Surtie Case: Constitutional Court appeal seeks adjudication on High Court and SCA’s denial of leave to appeal of two exceptions

By: Clyde N.S Ramalaine

On the 13th of September, SAM Attorneys the legal representatives of Razak Surtie Tayob N.O and Edward J Koorbanally plaintiffs in a matter with the Public Investment Corporation and ABSA Group Limited as respondents lodged an application at the Constitutional Court [CCT 255/23] for leave to appeal against the ruling of the Supreme Court. The Supreme Court in its ruling dated August 15, 2023 (uplifted on 17 August 2023) with case number 526/2023 concurred with the Acting Justice Ndlokovane and thus refused the applicants leave to appeal against the whole of the order and judgment of the Gauteng Division, Pretoria per the Honourable Acting Justice Ndklovane, handed down on 10 May 2023 under case number 61684/21.

The history for this case as captured and thus far reported in previous articles published details the following. On 10 December 1984 the offshore inheritance assets, being USD 36 billion (“the Assets”) of A.R.T. Surtie were repatriated to South Africa from the United Kingdom by payment from Barclays Bank PLC in the United Kingdom (“Barclays UK”) to the second respondent’s predecessor, Barclays Bank International Ltd in South Africa (“Barclays SA”). The repatriation was done in full compliance with Foreign inheritances / Legacies -as per Exchange Control Circular no D.405 -(and) in terms of the Declaration of Foreign Assets and Liabilities in terms of sub-regulation (‘1) of Regulation 6 and sub-regulation (1) of Regulation 7 of the Exchange Control Regulations, 1961 issued under the Currency and Exchanges Act, I of 1933, and published in Government Notice R. 1111 of l December 1961 (‘the 1961 Regulations”).

The Assets emanated from diamond digging operations, and trade and investments done with Share Certificate Portfolio 7315 (known as “Trust Bonds”), following the commencement of the Surtie family’s commercial enterprise in diamonds in 1896, when Tayob Surtie married the granddaughter of Lerotholi Letsie, paramount chief of Basotho (modem Lesotho).

Following its purchase in 1923, Share Certificate 7315 was put on the Stock Exchange trade with the London Stock Exchange managed by Barclays UK. On 10 December 1984, the Assets (as aforesaid, USD36 billion) were transferred from Barclays UK to Barclays SA. The said amount of USD36 billion was transferred into the account name A. (MM) Surtie, which account name is unequivocally a reference to A.R.T. Surtie, with the capital letters “(MM)” denoting that A.R.T Surtie is a “Masutho Male”.

On 7 June 1 985 (and after a period of 6 months after the date of transfer, i.e. 10 December 1984) the amount of USD36 billion was exchanged, with the permission of the South African Reserve Bank (Currency and Exchange Department), to 2AR87.84 billion at an exchange rate of USDI: ZAR 2.44. On account of the Policy, the Assets On account of the Policy, the Assets were not paid to A.R-T. Surtie by Barclays SA. Rather, on the instructions of the apartheid government and in line with the Policy, the converted amount of R87.84 billion (now representing the Assets) was deposited into a special restricted account in the period between 2 September 1985 and 1 May 1989. Subsequent to depositing the R87.84 billion into the special restricted account 000014444, the PIC (then still the Commissioners), in turn, over a period of time invested the Assets into South African government bonds through the enabling legislation, being the then Public Investment Commissioners Act, 45 of 1984 and the Corporation for Public Deposits Act,46 of 1984. The said Apartheid-government bonds were open-ended, tap issue-based and bearer-type, and were issued and underwritten by the South African Reserve Bank. The aforesaid bonds were re-issued in tranches on the licensing of Bond Exchange South Africa (BESA) in and during 1996, 1997,1998 and then again in and during 2000 and 2001, and traded up to their maturity dates.

ln 2001, the aforesaid bonds were split into three-legged bonds as follows: R150 bonds – becoming 006P, Rl51P, and R152P – with the maturity dates having been changed to 2004,2005, and 2006 respectively. R’I53 bonds – becoming 008P, R1ssPand R155P – with the maturity dates having been changed to 2009,2010 and 2011 respectively. Subsequently, there were further splits on the aforesaid R’150 and R153 bonds: (interest coupons) R101C – R120C totalling 20 splits.

