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[2026] ZAGPPHC 322
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Kukard N.O and Others v Access Bank of South Africa Limited and Another (A139/2025) [2026] ZAGPPHC 322 (13 April 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO.:
A139/2025
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
DATE 13/4/2026
SIGNATURE
In the matter between:-
COLLEEN
MICHELLE KUKARD
N.O.
First Appellant
HILLBROW
INN (PTY)
LTD
Second Appellant
JOUBERT
PARK MAXIME HOTEL (PTY)
LTE
Third Appellant
MAXIME
HOTEL (PTY)
LTD
Fourth Appellant
NEW
WORLD HOTELS (PTY)
LTD
Fifth Appellant
JESHCO
(PTY)
LTD
Sixth Appellant
DREAM
WEAVER TRADING 139 (PTY)
LTD
Seventh Appellant
WARWIK
PAUL VAN DEN BERG
N.O.
Eighth Appellant
DARRYL
HURWITZ
N.O.
Ninth Appellant
v
ACCESS BANK OF SOUTH
AFRICA LIMITED
First Respondent
STANDARD
BANK OF SOUTH AFRICA LIMITED
Second Respondent
Heard
on:
11 March
2026
Delivered:
13 April
2026 - This
judgment was handed down electronically by circulation to the
parties' representatives by email, by being uploaded to
the
CaseLines
system
of the GD and by release to SAFLII. The date and time for hand-down
is deemed to be 14:00 on 13 April 2026.
Summary:
The court
a
quo
failed
to make a decision in the interlocutory application (Rule 35(1)) –
The appellants are bound to the grounds of appeal
set out in the
application for leave to appeal – It is inappropriate for the
appeal court to be a court of first instance
– The primary
factor for consideration is the nature and effect of the order,
having regard to what is in the interest of
justice.
ORDER
It is ordered: -
1.
The appeal is dismissed.
2.
The appellants are ordered to pay the costs
of the first respondent on an attorney and client scale.
3.
The appellants are ordered to pay the costs
of the second respondent on Scale C.
JUDGMENT
KOOVERJIE
J
(Tolmay
J and Francis-Subbiah J concurring)
The
Appeal
[1]
This is an appeal against the judgment and order of the court
a
quo
where it was contended that the court erred in not granting
the postponement and not furnishing a decision on the Rule 35(1)
application
of the Uniform Rules of Court.
Issue
for determination
[2]
The main issue for determination is whether it is appropriate for the
appeal court
to make a determination on the Rule 35(1) application.
Background
[3]
In brief, the first appellant, Ms Kukard is the widow of the late Mr
Kukard, who was
during his lifetime, a director of the entities cited
as the second to the seventh appellants in this matter.
[4]
In the main, the appellants took issue with both, Access Bank and
Standard Bank, for
approving various loans in favour of the second to
the seventh appellants. The appellants’ case essentially is
that they
had no knowledge of the respective loans granted by Access
Bank and Standard Bank.
[5]
According to the appellants’ account, Mr Pillay, who served as
financial manager
at the time, independently approached Access Bank
and Standard Bank for loans without informing Mr and Mrs Kukard.
These loan applications
were subsequently approved.
When
they discovered his fraudulent conduct, Mr Pillay was subjected to a
disciplinary hearing on
inter alia
charges of dishonesty and was eventually dismissed from the
appellants’ employment. In the particulars of claim various
negative allegations were levelled against Access Bank and Standard
Bank pertaining to the loans granted.
[6]
Access Bank and Standard Bank, upon receipt of the summons and
particulars of claim,
took exception thereto. Various fatal defects
were identified in the appellants’ particulars of claim which
resulted in both
parties filing their respective exceptions.
[7]
The respondents approached the office of the Deputy Judge President
to have the exceptions
consolidated. At the meeting held with the
Deputy Judge President, the appellants advised that they would be
filing their Rule
35(1) discovery application as well. The Deputy
Judge President then directed that both interlocutory applications,
namely the
Rule 35(1) application as well as the exceptions would be
dealt with at the same time.
[8]
Upon receipt of the said Rule 35(1) application, Access Bank made
discovery of the
relevant documents. It did so at least a month
before the exceptions were heard. The appellants consequently
withdrew the Rule
35(1) application against Access Bank but persisted
with the application against Standard Bank.
[9]
Access Bank takes particular issue with being dragged into these
proceedings. It was
pointed out that the appellants should have
responded to Access Bank’s exception. Access Bank should not
have been a party
to the Rule 35(1) application or the postponement
application.
[10]
The appellants’ request for early discovery was premised on the
following basis, namely
that the documents were required to prepare a
damages claim against the respondents since proper pleadings cannot
be prepared without
them; the discovery was necessary to enable them
to address the exceptions; the relationship between the appellants
and Standard
Bank justified early discovery; and since they were
victims of fraud and theft, they required full disclosure.
