out on behalf of
HSF and FUL, and following on what is set out in the preceding paragraph, s 18(1)
does not say that the court‟s power to reverse the automatic suspension of a
decision is dependent on that decision being subject to an application for leave to
appeal or an appeal. It says that, unless the court orders otherwise, such a decision
is automatically suspended.

[30] Moreover, contextually, the power granted to courts by s 18 must be seen
against the general inherent power of courts to regulate their own process. This
inherent jurisdiction is now enshrined in s 173 of the Constitution which provides:

„The Constitutional Court, the Supreme Court of Appeal and the High Court of South
Africa each has the inherent power to protect and regulate their own process, and to develop
the common law, taking into account the interests of justice.‟

[31] A further application for leave to appeal the principal order was filed in this
court on 21 April 2017. This was always highly likely and always in prospect. The
nature of the contestation in the high court, including the negative aspersions
concerning the character of the head of a leading crime-fighting unit of the South
African Police Service, leads to that compelling conclusion. So too, one would
imagine, whatever this court decides it is unlikely to be the final word on the matter.
The execution order by the high court reasonably anticipated further appeal
processes. This was in any event what was sought by HSF and FUL in their counter
application. In their notice of motion, they sought an order that the operation and
execution of the principal order not be suspended „by any application for leave to
appeal or any appeal, and the order continues to be operational and enforceable and
operate … until the final determination of all present and future leave to appeal
applications and appeals…‟ A court charged with the adjudication of an application
for an execution order would be astute to avoid a multiplicity of applications.

[32] There can be no doubt that an application by HSF and FUL for leave to
execute, had there not been one earlier, could have been brought and would have
been competent after the application for leave to appeal was filed in this court.
Courts must be the guardians of their own process and be slow to avoid a to-ing and
fro-ing of litigants.7 The high court‟s order achieved that end. A proper case had
been made out by HSF and FUL for anticipatory relief. The high court reasonably
apprehended on the evidence before it that further appeals were in the offing and
issued an order  that sought not just to crystallize the position but also to anticipate
further appeal processes. For all the reasons aforesaid there is no merit in the
preliminary point.

7 In Copthall Stores Ltd. v Willoughby's Consolidated Co. Ltd. (1)1913 AD 305 at 308, this court stated
that it has an inherent right to control its own judgments, and in the light of the circumstances of each
case to say whether or not execution should be suspended pending an application for special leave to
appeal. See also Fismer v Thornton 1929 AD 17 at 19.

[33] There is a further point taken on behalf of General Ntlemeza that requires only
brief attention. The high court‟s order was handed down on 12 April 2017 and the
reasons for the order were provided on 10 May 2017. It was submitted on behalf of
General Ntlemeza that since s 18(4)(i) states that a court must immediately record its
reasons for ordering „otherwise‟, the high court by not doing so was in contravention
of a peremptory provision, which must be seen in conjunction with the provisions of
s18(4)(iii) that provides that the court hearing the automatic appeal must  deal with it
as a matter of extreme urgency. The consequence, so it was contended, was that
General Ntlemeza was frustrated in asserting his constitutionally guaranteed right of
access to court. It appears to be suggested that this somehow nullified the
proceedings related to the application for leave to execute the principal order. It must
be pointed out that General Ntlemeza filed his notice of appeal in this court a day
after the order upholding the application for leave to execute was issued, on 13 April
2017. The application for leave to appeal in relation to the principal order was filed
on 21 April 2017. General Ntlemeza‟s notice of appeal was amended on 11 May
2017, after the high court had provided its reasons. The present appeal was heard
on 2 June 2017. Far from being frustrated, General Ntlemeza has had a speedy
hearing. Furthermore, since the order to execute was suspended pending the
finalisation of the present appeal, no prejudice appears to have been occasioned.
Simply put, the purpose of s 18(4) namely, to ensure a speedy appeal, was
achieved. That being said it would be a salutary practice to provide reasons pari
passu with the order being issued.

[34] That leads us to a consideration of whether the high court in granting the
order to execute had due regard to the relevant provisions of s 18 and applied them
correctly.

[35] Section 18(1) entitles a court to order otherwise „under exceptional
circumstances‟. Section 18(3) provides a further controlling measure, namely, a party
seeking an order in terms of s 18(1) is required „in addition‟, to prove 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.