After the aforesaid bonds’ maturity dates of 28 February 2004,28 February 2005 28 February 2006,31 August 2009,3″ August and 31 August 2011, the special restricted account 0OO0|M44 was used as a Bonds Investment Portfolio with the banks (including, inter alia, the second respondent) and also as a Trading Account recorded with both Universal Exchange Corporation (UNEXcor) and the Central Depository Limited (CD). The Assets were then invested in the Government Employees Pension Fund where, as far as the applicants can ascertain, they remain.

On 6 February 2020, having complied with the statutory requirements for commencing litigation against the first defendant, the applicants instituted action against the respondents, claiming payment of the amount of R1.35 trillion, being a conservative value of the Assets as of the date of the issue of the summons.

The Constitutional Court as the court of last resort has to consider the findings of both Ndlokovane and the SCA and thus rule if the applicants meet the requirements and grounds for leave to appeal.

At the center of the appeal is the subject of an exception. In the appellants founding affidavit which constitutes the support document for the Constitutional Court’s appeal, Mr. Donovan Sam of SNATT details two grounds for the Court to have erred in its judgment: “The judgment concerns an exception the first respondent raised against the applicants’ particulars of claim, solely relating to the contention that the applicants’ particulars of claim lack averments necessary to sustain their cause of action against the first respondent.  The founding affidavit as verbalised by Attorney Sam contends, “The court a quo, wrongly I aver, upheld two grounds of exception:

1. The first is that the applicants are required to have the apartheid government’s erstwhile policy of precluding any person from paying monies over to a foreign creditor, citizen, or country (“the Policy”) reversed by having it declared unconstitutional and invalid, alternatively, reviewed and set aside.
2. The second is that the applicants are required to have challenged the Minister of Finance’s decision taken in terms of sub-regulation 4(c)(iii) of the Schedule contained in Regulation R603 published in Government Gazette 10166 (as amended) (“the Regulations”). This sub-regulation provides that, until such time as the monies held on behalf of the foreign creditor are repaid to the foreign creditor in terms of sub-regulation 4(cxii), or are paid to another person at the request of the foreign creditor, such monies are to:

• be held and retained by the Public investment [Corporation] on such terms and conditions as may be determined by the Minister of Finance or a person designated by him, and be dealt with only in such manner and in accordance with such conditions as may be determined from time to time by the Minister of Finance or by a person designated by him.
• be dealt with only in such manner and in accordance with such conditions as may be determined from time to time by the Minister of Finance or by a person designated by him.

The founding affidavit furthermore contends that the court a quo, erred in upholding the first respondent’s exception, and the SCA wrongly refused the applicants leave to appeal the Judgment.

Constitutional Court CCT 255/23: Focus on Two of Five Exceptions, Not Case Merits.

It is important to appreciate why the case has reached the Constitutional  Court known as the court of last resort. Often when cases arrive at the Constitutional Court it is assumed it is the end of a case. However,  the case before the Constitutional Court uniquely relates to the two exceptions that were upheld in favour of the PIC by the North Gauteng High Court. Originally, there were five exceptions, three of which were adjudicated in favour of the Plaintiffs.

In the two exceptions before the court, the PIC argues that the Plaintiffs must first declare Regulation 2 of the Currency and Exchange Act as amended from 1985 to 2001, and the Finance Minister’s decision to invest the funds of Mr. ART Surtie in the GEPF unconstitutional before it could enforce its claim.

Should the Constitutional Court uphold the Plaintiffs’ argument, they will have to amend the prayers in the particulars of the claim, seeking the declaration of unconstitutionality accordingly. Thus the current CCT 255/23 does not affect the merit or legitimacy of the Plaintiffs’ claim.

What are the appellants praying for at the Constitutional Court?

1. Rehana Surtie Tayob N.O and Edward Jeffrey Koorbanally seek an order in the following terms: That in terms of Constitutional Court Rule 19, read with section 167 (3) of the Constitution, the applicants are granted leave to appeal to the Constitutional Court against the order of the Supreme Court of Appeal issued on 15 August 2023 (uplifted on 17 August 2023), under case number 526/ 2023, which refused the applicants leave to appeal against the whole order and judgment of the Gauteng Division, Pretoria per the Honourable Acting Justice Ndlokovane, handed down on 10 May 2023 under case number 61684/2.
2. Setting aside the order of the Supreme Court of Appeal and replacing it with the following:
   • Leave to appeal is granted

• The Costs of the application shall be costs in cause in the appeal

3. Upholding the appeal, with costs, including the costs of the two counsels where so employed
4. Setting aside the order of the High Court in case number 61684/21 and replacing it with the following
   • The exception is dismissed, with costs, including the costs of the two counsels where so employed
5. That the applicants be granted further and/or alternative relief
6. Condonation in the event of late filing of this application.

