MHLANTLA J
Analysis
Jurisdiction
[25]
This Court has jurisdiction to decide constitutional matters and any other matter
that raises an arguable point of law of general public importance that ought to be
considered by it.32 This matter concerns a review of the Minister’s actions and a
determination whether the Minister acted within the bounds of the Constitution.
The Minister does not dispute that this Court has jurisdiction to entertain the matter.
This is clearly a constitutional matter; therefore, the jurisdiction of this Court is
engaged.
Direct appeal and urgency
[26]
This Court has a discretion to determine whether direct leave to appeal to it
should be granted.33 This discretion entails an interests of justice enquiry. The
applicants submit that a direct appeal is warranted because: (a) the appeal involves only
constitutional issues and there are no material disputes of fact; (b) this matter does not
concern or call for the development of the common law; (c) the appeal raises critical
issues of public and constitutional significance; (d) the matter is urgent as the analogue
switch-off date was determined by the High Court to be 30 June 2022; (e) the
applications have strong prospects of success; (f) there is an urgent need to bring finality
to this matter; and (g) although the Supreme Court of Appeal will be bypassed,
this Court has the benefit of a judgment from the Full Court.
[27]
The urgency of this matter is not in dispute. The Minister agrees that this matter
is urgent due to fact that the switch-off date of 30 June 2022 is imminent and because
ICASA has completed the auction of the spectrum. The spectrum ought to be available
from 1 July 2022. I agree with the parties that this matter is without a doubt urgent.
The extended date of 30 June 2022 looms and does not provide sufficient time for the
32
Section 167(3)(b) of the Constitution.
33
Phillips v National Director of Public Prosecutions [2005] ZACC 15; 2006 (1) SA 505 (CC); 2006 (2) BCLR
274 (CC) at para 30.
14
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