[36] In Incubeta Holdings & another v Ellis & another 2014 (3) SA 189 (GJ) para
16, the court said the following about s 18:
„It seems to me that there is indeed a new dimension introduced to the test by the
provisions of s 18. The test is twofold. The requirements are:

First, whether or not “exceptional circumstances” exist; and

Second, proof on a balance of probabilities by the applicant of –
o the presence of irreparable harm to the applicant/victor, who wants to put into
operation and execute the order; and
o the absence of irreparable harm to the respondent/loser, who seeks leave to
appeal.‟

[37] As to what would constitute exceptional circumstances, the court, in Incubeta,
looked for guidance to an earlier decision (on Admiralty law), namely, MV Ais Mamas
Seatrans Maritime v Owners, MV Ais Mamas, & another 2002 (6) SA 150 (C), where
it was recognised that it was not possible to attempt to lay down precise rules as to
what circumstances are to be regarded as exceptional and that each case has to be
decided on its own facts. However, at 156H-157C, the court said the following:
„What does emerge from an examination of the authorities, however, seems to me to be the
following:
1. What is ordinarily contemplated by the words “exceptional circumstances” is
something out of the ordinary and of an unusual nature; something which is excepted
in the sense that the general rule does not apply to it; something uncommon, rare or
different; “besonder”, “seldsaam”, “uitsonderlik”, or “in hoë mate ongewoon”.
2. To be exceptional the circumstances concerned must arise out of, or be incidental to,
the particular case.
3. Whether or not exceptional circumstances exist is not a decision which depends
upon the exercise of a judicial discretion: their existence or otherwise is a matter of
fact which the Court must decide accordingly.
4. Depending on the context in which it is used, the word “exceptional” has two shades
of meaning: the primary meaning is unusual or different; the secondary meaning is
markedly unusual or specially different.
5. Where, in a statute, it is directed that a fixed rule shall be departed from only under
exceptional circumstances, effect will, generally speaking, best be given to the
intention of the Legislature by applying a strict rather than a liberal meaning to the
phrase, and by carefully examining any circumstances relied on as allegedly being
exceptional.‟

[38] In UFS v Afriforum & another [2016] ZASCA 165 (17 November 2016), para 9,
this court stated that it was immediately discernable from ss 18(1) and (3) that the
Legislature proceeded from the well-established premise of the common law, that
the granting of relief of this nature constituted an extraordinary deviation from the
norm that, pending an appeal, a judgment and its attendant orders are suspended. It
noted that the exceptionality is further underscored by the requirement of s 18(4)(i);
that the court making such an order „must immediately record its reasons for doing
so‟. I interpose to state that the reasons contemplated in s 18(4)(i) must relate to the
court‟s entire reasoning for deciding „otherwise‟ and must therefore also include its
findings on irreparable harm as contemplated in s 18(3).

[39] In UFS, this court agreed that whether exceptional circumstances were
present depended on the facts of each case. The circumstances must be such as to
justify the deviation from the norm.8 The high court, in deciding the application in
terms of s 18(1), after referring to Incubeta, went on to consider the facts. It took into
account that the DPCI was an essential component of South Africa‟s democracy and
that given its functions, it was vital that the National Head had to be someone of
integrity. In this regard it considered the judicial pronouncements of Matojane J to be
crucial.
[40] Before the high court, counsel on behalf of General Ntlemeza had submitted
that HSF, FUL and the high court itself had not taken into account the remarks of
Tuchten J in his judgment declining to grant an interim interdict pending finalization
of the application to have General Ntlemeza‟s appointment declared unlawful.9 It was
contended that those remarks had the effect of neutralizing the negative judicial
pronouncements of Matojane J.
[41] It is apt at this stage to pause and consider the remarks made by Tuchten J.
He considered Matojane‟s adverse comments, referred to in para 8 above, and the
accusation that Matojane J had met privately with the legal representatives of one
party. According to Tuchten J, these statements had „distressed‟ Matojane J.10
Tuchten J considered the further negative findings by Matojane J, referred to in

8 UFS v Afriforum & another [2016] ZASCA 165 (17 November 2016) para 13.
9 Helen Suzman Foundation & another v Minister of Police & others (GP) unreported case no
23199/15 (19 April 2016).
10 Ibid, para 25.

