REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023-119918
DATE : 28 February 2025
In the matter between:
AVIATION CO -ORDINATION SERVICES (PTY) LIMITED First A pplicant
AIRLINES ASSOCIATION OF SOUTHERN AFRICA NPC Second Applicant
BOARD OF AIRLINE REPRESENTATIVES OF SA NPC Third A pplicant
and
AIRPORTS COMPANY SOUTH AFRICA SOC LIMITED First R espondent
THE MINISTER OF TRANSPORT Second Respondent
THE MINISTER OF FINANCE Third Respondent
SOUTH AFRICAN CIVIL AVIATION AUTHORITY Fourth Respondent
AIR BOTSWANA (PTY) LIMITED Fifth Respondent
AIR PEACE Sixth Respondent
AIR ZIMBABWE (PRIVATE) LIMITED Seventh Respondent
BRITISH AIRWAYS PLC Eighth Respondent
CONGO AIRWAYS SA Ninth Respondent
COMAIR LIMITED t/a BRITISH AIRWAYS AND KULULA Tenth Respondent
ETIHAD AIRWAYS Eleventh Respondent
FLYSAFAIR Twelfth Respondent
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GLOBAL AVIATION OPERATIONS (PTY) LIMITED t/a
GLOBAL AIRWAYS and LIFT Thirteenth Respondent
LUFTHANSA AIRPLUS SERVICEKARTEN GMBH t/a
LUFTHANSA Fourteenth Respondent
PRECISION AIR SERVICES LIMITED t/a
PROFLIGHT ZAMBIA Fifteenth Respondent
SWISS INTERNATIONAL AIR LINES AG t/a SWISS Sixteenth Respondent
TAAG ANGOLA AIRLINES E.P t/a TAAG Seventeenth Respondent
AIR CHINA LIMITED Eighteenth Respondent
AIR MAURITIUS LIMITED Nineteenth Respondent
MALAWIAN AIRLINES (PTY) LIMITED Twentieth Respondent
WESTAIR AVIATION LIMITED Twenty First Respondent
AIR ALGERIE (PTY) LIMITED Twenty Second Respondent
ROYAL ESWATINI NATIONAL AIRWAYS Twenty Third Respondent
UGANDA AIRLINES Twenty Fourth Respondent
ZAMBIA AIRWAYS LIMITED Twenty Fifth Respondent
Neutral Citation : Aviation Co -Ordination Services and Others v Airports
Company South Africa and Other s (2023 -119918 ) [2024]
ZAGPJHC --- (28 February 2025)
Coram: Adams J
Heard : 25 February 2025 – ‘virtually’ as a videoconference on Microsoft
Teams
Delivered: 28 February 2025 – This judgment was handed down
electronically by circulation to the par ties' representatives by
email , by being uploaded to CaseLines and by release to SAFLII.
The date and time for hand -down is deemed to be 11:30 on
28 February 2025.
Summary: Application for leave to appeal – s 17(1)(a)(i) and (ii) of the
Superior Courts Act 10 of 2013 – an applicant required to show that the appeal
would have a reasonable prospect of success (s 17(1)(a)(i)) – or there is some
other compelling reason why the appeal should be heard (s 17(1)(a)(ii)) –
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applicants for leave to appeal comply with both these requirements – leave to
appeal granted to both applicants –
Appealability of impugned order – depends on the whether granting leave to
appeal would best serve the interests of justice – other factors to be considered
– 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
– it is, however, not the only or always decisive consideration – judgment held
to be appealable –
Section 18(2) of the Superior Courts Act – the operation and execution of a
decision that is an interlocutory order not having the effect of a final judgment
are suspended pending an appeal – declaratory order granted in terms of
s 18(2) .
4
ORDER
(1) The first respondent is granted leave to appeal to the Full Court of this
Division.
(2) The costs of the first respondent’s application for leave to appeal shall be
costs in the appeal.
(3) The fourth respondent is granted leave to appeal against paragraph (6) of
the Order of this Court dated 5 November 2024.
