Where an appeal does not raise any constitutional issue, the South African Constitutional Court will only consider a law point on appeal if the interests of justice require it to do so no matter how interesting, arguable or important the point is.
The applicant in Tiekiedraai Eiendomme (Pty) Ltd v Shell South Africa Marketing (Pty) Ltd sought leave to appeal against a decision regarding the interpretation of the specific wording of a contract which was not a standard form document in widespread use affecting a large number of consumers. The applicant did not make out an issue of general or wide importance.
The applicant relied on the fact that the common law relating to the issue of interpretation of rights of pre-emption has long been unsettled but that issue had not been argued before the lower courts. The applicant failed to show why the interests of justice required the point to be decided in this particular litigation.
Only under exceptional circumstances will the Constitutional Court agree to be burdened with the development of the common law where this has not been dealt with in the courts appealed from.
The only reason the point was raised before the Constitutional Court was because the professional advisers to the applicant had not thought of the point before. The court refused leave to appeal under section 167(3)(b)(ii) of the Constitution because of the lack of general public importance.
The main function of the Constitutional Court is to decide constitutional issues and it will not be the court of last resort for any argument.