paras 9 and 10 above, which were based on events related to the application for
leave to appeal and the „counter-application‟. He said the following (para 27):
„It is difficult to understand how the conduct of [General Ntlemeza] in relation to the
application to put the main judgment into force pending appeal could have a bearing on the
ground of appeal.‟
He went on to state (para 66):
„I do not think that in Sibiya, in relation to the application for leave to appeal and to put the
order into operation pending the appeal, I would have judged [General Ntlemeza] as
severely as did Matojane J. I think one must make some allowance for an aggrieved litigant.
In addition the preposterous conclusion to which [General Ntlemeza] came regarding the
probity of the learned judge was probably fueled by absurd legal advice. [General Ntlemeza]
and probably one or more of his lawyers jumped to a wholly unjustified conclusion. But that,
as I see it, does not necessarily, or even probably, prove a lack of integrity.‟

[42] To the submissions by counsel on behalf of General Ntlemeza in relation to
the remarks of Tuchten J, referred to in para 41 above, the high court responded as
follows:
„[General] Ntlemeza and the Minister sought leave ... to appeal the Sibiya judgment and
leave to appeal was refused. The Minister thereafter petitioned the Supreme Court of Appeal
against Matojane‟s judgment in which he made remarks about General Ntlemeza. The
Minister‟s application for leave to appeal was dismissed….‟11
Later the court said:
„It is our considered view that those remarks which constituted the foundation upon which
the applicants launched the main application themselves constitute exceptional
circumstances as envisaged by s 18(1) of the Act.‟12

[43] In adjudicating the application for leave to execute the principal order the high
court considered General Ntlemeza‟s prospects of success on appeal in relation to
the finding that his appointment was unlawful. It concluded that the findings by
Matojane J which reflected negatively on General Ntlemeza were a major obstacle
for him to overcome and held that his prospects of success were „severely limited‟.

11 Para 14.
12 Para 16.

[44] In UFS, this court, after considering that Incubeta had held that the prospects
of success in the pending appeal played no part in deciding whether to grant the
application, preferred the contrary approach of the court in The Minister of Social
Development Western Cape & others v Justice Alliance of South Africa & another
(WCC) unreported case no 20806/13 (1 April 2016). However, in UFS, in deciding
the matter before it, this court recorded that the review record was not before it and
thus had no regard to the prospects of success. We are in the same position in the
present appeal. As in UFS, but more so, because of the application for leave to
appeal the principal order pending in this case, before us the question of prospects
of success recedes into the background. As stated at the commencement of this
judgment, s 18 has now had as a consequence the curious and ostensibly
undesirable position that there are two appeal processes in one appeal court in
relation to the same case.

[45] Before us it was submitted that the appellants had failed to show exceptional
circumstances and that the high court had erred in deciding the contrary. I disagree,
for the reasons provided by that court, referred to above, and those submitted on
behalf of HSF and FUL. I agree with the remarks of the high court in relation to the
pronouncements by Tuchten J. In my view he misconceived his role. He was not
sitting as a court of appeal or review. His remarks do not, as suggested by counsel
for HSF and FUL, have a neutralising or any other effect of disturbing the findings of
Matojane J. The proper functioning of the foremost corruption busting and crime
fighting unit in our country dictates that it should be free of taint. It is a matter of great
importance. The adverse prior crucial judicial pronouncements and the place that the
South African Police Service maintains in the constitutional scheme as well as the
vital role of the National Head of the DPCI and the public interests at play, are all
factors that weighed with the court in its conclusion that there were exceptional
circumstances in this case.

[46]  The high court turned its attention to the requirements of s 18(3), namely the
irreparable harm that would be suffered by either party. It took into account the
submission on behalf of General Ntlemeza that removal from his office, „even if it is
momentary‟ would be a devastating blow to his „long and unblemished‟ career. The
high court held that the damage that had been done was not as a consequence of

the main application but because of the findings of Matojane J, and stated that it
failed to see how the enforcement order would wreak the harm General Ntlemeza
complained would be occasioned. It took into account that he continued to be paid
his full salary and that he still had the possibility of vindication by way of an appeal,
should it ensue as a result of a favourable outcome of his petition and a subsequent
appeal to this court. Before us, counsel for General Ntlemeza appeared to restrict
himself to the contention that General Ntlemeza was suffering reputational harm. But
given the findings of Matojane J, the submission that being kept out of his office
occasions him reputational harm does not withstand scrutiny. I may add that General
Ntlemeza sought to appeal against the judgment of Matojane J, but his petition to
this court failed. In the result, the findings by Matojane J are no longer susceptible to
reconsideration.

