Nangolo and Others v Kharas Regional Council and Another (SA 134/2024) [2024] NASC 40 (19 December 2024)

REPORTABLE

CASE NO: SA 134/2024

IN THE SUPREME COURT OF NAMIBIA

In Re:

LAZARUS ANGULA NANGOLO	First Applicant
SUZAN NDJALEKA	Second Applicant
TAIMI NAMWENYO AMAKALI	Third Applicant
SWAPO PARTY	Fourth Applicant
and
//KHARAS REGIONAL COUNCIL	First Respondent
LANDLESS PEOPLE’S MOVEMENT (LPM)	Second Respondent
In the appeal of:
//KHARAS REGIONAL COUNCIL	First Appellant
LANDLESS PEOPLE’S MOVEMENT (LPM)	Second Appellant
and
LAZARUS ANGULA NANGOLO	First Respondent
SUZAN NDJALEKA	Second Respondent
TAIMI NAMWENYO AMAKALI	Third Respondent
SWAPO PARTY	Fourth Respondent
//KHARAS REGIONAL COUNCIL	Fifth Respondent
CHAIRPERSON: //KHARAS REGIONAL COUNCIL	Sixth Respondent
JOSEPH ISAACKS	Seventh Respondent

Coram: SMUTS JA

Heard: IN CHAMBERS

Delivered: 19 December 2024

Summary: This is an application to invoke s 14(7) of the Supreme Court Act 15 of 1990 read with rule 6 of the Rules of the Supreme Court for the summary dismissal of the appellants’ appeal on the grounds that it is frivolous and vexatious and has no prospects of success. The applicants further asserted that an interim interdict would require leave to appeal and also questioned whether the order itself is appealable. The brief facts of this case are as follows: Three of the four applicants are duly elected regional councillors of the //Kharas Region Council (the Council) and are members of the fourth applicant, a registered political party. The Council (first appellant) resolved to terminate their membership of the Council on 25 January 2024. The applicants launched an urgent application to review that termination and for ancillary relief on 2 February 2024. That application simultaneously also sought urgent interim relief pending the outcome of those review proceedings. The urgent component of the application for interim relief was set down for hearing on 9 February 2024. It was opposed by the Council, its Chairperson, the Acting Chief Regional Officer and the political party holding a majority in the Council at whose instance the decision was taken (the second appellant). A settlement agreement (providing interim relief) was reached shortly before the hearing of the urgent application in the court a quo. The interim agreement made an order of court provided that, pending the determination of the main application, the opposing respondents to that application would not implement their termination resolution and the first to third applicants would continue to serve in their positions as councillors with the related benefits. On 29 July 2024, the appellants stopped the remuneration of the first three applicants. This resulted in the applicants bringing a further urgent application on 16 August 2024, which was heard by Sibeya J. On 6 September 2024, the court a quo delivered a judgment in respect of the further urgent application which is sought to be appealed against and is the subject of this summary dismissal application.

This Court must determine whether the order is appealable and, if so, is leave to appeal required?

Held that, to determine whether an order is appealable or not, this Court has consistently followed the test stated in Zweni v Minister of Law and Order 1993 (1) SA 523 (A): Firstly, the decision must be final in effect and not subject to alteration by the court of first instance. Secondly, it must be definitive of the rights of the parties and thirdly, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.

Held that, whether an order is appealable, regard is to be had to both the form of the order and more predominantly, its effect. The issues raised before the court below are to be examined and the manner in which Sibeya J dealt with them in order to determine what was intended by the order.

Held that, the court a quo correctly referred to the order of 9 February 2024 as restraining the respondents from executing the decision of the Council of 25 January 2024 (ie to terminate the first to third applicants’ membership of the Council) pending the review of that decision. That order was to be obeyed and was to be given effect to until and unless altered or set aside by that court. Instead the appellants acted in conflict with that order and subsequently proceeded to implement the 25 January 2024 resolution, despite being restrained from doing so by the order of 9 February 2024. The court a quo correctly found that the main application to determine the main relief relating to the legality or otherwise of the resolution of 25 January 2024 was pending, which thus makes the appellants’ actions contrary to the order of 9 February 2024 and that the applicants required the protection provided for them in the order of 9 February 2024 – to maintain the pre-25 January 2024 status quo – pending the finalisation of the main application.

Held that, the order sought to be appealed against is not final and definite in respect of the review of resolution of 25 January 2024 but merely again restrains its implementation pending the finalisation of the main review application. Nor does it dispose of a substantial portion of the relief claimed in the main application and is accordingly not appealable. It merely preserves the status quo pending the decision on the merits of the 25 January 2024 termination in the main application.

Held that, the appellants filed a notice of appeal against an order which is not only not appealable but, interlocutory, which would in any event also have required leave to appeal, would indicate that the appellants’ conduct in noting an appeal appears to amount to an abuse of process and a stratagem directed at frustrating the execution of the interim order.