(4) The costs of the fourth respondent’s ap plication for leave to appeal shall
be costs in the appeal.
(5) The applicants’ application for declaratory relief in terms of section 18 of
the Superior Court Act 10 of 2013 succeeds with costs.
(6) It is declared that the orders in paragraphs (5) and (6) (‘the mandamus ’) of
the order of this Court dated 5 November 2024 are operative and are not
suspended by the first respondent’s (ACSA ’s) and the second
respondent’s (the SACAA ’s) applications for leave to appeal or appeals.
(7) ACSA and SACAA be and are hereby ordered and directed to comply with
the mandamus within ten days from date of this order .
(8) ACSA and SACAA shall pay the applicants’ costs of the section 18
application, jointly and severally, the one paying the other to be absolved,
which costs shall include the costs consequent on the employment of two
Counsel, one being Senior Counsel, on the scale ‘C’ of the tariff applicable
in terms of the Uniform Rules of Court.
(9) ACSA’s conditional counter -application is dismissed with costs.
(10) ACSA shall pay the applicants’ costs of the conditional counter -
application, which costs shall include the costs consequent on the
employment of two Counsel, one being Senior Counsel, on scale ‘C’ of the
tariff applicable in terms of the Uniform Rules of Court.
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JUDGMENT
[APPLICATION FOR LEAVE TO APPEAL and
SECTION 18(3) APPLICATION ]
Adams J:
[1]. I shall refer to the parties as referred to in the original Urgent A pplication
by the first to third applicants (‘applicants’) for interim interdictory and
mandatory relief against the first to fourth respondents , pending the
determination of final relief sought in a judicial review application instituted by
the applicants . On 5 November 2024, I granted in the main the applicants’
Urgent Application for interim relief , with costs, and inter alia interdicted the first
respondent, Airports Company of South Af rica (‘ACSA’), from taking any further
steps to adjudicate a tender and award a contract/s for the purchase of hold
baggage screening (‘HBS’), baggage reconciliation system (‘BRS’ ) or baggage
management system (‘BMS’) equipment and/or services . ACSA and the fourth
respondent, the South African Civil Aviation Authority (‘SACAA’) were also
ordered to allow the first applicant, Aviation Co -ordination Services (Pty) Limited
(‘ACS’), to replace four Level 3 back -up HBS units with new back -up units (‘the
back -up units’) at OR Tambo International Airport and King Shaka International
Airport.
[2]. ACSA applies for l eave to appeal against the whole of the judgment and
the aforesaid o rder (including the costs order) , as well as the reasons therefor,
which I handed down on 5 November 2024 . SACAA also applies for leave to
appeal against that portion of the said judgment and order in terms of which it
(SACAA) was directed to approve the replacement by the first applicant,
Aviation Co -ordination Services (Pty) Ltd ( ‘ACS’), of the back -up units with new
back -up units at OR Tambo International Airport and Ki ng Shaka International
Airport .
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[3]. Both these applications for leave to appeal are based on the provisions
of both sub -sections (i) and (ii) of section 17(1)(a) of the Superior Courts Act 10
of 2013, which reads 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) … … …’.
[4]. The applicants, on the other hand, appl y for an order d eclaring that the
orders in paragraphs (5) and (6) (‘the mandamus ’) of my order are operative
and were not suspended by ACSA ’s and SACAA ’s applications for leave to
appeal, alternatively , the applicants ask for an order that those orders are to
operate pending any application for leave to appeal as well as any appeal .
Paragraphs (5) and (6) of the Order read as follows: -
‘(5) ACSA be and is hereby directed to allow the first applicant, Aviation Co -
ordination Services (Pty) Limited (‘ACS’), to replace four Level 3 back -up HBS
units with new back -up units (‘the back -up units’) at OR Tambo International
Airport and King Shaka International Airport.
(6) The fourth respondent, the South African Civil Aviation Authority (‘the SACAA’),
be and is hereby directed to approve the replacement of the back -up units within
five days of this order for the replacement of those units within ten days of this
order.’
