The High Court also had a discretion in terms of section 26(6) to make provision in the restraint order for the reasonable living and legal expenses of the defendant.

Gore applied to the Durban High Court for an order directing the curator to sell the property and use its proceeds for payment of the legal expenses in his criminal trial.

Writing for the unanimous bench, Judge of Appeal Dunstan Mlambo held that the legislature could not have intended that a concurrent creditor, who had pursued a claim and obtained a default judgment prior to the issuance of a restraint order, would be prevented from satisfying that judgment simply because the debtor's assets had been restrained.

This arrangement was overturned by the Seventeenth Amendment but prevailed at the time of the dispute, and the Constitutional Court's jurisdiction was therefore an open question.

Writing for a unanimous bench, Justice Johann van der Westhuizen held that it was "neither necessary nor desirable" to:attempt to define the limits of the term 'constitutional matter' rigidly... Philosophically and conceptually, it is difficult to conceive of any legal issue that is not a constitutional matter within a system of constitutional supremacy.

[5] Section 39(2) of the Constitution, van der Westhuizen held, "requires more from a Court than to avoid an interpretation that conflicts with the Bill of Rights.

The Constitutional Court determines whether it is in the interests of justice to grant leave to appeal "through a careful and balanced weighing up of a number of factors.

It also had the discretion to permit any creditor who applied to intervene to join the proceedings, and to then grant an order which was fair under all the prevailing circumstances.