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[2020] ZALMPPHC 85
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Limpopo Provincial Council v Gadabeni (5909/2020) [2020] ZALMPPHC 85 (2 October 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/N
O
(3)
REVISED.
CASE
NO: 5909/2020
In
the matter between:
LIMPOPO
PROVINCIAL COUNCIL
APPLICANT
and
REMBULUWANI
DOLBY GADABENI
RESPONDENT
JUDGMENT
NAUDE
AJ
[1]
This
is an application for leave to appeal against the whole judgment and
order of 18 September 2020 by the Respondent, in terms
of which an
interim interdict was granted against the Respondent. The grounds
upon which the application for leave to appeal is
premised are set
out in the written notice of application for leave to appeal.
[2]
In
this matter, before determining the necessity, having regard to the
grounds of appeal, the first question for determination is
the
appealability of the order made. It is not in dispute that the order
was made "as an interim measure...", "pending
a
disciplinary enquiry" concerning the Respondent's conduct, and
the final determination of the application under Part B under
case
number 5909/2020. Both the Applicant and the Respondent's Counsel
argued that the judgment and order in its form is appealable,
although Mr. Moolman on behalf of the Applicant argued that there are
no grounds for appeal and another court would not come to
a different
conclusion and/or finding. I do not agree with the parties' counsel
that the order in its interim form is appealable.
[3]
The
law with regard to the appealability of interim or interlocutory
orders has been developed over time by our courts and the law
regarding the appealability of interim or interlocutory orders are
trite. In
ATKIN v BOTES
2011 (6) SA
231
(SCA)
the Supreme Court of
Appeal held as follows at
234B to C:
"
In
Metlika
Trading Ltd and Others v Commissioner, South African Revenue Service
2005 (3) SA 1 (SCA) (2004) JTLR 73; [2004] 4 ALL SA
410
this
court held that an interim interdict is appealable if it is final in
effect and not susceptible to alteration by the court
of first
instance. The decision also emphasized that in determining whether an
order is final in effect, it is important to bear
in mind that 'not
merely the form of the order must be considered but also, and
predominantly, its effect. The crucial question
in the appeal is
therefore whether the granting of the interim interdict was final in
effect."
[4]
Corbett
JA in
SOUTH CAPE CORP. (PTY) LTD v
ENGINEERING MANAGEMENT SERVICES (PTY) LTD
1977 (3) SA 543
(A)
said
the following at
549G
in
respect of what would constitute an interlocutory order:
" In
a
wide and general
sense the term 'interlocutory' refers to all orders pronounces by the
Court, upon matters incidental to the main
dispute, preparatory to,
or during the progress of, the litigation. But orders of this kind
are divided into two classes: (i) those
which have
a
final and
definitive effect on the main action; and (ii) those, known as
'simple (or purely) interlocutory orders' or 'interlocutory
orders
proper which do not."
[5]
In
light of these key principles, in the case of
JACOBS
AND OTHERS v BAUMANN NO AND OTHERS
2009 (5) SA 432
(SCA) at par 9
thereof the court went even further
and held that:
"a
court determining
whether or not an order is final considers not only its form but
also, and predominantly, its effect. An order
may not possess all
three attributes, but will nonetheless be appealable if it has
a
final jurisdictional effect."
[6]
Secondly
in determining whether the order that is sought to be appealed
against is final in effect, the Constitutional Court in
INTERNATIONAL
TRADE ADMINISTRATION COMMISSION v SCAW SOUTH AFRICA (PTY) LTD
2012
(4) SA 618
(CC)
held the following
at
639F to 640A:
''The 'policy considerations '
that underlie these principles are self evident. Courts are
loath to encourage wasteful use
of judicial resources and of legal
costs by allowing appeals against interim orders that have no final
effect and that are susceptible
to reconsideration by
a
court
a
quo when final
relief is determined. Also allowing appeals at an interlocutory stage
would lead to piecemeal adjudication and delay
the final
determination of disputes."
The Court went further and said
the following at
640F to 641C:
"As
we have seen, the Supreme Court of Appeal has adapted the general
principles on the appealability of interim orders, in my respectful
view, correctly
so,
to accord with the equitable and the more
context sensitive standard of the interests of justice, favoured
by our Constitution.
In any event the
Zweni
requirements
on when
a
decision may be appealed against were never without
qualification. For instance, it has been correctly held that in
determining
whether and interim order may be appealed against regard
must be had to the effect of the order rather than its mere
appellation
or form. In
Metlika Trading Ltd and Others v
Commissioner, South African Revenue Services
the court
held, correctly
so,
that where an interim order is intended to
have an immediate effect and will not be reconsidered on the
same
facts in the main proceedings it will generally be final in
effect."
