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[2025] ZANCHC 113
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Sishen Iron Ore Company (Pty) Ltd v Isago Ka Lefika (Pty) Ltd (Leave to Appeal) (1416/2025) [2025] ZANCHC 113 (14 November 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case no: 1416/2025
Reportable: YES /
NO
Circulate to Judges: YES
/
NO
Circulate to Regional
Magistrates: YES /
NO
Circulate to
Magistrates: YES /
NO
In the matter between:
SISHEN
IRON ORE COMPANY (PTY)
LTD
Applicant
and
ISAGO
KA LEFIKA (PTY)
LTD
Respondent
In
re
:
ISAGO
KA LEFIKA (PTY)
LTD
Applicant
and
SISHEN
IRON
ORE COMPANY (PTY)
LTD
First
Respondent
GARETH
CHAPMAN
Second Respondent
NATIE
POTGIETER
Third Respondent
Coram:
MAMOSEBO J
Heard:
25 August 2025.
Delivered:
14 November 2025.
Summary:
Application for leave to appeal –
Reliance on s 17(1)(
a
)(i)
and (ii) of the
Superior Courts Act 10 of 2013
– Reasonable
prospects of success, compelling reasons, and interests of justice –
None established – Reliance
on new grounds impermissible –
Doctrine of finality re-emphasised.
ORDER
1.
The application for leave to appeal is
dismissed with costs.
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
Mamosebo J
[1]
On 18 July 2025, in a judgment under the
above case number, I granted a rule
nisi
with a return date of 8 August 2025 directing the applicant, Sishen
Iron Ore Company (Pty) Ltd (“Sishen”), and two
of its
employees who are not parties in this application, to show cause why
paragraphs 2.1 to 2.3 of the order in that judgment
should not be
made final.
[2]
On 24 July 2025, while awaiting the return
date of the rule
nisi
referred to above, Sishen brought an application for leave to appeal
to the Supreme Court of Appeal (“SCA”), alternatively,
the Full Court of the Northern Cape Division, against paragraph 2.3
(and its subparagraphs) of the order and judgment handed down
on 18
July 2025. At the time of hearing this application (for leave to
appeal), the return date of the rule
nisi
issued on 18 July 2025 was extended
pending the determination of this application.
[3]
Sishen
contends that not only would the appeal have a reasonable prospect of
success, but that there is also a compelling reason
for the appeal to
be heard, including the conflicting judgments, namely, the impugned
judgment
in
casu
and
Hlwella
MK JV Joint Venture (Pty) Limited v Sishen Iron Ore Company
Limited
[1]
(“
Hlwella”
).
The confliction is said to be on the interpretation of a contract
.
[4]
Paragraph 2.3 of the order stipulates in
relevant part that:
‘
2.3
… pending the outcome and final
determination of the mediation, arbitration and appeal,
if
applicable, on the question of the first respondent’s
entitlement to terminate the agreement and validity of the
termination
(and the issues and disputes related thereto), in
accordance with the provisions of clauses 5.1, 5.2, 5.3, and 5.4 of
Part D
of the agreement:
2.3.1
the respondents be interdicted and restrained from taking any steps
of whatsoever nature to procure the
services of another service
provider or entity to replace the applicant and perform plant
maintenance and related services at the
Jig Plant Beneficiation and
Modular at the first respondent’s Sishen Mine, or any services
similar to that provided by the
applicant in terms of the agreement.
2.3.2
the respondents be interdicted and restrained from ejecting the
applicant, its directors, or any of its
employees from their site at
the first respondent’s Sishen Mine; and
2.3.3
the respondents be interdicted and restrained from in any way
blocking or disallowing the applicant, its
directors, or employees,
access to the first respondent’s Sishen Mine.
3.
The order in paragraph 2.3 and its subparagraphs above is to operate
as an interim
interdict with immediate effect.’
[5]
Despite the fact that Sishen has listed six
paragraphs, four of which have subparagraphs, as appearing in its
Notice of Application
for Leave to Appeal dated 24 July 2025, in
substantiation of its submission that the Court erred in its
findings, the main argument
relied on essentially involves whether I
was correct in granting paragraph 2.3 of the rule
nisi
and further ordering that it serves as interim interdict calling upon
the respondents to show cause why it should not be made final.
Sishen
insists that it is incurring irreparable harm as a result of the
impugned paragraphs, and that it is therefore in the interests
of
justice to grant it leave to appeal. This is what is contended in
Sishen’s heads:
‘
Although
the order in paragraph 2.3 is in the form of an interim order, we
submit it is final in effect, and that even if the Court
were to find
that it is not final in effect, it is in the interests of justice
that leave to appeal be granted.’
