THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case no: 1308/2023
In the matter between:
LEBASHE INVESTMENT GROUP (PTY) LIMITED FIRST APPELLANT
HARITH GENERAL PARTNERS (PTY) LIMITED SECOND APPELLANT
HARITH FUND MANAGERS (PTY) LIMITED THIRD APPELLANT
WHEATLEY, WARREN GREGORY FOURTH APPELLANT
MAHLOELE, TSHEPO D UAN FIFTH APPELLANT
MOLEKETI, PHILLIP JABULANI SIXTH APPELLANT
and
UNITED DEMOCRATIC MOVEMENT FIRST RESPONDENT
HOLOMISA, BANTUBONKE HARRINGTON SECOND RESPONDENT
Neutral Citation: Lebashe Investment Group (Pty) Ltd and Others v United
Democratic Movement and Another (1308/2023) [2025] ZASCA 29
(28 March 2025 )
Coram: SCHIPPERS, HUGHES and BAARTMAN JJA and WINDELL and
NORMAN AJJA
Heard: 25 FEBRUARY 2025
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Delivered: 28 M ARCH 2025
Summary: Practice — pleadings — exception on ground that amended plea does not
disclos e a defence — appealability of dismissal of exception — interest s of justice not
supporting appealability .
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_____________________________________________________________________
ORDER
______________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Bokako AJ)
The appeal is struck from the roll with costs, such costs to include the costs of the
application for leave to appeal, all of which will include those consequent on the
employment of two counsel.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Windell AJA ( Schippers, Hughes and Baartman JJA and Norman AJA concurring ):
Introduction
[1] This is an appeal against the dismissal of an exception raised by the appellants in
response to the respondents’ amended plea. The appeal is with leave of the Gauteng
Division of the High Court, Pretoria (per Bokako AJ ).
[2] As with many interlocutory orders brought before this Court on appeal, the
question about appealability is squarely raised . Although the order of the court a quo is
interlocutory in nature, and despite the reservations expressed in TWK Agriculture
Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and Others1 (TWK) regarding
the appealability of a n order dismiss ing an exception , it is now settled that the
requirements in Zweni v Minister of Law and Order,2 namely whether the relief granted is
final in its effect, definitive of the rights of the parties, and disposes of a substantial portion
1 TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and Others 2023 (5) SA 163
(SCA) [2023] ZASCA 63 (TWK ); See also Maize Board v Tiger Oats Ltd and Others [2002] 3 All SA 593
(A); 2002 (5) SA 365 (SCA) (Maize Board ).
2 Zweni v Minister of Law and Order [1993] 1 All SA 365 (A) ; 1993 (1) SA 523 (A) at 532J –533A ( Zweni ).
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of the relief claimed, do not override the interests of justice when determining the
appealability of any order, whether interlocutory or otherwise.3 In United Democratic
Movement and Another v Lebashe Investment Group (Pty) Ltd and Others (a matter
which, coincidently , involved the same parties now before this Court on appeal), the
Constitutional Court stated that the interests of justice requirement is not confined to the
Constitutional Court but equally applies to this Court.4 In Mineral Sands Resources (Pty)
Ltd and Others v Red dell and Others ,5 the Constitutional Court pertinently addressed the
appealability of an order dismissing an exception and held that the interest s of justice
criterion is ‘more expansive’ and the operative standard.
[3] An appeal should thus proceed if its appealability or the granting of leave to appeal
best serves the interests of justice — regardless of any pre -Constitution common -law
impediments.6 The interests of justice will depend on a careful evaluation of all the
relevant factors in a particular case.7 Consequently, the dismissal of an exception may
be appealable if the circumstances of the case warrant it. This leads me to the facts of
the case at hand.
The facts
[4] The first appellant, Lebashe Investment Group (Pty) Ltd, is an investment holding
company, while the second and third appellants, Har ith General Partners (Pty) Ltd and
Harith Fund Managers (Pty) Ltd, operate as fund managers, investing on behalf of their
investors in infrastructure projects across Africa. The fourth, fifth, and sixth appellants are
directors of these companies, though no t all of them hold directorships in the same entity.
Collectively, they are referred to as ‘the appellants ’.
3 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others 2023 (1)
SA 353 (CC) ; [2022] ZACC 34 para 41(Lebashe) .