[47] Insofar as the requirements of s 18(3) are concerned the high court cannot
be faulted for its approach in respect of the question of irreparable harm to General
Ntlemeza. On the other side of the coin there is the public interest and the crucial
place that the DPCI enjoys in our young democracy as set out above.13In my view
the high court cannot be criticized for concluding that HSF and FUL had proved, on a
balance of probabilities, that the public will suffer irreparable harm if the court does
not grant the order, and that General Ntlemeza will not suffer irreparable harm in
light thereof.

[48] For completeness, it is necessary to record that Minister Nhleko, the decision-
maker in relation to General Ntlemeza‟s appointment, made common cause with him
in his opposition to the challenge by HSF and FUL. The Minister of Police and
General Ntlemeza applied for leave to appeal the judgment. On 11 April 2017
Minister Nhleko‟s successor, Minister Mbalula, withdrew the application for leave to
appeal and tendered costs. The present Minister played no part in this appeal.
Simply put, the present Minister did not seek to defend Minister‟s Nhleko‟s decision
to appoint General Ntlemeza.

13 Helen Suzman Foundation & another v Minister of Police & others (GP) unreported case no
23199/15 (19 April 2016) para 30.

[49] Even though the present appeal is being pursued by General Ntlemeza in his
personal capacity, it became apparent towards the end of proceedings before us that
his case was funded by the State. The propriety of that course is beyond our
scrutiny. There is of course no reason in the present case for a costs order to attach
in any other way than personally.

[50] It must by now be apparent that the appeal is bound to fail. The effect of the
order that follows is that the high court‟s execution order set out in para 16 above
remains extant with the consequence that General Ntlemeza is unable to return to
his post pending the final determination of the present application for leave to appeal
and/or any further appeal processes in relation to the merits of his appointment.

[51] For all the reasons aforesaid the following order is made:
1 The appeal is dismissed with costs including the costs of two counsel.
2 The appellant is ordered to pay the costs personally.

_____________________
M S Navsa

Judge of Appeal

APPEARANCES:
Appellant:

N Dukada SC (with Z Madlanga)

Instructed by:

Ngidi & Company Inc., Pretoria

Bahlekazi Attorneys, Bloemfontein

Respondents:

D Unterhalter SC (with C Steinberg)

Instructed by:

Webber Wentzel Attorneys, Sandton

Symington & De Kok Attorneys, 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

9 June 2017

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Ntlemeza v Helen Suzman Foundation [2017] ZASCA 93 (9 June 2017)

MEDIA STATEMENT

The Supreme Court of Appeal (SCA) today dismissed an appeal by Lieutenant-General
Mthandazo Berning Ntlemeza (General Ntlemeza) against a judgment of the Gauteng
Division of the High Court, Pretoria (Mabuse, Kollapen and Baqwa JJ sitting as court of first
instance). The appeal concerned the question whether General Ntlemeza ought to be
permitted to continue in his post as National Head of the Directorate for Priority Crime
Investigations (DPCI), pending the finalisation of an application for leave to appeal filed in
the SCA.

The appeal emanated from the following factual background. On 10 September 2015,
General Ntlemeza was appointed National Head of the DPCI by the erstwhile Minister of
Police, Mr Nkosinathi Phiwayinkosi Thamsanqa Nhleko.  Before this, General Ntlemeza had
served as acting National Head of the DPCI for a period of approximately one year. During
March 2016 General Ntlemeza’s appointment was challenged in the Gauteng Division of the
High Court, Pretoria, by the first and second respondents, the Helen Suzman Foundation
(HSF) and Freedom Under Law NPC (FUL), respectively. These institutions are non-profit
organisations concerned with promoting constitutional values and the rule of law, and
brought the application to review and set aside General Ntlemeza’s appointment in their own
and the national interest. Their principal ground of review was that Minister Nhleko had
failed to take into account materially relevant considerations, more particularly, he failed to
have proper regard to a judgment of the High Court, by Matojane J, in an earlier case in
which General Ntlemeza’s integrity was called into question.