Of significance is that
Sishen prays in this application that the order be varied by the
deletion of paragraphs 2.3 and 3, and that
the costs of this
application be costs in the appeal.
Applicable legal
principles:
[6]
It
is common cause that the impugned order is pending before court. The
legal principles on the appealability of a court order were
established in Z
weni
v Minister of Law and Order
[2]
(“
Zweni
”).
The judgment or order against which leave to appeal is sought must be
final in effect; definitive of the rights of the
parties; and have
the effect of disposing of at least a substantial portion of the
relief claimed. The SCA has confirmed these
principles on several
occasions in relation to the appealability of orders that are in
essence interim in particular.
[3]
Importantly, the test is not to be applied rigidly. It is now trite
law that the interests of justice may nonetheless necessitate
that an
appeal be heard even if the impugned order falls short of the three
requirements in
Zweni
.
[4]
[7]
On
the interests of justice standard, the Constitutional Court
(“ConCourt”) in
United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd
and Others
[5]
held:
‘
Whether
this court should grant leave turns on what the interests of justice
require. Whether it is in the interests of justice
to hear and
determine the matter involves a careful balancing and weighing up of
all relevant factors. However, there is no concrete
and succinct
definition of the phrase “interests of justice” and what
it really entails.’
[8]
While
the ConCourt
in
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[6]
(“
ITAC
”)
identified
irreparable harm as one of the important factors in assessing whether
leave to appeal should be granted,
[7]
it also emphasised that such a factor is to be considered alongside
all other relevant factors. In this regard, it was held that
‘[w]hether it is in the interests of justice to grant leave to
appeal hinges on a cluster of interactive considerations’
which
must be carefully evaluated.
[8]
Indeed, this is so that a court must consider each case in the light
of its own facts.
[9]
[9]
In
casu,
the impugned judgment dealt with the contested requirements for an
interim order, among other things. In
Baliso
v Firstrand Bank Ltd t/a Westbank
,
[10]
it was held:
‘
In
this court, the principles applicable to the appealability of
decisions were comprehensively dealt with by Moseneke DCJ in
ITAC
:
“
The
question whether an appeal against a decision of the High Court may
lie directly to this court is governed by s 167(6)(b) of
the
Constitution read with rule 19. The constitutionally prescribed
standard is whether it is in the interests of justice for this
court
to hear an appeal. In
Khumalo and Others
v Holomisa
this court held that it is
not a jurisdictional requirement for an appeal to this court that the
matter must involve a ‘judgment
or order’ within the
meaning of s 20(1) of the Supreme Court Act. However, the court
pointed out that it will not often be
in the interests of justice for
this court to entertain appeals against interlocutory rulings which
do not have a final effect
on the dispute between the parties.
The same point was made
again in
Minister of Health and Others v Treatment Action Campaign
and Others (No 1) (TAC(1
)):
“
The
policy considerations that underlie the non-appealability of interim
execution orders in terms of s 20 of the Supreme Court
Act, are also
relevant to the decision whether it is in the interests of justice to
grant an application for leave to appeal to
this Court against an
interim execution order.”
In this sense, the
jurisprudence of the Supreme Court of Appeal on whether a judgment or
order is appealable remains an important
consideration in assessing
where the interests of justice lie. An authoritative restatement of
the jurisprudence is to be found
in
Zweni
which has laid down
that the decision must be final in effect and not open to alteration
by the court of first instance; it must
be definitive of the rights
of the parties; and lastly, it must have the effect of disposing of
at least a substantial portion
of the relief claimed in the main
proceedings. On these general principles the Supreme Court of Appeal
has often held that the
grant of an interim interdict is not
susceptible to an appeal.
The policy considerations
that underlie these principles are self-evident. Courts are loath to
encourage wasteful use of judicial
resources and of legal costs by
allowing appeals against interim orders that have no final effect and
that are susceptible to reconsideration
by a court a quo when final
relief is determined.”’ (Footnotes omitted.)
