Court name
Supreme Court
Case name
Shetu Trading CC v Chair of the Tender Board of Namibia and Others
Media neutral citation
[2011] NASC 12
Judge
Maritz JA




















REPORTABLE



CASE NO.: SA 26/2011





IN
THE SUPREME COURT OF NAMIBIA








In
the matter between:
















SHETU TRADING
CC



APPELLANT









and




























CHAIR, TENDER
BOARD OF NAMIBIA



FIRST
RESPONDENT



MINISTER OF
WORKS AND TRANSPORT



SECOND
RESPONDENT



VAE SA (PTY)
LTD



THIRD
RESPONDENT



PERMANENT
SECRETARY, MINISTRY OF


WORKS AND
TRANSPORT






FOURTH
RESPONDENT









CORAM:
Maritz JA, Langa AJA et
O’Regan AJA





Heard
on:
15/07/2011





Delivered
on:
4/11/2011









APPEAL
JUDGMENT












O’REGAN
AJA:









  1. The
    appellant, Shetu Trading CC, was unsuccessful in its tender for a
    government contract for the provision of railway tracks. In these
    proceedings, it seeks an interdict preventing the implementation of
    that tender by the successful party pending review proceedings that
    the appellant has launched in the High Court. The appellant did not
    obtain interdictory relief in the High Court and has approached this
    Court urgently to appeal against the refusal of relief by the High
    Court.







  1. The
    first respondent is the Chairperson of the Tender Board, which was
    established in terms of section 2(1) of the Tender Board Act, 1996.
    The Tender Board is responsible for the procurement of goods and
    services for the Namibian government and invites tenders on the
    basis of terms and conditions that it stipulates. The second
    respondent is the Minister of Works and Transport. It is the
    Ministry of Works and Transport that is responsible for
    administering the tender that is the subject of these proceedings.
    The third respondent, cited originally as VAE Perway (Pty) Ltd t/a
    VAE SA but by order of this Court at the hearing of this matter,
    with the agreement of all the parties, substituted by VAE SA (Pty)
    Ltd is the successful tenderer. The fourth respondent is the
    Permanent Secretary to the Department of Works and Transport.






Facts



  1. On
    29 June 2010, the Tender Board advertised tender number
    F/1/10/1-22/2010, Northern Railway Extension Project: Rail
    Procurement (the tender) which called for the provision of rails
    required for the extension of a railway line from Ondangwa to
    Oshikango in northern Namibia. The tender closed on 4 August 2010.
    Six tenders were received, one of them from the appellant, and one
    from the third respondent.







  1. It
    is common cause that the tender had been awarded to the third
    respondent, VAE SA, by early September 2010. The appellant was not
    formally told that it had not been awarded the tender, but learnt of
    the award informally shortly afterwards. Upon learning that the
    tender had been awarded to someone else, Ms Anna Mbundu, the
    Executive Director of the appellant and the deponent to the founding
    affidavit, wrote to the Minister of Finance as well as the first,
    second and fourth respondents on 6 September 2010 adverting to
    alleged flaws in the tender process and requesting that the tender
    be set aside pending the appointment of an independent Ministerial
    Tender Committee. Having received no substantive response from the
    addressees, she wrote again on 15 September to the first respondent,
    as well as to the Minister and Deputy Minister of Finance. Again,
    she alleged flaws in the tender process and requested that the
    Tender Board reconsider its award.







  1. On
    28 September 2010 and 4 October 2010, the Tender Board wrote to the
    appellant in response to her letters of 6 and 15 September
    respectively. Not satisfied with the responses, Ms Mbundu wrote
    again to the Minister of Finance and the first respondent on 29
    October at length alleging flaws in the award of the tender. On 4
    November, the Tender Board replied to her letter of 29 October
    stating that the Attorney-General in legal advice to the Tender
    Board and the Minster of Finance had found the appellant’s
    complaints to be without merit, and asserting that the appellant’s
    tender had been correctly disqualified from the tender process.






  1. On
    12 November 2010, the appellant’s attorneys wrote to the first
    and fourth respondents informing them that they had received
    instructions to bring review proceedings to set aside the decision
    of the Tender Board to award the tender to the third respondent. In
    that letter, the attorneys made the following request:








We
are instructed that the agreement to conduct the tender has not yet
been signed, and we hereby request your undertaking not to sign such
agreement, pending the filing of our papers early next week.”






