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document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2014-094498
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LTD Applicant
(Registration number: 1962/000738/06)
and
GOEIEHOEK BOERDERY CLOSE CORPORATION 1st Respondent
(Registration number: 1996/049589/23)
KEET BAREND FREDERIK 2nd Respondent
(Identity Number: 6[...])
KEET BAREND FREDERIK N.O 3rd Respondent
(Identity Number: 6[...])
(in his capacity as trustee for the time being of the XL Trust)
KEET BAREND JOHANNES N.O 4th Respondent
(Identity Number: 9[...])
(in his capacity as trustee for the time being of the XL Trust)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
20 January 2026
DATE SIGNATURE
iPROTECT TRUSTEES (PTY) LTD N.O 5th Respondent
(Registration Number: 2008/001993/07)
(in his capacity as trustee for the time being of the XL Trust)
_____________________________________________________________________________
JUDGMENT
_____________________________________________________________________________
(This leave to appeal was heard online on 14 November 2025 , and judgment was
reserved. Judgment will be handed down by uploading the judgment onto the
electronic file of the matter on CaseLines. The date of uploading onto CaseLines is
deemed to be the date of the judgment.)
LUKHAIMANE AJ
1. This is an application for leave to appeal against the judgment and order of this
Court handed down on 20 August 2025 , with reasons provided on 9 September
2025 (“the order”). The order dismissed with costs an application by the Applicant to
declare a prop erty executable. The Respondent s oppose the granting of leave to
appeal.
2. I had the opportunity to hear arguments on behalf of the parties and perused the
application for leave to appeal as well as the heads of argument. There are two
issues for determi nation. Firstly, whether the order is appealable , and secondly,
whether an appeal would have reasonable prospects of success, even were the
order to be appealable.
Appealability
3. This Court may only grant leave to appeal if the order sought to be appea led is a
“decision” within the meaning of section 16(1)(a) of the Superior Courts Act 10 of
2013 (“Superior Courts Act”). The meaning of the term “decision” in section
16(1)(a) of the Superior Courts Act and the phrase “judgment or order” in section
20 of repealed former Supreme Courts Act 19 of 1959 , is similar . In Neotel (Pty)
Ltd v Telkom SA Soc Ltd and Others1, Coppin AJA (as he then was) stated:
“13. If a decision did not constitute a ‘judgment or order’ the decision was not
appealable under the Supreme Courts Act. Since there is no conceptual difference
between such a judgment or order and the ‘decision’ contemplated in s 16(1)(a) of
the Superior Courts Act, the same would hold true under the Superior Courts Act.
The ‘judgment or order’ was held to refer to a substantive judgment or order in
terms of which the court granted or refused the relief sought. The same meaning
must be given to the ‘decision’ contemplated in s 16(1)(a) of the Superior Courts
Act.”
4. This Court’s order dismissing the Applicant’s application was due to non -
compliance with the procedural requirements for service. The court in Zweni v
Minister of Law and Order 2 formulated the requirements for appealability of an
order. Following a comprehensive review of the authorities, Harms AJA (as he then
was) said the following:
“24. In the light of these tests and in view of the fact that a ruling is the antithesis of
a judgment or order, it appears to me that, generally speaking , a non -appealable
decision (ruling) is a decision which is not final (because the Court of first instance
is entitled to alter it), nor definitive of the rights of the parties nor has the effect of
disposing of at least a substantial portion of the relief claimed in the main
proceedings."
5. The court in Eskom Holdings SOC Ltd v Sonae Arauco (Pty) Ltd3 states as follows:
“33. This Court in Zweni v Minister of Law and order (Zweni), formulated the
following requirements for appealability of an order: (a) the decision must be final in
effect and not open to alteration by the court of first instance; (b) it must be
1 (605/2016) [2017] ZASCA 47 (31 March 2017)
2 [1993] 1 All SA 395 (A)
3 (1018/2023) [2024] ZASCA 177
definitive of the rights of the parties; and (c) it must have the effect of disposing of
at least a substantial portion of the relief claimed in the main proceedings.
34 However, even if an order does not meet the Zweni threshold, it may
nevertheless be appealable if the interests of justice require it. In United
Democratic Movement v Lebashe Investment Group (Pty) Ltd, the Constitutional
Court made it clear that the ‘i nterests of justice approach’ is not limited to the
Constitutional Court but applies equally to this Court.
