IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 130119 /2024
(l) REPORTABLE: no
(2) OF INTEREST TO OTHER JUDGES: no
(3) REVISED:
22 August 2025
_______ ,__ .. ---------·-· ---···---·----..... ____________ _
S NA"'f\ RE DATE
In the matter between:
IDEXIS (PTY) LTD t/a SENTRA PHARMACY First Applicant
DR RUAAN LOUW Second Applicant
and
NOVO NORDISK (PTY) LTD Respondent
In Re:
NOVO NORDISK (PTY) LTD Applicant
and
2
IDEX IS (PTY) LT D t/a SENTRA PHARM A CY First Respondent
DR RUAAN LOUW Second Respondent
THE SOUTH AFRICAN H EAL TH PRODUCTS Third Respondent
REGULATOR Y AUTHORIT Y
THE SOUTH A FRICAN PHAR M AC Y COUNCIL Fourth Respondent
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties I their legal
representatives by email and by uploading it to the electronic file of this matter on
Case Lines. The date for handing down is deemed to be 22nd August 2025.
JUDGMENT: LEAVE TO APPEAL
RETIEF J
INTRODUCTION
[1] The applicant, IDexis Compounding Specialists (Pty) Ltd I/a Sentra
Pharmacy applies for leave to appeal to the Supreme Court of Appeal [SCA],
alternatively to the 'Full Bench' of this Honou rable Court against the whole of the
judgment and order in which the Co urt dismissed its interlocutory application to
compe l discovery, in motion procedures, on the 8 Ap ril 2025 [leave].
[2] Although Counsel for the applicant did not address the fact that leave to
appeal to the Full Bench is not com petent in the circumstances, as leave should be
sought to the Full Court and not the Full Bench, it did not form part of the argument
before the Court and this Court accepts that the same was possibly a typographical
error.
3
[3] At the time of the hearing, it became clear that the applicant's leave was
confined to the applicant's compel relief regarding one outstanding document
sought in terms of rule 35(12) and the punitive cost ordered. The remaining one
document is document 2 as requested in terms of the Applicant's rule 35(12) 35(13),
(14) and (15) discovery notice dated the 28 November 2024 [notice].
[4] For the sake of clarity at the date of the hearing, the applicant's Counsel,
without opposition and with leave, moved for an amended draft order which did not,
in all respects, accord with the applicant notice of motion. In terms of such draft
order, the applicant's sought document 2 specifically under both rule 35( 12) of the
Uniform Rules and in terms the general application of the notice itself. The former
specific request the subject of the leave.
[5] The applicant's call for document 2 in terms of rule 35(12) emanated from
paragraph 15 of the respondent's founding papers in which the respondent referred
to the fact that it had made an application for the registration of Wegovy with the
South African Health Products Regulatory Authority, the third respondent in the main
application. The application process had not been finalised at the time the main
application was launched.
[6] Before dealing with the merits of the leave, the appealability of the order in
such interlocutory proceedings was raised. The outcome of the enquiry will dictate
whether a necessity arises to deal with the merits of the leave.
DISCUSSION
Is the order of the 8 April 2025 appealable?
[7] The respondent argues that the applicant seeks leave to appeal the dismissal
of an interlocutory application to compel discovery and accordingly, the order that
was granted is not final in effect and therefore not appealable. For this proposition
the respondent relies on the pre constitutional matter of South Cape Corporation
{Pty) Ltd v Engineering Management Services (Pty) Ltd matter1 in which the Court
1977 (3) SA 534 (A) at 549F.
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reiterated "a fairly settled rule for testing appealability' and stated whether an order
is interlocutory or not in wide and general terms "interlocutory" refers to "all orders
pronounced by the Court, upon matters incidental to the main dispute, preparatory
to, or during the progress of, the litigation. But orders of this kind are divided into
two classes; (i) those which have a final and definitive effect on the main action, and
(ii) those, known as "simple (or purely) interlocutory orders" or "interlocutory orders
proper," which do not.2
[8] Then, the respondents with reference again to another pre constitutional
matter of Zweni v Minister of Law and Order of the Republic of South Africa, 3 {Zweni
matter] relied on the common-law core principle to the appealability of court orders.