[11]
It is trite that for the appellants to succeed in their application
for early discovery, exceptional
circumstances had to be present and
likewise pleaded. The general principle is that discovery is made
after the close of pleadings.
[1]
Analysis
The
grounds of appeal
[12]
The court
a quo
dismissed the postponement application, upheld
the exceptions and afforded the appellants 15 days to amend their
particulars of
claim; and ordered the appellants to pay the costs on
Scale C.
[13]
The appellants’ notice of application for leave to appeal was
confined to those portions
of the judgment and order which refused
the application for postponement of the exception proceedings and the
court’s failure
to grant an order in terms of Rule 35(1) as
well as the costs issue.
[14]
Notably the court
a quo
also acknowledged that the appellants
were not appealing the order pertaining to the exceptions and further
that it had made no
decision in respect of the Rule 35(1)
application. Consequently, it granted leave to appeal on the basis
that there may have been
a misunderstanding on its part for not
making a finding on the said application.
[15]
The appellants apparently expanded their appeal grounds. In their
application for leave to appeal
they did not seek to appeal the order
upholding the exceptions, nor did they raise any grounds of appeal on
the merits of the exceptions.
The wide grounds they now intended to
raise on appeal were the following:
(a)
the exceptions brought by Access Bank and Standard Bank (the third
and the fourth respondents) be deferred for hearing until
full and
complete discovery by Standard Bank has been made;
(b)
Standard Bank be ordered to make discovery in terms of Rule 35(1);
(c)
the costs of the Rule 35 application and the costs of the exceptions
be reserved for adjudication once discovery has taken
place.
[16]
Rule 49(1)(b) of the Uniform Rules of Court stipulates that a party
seeking leave to appeal must
set out the grounds of appeal in their
notice. Such grounds of appeal must be clearly and succinctly set out
in clear and unambiguous
terms. This is required to enable the court
and the respondent to be fully informed of the case the appellants
seek to make out
and the respondents have to meet.
[17]
The Appellate Division in
S
v Sefatsa And Others
[2]
stated
that an appellant may only argue within the scope of the leave
granted.
‘
In
my view, however, it requires to be emphasised that an appellant has
no right to argue matters not covered by the terms of the
leave
granted. His only “right” is to ask this Court to allow
him to do so.’
[18]
The Supreme Court of Appeal endorsed this proposition in
Goosen
and Others v Mont Chevaux Trust:
[3]
‘
The
appeal to this court, however, is subject to all the limitations
applicable to appeals. The appeal is, for instance, limited
to the
grounds that were raised in the notice of appeal, must be decided
only on the appeal record.’
[19]
It was therefore not permissible for the appellants to advance
grounds that were not included
in the leave to appeal. In any
event, the additional relief sought, namely to defer the exceptions,
has its own problem.
The exceptions were ventilated before the court
a quo and an order and judgment upholding the exceptions were
granted. The exceptions
can therefore not be deferred as there
remains nothing to postpone.
Failure
to determine Rule 35(1) application
[20]
The court a quo furnished two judgments, namely the main judgment and
the judgment relating to
the application for leave to appeal. In the
application for leave to appeal judgment, the court a quo
unequivocally said that no
determination was made in respect of the
Rule 35(1) application. At paragraph 5 of the said judgment, the
court expressed: ‘there
were extensive and substantial
documents in respect of Rule 35(1) of which I was not in a position
to make a ruling on’.
[21]
The presiding judge further held that the postponement was dismissed
as it was in the interest
of justice that the two exceptions be
determined. She however explained that she erred ‘in finding
that a concession was
made that if the exceptions were found to be
good in law, it would not be necessary to grant early discovery’.
[22]
It is evident that the court
a quo
had misdirected itself by
not furnishing a decision in respect of the Rule 35(1) application.
It was common cause that the Rule
35(1) application together with the
postponement relief was before the court a quo. All the parties
confirmed that the court a
quo had in fact heard submissions
pertaining to the Rule 35(1) application, as well as the request for
the postponement.
[23]
The appellants explained that they had not challenged the exceptions
before the court a quo.
They reasoned that the early discovery which
they sought would enable them to properly address the exceptions. It
was on this basis
that they sought the postponement. They argued
that
the
court a quo was required to fully consider if
there was merit in the Rule 35(1) application, and if so, the
postponement would be
justified.
[24]
The pressing issue for consideration is whether it is appropriate for
this court to make a determination
on the Rule 35(1) application.
Both the appellants’ and Standard Bank held the view that this
court is in as good a position
to consider the Rule 35(1) application
since all the facts are before the court and the matter was fully
ventilated before the
court a quo.