35 In Government of the Republic of South Africa and Others v Von Abo, this Court
commented that: ‘it is fair to say that there is no checklist of requirements. Several
considerations need to be weighed up, including whether the relief granted was
final in its effect, definitive of the rights of the parties, disposed of a substantial
portion of the relief claimed, aspects of convenience the time at which the issue is
considered, delay, expedience, prejudice, the avoidance of piecemeal appeals and
the statement of justice.
36 In International Trade Administration Commission v SCAW South Afrca Ltd at
paragraph 56 the Constitutional Court, in holding that the requirements for
appealability must be considered disjunctively rather than conjuctively, explained
that: It is sufficient if the order disposes of ‘at least a substantial portion of the relief
claimed in the main proceedings’. Also, it is adequate of the interim order is
intended to and does have an immediate effect and is not susceptible to be
considered on the same facts in the main proceedings.”
6. The advent of the Constitution affected on the common law requirements for
appealability of orders established in Zweni. The constitutionally required standard is
instead whether an appeal against an interloc utory or interim order would be “in the
interests of justice”. The common law test for appealability articulated in Zweni is
thus no longer decisive, irrespective of any other considerations.
thus no longer decisive, irrespective of any other considerations.
7. The application of the interests of justice standard is a f act specific enquiry involving
a careful balancing and weighing up of all relevant factors.
8. In TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd 4,
the Supreme Court of Appeal confirmed that the Zweni triad remains relevant and
has not been supplanted by the development of the jurisprudence. The interests of
justice standard, the Court held, must also be considered in the context of two other
principles, legal certainty and finality in litigation, which are themselves key
components of the rule of law. Unterhalter AJA observed that “…courts should be
cautious to adopt standards for their decisions so porous that a litigant cannot be
advised, with any reasonable probability, as to the decision that a court is likely to
make.” The learned Judge went on to say:
“30. I do not here essay a general account of appealability. I do affirm, though, that
the doctrine of finality must figure as the central princi ple 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.”
9. The continued relevance of the Zweni attributes of an appealable order and the
application of the interests of justice standard cautioned in TWK Agriculture and
several judgments of the Supreme Court of Appeal handed down subsequent
thereto cannot be understated.
10. The Supreme Court of Appeal in Minmetals Logistics Zhejiang Co Ltd v The Owners
and Underwriters of the MV Smart and Another 5, emphasized the avoidance of
4 (273/2022) [2023] ZASCA 63; 2023 (5) SA 163 (SCA) (5 May 2023)
4 (273/2022) [2023] ZASCA 63; 2023 (5) SA 163 (SCA) (5 May 2023)
5 (573/2023) [2024] ZASCA 129; [2025] 1 All SA 60 SCA; 2025 (1) SA 392 (SCA) (1 October 2024)
piecemeal litigation and continued relevance of the Zweni triad. Koen AJA stated
that:
“32. If one of the attributes in Zweni is lacking, a n order will probably not be
appealable, unless there are circumstances which in the interests of justice, render
it appealable. The emphasis has moved from an enquiry focused on the nature of
the order, to one more as to the nature and effect of the order , having regard to
what is in the interests of justice.
33. It is not in the interest of justice to have a piecemeal adjudication of litigation,
with unnecessary delays resulting from appeals on issues which would not finally
dispose of the litigation. As the Constitutional Court has held, albeit in a different
context, it is undesirable to fragment a case by bringing appeals on individual
aspects of the case prior to the proper resolution of the matter in the court of first
instance, and an appellate cour t will only interfere in pending proceedings in the
lower courts in cases of great rarity – where grave injustice threatens, and,
intervention is necessary to attain justice.”
11. The present approach to appealability as in Government of the Republic of South
Africa v Van Abo, applied by the Supreme Court of Appeal in Eskom Holdings Soc
Ltd and Another v Sonae Arauco (Pty) Ltd supra may be summarized as follows:
“35. It is fair to say that there is no checklist of requirements. Several
considerations need to be weighed up, including whether the relief granted was
final in its effect, definitive of the rights of the parties, disposed of a substantial
portion of the relief claimed, aspects of convenience, the time at which the issue is
considered, delay, expedience, prejudice, the avoidance of piecemeal appeals and
the attainment of justice.”
