Page:Gory v Kolver (CC).djvu/30

VAN HEERDEN AJ Appeals can only be made to this Court on constitutional matters or issues connected with decisions on constitutional matters. At the hearing, both Mr Gory and Mr Kolver accepted, without any argument on the point, that the issues raised by the latter in his application for leave to appeal against paragraphs 9.1, 9.2, 10 and 11 of the High Court order are not constitutional matters, but are issues connected with the decisions to be made by this Court on the constitutional matters raised in the application for confirmation. Is this premise correct?

In Alexkor Ltd and Another v The Richtersveld Community and Others, an important case on the interpretation of section 167(3)(b) of the Constitution, this Court held that the phrase “issues connected with decisions on constitutional matters” was intended – “… to extend the jurisdiction of this Court to matters that stand in a logical relationship to those matters that are primarily, or in the first instance, subject to the Court’s jurisdiction. The underlying purpose is to avoid fettering, arbitrarily and artificially, the exercise of this Court’s functioning when obliged to determine a constitutional matter. If any anterior matter, logically or otherwise, is capable of throwing light on or affecting the decision by this Court on the primary constitutional matter, then it would be artificial and arbitrary to exclude such consideration from the Court’s evaluation of the primary constitutional matter. To state it more formally, when any factum probandum of a disputed issue is a constitutional matter, then any factum probans, bearing logically on the existence or otherwise of such factum probandum, is itself an issue ‘connected with a decision on a constitutional matter’.” (footnote omitted)