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AIRLINE ASSOCIATION OF SOUTH AFRICA SECOND RESPONDENT
BOARD OF AIRLINE REPRESENTATIVES OF
SOUTH AFRICA THIRD RESPONDENT
JUDGMENT
TWALA J (DLAMINI et MFENYAN A JJ concurring)
Introduction
[1] This is an appeal brought by the appellants in terms of section 18(4)(ii) of the
Superior Courts Act1 (“the Act”) against the order of Adams J granted on 28
February 2025 which made the orders 5 and 6 of Adams J ’s judgment of 5
November 2024 immediately operational and executable .
[2] There are two central issues for determination in this appeal which are: First is
whether the orders 5 and 6 of Adams J’s judgment of 5 November 2024 are
interim or final in nature and effect ; and secondly , if they are interim in nature
and effect whether they are subject to an appeal in terms of section 18(4)(ii) . Put
in another way, whether this Court has the requisite jurisdiction to determine this
appeal under the remit of section 18(4)(ii).
[3] I propose to refer to the first appellant as ACSA and the second appellant as
SAC AA and jointly as the appellants. The first respondent shall be referred to as
ACS and since the second and third respondents do not play any part in these
proceedings, I will refer only to ACS when dealing with the respondents.
1 10 of 2013 .
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Factual Background
[4] The genesis of this appeal arises from a decision taken by ACSA on 18 May
2023 which was confirmed by the Minister of Transport on 8 September 2023 to
terminate ACS’s provision of the hold baggage system (“HBS”) service at its
airports and to insource these service s. On 16 November 2023 ACS launched a
review application to review and set aside these decisions of ACSA terminating
the long-standing contract between the parties , including the decision to insource
baggage reconciliation system (“BRS”) or baggage management system
(“BMS”).
[5] On 17 and 20 May 2024 ACS received notice of termination from ACSA
together with a notice t hat ACSA would issue a tender for the provision of these
services for the sum of R3.15 billion. This galvanised ACS to launch the urgent
application to in terdict ACSA from proceeding with the tender pending the final
determination of the review process . Further, ACS sought an order to allow it to
replace four level 3 back -up units with new back -up units at OR Tambo
International Airport and King Shaka International Airport , and that SACAA
approve the replacement of the back -up units.
[6] On 5 November 2024 the court a quo granted an interim interdict against ACSA
preventing it from adjudicating and taking any steps in relation to the tender it
issued in May 2024 for the provision of HBS services , and otherwise
implementing the 2023 insourcing decision; that ACSA should allow ACS to
replace the four back -up units at OR Tambo and King Shaka International
Airports ; and that SACAA should approve the replacement of these back -up
units. All of th ese orders were to be operational pending the finalisation of the
review proceedings.
[7] Dissatisfied with the judgment and order of 5 November 2024, the appellants
launched an application for leave to appeal and a conditional application to
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suspend the operation and executability of the orders pending the appeal process.
On 28 February 2025 the Court a quo granted ACSA and SACAA leave to appeal
but declared that orders 5 and 6 of its judgment of 5 November 2024 were interim
pending the finalisation of the review process and dismissed the conditional
counter application to suspend the operation and executability of orders 5 and 6.
This prompted the a ppellants to bring this urgent appeal in terms of section
18(4)(ii).
Submission s by the Parties
[8] ACS contended that the appellants have failed to meet the requirements for
bringing this appeal under the provi sions of section 18(4) of the Act . There has
been no order as required for such an appeal. The court a quo did not order
otherwise as contemplated in section 18(1) of the Act. The purported appeals by
the appellants in terms of section 18(4) of the Act are incompetent and should be
dismiss ed.
[9] Further, ACS contended that the declaratory order related to section 18 of the
Act as it concerned the status of the first order as either interim or final and
therefore not suspended or suspended in terms of section 18 – hence the court a
quo referred to it as being in terms of section 18 of the Act. To state it otherwise,
it is undeniable that the court a quo did not make executable an order that was
otherwise suspended in terms of s ection 18(1) of the Act which would have
triggered the right of automatic appeal under section 18(4) .
