Page:Fourie v Minister of Home Affairs (CC).djvu/9

Rh for the common law, read in the light of the applicable statutes, to develop coherently and harmoniously within our constitutional context. The views of the SCA on matters that arise in the appeal are of considerable importance. The nature of the dispute raised by the appeal is, as the High Court correctly held in issuing a negative rule 18(2) certificate, pre-eminently suited to be considered first by the SCA. In this regard, in Amod v Multilateral Motor Vehicle Accidents Fund this Court held that: “When a constitutional matter is one which turns on the direct application of the Constitution and which does not involve the development of the common law, considerations of costs and time may make it desirable that the appeal be brought directly to this Court. But when the constitutional matter involves the development of the common law, the position is different. The Supreme Court of Appeal has jurisdiction to develop the common law in all matters including constitutional matters. Because of the breadth of its jurisdiction and its expertise in the common law, its views as to whether the common law should or should not be developed in a ‘constitutional matter’ are of particular importance. Assuming, as Mr Omar contends, that this Court's jurisdiction to develop the common law in constitutional matters is no different to that of the Supreme Court of Appeal, it is a jurisdiction which ought not ordinarily to be exercised without the matter having first been dealt with by the Supreme Court of Appeal.” In my view, the interests of justice require that this appeal be heard first by the SCA.

The order

The applicants have urged that should this Court refuse leave for a direct appeal, it should grant the applicants leave to appeal to the SCA. Such an order would Rh