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[2020] ZAGPPHC 72
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Rabie v Ernst & Young Advisory Services (Pty) Ltd (56029/18) [2020] ZAGPPHC 72 (21 February 2020)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF INTEREST
TO OTHER JUDGES: No
(3)
REVISED: YES
CASE
NO: 56029/18
21/2/2020
In
the matter between:
VIRGIL HUMPHREY
RABIE
APPLICANT
And
ERNST
&
YOUNG
ADVISORY SERVICES (PTY) LTD
RESPONDENT
JUDGMENT
APPLICATION FOR LEAVE TO APPEAL
COLLIS J:
1.
In
the present application, the applicant is seeking leave to appeal the
order
[1]
of this court, granting an interim interdict against the Public
Protector, pending the final determination of a rescission
application
issued by the first respondent.
2.
In
the same order, this court directed the applicant to pay the costs of
the urgent application as he was the only party who opposed
the
application, and he was unsuccessful in such opposition.
3.
The
application for leave to appeal is premised on the grounds that the
court erred by finding that the matter is heard as one of
urgency in
terms of Rule 6(12) of the Uniform Rules of Court. Secondly the
applicant alleges that the court erred in fact by finding
that the
first respondent had a clear right, whereas having regard to moral
considerations this court should have revoked the first
respondents'
clear right. Thirdly, the applicant contends that the interim
interdict granted by this court fell outside of the
jurisdiction of
this court and such order granted is against the constitutional
mandate empowered and bestowed upon the Public
Protector. Lastly, it
is contended that the order granted by this court failed to take into
account that the complaint made to
the office of the Public Protector
originated from an anonymous whistle-blower and such complaint was
made in terms of the Protected
Disclosures Act, which should have
protected the identity of the "whistle-blower" whereas his
identity was exposed. During
argument the applicant also challenged
the costs order awarded against him as the unsuccessful party.
THE LAW
4.
Section 17 of the Superior Court's Act
provides as follows:
[2]
"17 Leave to Appeal
1.
Leave to appeal may only be given where
the judge or judges concerned are of the opinion that -
(a)
(i) the appeal would have a
reasonable prospect of success; or
(ii) there is some other compelling reason why
the appeal should be heard, including conflicting judgments on the
matter under consideration;
(b)
the decision sought on appeal
does not fall within the ambit of section 16(2)(a); and
(c)
where the decision sought to be
appealed does not dispose of all the issues
in
the case, the appeal would lead to a
just and prompt resolution of the real issues between the parties."
2.
At the commencement of the proceedings
the court directed the parties to address the court on the
appealability of the court's decision
and in this regard the court
specifically requested the parties to address it with reference to
the criteria set out in the decision
of Zweni v Minister of Law and
Order
1993 (1) SA 523
(A).
NON-APPEALABILITY
3.
The standard test whether a particular
decision is appealable was stated in Zweni as follows:
"Generally speaking, a non-appealable
decision
(ruling)
is a decision which is not final (because
the court of first instance is entitled to alter it), not definite of
the rights of the
parties nor has the effect of disposing of at least
a substantial portion of the relief claimed in the main proceedings."
This court has held that those requirements do
not constitute a closed list. This was made plain by the use of the
words "as
a general principle". In addition, the interest
of justice are of paramount importance.
4.
The approach to the appealability of
interlocutory orders that has been taken by our appellate courts for
years, is now increasingly
flexible and pragmatic. See in this regard
Celliers NO and Others v Ellis and Another
[2017] ZASCA 13
para 20.
5.
The ratio for the general rule against
the appealability of interim interdicts was concisely stated by Goven
AJA in Cipla Agrimed
(Pty) Ltd v Merck Sharp Dohme Corporation and
others
2018 (6) SA 440
(SCA) to be the following:
'[45] The need to develop a policy arises from
the nature of interim interdicts. They are temporary measures
designed to protect
rights before a final determination can be made.
Since most of these are granted by way of application, it is not
ordinarily possible
to resolve the competing contentions. Thus 'a
necessary imperfect procedure' developed. This requires the
establishment of a prima
facie right, although open to some doubt, as
opposed to a clear right. It also attempts to factor in the likely
resultant prejudice
in assessing the balance of convenience. The
stronger the prospects of ultimate success, the less the balance of
convenience counts.