  1. It
    should be emphasized here, that the undertaking requested by the
    appellant’s attorneys in their letter of 12 November is
    unmistakably an undertaking not to sign the tender agreement pending
    the filing of the review application and not any later date. The
    appellant launched review proceedings in the Windhoek High Court on
    22 November 2010. In the notice of motion instituting the review
    proceedings, the appellant did not seek an interdict preventing the
    respondents from entering into the tender contract or from
    implementing the award of the tender pending the outcome of the
    review proceedings. The contract between the third respondent and
    the Department of Works and Transport was entered into a few days
    later on 26 November 2010.







  1. Four
    months after the institution of the review proceedings, the
    appellant’s attorneys once again wrote to the government
    attorney who was representing the second and fourth respondents in
    the review proceedings, noting that the appellant had learnt that
    the parties had now signed the tender contract. The letter then
    continued:








In
view of the pending review proceedings, we are instructed to request
an undertaking by the second and third respondents that no further
steps or actions shall be taken by them to implement the alleged
signed agreement. Should we not receive such an undertaking by 12h00
noon, Tuesday 29 March 2011, that no further steps or actions shall
be taken by either second and third respondents to implement the
agreement, we shall approach Court for an urgent interim interdict,
pending the outcome of the review proceedings.”






  1. Again,
    it should be noted here that at no time prior to this letter of 12
    March had the appellant’s attorneys actually requested an
    undertaking from the respondents not to implement the tender
    agreement
    pending the
    outcome of the review proceedings.
    The
    first time that the appellant’s attorneys sought an
    undertaking that the implementation of the tender should not proceed
    was in March 2011, more than six months after the appellant came to
    know that the tender had been awarded.






Proceedings
in the High Court



  1. As
    no undertaking was forthcoming from the respondents and after a
    local newspaper had reported on 31 March 2011 that the first
    consignment of the rails in terms of the tender agreement had
    arrived in Walvis Bay, the appellant instituted these proceedings on
    an urgent basis on 1 April 2011 seeking relief in the following
    terms:








Interdicting
the second, third respondent and fourth respondents from taking any
further steps, including taking delivery of the rails and other stock
or equipment, in furtherance of the award of tender no:
F/1/10/1-22/2010 Northern Railway Extension Project: Rail Procurement
(the tender) to third respondent pending the finalisation of the
application launched on 22 November 2010, reviewing the purported
decision by the Tender Board of Namibia to award the tender to third
respondent.”








  1. The application was heard as a matter
    of urgency on 6 April and on 7 April 2011, Ndauendapo J dismissed
    the application for an interim interdict with costs. On 15 April
    2011, the High Court granted leave to appeal against that decision
    and the appeal was noted in this Court on that date. The appeal was
    then set down for hearing on 15 July 2011. When leave to appeal was
    granted and the appeal was noted, Ndauendapo J had not yet furnished
    reasons for his decision. Those reasons were lodged in this Court on
    7 July, a week before the appeal hearing.







  1. Before
    the appeal hearing in this Court and before the reasons for the
    order made by Ndauendapo J had become available, the appellant once
    again launched urgent proceedings in the High Court for an interim
    interdict. The second application was heard by Heathcote AJ on 14
    June 2011, and the application was dismissed with reasons on 22 June
    2011. Those reasons were annexed to the first, second and fourth
    respondents’ heads of argument in this appeal. The appellant
    has not sought leave to appeal against the judgment of Heathcote AJ
    in dismissing the application for an interim interdict.







  1. The
    events that took place in the High Court after the appeal had been
    enrolled in this Court raise some novel and difficult questions for
    this Court to consider. Accordingly, on 12 July 2011, this Court
    directed the Registrar to write to the parties requesting them to be
    prepared to answer questions from the Bench at the hearing of the
    appeal on 15 July. Those questions were the following:








Given
the reasons of the Court
a
quo

for the order appealed against (lodged on 7 July 2011) and the
judgment of the High Court dated 22 June 2011 (attached to the 1
st,
2
nd
and 4
th
respondents’ heads of argument), counsel must be informed that
the Court will also invite argument at the hearing on the following
questions:







(i)
Is the High Court’s refusal to grant leave that an application
for interim interdictory relief be heard on an urgent basis as
envisaged in sub-rules (12) and (13) of rule 6 of the High Court
Rules appealable to the Supreme Court and, if so –



(aa)
under which circumstances;



(bb)
are those circumstances applicable to the appeal under
consideration;



(cc)
do the circumstances referred to in (aa) include an instance where,
pending the appeal but before the hearing thereof, an urgent
application (by the same applicant) for the same relief (against the
same respondents) was brought in and adjudicated by the High Court on
an urgent basis?







