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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(MPUMALANGA DIVISION, MBOMBELA)

 

CASE NO: 4340/2021

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: YES

(3) REVISED: YES

SIGNATURE

DATE: 25/05/2023

 

In the matter between:

 

SAVE THE MAIZE BELT SOCIETY                                                      Applicant

 

and

 

MEC FOR AGRICULTURE, RURAL DEVELOPMENT,

LAND AND ENVIRONMENTAL AFFAIRS:

MPUMALANGA PROVINCE                                                                First Respondent

 

CHIEF DIRECTOR: INTEGRATED ENVIRONMENTAL

AUTHORISATION DEPARTMENT OF ENVIRONMENTAL

AFFAIRS                                                                                               Second Respondent

 

THE DIRECTOR: APPEALS AND LEGAL REVIEW

DEPARTMENT OF ENVIRONMENTAL AFAIRS                                 Third Respondent

 

DIALSTAT TRADING 115 (PTY) LTD                                                  Fourth Respondent

 

JUDGMENT

 

MASHILE J:

 

[1]        On 10 March 2023, this Court granted relief to the Applicant in the following terms:

 

            “1.        It is declared that ZO Attorneys and Mahlangu have failed to satisfy the Court that they are properly authorised to act on behalf of the Society, in accordance with Rule 7(1);

 

            2.         ZO Attorneys and Mahlangu are prohibited from acting in the main application until they satisfy the Court, in accordance with Rule 7(1), that they are properly authorised to act on behalf of the Society;

 

            3.         ZO Attorneys and Mahlangu are directed to furnish proof of their authority within 10 days of date hereof, failing which the Application will be dismissed;

 

            4.         The Society is liable to Dialstat for the costs of this application.”

 

[2]        The Applicant now appeals against the judgment and order of this Court. The order is the product of an interlocutory application. The first question that arises, and one that both parties have addressed concerns appealability of the order. Accordingly, while there may be grounds on which the order is challenged, I deem it prudent to focus attention on appealability as it can be dispositive of the whole matter depending on the outcome of course.

 

[3]        An order will be susceptible to appeal if it bears the following three attributes:

 

            3.1       The decision must be final in effect and not susceptible of alteration by the                        Court of first instance;

           

            3.2       It must be definitive of the rights of the parties; and

 

            3.3       It must have the effect of disposing of at least a substantial portion of the                           relief claimed in the main proceedings.

 

            See, Zweni v Minister of Law and Order[1]. 

 

[4]        In the matter of DRD GOLD Limited and Another v Nkala and Others[2], it was held that an appealable order would be one that exhibits all the three requirements as described in the Zweni decision referred to above. Conversely, an order that does not bear all the three attributes mentioned in Zweni, would generally not be an appealable decision. That said, if the effect of the order is definitive and final on the proceedings or if it is in the interests of justice, it will be regarded as appealable.

 

[5]        The Applicant has contended that the order of the Court a quo contains all the three attributes of the Zweni decision, consequently it is appealable. In justification of its approach, it pointed out that the Court could not have granted the first order that reads: “It is declared that ZO Attorneys and Mahlangu have failed to satisfy the Court that they are properly authorised to act on behalf of the Society, in accordance with Rule 7(1);” if the Court did not decide that the Society was not a universitas personarum. The finding of the Court that the Society is not a universitas personarum is as such, final in effect and not susceptible of alteration by the Court of first instance.

 

[6]        This Court reiterates that the response of the Society to Dialstat’s challenge made no reference to the provisions of its Constitution instead, the Society filed a power of attorney and a resolution, which were of course irrelevant to the issue whether the Society could have given them authority to act if it was not a universitas personarum. Anyway, the interpretation assigned to the first order by the Society is only possible if one reads the orders in isolation of each other. Order 1 can still be altered by this Court provided it is satisfied that the Society is a universitas personarum.

 

[7]        A proper approach would be to read all the orders, from 1 to 3 and then to determine whether or not, read in their entirety, they are final in effect. At the time when the application was heard, the information before Court was insufficient to regard the Society as a universitas personarum. In consequence, the Court directed that: “ZO Attorneys and Mahlangu are prohibited from acting in the main application until they satisfy the Court, in accordance with Rule 7(1), that they are properly authorised to act on behalf of the Society;”. The door has therefore not been closed as they can still present evidence showing that despite the Court’s dissatisfaction, the contrary holds.

 

[8]        Order 3 simply lays down the period within which ZO Attorneys and Mahlangu are to furnish proof of their authority and that is the 10-day period. If they fail to do so within that prescribed period, the main application will be dismissed. I fail to appreciate how the order can be regarded as final in effect, definitive of the parties rights and its effect dispositive of at least a substantial portion of the relief claimed in the main proceedings.

 

[9]        It was also not argued that it would be in the best interest of justice that the matter be regarded as appealable. In fact, it cannot be in the interest of justice that this matter be dragged out in this manner when the simplest way of resolving it could have been to annexed the constitution of the Society to the papers of the Rule 7.1 application. The interest of justice in this matter dictates that the Society should have advised much earlier in the exchange of litigation between the parties that it was relying on its Constitution for the claim that it is a univesitas personarum. This appeal, if granted, can only serve to unreasonably increase the costs of this litigation.

 

[10]      The Applicant has also argued that the finding of the Court a quo that Section 38 of the Constitution is not applicable is also final and definitive. The finding of the Court in respect of Section 38 of the Constitution is that it is not relevant to this case. It might be that the Society as an unincorporated association has interest in the bringing of the proceedings in the sense envisaged in Section 38 of the Constitution. However, that issue is separate and distinct from one where the Society claims to be a universitas personarum and conducting proceedings as such. The Society was challenged to demonstrate exactly that it is what it claimed to be and not that it had locus standi nonetheless. From this perspective, I am struggling to appreciate the relevance of the argument raised here by the Society.

 

[11]      In the result, leave to appeal is refused on the ground that the order is not appealable. The following order is made:

 

The application for leave to appeal is dismissed with costs.

 

B A MASHILE

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA

 

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 25 May 2023 at 10:00.

 

APPEARANCES:

Counsel for the Applicant:	Adv T Strydom SC
	Adv G Egan
Instructed by:	Zehir Omar Attorneys
Counsel for the Respondent:	Adv M Wesley SC
Instructed by:	Norton Rose Fulbright South Africa Inc
Date of Judgment:	25 May 2023

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