The core principle in the Zwen i matter being that an order must be final in effect and
not be susceptible of alteration by the Court of first instance, it must be definitive of
the rights of the parties, and it must have the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings.
[9] The applicant on the other hand correctly referred this Court to the
overarching principle that interlocutory orders may be appealable considering the
facts. In that, certain factors may arise in a particular case, which vary from case to
case which may be decisive when weighing up whether it may be in the interest of
justice, that notwithstanding the Zweni traditional core principle, that the appeal
should be heard. In short, the core principle is merely one consideration to be
applied and that other factors for consideration will emanate from the facts of each
matter.
[1 O] Flowing from that, the Constitutional Court [CC] in the United Democratic 4
Movement matter explained that whether or not the order is lacking in one or more
of the factors set out in Zweni matter if, it is in the interest of justice, then the order.
3
3
Ibid 1. See generally Bell v Be/11908 T.S. 887 at pp.890-1; Steytler N. 0. v Fitzgerald, supra
at pp.303, 311, 325-6, 342; Globe and Phoenix Gold Mining Company Limited v
Rhodesian Corporation Limited 1932AD 146 at pp.153, 157-158, 162-3; Pretoria Garrison
Institute v Danish Variety Products, supra at pp.850, 867.
1992 ZASCA 197, 1993 (1) All SA 365 (A). Also see Ewels v Francis and Others (Leave to
Appeal) 2025 JDR 1195 (WCC).
United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and
Others f2022J ZACC 34; 2023 (1) SA 353 (CC), 2022 (12) BCLR 1521 (CC).
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as in this case the interlocutory order is appealable and the appeal to be heard.
Applying the reasoning of the CC to the enquiry, notwithstanding the possible nature
of the order in terms of the Zweni matter, this Court considers a number of case
specific factors to determine whether it is in the interest of justice that the order is
appealable and the appeal to be heard. These factors are:
10.1. In respect of document 2, the respondent In terms of rule 35(12)(a)(iii)
procedurally objected to the production of the document and set out
its grounds. Rule 35(12) however, does not set out a means for the
determination of such grounds of objection because it has its own built
in sanction being rule 35{12)(b). The sanction, a litigant's inability to
use the document w ithout leave of the Court. Absent invoking
subparagraph (b ), a basis to rather compel the discovery after an
objection has been raised is required. A proposition argued by the
respondent as a preliminary objection to the applicant's compel relief.
In short, without a basis to compel by means of a rule 30A notice no
basis existed for the applicant to simply launch the compel relief as it
did on the strength of a letter request. The respondent's argued that
the applicant's compel relief sought in terms of rule 35(12) was
baseless and constituted an abuse of process. This procedural
argument and objection the respondent's relied on in lieu of its rule 30
application. The applicant's compel relief in respect of the rule 35(12)
as reasoned was not substantiated in terms of the rules and as such
the procedural right to compel amiss therefore not attracting the
respondent's obligation in terms of 35(12), absent rule 30A notice.
10.2. In the applicant's unamended notice of motion, prior to the preliminary
objection raised by the respondent in answer, the applicant sought
condonation specifically for the delivery of the rule 35( 14) part of the
discovery notice. However, at the hearing and as a result of the
discovery notice. However, at the hearing and as a result of the
preliminary point taken as discussed above, the applicant's
condonation prayer, without supplementing its evidence, simply
morphed into the following first prayer: "1. Condonation, insofar as it is
necessary, for the non-compliance with the Uniform Rules of Court;".