[10] The appellants cont ended that the test to determine whether an interim order is
appealable or not i s whether it is in the interests of justice for the litigant to be
granted leave to appeal. In its determination, the court should consider amongst
others whether there are prospects of success, whether the decision, although
interlocutory, has a final effect and whether irreparable harm would ensue if
leave to appeal is not granted.
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[11] The appellants contended further that orders 5 and 6 are final in nature in that
they prevent the appe llants from executing their statutory function as conferred
by the legislation. The interdict preven ts ACSA from acting in terms of the
Public Finance Management Act2 and section 217 of the Consti tution3. Further,
the mandamus usurps the powers of SACAA of executing it s functions to
regulate safety in aviation.
Legal Framework
[12] It is apposite at this stage to restate the provisions of section 18 of the Superior
Courts Act which provide as follows:
“Suspension of decision pending appeal:
18.(1) Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwis e, 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)
and (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.
(4) If the court orders otherwise as contemplated in subsection (1) –
(i) the court must immediately record its reasons for doing so;
2 Act 1 of 1999 .
3 Constitution of the Republic of South Africa, 108 of 1996 .
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(ii) the aggrieved party has an automatic right of appeal to the next
highest court;
(iii) the court hearing such an appeal must deal with it as a matter
of extreme urgency; and
(iv) such order will be automatically suspended, pending the
outcome of such appeal.”
(5) …
[13] Further more, to put matters in the correct pe rspective, it is convenient to mention
the order of 28 February 2025 as it forms part of the discussion which is the
following:
“(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 application for leave to appeal shall be
costs in the appeal.
(5) The applicants’ applicati on 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 t his 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 counterapplication is dismissed with costs.
(10) ACSA shall pay the applicants’ costs of the conditional counterapplication,
which costs sh all include the costs consequent on the employment of two
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Counsel, one being Senior Counsel, on scale ‘C’ of the tariff applicable in
terms of the Uniform Rules of Court.
Discussion
[14] It is trite that when the jurisdiction of the Court is challenged by one of the
parties, it must be determined first since it forms the basis for the court’s power
to determine the issues between the parties. In determining whether the Court
has the requis ite jurisdiction to adjudicate the matter, the Court must consider
the pleadings as a starting point.
[15] In Competition Commission of South Africa v Standard Bank of South Africa
Limited4, the Constitutional Court stated the following:
“Boqwana JA was correct to find that the rule 53 record may be relevant to jurisdiction,
since the test for assessing the jurisdiction of the Competition Appeal Court in a review
application is connected to the grounds of review . This does not, however, imply tha t
jurisdiction should not be established up front on the basis of what is pleaded in the
founding papers. The court chosen by an applicant in a review application must be
able to assert its jurisdiction on the basis of the founding papers . Where no facts are
alleged in the founding papers upon which jurisdiction could be founded, the applicant
is not entitled to the production of the record in the hope that it will help clothe the
court with the necessary jurisdiction. Standard Bank was required to first establish
jurisdiction in its founding papers before the Competition Appeal Court could direct
the production of a rule 53 record. As mentioned, the question of jurisdiction has not
yet been adjudicated by the Competition Appeal Court. Boqwana JA should not have
directed that the rule 53 record be produced without first deciding whether the
Competition Appeal Court was competent to hear the review application as a court of
first instance. ”
[16] Undoubtedly , section 18(1) of the Act confirms the common law principl e that a
final order is suspended pending an application for leave to appeal or an appeal
of that order, whereas section 18(2) provides that interim orders remain in full
4 [2020] (4)- BCLR 429 (CC) para 119
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force and effect pending an application for leave to appeal or an appeal of that
order. Put differently, section 18(2) provides that interim orders are not
suspended and remain effective, operational and executable . A court may order
differently under both sections if certain requir ements are met, that being firstly,
exceptional circumstances warranting the deviation and, irreparable harm to the
party seeking the deviation together with the absence of irreparable harm to the
other party .
