AUTHORITY
JUDGMENT [ LEAVE TO APPEAL]
SIWENDU J
[1] The applicant (Mr Van Rooyen) seeks leave to appeal against the Judgment
and order dated 21 November 2024 striking his application off from the
Unopposed Motion Court Roll. The applicant considers the judgment and
order a rescission of prior interlocutory orders obtained and a refusal of the
default judgment. The circumstances of the application for leave to appeal
and the striking out order are as follows:
[2] Mr Van Rooyen is the plaintiff an action instituted to recover d amages
against the Minister of Police (first respondent), the Minister of Justice and
Correctional Services (second respondent) and the National Prosecuting
Authority (third respondent) following an alleged unlawful arrest and detention.
[3] The State Attorney defended the action, and assigned the case was to Mr D
Lebenya (Ref: 3914/20/P26/mp) of that office. On 25 February 2021, Mr
Lebenya defended the action on behalf of the respondents and raised
several special pleas which included a failu re to comply with Section 3 of
the Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002 (ILPACOS Act).
[4] Mr Van Rooyen obtained two interlocutory court orders, on 16th
September 2021, (first court order), and on 8 November 2021 (second court
order).
[5] The first court order directed the respondents are to reply to Mr Van
Rooyen’s discovery Notice in terms of Rule 35(1) dated 11 June 2021,
within ten (10) days from the date of service of the order. They failed to
comply. The second court order struck out the respondents' defence to Mr
Van Rooyen’s claim. The respondents were held jointly and severally liable
and ordered to pay the costs of the application on the party and party scale,
the one paying and other to be absolved.
[6] It bears mentioning that although Mr Lebenya had delivered filed a notice
to oppose the application to strike out the respondent’s defence, dated 3
November 2021, the application to strike out the defence appears to have
proceeded unopposed. It was on the stre ngth of the second court order that
Mr Van Rooyen proceeded to seek a default judgment before the
unopposed motion court.
[7] It was common cause that Mr Van Rooyen had not sought condonation for
the failure to comply with Section 3 of the ILPACOS Act. The q uestion of
the failure to comply with ILPACOS Act and seek condonation was
squarely raised with Counsel for Mr Van Rooyen at the hearing of the
application for default judgment.
[8] The court invited Counsel to provide written submission on a range of it
concerns. That invitation is apparent from for paragraph 13 of the Judgment
appealed against. Written submissions were made to the Court on 3 May
2024 in response thereto. The judgment appealed was written based on
those submissions. Counsel stood by those su bmission during the hearing
of the application for leave to appeal.1
1 Although not in respect of an appeal, the power to dispose of a matter without hearing further oral argument is
envisaged in section 19(a) of the Superior Court Act 10 of 2013.
[9] The point of departure is whether the court was (a) bound by the
interlocutory orders made, (b) whether they were erroneously in the face
on the special pleas of non -compliance with Se ction 3 of the ILPACOS Act
and absent condonation under section 3(4). I am of the view that the failure
impairs Mr Van Rooyen's right of audience by the court until condonation
for the failure is granted.
[10] In the written submissions, Counsel for Mr Van R ooyen contended I was
bound by the interlocutory orders, and that it was impermissible for me to
mero motu raise the question of compliance raised in the special plea. He
placed
reliance on decision of the Supreme Court of Appeal in Fischer and another v
Ramahlele and others2( Fischer) in support of the argument.
[11] I hold a different view, first on the ground that the decision in Fischer deals
with a different scenario from the present case, namely that the court may
not decide a matter that is not defined by the parties in the pleadings. In this
case, the matters raised flows from the pleadings before the Court. Counsel
contends that ther e were no pleadings before me since the plea and the
special plea were struck out. This is a circular argument going to the heart
of the court’s concerns about the procedural regularity for granting the
interlocutory orders.
[12] Secondly, the injunction by the Court in Fischer is not unqualified. Thirdly,
the submissions disregard the authorities referred in the judgment, namely,
2 [ 2014] ZASCA 88; 2014 (4) SA 614 (SCA) at [22].
the Premier of the Western Cape Provincial Government No v BL,3 In
Mabaso v National Commissioner of Police and another4 and, impo rtantly,
Rule 42 (1) of the Uniform Rules.