Given the conclusion reached that the order is not appealable and does not constitute an appeal, it cannot have the effect of staying the execution of the interim order which must forthwith be obeyed by the appellants.

The application is declined.

JUDGMENT IN TERMS OF S 14(7)(a) OF ACT 15 OF 1990

SMUTS JA:

1. The applicants in this application are four of the respondents in an appeal noted to this Court by the appellants against the judgment and order granted by Sibeya J in the High Court on 6 September 2024. They seek to invoke s 14(7) of the Supreme Court Act 15 of 1990 (the Act), read with rule 6 of the Rules of this Court in bringing this application to seek the summary dismissal of the appellants’ appeal on the grounds that it is frivolous and vexatious or has no prospects of success. The applicants also seek costs of this application. (For the sake of convenience and clarity, the parties are referred to as the applicants and the appellants respectively).

2. Section 14(7) of the Act provides:

‘(a) Where in any civil proceedings no leave to appeal to the Supreme Court is required in terms of any law, the Chief Justice or any other judge designated for that purpose by the Chief Justice –

1. may, in his or her discretion, summarily dismiss the appeal on the grounds that it is frivolous or vexatious or otherwise has no prospects of success; or

2. shall, if the appeal is not so dismissed, direct that the appeal be proceeded with in accordance with the procedures prescribed by the rules of court.

(b) Where an order has been made dismissing the appeal on any of the grounds referred to in subparagraph (i) of paragraph (a) of this subsection, such order shall be deemed to be an order of the Supreme Court setting aside the appeal.

(c) Any decision or direction of the Chief Justice or such other judge in terms of paragraph (a) of this subsection, shall be communicated to the parties concerned by the registrar.’

3. The procedure for bringing applications under s 14(7) is set out in rule 6 of the Rules of this Court.

4. The applicants served their notice of motion and founding affidavit on 22 October 2024 upon the appellants. This application is opposed by the appellants. They filed an answering affidavit to this application on 8 November 2024. The applicants thereafter filed a replying affidavit.

5. Having been designated to determine the application under s 14(7) of the Act, I do so under rule 6(4)(a) in chambers on the papers filed of record by the parties as the issues raised in this application are fully ventilated in the papers which contain extensive argument on those issues, including reference to authorities.

Litigation history

6. It is not necessary for the purpose of this judgment to provide a detailed resume of the litigation history which precedes this application. A brief outline will suffice which is necessary in order to discern the meaning, intent and effect of the order sought to be appealed against.

7. Three of the four applicants are duly elected regional councillors of the //Kharas Regional Council (the Council) and are members of the fourth applicant, a registered political party. The Council (first appellant) resolved to terminate their membership of the Council on 25 January 2024. The applicants launched an urgent application to review that termination and for ancillary relief on 2 February 2024. That application simultaneously also sought urgent interim relief pending the outcome of those review proceedings. The urgent component of the application for interim relief was set down for hearing on 9 February 2024. It was opposed by the Council, its Chairperson, the Acting Chief Regional Officer and the political party holding a majority in the Council at whose instance the decision was taken (the second appellant).

8. Shortly before the hearing of the urgent application, the protagonists reached a settlement agreement dealing with the interim relief sought. That settlement agreement was by agreement made an order of court by the managing judge, Sibeya J on 9 February 2024. The terms of that settlement were as follows:

‘1. The first and second respondents will not implement their decision taken at its special meeting held on 25 January 2024. Therefore the first, second and third applicants (Councillors) will continue in their positions as before 25 January 2024 and will carry out their duties in accordance with the Regional Council’s Act including attending relevant meetings.

2. Equally, the applicants will continue receiving all their remunerations and benefits as if no decision to stop same was made.

3. The parties agree that the matter should be removed from the urgent roll and should proceed in the ordinary course and propose the following regarding the further conduct of the matter:

3.1 The respondent file their answering papers on or before 1 March 2024.

3.2 The applicants file their replying papers on or before 19 March 2024.

3.3 The matter be allocated to a managing judge and referred to a case management conference.

4. The parties agree that the issues raised in the application remain urgent and that the application on the merits should be heard on an expedited basis.

5. The costs of the urgent application shall be determined in the main cause.’

9. As is apparent from the clear terms of this agreement, the main review and related relief in the application (the main application) would then proceed in accordance with the timelines set out in para 3. The interim agreement thus made an order of court provided that, pending the determination of the main application, the opposing respondents to that application would not implement their termination resolution and the first to third applicants would continue to serve in their positions as councillors with the related benefits. Those were the interests to be served and preserved by the interim relief. Although not expressly stated, it is clear from the wording and context of the agreement and resultant order of the court that it would operate pending the determination of the main application (HC-MD-CIV-MOT-GEN-2024/00036).

