About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1214
|
|
Martycel Properties CC v Slip Knot Investments 777 (Pty) Ltd; In re: Slip Knot Investments 777 (Pty) Ltd v Martycel Properties CC (55004/2012) [2016] ZAGPPHC 1214 (6 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
CASE
NO: 55004/2012
DATE:
6/12/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
IN
THE MATTER BETWEEN
:
MARTYCEL
PROPERTIES
CC Applicant
and
SLIP
KNOT INVESTMENTS 777 (PTY)
LTD Respondent
In
re:
SLIP
KNOT INVESTMENTS 777
(PTY)
LTD Plaintiff
and
MARTYCEL
PROPERTIES
CC Defendant
JUDGMENT
(In
respect of the plaintiff’s counter-application)
KOLLAPEN
J:
1.
This is judgment in the leave to appeal against the
Court's judgment and order in the conditional counter-application
where the
Court on the 29th of September 2016 granted the
respondent's conditional counter-application which had the effect of
varying the
order of PRINSLOO J of the 11th of June 2013.
2.
The applicant seeks leave to appeal against the whole of
the judgment of the 29th of September 2016 and 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.
3.
In this matter and before determining the necessity or
otherwise of having regard to the grounds of appeal, the first
question for
determination is the appealability or otherwise of the
order made. It is not in dispute that the order was made 'pending the
finalisation
of the action under case no 55004/12' and it is the
stance of the respondent that the judgment and order are not
appealable.
4.
Our Courts have over time developed the law with regard
to the appealability of interim or interlocutory orders and 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 I (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 emphasised 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.''
5.
As to what would constitute an interlocutory order
CORBETT JA in
SOUTH CAPE CORP. (PTY) LTD v
ENGINEERING MANAGEMENT SERVICES (PTY) LTD
1977
(3) SA 534
(AD)
said the following at 5490:
'In a wide and
general sense the term 'interlocutory' refers to all orders
pronounced 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.'
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)
said 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.'
7.
The Court added at 640G 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 an 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 & Others vs Commissioner, South African Revenue Service
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.'
8.
On this score alone it is evident that the order of the
29th of September 2016 is susceptible to reconsideration by the Court
when
final relief is determined or for that matter, at any earlier
stage given that such orders can be varied on good cause shown (see
ZONDI v MEC, TRADITIONAL AND LOCAL
GOVERNMENT AFFAIRS
2006 (3) SA 1
CC).
9.
However the Constitutional Court in
TSHWANE
CITY v AFRIFORUM AND ANOTHER
2016 (2)
SA 279
(CC)
dealt with the appealability of
interim orders and expressed the position as follows at 294B 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 no
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.'
10.
In taking the position it did, the 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
'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 relative and important 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.'
11.
Thus while the interests 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 . In this regard in alluding to the interest of
justice standard
the Constitutional Court in
OUTA
and in
AFRIFORUM
made specific reference to the question
of whether the order has immediate and substantial effect including
whether the harm that
flows from it is serious, immediate, ongoing
and irreparable.
12.
Applying this standard it is in my view clear that the
order of the 29th of September 2016 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 the main dispute, or
by
any other Court prior to that upon good cause shown .
13.
As to whether the order results in irreparable harm,
this court concluded in granting interim relief that there was a
well-grounded
apprehension of irreparable harm if relief was not
granted. The applicant contends that the interim order will result in
irreparable
harm in that it will contribute to the financial demise
of the applicant if were required to implement the order. In
considering
this submission it may be important to refer to paragraph
33 of the judgment in respect of which leave to appeal is sought
where
I pointed out that despite the applicant's stance that it does
not have financial resources at its disposal, it has on its own
version and from its own financial statements reflected an income of
some R43 million over the period 2010 to 2014 and has not provided
any explanation as to what has become of the profits that it earned
during that time. Thus it's assertion that it will face financial
ruin must be considered in the light of the broader facts and the
context of its operations taken largely, as indicated, from its
own
financial statements.
14.
Finally on this aspect it must be emphasised that the
nature of the interim relief granted is simply to preserve the net
rental
derived from the property until the determination of the trail
Court on the main issue in dispute. As to who ultimately is entitled
to those monies, will be a question for future determination.
15.
Accordingly I have not been convinced that the interests
of justice standard comes to the assistance of the applicant as there
is
with respect nothing in substance advanced as to why the
circumstances attendant upon the granting of interim relief will
result
in irreparable harm to the applicant .
16.
For these reasons I must conclude that the order of the
29th of September 2016 is not appealable. However even if I am wrong
on
this conclusion then when I have regard to the grounds of appeal
advanced by the applicant, they do not convince me that the appeal
would have a reasonable prospect of success.
17.
In this regard some of those grounds relate to:
11.
In the circumstances and even if it is contended that
the matter is appealable my view is that the appeal would not have a
reasonable
prospect of success and would have been dismissed on this
basis as well.
12.
ORDER
In the circumstances
I make the following order:
1.
The
application for leave to appeal is dismissed with costs.
NKOLLAPEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
Heard
on: 30 November 2016
APPEARANCES
:
For
the applicant: Adv.SD Wagner SC
Instructed
by: Coetzer & Partners (ref.: F Coetzer/FM0157)
For
the respondent: Adv. J F Pretorius
Instructed
by: Sim & Botsi Attorneys Inc. (ref.:SD/MN)