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[2019] ZAGPPHC 47
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Chawla v Manuel (69804/2017) [2019] ZAGPPHC 47 (22 February 2019)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 69804/2017
In
the matter between:
ASHU
CHAWLA
Applicant
and
TREVOR
ANDREW MANUEL
Respondent
JUDGMENT
WEINER,
J
Introduction
[1]
The applicant, Ashu Chawla
(Chawla) applies for leave to appeal against the order I handed down
on 13 December 2018. In such judgment,
the respondent’s
application brought in terms of the
Promotion
of Access to Information Act
[1]
(‘PAIA’)
,
was postponed to a date to be arranged with the Registrar for the
hearing of oral evidence in terms of Uniform Rule of Court
6(5)(
g
).
The issue referred to oral evidence was the question as to whether
Sahara Computers (Pty) Ltd and Ashu Chawla (the respondents
in the
main application) currently have or have ever had in their possession
the records which had been requested by the respondent,
Trevor Andrew
Manuel.
[2]
The applicant in the application for leave to appeal, Chawla,
contends that this matter is appealable despite the fact that
the
matter was postponed and referred to oral evidence. He contends that
the basis for the order, referring the matter to oral
evidence, was
the finding,
inter alia
, that the applicant falls under the
definition of a ‘private body’ in terms of PAIA and that
PAIA is therefore applicable
to him.
[3]
The applicant relies upon
City
of Tshwane Metropolitan Municipality v Afriforum
in
regard to the test for appealability.
[2]
That case dealt with interim orders and whether or not they were
final in effect and susceptible to an appeal. Mogoeng CJ referred
to
the fact that ‘
[t]he
common-law test for appealability has since been denuded of its
somewhat inflexible nature. Unsurprisingly so because the
common law
is not on par with but subservient to the supreme law that prescribes
the interests of justice as the only requirement
to be met for the
grant of leave to appeal
….’
[3]
He
further stated:
‘
Unlike before
[referring
to
Zweni v Minister of Law
and Order
1993 (1) SA 523
(A)]
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 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.
’
[4]
[4]
The learned Chief Justice
referred to the principles set out in
National
Treasury v Opposition to Urban Tolling Alliance
(
OUTA
).
[5]
In that case, Moseneke DCJ stated as follows:
‘
This Court has granted leave
to appeal in relation to interim orders before. It has made it clear
that the operative standard is
the “interests 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 relevant
and important consideration. Yet, it is not the
only or always decisive consideration. It is just as important to
assess whether
the temporary restraining order has an immediate and
substantial effect, including whether the harm that flows from it is
serious,
immediate, ongoing and irreparable.
’
[6]
[5]
The respondent does no submit that the present decision has any
immediate and substantial effect and that the harm is serious
immediate, ongoing and irreparable. The applicant however, contends
that, although the order might be interlocutory in nature,
it
nevertheless disposes of the question as to whether the applicant
falls within the purview of PAIA.
[6]
He contends that the interests of justice require that leave to
appeal be granted, as the finding as to whether or not the applicant
falls within the purview of PAIA, is decisive of, and would dispose
of the matter.
[7]
The respondent argues that a referral to oral evidence lacks the
essential features of an appealable order, as it is not final
in
effect, nor is such a referral definitive of the rights between the
parties. Further, it does not dispose of a substantial portion,
or
indeed any, of the relief sought in the main application.
[8]
In
Union
Government (Minister of the Interior) and Registrar of Asiatics v
Naidoo
[7]
the Appellate Division refused leave to appeal against a ruling that
oral evidence be heard. Innes CJ held as follows:
‘…
.