10. It is common cause that this arrangement operated for a period of some six months.

11. In the founding affidavit to this s 14(7) application, the applicants’ statement that this ‘order came about after the appellants suggested a settlement agreement pending the finalisation of the review application’ is rightly not put in issue by the appellants. The appellants however curiously deny that they ‘are estopped from implementing the decision of 25 January 2024’, notwithstanding the terms of the court order of 9 February 2024 to the contrary.

12. The appellants however on 29 July 2024 stopped the remuneration of the first three applicants who have not received their remuneration since. This resulted in them bringing a further urgent application, heard by Sibeya J on 16 August 2024. On 6 September 2024 he delivered his judgment in respect of the further application which is sought to be appealed against.

The further urgent application

13. In the further urgent application the following relief was sought:

‘1. Condoning the Applicant’s non-compliance with the prescribed time periods and forms of service , including the use of e-mail to serve the respondents, and that the matter be enrolled and heard as one of urgency in terms of Rule 73(3) of the Rules of this Court.

2. That a rule nisi be issued calling upon the respondents to show cause on Friday, 13 September 2024 at 10h00 or on such other date and time as the respondents may anticipate and on such other time the court or managing judge may determine as to why the following orders cannot be made:

2.1. Declaring that the second and third respondents’ decision, alternatively the first respondent’s decision, to implement the resolution and decision of the //Kharas Regional Council dated 25 January 2024, as unlawful and invalid.

2.2 Declaring the decision by the second and third respondents, alternatively the first respondent, to terminate the council membership of the first, second and third applicants and to stop their remuneration as unlawful and in contempt of the court order dated 9 February 2024, in particular paragraphs 1.1 and 1.2 thereof.

2.3 Declaring that the second respondent, Mr Joseph Isaacks, is guilty of contempt of the court order dated 9 February 2024, and sentence him to such punishment as the court may deem necessary and appropriate.

2.4 Reviewing, correcting and setting aside any decision taken by the second and third respondents, alternatively the first respondent, after 9 February 2024 to 2 August 2024 in terms whereof the resolution of 25 January 2024 pertaining to the first three applicants is directed to be implemented.

2.5 Setting aside the removal from the first respondent and termination of the first, second and third applicants’ membership from the first respondent as unlawful and reinstating the first, second and third applicants as members of the first respondent as if they were not removed, and reinstating all their benefits.

2.6 Pending the return date, the first to fourth respondents and other respondents in support of the decisions made after 9 February 2024 to remove the three applicants and stop their remuneration are hereby restrained and interdicted from implementing the decision communicated by the second and third respondents on 30 July 2024 and 2 August 2024; and directing the first to fourth respondents to allow the first to third applicants to carry out their duties, and directing the first respondent to pay the remuneration of the first to third applicants, including the unpaid remuneration of 30 July 2024.

2.7 Ordering that the order under paragraph 2.6 above serves as an interim interdict with immediate effect pending the return date and finalisation of this application and the pending application.

2.8 Ordering that the second and third respondents, alternatively the first respondent, pay the applicants’ costs on a scale of attorney and own client jointly and severally, the one paying the other to be absolved, which costs include the costs of three legal practitioners.’

14. It would appear that urgent interim relief was unusually sought pending the determination of this further urgent application. Prior to the hearing, the appellants filed a full answering affidavit dealing with the allegations contained in the founding papers. Despite the convoluted manner in which the relief was sought, Sibeya J rightly decided to determine the application without the need for a rule nisi as sought in the notice of motion pending the determination of the urgent relief sought. He explained this in para 25 of his judgment in these terms:

‘It should be stated that although the applicants and Swapo sought a rule nisi pending a return date in this matter, the respondents filed answering papers and fully opposed the application. The application was, therefore extensively ventilated. I therefore, hold the view that it will constitute a waste of costs, time and resources to approach this matter on the basis of the rule nisi sought, thus, the court will determine whether or not the applicant managed to establish that it is entitled to a final interdict.’

15. The choice of the term ‘final interdict’ at the end of this paragraph is unfortunate and indeed incorrect but is to be understood within the context of the judgment read as a whole and the application itself and what was sought, determined and ordered. It is plain from the terms of the order given, read in context of the judgment and what was sought (as expressed in para 2.7 of the notice of motion), that an interim order was sought both pending the adjudication of the urgent application for urgent relief and the finalisation of the main application. That is also how the appellants themselves understood the further urgent application. A final interdict was not sought and not in effect granted.

16. The Chairperson of the Council and deponent to the appellants’ answering affidavit in this s 14(7) application said unequivocally in his answering affidavit to the further urgent application:

‘The applicants, on an urgent basis seek an interdict pendente lite pending the finalisation of the applicants’ application filed under case number: HC-MD-CIV-MOT-GEN-2024/00036 (“the pending application”).’

And further:

‘The applicants seek to interdict and restrain the first respondent from implementing the compliance and enforcement of the provisions of section 10 of the Regional Councils Act, 1992 (Act No. 22 of 1992) (“the Act”) pending the finalisation of the application pending under case number HC-MD-CIV-MOT-GEN-2024/00036.’