[13] The above authorities make it clear that the provision in ILPACOS Act
adds procedural hurdle to the enforcement of all rights to which it applies.
The provision is for the benefit of the State litigant. It has not been
complied with in its present case.
[14] In so far as the binding nature of an interlocutory orders, most recently in
Allied Steelrode (Pty) Ltd v Dreyer,5 this court was trenchantly criticised for an
“insufficient consideration given by the trial co urt in granting the separation
order” even though the separation order was granted in April 2019 by another
Court, some two years prior to the allocation of the trial to it. As I read the
judgment by the SCA, a court ought to and must inquire into the appropriateness
of an interlocutory order even if it was granted by another court. Of course, the
difference in the present case, is one of procedural regularity and compliance with
legal prescripts.
[15] An unusual feature which cannot be left unsaid i s the persistent failure by
the State Attorney to participate in the proceedings. Although it purported
to oppose the application to strike out its defence, and delivered the
requisite notice of opposition, it appears the State Attorney did not follow
thorough. Mr Van
3 [2012] 1 AH SA 465 (SCA); 2012 (2) SA 1 (SCA).
4 [2019] ZASCA43; 2020 (2) SA 375 (SCA)
5 (unreported, SCA case no 1120/2022 dated 21 December 2023) at paragraph [18]
Rooyen set down the application to strike out before the unopposed motion court.
[16] Counsel for Mr Van Rooyen relied on this failure, and submitted the State
Attorney was aware of the order (s) and has not sought to rescind it or set
it aside. He contended further that the Court’s order extended to the Rule
35 (1) notice, incorrectly so.
[17] The persistent failure to participate in the proceedings by the State Attorney
is puzzling and must be decried. It played itself out at the hearing of the
appeal. The first hearing of the application for leave to appeal was
scheduled for hearing on 30 January 2025. Counsel for Mr Van Rooyen
was at pains to stress that he had notified the State Attorney of the hearing,
and they elected not to participate.
[18] Out of caution, the hearing was rescheduled to 10th and the Registrar tasked
with the duty to notify the State Attorney. Notwithstanding the notification,
the State Attorney failed to attend the hearing, and the application for leave
to appeal proceeded in it s absence. I am of the view that these failures do
not avail Mr Van Rooyen.
[19] Turning to the requirements for leave to appeal, at the hearing, at the
hearing Counsel contended that he had not been given an opportunity to
address on what he termed was “a r escission” of the interlocutory orders.
At first blush, the argument prompted the court to intimate an appeal might
lie and leave be granted to the Full Court on that issue. I was of the view
that there may be a compelling reason why the appeal should be h eard. On
consideration, I have come to a different conclusion and invited Counsel to
make oral submission in this regard.
[20] Despite the wording of the order, Counsel persisted that the court
“rescinded” the interlocutory orders. The trite principle is that an appeal
lies against the order of the court. In this instance, although I find that the
interlocutory orders were erroneously granted and do not bind the court,
the order granted is not “a rescission” of the interlocutory orders as
submitted. It is not definitive on the default judgment sought either. The
application was struck off from the roll. A final word has not be spoken on
the matter and the applicant is not without remedies.
[21] Moreover, Counsel did not specify the provision on which he relies for
leave to appeal. He was invited again to state the provisions on which he
relies to address the above. Section 17 of the Superior Court Act 10 of
2013 states that:
(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.
[22] The Courts have repeatedly affirmed the import of the provision limits the
right to appeal cases whether there would be reasonable prospect of success. The
test is “stringent” and the section “raises the bar” for the criterion for granting
leave to appeal. The grounds for appeal fail and do not meet the test.
[23] Secondly, the issues raised in the application for leave to appeal are settled
in our law and the Supreme Court of Appeal. The application has no reasonable
prospects of success. Lastly, the order st riking out the application for default
judgment from the roll is not appealable. Another Court will not come to a
different conclusion.
In the result, I make the following order:
a. The application for leave to appeal is dismissed with no order as to costs.