[5]. ACSA has preferred a ‘conditional counter -application’ against the
applicants in the event of the Court granting the applicants the declaratory relief
sought by them in the aforementioned application. In its conditional counter -
application, ACSA applies for an order that the implementation and the
operation of orders (5) and (6) be suspended pending an appeal on the basis
that there exist exceptional circumstances that warrant the issuing of such an
Order suspending the execution and operation of the said o rders. The
exceptional circumstances , so ACSA avers, arise from the fact that if the court
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orders are executed, ACSA will be prevented from exercising its statutory
powers, arising from the Chicago Convention, the ACSA Act and PFMA .
[6]. It is convenient to deal with a ll of the foregoing applications in one
judgment in view of the fact that the issues implicated in all of these applications
overlap to a great extent.
[7]. I proceed to deal first with the applications for leave to appeal, both of
which are based on an assertion by ACSA and SACAA that the application
raises issues of considerable importance which are of public interest and
implicate the manner in which ACSA performs its statutory duties. The appeal
accordingly raises , so ACSA and SACAA contend, important issues of public
interest, thus giving rise to a compelling reason why the appeal should be
heard. Additionally, these parties contend that t he appeal has reasonable
prospects of success, having regard inter alia to the fact that the prima facie
right relied upon by ACS depends to a great extent on the interpretation of the
relevant legislative and regulatory provisions. Another court, so the argument on
behalf of ACSA and SACAA continues, may interpret the said provisions
differently, which translates into reasonable prospects of success on appeal.
[8]. The applicants oppose the applications for leave to appeal inter alia on
the basis that my order of 5 November 2024 is not appealable as being interim
and interlocutory in nature.
[9]. In City of Tshwane Metropolitan Municipality v Afriforum and Another1
(‘Afriforum’) , the Constitutional Court held that a ppealability 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.
The over -arching role of the interests of justice considerations , so the
Constitutional Court held, has relativised the final effect of the order or the
disposition of the substantial portion of what is pending before the review court,
1 City of Tshwane Metropolitan Municipality v Afriforum and Another 2016 (6) SA 297 (CC) para 40 .
8
in determining appealability. The court accordingly concluded that w hether 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.
[10]. On the basis of this authority, I conclude that my judgment of 5
November 2024 is indeed appealable. The important point is that the court
should be alive to and carefully consider whether the temporary restraining
order would unduly trespass upon the sole terrain of other branches of
Government even before the final determination of the review grounds. A court
must be astute not to stop dead the exercise of executive or legislative power
before the exercise has been successfully and finally impugned on rev iew.
[11]. As contended on behalf of ACSA and SACAA, a finding that my
judgment in this matter is appealab le and grant ing leave to appeal would best
serve the interests of justice . That means that my judgment is indeed
appealable.
[12]. The next question to be considered by me is whether or not ACSA and
SACAA satisfy t he test on application s for leave to appeal , which is now
governed by s17 of the Sup erior Courts Act 10 of 2013 , cite in the relevant parts
supra .
[13]. The test of reasonable prospects of success postulates a dispassionate
decision based on the facts and the law that a court of appeal could reasonably
arrive at a conclusion different to that of the trial court. Even if the court is
unpersuaded that there are prospects of success, it must still enquire into
whether there is a compelling reason to entertain the appeal. Compelling
reason would of course include an important question of law or a discreet issue
of public importance that will have an effect on f uture disputes.
9
[14]. In their applications for leave to appeal ACSA and the SACAA contend
that I erred in my finding that ACS has the right and obligation to provide HBS at
ACSA airports and that I erroneously relied on Civil Aviation Technical
Standards ( ‘CATS ’), to the exclusion of the empowering Act , that being the CAA
Act, Civil Aviation Regulations ( ‘CARS ’), the Chicago Convention and the ACSA
Act.
[15]. There are a number of further grounds on the basis of which, according
to ACSA and the SACAA, leave to appeal should be granted.