The appellants furthermore indicated that the founding affidavit of Attorney Donovan Sam, as annexed hereto, will be used in support of this application.

What constitutes the basis for seeking leave to appeal?

The applicants take refuge in the Constitutional Court on three distinguishable fronts detailing core aspects.  Firstly, for the constitutional issues raised, secondly for the arguable points of law of general public importance, and lastly in the interest of justice.

Constitutional Issues

It is thus his contention that the grounds of the exception raise constitutional issues on two grounds.

• The first ground concerns the issue of whether the apartheid government’s erstwhile policy precluding monies over to a foreign creditor, citizen or country is to be reversed by having it declared unconstitutional and invalid, alternatively, reviewed and set aside before the applicants can claim the funds standing to the credit of the special restricted account in the name of the late A.R. T Surtie.
• The second ground concerns the exercise of public power by the Minister of Finance. This the legal representatives contend, also raises a constitutional issue.

Arguable points of law of the general public

Furthermore,  they ventilate arguable points of law of general public importance. Meaning in addition to the grounds of exception raising constitutional issues, they also fall within the category of constituting arguable points of general public importance.

In this regard:

• The first ground raises the issue of whether it is necessary to have policies that are no longer in effect (such as the Policy) either declared unconstitutional or to have them set aside on other grounds before persons can claim for that which the erstwhile policy precluded them from

The interest of justice.

The submission of the founding affidavit contends that: There are, with respect, good prospects of success that this court will overturn the decisions of both the SCA and the court a quo. ln addition, as foreshadowed above, this application forms part of proceedings where the estate (and rightful heirs of ART Surtie) seek to recover funds (R1.35 trillion) from the first respondent, in part held by the second respondent, which:

1. rightfully are those of the estate of ART Surtie, as owner thereof.
2. the apartheid government refused to pay him on the basis of a policy that discriminated against him.
3. is claimed by his estate for the benefit of his heirs, many of whom were previously disadvantaged and struggling financially.

Justice Ndlokovane’s Adumbrated Ruling.

The legal principles applicable to exceptions

It is trite that a court when considering an exception on the basis that a pleading does not sustain a cause of action, will accept, as true, the allegations pleaded by the plaintiff to assess whether they disclose a cause of action. An excipient who alleges that summons does not disclose a cause of action must establish that upon any construction of the particulars of the claim, no cause of action is disclosed.

A pleading must be read as a whole, and an exception cannot be taken to a paragraph or part of a pleading that is not self-contained. Minor blemishes and unradical embarrassments caused by a pleading can and should be cured by further particulars. It is also trite that when an exception is raised on the ground that a pleading lacks averments necessary to sustain a cause of action, the excipient is required to show that upon every interpretation that the pleading in question can reasonably bear, no cause of action is disclosed.

Evaluation of the facts

The evaluation of the facts herein is intended to assess the Parties’ submissions to determine which party is favoured by the balance of probabilities.

First Ground of Exception: failure to seek an order declaring the Policy invalid, unconstitutional, or reviewed and set aside. It is common cause that the Policy precluding any person from paying monies over to a foreign creditor, citizen or country is no longer applicable.

Whereas the Plaintiffs contended that the lapse of Regulation 2 (the Policy) that precluded payment to them had lapsed, I tend to agree with the First Defendant’s contention that its consequences at the relevant time cannot be ignored. In terms of section 12(2)(b) of the Interpretation Act, 1957, where a law repeals any other law, and unless the contrary intention applies, the repeal shall not affect the previous operation of any law so repealed or anything done or suffered under the law so repealed.

In Economic Freedom Fighters v Speaker of the National Assembly; and Democratic Alliance v Speaker of the National Assembly, the Constitutional Court held that no decision grounded on the Constitution or law may be disregarded without recourse to a court of law.

In Oudekraal 1, the Supreme Court of Appeal held that until an administrative action is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. It then follows that it is incumbent on the Plaintiffs to have the legal consequences of the Policy either declared unconstitutional and invalid or reviewed and set aside in order for them to succeed with their claim against the First Defendant.