17. Whilst this would appear to be self-evident from the papers, I refer to this aspect in view of the contrary position adopted by the appellants in opposition to this application, by latching onto some incorrect reasoning contained in the judgment which does not change the clear terms of the order granted or its effect.

18. On 6 September 2024 Sibeya J delivered an extensive judgment spanning some 30 pages and concluded by making the following order:

‘[88] In the result, I order that:

1. The applicants’ non-compliance with the Rules of this Court pertaining to time periods for service of the application, including the use of e-mail to serve the respondents, giving notice to parties and exchange of pleadings is condoned and that the matter is heard as one of urgency.

2. Pending the finalisation of the application under case number HC-MD-CIV-MOT-GEN-2024/00036:

1. The first, second and third respondents are interdicted from implementing the decision of Council of 25 January 2024 to terminate the Council membership of the first, second and third applicants and to stop their remuneration.

2. The first, second and third respondents are interdicted from implementing their decisions taken after 9 February 2024 to 2 August 2024 in terms whereof the resolution of 25 January 2024 pertaining to the first, second and third applicants is directed to be implemented.

3. The respondent’s decision to remove the first, second and third applicants from the Council by terminating their membership in implementing the resolution of 25 January 2024, is suspended and the first, second and third applicants are reinstated as members of the first respondent as if they were not removed, and their remuneration and benefits are also reinstated.

4. The first to fourth respondents and other respondents in support of the decisions made after 9 February 2024 to remove the three applicants and stop their remuneration are hereby restrained and interdicted from implementing the decision communicated by the second and third respondents on 30 July 2024 and 2 August 2024; and the first to fourth respondents are directed to allow the first to third applicants to carry out their duties as Councillors, and to pay the remuneration of the first to third applicants, including the unpaid remuneration of 30 July 2024.

3. The order under paragraph 2.4 above serves as an interdict with immediate effect pending finalisation of the main application under case number HC-MD-CIV-MOT-GEN-2024/00036.

4. The first and second respondents must, jointly and severally, the one paying the other to be absolved, pay the applicants and the Swapo Party’s costs on a party-party scale, limited to the costs of one legal practitioner.’

19. Following the order, the applicants’ legal practitioner demanded compliance with this order on 13 September 2024 after his clients had not received their remuneration following the order. That demand did not elicit a response. At a judicial case management (JCM) hearing shortly afterwards in the main application, the appellants’ non-compliance with yet another court order was raised. The appellants’ practitioner at that proceeding suggested that an application for leave to appeal or noting an appeal would proceed.

20. The appellants thereafter noted an appeal and did not apply for leave to appeal, despite the appellants’ practitioner’s contention at the JCM hearing that the order was of an interim interlocutory nature.

This s 14(7) application

21. The applicants thereafter brought this application seeking the summary dismissal of the appellants’ appeal on the grounds that it is frivolous and vexatious and has no prospects of success.

22. In the application, the applicants assert that an interim interdict would require leave to appeal and also questioned whether the order itself is appealable at all.

23. The applicants contend that the appeal is frivolous and vexatious and has no prospects of success for other reasons as well and that it amounts to a further attempt to frustrate the administration of justice by persisting with a failure to comply with the earlier court order (of 9 February 2024). Several other issues are raised in this application and also in answer to it which do not need to be addressed in view of the first issue of appealability of the order and whether leave to appeal is required.

24. The appellants on the other hand deny that the order is of an interim nature, contending in the answering affidavit:

‘[17] The order of Justice Sibeya is not interim as contended for by the applicant. This application was not brought as an interim application (or ancillary to any proceedings and especially not to the proceedings under case HC-MD-CIV-MOT-GEN-2024/00036).

And

‘[18] The parties under case number HC-MD-CIV-MOT-GEN-2024/00036 and the HC-MD-CIV-MOT-GEN-2024/000373 are not the same. Two additional parties, who are the Attorney-General and myself in my personal capacity are cited in the latter case.’

25. The appellants also latch onto reasoning utilised in para 25 of Sibeya J’s judgment in support of their contention that the order is not of an interim nature. This paragraph is set out in para 14 above.

26. After quoting this paragraph they contend:

‘I submit that after scrutiny of the judgment and after consultation with counsel, the appellants legal practitioners concluded that the judgment was final in nature and that the appellants may appeal as of right. Consequently, it was not necessary for the appellants to seek leave from the court a quo.’

Is the order appealable and, if so, is leave to appeal required?

