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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 285/2023
In the matter between:
H[...] J[...] APPELLANT
and
P[...] J[...] RESPONDENT
Neutral citation: H[...] J[...] v P[...] J[...] (285/2023) [2024] ZASCA 55 (19 April 2024)
Coram: NICHOLLS, HUGHES, MEYER and KGOELE JJA and MBHELE AJA
Heard: 8 March 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and released to SAFLII. The date and time for hand-down is deemed to be 11h00 on
the 19
th day of April 2024.
Summary: Divorce – spousal maintenance – order compelling furnishing of further
particulars not appealable.
ORDER
2
On appeal from: Free State Division of the High Court, Bloemfontein (Loubser J and
Mpama AJ, sitting as a court of appeal):
1 The appeal is upheld with costs.
2 The order of the high court is set aside and replaced by the following:
‘The appeal is struck off the roll with costs.’
JUDGMENT
Kgoele JA (Nicholls, Hughes and Meyer JJA and Mbhele AJA concurring)
Introduction
[1] The appellant, a social worker by profession, and the respondent, an attorney,
were married to each other out of community of property with the inclusion of the
accrual system on 4 November 2000. The appeal is a sequel of a counterclaim that was
instituted by the appellant in defending the divorce proceedings that were initiated by
the respondent against her in the regional court for the Regional Division of the Free
State held at Bloemfontein (the regional court ). The appeal is against the order handed
down by the Free State Division of the High Court ( the high court), which on appeal to it
by the respondent, set aside the regional court’s order compelling the delivery of further
particulars requested by the appellant for trial. The appeal is with special leave granted
by this Court.
Factual background
[2] The divorce proceedings launched by the respondent are still pending in the
regional court . It appear s from the pleadings that the parties are ad idem that the
marriage relationship between them has broken down irretrievably. Both parties
delivered notices in terms of section 7 of the Matrimonial Property Act 88 of 1984 (the
section 7 notice) and were duly replied thereto.
3
[3] On 25 June 2021, the appellant delivered a notice requesting further particulars
for the purposes of trial. The paragraphs in her request for further particulars which are
relevant to this appeal read as follows:
‘“5. Particulars in respect of any company, corporation, firm, business, venture or
syndicate of whatsoever description (“the entity”) in which the Plaintiff holds any
interest, whether direct or indirect (through his interest in any trust or any other entity).
Plaintiff is requested to provide full particulars regarding any income or benefit received
by him from such entity in each tax year for the past three financial years, including:
5.1 dividends/profit distributions accrued or received by him;
5.2 trustee’s remuneration accrued or received by him;
5.3 salary and/or commission accrued or received by him;
5.4 director’s fee accrued and/or received by him;
5.5 bonuses received or accrued to him;
5.6 drawings made on loan account by Plaintiff;
5.7 interests accrued on credit loan accounts;
5.8 loans advanced to Plaintiff;
5.9 telephone, traveling and entertainment allowances paid by the entity on Plaintiff’s
behalf or allowance received by Plaintiff in cash or in kind;
5.10 credit card payments made by the entity on Plaintiff’s behalf or use of a corporate
credit card;
5.11 medical aid and pension fund contributions paid on Plaintiff’s behalf;
5.12 contributions paid by entity to short -term insurance premiums and premiums in
respect of investment and life policies in respect of Plaintiff’s life.
6. Plaintiff is requested to furnish full and precise particulars of:
6.1 His gross and net income (after payment of tax) for each month during the past
three financial years to date and the sources thereof;
6.2 His anticipated gross and net income for the next twelve months (from
whatsoever source) and the sources thereof.”’
4
[4] The respondent delivered his reply thereto. His response to the particulars
requested by the appellant in paragraphs 5 and 6 above was to the effect that the
particulars therein sought we re not necessary for the purposes of trial and irrelevant to
the disputes between the parties. Dissatisfied with the reply, the appellant delivered a
notice to compel in terms of r ule 16(4) of the Magistrates’ court rules. In the application
to compel, the appellant contended through an affidavit deposed to by her attorney of
record that ‘the answer is inadequate in that the respondent cannot refuse to make a full
financial disclosure in respect of his existing and prospective means, his earnings
capacity, financial needs and obligations including his standard of living having regard
to the pleadings, in particular the defendant’s (appellant), counterclaim for spousal
maintenance’.
[5] On 22 March 2022, the regional court ordered the respondent to answer to the
paragraphs so requested in the appellant’s request to compel. Aggrieved by this order,
the respondent appealed to the high court. The high court set aside the order to compel
and relying on the decision of Rall v Rall
1 (Rall) held that a party cannot be required to
give particular s in relation to a bare denial and that the regional court was bound to
follow the precedent in Rall in this regard. On petition, t his Court granted the appellant
special leave against the judgment of the high court.