Second Ground of Exception: failure to challenge Regulation 4(c) and/or decision by the Minister of Finance

The First Defendant contended that the Plaintiffs failed to plead that the deceased was the person in whose favor the sum allegedly standing to credit was paid to the special restricted account.

I tend to disagree with the First Defendant in this regard in that the First Defendant did not challenge or rebut the Plaintiffs’ allegations that the Second Plaintiff established from the Second Defendant that the assets relating to the Share Certificate (belonging to the deceased) in the amount of $36 billion was transferred into the account of the deceased on 10 December 1984.

Similarly, the First Defendant did not challenge the Plaintiffs’ allegation that the special restricted account is held with the Second Defendant under account name A (MM) Surtie with account number [….]. The First Defendant also did not challenge the Plaintiff’s allegation that the funds of the deceased were invested in Government Bonds RSA 150 and RSA 153 and that the amounts earned from those investments equaled a total amount in the sum of R1.3 billion.

In relation to the First Defendant’s contention that the Plaintiffs failed to plead any compliance with the requirements of Regulation 4(c)(ii), which is a precondition of repayment, I tend to disagree with the First Defendant in that it is not within the Plaintiffs’ competence to comply with the requirements of Regulation 4(c)(ii) absent the Minister’s determination in that regard.

However, I tend to agree with the First Defendant that once the Minister has made a determination in terms of Regulation 4(c)(iii), such a decision remains in full force and has legal consequences. It then follows that Regulation 4(c)(iii) and the Minister’s decision cannot be ignored unless declared invalid and set aside.

Third Ground of Exception: failure to establish link between accounts.

As alluded to above First Defendant did not challenge or rebut the Plaintiffs’ allegations that the Second Plaintiff established from the Second Defendant that the assets relating to the Share Certificate (belonging to the deceased) in the amount of $36 billion was transferred into the account of the deceased on 10 December 1984.

I also reiterate that the First Defendant did not challenge the Plaintiffs’ allegation that the special restricted account is held with the Second Defendant under account name A (MM) Surtie with account number [….]. The First Defendant also did not challenge the Plaintiff’s allegation that the funds of the deceased were invested in Government Bonds RSA 150 and RSA 153 and that the amounts earned from those investments equaled a total amount in the sum of R1.3 billion.

It then follows that the First Defendant’s contention in this regard cannot be sustained.

Application of Law  

On the face of it, the particulars of the claim do disclose a cause of action based on the recovery of a debt due by the First Defendant in terms of Regulation 4(c)(ii).

However, the cause of action is one that cannot be enforced in the circumstances of this case owing to the impediments in Regulation 4(c). Therefore, the particulars of claims are in the circumstances expiable. Ndlokovane concludes, therefore the First Defendant’s exception is upheld with cost

Applicant’s Demonstration of Misplaced Grounds of Exception: Why the Court and SCA Erred in Refusing Leave to Appeal by the Applicants.

The founding affidavit sets out its approach for seeking an appeal on the first ground of Failure to seek an order declaring the Policy invalid, unconstitutional,  or reviewed and set aside. To demonstrate that this ground of exception is misplaced, and therefore that the court a quo erred in allowing it to stand (and the SCA erred for refusing leave to appeal),  I will,

• firstly, quote the relevant exception.
• secondly, set out the bases the first respondent ultimately advanced in support of its claim that the applicants are required to have the apartheid government’s erstwhile policy of precluding any person from paying monies over to a foreign creditor, citizen, or country reversed by having it declared unconstitutional and invalid, alternatively, reviewed and set aside.
• thirdly, each time, shows that the contentions the first respondent advanced are without merit.

The Exception: The relevant portion of the exception the first respondent filed reads as follows.

1. The plaintiffs claim a huge amount of R1,35 trillion plus interest and costs against the first defendant.
2. ln paragraph 22 of the particulars of the claim the plaintiffs allege that the converted offshore inheritance of R87.84 billion mentioned in paragraph 18, which forms part of the basis of their claim, was not paid out to the late ART Surtie when in fact it should have been paid out to the late ART Surtie in and during the period between June and 1 September 1985.
3. In paragraph 23 of the particulars of the claim, the plaintiffs allege the apartheid government’s policy of precluding any person from paying monies over to a foreign creditor, citizen, or country (Lesotho), as a consequence of which the alleged offshore inheritance amount of R87.84 billion ($36 billion), upon which the claim is based, was not paid over 1o the late ART Surtie.
4. In order to reverse the consequence of the alleged policy, the plaintiffs would be required, at the very least to have the policy declared unconstitutional and invalid, or reviewed and set aside.
5. The plaintiffs do not seek such an order.
6. As such, the particulars of the claim lack averments to sustain a cause of action.”