That case was Sibiya v Minister of Police & others (GP) unreported case no 5203/15 (20
February 2015), which concerned the suspension of Major General Shadrack Sibiya, a
Provincial Head of the DPCI. General Ntlemeza had accused General Sibiya of being
involved in the illegal rendition of certain Zimbabwean citizens. In deciding the matter,
Matojane J made adverse findings against General Ntlemeza. He stated that the decision to
suspend General Sibiya ‘was taken in bad faith and for reasons other than those given. It
[was] arbitrary and not rationally connected to the purpose for which it was taken and
accordingly, it [was] unlawful as it violate[d] applicant’s constitutional right to an
administrative action that is lawful, reasonable and procedurally fair’. General Ntlemeza
lodged an application for leave to appeal that judgment and General Sibiya applied for leave
to execute the order setting aside his suspension. In his assessment of the merits of the two
applications, Matojane J once again made remarks calling into question General Ntlemeza’s
integrity. He accused General Ntlemeza of misleading the court by not informing it of a
report by the National Independent Police Directorate which exonerated General Sibiya.
According to Matojane J, General Ntlemeza referred only to a prior report by the Provincial
Independent Police Directorate, which incriminated General Sibiya. He went on to say: ‘In
my view, the conduct of [General Ntlemeza] shows that he is biased and dishonest. To
further show that [General Ntlemeza was] dishonest and lack[ed] integrity and honour, he
made false statements under oath’. Matojane J dismissed the application for leave to appeal
and granted the application to execute. Subsequent attempts by General Ntlemeza to
appeal the Sibiya judgment were unsuccessful.

It was on the strength of the Sibiya judgment that HSF and FUL sought to review General
Ntlemeza’s appointment. A full court (the high court) comprising three judges (Mabuse,
Kollapen and Baqwa JJ), perhaps because of the national importance of the case, was
constituted to hear the review application brought by HSF and FUL to have General
Ntlemeza’s appointment set aside. As Part A of that application, HSF and FUL sought an
interim interdict preventing General Ntlemeza from exercising any power or discharging any
function or duty as head of the DPCI, pending the final determination of the review
application. The application for interim relief was dismissed by Tuchten J.  A judgment by
the high court in the review application (Mabuse J, with the other two judges concurring)
was delivered on 17 March 2017. The high court held in favour of HSF and FUL. It reasoned
that s 17CA of the South African Police Service Act 68 of 1995 (the Act), in terms of which
General Ntlemeza was purportedly appointed, required an appointee as National Head of
the DPCI to be a fit and proper person who is also conscientious and has integrity. The high
court had regard to the decision of the Constitutional Court in Democratic Alliance v

President of the Republic of South Africa & others [2012] ZACC 24; 2013 (1) SA 248 (CC)
(the Simelane judgment), which involved the appointment of Mr Menzi Simelane as National
Prosecuting Authority Head, and held that the Minister, like the President, had an obligation
to ensure that there were no disqualifying factors impinging on the appointment of an
individual as the Head of an important national constitutional institution. The high court
considered the judicial pronouncements by Matojane J that reflected negatively on General
Ntlemeza, to be crucial in the assessment of whether the criteria set by s 17CA of the Act
had been satisfied for the appointment of General Ntlemeza. The high court held that the
Minister was not entitled to ignore Matojane J’s findings concerning General Ntlemeza’s lack
of honesty and integrity. It found that it was for the Minister to determine positively from the
objective facts whether General Ntlemeza was a fit and proper person. It reasoned that
Minister Nhleko had failed to do so and concluded that Minister Nhleko acted irrationally and
unlawfully in failing to take into account relevant factors such as the findings by Matojane J.
It made an order that, inter alia:
‘1. The decision of the Minister of 10 September 2015 in terms of which Major General Ntlemeza was
appointed the National Head of the Directorate of Priority Crimes Investigations is hereby reviewed
and set aside.’