27. The question arises as to whether the court’s order sought to be appealed against is appealable and if so, if it is interlocutory. In the latter event, leave to appeal would have been required. In that event, s 14(7) would not find application and the application would be declined for that reason.¹

28. As was held in Wilmington:

‘[15] Section 14(7)(a) expressly precludes such applications where leave to appeal to the Supreme Court is required. The legislative purpose behind this is self-evident. Where leave has been granted, a High Court has found that another court could come to a different conclusion and that there thus would be some prospects of success in the appeal. By reason of that sifting process and consequent finding by the High Court, such matters are excluded from the operation s 14(7) as the prospects of an abuse of process are vastly reduced thereby in keeping with the overriding purpose of s 14(7).

[16] The purpose of s 14(7) after all is to prevent an abuse of process, as stated thus in Gaya:²

“[31] The purpose of applications under s 14(7)(a) is to prevent an abuse of this Court’s process. To this end, s 14(7)(a) envisages applications for summary dismissal on the very confined grounds referred to in order to avoid the abuse of this Court’s process. The confined question to be determined in such applications is whether an appeal is frivolous or vexatious or without merit. It does not entail or amount to the hearing of an appeal. If the appeal does not amount to an abuse then the appeal proceeds to be heard in accordance with the rules by a quorum of three judges.”’

29. The appellants in their answering affidavit to this application appreciate this in contending that this application is a ‘legal non sequitur and constitutes an abuse of process because s 14(7) is not applicable if the order is interlocutory and requires leave’.

30. The express wording of s 14(7)(a) makes it applicable to appeals in civil matters ‘where no leave to appeal is required . . . in terms of any law.’ The law regulating when leave to appeal is required is s 18(3) of the High Court Act 16 of 1990.

31. Section 18(3) provides:

‘No judgment or order where the judgment or order sought to be appealed from is an interlocutory order or an order as to costs only left by law to the discretion of the court shall be subject to appeal save with the leave of the court which has given the judgment or has made the order, or in the event of such leave to appeal being refused, leave to appeal being granted by the Supreme Court.’

32. The leading judgment of this Court on this question is Di Savino v Nedbank Ltd.³ In that matter, the Chief Justice, after a comprehensive survey and detailed analysis of prior decisions of this Court and leading cases in South Africa before and after the procedure in respect of appeals was amended in South Africa in 1982, concluded that the meaning to be given to s 18(3) is:⁴

‘It would appear to me therefore that the spirit of s 18(3) is that before a party can pursue an appeal against a judgment or order of the High Court, two requirements must be met. Firstly, the judgment or order must be appealable. Secondly, if the judgment or order is interlocutory, leave to appeal against such judgment or order must first be obtained even if the nature of the order or judgment satisfies the first requirement. The test whether a judgment or order satisfies the first requirement is as set out in many judgments of our courts as noted above and it is not necessary to repeat it here.’⁵

33. Subsequent to Di Savino, this Court in Government of the Republic of Namibia v Fillipus⁶ in following Di Savino, further explained the nature of interlocutory orders for the purpose of s 18(3) thus:

‘[10] The court in Di Savino found that a wide meaning is to be accorded to interlocutory orders and is to include all orders upon matters “incidental to the main dispute, preparatory to, or during the progress of the litigation” — and not merely what have been described in especially South African cases as “simple” or “pure” interlocutory orders. But they would also need to have the characteristics of appealability in order to qualify for leave. The defining features of the vexed issue of appealability have been considered in several appeals which have served before this court and are usefully referred to in Di Savino. Thus, interlocutory orders which are appealable require leave to appeal.

[11] There are sound policy reasons for restricting appeals in interlocutory matters as is done in s 18(3) by requiring leave of the High Court. These have been previously articulated by this court in Shetu Trading CC v Chair, Tender Board of Namibia, Knouwds NO (in his capacity as Provisional Liquidator of Avid Investment Corporation (Pty) Ltd) v Josea & another and again emphasised in Di Savino. Central to these considerations is the avoidance of piecemeal appellate disposal of the issues in litigation with the unnecessary expense involved. It is generally desirable that all issues are resolved by the same court at one and the same time. This rationale finds eloquent expression in the new Rules of the High Court which place emphasis on speedy finalisation of cases with minimum delay and costs. It is a regrettable fact of litigation in our country that interlocutory skirmishes both delay and add to the costs of litigation. It is in order to minimise interlocutory skirmishes that rule 32(11) of the High Court Rules caps costs in interlocutory proceedings.’

And

‘[18] As is pointed out in Di Savino, when the High Court Act was passed in 1990, leave to appeal was required in all civil appeals in South Africa where there was no longer reference to interlocutory orders in its legislation governing appeals. As is also pointed out by the Chief Justice in Di Savino, the Namibian jurisprudence on s 18 has evolved in the context of the different legislative provisions applying in Namibia and South Africa, with Namibia proceeding to develop its own jurisprudence in the area, with this court interpreting s 18(3) to the effect that interlocutory orders are not appealable except with leave. That is after all by giving effect to the clear wording of s 18(3) with its different wording which meant that Namibian courts would not need to grapple with what the Chief Justice in Di Savino described as the “convoluted dichotomy” of what may or may not amount to “simple” interlocutory orders. Had the Namibian legislature intended that the term interlocutory in s 18(3) would mean only “simple” interlocutory orders, as is the consequence of Ms Machaka's argument, the use of the term in s 18(3) would have been superfluous. This is because a simple interlocutory order would not constitute a judgment or order for the purpose of s 18(1) and not be appealable for that reason. There is a presumption against the legislature using words which would be superfluous.’

