In March 2025 the Supreme Court of Appeal reaffirmed that if the exercise of a power depends on the existence of a state of affairs as a jurisdictional fact, in the absence of a clear expression to the contrary, the person exercising that power will not likely be found to be the only judge as to whether the state of affairs exists that permits the exercise of such power.

The facts are illustrative of the principle only and not of a special relevance. An applicant sought leave to appeal to the Supreme Court of Appeal and was turned down by two judges. The applicant then brought an application seeking leave to appeal from the President of that court. Such an application can be granted if “exceptional circumstances” exist. The President referred the decision to the court for consideration.

It was held that the President could not in the circumstances decide alone whether there were exceptional circumstances. The court itself was the ultimate arbiter as to whether the jurisdictional fact required for the exercise of the power existed, namely ‘exceptional circumstances’. The final word on that issue was not spoken by the President’s decision. The court itself held that there were no such exceptional circumstances and the application was dismissed once more.

The courts jealously guard our rights against anyone being the final decision-maker on an issue where that is not clearly empowered by legislation.

[Bidvest Protea Coin Security (Pty) Ltd v Mabena [2025] ZASCA 23 (26 March 2025)]