[16]. Nothing new has been raised by the applicants in this application for
leave to appeal. In my original written judgment, I have dealt with most, if not all
of the issues raised by ACSA and the SACAA in their application s for leave to
appeal and it is not necessary for me to repeat those in full. Suffice to restate
what I say in the judgment, namely that, in my view, the Airlines (and therefore
ACS) are responsible for HBS . Whether I am correct in this finding is not an
issue which needs to be decided definitively at this stage . I am however of the
view that the applicants have demonstrated their prima facie right, for purposes
of this application for interim relief. The point is that, in my view, it can safely be
said that prima facie it is the airlines that are responsible for HBS services – not
ACSA. The airlines have delegated this responsibility to ACS.
[17]. The traditional test in deciding whether leave to appeal should be
granted was whether there is a reasonable prospect that another court may
come to a different conclusion to that reached by me in my judgment. This
approach has now been codified in s 17(1)(a)(i) of the Superior Courts Act 10 of
2013, which came into operation on the 23rd of August 2013, and which
provides 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’.
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[18]. In Ramakatsa and Others v African National Congress and Another2, the
SCA held that the test of reasonable prospects of success postulates a
dispassionate decision, based on the facts and the law that a court of appeal
‘could’ reasonably arrive at a conclusion different to that of the trial court. These
prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. An applicant who applies for leave to appeal must show
that there is a sound and rational basis for the conclusion that there are
prospects of success.
[19]. The ratio in Ramakatsa simply followed S v Smith 2012 (1) SACR 567
(SCA), [2011] ZASCA 15, in which Plasket AJA (Cloete JA and Maya JA
concurring), held as follows at para 7:
‘What the test of reasonable prospects of success postulates is a dispassionate decision, based
on the facts and the law that the Court of Appeal could reasonably arrive at a conclusion
different to that of the trial court. In order to succeed, therefore, the appellant must convince this
Court on proper grounds that he has prospects of success on appeal and that those prospects
are not remote, but have a realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success. That the case is arguable on appeal or that the
case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis
for the conclusion that there are prospects of success on appeal.’
[20]. In Mont Chevaux Trust v Tina Goosen3, the Land Claims Court held (in
an obiter dictum ) that the wording of this subsection raised the bar of the test
that now has to be applied to the merits of the proposed appeal before leave
should be granted. I agree with that view, which has also now been endorsed
by the SCA in an unreported judgment in Notshokovu v S4. In that matter the
SCA remarked that an appellant now faces a higher and a more stringent
threshold, in terms of the Superior Court Act 10 of 2013 compared to that under
the provisions of the repealed Supreme Court Act 59 of 1959. The applicable
legal principle as enunciated in Mont Chevaux has also now been endorsed by
2 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31
March 2021);
3 Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported).
4 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
11
the Full Court of the Gauteng Division of the High Court in Pretoria in Acting
National Director of Public Prosecutions and Others v Democratic Alliance In
Re: Democratic Alliance v Acting National Director of Public Prosecutions and
Others5.
[21]. I am persuaded that the issues raised by ACSA and the SACAA in their
application s for leave to appeal are issues in respect of which another court is
likely to reach conclusions different to those reached by me. I am therefore of
the view that there are reasonable prospects of another court making factual
findings and coming to legal conclusions at variance with my factual findings
and legal conclusions. The appeal s, therefore, in my view, have reasonable
prospect s of success.
[22]. Moreover, as contended on behalf of ACSA and the SACAA, there are
indeed compelling reasons why the appeal should be heard . It is so that my
judgment of 5 November 2024 addresses matter s of great public importance
and has far -reaching consequences. The case relates to the manner in which
ACSA exercises its statutory and Constitutional powers and functions. Those
functions concern aviation safety and South Africa’s international obligations in
terms of the Chicago Convention.