As mentioned, General Ntlemeza subsequently applied to the high court for leave to appeal
that order (the principal order). HSF and FUL, in turn, filed a counter-application, in terms of
which they sought, inter alia, as a matter of urgency, a declarator that the operation and
execution of the principal order not be suspended by virtue of any application for leave to
appeal or any appeal. That court dismissed General Ntlemeza’s application for leave to
appeal and upheld the counter-application. It is the grant of the latter application that was
the subject of the appeal before the SCA. This application was brought in terms of s 18 of
the Superior Courts Act. Section 18 of the Superior Courts gives an aggrieved party an
automatic right of appeal ‘to the next highest court’ against a decision of the high court
ordering the execution of an earlier ruling issued by it, pending the finalisation of an appeal
or an application for leave to appeal.

Also pending before the SCA at the time that this appeal was heard, was General
Ntlemeza’s petition for leave to appeal against the refusal by the high court of his application
for leave to appeal against the principal order. The SCA was thus in a curious position,
created by s 18 of the Superior Courts Act, where two parallel processes were being
conducted in an appeal court in one case.
In the SCA, General Ntlemeza relied on a jurisdictional point which, according to him, was
dispositive of the appeal. He framed the proposition as follows:

‘In terms of s 18(1) of the Superior Courts Act, a pending decision on an application for leave to
appeal or an appeal was a jurisdictional requirement before a court considering an application to
enforce an order was empowered to make an execution order of the kind set out in the preceding
paragraph. It was contended that sequentially the application for leave to appeal by General
Ntlemeza had been refused before FUL’s counter-application was upheld and thus the high court was
precluded from considering HSF and FUL’s counter-application, because the jurisdictional fact of a
pending decision in relation to an appeal or an application for leave to appeal was absent.’

Importantly, the SCA, at the outset, dealt with the importance of the DPCI by locating it in its
constitutional and statutory setting. It noted that the South African Police Service Act 68 of
1995 (the Act), in terms of which the DPCI was established, has its genesis in s 205 of the
Constitution, which provides that the National Police Service must be structured to function
in the national, provincial and, where appropriate, local spheres of government. The SCA
also had regard to the provisions of s 17 of the Act which established the DPCI, and in
particular, s 17CA(1) which requires the National Head to be, inter alia, a fit and proper
person who was also contentious and had integrity.

In consideration whether General Ntlemeza’s contention regarding s 18 of the Superior
Courts Act was sustainable, the SCA proposed first, to  consider the position at common law
in relation to such applications before the enactment of s 18 of the Superior Courts Act. And
in the instance of it being held that the preliminary point is without substance, the SCA
would then deal with the further provisions of s 18 to determine whether HSF and FUL
satisfied its requirements thereby justifying the grant of the execution order by the high
court.

With regards to the common law position prior to the enactment of s 18 of the Superior
Courts Act, the SCA considered the case of South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty) 1977 (3) SA 534 (A) which held that in an application for leave
to execute, the onus rested on the applicant to show that he or she was entitled to such an
order. In that case, the court went on to hold that an order granting leave to execute pending
an appeal was one that had to be classified as being purely interlocutory and was thus not
appealable. The SCA, however, noted that there were exceptions to the rule that purely
interlocutory orders were not appealable, and highlighted cases where this rule was relaxed
on the basis that an appeal may be heard in the exercise of the court’s inherent jurisdiction
in extraordinary cases where grave injustice was not otherwise preventable.

The SCA also considered the import of Rule 49(11) of the Uniform Rules, which restated the
common law position and formed the basis upon which applications of the kind in question
were determined. With the advent of s 18 of the Superior Courts Act, this rule was repealed.
It read as follows:
‘Where an appeal has been noted or an application for leave to appeal against or to rescind, correct,
review 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 appeal or application, unless the court
which gave such order, on the application of a party, otherwise directs.’

Several changes to the common law position were introduced by s 18, and the SCA
considered some of these changes.

The SCA noted that s 18(4)(ii) has made orders to execute appealable, fundamentally
altering the general position that such being purely interlocutory orders, they were not
appealable. Moreover, the court continued, it granted a party against whom such an order
was made, an automatic right of appeal. In addition  s 18(3) requires  an applicant for an
execution order to prove on a balance of probabilities that he or she ‘will’ suffer irreparable
harm if the order is not granted and that the other party ‘will not’ suffer such harm.

