On 12 April 2017 the North Gauteng (Pretoria) High Court granted 2 orders:
- That Ntlemeza’s appointment as the Head of the Hawks is invalid (the main order); and
- That the order (that the appointment is invalid) is effective immediately (the order-effective order).
In the absence of this order-effective order, an appeal by Ntlemeza would suspend the main order – in terms of s 18(1) of the Superior Courts Act. The section reads as follows:
“Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.”
However, the applicants persuaded the Court that there were exceptional circumstances so that the court ordered “otherwise”: that the main order (that Ntlemeza’s appointment was invalid) would be effective even if appealed.
However, when a Court orders “otherwise”, it triggers, in turn, an automatic right of appeal, and – almost unbelievably – an automatic suspension of the order that the main order is not to be suspended, as follows. Section 18(4) states:
If a court orders otherwise, as contemplated in subsection (1)—
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest court;
(iii) the court hearing such an appeal must deal with it as a matter of extreme urgency; and
(iv) such order will be automatically suspended, pending the outcome of such appeal.
So, to be as clear as possible, if Ntlemeza has properly lodged his appeal, the order to suspend the order invalidating his appointment as Hawk’s Head, is suspended. Bottom line, right now, General Ntlemeza is the Head of the Hawks.
James Grant
24 April 2017