[17] In Ntlemeza v Helen Suzman Foundation an d Another5 the Supreme Court of
Appeal stated the following when it was dealing with section 18 of the Act:
“In order to embark on a determination of whether the preliminary jurisdictional point
raised on behalf of General Ntlemeza, set out in para 17 above, has substance, it is
necessary to consider the provisions of s 18(1) and (2). These sections provide for two
situations. First, a judgment (the principal order) that is final in effect, as contemplated
in s 18(1): In such a case the default position is that the operation and execution of the
principal order is suspended pending ‘the decision of the application for leave to appeal
or appeal’. Second, in terms of s 18(2) , an interlocutory order that does not have the
effect of a final judgment: The def ault position (a diametrically opposite one to that
contemplated in s 18(1) is that the principal order is not suspended pending the decision
of the application for leave to appeal or appeal. This might at first blush appear to be a
somewhat peculiar provi sion as, ordinarily, such a decision is not appealable. However,
this subsection appears to have been inserted to deal with the line of cases in which the
ordinary rule was relaxed referred to in para 20 above6.
Both sections empower a court, assuming the presence of certain jurisdictional
facts, to depart from the default position. It is uncontested that the high court’s
judgment on the merits of General Ntlemeza’s appointment is one final in effect and
therefore s 18(1) applies. This section provides that the operation and execution of a
5 2017 (5) SA 402 (SCA)
6 Id para 25
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decision that is the ‘subject of an application for leave to appeal or appeal’ is suspended
pending the decision of either of those two processes. Section 18(5) defines what the
words ‘s ubject of an application for leave to appeal or appeal’ mean: ‘a decision
becomes the subject of an application for leave to appeal or of an appeal, as soon as an
application for leave to appeal or a notice of appeal is lodged with the registrar in terms
of the rules7.’
[18] It is my respectful view therefore that, for a party to be able to invoke the
provision s of section 18(4) of the Act, it should demonstrate to the court that
there was an order made in terms of section 18(1). Section 18(4) can only be
engaged if the Court made an order in terms of section 18(1) or has ordered
otherwise in terms of section 18(3) .
[19] It is indisputable and has been confirmed by both appellants at the hearing of this
appeal that the appeal is brought as an urgent appeal in terms of section 18(4) of
the Act. As indicated above, the automatic right of appeal on an urgent basis as
provided for under section 18(4)(ii) of the Act is only engage d if the appellants
have demonstrated that an order was made in terms of section 18(1) of the Act.
The appellants have failed to do so as the orders 5 and 6 of the judgment of 5
November 2024 are interim and fall within the r ealm of section 18(2) of the Act.
[20] It is apparent from the record that orders 5 and 6 of the judgment of 5 November
2024 were interim in nature and effect as they were made pending the finalization
of the review proceedings. Further, in the judgment of 28 February 2025 ,
although the Court granted the appellants leave to appeal, orders 5 and 6 were
declared to be interim orders pending the finalization of the review proceedings
and were made operational and executable by operation of the law .
7 Id para 26
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Heard On: 25 April 2025
Date of Judgment: 2 May 2025
For the First Appellant: Advocate T Motau SC
Advocate L Kutumela
Instruc ted by: Mashiane Moodley & Monama Inc.
Tel: 011 303 7900
Email: damaphakela@m4attorneys.co.za
For the Second Appellant: Advocate PL Mokena SC
Advocate TK Manyange SC
Instructed by: Mfinci Bahlman Incorporated
Tel: 012 361 1647
Email: vuyisa@mfincibahlmann.co.za
For the Respondent s: Advocate F Snyckers SC
Advocate N Luthuli
Instructed by: Webber Wentzel
Tel: o11 530 5220
Email: glenn.penfold@ webberwentzel.com
Delivered: This judgment and order was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation to the
Parties/their legal representatives by email and by uploading it to the
electronic file of this matter on Case Lines. The date of the order is
deemed to be the 2 May 2025.