There
has been an application for relief, but no decision upon it. The
prayer of the petition falls under nine separate heads, and
in regard
to none of them has any order been made. The application has merely
been postponed for further evidence. When the enquiry
is resumed the
judge may decide in favour of the present applicants on the facts; or
he may possibly, though very improbably, revise
his view of the law
upon further argument. But if he does neither; if he finds against
the applicants on the law and the facts,
and grants the relief prayed
for, it will then be competent for them to appeal and to raise every
point upon which they now wished
to rely. The fact that the present
application is for leave to appeal not against the order of the
learned judge – for he
has made none – but against his
reasons.’
[8]
[9]
The respondent also refers to
Klep Valves (Pty) Ltd v
Saunders Valve Company Ltd
where the Appellate Division relied on
Naidoo
and held that, in referring the matter to oral evidence, the court
had not granted or refused any order in relation to the relief
sought, and therefore the referral ‘
was
not an order and was consequently not appealable
.’
[9]
[10]
In
MAN
Truck and Bus (SA) (Pty) Ltd v Dorbyl Ltd,
[10]
the SCA held that ‘the short answer’ to the submission
that there was not a sufficient dispute of fact to warrant the
court
a quo’s referral to oral evidence was that ‘this
direction is not appealable’ as it did not constitute
a
judgment or order under section 20(1) of the Supreme Court Act 59 of
1959 because it lacked any one of these attributes.
[11]
[11]
The respondent further contends
that the application for leave to appeal is not targeted at the
Court’s ruling i.e. that the
matter be postponed and referred
to oral evidence, but instead at various aspects of the Court’s
reasoning. Reference is
made to
Absa
Bank Limited v Mkhize
where
the SCA held that an appeal lies against an order and not against the
reasons.
[12]
This, the SCA reasoned, was a sound principle which has been
confirmed in numerous decisions. See
Neotel
(Pty) Limited v Telkom SA Soc Ltd
[13]
where the SCA stated as follows:
‘
[18]
Counsel for the appellant submitted that the finding it was urging
this court to make, regarding the appealability, would not
result in
a piecemeal consideration of matters; that even though this court was
being asked, in essence, to create an exception
to the general
principle that appeals do not lie in respect of the reasons for a
judgment or order, the exception would be a narrow
one and there was
no danger of this court being inundated with appeals against reasons,
as a result.
[19] Counsel
readily conceded that he could not cite any authority directly in
support of this ‘novel’ approach, but
seemed to suggest
that there was some indirect support for it in a dictum of Moseneke
DCJ in
International Trade
Administration Commission v SCAW South Africa (Pty) Ltd
(ITAC)
.
There, the learned Deputy Chief Justice stated;
“
[w]hilst
it is true that ordinarily an appeal lies against an order
and not the reasoning in a judgment...”
(emphasis
added).
[20] The
appellant’s reliance on the decisions
in
Philani-Ma-Afrika
and
Nova
Property
is misplaced. In both
matters the appeals were against substantive orders.
In
Philani-Ma-Afrika
the
appealability of an execution order for eviction, pending the final
determination of the appeal by this court, was considered.
This court
held that the belief that the execution order was not appealable was
erroneous and that it was clear ….
that what was of paramount
importance in deciding whether a judgment was appealable, was the
interests of justice. In
Nova
Property
the appealability of an
order to compel discovery was considered. This court held that even
though such an order was not appealable
under the traditional test
laid down in
Zweni v Minister
of Law and Order
that test, as
held in
Moch v Nedtravel (Pty)
Ltd t/a American Express Travel Service
was
not exhaustive. Referring to
Philani-Ma-Afrika
,
this
court concluded that even though the interlocutory order was not
appealable under the traditional test laid down in
Zweni
,
it
was appealable in terms of s 17(1) of the Superior Courts Act. …
[21] The
appellant’s reliance on the dictum in ITAC is also
misplaced. The Constitutional Court was not considering
the issue of
appealability, but mentioned that it was permissible and sometimes
necessary for a court to look at the reasons for
an order to fully
grasp the reach and effect of that order. The dictum was obiter and,
read in context, makes it clear that Moseneke
DCJ was not implying
that in exceptional cases an appeal lies against the reasons for an
order.