The issues
[6] The first issue to be dealt with is whether the regional court’s order, ordering the
respondent to provide further particulars, is appealable. Only if it is found to be
appealable does the second issue arise, namely , whether the decision of the high court
to follow the judgment in Rall was justified. T herein it was held that parties in
matrimonial actions are not entitled to elicit further particulars to prepare for t rial from
the other party in circumstances where the latter has pleaded a bare denial.
the other party in circumstances where the latter has pleaded a bare denial.
Appealability of the regional court’s order
1 Rall v Rall (2369/09) [2010] ZAFSHC 165 (9 December 2010).
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[7] The appellant’s counsel submitted that the high court should not have
entertained the appeal by the respondent because it was an appeal against an
interlocutory proceeding, and as such the order of the regional court was not final in
nature. He argued that even though the appealability issue was not raised before it, the
high court was entitled to raise this point of law mero mo tu. The high court, l ike this
Court, the argument continued, was entitled and obliged to consider whether it has or
had the necessary jurisdiction to entertain the appeal.
[8] In his brief answer, the respondent’s counsel citing a plethora of judgment s
submitted that the interest s of justice enjoined the high court to hear the appeal
because the regional court failed to observe a foundational value of the Constitution by
not adhering to the doctrine of precedent (following the decision of Rall). This is the only
reason proffered by the respondent as a basis that the order of the regional court was
appealable. This, in my view, presupposes that the respondent accepts that, but for this
reason, the regional court’s order compelling discovery is purely interlocutory.
[9] It is trite that an application for a request for further particulars is purely
interlocutory. In advancing ‘the interests of justice’ in this appeal as a basis for the high
court proceeding with the merits of this matter, the respondent’s counsel overlooked this
Court’s recent decision in TWK v Hoogveld Boerder ybeleggings
2 (TWK). In TWK, this
Court interrogated the notion thoroughly after carefully analysing several decisions of
this Court which had been willing to part from the Zweni v Minister of Law and Order 3
(Zweni) judgment and said the following:
‘Even if this is so as a matter of principle, as the defendant’s counsel reminded us, a
number of decisions of this Court have been willing, with different degrees of
separation, to part from Zweni, or subsume Zweni under the capacious remit of interests
separation, to part from Zweni, or subsume Zweni under the capacious remit of interests
2 TWK Agricultural Holdings (Pty) v Hoogveld Boerderybeleggings (Pty) Ltd and Others [2023] ZASCA 63;
2023 (5) SA 163 (SCA).
3 Zweni v Minister of Law and Order of the Republic of South Africa [1992] ZASCA 197; [1993] 1 All SA
365 (A).
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of justice. I do not here essay a general account of appealability. I do affirm, though,
that the doctrine of finality must f igure as the central principle of consideration when
deciding whether a matter is appealable to this Court. Different types of matters arising
from the high court may (I put it no higher normatively) warrant some measure of
appreciation that goes beyond Zweni or may require an exception to its precepts. Any
deviation should be clearly defined and justified to provide ascertainable standards
consistent with the rule of law. Recent decisions of this Court that may have been
tempted into the general orbit of the interests of justice should now be approached with
the gravitational pull of Zweni.’
4
[10] In the same judgment , t his Court warned against courts other than the
Constitutional Court in adopting the standard of the interest of justice as the
foundational basis upon which they decide whether the matter is appealable or not. I t
remarked:
5
‘I recogni se that there is thought to be a compelling basis to render this Court’s
approach to appealability consistent with that of the Constitutional Court. And hence to
recognise the interests of justice as the ultimate criterion by reference to which
appealability is decided. I consider this to be a misreading of the Constitution. Section
167 of the Constitution constituted the Constitutional Court as the highest court. Section
167(3) sets out matters that the Constitutional Court may, and is thus competent, to
decide. …the Constitutional Court grants leave to appeal on the grounds that the matter
raises an arguable point of law of general public importance which ought to be
considered by that Court. The Constitution thereby states a principle of appealability in
respect of the Constitutional Court. The Constitution does so also to allow a person to
bring a matter directly to the Constitutional Court or by way of direct appeal ( s 167(6) of
bring a matter directly to the Constitutional Court or by way of direct appeal ( s 167(6) of
the Constitution). National legislation or the rules of the Constitutional Court must allow
a person to do so in the interests of justice and with the leave of Constitutional Court.
…
4 TWK fn 2 above para 30.
5 Ibid para 25
7
To adopt the interests of justice as the foundational basis upon which this Court decides
whether to entertain an appeal would put in place a regime that is both unpredictable
and open-ended. It would encourage litigants to persuade the high courts to grant leave,
when they still have work to do, failing which, to invite this Court to hear an appeal
under the guidance of a standard of commanding imprecision. That would diminish
certainty and enhance dysfunction. It would also compromise the freedom with which
the Constitutional Court selects the matters it hears from this Court.’
6
[11] This Court was affirming what Jafta J said in the City of Tshwane Metropolitan
Municipality v Afriforum and Another
7 when he remarked:
‘The interests of justice and this standard alone applies to adjudication of applications
for leave to this Court. This is so because that standard is prescribed by the
Constitution. Section 167(6) of the Constitution provides:
“National legislation or rules of the Constitutional Court must allow a person, when it is
in the interests of justice and with leave of the Constitutional Court–
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.”’