[7]
The order of 18 September 2020 is
susceptible to reconsideration on the same facts by the court when
final relief is determined.
[8]
The Constitutional Court in
TSHWANE
CITY v AFRIFORUM AND ANOTHER
2016 (6) SA 279
(CC)
dealt
with the appealability of interim orders and expressed the position
as follows at
2948 to C:-
"Unlike before
appealability no longer depends largely on whether the interim order
appealed against has final effect or is
dispositive of
a
substantial
portion of the relief claimed in the main application. All this is
now subsumed under the constitutional interests of
justice standard.
The overarching role of interests of justice considerations has
relativised the final effect of the order or
the disposition of the
substantial portion of what is pending before the review court, in
determining appealability."
[9]
The
Constitutional Court also referred with approval to the stance taken
in the matter of
NATIONAL TREASURY
AND OTHERS v OPPOSITION TO URBAN TOLLING ALLIANCE AND OTHERS
2012 (6)
SA 223
(CC)
as follows at
231D:-
"This court has granted
leave to appeal in relation to interim orders before. It has made
clear that the operative standard
is the 'interest of justice'. To
that end, it must have regard to and weigh carefully all germane
circumstances. Whether an interim
order has a final effect or
disposes of
a
substantial
portion of the relief sought in a pending review is
a
relative and
important consideration... It is just as important to assess whether
the temporary restraining order has an immediate
effect, including
whether the harm that flows from it, is serious, immediate, ongoing
and irreparable."
[10]
Although the interest of justice
standard becomes the operative standard, it is clear that the
question as to whether the order
is final in effect or disposes of a
substantial portion of the dispute continues to remain relevant. The
Constitutional Court in
TSHWANE CITY
v AFRIFORUM AND ANOTHER
supra
and
NATIONAL TREASURY AND OTHERS v
OPPOSITION TO URBAN TOLLING ALLIANCE AND OTHERS
supra,
in alluding to the interest of
justice standard, made specific reference to the question of whether
the order has an immediate and
substantial effect including whether
the harm that flows from it is serious, immediate, ongoing and
irreparable.
[11]
In applying this standard it is in my
view clear that the order of the 18
th
of September 2020 is firstly interim in nature in that it is not
final in effect and is susceptible to variation either by the
Court
that will hear Part B of the application, or by any other Court prior
to the adjudication of Part B of the application, upon
good cause
shown.
[12]
Neither the counsel for the Applicant,
nor the Counsel for the Respondent satisfactorily addressed this
Court on the interest of
justice's standard, nor the question of
whether the order has an immediate and substantial effect including
whether the harm that
flows form it is serious, immediate, ongoing or
irreparable. As to whether the order results in irreparable harm,
this court is
of the view in granting interim relief that there was a
well-grounded apprehension of irreparable harm if relief was not
granted.
Counsel for the Respondent argued that the interim order
will contribute to the Respondent's financial demise. In weighing up
the
balance of convenience in respect of the harm the Respondent will
suffer if the order is granted, versus the harm the public and
interest of justice will suffer if the interim order is not granted,
especially in light thereof that the Respondent shows no remorse
for
his unprofessional conduct and in fact does it seem he will continue
with his unprofessional conduct, in my view justifies
the interim
order granted. I have not been convinced that the interest of justice
standard comes to the assistance of the Respondent
as there is with
respect nothing in substance advanced as to why the granting of the
interim relief will result in irreparable
harm to the Respondent. On
this aspect it must be emphasized that the nature of the interim
relief granted is simply to protect
the public, and the judicial
process as per paragraph 19 of my judgment.
[13]
Accordingly, in my view, the order of 18 September 2020 is not
appealable. Further, even if this conclusion
is incorrect, then when
I have regard to the grounds of appeal advanced by the Respondent,
they do not convince me that the appeal
would have a reasonable
prospect of success and would the application for leave to appeal be
dismissed on this basis as well.
[14]
In the circumstances, I therefore make the following order:
ORDER:
1.
The Application for leave to appeal is
dismissed.
2.
The Respondent to pay the costs of this
application.
M.
NAUDE
ACTING
JUDGE OF
THE
HIGH COURT
APPEARANCES:
HEARD
ON:
30 SEPTEMBER 2020
JUDGMENT
DELIVERED ON: 2 OCTOBER 2020
For
the Applicant/Respondent in
the
application for leave to Appeal:
Mr. Moolman
Instructed
by:
Pratt Luyt & De Lange Attorneys.
For
the Respondent/Applicant in
the
application for leave to Appeal:
Adv. Maluleke
Instructed
by:
M & M Maiwashe Attorneys