At para 25 of the judgment, the court said:
‘In order to embark on a determination of whether the preliminary jurisdictional point raised on behalf
of General Ntlemeza, has substance, it is necessary to consider the provisions of s 18(1) and (2).
These sections provide for two situations. First, a judgment (the principal order) that is final in effect,
as contemplated in s 18(1): In such a case the default position is that the operation and execution of
the principal order is suspended pending ‘the decision of the application for leave to appeal or
appeal’. Second, in terms of s 18(2), an interlocutory order that does not have the effect of a final
judgment:  The default position (a diametrically opposite one to that contemplated in s 18(1)) is that
the principal order is not suspended pending the decision of the application for leave to appeal or
appeal. This might at first blush appear to be a somewhat peculiar provision as, ordinarily, such a
decision is not appealable. However, this subsection appears to have been inserted to deal with the
line of cases in which the ordinary rule was relaxed ….’

The court continued, at para 26, stating that:
‘Both sections empower a court, assuming the presence of certain jurisdictional facts, to depart from
the default position. It is uncontested that the high court’s judgment on the merits of General
Ntlemeza’s appointment is one final in effect and therefore s 18(1) applies. This section provides that
the operation and execution of a decision that is the ‘subject of an application for leave to appeal or
appeal’ is suspended pending the decision of either of those two processes. Section 18(5) defines

what the words ‘subject of an application for leave to appeal or appeal’ mean: ‘a decision becomes
the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to
appeal or a notice of appeal is lodged with the registrar in terms of the rules.’

The SCA noted that when the high court made its decision on the merits of General
Ntlemeza’s appointment on 17 March 2017, that order immediately came into operation and
could be executed. When General Ntlemeza, on 23 March 2017, filed his application for
leave to appeal, the order (the principal order) of that court was suspended pending a
decision on that application. HSF and FUL’s ‘counter-application’, seeking the execution
order, the SCA continued, was thus well within the parameters of s 18(1). The question that
arose, the court said, was whether the dismissal of General Ntlemeza’s application for leave
to appeal prior to a decision on the execution application removed the jurisdictional
underpinning for an execution order? The court said that it did not.

In its reasoning, the SCA said that:
‘[28]
The primary purpose of s 18(1) is to re-iterate the common law position in relation to the
ordinary effect of appeal processes – the suspension of the order being appealed – not to nullify it. It
was designed to protect the rights of litigants who find themselves in the position of General
Ntlemeza, by ensuring, that in the ordinary course, the orders granted against them are suspended
whilst they are in the process of attempting, by way of the appeal process, to have them overturned.
The suspension contemplated in s 18(1) would thus continue to operate in the event of a further
application for leave to appeal to this court and in the event of that being successful, in relation to the
outcome of a decision by this court in respect of the principal order. Section 18(1) also sets the basis
for when the power to  depart from the default position comes into play, namely, exceptional
circumstances which must be read  in conjunction with the further requirements set by s18(3). As
already stated and as will become clear later, the Legislature has set the bar fairly high.’

The SCA found that the preliminary point on behalf of General Ntlemeza did not accord with
the plain meaning of s 18(1). The SCA agreed with HSF and FUL that s 18(1) does not say
that the court’s power to reverse the automatic suspension of a decision is dependent on
that decision being subject to an application for leave to appeal or an appeal. In addition the
court said that contextually, the power granted to courts by s 18 must be seen against the
general inherent power of courts, which power is enshrined in the s 173 of the Constitution,
to regulate their own process.

The SCA thus found that General Ntlemeza’s preliminary point was without a basis and
said:

‘[32]
There can be no doubt that an application by HSF and FUL for leave to execute, had there
not been one earlier, could have been brought and would have been competent after the application
for leave to appeal was filed in this court. Courts must be the guardians of their own process and be
slow to avoid a to-ing and fro-ing of litigants. The high court’s order achieved that end. A proper case
had been made out by HSF and FUL for anticipatory relief. The high court reasonably apprehended
on the evidence before it that further appeals were in the offing and issued an order  that sought not
just to crystallize the position but also to anticipate  further appeal processes. For all the reasons
aforesaid there is no merit in the preliminary point.’