4 Lebashe para 45 . See also Cyril and Another v The Commissioner for the South African Revenue Service
[2024] ZASCA 32 para 7; Tshwane City v Vresthena (Pty) Ltd and Others [2024] ZASCA 51; 2024 (6) SA
159 (SCA) para 10 ; MV Smart: Minmetals Logistics Zhejiang Co Ltd v Owners and Underwriters of
MV Smart and Another 2025 (1) S A 392 (SCA) para 32 .
5 Mineral Sands Resources (Pty) Ltd and Others v Red dell and Others [2022] ZACC 37; 2023 (2) SA 68
(CC); 2023 (7) BCLR 779 (CC) .
6 Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC) ; 2016 (9) BCLR 1133; [2016] ZACC 19 paras
40 – 41.
7 Lebashe paras 33,34,41 ,42,43,45,46 .
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[5] On 15 August 2018, the appellants issued summons against the respondents,
seeking R2 million in damages for defamation and injuria . Their claims arose from two
publications alleged to be per se defamatory: a letter authored by the second respondent,
Mr Bantubonke Holomisa, a Member of Parliament and the President of the first
respondent, the United Democratic Movement (UDM), a registered political party. The
letter, dated 26 June 2018, was written on the UDM’s official letterhead and addressed to
the Presid ent of the Republic of South Africa, and made available to the public. The
second publication was a tweet posted on UDM’s account on the social media plat form X
(formerly Twitter) on 1 July 2018, in which the sixth appellant and others were referred to
as ‘hyenas ’ (the tweet) .8
[6] The particulars of claim assert that the statements in the letter titled ‘Unmasking
Harith’s and Lebashe’s Alleged Fleecing of the Public Investment Corporation, ’ which
were affirmed as accurate in the tweet, were intended and understood by an ordinary
reader of reasonable intelligence to suggest that the appellants were deeply involved in
a longstanding and escalating corrupt scheme. This scheme allegedly implicated, among
others, the then CEO of the Public Investment Corporation (PIC), a state -owned vehic le
and asset -management company established in terms of s 3 of the Public Investment
Corporation Act 23 of 2004 and the sixth respondent, who serve d as a non -executive
director of the first appellant and chairman of the second and third appellants . It was
alleged to involve the unlawful depletion of billions of Rand from the PIC. Furthermore,
the appellants’ purported misconduct was depicted as being so pervasive that it rendered
the alleged state capture by the Gupta family insignificant by comparison. The letter also
called upon the President to initiate an investigation into the PIC . Subsequently. This led
to the establishment of a Commission of Inquiry under Mr. Justice Mpati (the PIC
Commission of Inquiry).
8 The tweet read as follows: ‘The proximity of Harith & Lebashe directors to PIC is making an interesting
read. We are spot on. They seem to be trusted Indunas. The sooner President Ramaphosa agrees to
investigate his fellow comrades like Jabu Moleketi & other hyenas, the better .’
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[7] In their initial plea to the particulars of claim on 9 October 2018, the respondents
admitted to publ ishing the material and acknowledged that it concerned the appellants.
However, they den ied that the material was inherently defamatory of the appellants or
that it was published wrongfully or with intent to injure (animo in iuriandi ). Their primary
defence was that the letter merely highlighted serious allegations of misconduct , brought
forward by a whistle -blower , concerning a conflict of interest . These a llegations implicated
the sixth appellant, who, while serving as both Deputy Minister and chairperson of the
PIC, allegedly violated s 96 of the Constitution by approving transactions that benefited
the first, second, and third appellants , organi sations in which he held positions as director
and chairperson.
[8] The respondents contended that the flow of funds to the entities provided sufficient
evidence of a breach of the Public Finance Management Act 1 of 1999 and the
Constitution, warranting an investigation. They argued that this instance exemplified state
capture and should be examined alongside other similar allegations. Given their role as
a political party and a Member of Parliament, they asserted that they had a duty to call on
the President to initiate an investigation, which they duly did. They also pleaded that any
person who is involved in allegations of corruption is , metaphorically speaking , a hyena.
