Van der Spuy v General Council of the Bar of South Africa (CCT48/01) [2002] ZACC 17; 2002 (5) SA 392; 2002 (10) BCLR 1092 (18 July 2002)

Van der Spuy v General Council of the Bar of South Africa (CCT48/01) [2002] ZACC 17; 2002 (5) SA 392; 2002 (10) BCLR 1092 (18 July 2002)

The Constitutional Court held that direct access is an exceptional remedy and should only be granted where it is in the interests of justice. The applicant failed to explain why he did not pursue the ordinary appellate route after the Supreme Court of Appeal refused his petition. The constitutional issues raised had already been canvassed in previous cases, and new factual disputes had arisen that were not properly ventilated in the lower courts. The Court emphasized that disputes of fact and matters involving the development of the common law should be resolved in the High Court or Supreme Court of Appeal before reaching the Constitutional Court. The pending competition law litigation...

Citation
[2002] ZACC 17
Parties
Applicant: Adriaan Secundus van der Spuy; Respondent: General Council of the Bar of South Africa; Appellant: Minister of Justice and Constitutional Development; Appellant: Advocates for Transformation; Appellant: Law Society of South Africa
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
18 July 2002
Case Number
CCT48/01
Procedural Posture
Direct Access Application / Application for Direct Access to Constitutional Court Under Rule 17
Outcome
Application for direct access dismissed.
Judges
Langa DCJ, Chaskalson CJ, Ackermann J, Du Plessis AJ, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'Regan J, Sachs J, Skweyiya AJ
Legal Topics
Referral Rule, Access to Justice, Regulation of Legal Profession, Direct Access, Competition Act, Transformation of Legal Profession
Constitutional Law Civil Procedure Competition Law Referral Rule Access to Justice Regulation of Legal Profession Direct Access Competition Act +1 more

Case Brief

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Parties

Adriaan Secundus van der Spuy

Applicant

General Council of the Bar of South Africa

Respondent

Minister of Justice and Constitutional Development

Appellant

Advocates for Transformation

Appellant

Law Society of South Africa

Appellant

Procedural Posture

Direct Access Application / Application for Direct Access to Constitutional Court Under Rule 17

Legal Issues

  1. 1 Whether the referral rule of the General Council of the Bar is inconsistent with the Constitution.
  2. 2 Whether direct access to the Constitutional Court should be granted in this matter.
  3. 3 Whether the referral rule violates sections 22, 34, and 35(2)(b) of the Constitution.

Ratio Decidendi

The Constitutional Court held that direct access is an exceptional remedy and should only be granted where it is in the interests of justice. The applicant failed to explain why he did not pursue the ordinary appellate route after the Supreme Court of Appeal refused his petition. The constitutional issues raised had already been canvassed in previous cases, and new factual disputes had arisen that were not properly ventilated in the lower courts. The Court emphasized that disputes of fact and matters involving the development of the common law should be resolved in the High Court or Supreme Court of Appeal before reaching the Constitutional Court. The pending competition law litigation...

Court Disposition

Application for direct access dismissed.

Orders

  • The application for direct access is dismissed.
  • No order as to costs.