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2024
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[2024] ZANCHC 99
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Steenkamp and Another v Du Preez (Leave to Appeal) (388/2024) [2024] ZANCHC 99 (4 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
Number:
388/2024
Heard: 24/07/2024
Delivered on: 04/10/2024
In
the matter between:
PIETER
STEENKAMP
First Applicant
JEBEKO
FARMING
CC
Second Applicant
and
SANETTA
HENDRIETTA DU
PREEZ
Respondent
Coram
:
Tyuthuza AJ
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
Per
Tyuthuza AJ
INTRODUCTION
1.
The first and second applicants seek leave to
appeal an order granted by myself on 23 February 2024 (“the
main application”)
and the judgment granted by myself on 24 May
2024 (“the contempt application”) to the full court of
this Division,
alternatively, the Supreme Court of Appeal.
2.
Pursuant to a request for reasons, I have dealt
with my reasons for the order granted in February 2024, by way of
written reasons
delivered on 9 May 2024. Subsequent thereto the
applicant launched an application for contempt, wherein my judgment
was delivered
on 24 May 2024. The applicants seek leave to appeal in
respect of both the main application and the contempt of court
application.
The
applications are based on the grounds as stated in the applicants
notices dated 26 February 2024 and 30 May 2024.
3.
I do not intend
herein to traverse the reasons for my findings, as I have done so in
my written judgments and will refrain below
as far as possible from
repeating my reasoning.
4.
For convenience’s
sake, I will refer to the parties as they were referred to in the
main application.
TEST
FOR APPEAL
5.
Applications
for leave to appeal are regulated by
Section
17
(1)
of the
Superior
Courts Act 10 of
2013
which
provides as follows:
"
17 Leave
to appeal
(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 prospect 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."
6.
The
Superior Courts Act now provides
for
leave to appeal to be granted only in two circumstances, the first
circumstance is where the Judge concerned is of the opinion
that an
appeal would have a reasonable prospect of success and secondly,
where there are some compelling reasons why the appeal
should be
granted.
7.
In
MEC
Health, Eastern Cape v Mkhitha and Another
[1]
the
Supreme Court of Appeal said the following:
“
Once
again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable
prospect of success.
Section
17(1)
(a) of
the
Superior
Courts Act 10 of 2013
makes
it clear that leave to appeal may only be given where the judge
concerned is of the opinion that the appeal would have
a
reasonable prospect of success; or there is some other compelling
reason why it should be heard.
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable
case or one that is not hopeless, is not enough. There must
be a
sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.”
8.
In
Caratco (Pty) Ltd v
Independent Advisory (Pty) Ltd
2020
(5) SA 35
(SCA),
the Court observed thus:
“
In
order to be granted leave to appeal in terms of
s
17(1)(a)(i)
and
s
17(1)(a)(ii)[2]
of
the
Superior Courts Act an
applicant for leave must satisfy the
court that the appeal would have a reasonable prospect of success or
that there is some other
compelling reason why the appeal should be
heard. If the court is unpersuaded of the prospects of success, it
must still enquire
into whether there is a compelling reason to
entertain the appeal. A compelling reason includes an important
question of law or
a discreet issue of public importance that will
have an effect on future disputes. But here too, the merits remain
vitally important
and are often decisive.”
APPEALABILITY
OF INTERIM ORDERS
9.
Section 18 of the Superior Courts Act 10 of
2013 (“the Act”) provides as follows:
“
(1)
Subject to subsections (2) and (3), and
unless the court under exceptional circumstances orders otherwise,
the operation and execution
of a decision which is the subject of an
application for leave to appeal or of an appeal, is suspended pending
the decision of
the application or appeal.
(2)
Subject to
subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision
that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application for leave to appeal
or of an
appeal, is not suspended pending the decision of the application or
appeal.
(
3) A court may only
order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order otherwise,
in addition proves
on a balance of probabilities that he or she will suffer irreparable
harm if the court does not so order and
that the other party will not
suffer irreparable harm if the court so orders.”
10.
Regarding the appealability of interim
orders the Constitutional Court in
National
Treasury and Others v Opposition to Urban Tolling Alliance and others
[2012] JOL 29422
(CC)
stated the following at paragraph 25:
“
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.”
11.
The
Supreme Court of Appeal in
RTS
Industries and Others v Technical Systems (Pty) Ltd and Another
[2]
confirmed the above approach to determining the appealability of
interim interdicts and stated the following
:
“The crux of the matter is firstly, whether this order was
‘final in effect’ and was therefore appealable even
if
its stated character was interim. Secondly, whether the interests of
justice warrant that an appeal against the order in issue
should be
entertained.”