[9] On 13 December 2019, the Report of the PIC Commission of Inquiry into the
Allegations of Impropriety at the Public Investment Corporation (the PIC Report) was
made released . Nearly two years later, o n 7 November 2021, on the eve of the trial, the
respondents filed a notice seeking to amend their plea . Their proposed amendment was
extensive, aiming to insert verbatim excerpts from the PIC Report. The report itself
concluded that ‘[t]here are clear instances where the Commission found that directors
and/or employees benefited unduly from the positions of trust that they held. ’ The
amendments to the plea conclude, at paragraph 6A.66, with the averment that the
published material is therefore not per se defamatory of the plaintiffs:
‘Accordingly, given the proper interpretation of the impugned letter, the fact that the President
yielded to the Defendants’ request and the PIC Report made the foregoing findings must
contextually, axiomatically and objectively mean that the impugned lette r is not defamatory, and
certainly not per se defamatory. ’
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[10] Despite the appellant’s objection thereto, the amendment was allowed on 4
November 2022 . As a result, the appellants raised an exception to the amended plea.
The crux of the exception was that the amendment lacked averments which were
necessary to sustain a defence and that the contents of the PIC Report were entirely
irrelevant to the meaning of the letter and the tweet. In the circumstances, the appellants
sought an order upholding the exception and striking out the paragraphs from the PIC
Report.
[11] The court a quo dismissed the exception with costs, concluding that the
respondents' amendment merely incorporated the findings of an independent commission
established by the President concerning the impugned statements and allegations. The
court further held that the pleading presented a clear and concise statement of material
facts with sufficient particularity, enabling the appellants to respond if necessary. It is this
order that the appellants now seek to appeal.
Is the order appealable?
[12] In determining the appealability of a matter, several factors must be considered.
These include whether the relief granted was final in effect, whether it definitively
determined the rights of the parties, and whether it disposed of a substantial portion of
the relief claimed.9 Additionally, considerations such as convenience, timing, delay,
expedience, potential prejudice , the avoidance of piecemeal appeals, and the broader
pursuit of justice also play a crucial role .10
[13] As a starting point, when evaluating the Zweni factors, it is well established that an
order dismissing an exception is generally not final in effect , unless the exception
9 Zweni at 532J –533A ; International Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010] ZACC 6; 2012 (4) SA 618 (CC) ; 2010 (5) BCLR 457 (CC); 72 SATC 135 para 49 (Scaw) .
10 Government of the Republic of South Africa and Others v Von Abo [2011 ] ZASCA 65 ; 2011 (5) SA 262
(SCA) ; [2011] 3 All SA 261 (SCA) para 17 ; Scaw; City of Cape Town v South African Human Rights
Commission [2021] ZASCA 182 paras 10 -12.
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specifically challenges the court’s jurisdiction .11 The order of the court a quo is no
exception. While the court is unlikely to change its stance, the same issue may still be
raised at trial upon a consideration of fresh argument and further authority .12 And d espite
its prior decision, the trial court still has the discretion to reconsider, modify, or uphold the
court a quo’s ruling .13 An appeal to this Court is thus premature while the matter remains
unresolved, as it seeks to pre-empt a decision the trial court has yet to finali se.14
Moreover, the order did not definitively determine the parties’ rights, nor did it dispose of
a substantial portion of the relief sought in the main proceedings.
[14] The appellants argue that the appeal should nevertheless be determined in the
interests of justice as they are prejudiced by the plea in its current form . Firstly, t hey
contend that the amendment, reflected in the introductory words of paragraphs 6 and 15
of the amended plea, is solely aimed at establishing ‘the correct meaning ’ of the material
admittedly published by the respondents. This approach, so they argue, is impermissible,
as the contents of the PIC Report cannot be relied upon to determine the meaning of the
published material . As a result, they would be unable to plead meaningfully to the
amended plea or mitigate the ‘havoc ’ it would allegedly create at tria l due to its irrational
and improper nature.
[15] Secondly, it is argued further by the appellants that if paragraphs 6A and 15A of
the amended plea remain in the pleadings, the trial , originally expected to last one or two
days , will extend over several weeks, leading to evident prejudice and a significant waste
of resources. This is so because the amended plea constitutes a mixture of evidence and
opinion of another tribunal that is neither a court of law nor a final arbiter of fact, which
cannot be incorporated into the plea as facts . Conversely, they maintain that if the
11 Maize Board paras 14 and 15 ; Tembani and Others v President of The Republic Of South Africa and
Another [2022] ZASCA 70 ; 2023 (1) SA 432 (SCA) ; TWK ; See however Minister of Water and
Environmental Affairs and Another v Really Useful Investments 219 (Pty) Ltd [2016] ZASCA 156 ; [2017] 1
All SA 14 (SCA) ; 2017 (1) SA 505 (SCA) para 2.