34. The term ‘interlocutory’ in s 18(3) is thus employed in a wide and general sense,⁷ which is helpfully explained by Corbett JA in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd,⁸ as opposed to simple or purely interlocutory orders:

‘(a) In a wide and general sense the term “interlocutory” refers to all orders pronounced by the Court, upon matters incidental to the main dispute, preparatory to, or during the progress of, the litigation. But orders of this kind are divided into two classes:

1. those which have a final and definitive effect on the main action; and

2. those, known as “simple (or purely) interlocutory orders” or “interlocutory orders proper”, which do not.’

35. This Court in Prime Paradise⁹ concluded that interlocutory orders for the purpose of s 18(3) would accordingly refer to all orders incidental to the main dispute, preparatory to or during the process of litigation.

36. In Prime Paradise, the order sought to be appealed against was an order directing that the appellant furnish security for preservation costs of an arrested vessel pending the determination of the main claim. It was contended that the order granted was for final relief in the form of the payment of money and that the order to provide that security was separate and distinct from the main claim.

37. This Court held that the claim for security was incidental to the main proceedings and, upon an application of the approach in Di Savino and Fillipus, found that the order was interlocutory and that leave to appeal was required in terms of s 18(3).

38. In reaching this conclusion, the court in Prime Paradise reasoned:

‘[106] In an earlier edition of Herbstein and Van Winsen dealing with the pre-1982 position in South Africa, the learned authors list a number of orders which are interlocutory in effect and form for the purpose of the provisions then governing appeals. First on the list is the grant of an interdict pendente lite, even though it may cause considerable – at times irreparable – prejudice. It is interlocutory because, so the learned authors explain, it clearly does not dispose of any issue or any portion of an issue in the main action or suit. So too is the grant or refusal of an order requiring the plaintiff to give security for costs included in the list of interlocutory orders. This statement is made with reference to Ecker and other early matters. In one of those, matters Wessels, J in Mears v Nederlandsch Zuid Afrikaansche Hypotheek Bank Ltd found that an application for security for costs is interlocutory as it is ancillary to the main claim and does not dispose of the applicant’s claim which is left intact.

[107] This approach would appear to be correct. The application for preservation costs of the vessel pendente lite in this matter is indeed ancillary to the main claim or suit. Whilst plainly prejudicial to Prime, it also does not dispose of any issues or portion of an issue in the main action or suit between the parties.’

39. In determining whether the order is interlocutory and the antecedent question as to whether it is at all appealable, the order is to be interpreted like any other in accordance with well-established principles concerning the interpretation of court orders recently summarised by this Court:¹⁰

‘[24] The well-established test accepted by this court for the interpretation of court orders or judgments, emanating from Firestone South Africa (Pty) Ltd v Genticura AG, is essentially the same as that for the construction of documents. This test has recently been succinctly summarised by the South African Supreme Court of Appeal (and subsequently expressly approved of by that country’s Court of Appeal) thus:

“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.”

[25] The well-known rules relating to the construction of text or documents, as recently restated, stress the importance of the context in which a document is drafted which is “relevant to its construction in all circumstances, not only when the language appears to be ambiguous”.

[26] As was recently stated by this Court in Fischer in the context of construing a court order:

“At the risk of repetition, the clear and unambiguous meaning must be ascertained in the context and not semantically without regard to the context.

The starting point thus is to determine whether the order is clear and unambiguous, because, if it is, and the context does not indicate a different meaning, that is the end of the matter . . .”’

(Emphasis supplied).

40. In order to determine whether an order is appealable or not, this Court¹¹ has consistently followed the test stated in Zweni v Minister of Law and Order.¹² In Zweni, it was held that for a judgment to be appealable, three attributes need to be present. Firstly, the decision must be final in effect and not subject to alteration by the court of first instance. Secondly, it must be definitive of the rights of the parties and thirdly, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. Harms AJA in Zweni stressed that the fact that ‘a decision may cause a party inconvenience or place them at a disadvantage in the litigation which nothing, but an appeal can correct, is not taken into account in determining its appealability’.¹³

41. This Court in Shetu Trading made it clear that because the question of appealability is ‘intrinsically difficult’ and a ‘vexed issue’, the principles set out in Zweni are not ‘cast in stone’ but are ‘illustrative, not immutable’ concluding that they are ‘useful guidelines but not rigid principles to be applied invariably’.¹⁴

42. In determining whether an order is appealable, regard is to be had to both the form of the order and more predominantly, its effect.¹⁵ The issues raised before the court below are to be examined and the manner in which Sibeya J dealt with them in order to determine what was intended by the order.¹⁶

43. The further application brought in August 2024 was launched to restore the first, second and third applicants’ rights which had been protected by the interim order granted by agreement on 9 February 2024 (to stay the implementation of the decision to terminate them from the Council) pending the determination of the review in the main application. This interim order had been observed until July 2024 when the appellants decided to implement the impugned decision. As is expressly stated at the outset of the founding affidavit in the further application:

‘The application is therefore aimed at restoring such rights and to avoid the continuation of violation and harm of the applicants’ rights pending the return date and finalisation of the pending application.’

