2
marriage to him. SAT has sought discovery from GJT of documents meant to
assist her in valuing that accrual. She has also sought to subpoena documents
from the appellants for the same purpose.
2 This appeal arises from SAT’s decision to combine in one notice of motion
prayers to compel discovery of those documents from GJT and to compel
compliance with subpoenas duces tecum issued to the appellants. The
appellants objected to this manner of proceeding as an irregular step,
because, they said, it was contrary to the Uniform Rules of Court, and it had
the effect of drawing them in to the divorce proceedings to which they were
not, and had no wish to be, involved.
3 In the court below, SAT’s attorneys met the appellants’ Rule 30 notices with
two counter-notices, in which they set out the bases on which they believed
that the appellants’ objections were without foundation. The appellants took
the counter-notices as indications that SAT did not intend to remove the cause
of their complaint, and they applied in the court below to set aside SAT’s
omnibus notice of motion as an irregular step.
4 The court below dismissed the application, reasoning that there was no breach
of the Uniform Rules, and that there was in any event no prejudice to the
appellants in SAT’s chosen manner of proceeding. The court below criticised
the appellants’ objections as purely technical. It also considered th at the
appellants ought to have engaged with SAT’s counter-notices before applying
to have the omnibus notice of motion set aside. The court below directed the
appellants to pay costs on a punitive scale. The court refused leave to appeal,
but the matter is now before us with the leave of the Supreme Court of Appeal.
3
5 We consider that the appeal should be dismissed. Under Rule 30, an irregular
step may be set aside once two things have been established: first , an
irregularity, whether embodied in a breach of the Rules or otherwise, and,
second, prejudice caused to the objector as a result of that irregularity (see
SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4)
SA 329 (O) (“Louw NO”) 333G–334G). Neither of these things was established
in this case.
No irregularity
6 In the first place, we do not think that SAT committed an irregularity. The two
main grounds on which the appellants submitted otherwise were (a) that,
contrary to Rule 10 (3), the omnibus notice of motion joined factually and
legally dissimilar causes of action – one to compel discovery, the other to
compel compliance with a subpoena – in the same proceedings; and (b) that,
contrary to rule 6 (11), the application was brought on a shortform notice of
motion as interlocutory to the divorce action in circumstances where the relief
was not really interlocutory, because it involved individuals not party to the
action, and a longform notice of motion should accordingly have been used.
7 We find neither ground convincing. In the first place, as rule 10 (2) makes
clear, different causes of action turning on different facts may be joined in a
single proceeding, and the text of rule 10 (3) does not expressly rule out
joinder of different defendants, even where the questions between the parties
are factually or legally diverse. In reality, the question is always whether a
particular manner of proceeding is justified by “convenience, equity, the saving
of costs and the avoidance of multiplicity of actions” (see Erasmus, Superior
4
Court Practice RS28, 2025, D1, and the cases cited there). On the face of
things, to sue three different respondents to produce a range of documents all
of which are relevant to the same action by relying on two different causes of
action – each actionable against different respondents – in the same
proceeding seems to us both a permissible and expedient use of Rule 10.
8 Secondly, we reject the contention that an interlocutory application can never
involve individuals who are not party to the main action. If that were so,
applications for leave to intervene or to join interested parties could never be
interlocutory in nature. Neither could the various evidence-gathering remedies
which involve third parties, such as compelling compliance with subpoenas.
These are well-known interlocutory remedies. What makes a proceeding
interlocutory is that it has no existence apart from the main action because it
seeks relief intended solely to bring the main action closer to an end, not that
it only involves people who are directly and substantially interested in the main
action. Depending on the circumstances, interlocutory proceedings involving
such external parties may require the use of a longform notice of motion, but
the question will always be whether the use of the shortform would be
prejudicial. Even if it would, we cannot foresee the circumstances under which
such prejudice could not be cured by the simple effluxion of time, by a
postponement or an order for costs, or by some other form of commonsense
court oversight.
9 The appellants relied on the decision of Goosen J in Maqeda v Toyota
Financial Services [2014] ZAECMHC 4 (14 February 2014) in which it was
held, at paragraph 29, that a person who is not already party to an action may
5
not seek relief in that action without first having been formally joined or granted
leave to intervene. By parity of reasoning, the appellants submitted, the joinder
of SAT’s discovery cause of action against GJT with her cause of action on
the subpoena against the appellants in the same notice of motion was
incompetent without a formal application to join the appellants to the divorce
proceedings.