[25]
Access Bank, on the other hand, contended that the court a quo’s
failure to decide the
Rule 35(1) application is not appealable. As
things stand there was no decision made by the court a quo as
envisaged in s 16(1)(a)
of the Superior Courts Act, 10 of 2013 (the
Act). Secondly the appellants had alternative recourse, namely that
the Rule 35(1)
application could have been enrolled before a court of
first instance.
[26]
The point of departure is to appreciate that a court may only grant
leave to appeal if the order
sought to be appealed is a ‘decision’
within the meaning of s (16)(1)(a) of the Act. In
Neotel
Pty Ltd v Telkom SA Soc Ltd and Others
[4]
the
court explained that:
‘
If
a decision did not constitute a “judgment or order” the
decision was not appealable under the Supreme Court Act.’
The said court further
held that a more practical and pragmatic approach should be adopted
in determining whether interlocutory
orders are appealable. The
potential to open the floodgates with the court’s inherent
challenges should be avoided.
[27]
The powers of a court on hearing appeals are prescribed in s 19 of
the Act and reads:
‘
The
Supreme Court of Appeal or a Division exercising appeal jurisdiction
may, in addition to any power as may specifically be provided
for in
any other law-
(a)
dispose of an appeal without the hearing of oral argument;
(b)
receive further evidence;
(c)
remit the case to the court of first instance, or to the court whose
decision is the
subject of the appeal, for further hearing, with such
instructions as regards the taking of further evidence or otherwise
as the
Supreme Court of Appeal or the Division deems necessary; or
(d)
confirm, amend or set aside the decision which is the subject of the
appeal and render
any decision which the circumstances may require.’
[28]
It is common cause that the Rule 35(1) application is interlocutory
in nature. In this instance,
no decision was made by the court a quo
.
The prevailing issue for determination, in my view, is whether an
appeal court is suited to determine matters of this nature. In
this
instance, it was not disputed that the order anticipated in terms of
the Rule 35(1) application would be interlocutory in
nature.
[29]
The authorities cited herein indicate that consideration should be
given to the nature and effect
of the order sought.
HJ
v PJ
[5]
concerned an appeal against an interlocutory discovery order
compelling the delivery of further particulars for trial. The issue
before that court was whether the regional court order, which ordered
the respondent to provide further particulars, was appealable.
[30]
The High Court was criticized for failing to determine if the order
was appealable. The court
expressed its dissatisfaction and
stated:
[6]
‘
The
upshot of the above is that the regional court’s order to
compel the respondent to discover is purely interlocutory in
nature.
It has no final effect, is not a definitive proceeding, and does not
have the effect of disposing of at least a substantive
portion of the
relief claimed in the pending divorce action between the parties.
Neither does it affect the rights of the parties
whatsoever. The
parties are still entitled to prosecute their case and are still at
liberty to direct the court to any evidence
and to advance any
argument that they wish.
The High Court
was obliged to entertain the issue, even if it was not raised, as to
whether the matter before it was an appeal against
a “decision”
and thus an appeal within its jurisdiction mero motu
.
Its failure to do so amounts to a misdirection which is fatal to the
appeal before this Court. This is so because the high court
should
not have proceeded with the merits as the regional court’s
order was not appealable. It should have struck the matter
of the
roll.’
[Emphasis added]
[31]
Furthermore the said court in having regard to the interest of
justice factor cautioned that
courts should not blindly adopt the
standard of the “interest of justice” as the foundational
basis when determining
whether the matter is appealable or not. It
pointed out that to do this “
would
put in place a regime that is both unpredictable and open-ended
”.
It would encourage litigants to persuade the high courts to grant
leave, when they still have work to do. In upholding
TWK
Agricultural Holdings (Pty) v Hoogveld Boerderybeleggings (Pty) Ltd
and Others
[7]
the court expressed:
‘
The
decision in
TWK
,
therefore, circumscribed the approach this Court and other courts,
other than the Constitutional Court, can adopt on the issue
of
appealability of orders. It concluded that whilst different types of
matters warned some measure of appreciation that goes beyond
Zweni
,
“…the doctrine of finality must figure as the control
principle of consideration when deciding whether a matter is
appealable to this Court”.’
[8]
[32]
The court in
Zweni
v Minister of Law and Order of the Republic of South Africa
[9]
identified three attributes for a court order to be appealable,
namely: the order should be final in effect and not susceptible
to
alteration by the court of first instance; it should be definitive of
the rights of the parties, that is, it must grant definitive
and
distinctive relief; and it must have the effect of disposing of at
least a substantial portion of the relief claimed in the
main
proceedings.
[33]
More recently the Supreme Court of appeal in
Minmetals
Logistics Zhejiang Co Ltd v The Owners and Underwriters of the MV
Smart and Another
[10]
expressed that the
Zweni
triad of attributes for an order to be an appealable order, is no
longer cast in stone nor exhaustive.