44. The rights sought to be restored were those protected by the interim order of 9 February 2024.

45. The applicants further make the point in their founding affidavit to the further application with reference to the order of 9 February 2024 that for as long as the main application is pending, the respondents had no right to implement the resolution of 25 January 2024.

46. This is also how the appellants (as respondents in that application) understood the further application – as one for an interim interdict pending the finalisation of the main application, as set out in the quoted portions of their answering affidavit in para [16] above.

47. The court a quo correctly referred to the order of 9 February 2024 as restraining the respondents from executing the decision of the Council of 25 January 2024 – to terminate the first to third applicants’ membership of the Council – pending the review of that decision. That order was to be obeyed and was to be given effect to until and unless altered or set aside by that court.¹⁷ Instead the appellants acted in conflict with that order and subsequently proceeded to implement the 25 January 2024 resolution, despite being restrained from doing so by the order of 9 February 2024. That gave rise to the further application. As Sibeya J stressed, the main application to determine the main relief relating to the legality or otherwise of the resolution of 25 January 2024 was pending. Sibeya J proceeded to find on a prima basis that the appellants’ actions were contrary to the order of 9 February 2024 and that the applicants required the protection provided for them in the order of 9 February 2024 – to maintain the pre-25 January 2024 status quo – pending the finalisation of the main application. The pertinent portion of his judgment embodying his findings on this issue is as follows:

‘[79] I find that the above-mentioned letters authored by Mr Isaacks reveal the implementation of the resolution of the Council of 25 January 2024. This is the same resolution that the court ordered, by agreement between the parties, not to be implemented and for the applicants to serve as Councillors as if such resolution of 25 January 2024, was not taken.

[80] As stated above, the main application is pending before this court to determine, inter alia, the legality of the resolution of 25 January 2024. I hold the prima facie view that what the Council and the Mr Isaacks sought to do with the letters of 30 June and 2 August 2024, is to execute the resolution of 25 January 2024, contrary to the order of 9 February 2024.

[81] I find on a prime facie basis that although the actions of the respondents run contrary to the order of 9 February 2024, they stated that they acted on the basis of the legal advice obtained from their legal practitioner of record. That, in my considered view, militates against the moral blameworthiness of their part, as conversely put, but for the legal advice, it appears that the respondents would not have implemented the resolution of 25 January 2024. It is also on this basis that I am not persuaded that the applicants managed to establish their claim for contempt of court. More evidence would be required to decide the issue of contempt of court and the applicants can follow that route if so advised.

[82] It is further my considered view that counsel’s advice to the respondents was based on his interpretation of s 10(1)(b). The applicability or otherwise of s 19(1)(d) to the applicants regarding whether the jurisdiction requirements were met in order to invoke the said section is a subject matter pending in the main application. As found earlier, it appears prima facie that the meeting of 8 May 2024 (if it was indeed duly convened and constituted as this is denied by the applicant) and the letters of 30 June and 2 August 2024, demonstrate the respondents’ position to execute the resolution of 25 January 2024.

[83] The order of 9 February 2024, protects the applicants from the implementation of the resolution of 25 January 2024. The order of 9 February 2024, remains valid until it is varied, rescinded or simply set aside. In the absence of none of the foregoing in this matter, the order of 9 February 2024, remains valid and commands compliance. The said order can only be discharged by an order in the main application or an intervening application before this court seeking to rescind or vary it on acceptable grounds. In short, only an order of this court can bring compliance of that order go an end. Nothing less will do or have that effect.’

48. In this instance, the order of 6 September 2024 is clear and unambiguous. The relief itself is expressly prefaced as operating pending the finalisation of the main application which is specified by number. It also makes it emphatically clear that the appellants are restrained from implementing the decision to terminate first to third applicants’ membership of the Council pending the finalisation of the main application. That is essentially what was sought by way of an interim interdict and was thus granted.

49. The context of the full set of papers in the further application serves to powerfully reinforce the clear meaning of the order. That is also how the appellants themselves plainly understood the purpose and intention of the application and expressed that understanding unambiguously in their answering affidavit.