DISCUSSION
12.
The respondents seek leave to appeal on
the basis that the interdict is final and irreversible and cannot be
revisited by the court
adjudicating the divorce action. Furthermore
if the interdict is final in effect, it has the irresistible effect
that the contempt
application was wrongly decided and even if the
interdict is not final in effect, the respondents truly believed that
the order
was suspended.
13.
The
applications are vehemently opposed by the applicant, on the basis
that an interim order, particularly an anti-dissipation order
will
only be appealable in the event of it being shown to be final in
effect and if it is in the interests of justice to do so.
Secondly
the applicant argues that even if the interim order is appealable due
to the interests of justice, the order is not within
the purview of
section 18(1)
of the
Superior Courts Act and
in terms of
section
18(2)
remains operative until the Court under exceptional
circumstances orders otherwise. Thirdly that the respondents have
failed to
meet the prescripts of
section 17(1)
in that they have
failed to satisfy the test for leave to appeal to be granted.
14.
When
deciding on the nature and appealability of the order granted in the
main application, I have to consider the circumstances
that led to
the urgent application.
The applicant
and the first respondent were married in community of property in
November 2011. In April 2023, the first respondent
instituted divorce
proceedings against the applicant.
The
applicant launched the urgent application to seek urgent interdictory
relief pending the finalisation of the divorce proceedings
to
interdict and restrain the respondents from utilizing an amount equal
to 50% of the nett proceeds of the sale of Farm Jebeko
and to pay the
amount equal to 50 % of the nett proceeds into the applicant or the
first respondent’s attorneys’ trust
account.
The applicant contends that the first
respondent is intent on frustrating her claim or diminishing the
value of her claim in the
divorce action, in that he refuses to
account to her regarding the sale of livestock, his spending of the
joint funds and he has
failed to disclose details regarding the sale
of the farms Jebeko and Gamuip. The applicant avers that the first
respondent’s
conduct is indicative of his intent to frustrate
her claim or at the very least, to significantly diminish the value
of her claim.
The applicant alleges that the first respondent will
alienate and dissipate her share of the joint estate. The conduct of
the first
respondent was the basis for the relief sought by the
applicant.
15.
The
first respondent having opposed the urgent application contended that
there is no evidence of him either selling or squandering
the
communal assets or that he has any intention to do so. He
further contended that farm Jebeko is an asset belonging to
the
second respondent and that the second respondent is at liberty to
deal with its assets as it deems fit. It is the first
respondent’s case that the proceeds from the sale of the Jebeko
Farm will be utilised to increase the value of the estate
and
therefore the applicant cannot suffer any prejudice if the relief is
not granted.
16.
Having
again considered the circumstances, I am of the considered view that
there can be no prejudice whatsoever if the interim
order continues
to operate, and further that if the first respondent were allowed to
continue to dispose of assets and do as he
wishes regarding the 50%
which ought to be preserved, his actions would likely prejudice the
applicant.
17.
The
relief sought by the applicant is in the form of an anti-dissipation
order. In
the main judgment, the
nature
of the interim anti-dissipatory interdict
pendente
lite
was comprehensively discussed.
I concluded then that the interdict granted is interim and
interlocutory, and does not have final
effect.
18.
This
conclusion brings into operation, section 18(2) of the Act for
purposes of the present case. The effect thereof will be that,
the
Superior Courts Act does
not suspend the operation of an
interlocutory order, not having the effect of a final judgment,
pending the outcome of the application
for leave or the appeal
itself.
The respondents have not
brought an application in terms of
section 18(3)
of the act, for an
order directing that the operation and execution of the order granted
on 24 February 2024 shall not be suspended
pending the respondent’s
application for leave to appeal. The respondents have made out no
case why an order in terms of
section 18(2)
should be granted.
19.
An
important fact for consideration when deciding whether the interest
of justice necessitates the granting of this application
is that the
respondents in August 2023 undertook to retain 50% of the sale of the
farm in their attorneys trust account, however,
it has become clear
that despite this undertaking, the respondents were performing
transactions which impacted the 50%. As a result
of the urgent
application, certain information regarding how the money was used and
various transactions came to light, had the
respondents played open
cards with the applicant, there would not have been the need to
launch this application.
20.
In
my view an anti-dissipation order such as the one that I granted on
23 February 2024, is not a final judgment for purposes of
section
18(1)
of the
Superior Courts Act, it
is an interlocutory order not
having final effect as envisaged in section 18(2) of the Act. I am
therefore of the view that it
would not be in the interests of
justice to appeal the order.
