In what should have been an obvious answer to a simple question, whether a decisionmaker is obliged to produce a record of proceedings in terms of Uniform Rule 53, in review proceedings launched in terms of that Rule, this question has commanded the attention of several appellate courts.
Recently, the full bench in the Gauteng Division, Pretoria per Kooverjie J, Moshoana J et Ledwaba AJ in South African Police Medical Scheme, and others V Metropolitan Health Corporate (Pty) LTD and others[1] (“Polmed’’) has held that if a review application launched in a forum that enjoys jurisdiction, the applicant in such event is entitled to the record even if the grounds of review are meritless. The Full court has followed the principles settled by both the Supreme Court of Appeal and the Constitutional Court that the obligation to produce the Rule 53 record automatically follows upon the launch of the application however ill-founded an application may later turn out to be.
Following a recent judgment of Murray and others NNO V Ntombela and others 2024(4) SA 95 SCA where the SCA endorsed the principles in both the Standard Bank[2] and Computicket decisions[3] , the court drew a distinction between the scenario where a litigant raises:
1. the issue of jurisdiction proper- in which case the issue of jurisdiction must be disposed of before a party is called upon to file a rule 53 record.
2. a substantive defence- which does not constitute a jurisdiction issue. For example, where a respondent raises a question whether their conduct constitutes administrative action, or if a dispute is raised whether the internal remedy has been exhausted. These issues constitute a determination of the merits of the matter.
The court in Murray held:
“[41] In this case there is not even the slightest suggestion that the high court lacks jurisdiction to entertain the review application. On the contrary, its jurisdiction has been accepted without question. On this score it bears mentioning that ordinarily the high court may decide any constitutional matter except matters that reside within the exclusive domain of the Constitutional Court[4] or are assigned by national legislation to another court of equivalent status to that of the high court. In addition, the high court may hear any other matter not assigned to another court by national legislation.[5] That the appellants themselves desire that the high court itself deal with and adjudicate the liquidators’ point of law set forth in their rule 6(5)(d)(iii) notice attests to the fact that its jurisdiction is not contested. In reality, the crux of the liquidators’ case is that the relief sought by the respondents in their review proceedings is not only ill-conceived but also legally untenable. That may well be so. But that question must – for reasons already stated – be determined only once the review application is ripe for hearing and not before.
[42] As already indicated, rule 53, which is designed specifically to regulate review proceedings, forms an integral part of the Uniform Rules regulating the way proceedings in the high court generally ought to be conducted. And, as I have demonstrated above, the high court has inherent jurisdiction to hear any dispute that can be resolved by the application of the law and decided in a fair public hearing, save only in relation to matters assigned to other courts by the Constitution or national legislation. The respondents’ review application currently pending before the high court to which this appeal pertains is not one of the exclusions. Accordingly, in the context of the facts of this case, the jurisdiction of the high court can hardly be contested on any tenable legal grounds, and any order it may make ultimately – whether right or wrong – will not, as a result, constitute a nullity.”
The Full court in Polmed endorsed the view in Murray that at the stage of compelling the record, the court is not called upon to enter the substantive merits of the review proceedings. The court in Murray echoed that a right to a fair hearing would be compromised if there is a premature adjudication of the merits of the review. It would be subversive of a party’s rights under Rule 53(3) but also deny them the right to have the real dispute resolved by the application of law decided in a fair public hearing in breach of the right to access to courts entrenched in section 34 of the Constitution-effectively putting the cart before the horse borrowing the expression from the constitutional court in Computicket.
Notwithstanding the settled legal position, it seems that the Constitutional Court has been invited to consider the very question in the matter of Famous Idea Trading 4 (Pty) Ltd t/a Dely Road Courier Pharmacy V Government Employees Medical Scheme and others[6] (“Famous Ideas’’) where a similar jurisdictional issue arose where Ranchod J held that the nature of the power exercised by GEMS was contractual and as such not reviewable. The full court in Polmed following Murray, held the view that the issue of reviewability of an impugned decision is not a jurisdiction issue and the court erred when it dismissed the review application based on a merit issue disguised as a jurisdictional issue, particularly in the absence of Rule 53 record. The Constitutional Court are now considering the Famous Ideas decision.[7]
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1 https://www.saflii.org/za/cases/ZAGPPHC/2025/111.html
2 Competition Commission of South Africa V Standard Bank of South Africa Limited [2020] (4) BCLR
3 Competition Commission of South Africa V Computicket (Pty)Ltd ZSCA 185
4 See s 167(3)(b), (c) and s 167(4) and (5) of the Constitution.
5 See in this regard the Labour Relations Act 66 of 1995 and the Competition Commission Act 89 of 1998 that confer exclusive jurisdiction to the Labour Court and the Competition Tribunal respectively in all matters regulated by those Acts.
6 https://www.saflii.org/za/cases/ZAGPPHC/2024/69.html
7 The Constitutional Court on 17 February 2025, has issued directions under Case Number CCT 266/24