The
proper emphasis should be on the nature and effect of the order,
having regard to what is in the interest of justice
.
(Own emphasis.) What the interest of justice requires depends on the
facts of a particular case. It stated:
“
If
one of the attributes in Zweni is lacking, an order will probably not
be appealable, unless there are circumstances which in
the interest
of justice, render it appealable.
The
emphasis has moved from an inquiry 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 interest of justice.
…
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 court 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]
(Emphasis
added.)
[34]
In
Government
Republic of South Africa v Van Abo
,
[12]
the court emphasized that there is no closed list of factors which
can be considered. It was held 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 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.’
[13]
[35]
Guided by the said authorities and placing emphasis on the nature and
effect of the order, I
find this appeal court to be non-suited to
make a determination on the Rule 35(1) application. In the present
circumstances of
the matter, the pleadings have not yet closed and an
interlocutory application for discovery is pending. The nature and
effect
of the order anticipated, is interlocutory in nature.
[36]
It would be undesirable to fragment this matter by hearing certain
aspects on appeal prior to
substantive resolution of the issues
before the court of first instance. With pending trial proceedings
before the court of first
instance, it would be appropriate that the
Rule 35(1) proceedings be adjudicated before such court. This will
not prejudice the
appellants in any way. Counsel for the appellants,
in fact, informed us that the Rule 35(1) issue could have been dealt
with before
the court of first instance.
Costs
[37]
In applying the general principle that costs should follow the
result, the respondents as successful
parties are entitled to their
costs. Access Bank contended that it should never have been a party
to these appeal proceedings as
there was no existing
lis
with
the appellants when this appeal was prosecuted. It had complied with
the request for early discovery and did so timeously
in order for the
appellants to have addressed the exception. This fact was not
disputed by the appellants. The appellants’
submission was that
the postponement was necessary as it would have been convenient to
deal with both exceptions simultaneously.
This reasoning is clearly
untenable. In my view, there is no reason why Access Bank should not
be awarded attorney and client costs.
The second respondent, Standard
Bank, is also entitled to its costs on Scale C.
Order
[38]
Consequently I grant the following order:
1.
The appeal is dismissed;
2.
The appellants are to pay the costs of the
first respondent on attorney and client scale;
3.
The appellants are to pay the costs of the
second respondent on Scale C.
H.
KOOVERJIE
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
I
agree,
R.
TOLMAY J
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
I
agree,
R.
FRANCIS-SUBBIAH J
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
Appearances
:
Counsel
for the appellants:
Adv.
HF Jacobs SC
Adv.
FC Lambrecht
Instructed by:
Riekert Terblanche
Attorneys
c/o
Wiese & Wiese Attorneys
Counsel
for the first respondent:
Adv.C
McConnachie
Adv.
Z Raqowa
Instructed
by:
Lawtons
Inc. p/a Lawtons Africa
c/o
Friedland Hart Solomon & Nicolson
Counsel
for the second respondent:
Adv.BM
Gilbert SC
Instructed
by:
Claassen
Inc
[1]
In
Regent
Insurance Company Ltd v Flinkdink Transport and Another
[2015] ZAGPPHC 726 at para 34, where the court stated:
‘
No
provision is made in the rules that discovery should take place
before a party is required to plead. To the contrary an order
that
discovery be given before the close of pleadings, i.e. before a
party has pleaded, will only be made where there are exceptional
circumstances which requires such an order.’
[2]
S
v Sefatsa And Others
1988 (1) SA 868
(A) at 887D-E.
[3]
Goosen
and Others v Mont Chevaux Trust
[2017] ZASCA 89
(6 June 2019) para 17.
[4]
Neotel
Pty Ltd v Telkom SA Soc Ltd and Others
[2017] ZA SCA (31 March 2017) para 13.
[5]
HJ
v PJ
[2024] ZASCA 55
(19 April 2024) paras 10, 12 and 16 (
HJ
v PJ
).
[6]
Ibid
para 16.
[7]
TWK
Agricultural Holdings (Pty) v Hoogveld Boerderybeleggings (Pty) Ltd
and Others
[2023] ZASCA 63; 2023 (5) SA 163 (SCA).
[8]
HJ
v PJ
fn 5 above para 12.
[9]
Zweni
v Minister of Law and Order of the Republic of South Africa
1993 (1) SA 523
(A) (
Zweni
).
[10]
Minmetals
Logistics Zhejiang Co Ltd v The Owners and Underwriters of the MV
Smart and Another
2025
(1) SA 396
SCA (1 October 2024).
[11]
Ibid
paras 32 to 33.
[12]
Government
Republic of South Africa v Van Abo
2011 (5) SA 262
SCA.
[13]
Ibid para 17.