It allows for the consideration of the interdict
if circumstances warrant it. As soon as the court makes a final
determination,
the interim interdict is discharged. This is also why
a fresh application for an interim interdict pending an appeal can
ordinarily
be brought. In Knox D'Arcy Ltd and Others v Jamieson and
Others
[1996] ZASCA 58
;
[1996] (4) SA 348
(A) EM Grasskopf JA referred to the
practical difficulty raised in Cronshaw that an appeal against the
grant of an interim interdict
would often be inconsistent with the
very purpose of the remedy.'
6.
The three attributes on a non-appealable
decision as set out in Zweni need not all be present at the same
time. The presence of
any one of these attributes may render a
decision non-appealable. In the order of this court all these
attributes are to be found
and I proceed to deal with same below.
Is the court's decision final?
7.
The interim order granted by this court
is not final in effect. The order granted by this court merely
interdicted and restrained
the Public Protector from conducting any
investigation, pursuant to paragraph 2 of the order of his Lordship
Mr Acting Justice
Millar handed down on 22 January 2019, pending the
final determination of the application for rescission which was
issued by the
first respondent on 12 July 2019.
Is the decision definite of the rights of the
parties?
8.
During argument it was submitted on
behalf of the first respondent that the rescission application will
be heard on 28 February
2020 as directed by Davis J, the appointed
case manager in the matter. The date for the hearing of the
rescission application was
conceded by Mr Rabie. Therefore, at best a
mere two weeks away the first respondent together with the applicant
would have an outcome
as to whether the order dated 22 January 2019,
obtained by the applicant, falls to be rescinded. In addition to
this, the relief
sought on appeal will clearly fall within the ambit
of section 16(2)(a) of the Act, which provides as follows:
Section 16(2)(a) (i): "when at the hearing
of an appeal the issues are of such a nature that the decision sought
will have
no practical effect or result, the appeal may be dismissed
on this ground alone."
9.
It is on this basis, that I cannot but
conclude the decision of the court is not definite of the rights of
the parties.
Does the decision dispose of at least a
substantial portion of the relief claimed?
10.
The third question to be answered is
whether the decision of the court disposes of a substantial portion
of the relief claimed.
In this regard the relief claimed is for the
first respondent to be permitted to rescind the order of Millar J,
dated 22 January
2019 and if successful with such rescission, to
proceed with a review application. The interim order granted by this
court has
no effect on the relief sought in either of these
applications.
11.
The court's order made no pronouncements
regarding the success or otherwise of the merits of the pending
rescission application
to be adjudicated upon. Another court is still
to decide in this application on the 28 February 2020.
12.
In addition to what has been alluded to
above, the applicant further challenges the decision by this court
for determining that
the matter should be enrolled and heard by the
urgent court. In the judgment of this court and more specifically
paragraphs 11
to 18 thereof, an exposition as to the facts postulated
in the respective affidavits is set out which supported the
determination
by this court in concluding and finding that the matter
should be heard on an urgent basis. This court could find no support
for
the assertion that the urgency of the application was
self-created as contended for by the applicant.
13.
As to the costs order granted against
the applicant, Mr Rabie conceded during argument that being the
unsuccessful party in the
proceedings and applying the principle that
costs follow the result, no successful challenge on appeal could be
mounted against
the costs order made against him.
14.
Furthermore, as mentioned in the
judgment of the court, no challenge was mounted by the Public Office
of the Protector against the
relief sought, instead a Notice to Abide
was filed.
[3]
15.
For the reasons alluded to above, I am
not persuaded that the decision of the court is appealable and it
therefore must follow that
the application would not have a
reasonable prospect of success, and stands to be refused.
16.
It is as a result for the same reason
that I do not deem it necessary to deal with any additional; grounds
of appeal listed in the
notice filed 4th December 2019.
ORDER
17.
In the result the following order is
made:
17.1 The application for
leave to appeal the order dated 24 October 2019, is dismissed with
costs such costs to
include the costs consequent upon the employment
of counsel.
COLLIS J
JUDGE OF THE HIGH COURT OF
SOUTH
AFRICA
Dates
of Hearing
: 14 February 2020
Date
of Judgment
: 21 February 2020
Counsel
the Applicant
: In Persona
Counsel
for the First Respondent
: Adv. M Clark
Instructed
by
: Webber Wentzel Attorneys
[1]
Judgment Collis J delivered 24 October 2019
[2]
Act 10 of 2013
[3]
Judgment Collis J para 8.