Newzroom Afrika Channel 405 presently has on its screen "BREAKING NEWS: ACE MAGASHULE LOSES APPEAL: Suspended Secretary General loses leave to appeal application in High Court".
This is not accurate reporting. This was not the actual appeal. It was a procedural application to the same High Court Bench of judges asking them to permit Magashule to take the matter on appeal to the Supreme Court of Appeal on the basis that there are reasonable prospects that the Supreme Court of Appeal might reach a different conclusion and overturn the High Court decision which is in favour of the ANC. For the High Court to turn down Magashule's application for permission to appeal to a higher Court is not actually a loss for Magashule. Magashule still has the legal opportunity to directly ask the Supreme Court of Appeal to hear his appeal and the Supreme Court of Appeal may well accede to Magashule's request and hear his appeal on its merits and overturn the High Court decision or confirm the High Court decision or vary the High Court decision. Newzroom Afrika 405 with its main caption that Magashule has lost his appeal is misleading the public because the appeal on its merits or substance has not been heard by the Supreme Court of Appeal.
The same set of High Court judges cannot hear the actual merits of the appeal to their own decision as they do not have the power to overturn their own decision as an appellate court. They do not have a second bite at the cherry. For the High Court to hear a leave to appeal is a procedural safety guard where the High Court guards against flooding the Supreme Court of Appeal with a flurry of appeals that have no chance of being overturned on appeal. A litigant does not "win" nor "lose" a leave to appeal. In layman's terms to be granted leave to appeal means to be permitted by the same High Court to take your appeal to the Supreme Court of Appeal. To be refused leave to appeal simply means the High Court is sticking to its guns and saying that Magashule has no reasonable chance of being successful at the Supreme Court of Appeal. Many a times the High Court has refused an applicant leave to appeal (permission to appeal) its decision only for the Supreme Court of Appeal to directly grant the applicant permission to appeal to it, and after the appeal merits have been fully argued on the merits then the Supreme Court of Appeal uphold the appeal by overturning the High Court decision. Or notwithstanding the fact that the Supreme Court of Appeal has given the applicant permission to appeal directly to it and still find against the applicant like Magashule by upholding the High Court decision. Or the Supreme Court of Appeal may vary the High Court decision thus the applicant ending with a half loaf of bread together with the respondent who was the initially victorious at the High Court now being forced to share the spoils of war. No one can claim to have won an appeal merely because the High Court has granted him leave to appeal. He must still execute the appeal before the appropriate appellate forum. In the same breath, no one has lost an appeal merely because the initial High Court has refused to grant him permission to appeal. Even when the Supreme Court of Appeal declines a leave to appeal to it, a special leave to appeal can still be made to the President of the Supreme Court of Appeal for permission to have the merits of the appeal being heard by the Supreme Court of Appeal. (Simply this latter scenario is called petitioning the President of the Supreme Court of Appeal).
Our telemedia newsrooms must inform the viewers and listeners correctly and accurately. Freedom to broadcast or freedom to free flow of information does not equate to the right to misinform or to abuse your platform by furnishing inaccurate information. Even if the SCA was to refuse Magashule the appeal avenue, he still has the option to take his matter to the Constitutional Court since the jurisdiction of the Constitutional Court has become expansive and broad, no longer limited to purely constitutional issues. Social media peddles false and inaccurate news and information, the mainstream media cannot exacerbate and compound this polluted dissemination of information platform by itself giving prominence to inaccurate news. Fact check is journalism lesson 101 if you want to be accurate and credible broadcasting media house!
Simply put, leave to appeal are curtain raisers to the main match being the appeal. Simply, leave to appeal is analogous to starters before the main meal being the appeal. Is it too complex or complicated to comprehend leave to appeal and appeal? Not necessarily. Leave to appeal is a procedural sifting process within the hierarchy of courts to avoid the appeal process being clogged and overwhelmed by palpably unmeritorious appeals that have no reasonable prospects of success. However a discerning or observant logical mind will observe that the leave of appeal process is not for fragile judicial egos where the judge from whom the permission to appeal is sought takes this application as a personal affront that questions his or her legal acumen. It is difficult to get leave to appeal from judges who personalize everything or have a residual inferiority complex. To cynically capture the rationale behind the leave to appeal process, it simply means the judge from whom it is sought (usually referred to on appeal as the court a quo which means the court below) is convinced of the correctness of his or her decision the judge, the test for leave to appeal means that the judge must ask himself or herself, looking at the issues of the decided case and his or her decision, are there reasonable prospects that another court might arrive at a different decision! In reality when the judge is making his or her decision he or she is convinced that it is correct.
It follows therefore that in a leave to appeal application the judge is in a way asked to entertain the reasonable prospects of another court reaching a decision different from his or hers! This cynical view reasoning surely appeases even the most fragile judicial ego! Judges are human beings who are fallible (bound to make errors and mistakes). Hence the law recognizes the right of appeal. However judges should not abuse their judicial office by refusing to grant leave to appeal where the merits, reasonable prospects and justice dictate. Conversely judges should not help frivolous and vexatious litigants to abuse court processes by keeping on appealing even where it is palpably clear that the appeal is doomed to fail. Leave to appeal demands of the judge to disabuse his or her might from his or her sense of being correct but be humble enough to have foresight of the possibility of being wrong in his or her determination by exercising Solomonic wisdom of allowing fresh minds to apply themselves to the four corners of the contents of the appeal record! Appeal is in a way peer review and/or correction to bring about equality, uniformity, fairness, consistency and certainty in law so that like cases be treated alike. Our media houses ought to learn this and propagate fact rather than sensation!
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