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[2025] ZAGPPHC 913
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Smit v Engelerecht N.O and Others (2023/024992) [2025] ZAGPPHC 913 (2 September 2025)
I
N THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO.: 2023/024992
(1)
REPORTABLE:
(2)
OF INTEREST TO OTHER JUDGES:
(3)
REVISED:
(4)
Signature:
Date:
02/09/25
In
the matter between:
CHRISTIAAN
FREDERICK
SMIT
Applicant
and
JOHAN
FRANCOIS ENGELERECHT
N.O.
First Respondent
GONOSAGREE
GOVENDER N.O.
Second Respondent
LENGAU
GROUP (PTY) LTD (IN PROVISIONAL LIQUIDATION)
Third Respondent
JUDGMENT
Kumalo
J
INTRODUCTION
[1].
The Respondents in this matter seek leave
to appeal the whole of the judgment of this Court handed down on 29
April 2025, which
granted an order interdicting the Respondents from
disposing of the proceeds derived from the agreement concluded
between the Third
Respondent and Masemanzi Mining Holdings (Pty) Ltd
("Masemazi"), pending the finalisation of the Applicant’s
action.
[2].
The order of the read as follows:-
“
1.
The First and Second Respondents are interdicted and prohibited from
disposing and or alienating or in
any other manner from utilising the
proceeds derived from an agreement concluded between the respondents
and Masemanzini Mining
Holdings (Pty) Ltd pending the institution and
finalisation of an action for the payment of the aforesaid proceeds;
2.
The Applicant shall institute the said action within a period of 30
days from the date of
this order, failing which, the first order
shall lapse.”
[3].
It
is clear from the above wording that the orders sought by the
Applicant and granted were interim in nature. The Respondents seek
to
appeal such orders, which are interim in nature. The general rule is
that the grant of an interdict pending the institution
and
finalisation of an action is interlocutory and therefore not
appealable.
[1]
[4].
The order of this court is therefore not
final in effect in that it is granted pending the outcome of the
action to be instituted.
[5].
In
Zweni
v Minister of Law and Order
[2]
,
the
Appellate Division held that, in determining whether an interlocutory
order is appealable, the inquiry is whether the decision
against
which it is sought to appeal constitutes a judgment or order within
the meaning of the provisions of section 20(1) of the
Supreme Court
Act 59 of 1959, failing which it would not be appealable.
[6].
For a judgment to be appealable, it must be
final in effect and not susceptible of alteration by the court of
first instance. It
must not be definitive of the rights of the
parties, and it must have the effect of disposing of a substantial
portion of the relief
claimed in the main action.
[7].
In this case, the order is clearly not
final. Furthermore, it does not definitively establish any of the
parties' rights. Those
rights will be defined in the primary matter
to be brought by the Applicant. The order is mainly to safeguard the
proceeds derived
from the agreement concluded between the Respondents
and Masemanzi.
[8].
Further, the order of this court does not
have the effect of disposing of any substantial portion of the relief
claimed in the main
proceedings. I agree with the Applicant’s
submissions that no finding in the judgment of this court against
which leave to
appeal is sought disposes of any substantial portion
of the relief claimed in the main proceedings.
[9].
The relief claimed in the main proceedings
is directed, amongst others, to the payment of an amount to which the
Applicant lays
claim. It is not this court’s judgment that the
Applicant is entitled to the same. The court would consider that
seized with
that dispute.
[10].
The Respondents sought to rely on National
Treasury and Others v Opposition to Urban Tolling Alliance 2012(6) SA
223 (CC), amongst
others for the proposition of the appealability of
an interim order. The Constitutional Court considered the
appealability of an
interim order. It held that courts are rightly
reluctant to hear appeals against interim orders that have no final
effect. That,
in any event, are susceptible to reconsideration by a
court when the final relief is determined. That, however, is not an
inflexible
rule. In each case, what best serves the interests of
justice dictates whether an appeal against an interim order should be
entertained.
[11].
That aligns well with developments in case
law regarding when an appeal against an interim order may be
permitted. The 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 consider
and weigh all relevant circumstances carefully. Whether an interim
order has a final
effect or disposes of a substantial portion of the
relief sought in a pending review is an appropriate and vital
consideration.
Yet, it is not the only or always decisive
consideration.
[12].
Accordingly, the paramount test for the
appealability of a particular interim interdict is whether it would
be in the interests
of justice for that interim interdict to be
appealed, considering the facts of its specific case.
[13].
This court is not convinced that it
would be in the interest of justice to grant leave to appeal in this
matter. The complaint that
the liquidators are prohibited from using
funds for any administration costs and, as such, cannot continue with
any litigation
is inaccurate. The liquidators can use any other funds
they may have and are only prohibited from using the funds that are
the
subject matter of the agreement between the Third Respondent and
Masemanzi.
[14].
This Court is of the firm view that its
order is interim and not appealable. The interest of justice does not
favour the Respondents
in this regard.
[15].
In the circumstances, the following order
is made:
1.
The Respondents’ application for
leave to appeal is refused; and
2.
The Respondents are ordered to pay the
costs of this application on a party and party scale “C”.
MP Kumalo
Judge of the High
Court
Delivered:
This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
For
the applicant:
Adv
PM van Ryneveld SC
Instructed
by:
Strauss
Attorneys Inc.
For
the first & second respondent:
Adv
SJ van Rensburg SC
Instructed
by:
Walberg
Attorneys Inc.
[1]
See
UDC Bank Limited v Seacat Leasing and Finance Co. (Pty) Ltd and
Another 1979 (4) SA682 (T) at 690C
[2]
1993
(1) SA 523
(A)