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2023
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[2023] ZAECQBHC 28
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Minister Of Home Affairs and Another v N.R.P and Others (Leave to Appeal) (2979/2018) [2023] ZAECQBHC 28 (9 May 2023)
SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– GQEBERHA)
CASE NO.: 2979/2018
Matter heard on: 25
April 2023
Judgement delivered
on: 9 May 2023
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
In the matter between: -
MINISTER OF HOME
AFFAIRS 1
st
Applicant
THE DIRECTOR-GENERAL
OF THE 2
nd
Applicant
DEPARTMENT OF HOME
AFFAIRS
and
N[....] R[....]
P[....] 1
st
Respondent
K[....] N[....]
P[....] 2
nd
Respondent
D[....] N[....]
P[....] (a minor child)
3
rd
Respondent
ISHWARLAL MONANIAL
BHAGWAN 4
th
Respondent
MANJULA
BHAGWAN 5
th
Respondent
In re:
CASE NO.: 2979/2018
In the matter between: -
N[....] R[....]
P[....] 1
st
Applicant
K[....] N[....]
P[....]
2
nd
Applicant
D[....] N[....]
P[....] (a minor child)
3
rd
Applicant
ISHWARLAL MONANIAL
BHAGWAN
4
th
Applicant
MANJULA
BHAGWAN 5
th
Applicant
and
MINISTER OF HOME
AFFAIRS 1
st
Respondent
THE DIRECTOR-GENERAL
OF THE 2
nd
Respondent
DEPARTMENT OF HOME
AFFAIRS
LEAVE TO APPEAL
JUDGMENT
SMITH
J:
[1]
The respondents seek leave to appeal against my judgment delivered on
31 January 2024 and rescinding the order
granted by Bloem J on 20
November 2018 (issuing a rule nisi) and the confirmation of the rule
by Pickering J on 4 December 2018.
In terms of those orders the
respondents were granted permanent residence in the Republic.
[2]
The applicant contends that the judgment is not appealable since it
does not have a final effect and does
not dispose of a substantial
portion of the relief claimed by the respondents.
[3]
I am of the view that this is a good point. In
Tswane City v
Afriforum
2016 (2) SA 276
(CC), the Constitutional Court held
that the decisive question in the determination of the appealability
of an interim order is
no longer whether it has final effect or
disposes of a substantial portion of the relief sought in the main
application, but whether
it would be in the interests of justice to
grant leave to appeal. Although those factors remain germane and
important, it is just
as important to assess whether the temporary
order has immediate and substantial effect, including whether the
harm that flows
from it is ‘serious, immediate, ongoing and
irreparable.’ (
National Treasury and others v Opposition to
Urban Tolling and others
2012 (6) SA 223
(CC), at para 35)
[4]
The effect of the judgment rescinding the abovementioned orders is
that the
lis
between the parties in the main application
remains extant. It is accordingly interlocutory in nature, does not
have final effect
and does not dispose of a substantial portion of
the relief sought by the respondents. There can also not be any
conceivable harm
to the respondents since they remain entitled to
pursue the relief sought in the main application. I am accordingly
not persuaded
that it will be in the interests of justice to grant
the leave to appeal.
[5]
For these reasons I am of the view that the judgment is not
appealable. Because of this finding it is not
necessary for me to
consider whether the respondents have been able to show reasonable
prospects of success.
[6]
In the result the application for leave to appeal is dismissed with
costs.
JE
SMITH
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicants: Adv.
G. Appels
The State Attorneys
29 Western Road
Central
GQEBERHA
(Ref.: MN
Swartz/1773/2018/TS)
Counsel
for the Respondents: Adv.
RG Buchanan SC
Lessing, Heyns, Keyter &
Van Der Bank Inc.
172 Cape road
Mill Park
GQEBERHA
(REF: Mr. Heyns/SN/P1455)