10 The analogy the appellants seek to draw is inapposite. A person sued to
comply with a subpoena to produce documents relevant to the relief sought in
an action does not thereby become a party to that action – any more than a
witness called to give evidence at trial, or a person who deposes to an affidavit
in application proceedings, becomes a party to those proceedings. It is
accordingly unnecessary for the witness, deponent or possessor of relevant
documents to be joined to the proceedings in which the evidence they have to
give will be admitted. A better analogy with this case is NDPP v Zuma 2009
(2) SA 277 (SCA) at paragraph 85, in which it was held that a witness against
whom adverse credibility findings were made at trial does not thereby become
party to the trial, and has no right to intervene in an ensuing appeal.
No prejudice
11 Even if we were to assume that there was a breach of the rules, the appellants
have suffered no appreciable prejudice from SAT’s use of the shortform
omnibus notice of motion. Nor have they shown any other form of prejudice
arising from the way that SAT chose to proceed. The appellants argued that,
because the documents sought from them and from GJT were listed in the
same annexure to the notice of motion, they were confused about which of the
6
documents they had to produce. We are unable to imagine how any such
confusion would not be resolved by referring to the original subpoena, or by
adopting the commonsense approach of disclosing only those of the
documents that are in the appellants’ possession. It was also suggested that
the appellants were prejudiced by having to respond to allegations about the
divorce proceedings which fell beyond their knowledge, and could only have
concerned GJT. But the appellants did not have to respond to those
allegations, precisely because they had no knowledge of the allegations and
the allegations were not directed at the appellants.
12 We can accept that the need to pick apart the annexure to the notice of motion
and to discern which of the allegations in the supporting affidavit really
concerned them might have exasperated the appellants. It may even have
caused them some inconvenience. But Rule 30 does not address itself to
prejudice of that kind. The Rule is intended to prevent the sort of prejudice that
puts a party under some genuine handicap in the pursuit of their case – in
other words where there is “a hindrance to the future conducting of the
litigation” (See Louw NO at 333G–H). SAT’s omnibus notice of motion did not
present such a hindrance.
Appealability
13 Ms. Andrews, who appeared for SAT, argued that the order of the court below
is not appealable. We do not agree. The dismissal of an application to set
aside an irregular step, though strictly interlocutory in nature, must be
appealable in principle. This is because the irregular step may cause a party
real prejudice, and the dismissal of the application to set the irregular step
7
aside may render that prejudice incurable. It seems to us that such an order
would generally have final effect.
14 In this case, one of the issues between the parties was whether incurable
prejudice could be established. That required us to consider the merits of the
appeal. The Supreme Court of Appeal granted leave. We heard full argument
on the merits of the appeal. Those merits were inextricably linked with the
grounds upon which it was argued that the order of the court below was not
appealable. In these circumstances, though we have found neither irregularity
nor prejudice, it appears to us to be artificial to strike the appeal off the roll as
technically unappealable.
Costs
15 Finally, it was submitted that the punitive costs order granted in the court below
cannot stand. It is well-known that a costs order must stand on appeal unless
the appeal itself succeeds, or unless the costs order was vitiated by a
misdirection or was otherwise clearly wrong, in the sense that it was not an
order reasonably open to the court below on all the facts (see, for example,
Bidvest Bank Limited v Waste Partner Investments (Pty) Ltd [2024] ZAGPJHC
1137 (11 November 2024), paragraph 17). We have some reservations about
the criticism directed at the appellants in the court below. We do not think that
the appellants were under an obligation to engage with SAT’s counter-notices.
As Rule 30 makes clear, the appellants were entitled to proceed to apply to
set aside a step they regarded as irregular as soon as the cause of their
complaint had not been eliminated within the prescribed period.
9
19 It is noteworthy that the appellants are not involved in the divorce proceedings
between SAT and GJT (the first and second respondents). Returning to the
issue at stake, Wilson J asserts that this interlocutory application is
appealable; hence, we part company. While I accept that there may be
circumstances in which an interlocutory application is appealable, this one
before us is not for the following reasons.
20 First, the order of AJ Ludwig was not final by any stretch of the imagination.
The judgment focused mainly on whether the applicant’s application and
affidavit were irregular steps. The substratum of the appellants’ submissions
to the court a quo was that an incorrect short-form notice of motion under
Uniform Rule 6 (11) was used instead of the long-form under Uniform Rule
6(5).
