Court dismisses govt's application to appeal AfriForum interdict on R50m Cuban donation

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The Gauteng High Court
The Gauteng High Court
PHOTO: Lefty Shivambu/Gallo Images
  • The government’s application to appeal the ruling has been dismissed.
  • Judge Brenda Neukircher dismissed the matter with costs, saying it was not in the public’s interest to grant leave to appeal. 
  • Government still has a direct access application pending before the Constitutional Court challenging the judgment and applying for leave to appeal. 

The Gauteng High Court in Pretoria has dismissed, with costs, the government’s application for leave to appeal the court’s ruling that AfriForum could interdict it from donating R50 million to Cuba. 

In a judgment delivered virtually on Tuesday Morning, Judge Brenda Neukircher said that, after "careful consideration of the application for leave to appeal, the comprehensive heads of arguments", and the arguments presented before the court on Tuesday, she was convinced that granting leave to appeal was "not in the interests of justice". 

Neukircher ruled:

I am of the view that it is in the interest of justice to refuse leave to appeal, given the circumstances. I am, therefore, of the view that the prerequisite set out in Section 17 (1) of the Superior Court's Act has not been met, and the order that I make is the following, the application for leave to appeal is dismissed with cost.

The ruling came despite a passionate argument by advocate Hephzibah Rajah who represented the Department of International Relations and Cooperation (Dirco). 

Rajah laid out numerous fundamental reasons why her client believed the judge had erred in her judgment delivered in writing in March regarding the Cuban donation. 

The main bone of contention raised by Rajah was that the judgment grossly interfered with the principle of the separation of powers as enshrined in the Constitution. 

She argued that it was the sole prerogative of the executive, and not the courts, to conduct international relations. 

READ | Judgment reserved in AfriForum’s bid to prevent R50m govt donation to Cuba

"The power to conduct international foreign relations is the privilege of the executive, and thus the doctrine of separation of powers was engaged when dealing with decisions made by the executive in fulfilling its functions to conduct such humanitarian assistance," said Rajah. 

She added that when the court granted the interdict judgment in March, it therefore usurped Dirco’s rightful powers, and that alone warranted a granting of leave to appeal the judgment. 

She further argued that the executive decision to assist Cuba with humanitarian aid had not been concluded, yet the court had found it fitting to meddle in the matter. 

Rajah argued that such a move amounted to premature judgment, as no imminent harm could be demonstrated by the applicant AfriForum. 

She went on to argue that Neukircher’s judgment was based on arguments stumbled upon by the applicants’ legal team during court proceedings but were never contained in the founding affidavit nor in the applicant’s responding affidavit. 

ALSO READ | 'I think you have a problem': AfriForum's bid to halt R50m Cuban donation is legally shaky, judge says

"This court erred materially in its judgment, as in accepting arguments that were never in the founding affidavit or the responding affidavit fundamentally prejudiced our client who could have brought evidence to this regard," said Rajah. 

AfriForum's legal representative, Johan Hamman, argued that when it came to the issue of the separation of powers, the Constitution was the supreme law for all three arms of government, and that the court was entitled to enter into the arena and police unlawful actions - such as the rolling over of funds to finance the donation. 

Hamman argued that it was the respondents that had kept information from their clients, leading to the same arguments being made off the cuff during proceedings, and that a precedent had been set in law where such arguments were made, and the interdicts were granted. 

All hope is not lost for Dirco in its pursuit to assist Cuba, as it still has a direct access application pending before the Constitutional court to set aside the interdict and appeal the High Court judgment. 

AfriForum welcomed the judgment, saying: "We are glad that the court upheld the interdict, since it is simply unacceptable, irrational and illegal for the government to squander money that could be used to solve the myriad of problems in this country."

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