[12] The decision in TWK, therefore, circumscribed the approach this Court and other
courts, other than the Constitutional Court, can adopt on the issue of the appealability of
orders. It concluded that whilst different types of matters may warrant some measure of
appreciation that goes beyond Zweni, ‘…the doctrine of finality must figure as the
central principle of consideration when deciding whether a matter is appealable to this
Court’.
8 Importantly, this matter does not concern an interim interdict where exceptional
circumstances might dictate its appealability.9
6 TWK fn 2 para 27.
7 City of Tshwane Metropolitan Municipality v Afriforum and Another [2016] ZACC 19 ; 2016 (9) BCLR
1133 (CC); 2016 (6) SA 279 (CC) para 179.
1133 (CC); 2016 (6) SA 279 (CC) para 179.
8 TWK Agricultural Holdings (Pty) v Hoogveld Boerderybeleggings (Pty) Ltd and Others [2023] ZASCA 63;
2023 (5) SA 163 (SCA) para 30.
9 Old Mutual Limited and Others v Moyo and Another [2020] ZAGPJHC 1; [2020] 4 BLLR 401 (GJ); [2020]
2 All SA 261 (GJ); (2020) 41 ILJ 1085 (GJ) paras 96-104.
8
[13] The next question is whether this Co urt, despite the fact that the high c ourt did
not entertain the issue of the appealability of the order of the regional court, is entitled to
entertain this issue. This question stems from the respondent’s submission that the
appealability issue is new and cannot be raised without following the Rules of this Court.
First, this Court has the power vested in it by section 168(3) of the C onstitution to
decide whether the matter was an appeal against a decision and thus appealable or not.
It also has jurisdiction to determine whether the lower court’s ruling in the proposed
appeal is a ‘ decision’ within the meaning of s ection 16(1)(a) of the Superior Courts Act
10 of 2013. In Minister of Safety and Security v Hamilton 10 it was further clarified that
this Court is not bound by the lower court’s assessment and is entitled to reach its own
conclusion on the question. Further, t he Constitutional Court in United Democratic
Movement v Lebashe Investment11 held:
‘…The Supreme Court of Appeal was not only entitled but obliged to determine whether
the matter was an appeal against a “decision” and thus an appeal within its jurisdiction
….’
[14] It is clear from the abovementioned authorities that this Court is entitled to
adjudicate on the issue of the appealability of the order of the regional court irrespective
of whether the high court dealt with it or not.
[15] As far as the other argument that was advanced by the respondent's counsel to
the effect that the high court entertained the merits because the regional court failed to
observe precedent is concerned, I am constrained by the conclusion that I reached
below to only state that w hether Rall is, in fact, good precedent, is itself questionable.
Even though it is trite law that precedent is a foundational value of the rule of law,
relying on the notion of the ‘interests of justice’ to advance this argument cannot in my
relying on the notion of the ‘interests of justice’ to advance this argument cannot in my
view, salvage the respondent’s case either. First, the issue of appealability was not
10 Minister of Safety and Security and Another v Hamilton [2001] ZASCA 27; 2001 (3) SA 50 (SCA).
11 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others [2022]
ZACC 34; 2022 (12) BCLR 1521 (CC); 2023 (1) SA 353 (CC) para 40.
9
raised and dealt with by either party or the court during the proceedings before the high
court. Secondly, the ‘interest of justice’ is a fact-based inquiry that cannot be imputed to
the judgment of the high court or any court.
[16] The upshot of the above is t hat the regional court ’s order to compel the
respondent to discover is purely interlocutory in nature. It has no final effect , is not a
definitive proceeding, and does not have the effect of disposing of at least a substantial
portion of the relief claimed in the pending divor ce action between the parties. Neither
does it affect the rights of the parties whatsoever. The parties are still entitled to
prosecute their case and are still at liberty to direct the court to any evidence and to
advance any argument that they wish. The high court was obliged to entertain the issue,
even if it was not raised, as to whether the matter before it was an appeal against a
‘decision’ and thus an appeal within its jurisdiction mero mo tu. Its failure to do so
amounts to a misdirection which is fatal to the appeal before this C ourt. This is so
because, the high court should not have proceeded with the merits as the regional
court’s order was not appealable. It should have struck the matter off the roll.
[17] The order of the high court on the merits cannot therefore stand. Thus, t he
following order is made:
1 The appeal is upheld with costs.
2 The order of the high court is set aside and replaced by the following:
‘The appeal is struck off the roll with costs.’
A M KGOELE
JUDGE OF APPEAL
Appearances
For appellant: H F Marx
Instructed by: DDKK Attorneys Inc., Polokwane
c/o Honey Attorneys
10
Bloemfontein
For respondent: N Snellenberg SC
Instructed by: Symington & De Kok Attorneys
Bloemfontein