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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 2794/2020

Date heard: 12 April 2021

Date delivered: 20 April 2021

In the matter between:

THE CRADOCK BUSINESS FORUM First Applicant

THE MIDDELBURG RATEPAYERS Second Applicant

THE CRADOCK RATEPAYERS ASSOCIATION Third Applicant

and

THE INXUBA YETHEMBA LOCAL MUNICIPALITY First Respondent

THE EXECUTIVE MAYOR OF THE INXUBA YETHEMBA

LOCAL MUNICIPALITY Second Respondent

THE MUNICIPALITY MANAGER OF THE INXUBA

YETHEMBA LOCAL MUNICIPALITY Third Respondent

ESKOM HOLDINGS SOC LIMITED Fourth Respondent

JUDGMENT

APPLICATION FOR LEAVE TO APPEAL

LOWE, J

INTRODUCTION

[1]           In this matter I heard extensive argument from the parties in an application to strike out on 11 March 2021, delivering my written judgment and order on 18 March 2021, as the matter had some urgency.

[2]           I dismissed the striking out application with costs.

[3]           First and Third Respondents seek leave to appeal against my order.

[4]           Having heard argument, on the application for leave, I reserved my judgment.

THE ESSENCE

[5]           My judgment sets out the background to this matter, in detail, and the reasons for dismissing the application.

[6]           In essence First and Third Respondents argue:

[6.1]     That I erred in my approach to the interpretation of the order of Bloem J as a matter of law;

[6.2]     That I erred in concluding that the impugned paragraphs in Applicants’ reply did not constitute new material;

[6.3]     That I erred in any event in finding that in the context of the structural interdict issued by Bloem J the impugned material was properly before the Court, legitimately dealt with in reply having regard to my overriding discretion to admit new material, were it to be so.

[6.4]     That I overlooked paragraphs 8.12 to 8.15 of the reply.

IS THIS MATTER APPEALABLE

[7]           In short interlocutory applications are seldom appealable unless it is in the interests of justice to do so, or the order is final in effect[1].

[8]           The interests of justice standard requires a Court, in considering the appealability of the order, to weigh all germane circumstances, including but not limited to whether that order has final effect[2].

[9]           The approach is a flexible one and also has regard to whether an appeal against an interlocutory issue will lead to a more expeditious and cost effective final determination of the main dispute[3].

[10]        In my view this matter is clearly one which on the facts and legal position is of the kind, even though interlocutory, as to be appealable at this stage.

[11]        It is so that were paragraphs 8.1 to 8.15 of the reply to be struck out, this would substantially affect the further conduct of the matter and limit Applicants’ remaining arguments (relevant to the order sought) this seen against the relief sought in the Notice of Motion and the background to the matter. 

[12]        It would, in my view, be in the interests of justice that the matter be found to be appealable but also probably a cost effective and expeditious way in which to proceed.

THE TEST ON WHETHER LEAVE TO APPEAL SHOULD BE GRANTED

[13]        I have given careful consideration to the principles, which are applied by our courts in respect of applications for leave to appeal and particularly in terms of Section 17(1) of the Superior Courts Act 10 of 2013 and the slightly changed onus or level that has to be applied thereto as has been suggested in a number of cases particularly in the Labour Court[4]. 

[14]        I wish to make it clear however that I have applied the present test hereto and that is whether there is a reasonable prospect that another court would come to a different conclusion than did I.

[15]        I have also had careful regard to the decision in the Supreme Court of Appeal, Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and Others[5], a judgment given on the 15 March 2016 in which Wallis JA dealt with an application for leave to appeal, commenting on appeals in which there is a particularly important matter to be decided that is a matter of public importance. At paragraph [23] he outlined the basis underlying what he said in paragraph [24], which I intend to quote selectively, and it was against this background that it was suggested that in that matter jurisprudence should have been considered as a guide to whether, notwithstanding the High Court’s view in that matter as to the prospects of success, leave to appeal should have been granted, having regard to the importance of the matter to various parties and the public.

[16]        His Lordship said as follows at paragraph [24]:

“That is not to say that merely because the High Court determines an issue of public importance it must grant leave to appeal.  The merits of the appeal remain vitally important and will often be decisive.”

THE ARGUMENTS

[17]        These can shortly be dealt with in the sequence summarised above in paragraph [6].

[18]        As to the interpretation of the order of Bloem J I set out the legal approach to be adopted with the relevant authorities.  This approach has since been endorsed in Member of the Executive Council for Health, Gauteng Provincial Government v PN [6] where Moshidi J’s order was interpreted as follows:

“[22]      This Court has accepted the following test for the interpretation of court orders:

‘The starting point is to determine the manifest purpose of the order.  In interpreting a judgment or order, the court’s intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well-known rules relating to the interpretation of documents.  As in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention.’”

[19]        There is thus no prospect of success in this regard in my view.

[20]        As to whether the reply constituted new matter I concluded the contrary.

[21]        It is here, that it must be accepted, that the purpose of the application was to declare First Respondent and the Acting Municipal Manager in contempt of Court for failure to file the required report as per paragraph 5 of the order of Bloem J.  The report was then filed and the suggested change of stance by Applicants occurred[7].

[22]        Having concluded that in context this was not new such as to be of the character required and that in any event was justifiably placed before the Court in respect of the structural interdict, I dismissed the striking out application.

[23]        It is only in this regard that I consider that there is a reasonable prospect that another Court, upon careful consideration, would reach a decision contrary to mine.  It may be that another Court reach the view that in the context of the application, criticism of the report filed ex post facto indeed contributed new matter with the possible result that this be struck out notwithstanding the Court’s general discretion to admit new material if in the interests of justice to do so[8].

[24]        As to my order at paragraph 1, having referred in conclusion to replying paragraphs 8.1 to 8.11, omitting reference to paragraphs 8.12 to 8.15, it will be seen in my paragraph 5 that I fully appreciated the ambit of the application.

[25]        In my view, my judgment and reasoning clearly considered all the issues relevant and my oversight in the order itself is potentially susceptible to having been dealt with in terms of Rule 42(1)(b). 

[26]        However Rule 42(2) requires an application to be made accordingly in this respect which has not been done, and the issue is thus not properly before me.

[27]        In any event, as I propose to grant leave to appeal the Appeal Court will no doubt attend hereto insofar as is necessary.

ORDER

1.         Leave to Appeal is granted against the whole of my judgment and order.

2.         The Appeal is to the Full Bench of the High Court, Eastern Cape Division. 

3.         The costs of this Application are to be costs in the Appeal.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

Appearances:

Obo the Applicant (First and Third Respondents in main Application):      

Adv W H Olivier

Instructed by:                         

Yokwana Attorneys, Grahamstown

Obo the Respondent (Applicant in main Application):                     

Adv D H de la Harpe (SC)

Instructed by:                         

McCallum Attorneys, Grahamstown

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