50. The further components of the order in paras 2.1, 2.2 and 2.3 would appear to be included by reason of the convoluted relief sought seeking to review the decision of the Council to implement the 25 January 2024 resolution and undo (and breach) the restraining order embodied in the interim order of 9 February 2024. These orders are all said to operate pending the finalisation of the main application. The findings which underpin them are made on a prima facie basis, as set out in the quoted portions of the judgment, and do not in any way amount to being final in effect in any proper sense and further do not in any way dispose of the main dispute between the parties, being the review of the resolution of 25 January 2024. The order in essence merely reinstates the restraining order to put the implementation of the impugned resolution on hold pending the review of that decision.

51. The order thus sought to be appealed against does not have the attributes of appealability.

52. The elaborate attempt to ascribe finality to the order by the appellants is nothing short of disingenuous. By latching onto the court’s statement that the order is ‘final’ is wrenching the incorrect use of that term entirely out of the context in which it was used. It would appear to relate rather to the procedure followed – of seeking an interim order pending the finalisation of an interim interdict. It became no longer necessary to consider making such an order in view of the fact that the parties had fully ventilated the issues. An interim interdict could then be issued without the need for a short return date when the court would have then considered confirming the interim interdict to apply pending the finalisation of the main application.

53. Furthermore, the reference in the judgment to the term ‘clear right’, which is a requirement for a final interdict, in the conclusion is likewise unfortunate and would appear to evince a conclusion that the applicants had a clear right to the reinstatement of their interim interdict, but not a final interdict. This passing statement is in any event gainsaid by paras 80 and 83 of the judgment quoted in para [48] above where the court essentially found that the applicants had established a prima facie right to the relief which was then granted by way of an interim interdict.

54. It is furthermore trite that an appeal is made against an order and not the reasoning employed by a court in reaching it. The reasoning and this faulty reference does not change the complexion of the nature and effect of the order at all which is set out in unambiguous terms and within the context of the judgment as a whole which was directed at granting an interim interdict pending the finalisation of the main application.

55. The order sought to be appealed against is plainly not final and definite in respect of the resolution of 25 January 2024 but merely again restrains its implementation pending the finalisation of the main review application. Nor does it dispose of a substantial portion of the relief claimed in the main application and is accordingly not appealable. It merely preserves the status quo pending the decision on the merits of the 25 January 2024 termination in the main application.

56. It follows that the first requirement of appealability, as explained in Di Savino has not been met. I may add that the order being clearly interlocutory, it would in any event not have been appealable as of right, as wrongly contended by the appellants. Leave would however not arise because the order itself is not appealable. I raise this in the context of this matter where the appellants had flouted the interim order of 9 February 2024. Filing a notice of appeal against an order which is not only not appealable but, furthermore being interlocutory, would in any event also have required leave to appeal, would indicate that the appellants’ conduct in noting an appeal appears to amount to an abuse of process and a stratagem directed at frustrating the execution of the interim order.

57. Given the conclusion I have reached that the order is not appealable and does not constitute an appeal, it cannot have the effect of staying the execution of the interim order which must forthwith be obeyed by the appellants.¹⁸

58. Even though the appellants’ notice of appeal would appear to amount to an abuse of process, and even though s 14(7)(a) is directed at addressing abuses,¹⁹ it would not in my view apply by reason of the remedy provided for in it. Whilst s 14(7) does not apply to an order requiring leave to appeal, it would not in my view apply to a notice of appeal filed against an order which does not constitute an appeal. Firstly, s 14(7) contemplates an appeal. The noting of an appeal against an order which is not appealable does not amount to an appeal. Secondly, the remedy authorised by the section is the dismissal of an appeal. The section does not authorise a designated judge to grant an order to strike an appeal. Where an order is not appealable as in this case, this Court would strike an appeal noted against it from the roll and not dismiss the appeal for the above reasons.

Costs

59. As for the costs of this application, even though the conduct of the appellants would appear to amount to an abuse, the application is to be declined. The applicants are thus unsuccessful and cannot receive a costs order in their favour. But there should be no adverse cost against them either, given the conduct of the appellants.

60. The position may however change if the appellants do not withdraw their notice of appeal. It would then be for the applicants to seek to have an expedited hearing of the matter so that it can be struck from the roll without delay. In that event the court may consider an appropriate punitive order as to costs in all the circumstances of this matter. As is set out in the order. I propose to direct that if the notice of appeal is not withdrawn within 20 days of this judgment, the registrar is to set it down for the court to strike the matter from the roll.

The order

61. It follows that the following order is made:

1. The application is declined.

2. No order as to costs is made.

3. The registrar is directed to comply with s 14(7)(c) of the Supreme Court Act 15 of 1990 and further to set the matter down as soon as possible in the event of the notice of appeal not being withdrawn within 20 days of this judgment.

___________________

SMUTS JA

REPRESENTATION: APPLICANTS:	Sisa Namandje & Company Incorporated, Windhoek
RESPONDENTS:	Dr. Weder, Kauta & Hoveka Incorporated, Windhoek