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[2024] ZAFSHC 165
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Jersey Advertising and Another v Nedbank (433/2016) [2024] ZAFSHC 165 (27 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No: 433/ 2016
In
the matter between:
JERSEY
ADVERTISING
1
st
Applicant/Respondent
HELEN
TERRY REES
2
nd
Applicant/
Respondent
And
NEDBANK
Respondent/Applicant
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
17 MAY 2024
DELIVERED
ON:
27 MAY 2024
[1]
This is an
application for leave to appeal the whole judgment and order of Khooe
AJ granted on 18 November 2022
.
The acting
stint of Khooe, AJ having come
to
an
end,
I
am
now
seized
with
this
application.
The
application
seeks leave to
appeal to the Full Bench of this Division
,
alternatively
to the Supreme Court of Appeal. For convenience the parties will be
referred to as in the main application
.
For
convenience the parties w
i
ll
be referred to as in the main application.
[2]
The
legislative framework as set out in
Section 17
of the
Superior Courts
Act 10 of 2013
and the trite applicable case law for granting leave
to appeal the judgment and order need not be repeated as they are
settled
.
[3]
The applicant
launched an application against the Respondents for contempt of
court. At the hearing of the main application the
applicant abandoned
the contempt of court aspect of the application and pursued the
specific performance in terms of the settlement
agreement.
[4]
The essence of
the application in the court a quo centred around the correct
interpretation of the order of Snellenburg AJ where
he made the
settlement agreement signed by the parties concerned an order of the
court.
[5]
Pursuant to
the application for specific performance application before Khooe AJ,
she made certain orders which the respondents
submit were not in line
with the prayers sought in the Notice of Motion
.
[6]
On the other
hand, the applicant contends that the order of Khooe AJ is still an
interim order. It refers to the settlement agreement
and the order or
court which stipulates that:
"
The
parties
agree
that
the
above
matters will
be
pended
until
all
the
properties have
been sold
as
listed
above, whereafter
a
reconcilement
will be done of all bond and loan accounts of the Defendants
,
to
calculate that amount remains outstanding by the Defendant or
Defendants towards the Plaintiff."
[7]
The applicant
ultimately contends that the order of Khooe AJ constitutes an interim
order where the interest of justice dictates
that the order should
not be appealable.
[8]
It is
convenient to refer to the recent decision of the SCA in
Heidi
Joubert v Pierre Joubert
(285/2023)
[2024] ZASCZA 55 (19 April 2024) where the following is said with
regard to the appealability of an interim order:
"
In
advancing
'
the
interest of justice
'
in this appeal
as
a
basis
for the high court proceeding with the merits of this matter
,
the
respondent
'
s
counsel overlooked this Court
'
s
recent decision in TWK v Hoogveld Boederybeleggings (TWK)
.
In TWK
,
this Court
interrogated the notion thoroughly after carefully analysing several
decisions of this Court which had been willing to
part from the Zweni
v Minister of Law and Order (Zweni) judgment and said the following
:
'
Even
if this is so as
a
matter
of principle
,
as the
defendant's counsel reminded us
,
a
number
of decisions of this Court have been willing
,
with different
degrees of separation
,
to part from
Zweni
,
or
subsume Zweni under the capacious remit of interest of justice
.
I do not here
essay
a
general
account of appealability. I do affirm
,
though
,
that the
doctrine of finality must figure as the central principle of
consideration when deciding whether
a
matter
is appealable to this Court
.
Different
types of matters arising from the high court may (I put it no higher
normatively) warrant some measure of appreciation
that goes beyond
Zweni or may require an exception to its precepts
.
Any deviation
should be clearly defined and justified to provide ascertainable
standards consistent with the rule of law
.
Recent
decisions of this Court that may have been tempted into the general
orbit of the interest of justice should now be approached
with the
gravitational pull of Zweni
.
[10]
In the
same judgment
,
this
Court warned courts other than the Constitutional Court in
adopting the standard of
the interest of justice as the foundational basis upon which they
decide whether the matter is appealable
or not
.
It
remarked
:
"
I
recognise that there is thought to be
a
compelling
basis to render this Court
'
s
approach to appealability consistent with that of the Constitutional
Court. And hence to recognise the interests of justice as
the
ultimate criterion by reference to which appealability is decided
.
I consider
this to be
a
misreading
of the Constitution
.
Section 167 of
the Constitution constituted the Constitutional Court as the highest
court. Section 167(3) sets out matters that
the Constitution
Court may
,
and is thus
competent
,
to
decide
The
Constitutional Court grants
leave
to appeal on the grounds that the matter raises an arguable point of
Jaw of general public importance which ought to be considered
by that
Court
.
The
Constitution thereby states a principle of appealability in respect
of the Constitutional Court
.
The
Constitution does so also to allow a person to bring
a
matter
directly to the Constitutional Court or by way of direct appeal (s
167(6) of the Constitution)
.
National
legislation or the rules of the Constitutional Court must allow
a
person
to do so in the interest of justice and with the leave to
Constitutional Court
."
[9]
The
respondents did not deal with the issue of appealability of the order
of Khooe AJ as raised by the applicant in this application
for leave
to appeal. The essence of the attack of the judgment and order of the
court a quo is that the
said
court granted orders which do not correspond with the relief sought.
Simply put, the court a quo granted orders which were
not asked for
in the Notice of motion.
[10]
It is undisputed that the order granted is interim in nature
[1]
.
In
my view, there is a reason however to depart from Zweni. It is
settled that the pleadings serve as a vehicle to inform the parties
about the issues between them and also to warn them of the case they
are required to meet
[2]
. Closer
scrutiny of the orders granted by the court a quo reveals that some
of the orders the court granted do not correspondent
with the relief
sought in the Notice of Motion. The court also granted orders which
were not prayed for
.
This
in my view is reason enough to depart from Zweni.
Notwithstanding
this,
it
has
to be borne in mind that the respondents do not actually take issue
with the reasoning of the court a quo in the interpretation
of
Snellenburg AJ order. I am accordingly satisfied that the respondents
have made out a proper case and there are prospects of
success on
appeal. I accordingly order as follows:
ORDER
1.
The applicant
is granted leave to appeal the judgment and order granted herein to
the Full Bench of this Division;
2.
The costs of
this application will be costs in the appeal.
P.
E. MOLITSOANE, J
Appearances:
For
the Plaintiff
ADV
T NGUBENI
Instructed
by:
SPANGENBERG
ZIETSMAN & BLOEM
BLOEMFONTEIN
For
the
Defendant:
ADV
S REINDERS
Instructed
by:
MCINTYRE
VAN DER POST
BLOEMFONTEIN
[1]
See
para
20.3
.
3
of
the
Respondents
Heads
of Argument.
[2]
Prince
v
President
Cape
Law
Society
and
Others
[2000]
ZASCA
28:
2001(2)
SA
388(CC)
2001(2)
BCLR
133(CC).