21 Expanding on this point, the appellants argued that it was an irregular step to
combine, in one notice of motion, prayers to compel discovery of documents
from GJT and to compel compliance with subpoenas duces tecum issued to
the appellants. For completeness' sake, Uniform Rule 6 (11) needs to be
referenced:
“Notwithstanding the aforegoing subrules, interlocutory and other
applications incidental to pending proceedings may be brought on notice
supported by such affidavits as the case may require and sit down at the
time assigned by the registrar or as directed by a judge.”
22 On a proper reading of this rule, it covers not only interlocutory applications
but also other applications incidental to pending proceedings. It cannot be
gainsaid that the appellants’ application was interlocutory, if not incidental to
10
the proceedings. The fact that the application was a combo is, in all honesty,
of no moment. Moreover, all issues were going to be ventilated in the Uniform
Rule 30 application. Permitting an appeal on litigation over a combo is otiose.
23 Second, the court a quo neither ventilated nor ventured into the issues to be
discussed during the Rule 30 (1) hearing. This much is stated in paragraph 6
of the leave to appeal judgment. It reads:
“It is clear from my judgment in the s30(1) (sic) Application that I was not
called upon to, and did not, deal with the actual Application to Compel
which was the “main application” in this sub-set of litigation.”
24 Moreover, it is notable that the majority judgment made the following remarks:
“depending on circumstances, interlocutory proceedings involving such
external parties may require the use of a longform notice of motion, but
the question will always be whether the use of the shortform would be
prejudicial. Even if it would, we cannot foresee the circumstances under
which such prejudice could not be cured by the simple effluxion of time,
by a postponement or an order for course or by some other form of
common sense caught oversight.”
25 Without equating the absence of prejudice with the absence of appealability,
it is axiomatic that an appeal is embarked upon because a litigant cannot
obtain any further relief from that court. To find that the potential prejudice can
still be ameliorated by the very court that is seized with the matter militates
against appealability.
11
26 Addressing an exception, the court in TWK Agriculture Holdings (Pty) Ltd v
Hoogveld Boerderybeleggings (Pty) Ltd and Others held that:
“We are here concerned with a particular matter: the dismissal of two
grounds of exception that go to the heart of the plaintiffs’ cause of action.
Applying the doctrine of finality, as I have sought to explain, a long line
of authority in this Court has held that the dismissal of an exception is
not appealable because no legal obstacle stands in the way of the trial
court finally deciding the point of law. The dismissal of an exception is
simply not a final decision, and until the matter is finally decided , an
appeal should not lie to this Court to pre-empt what the high court has
yet to bring to finality.”
1
27 Furthermore, the court in TWK issued a warning to the high court and held:
“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.”
28 In this case, the court a quo dealt with what was far less than an exception.
Having examined a combo argument and dismissed the appellants’
1 Supra para 31
12
application, the court could hardly be said to have pronounced the last word
on the issues to be heard later under the Uniform Rule 30(1) application. The
principle of stare decisis is the pillar of our legal system. In my opinion, high
courts should be wary of delusions of grandeur and of readily departing from
stare decisis. This is a slippery slope to anarchy.
29 The dispute over the use of a long form versus a short form should not be a
reason to delay a matter or add costs to the litigants. Sometimes a robust
approach is necessary to have the matter heard. This divorce matter has been
delayed far too long due to the taking of unmeritorious points at great
emotional and financial expenses, often borne by the litigants, never by the
lawyers.
30 Finally, it cannot be said that the court a quo’s order was definitive of the
rights of the parties, nor does it dispose of any portion of the relief claimed in
the main proceedings. This matter is simply not appealable unless the
intention is to open the flood gates and crowd the appellate court with
unmeritorious applications.
31 When addressing appealability, it is common cause that the appellants do not
rely on the interest of justice as outlined in the matter of United Democratic
Movement and Another v Lebashe Investment Group (Pty) Ltd and Others
2.
Their entire case rests on the Zweni3 test.
2 2022 ZACC 34; 2023 (1) SA 353 (CC) (22 September 2022).
3 Zweni v Minister of Law and Order 1993 (1) SA 523 (A).
14
For the Appellants: L Hollander
(Heads of argument drawn by H Epstein SC and K
Naidoo)
Instructed by Douglas Smart Attorneys
For the First Respondent: R Andrews
Instructed by Nowitz Attorneys