[23]. ACSA and the SACAA have therefore satisfied the requirements of
s17(1)(a)(i) and (ii) of the Superior Courts Act and leave to appeal should
therefore be granted. In that regard, I have been urged to grant leave to appeal
to the Supreme Court of Appeal due to the importance of the issue to all the
litigants. I disagree. Leave to the Supreme Court of Appeal is not warranted in
view of the fact that the application was only for interim relief.
5 Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC
489 (24 June 2016).
12
The Applicants’ Section 18 Application for Declaratory Orders
[24]. The applicants seek urgent relief for execution of paragraphs (5) and (6)
of the court order of 5 November 202 4 and a declaratory order that the
implementation and the operation of the said order are not suspended pending
applications for leave to appeal and appeals.
[25]. ACSA and the SACAA oppose the said application inter alia on the basis
that same lacks urgency. There is no merit in this ground of opposition for the
simple reason that in the original application the Court found that the applicants
are entitled to the relief sought by them on an urgent basis. It follows that the
execution of the order granted pursuant to such an application would
axiomatically be urgent. I therefore find that the applicants’ application is indeed
urgent.
[26]. ACSA and the SACAA furthermore contend that the applicants seek the
foregoing relief in circumstances where there are no exceptional circumstances
that warrant such far reaching relief. In addition thereto, so the contention goes,
the applicants have failed to indicate any harm, let alone irreparable harm that it
stands to suffer if the impugned court order is not put into operation. The
absence of such harm is indicated , so the argument continues, by the common
cause fact that the Original Equipment Manufa cturer (‘ OEM ”) that is responsible
for the service and maintenance of the equipment which ACS seek s to replace
– an entity by the name of ‘ Smiths ’, has agreed to extend its service contract
until May 2025, in line with its standing commitment to support airport
operations during the interim period until the upgrade and replacement of the
HBS equipment, and to continue to provide the necessary support and
maintenance of the equipment.
[27]. The applicants’ application is based on s 18(2) of the Superior Courts
Act, which provides that ‘… 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
13
of an application for leave to appeal or of an appeal, is not suspended pending
the decision of the application or appeal ’ (emphasis added) .
[28]. ACSA and the SACAA contends that the orders (5) and (6) are not mere
interlocutory orders but are final in effect, as they inter alia prevent ACSA from
performing its statutory powers , duties and functions in terms of inter alia s 51 of
the PFMA and ss 4 and 5 of the ACSA Act, to decide on how HBS services
must be rendered and how any service and facility at the airport is to be
performed. Once ACS is allowed to replace the back -up units in contravention
of s 51 of the PFMA and s 217 of the Constitution, so the contention goes, this
will constitute unlawful conduct that becomes irreversible.
[29]. It is therefore contended on behalf of ACSA and the SACAA that t he
declarator sought by the applicants stands to be dismissed, as the orders
issued by me on 5 November 2024 are clearly orders as contemplated in
s 18(1) and not s18(2) of the Superior Courts Act.
[30]. I disagree with these contentions by ACSA and the SACAA and I do so
for the simple reason that, as contended by the applicants, t he purpose for
granting the mandamus enunciated in the Court’ s judgment would be entirely
undermined if the contentions of the SACAA and ACSA were upheld – namely
that applications for leave to appeal had the effect of suspending the
mandamus. Moreover, the mandamus is interim and had the effect simply of
maintaining the status quo ante – it is not final in nature and/or effect.
[31]. ACSA and the SACAA contends that the impugned orders (5) and (6) are
final in effect because the interdict against the tender prevents ACSA from
exercising its statutory powers . Specifically, the mandamus prevents ACSA
from exercising its statutory powers in terms of s 51 of the PFMA and sections 4
and 5 of the ACSA Act. This contention is without merit. W hether an order
interferes in the exercise of statutory powers has nothing to do with how final or
interim it is. Moreover , the merits of ACSA’s case – that the decision of the
Court was wrong – cannot turn the order from an interim order into a final one.
14
[32]. I conclude, f or all these reasons, that a proper case for the declarator is
made out by the applicants.
