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[2019] ZAGPPHC 37
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Tayob and Another v Shiva Uranium (Pty) Limited and Others (86673/2018) [2019] ZAGPPHC 37 (22 February 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO: 86673/2018
22/2/2019
In the
matter between:
MAHOMED
MAHIER
TAYOB
First Applicant
EUGENE
JANUARIE
Second Applicant
And
SHIVA
URANIUM (PTY) LIMITED
(IN
BUSINESS RESCUE)
First Respondent
CHRISTOPHER
KGASHANE MONYELA
Second Respondent
JUANITO
MARTIN
DAMONS
Third Respondent
IZAK
BOSMAN
MARAIS
Fourth Respondent
JAN
BOSMAN
MARAIS
Fifth Respondent
THE
COMPANIES AND INNTELLECTUAL
PROPERTY
COMMISSION
SIXTH Respondent
COMPANIES
TRIBUNAL
Seventh Respondent
JUDGMENT
MOSOPA J
INTRODUCTION:
1. This
is leave to appeal to either the Full Bench of this Division or to
the Supreme Court of Appeals, against the judgment and order I handed
down on 21 December 2018.
2. The
matter served before me on the 5th of December 2018 as an urgent
application
wherein the applicants were seeking relief in the
following;
2.1 That the sixth
Respondent be interdict from implementing, enforcing and/or adhering
to the order
contained in paragraph 52 of the Companies Tribunal of
the Republic of South Africa's decision, dated 27 November 2018
pending
the determination of an application in terms of which;
2.2 The Companies Tribunal
of the Republic of South Africa decision dated 27 November 2018 is
reviewed
and set aside, and;
2.3 A declatory order in
terms of section 21 (1) (c) of the Superior Court's Act,1O of
2013,declaring
the Applicants and the Second Respondent the duly and
lawfully appointed business rescue practitioners of the First
Respondent;
2.4 That the Applicants be
ordered to institute the application referred to above within 10 days
of
the granting of the order and costs be costs in the business
rescue of the First Respondent.
3. I then dealt
with the issue of urgency and ruled that the matter is urgent
and
proceeded to argument.
4. Mr Veten in
contention, submitted that the Applicants have no problem with
the
bulk of my judgment but the only problem is my finding as contained
in paragraph 34 of the judgment which provides as follows;
"However it is clear from the aforegoing that the
Board of Directors operates under the supervision of a practitioner.
In adopting
a resolution to appoint the Applicants as business
rescuer practitioner the Second Respondent did not authorise such an
appointment.
In terms of section 137 (4) such action is void as it
was no approved and authorised by the Second Respondent".
5. Mr
Veten contended that my interpretation of section 137 (4) is flawed
as I was supposed to have interpreted the section as it stands.
6. Mr
Potgieter on behalf of the First to the Third Respondents elected
not
to deal with the merits of the matter and submitted that the appeal
is fatally defective and this is not an appealable matter.
What is
best for the applicant to do is to bring a review proceedings.
7. Section
17 of the Superior Courts Act,10 of 2013,governs leave to
appeals and
provides;
(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 prospects 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.
8. The
Applicant in bringing his leave to appeal relies on the provisions
of
section 17(a) (1), that there are reasonable prospects of success and
they are of the opinion that another court may come to
a different
finding.
9. In The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen (unreported
case,LCC
14R/2014) delivered on the 3
rd
of November 2014,cited with
approval in the Acting National Director of Public Prosecutions v
Democratic Alliance ( unreported.GP
case no 19577/09 dated 24 June
2016) the Land Claims Court held that, " the wording of this
subsection raised the bar of the
test that now has to be applied to
the merits of the proposed appeal before leave should be granted. In
Netshokovu v S (unreported
case. Supreme Court of Appeal, case no:
157/15 dated 7 September 2016) it was held at paragraph 2 that an
appellant faces a higher
and stringent threshold, in terms of the Act
(i.e this subsection),compared to the provisions of the repealed
Supreme Court Act
59 of 1959.
APPEALABILITY
OF INTERIM ORDERS
10. In Machele and Others v
Mailula and Others (CCT 99/08)
[2009] ZACC 7
;
2010 (2) SA 257
(CC) ;
2009 (8) BCLR 767
(CC) (26 March 2009),the court when dealing with
appealability of interim order Skweyiya J at paragraph 21 observed;
"It is generally not in the interests of justice
for a litigant to be granted leave to appeal against an interim order
of execution.
The rationale underlying the non appealability of
interim orders was stated by this Court in the following terms;
"[T]he
effect of granting leave to appeal against an order of
interim execution will defeat the very purpose of that order. The
ordinary
rule is that the noting of an appeal suspends the
implementation of an order made by a court. An interim order of
execution is
therefore special relief granted by a court when it
considers that the ordinary rule would render injustice in a
particular case.
Were the interim order to be the subject of an
appeal that, in turn, would suspend the order".
" Para 23-The primary consideration in determining
whether it is in the interests of justice for a litigant to be
granted leave
to appeal against an interim order of execution is,
therefore, whether irreparable harm would result if leave to appeal
is not
granted. The applicant would have to show that irreparable
harm would result if the interim order were not to be granted. A
court
will have regard to the possibility of irreparable harm and the
balance of convenience".
11. In Mathale v Linda and
Another
2016 (2) SA 641
(CC) Khampepe J observed at para 25;
"Ordinarily, interim execution orders are
considered interlocutory in that they provide parties with interim
relief pending
the finalization of legal action. Generally, it is not
in the interests of justice for interlocutory relief to be subject to
appeal
as this would defeat the very purpose of that relief'.
12. The nature of the order
the Applicants was seeking in this matter is an interim relief
pending the institution of review proceeding against the decision of
the sixth Respondent.
13. No argument was
presented by Mr Veten on behalf of the Applicants on whether or not
the order they intend appealing is an appealable order or not.
14. The Applicant failed to
show that they will suffer irreparable harm if leave to appeal
is not
granted.
15. It is clear from the
matter of Machele (supra) and Mathale (supra) that the only
exception
to the appealibility of the interim orders is when a party can show
that the he or she will suffer irreparable harm if
not granted.
16. It is for this reason
that I need not deal with the merits of the matter as this
order
cannot be appealed.
ORDER
17. I therefore make the
following order;
1.
The application for leave to appeal is dismissed;
2.
The Applicants are ordered to pay the costs of this
application, which costs includes costs occasioned by the employment
of senior
counsel.
M.J MOSOPA
JUDGE OF THE HIGH COURT
PRETORIA HIGH COURT
APPERANCES
For
Applicant: Adv Veten
Instructed
by: Aphane Attorneys
For
the First to Third Respondents: Adv N.V Potgieter SC
Instructed
by: Smit Sewgoolam Inc.
Date of
Hearing: 15 February 2019
Date of
Judgment: 22 February 2019