[10]
Significantly,
the SCA in
TWK
Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty)
Ltd and Others
[11]
was at pains cautioning against the adoption of the interests of
justice standard as the main and general standard on appealability
issues to the SCA. It ultimately concluded that:
‘
Even
if this is so as a matter of principle ...[that] a number of
decisions of this court have been willing, with different degrees
of
separation, to part from
Zweni
,
or subsume
Zweni
in
the capacious remit of the interests of justice. I do not here essay
a general account of appealability. I do affirm, though,
that the
doctrine of finality must figure as the central principle of
consideration when deciding whether a matter is appealable
to this
court. Different types of matters arising from the High Court may (I
put it no higher normatively) warrant some measure
of appreciation
that goes beyond
Zweni
or may require an exception to its precepts. Any deviation should be
clearly defined and justified to provide ascertainable standards
consistent with the rule of law. Recent decisions of this court that
may have been tempted into the general orbit of the interests
of
justice should now be approached with the gravitational pull of
Zweni
.’
[12]
I note that Sishen sought
leave to appeal not only to the SCA, but to the Full Court of this
Division in the alternative. I am convinced,
however, that the
principles necessitated by the rule of law as enunciated above are
equally applicable in relation to appeals
sought to be heard by the
Full Court.
[11]
The importance of finality has been
especially emphasised in the promotion of the rule of law. The SCA in
TWK Agriculture Holdings (Pty) Ltd v
Hoogveld Boerderybeleggings (Pty) Ltd and Others
(
supra
)
made these instructive remarks:
‘
Whether
the decision of a court is appealable is a matter of great
importance, both for litigants and for the discharge by an appellate
court of its institutional functions. That is why the doctrine of
finality has figured so prominently in the jurisprudence of this
court. As a general principle, the High Court should bring finality
to the matter before it, in the sense laid down in
Zweni
.
Only then should the matter be capable of being appealed to this
court. It allows for the orderly use of the capacity of this
court to
hear appeals that warrant its attention. It prevents piecemeal
appeals that are often costly and delay the resolution
of matters
before the High Court. It reinforces the duty of the High Court to
bring matters to an expeditious, and final, conclusion.
And it
provides criteria so that litigants can determine, with tolerable
certainty, whether a matter is appealable. These are the
hallmarks of
what the rule of law requires.’
[13]
[12]
Finally,
the ConCourt in
ITAC
also held that the prospects of success, although not alone decisive,
remain a crucial consideration when determining whether to
grant
leave against interim orders.
[14]
It is indeed trite law that, in terms of
section 17
of the
Superior
Courts Act,
[15
]
leave should only be granted if the applicant has satisfied the court
that the appeal would have a reasonable prospect of success
or that
there is some compelling reason why the appeal should be heard.
[16]
Analysis:
[13]
Sishen was well aware when seeking leave
that the order in paragraph 2.3 was already pending before Court. It
would not be sensible
to have the order varied and deleted as it also
involves two of Sishen’s employees who are not parties in this
application,
and whose matter must still be adjudicated upon by the
Court where the rule
nisi
may either be confirmed or discharged. Accordingly, paragraph 2.3 of
the order sought to be appealed against is not final in effect,
not
definitive of the parties’ rights, and therefore generally not
appealable.
[14]
Importantly, in the order that leave for
appeal is being sought against, this Court has specified that should
the dispute resolution
process outlive the term of the contract
(February 2026), the interdictory order will lapse with the contract,
which would have
ended by effluxion of time. Clearly, Sishen is
avoiding two processes available to it: firstly, the provisions of
the contract
between the parties directing them to pursue dispute
resolution processes; and secondly, the return date of the
rule
nisi,
where paragraph 2.3 and its subparagraphs could have been fully
ventilated by now.
[15]
Further, Sishen’s reliance on
Hlwella
is misplaced because issues argued before this Court pertaining to
the contractual rights stemming from the contract, particularly
where
the contract referred to a ‘Total Cost’ (monthly) and the
written amendment of the contract referring to a ‘Fixed
Monthly
Cost’, were not argued in
Hlwella
.
Therefore, Sishen’s contention that it would be in the
interests of justice for the appeal to be heard because of
conflicting
judgments is without merit as
Hlwella
is distinguishable from the issues in
casu
.
[16]
Even
more problematic is that Sishen’s counsel, Mr Franklin SC (who
did not appear in the interim interdict applications),
seeks in its
heads of argument to make out a completely new case on its behalf. Mr
Eillert, for Isago, correctly asked the court
to disregard the
submissions made on behalf of Sishen, which were not canvassed when
the matter was argued before the court. Arguing
a completely new case
when seeking leave ignores all the well-established rules of practice
governing motion proceedings and cannot
be countenanced by this
Court.