[22] The
contentions of the appellant’s counsel effectively required
this court to jettison a sound principle which has been
confirmed in
numerous decisions, including decisions of this court
over a long period.
[23] While it
is so that this court has in recent times, as is evident from the
decisions referred to above, adopted a more flexible
and pragmatic
approach in determining whether interlocutory orders are appealable,
that did not extend to making reasons of judgments,
or orders,
appealable.
[24] The
approach contended for by the appellant not only holds the potential
of “opening the floodgates”, with its
inherent
challenges, but also the undesirable prospect of matters being
disposed of in a piecemeal fashion. And, even more concerning,
the
‘hollowing-out’, or erosion, of the substratum of
judgments and orders that are not before this court, and the
negative
consequences accompanying such a process.’
[14]
[12]
The applicant argues that the finding that this Court made that the
applicant falls under the definition of a ‘private
body’
in terms of PAIA, is one of the bases upon which the matter was
referred to oral evidence. Without such finding, the
matter would not
have been referred for oral evidence, and therefore this is a case
where the interests of justice demand that
leave to appeal be
granted.
[13]
The applicant sought to
distinguish this matter from the decision in
Naidoo
on the basis that, in that case, no findings were made upon which the
referral to oral evidence was based.
[15]
However, this distinction is without merit. The respondent in
Naidoo
had applied to a judge in chambers to set aside a deportation
warrant, to interdict his deportation, and for other relief. The
application was opposed on the ground,
inter
alia,
that the court had no
authority to hear the matter. The judge expressed himself in favour
of the view that the court had authority
to go into the question. He
thereafter found that he could not make a finding on the affidavits
before him on the merits and directed
that oral testimony should be
adduced. He adjourned the case for that purpose. One of the
jurisdictional requisites before referring
the matter to oral
evidence, would have been that the court has the authority to hear
the matter. Similarly, in the present case,
the finding that PAIA
applied to the applicant, is a finding which led to the referral to
oral evidence. However, as in Naidoo,
‘
the
application for leave to appeal is not against the order of the Court
– for it has made none – but against the reasons.’
[16]
[14]
The judgment in
Naidoo’s
case has consistently been followed. In
Klep
Valves
the applicant had
sought relief in the form of interdicts restraining the respondent
from infringing the applicant’s copyright
in respect of certain
drawings.
[17]
The respondent also prayed for and was granted relief ancillary to
the main prayer. On appeal the appellant contended that the
court’s
ruling on one of the prayers, for an account of profits, was wrong
and should be set aside.
[15]
Grosskopf JA in
Klep Valves
stated as follows:
‘
What is clear, however, is
that the Court has not granted or refused any order for the giving of
an account of profits, nor has
the Court expressed any view on the
circumstances which would justify such an order, or the effect which
such an order would have.
All these matters would appear to still be
open to the Court
a quo
at
the resumed hearing which is envisaged by the direction which I have
quoted above. In these circumstances, the question arises
whether
this direction is appealable at all.
’
[18]
[16]
The applicant seeks to invoke the
City of Tshwane
judgment in
stating that the Court should grant leave to appeal because one of
the reasons for arriving at the order is impugned.
However, as the
respondent argues, a ruling postponing the application and referring
it to oral evidence is unappealable, and the
findings that the Court
made in reaching this conclusion are irrelevant.
[17]
The respondent also
distinguishes the present matter from the
City
of Tshwane
case.
[19]
Firstly, he states that that case does not involve an order referring
the matter to oral evidence. Such an order is effectively
a direction
(as stated in the above authorities) and not an order
per
se
. It differs in substance
from an interim order. The respondent also argues that the
City
of Tshwane
matter is not
authority in respect of all matters, and that the ‘interests of
justice’ requirement must be seen within
the purview of the
effect of the order granted. In that case the Constitutional Court
held:
‘
The appealability of interim
orders in terms of the common law depends on whether they are final
in effect. In this connection it
must be borne in mind that the
effect of the restraining and mandatory order granted is to mortify
and prevent Council from implementing
its resolution. And this is the
resolution taken in terms of its constitutional and statutory powers.