(ii)
In the event that the Court may find that the High Court’s
refusal referred to in paragraph (i) is appealable, may (and, if so,
should) the Court proceed to decide the merits of the application on
appeal in circumstances where, pending the appeal in the Supreme
Court, the merits have already been decided by the High Court against
the appellant and that order of the High Court has not been appealed
against or is not the subject matter of the appeal currently before
the Court?”









Issues




  1. The following issues thus arise for
    consideration:




(a) Is the order made by Ndauendapo J
dismissing the application for an interim interdict appealable to
this Court?



(b) Does the fact that the High Court
has dismissed a second application for identical relief by the
appellant subsequent to the noting of the appeal in this Court affect
the answer to the question posed in (a)?



(c) In the event that the Court
decides that the order made by Ndauendapo J is appealable, should the
appeal succeed?







Appeals against the dismissal of
urgent interlocutory relief



  1. It
    is clear from the reasons provided by Ndauendapo J that he dismissed
    the application on the grounds that Shetu Trading CC had not
    established that the matter was urgent within the terms of rule
    6(12)(b). He did not traverse the merits of the application at all.
    Ordinarily, where a judge decides that the applicant in an urgent
    application has not established that the matter is so urgent that it
    justifies the extend of condonation for non-compliance with the
    prescribed times and forms sought as contemplated by rule 6(12), the
    judge will strike the matter from the roll.
    1
    The applicant will then have several possible options. It may
    approach the Court again for the same relief if circumstances change
    so that it can establish the requisite urgency or it may approach
    the Court seeking the same relief but with greater compliance with
    the rules or it may choose to re-launch the application for
    substantive relief in the ordinary course. In this case, the Judge
    dismissed the application with costs and then, upon application,
    granted leave to appeal against the order he had granted.







  1. The
    parties only became aware of the basis for the dismissal of the
    application when the reasons became available on 7 July 2011. The
    question that now arises is whether the order made by Ndauendapo J
    is appealable or not.







  1. Section
    14(1) of the Supreme Court Act, 15 of 1990 provides that the Supreme
    Court has the jurisdiction to hear and determine appeals from “any
    judgment or order of the High Court”.
    2
    Subsections 18(1) and (3) of the High Court Act, 16 of 1990 are
    also relevant and provide that –








(1)
An appeal from a judgment or order of the High Court in any civil
proceedings or against any judgment or order of the High Court given
on appeal shall, except insofar as this section otherwise provides,
be heard by the Supreme Court.



(2)



(3)
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.”






  1. This
    Court has considered the appealability of judgments or orders of the
    High Court on several occasions.
    3
    In
    Vaatz v Klotsch and
    Others,
    4
    this Court referred with approval to the meaning of “judgment
    or order” in the equivalent provision in the South African
    High Court Rules given by Erasmus in
    Superior
    Court Practice.
    Relying on
    the jurisprudence of the South African Supreme Court of Appeal,
    Erasmus concluded that an appealable “judgment or order”
    has three attributes: it must be final in effect and not susceptible
    to alteration by the Court of first instance; it must be definitive
    of the rights of the parties; and it must have the effect of
    disposing of at least a substantial portion of the relief claimed in
    the main proceedings.
    5







  1. This
    summary is drawn directly from the judgment of
    Zweni
    v Minister of Law and Order.
    6
    In that case, the South
    African Appellate Division referred to the distinction between
    “judgments and orders” that are appealable and “rulings”
    that are not.
    7
    According to the Court in
    Zweni,
    the first characteristic of a ruling, as opposed to a judgment or
    order, is that it lacks finality. As Harms AJA formulated the test:
    “unless a decision is
    res
    judicata
    between the
    parties and the Court of first instance is thus not entitled to
    reconsider it, it is a ruling.”
    8
    He continued –








In
the light of these tests and in view of the fact that a ruling is the
antithesis of a judgment or order, it appears to me that, generally
speaking a non-appealable decision (ruling) is a decision which is
not final (because the Court of first instance is entitled to alter
it), nor definitive of the rights of the parties nor has the effect
of disposing of at least a substantial portion of the relief claimed
in the main proceedings.”
9






  1. There
    are important reasons for preventing appeals on rulings. In
    Knouwds
    NO v Josea and Another,
    10
    this Court cited with
    approval the following remarks of the South African Supreme Court of
    Appeal in
    Guardian National
    Insurance Co Ltd v Searle NO,
    11