[33]. As regards ACSA ’s conditional counter -application, I am of the view that
same falls to be dismissed. N o case is made out by ACSA or the relief sought in
the counter -application .
[34]. As submitted on behalf of the applicants, ACSA does not get out of the
starting blocks with its s 18(3) counterapplication . The irreparable harm alleged
by SACSA, namely the separation of powers harm , is not the irreparable harm
contemplated in section 18(3) of the Superior Courts Act. More fundamentally,
ACSA does not address a requirement of its relief – that being that ACS will not
suffer irreparable harm. It fails to address this, and it is impossible, in light of the
Court’s findings in this regard, r eferred to above, for ACSA to make out this
element. It fails to address harm to the public interest. In particular, ACSA fails
to grapple with the public interest harm (the possible unlawful expenditure)
found by the Court in paragraph 40 of the judgment and the further harm to the
public interest and ACS found by the Court in paragraph 41 of the judgment.
[35]. It bears emphasising that there cannot possibly be any harm – whether
that be to ACSA, to the South African public in general or to the aviation
industry in South Africa, if the orders (5) and (6) are enforced before the hearing
of the review application. In that regard, there will be no costs to ACSA or the
public purse as the expenses relating to the installation of the back -up units will
be for the account of ACS. For this reason alone, the counter -application falls to
be dismissed.
Order
[36]. In the circumstances, the following order is made:
(1) The first respondent is granted leave to appeal to the Full Court of this
Division.
15
(2) The costs of the first respondent’s application for leave to appeal shall be
costs in the appeal.
(3) The fourth respondent is granted leave to appeal against paragraph (6) of
the Order of this Court dated 5 November 2024.
(4) The costs of the fourth respondent’s application for leave to appeal shall
be costs in the appeal.
(5) The applicants’ application for declaratory relief in terms of section 18 of
the Superior Court Act 10 of 2013 succeeds with costs.
(6) It is declared that the orders in paragraphs (5) and (6) (‘the mandamus ’) of
the order of this Court dated 5 November 2024 are operative and are not
suspended by the first respondent’s (ACSA ’s) and the second
respondent’s (the SACAA ’s) applications for leave to appeal or appeals.
(7) ACSA and SACAA be and are hereby ordered and directed to comply with
the mandamus within ten days from date of this order .
(8) ACSA and SACAA shall pay the applicants’ costs of the section 18
application, jointly and severally, the one paying the other to be absolved,
which costs shall include the costs consequent on the employment of two
Counsel, one being Senior Counsel, on the scale ‘C’ of the tariff applicable
in terms of the Uniform Rules of Court.
(9) ACSA’s conditional counter -application is dismissed with costs.
(10) ACSA shall pay the applicants’ costs of the conditional counter -
application, which costs shall include the costs consequent on the
employment of two Counsel, one being Senior Counsel, on scale ‘C’ of the
tariff applicable in terms of the Uniform Rules of Court.
______________________ _____
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
16
HEARD ON: 25 February 2025
JUDGMENT DATE: 28 February 2025 – Judgment handed
down electronically
FOR THE FIRST TO
THIRD APPLICANT S: F Snyckers SC, with N Luthuli
INSTRUCTED BY: Webber Wentzel, Sandton
FOR THE FIRST RESPONDENT : T Motau SC, with L Kutumela and
N B Kekana
INSTRUCTED BY: Mashiane , Moodley & Monama Inc ,
Sandown, Sandton
FOR THE SECOND RESPONDENT : K Kgoroeadira
INSTRUCTED BY: The State Attorney, Johannesburg
FOR THE THIRD RESPONDENT : No appearance
INSTRUCTED BY: No appearance
FOR THE FOURTH RESPONDENT: P L Mokoena SC and
T K Manyage SC
INSTRUCTED BY: Mfinci Bahlman Incorporated,
Lynnwood, Pretoria
FOR THE FIFTH TO THE TWENTY
FIFTH RESPONDENT S: No appearance
INSTRUCTED BY: No appearance