To say that this amounts
to an intrusion by courts into the domain
reserved exclusively for the executive, would not be an
overstatement
.’
[20]
[18]
The respondent contends that the
City of Tshwane
case refers
to an order of the court, be it interim or final. Mogoeng CJ
held that:
‘…
The role of the
final effect of an interim order recedes into the background when an
interim order impermissibly trenches upon the
sole terrain of the
other branches of government. To arrest the execution of Council’s
policy decision as finally as the
High Court has done before a
determination of the grounds of review, is too drastic a measure to
take in the circumstances
.’
[21]
[19]
In my view, and having regard to all the authorities quoted, I do not
believe that the
City of Tshwane
prerequisites override the
fact that a reference to oral evidence is unappealable – even
if the basis upon which the order
was granted is impugnable. I
believe that this case – even taking into account the
City
of Tshwane
requirements – is on all fours with the
Naidoo
decision.
Accordingly
the following order is made:
1. The application for leave to appeal
is dismissed with costs.
_______
_______
S
E WEINER
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION PRETORIA
Date
of hearing: 14 February 2019
Date
of judgment: 22 February 2019
Appearances:
Counsel
for the Applicant: Adv. JJ Meiring
Instructing
Attorneys: Vasco de Oliveira Inc.
Counsel
for the Respondent: Adv. Tembeka Ngcukaitobi
Adv.
Michael Mbikiwa
Instructing
Attorneys: Cliffe Dekker Hofmeyer Inc.
[1]
Act 2 of
2000.
[2]
City of Tshwane
Metropolitan Municipality v Afriforum and Another
2016
(6) SA 279 (CC).
[3]
Ibid para 40.
[4]
Ibid.
[5]
National Treasury and
Others v Opposition to Urban Tolling Alliance and Others
2012 (6) SA 223
(CC) (the
OUTA
case).
[6]
Ibid para 25.
[7]
Union Government (Minister
of the Interior) and Registrar of Asiatics v Naidoo
1916 AD 50.
[8]
Naidoo
(note 7 above) at 51-52.
[9]
Klep Valves (Pty) Ltd v
Saunders Valve Company Limited
1987 (2) SA 1
(A)at 40G-41H.
[10]
MAN Truck and Bus (SA)
(Pty) Limited Ltd v Dorbyl Limited Ltd t/a Dorbyl Transport Products
and Busaf
2004 (5) SA 226
(SCA).
[11]
Ibid paras 21-22. The Court found that it lacked the attributes as
described in
Zweni v
Minister of Law and Order
1993
(1) SA 523
at 532J – 533B which stated, “
A
‘judgment or order’ is a decision which, as a general
principle, has three attributes, first, the decision must
be final
in effect and not susceptible of alteration by the Court of first
instance; second, it must be definitive of the rights
of the
parties; and third, it must have the effect of disposing of at least
a substantial portion of the relief claimed in the
main proceedings…
The second is the same as the oft-stated requirement that a
decision, in order to qualify as a judgment
or order, must grant
definite and distinct relief…”
’
[12]
Absa Bank Limited v Mkhize
and Two Similar Cases
2014
(5) SA 16
(SCA) para 64.
[13]
Neotel (Pty) Ltd v Telkom
SA Soc Ltd and Others
(605/2016)
[2017] ZASCA 47
(31 March 2017).
[14]
Ibid paras 18-24.
[15]
Naidoo
(note 7 above).
[16]
Naidoo
(note 7 above) at 52.
[17]
Klep Valves
(note 9 above).
[18]
Ibid at 40G-I.
[19]
City of Tshwane
(note 2 above).
[20]
Ibid para 39.
[21]
Ibid para 42.