There
are still sound grounds for a basic approach which avoids the
piecemeal appellate disposal of the issues in litigation. It is
unnecessarily expensive and generally it is desirably for obvious
reasons, that such issues be resolved by the same Court and at one
and the same time.”
12






  1. As
    the court in
    Guardian
    National Insurance
    went on
    to note, one of the risks of permitting appeals on orders that are
    not final in effect, is that it could result in two appeals on the
    same issue which would be “squarely in conflict” with
    the need to avoid piecemeal appeals.
    13







  1. Nevertheless,
    the South African Supreme Court of Appeal has recognized that the
    question of appealability is “intrinsically difficult”,
    14
    a “vexed issue”
    15
    and that the principles set out in
    Zweni
    are not “cast in stone”
    16
    but are “illustrative, not immutable”.
    17
    There are thus times where the court has held a “judgment or
    order” to be appealable when one of the attributes stipulated
    in
    Zweni is
    missing
    18
    and even that a judgment or order is unappealable, despite all three
    attributes being present, when hearing the particular appeal would
    render the issues in a case being considered piecemeal.
    19
    The principles in
    Zweni
    are therefore useful
    guidelines, but not rigid principles to be applied invariably.








  1. In citing Erasmus’ approach
    with approval in the
    Vaatz
    case, this Court noted a difference between the South African High
    Court Rules and the High Court Act that must be borne in mind.
    Section 18(1) of the High Court Act provides for a right to appeal
    against “judgments or orders” of the High Court made in
    civil proceedings as a court of first instance to this Court without
    leave. Section 18(3) is an exception. It provides that no appeal
    will lie against a judgment or order that is “an interlocutory
    order or an order as to costs only left by law to the discretion of
    the court”, except with the leave of the court against whose
    judgment or order is to be made, or where such leave is refused with
    the leave of the Supreme Court. The South African Supreme Court
    Act, 59 of 1959, by contrast, provides that in all civil cases,
    20
    leave to appeal against a “judgment or order” must be
    obtained either from the court against whose judgment is to be made,
    or from the Supreme Court of Appeal.
    21







  1. The
    fact that leave to appeal is granted by a lower court does not put
    an end to the issue whether a judgment or order is appealable. The
    question of appealability, if an issue in the appeal, remains a
    question for the appellate Court to determine. If it decides that,
    despite the fact that leave to appeal has been granted by the lower
    court, the judgment or order is not appealable, the appeal will
    still be struck from the roll.
    22







  1. In
    Aussenkehr Farms (Pty) Ltd
    and Another v Minister of Mines and Energy and Another
    2005
    NR 21 (SC), this Court was concerned with the question of
    appealability of an order refusing an application for urgent
    mandatory relief, on the basis that the applicant had not
    established urgency. The Court repeated with approval the three
    attributes of appealability identified by Erasmus in
    Superior
    Court Practice.
    23
    On the question of
    urgency, Strydom CJ on behalf of a unanimous Court reasoned as
    follows:







A
dismissal of an application on the grounds of lack of urgency cannot
close the doors of the Court to a litigant. A litigant is entitled
to bring his case before the Court and to have it adjudicated by a
judge. If the arguments … are taken to their full
consequence, it would mean that, at this preliminary stage of the
proceedings, a Court would be able to effectively close its doors to
a litigant and leave the latter with only a possibility to appeal.
To do so would not only incur unnecessary costs but would, in my
opinion, also be in conflict with article 12(1)(a) of the
Constitution, which guarantees to all persons, in the determination
of their civil rights and obligations, the right to a fair and public
hearing before a Court established by law.”






  1. The
    thrust of this reasoning was thus that ordinarily the dismissal of
    an application on the grounds of urgency is not appealable, because
    it is not final in effect, in that it does not “close the
    doors of the Court” to the applicant. Strydom CJ qualified
    this approach slightly in the following lines –








I
want to make it clear, however, that there may be instances where the
finding of a Court that a matter was not urgent, might have a final
or definitive bearing on a right which an applicant wanted to protect
and where redress at a later stage might not afford such protection.
See
Moch’s
case
(
supra)
at 10 F – G.
24
In such an instance no leave to appeal would be necessary. However,
the present case is not such an instance …. A refusal to hear
a matter on the basis of urgency may, in the Namibian context, be
regarded as what was termed a ‘simple interlocutory order’
for which leave to appeal would be necessary in terms of section
18(3) of the Act of 1990.”
25
(Footnote inserted)