[17]
[17]
Sishen cannot be allowed to raise
completely new issues not only in the application for leave to
appeal, but also in the written
submissions, without having indicated
that it intends seeking the Court’s indulgence at the hearing
to adduce further evidence
on appeal in terms of
s 19(
b
)
of the
Superior Courts Act. It
seems to me that it has adopted a
stratagem that seeks at every turn to advance the issue of
non-availability of purchase orders
and non-exclusivity of the
contract, which, in my view, is nothing less than obfuscating. As
mentioned in paragraph 14 above, Sishen
has two forums open to it at
this stage to address the issue of the termination of the contract
and paragraph 2.3 of the order.
[18]
I
also point out that the ConCourt has cautioned in
Vodacom
(Pty) Ltd v Makate and Another
[18]
that the principles enunciated in that judgment are not an open
sesame for litigants to subject adverse judgments to nitpicking
analysis with a view to trying to show the inadequacy of reasons.
[19]
Having dispassionately considered the
grounds raised by Sishen in an effort to determine whether there are
reasonable prospects
that another court would come to a different
finding than this Court, whose judgment is sought to be appealed
against, I have not
found any. There are also no compelling reasons
that warrant the attention of the Supreme Court of Appeal or the Full
Court of
this Division on appeal. I am further not satisfied that it
would be in the interests of justice for leave to be granted. In the
result, the application for leave to appeal must fail. There is no
reason why costs should not follow the result.
Order:
[20]
In the result, the following order is made:
1.
The application for leave to appeal is
dismissed with costs.
M.C. MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
For the Applicant:
Adv. A Eillert
Instructed by:
JKL Ikaneng Attorneys
c/o
L-M Attorneys & Partners Inc
For the First
Respondent:
Adv. AE Franklin SC
Adv.
KAR Thobakgale
Instructed by:
Cliffe Dekker-Hofmeyr
Inc
c/o
Van de Wall Inc
[1]
Gauteng High Court unreported judgment under case number 2025 –
036869.
[2]
1993 (1) SA 523
(A) at 532I – 533B.
[3]
See
for example
Cronshaw
and Another v Coin Security Group (Pty) Ltd
[1996] ZASCA 38
;
1996 (3) SA 686
(A). See also
S
v Western
Areas
Ltd and Others
[2005]
3 All SA 541
(SCA);
2005 (1) SACR 441
(SCA);
2005
(5) SA 214
(SCA) para 20:
‘
The
appealability decisions of this Court are based on the “salutary
general rule that appeals are not entertained piecemeal”.
Appeals are, generally, precluded before final determination of a
case unless the judicial pronouncement sought to be appealed
against, whether referred to as a judgment, order, ruling, decision
or declaration, has three attributes. First, it must be final
in
effect. That means it must not be susceptible of alteration by the
court appealed from. Second, it must be definitive of the
rights of
the parties, for example, because it grants definite and distinct
relief. Thirdly, it must have the effect of disposing
of at least a
substantial portion of the relief claimed. Clearly, whether these
criteria are met does not depend on judicial
discretion.’
[4]
S v
Western Areas Ltd and Others
(
supra
)
fn 3 para 25 – 26. See also
Philani-Ma-Afrika
and Others v Mailula and Others
2010 (2) SA 573
(SCA);
[2010] 1 All SA 459
(SCA) para 20.
[5]
[2022]
ZACC 34
;
2022 (12) BCLR 1521
(CC);
2023 (1) SA 353
(CC) para 34.
[6]
[2010]
ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC).
[7]
Ibid
para
54 – 55.
[8]
Ibid
para
41. See also
Supra
fn 5 para 35.
[9]
Supra
fn
6 para 41.
[10]
2017
(1) SA 292
(CC) para 7.
[11]
[2023]
ZASCA 63
;
2023 (5) SA 163
(SCA) para 19 – 30.
[12]
Ibid
para
30.
[13]
Ibid
para
21.
[14]
Supra
fn
6 para 41.
[15]
10
of 2013.
17 Leave to appeal
(1)
Leave to appeal may only be given where
the judge or judges 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.
[16]
See
generally
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020 (5) SA 35
(SCA);
Mont
Chevaux Trust v Goosen
2014 JDR 2325 (LCC);
Ramakatsa
and Others v African National Congress and Another
(724/2019)
[2021] ZASCA 31
(31 March 2021).
[17]
See
for example
KSL
v AL
2024 (6) SA 410
(SCA) para 25.
[18]
(CCT
51/24)
[2025] ZACC 13
(31 July 2025) para 65.