With amendments to the provisions of Section 17(2)(f) of the Superior Courts Act 10 of 2013 which became effective in 2024, it begs the question whether an application for reconsideration in terms of Section 17(2)(f) is still available to litigants.
To answer this question one first needs to look at the provisions of Section 17(2)(f) of the Superior Courts Act 10 of 2013. Most litigants understand that when a petition for leave to appeal is dismissed, an unsuccessful applicant could apply to the President of the Supreme Court of Appeal (“SCA”) to reconsider the decision in terms of Section 17(2)(f).
Initially the wording of section 17(2)(f) emphasised that a dissatisfied litigant would be able to approach the President of the SCA for a reconsideration provided that such a litigant was able to show that exceptional circumstances existed for the matter to be referred to court for reconsideration and if required, variation of the order.
Such an application would follow the usual form with a notice of motion and founding affidavit, but the founding affidavit and any answering affidavits would be limited to 10 pages in order to get straight to the point without repeating all the contents of the initial petition. A litigant would therefore need to set out their exceptional circumstances in an affidavit of 10 pages or less.
The provisions of Section 17(2)(f) were amended, and the amendments have recently been strictly enforced by the Supreme Court of Appeal. The applicable portion of the amended section now reads as follows:
“…provided that the President of the Supreme Court of Appeal may, in circumstances where a grave failure of justice would otherwise result or the administration of justice may be brought into disrepute, whether of his or her own accord or on application filed within one month of the decision, refer the decision to the court for reconsideration and, if necessary, variation.’’
The inclusion of the wording where a grave failure of justice would otherwise result, or the administration of justice may be brought into disrepute may have the effect of limiting the number of reconsideration applications brought in terms of Section 17(2)(f).
A litigant would now need to include in their founding affidavit not only the averments of exceptional circumstances but also set out why they believe a grave failure of justice would result or that the administration of justice would be brought into disrepute. Importantly, the practice directive regarding a 10-page limit for the founding affidavit remains in place.
Litigants can therefore still use Section 17(2)(f) as a safety net, but litigants will have to be even more concise and to the point in their application to keep the focus of such an application on the two pillars of the amended Section 17(2)(f) namely, circumstances where (1) a grave failure of justice would otherwise result or (2) if the administration of justice may be brought into disrepute.
Section 17(2)(f) does not impede on the rights of a litigant to approach the Constitutional Court, and Section 17(2)(f) is not a pre-requisite in petitioning to the Constitutional Court. If the petition to the SCA sets out Constitutional issues and is dismissed by the SCA on the merits, the petition may be made directly to the Constitutional Court.
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