Page:Gory v Kolver (CC).djvu/31

VAN HEERDEN AJ Alexkor dealt with the question whether various questions of fact bearing on or related to the establishment of the existence of the constitutional matters before the Court (such constitutional matters including issues relating to the interpretation and application of legislation enacted to give effect to constitutional rights) constituted “issues connected with decisions on constitutional matters”. This Court answered the question in the affirmative. The question in the application for leave to appeal currently before us is, however, quite a different one. Paragraphs 9.1, 9.2, 10 and 11 of the order made by the High Court in this case are ancillary to and dependent on the order of constitutional invalidity contained in paragraphs 1, 2 and 3 of the High Court order. The orders contained in these paragraphs were expressly suspended by the High Court pending confirmation by this Court of the order of constitutional invalidity contained in paragraphs 1, 2 and 3. If the High Court order of constitutional invalidity were to be varied or confirmation thereof were to be refused, then these ancillary orders would of necessity have to be revisited.

Whatever the precise meaning of the word “connected” in the phrase “issues connected with decisions on constitutional matters”, it must include a relationship of dependence between a primary order on a constitutional matter and an ancillary order. What constitutes “dependence” must be understood in a broad sense. There are important policy reasons for such an approach: if a party may not approach this Court for leave to appeal on these ancillary matters, this would give rise to a bifurcated appeal and confirmation procedure in which the appeal on the ancillary matters could not be resolved before this Court together with the confirmation application, but