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[2022] ZAGPJHC 729
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Gomwe and Tofield v Pick N Pay [2022] ZAGPJHC 729 (18 August 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO
: 44832/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES : NO
REVISED
DATE
:
2022-08-18
In
the matter between
GOMWE
AND TOFIELD
Applicant
and
PICK
N
PAY
Respondent
J
U D G M E N T
WEPENER
,
J
:
This is an application
for leave to appeal in the interlocutory order issued by me recently
regarding discovery.
Until the Constitutional
Court’s judgment in
Tshwane City v AfriForum
2016 (6) SA 279
CC
at paragraph 40 interlocutory orders of this nature were
regarded as non-appealable.
However, in that judgment
the Court referred
inter alia
to the principles that were
applicable up to that time and referred inter alia to
Zweni v
Minister of Law and Order of the Republic of South Africa
1993 (1) SA
523
(A)
at 523(I) to 533(B).
Having looked at the
judgment of the Constitutional Court I am of the view that the
well-established principles regarding appealability
of such
interlocutory orders were not thrown overboard, but only qualified by
the words that the interest of justice should be
served when such
leave to appeal is sought.
Although the test has
therefore been widened in the Zweni judgment the well-established
principles that led to the test of the interest
of justice, as I have
indicated have not been overruled.
One such test is whether
the judgment or order is dispositive of the main matter and I can add
or substantially dispositive thereof,
as was stated in Zweni. Of
course, in this matter it is not so. It is purely a technical
argument about the listing of documents.
I have had regard to the
original notice of motion and what relief was sought, the judgment
given, as well as the heads of argument
that served before me today.
I am of the view that
there is no interests of justice that will be served by granting
leave to appeal or that another Court may
come to a different
decision.
In the circumstances
leave to appeal is dismissed with costs.
WEPENER,
J
JUDGE
OF THE HIGH COURT
DATE
:
…………………