The SCA gave short shrift to the further point raised by General Ntlemeza regarding the
failure by the high court to deliver reasons for the judgment, ‘immediately’, as envisaged in s
s18(4)(i) of the Superior Courts Act. The high court’s order was handed down on 12 April
2017 and the reasons for the order were provided on 10 May 2017. It was submitted on
behalf of General Ntlemeza that since s 18(4)(i) states that a court must immediately record
its reasons for ordering ‘otherwise’, the high court by not doing so was in contravention of a
peremptory provision, which must be seen in conjunction with the provisions of s18(4)(iii)
that provides that the court hearing the automatic appeal must  deal with it as a matter of
extreme urgency. The consequence, so it was contended, was that General Ntlemeza was
frustrated in asserting his constitutionally guaranteed right of access to court. The
suggestion was that this invalidated the proceedings related to the application for leave to
execute the principal order. The SCA noted that:
‘[34]
General Ntlemeza filed his notice of appeal in this court a day after the order upholding the
application for leave to execute was issued, on 13 April 2017. The application for leave to appeal in
relation to the principal order was filed on 21 April 2017. General Ntlemeza’s notice of appeal was
amended on 11 May 2017, after the high court had provided its reasons. The present appeal was
heard on 2 June 2017. Far from being frustrated, General Ntlemeza has had a speedy hearing.
Furthermore, since the order to execute was suspended pending the finalisation of the present
appeal, no prejudice appears to have been occasioned. Simply put, the purpose of s 18(4) namely, to
ensure a speedy appeal, was achieved. That being said it would be a salutary practice to provide
reasons pari passu with the order being issued.’

The SCA then went on to consider whether the high court in granting the order to execute
had due regard to the relevant provisions of s 18 and found that it had. On this score, the
SCA said that the high court could not be faulted in its finding that HSF and FUL proved
exceptional circumstances were present as envisaged in s 18(1), and further, that HSF and
FUL had proved, on a balance of probabilities, that they and the public, would suffer
irreparable harm if the court did not make the order and that General Ntlemeza would not
suffer irreparable harm if the court so ordered.

The SCA said the following:
‘[45]
The proper functioning of the foremost corruption busting and crime fighting unit in our
country dictates that it should be free of taint. It is a matter of great importance. The adverse prior
crucial judicial pronouncements and the place that the South African Police Service maintains in the
constitutional scheme as well as the vital role of the National Head of the DPCI and the public
interests at play, are all factors that weighed with the court in its conclusion that there were
exceptional circumstances in this case.’

In considering the requirement of irreparable harm to General Ntlemeza, the SCA said that
his complaint appeared to be restricted to him suffering reputational harm. The SCA in
dealing with this question stated that the high court could not be criticized for its approach to
the question of irreparable harm. The high court took into account that the reputational
damage complained of by General Ntlemeza did not occur as a consequence of its
judgment but because of the findings of Matojane J. The SCA said the following:
‘[46]
[The high court] took into account that he continued to be paid his full salary and that he still
had the possibility of vindication by way of an appeal, should it ensue as a result of a favourable
outcome of his petition and a subsequent appeal to this court.’
As against the question of possible reputational harm, the SCA had regard to the high court
considering the public interest and the crucial place that the DPCI enjoys in our young
democracy.

The court also remarked that the present Minister of Police, Mr Fikile Mbalula, did not seek
to defend Minister’s Nhleko’s decision to appoint General Ntlemeza. On 11 April 2017
Minister Mbalula withdrew the application for leave to appeal.

As regards the costs, the court noted that even though General Ntlemeza was pursuing the
appeal in his personal capacity, it became apparent, at the end of the proceedings before it,
that his case was funded by the State. The SCA said that it could not scrutinize the propriety
of that course. It went on to say that in so far as appeal was concerned, it must follow that
General Ntlemeza has to pay the costs personally.

In the end, the SCA said:
‘[50]
It must by now be apparent that the appeal is bound to fail. The effect of the order that follows
is that the high court’s execution order set out in para 16 above remains extant with the consequence
that General Ntlemeza is unable to return to his post pending the final determination of the present
application for leave to appeal and/or any further appeal processes in relation to the merits of his
appointment.

--- ends ---