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[2013] ZAWCHC 145
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Questek Transit Technologies (Pty) Ltd v Lumen Technologies CC (9331/13) [2013] ZAWCHC 145 (17 September 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case
No
9331
/13
In the matter between:
QUESTEK TRANSIT
TECHNOLOGIES
(PTY) LIMITED
...........................................................
.
Applicant
(Respondent)
and
LUMEN TECHNOLOGIES CC
..................................
Respondent
(Appellant)
____________________________________________________________________
JUDGMENT – LEAVE TO
APPEAL
DELIVERED 17 September 2013
____________________________________________________________________
Griesel J:
On
16 September 2013, having heard oral argument, I granted the order
appearing at the end of this judgment. I indicated at the
time that
written reasons for my order would be furnished in due course, which
I hereby do.
After
my order in the main application, handed down on 2 September 2013,
the first respondent delivered an application for leave
to appeal,
on a wide variety of grounds, against ‘the entirety of the
judgment’. (For convenience, I continue
to refer to the
parties as they were in the main application.)
In
response, the applicant delivered a composite document, styled
‘Notice of opposition to application for leave to appeal;
Notice of application for declarator; Notice in terms of rule
49(11)’, together with a supporting affidavit. The applicant
sought a declarator to the effect that the order granted by me was
not appealable. It also sought an order in terms of rule 49(11),
to
the effect that the operation of my orders should not be suspended
pending any appeal or petition for leave to appeal.
The
applicant put up a strong argument in favour of its stance that the
order of 2 September 2013 is not appealable. While I took
the view,
in paras 12–14 of the main judgment, that the application
before me was one for interim, and not final, relief,
I have been
persuaded – at least insofar as para (c) of the order is
concerned – that it falls into a different category.
In this
regard, I have been guided especially by the recent judgment of the
Constitutional Court in
National Treasury & others v
Opposition to Urban Tolling Alliance & others
,
1
where Moseneke DCJ, writing for the majority, said:
‘
[24]
It is so that courts are rightly reluctant to hear appeals against
interim orders that have no final effect and that in any
event are
susceptible to reconsideration by a court when the final relief is
determined. That, however, is not an inflexible rule.
In each case,
what best serves the interests of justice dictates whether an appeal
against an interim order should be entertained.
That accords well
with developments in case law dealing with when an appeal against an
interim order may be permitted.
[25] This court has
granted leave to appeal in relation to interim orders before. It has
made it clear that the operative standard
is “the interests of
justice”. To that end, it must have regard to and weigh
carefully all germane circumstances. Whether
an interim order has a
final effect or disposes of a substantial portion of the relief
sought in a pending review is a relevant
and important consideration.
Yet, it is not the only or always decisive consideration. It is just
as important to assess whether
the temporary restraining order has an
immediate and substantial effect, including whether the harm that
flows from it is serious,
immediate, ongoing and irreparable.’
Ms
Chilwan, in her affidavit filed in opposition to the application in
terms of rule 49(11), has given cogent examples of the
likely effect
of that part of the order on the further performance of the contract
in question. I am persuaded that the potential
harm that may flow
from the order could be described as ‘
serious,
immediate, ongoing and irreparable’. In my view, this is
accordingly a case where it
would be in the
interests of justice to grant leave to appeal against that part of
the order.
As
rightly observed by the respondent, the relief granted in para (c)
of the order was not the relief initially claimed and motivated
by
the applicant in its founding affidavit. I am accordingly of the
view that there is a reasonable prospect that another court
may come
to a different conclusion as far as such relief is concerned.
As
for paras (a) and (b) of the order, I remain firmly of the view that
they are clearly of an interim nature. Moreover, even
if they were
appealable, I am satisfied, for the reasons given in the main
judgment, that there is no reasonable prospect that
another court
may come to a different conclusion in that regard.
With
regard to the applicant’s application in terms of rule 49(11),
I am of the view that such relief is justified with
regard to paras
(a) and (b) of the order. First, the money in question forms part of
two payment certificates, 92% of which accrued
to the applicant. On
the respondent’s own version, its representatives regard
themselves as being entitled to do with such
money as they see fit,
which attitude will no doubt continue unless they were restrained by
an order of this court. In the circumstances,
the order granted
by me would be stultified in the event of an appeal unless it were
to be ordered in terms of rule 49(11) that
the original order not be
suspended by such appeal or petition for leave to appeal.
It
follows from the foregoing that both parties have been partially
successful with regard to the relief claimed herein. In these
circumstances, I regarded it as fair to order each party to pay
its own costs.
Order
For
these reasons, the following order was issued:
(a)
Leave to appeal to the Full Bench of this Court against paragraph
(c) of the Order dated 2 September 2013 is granted.
(b) Save as aforesaid, the
application for leave to appeal is dismissed.
(c)
It is ordered in terms of Uniform Rule 49(11) that the operation and
execution of paragraphs (a) and (b) of the said Order shall
not be
suspended pending any further appeal or petition for leave to appeal.
(d)
Each party is ordered to pay its own costs in relation to the
application for leave to appeal and the application in terms of
Rule
49(11).
B M Griesel
Judge of
the High Court
1
2012
(6) SA 223
(CC) (footnotes omitted).