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[2016] ZAGPPHC 957
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Mjejane Trust and Others v Makhubela and Others (57206/10) [2016] ZAGPPHC 957 (2 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORI
2/11/16
Reportable:
No
Of
Interest To Other Judges: No
Case
Number: 57206/10
In
the matter between:
MJEJANE
TRUST AND
OTHERS
APPLICANTS
and
DAVID
ZOMA MAKHUBELA AND 4
OTHERS
RESPONDENTS
Coram:
HUGHES J
JUDGMENT
HUGHES
J
[1]
This is an application for leave to appeal my order made on 9
September 2016 by the applicants. The order made arose from an
interlocutory application by the respondent's to amend their notice
of motion to their counter-application. The main application
concerns
the verification of beneficiaries to the Mjejane Trust.
[2]
Both Adv. Matebese for the applicants and Adv. Donaldson for the
respondent's conceded that the first issue was for me to determine
whether my order made in the interlocutory application to amend was
in fact appealable.
[3]
Adv. Matebese insisted that the applicable legislation in this
instance was
section 17(1)
(c) of the
Superior Courts Act 10 of 2013
.
Whilst Adv. Donaldson argued that it could also fall within the realm
of section 17(1) (a) (i) and (ii) and the provisions of
the Supreme
Court Act 59 of 1959.
[4]
Adv. Donaldson further argued that whether it is the
Superior Courts
Act or
the Supreme Court Act the applicable test would result in the
order made in this interlocutory application being unappeasable.
[5]
I am mindful of what Moseneke DCJ stated in
International
Trade Administration
Commission
v
SCAW SA
2012 (4) SA 618
CC
at
para
[49] :
"[49]
In this sense, the jurisprudence of the Supreme Court of Appeal on
whether a "judgment or order" is appealable
remains an
important consideration in assessing where the interests of justice
lie. An authoritative restatement of the jurisprudence
is to be found
in
Zweni v Minister of Law and Order51
which has laid down
that the decision must be final in effect and not open to alteration
by the court of first instance; it must
be definitive of the rights
of the parties; and lastly, it must have the effect of disposing of
at least a substantial portion
of the relief claimed in the main
proceedings. On these general principles the Supreme Court of Appeal
has often held that the
grant of an interim interdict is not
susceptible to an appeal.52" [Without footnotes]
[6]
It is trite that the test to determine whether an order or judgment
is appealable was set out in
Zweni
v
Minister
of
Law
and
Order
1993
(1)
SA
523
(A)
at 532J-533A. This being that the decision should be
final in effect and not be susceptible of alteration by the Court of
first
instance; it must be definitive of the rights of the parties;
and it must have the effect of disposing of at least a substantial
portion of the relief sought in the main proceedings. In addition,
the interest of justice is of paramount importance when deciding
if a
judgment is appealable. See
Nova
Group v Cobbett
2016 (4) SA 317
at 323C-D.
[7]
Firstly, the grant of the amendment in my view is in the interest of
justice. We have a situation where the respondent's in
this
application for leave to appeal admitted the 1038 households as the
process to verify these households was correct. However,
this court
does not have any source documents to confirm these households as
being the correct parties to receive the benefit.
Who would be
prejudiced if this exercise is conducted in line with two previous
orders that the applicant's in this application
for leave to appeal
sought to ignore?
[8]
In my view, none of the parties would be prejudice or would
experience irreparable harm if leave to appeal is granted or refused.
It would not be in the interest of justice in this instance to
entertain an appeal against the interlocutory order I have made.
In
fact, in my view, the order granted benefits both parties as the
correct households would receive the benefit from the trust.
As
stated in paragraph [21] of my judgment in terms of
s14
(4) of the
Restitution of Land Rights Act 22 of 1994
the lack of the source
documents to for the court to verify places the parties and the court
at a disadvantage.
[9]
Secondly, the decision I made in the interlocutory application is not
a final decision as the court hearing the main application
could
still alter it after the process of verification is conducted as was
anticipated in the two previous orders ignored by the
applicants. It
is clearly not an order that is definitive of the rights of the
parties and does not in my view dispose of a substantial
portion of
the relief sought in the main proceedings. The applicants in opposing
the interlocutory application for the amendment
argued that there
were in fact no beneficiaries to the trust but in the same breath
they oppose the amendment and persist to have
the admission of the
1038 households. This in itself does not dispose of a substantial
1ortion of the main relief sought and it
is clearly not definitive of
the parties' rights.
[10]
Having assessed where the interest of justice lies in terms of
s17
(1) of
Superior Courts Act of the
rom the aforesaid it is clear that
there are no reasonable prospects of success and further no
compelling reasons to grant leave
to appeal. I have already stated
above that the amendment granted goes to the heart of the
verification process. The grant of leave
to appeal for the matter to
be dealt with in a manner that would lead to the just and prompt
resolution of the real issues cannot
come about, in my view, without
this process. In the circumstances
section 17
of the
Superior Courts
Act has
not been satisfied.
[11]
For the reasons I have set out above I find that the interlocutory
order granted to amend the respondents notice of motion
in their
counter-application dated the 9 September 2016 is not appealable.
[12]
Consequently the following order is made:
[1]
The order of 9 September 2016 is not appealable.
[2]
The application for leave to appeal is dismissed with costs. Such
costs to include the employment of two counsels for the respondents
in this application.
________________________
W.
Hughes
Judge
of the High Court Gauteng
PRETORIA