12. As to whether the relief granted was final in nature, it was held by the C onstitutional
Court in United Democratic Movement and Another v Lebashe Investment Group
(Pty) Ltd and Others 6, that the form of the order and its effect must be considered
when deciding whether such is appealable. An order which in form appears to be
purely interlocutory, may nonetheless be appealable if its effect is such that it is final
and definitive of any issue or portion thereof in the main action.
13. The order in the present instance dismissing the application as it was fatally
defective. During the hearing, the applicant persisted with the arguments for an
order in terms of Rule 46A, to the very end, whilst it was clear that the non -
compliance rendered the application fatally defective.
14. The order is not definitive of the issues arising in the action nor does it limit the
discretion vested in the court to consider any argument or evidence which the
Applicant may wish to advance regarding the relief they seek against the first and
second respondents.
15. A crucial requirement for the operation of the principle of res judicata is that it must
be the same issue of fact or law determined by the judgment of the previous court or
earlier, that arises before a later court for determination. If the same issue wa s not
determined by the earlier court, an essential requirement for the operation of res
judicata has not been met. The question is always what issue of fact or law was
decided by the court in the earlier proceedings and was it finally decided. The
decision of the earlier court can only support a finding of res judicata if it was a final
and definitive judgment on issues arising before the later court. The application was
not dismissed on the merits of the claim for payment for the Applicant. The Applicant
remains entitled to pursue payment against the Respondents. The applicant may
even restart the Rule 46A application, following the correct procedure as stated in
the judgment.
16. The application may not be viewed piecemeal as proposed by the Applicant in its
proposition that the service requirements for the money judgment against the first
proposition that the service requirements for the money judgment against the first
6 (CCT 39/21) [2022] ZACC 34; 2022(12) BCLR 1521 (CC); 2023 (1) SA 353 CC 22 September 2022
and second respondents must be separated from the rule 46A application. The
application is one and therefore procedural requirements in respect of all the claims
must be complied with.
17. No argument was made relevant to the interests of justice , therefore this issue will
not be traversed.
18. There is in my view no doubt that allowing an app eal at this stage will delay the
proceedings.
19. The order sought to be appealed furthermore lacks the required attributes of an
appealable decision as contemplated by section 16(1)(a) of the Superior Courts Act ,
as it is not a final decision or judgment as envisaged and did not relate to the merits
of the matter. On this basis as well, I would dismiss the application for leave to
appeal.
Prospects of success
20. I shall deal briefly with the prospects of success on appeal, if I am incorrect
regarding the appealability of the order. A number of these grounds relate to the
Court’s reasons for its order as opposed to the order itself. The purpose of an
application for leave to appeal is furthermore not an opportunity for parties to rehash
and traverse again, the merits of the matter.
Relevance
21. I concluded in my judgment that the Applicant had failed to comply with the service
requirements for Rule 46A application.
22. The main submission advanced by the Applicant in respect of the Court’s findings, is
that in so finding, the Court erred.
23. The judgment dealt with these submissions. They are without merit. I repeat that a
determination by this Court on compliance with a Rule 46A application, can on no
sustainable basis be construed as a final determination on the other legal and
factual issues pending before the court.
Conclusion
24. Section 17(1)(a)(i) of the Superior Courts Act provides that leave to appeal may
only be granted if an appeal would have a reasonable prospect of success.
25. The Applicant has not suggested that there are compelling reasons why an appeal
should be heard as contemplated by section 17(1)(a)(ii) of the Act. I find none. The
application for leave to appeal does not raise any significant questions of law or
issues of public importance that may have a bearing on future disputes.
26. I have carefully considered the Applicant’s grounds of appeal. I am not persuaded
that another Court would reasonably arrive at a different conclusion, even were the
order to be appealable.
Order
27. The application for leave to appeal is dismissed with costs.
____________________
M A LUKHAIMANE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES
For Applicant: E Furstenburg
Instructed by: Claassen Inc
For Respondents: A S Marais
Instructed by: HW Smith & Marais Attorneys
Date of hearing: 14 November 2025
Date of judgment: 20 January 2026