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In this way the applicant intended to widen the reach of condonation
without being specific and, as reasoned, without dealing with
condonation for the procedural non-step to lay a basis for the 35(12)
compel relief. Howe ver in the applicant's leave, it now states that, in
so far as condonation in respect of this procedural non-step, both
parties knew precisely what the amended condonation prayer 1 was
in the amended draft order and, if interpreted in context, it was the
alleged non-compliance of rule 30A. In the reasoned judgment, this
Court dealt with the necessity for condonation absent the rule 30A
notice to trigger the compel relief and, considered the respondent's
objection, it considered the applicant's amended prayer 1 for
condonation and pointed out that no facts upon which condonation in
respect of this point was dealt with and therefore none granted. The
inevitable is that on the applicant's own papers no basis for the compel
relief in terms of rule 35(12) was triggered.
10.3. Due to the wording of rule 35(12), the order in respect of the rule
35(12) may not be a final pronouncement in the collection of the
applicant's evidence. This proposition too, is bolstered by the Court's
finding that no compe l relief was correctly before it in terms of rule
35(12). The applicant relies on the wording of 'at any time during the
proceedings before the hearing' as provided for in rule 35(12) This
reliance must be seen against the procedural fact that the applicant on
its own version stated that the answering affidavit it filed was only
preliminary and therefore, it intends to file a final answer
notwithstanding the fact that the respondent has filed its replying
affidavit. The application of rule 35(12) on its own version, may very
well still be alive.
10.4. Even if the Court is incorrect that the compel relief was correctly before
it and that, it procedurally cannot invoke rule 35(12), both parties have
taken their own procedural steps after the order was granted. The
taken their own procedural steps after the order was granted. The
evidence of such steps, with leave, was placed before the Court at the
date of the hearing of this application. Of consideration is the fact that,
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the respondent provided the applicant with a copy of registration
certificate issued by the third respondent. This, the outcome of the
application referred to in paragraph 15 of the applicant's founding
papers and the origin of the document 2 compel relief. The respondent
also, under oath stated that all relevant documents in its possession
regarding the registration of Wegovy have been provided. The
practicality of granting an appeal regarding document 2, thereby
staying the adjudication of the main relief when the main issue does
not turn on the appeal process of Wegovy before the third respondent,
appears impractical and without effect.
10.5. Other than the compel relief pertaining to document 2, the applicant
requests leave to appeal the costs order. The cost order has final effect
but will not be in the interest of justice to delay the determination of the
main application purely to appeal costs as envisaged in terms of the
Superior Court's Act 1 O of 2013 [the Act] unless exceptional
circumstances are present. This Court has reconsidered its reasoned
judgment and the facts it relied on in the exercise of its discretion and
is of the opinion that the applicant has not met the threshold of section
17 of the Act on the issue of costs and no exceptional circumstances
are apparent.
[11] Having considered all the factors the appealability of the interlocutory order
is not in the interest of justice and the Court is of the opinion that the applicant has
failed to meet the threshold of section 17 relating to leave to appeal the cost order.
[ 12] There is no reason why costs should not follow the result. Both parties in this
application for leave seek punitive costs, none warranted. The Court too is fully
appraised of the respondent's conditional offer to the applicant regarding its claim
for costs awarded as a result of in the compel order.
f 13] In the premises, the following order';
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1. The application for leave to appeal is dismissed with costs, including the
costs of two Counsel if so employed, the one being Senior Counsel and such
costs to be taxed on scale C and Junior Counsel on scale B ••
Appea rances :
For the First & Second Applicant:
Instructed by attorneys:
For the Respondent
Instructed by attorneys:
Date of hearing:
Date of judgment:
Judge of the High Court
Gauteng Division
S. G. Maritz SC
Adv S Maritz
Pierre Marais Attorneys
Tel: (012) 940 5386
Email: monica@pmarais.co.za
Ref: PM.msc.1062
Adrian Botha SC
Adv. A Mciver
Adams -& Adams Attorneys
Tel: (012) 432 6001
Email: danie.dohmen@adams.africa
Ref: NovoNordisk-PL2356ZA00
25 July 2025
22 August 2025