The appellants in their founding affidavit then pose the following pertinent question which it also answers.

Must the applicants demonstrate an entitlement to the capital amount from June 1985 and interest from July 1985 to complete their cause of action?

Citing from the first respondent’s answering affidavit as ventilated In the appeal before the SCA. ln answer to the applicants’ pleaded case, as the basis for this ground of its exception, the first respondent advanced that the applicants seek payment of a historical debt which, on the pleadings, arose in June 1985, in addition to which the applicants seek interest on the amount claimed, calculated from July 1985. This was finally formulated as follows in the answering affidavit to the application for leave to appeal to the SCA:

• The reason for the first ground was obvious, the amount together with accrued interest claimed by the Applicants confirmed that the Applicants sought to claim a historical debt that on the pleadings arose in June 1985, They further sought to recover interest on the said amount calculated from 1985 to 2010.
• This claim could only be sustained if the applicants have pleaded that:
  • the amount of R87.84 billion was due, owing, and payable to the deceased in June 1985;
  • the date when interest began to run – in particular that the obligation to pay interest flows from an express or tacit stipulation for interest and that the interest began to run at the time of default;
  • if no such stipulation to pay interest existed, that the default arose under a proper demand for payment having been made; and
  • the agreed rate of interest, alternatively an entitlement to the rate of interest claimed. This claim could only be sustained if the applicants have pleaded that:

• None of these allegations were made. Instead, the Applicants only pleaded that the amount of R87.84 billion was not paid when it should have been paid to the deceased. The reason for non-payment was alleged to be a result of the Policy of precluding any person from paying monies over to a foreign creditor/citizen/creditor [sic]. The allegation that payment should have been made is factually incorrect and contradicts the provisions of the Proclamation and Regulation 2 of the Schedules which expressly prevented such payments, and which is pleaded by the Applicants-
• The existence of the policy and its consequences are a common cause. The effect of the Policy, prevailing at the time, was that the amount of R87.84 billion could not have been due, owing, and payable as there existed no right to payment or to demand payment whilst the prohibition existed. By the same token, no interest could be claimed, nor has any case been pleaded for an entitlement to interest from 1985.
• The applicants, by seeking to assert an entitlement to payment of the R87.84 billion and interest whilst the Policy remained in effect, are effectively seeking to ignore and/or overlook the policy to assert their rights. This is not permissible.
• The consequence of the policy was that the deceased, and therefore the Applicants were not entitled to the payment of the funds. Although the Policy is no longer operable, the consequence of the Policy at the relevant time cannot be ignored. See Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly 2016 (3) SA 580 (CC) at para 74.
• Put differently, the practical consequences of the Policy and/or the enabling legislation is that the Applicants had no right to payment during 1985 and would continue to have no such right until the consequence of the Policy and/or the enabling legislation ceased. It cannot, in these circumstances, assert a cause of action that allegedly arose in June 1985.
• Although it is common cause that the Policy no longer exists, the repeal thereof cannot result in an automatic entitlement that operates in the past, the Policy has legal consequences unless an order of court determining otherwise is obtained. See Oudekraal Estates v City of Cape Town 2016 (3) SA 580 (CC)
• Therefore, to assert a claim for an amount and interest arising in 1985 (as the Applicants have sought to do), the Applicants cannot ignore the Policy and prevailing legislation but must seek an order to declare the prevailing legislation invalid, unconstitutional, and/or review the Policy and have it set aside.”

The applicant’s founding affidavit contends the above argument fails because:

• it cannot be disputed (nor did the first respondent dispute) that the Assets are currently being administered by the first respondent in terms of regulation 4(c) of the Regulations.
• Relevant to the applicants’ cause of action on this ground sub-regulation 4(cxii) (read with the introductory portion of regulation 4(c)) reads as follows:
• “4. (c) The sum standing to the credit of a special restricted account shall- (iD be a debt due by and be repaid by the Public Investment Commissioners in such manner and such installments and on such conditions as may be determined from time to time by the Minister of Finance or by a person designated by him, for the foreign creditor in whose favour such sum has been paid into the special restricted account.”
• Pursuant to Regulation 4(c), the applicants’ claim for the payment of the monies is, accordingly, for payment of the sum standing to the credit of the special restricted in favour of A.R.T Surtie, which in terms of Regulation 4(cxii), the first respondent is obliged to repay to his estate. This sum (the R1.35 trillion), the applicants pleaded, is made up of:
• the same monies which were repatriated in 1984, (ultimately the R87.84 billion) currently held by or on behalf of the first respondent.
• interest on these monies, from June 1985 until June 2010.
• the fruits of the investment of the monies in Government Bonds.
• ln light of the provisions of Regulation 4(c)(ii), which contemplates an ongoing obligation to repay the funds, any previous prohibition on the payment of monies to foreign creditors not in force at the time the foreign creditor seeks payment of the sum standing to the credit of the restricted account is irrelevant to the determination of the foreign creditor’s entitlement to the payment of such sum.
• The applicants’ entitlement to the payment of the monies (being the sum standing to the credit of the special restricted account) is to be determined concerning the date the payment of the sum standing to the credit of the restricted account was demanded from the first respondent on 2 October 2019 (“the Demand’), alternatively from the date of the institution of the action on 6 February 2020, and not as at (or from) June 1985 as the first respondent.
• Thus, because at the times of the Demand and the institution of the action:
• it is common cause that the Policy (on the applicant’s pleaded case) precluding payment of the sum standing to the credit of the restricted account in the name of A.R.T Surtie no longer applied, and therefore no longer constituted a bar to the monies being repaid to the applicants. there existed no impediment to the applicants claiming the sum standing to the credit of the restricted account (the Assets) from the first respondent.

the previous prohibition contained in the Policy is irrelevant and can be ignored, and there are no lingering consequences of the Policy which require the setting aside of the Policy, or for it to be declared to have been unconstitutional.

• The present matter is, accordingly, completely distinguishable from both Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly 2016 (3) 580 (CC), and Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) (incorrectly cited by the first respondent at paragraph 22 of the answering affidavit as ‘2016 (3) SA 580 (CC)”
• ln the premises the applicants are entitled to assert the claim for the repayment of the sum standing to the credit of the special restricted account. The calculation of the quantum of that amount (which on any version must at least comprise the capital amount of R87.84 billion), does not form part of the exception.
• It ineluctably follows that, contrary to what the first respondent advanced:
• the applicant’s case does not rest on the debt being due owing and payable in 1985 (they were therefore not required to plead that it was).
• any issue with the interest calculation (in and of itself cannot be found in the exception the first respondent has raised.
• The court a quo and the SCA both erred in finding that the applicants cannot ignore the Policy.
• The pleading of the history of the flow of the monies from their repatriation to South Africa until they came to be held by the PIC pursuant to the current. Regulations published in GN R2016 (in terms of which they are currently held) does not change the nature of the plaintiffs’ claim from the monies currently held by or on behalf of the PIC to a historical debt, and do not elevate such allegations to allegations which are essential to demonstrate a valid cause of action.
• ln rounding out the above argument in respect of the allegations regarding the applicants’ claim for interest, contained in the quoted paragraph 16 of the first respondent’s answering affidavit before the SCA, the complaint about interest is, furthermore, necessarily aimed at the manner in which the quantum of the plaintiff’s claim has been calculated, rather than being a complaint against a separate claim advanced. This complaint can therefore not support an exception, especially not one based thereon that the appellants were required to have the Policy declared unconstitutional and invalid, or have it set aside.
• Thus, even if it were to be correct that a portion of the capital amount the applicants’ claim cannot be supported by the applicants’ pleaded case (for example should the first defendant contentions in respect of a portion of the interest claimed to be correct) the result will not be that the applicant’s particulars of claim are expiable on the ground that, at the time that the Assets were paid into a blocked or restricted account, the applicants were not entitled to claim payment thereof from either Barclays SA, or the Public Investment Commissioners, or the first respondent.

This article as herewith captured attempted an overview of the road traversed from the High Court through the SCA which now evidence a presence at the Constitutional Court. It does not purport to ventilate all the relevant aspects as contained within the applicant’s founding affidavit. For that readers are free to read the actual founding affidavit.

In conclusion, case CCT 255/23 is now before the Constitutional Court to pronounce the applicants’ rights to appeal as explained earlier on the three fronts of Constitutional Issues, Arguable points of law of the general public, and Interest of Justice.

We must wait to see if the Constitutional Court will agree with the High Court and SCA and or with the applicants.