12 Blaauwbosch Diamonds Ltd v Union Government (Minister of Finance) 1915 AD 599 at 601.
13 TWK para 32 .
14 Ibid para 31 .
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exception is upheld, a substantial portion of the respondents’ pleaded case will be
eliminated, allowing the trial to proceed efficiently on the true issues in dispute.
[16] Lastly, the appellants contend that the introduction of the PIC Report in the plea
makes the amended plea overl y lengthy and aside from the denial that the material is per
se defamatory and was published with the intent to defame, the plea creates confusion
and uncertainty regarding what other possible defences the respondents seek to rely on.
As a result, it is contended that the plea is vague and embarrassing.
[17] These arguments are without merit. The so -called havoc that would be created,
the extension of the trial and any uncertainty about the respondents’ defences, are easily
eliminated by a request for trial particulars (rule 21) and the proceedings under rule 37 of
the Uniform Rules of Court. T hese are designed to narrow the issues between the parties
and to promote the effective disposal of litigation. The appellants’ arguments do not
support the conclusion that the order is appealable.
[18] Interlocutory orders are , for the most part, not appealable , because fragmenting a
case through appeals on individual aspects before the matter is fully resolved in the court
of first instance is undesirable.15 Allowing the appeal in the present matter would result in
piecemeal adjudication, prolong the litigation, and lead to a wasteful use of judicial
resources and costs.16 The summons was issued more than seven years ago and it is in
the interests of justice that the matter proceed to trial. The Constitutional Court in
Psychological Society of South Africa v Qwelane17 has affirmed that it will only intervene
in ongoing lower court proceedings in exceptional circumstances —specifically, in cases
of great rarity , where there is a threat of grave injustice and intervention is essential to
achieving justice.18 This is not such a case.
15 Minister of Health and Others v Treatment Action Campaign and Others (No 1) 2002 (5) SA 703 (CC) ;
2002 (10) BCLR 1075 (CC) para 9 ; Cloete and Another v S and a Similar Application 2019 (4) SA 268 (CC);
2019 (2) SACR 130 (CC); 2019 (5) BCLR 544 (CC) para 57.
16 South African Informal Traders Forum and Others v City of Johannesburg and Others [2014] ZACC 8;
2014 (6) BCLR 726 (CC) ; 2014 (4) SA 371 (CC) para 20 (g); Economic Freedom Fighters v Gordhan and
Others [2020] ZACC 10; 2020 (8) BCLR 916 (CC); 2020 (6) SA 325 (CC) para 49.
17 Psychological Society of South Africa v Qwelane and Others [2016] ZACC 48; 2017 (8) BCLR 1039 (CC).
18 Ibid para 40 .
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[19] The appellants have not demonstrated any irreparable prejudice that cannot be
remedied within the framework of the Uniform Rules of Court if the appeal is not
entertained. The trial court retains the authority to revisit the findings of the court a quo
and will ultimately determine the proper interpretation of the pleadings, the true issues in
dispute, the relevance of matters raised, and the admissibility of evidence. The appellants'
right to object to evidence on the grounds of relevance, as well as e stablished principles
in defamation law, remains intact and is not curtailed by the order of the court a quo.
[20] Consequently , the papers fail to disclose any facts that would justify granting leave
to appeal in the interest s of justice. In the result the following order is made:
The appeal is struck from the roll with costs, such costs to include the costs of the
application for leave to appeal, all of which will include those consequent on the
employment of two counsel.
________________________
L WINDELL
ACTING JUDGE OF APPEAL
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Appearances
For the appellant: D I Berge r SC, with B M Slon
Instructed by: Nicqui Galaktiou Inc, Johannesburg
Claude Reid Attorneys , Bloemfontein
For the respondent: T Ngukaitobi, with M Kasiboto and J Naidoo
Instructed by: Mabuza Attorneys, Johannesburg
Matsepes Inc, Bloemfontein