CONTEMPT
APPLICATION
21.
In
respect of the application for leave to appeal in relation to the
contempt order which I made on 24 May 2024, one of the issues
I had
to determine was whether the respondents’ failure to comply
with the order was willful or
mala
fide
. The
respondents argue that the order was not final in effect and thus
their non-compliance was not willful or
mala
fide
.
Accordingly, it is asserted on behalf of the respondents that the
applicant was forewarned in letters of its view regarding the
interdict being suspended by the application for leave to appeal. The
respondents further contend
that
they are not bound by the order and that the second respondent is
thus entitled to carry on as if the order does not exist.
22.
Despite
the nature of the order being a contentious issue amongst the parties
and even after I had delivered my reasons, wherein
I dealt with the
nature and effect of the order, the respondents failed to bring an
application in terms of section 18 prior to
this hearing, and neither
was an argument made for me to consider an application in terms of
section 18 of the Act.
23.
In
order to resolve any difficulties which, the parties might have
regarding the effect of the order, in my 24 May 2024 judgment,
I
further declared that the
operation and execution of the order
granted by this Court on 23 February 2024 shall not be suspended
pending the finalisation of
the application for leave to appeal and
subsequent applications/petitions for leave to appeal that order.
24.
The
respondents submit that it is impossible to be in contempt of an
order which has been suspended and which is inoperative in
that the
order granted falls within the purview of
section 18
(1) of the
Superior Courts Act. The
respondents aver that they hold a strong and
bona fide
view that the order has the effect of a final judgment, therefore,
they cannot be in wilful disobedience. The respondents further
submits that there are very good prospects of success in appealing
the order and that the prospects of being unsuccessful on appeal
are
therefore slim.
25.
Willful non-compliance with
an order of a court amounts to contemptuous behaviour. It is trite
that intent or willfulness is required
to hold a party in contempt
for disobeying a court order. Thus, there should be a deliberate
intentional act to disregard the court
order. Despite the respondents
arguing that it had a
bona
fide
view
that the order was final, the respondents completely ignored the
order and
continued to make an
interim proposal to the applicant
wherein the respondents tendered to register a mortgage bond in
favour of the applicant, thus
circumventing the order. The
respondents completely disregarded the order, even after my reasons
were granted, wherein I pronounced
that the order was interim in
nature and
did
not dispose of any issue or any portion of an issue in the divorce
proceedings.
26.
In light of the respondents’ conduct, I find
it difficult to conclude that the respondents did not willfully
disobey the order.
The respondent ought to have brought an
application in terms of
section 18(2)
, to suspend the operation of
the order but failed to do so.
27.
I am of the view that the respondents have not
discharged their evidential burden of placing facts before the court
that would disturb a conclusion that, on a balance
of probability, their conduct in failing to comply with the order
granted in
February 2024, was willful and mala fides.
28.
In conclusion, there is nothing that persuades me that the two
appeals launched by the respondents would have reasonable prospects
of success. Neither are there any compelling reasons why leave to
appeal should be granted in both applications.
29.
The remaining
issue is the issue of costs. The applicant asked this Court to
dismiss the applications and grant costs on an attorney
and client
scale, having regard to my findings in the main application and the
contempt application, in my view a punitive cost
order is warranted.
I
therefore make the following order:
1.
The application for leave to appeal
against the order granted on 23 February 2024 is dismissed.
2.
The applicants in the application for
leave to appeal referred to in paragraph 1 above are ordered
to
pay the costs jointly and severally from each other, the one paying
the other to be absolved
pro tanto
on an attorney and client
scale.
3.
The application for leave to appeal
against the order granted on 24 May 2024 is dismissed.
4.
The applicants in the application for
leave to appeal referred to in paragraph 3 above are ordered
to
pay the costs jointly and severally from each other, the one paying
the other to be absolved
pro tanto
on an attorney and client
scale.
T
TYUTHUZA
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
APPEARANCES:
On
behalf of the 1
st
and 2
nd
Applicants:
Adv
D van Den Bogert SC
On
the instruction of:
CJ
Willemse & Babinszky Attorneys
c/o
Roux Welgemoed Du Plooy Att.
On
behalf of the Respondent:
Adv
JG van Niekerk SC
On
the instruction of:
Cluver
Markotter Inc.
c/o
Engelsman Magabane Inc.
[1]
(1221/2015) [2016] ZASCA 176 (25 November 2016) at paras 16-17.
[2]
(145/2021)
[2022]
ZASCA 64
(5 May 2022) at para 23.