  1. Moch’s
    case was not concerned with an appeal relating to urgency but
    concerned the refusal of a recusal application in provisional
    sequestration proceedings. Although an appeal against the grant of
    an order of provisional sequestration was expressly excluded under
    the South African statute,
    26
    the court held that the dismissal of the recusal application was
    appealable. The Court observed that if an application for recusal
    is wrongly refused, the subsequent proceedings are invalid.
    Following on this, the Court reasoned:







Accepting
then as we must that, if Fine AJ ought to have recused himself, his
refusal to do so had a pervasive vitiating effect upon all the
proceedings and every order granted at both stages thereof, the
question is whether his refusal qualifies for appealability. In my
judgment it does.”
27







  1. The
    Appellate Division of the South African Supreme Court thus accepted
    that although the refusal of an application for recusal is “not
    definitive of the rights about which the parties are contending”,
    28
    it had “a very definitive bearing” on the determination
    of the parties’ rights.
    29







  1. What
    is clear from this Court’s approach in
    Aussenkehr
    is that the dismissal of an urgent application for want of urgency
    will normally not be appealable because the effect of such an order
    is not definitive of the rights of the parties. It also suggests
    that there may be rare cases where the effect of the dismissal of an
    urgent application is definitive of rights. In such a case, if one
    ever arises, the Court,
    obiter,
    indicated that an appeal
    might lie. But in some contrast to this reasoning, the final
    sentence quoted from the judgment in
    Aussenkehr
    suggests that an appeal
    may lie against a decision on urgency with leave. This sentence is
    clearly
    obiter in
    its context and I return to it at para [36] below.







  1. Very
    recently, in
    Namib Plains
    Farming and Tourism cc v Valencia Uranium (Pty) Ltd and Others,
    30
    this Court was concerned
    with an appeal against a judgment of the High Court, in which the
    respondent lodged a conditional counter appeal, on the basis that
    the High Court should have struck the application for interim relief
    from the roll with costs on the grounds that the applicant had
    failed to disclose material evidence to establish urgency. This
    conditional counter appeal was dismissed by the Court on the ground
    that “[u]rgency is not an appealable issue in any
    circumstance.”
    31
    Shivute CJ referred to the
    Ausssenkehr
    decision and continued:







whether
urgency exists in a particular case is a factual question which is
determined on a case by case and discretionary basis. There are no
public interests to be served for this Court to be seized with the
determination of issues of urgency which are dealt with by the High
Court on a regular basis and on which there are a plethora of
authorities to guide that Court …”.
32






  1. The
    dictum in
    Valencia Uranium suggests
    that decisions on urgency are never appealable whereas one of the
    dicta in
    Aussenkehr
    suggests that decisions on
    urgency will ordinarily not be appealable but

    leaves open the
    possibility that there may be rare examples where the decision on
    urgency is appealable because it may have a final or definitive
    effect on the rights of the parties. These apparently differing
    approaches are not as different as might initially appear, once one
    considers the different contexts of the two appeals. The conditional
    counter-appeal in
    Valencia
    Uranium
    was against the
    grant
    of a prayer for condonation on the grounds of urgency whereas, in

    Aussenkehr’s
    case,
    the appeal was against an order where the Court had
    refused
    to grant condonation and so had struck the application from the roll
    for lack of urgency – the subject matter of the one appeal was
    thus the exact converse of the other. The principle underlying the
    dictum
    in
    Valencia Uranium is
    that it may well frustrate the objective of urgent applications if
    orders condoning non-compliance with the rules on the basis of
    urgency would be appealable in themselves. The principle underlying
    Aussenkehr
    is that substantial injustice may result if there is an absolute bar
    to appeals against orders refusing condonation for non-compliance on
    the grounds of urgency, no matter how final or definitive the effect
    of such findings may be on the substantive rights of the parties.
    It is not necessary in this case to endorse the principle in
    Aussenkehr that
    there may be circumstances where an appeal will lie against an order
    refusing condonation for non-compliance on grounds of urgency. Such
    endorsement will only need to be considered when a case arises in
    which substantial injustice may result from the rule barring appeals
    on urgency.







  1. This
    is not such a case. The finding of the Court
    a
    quo
    on urgency in the
    present case was neither final nor definitive of the appellant’s
    rights. Indeed the events following the dismissal of the first
    interdict application illustrate the fact that a decision on urgency
    does not “close the doors” of the Court to a litigant.
    Once the High Court had dismissed the first urgent interlocutory
    application for interdictory relief (the application that is the
    foundation of this appeal), the appellant applied and was granted
    leave to appeal against that order. Thereafter, before the appeal
    was heard, the appellant launched a second urgent interlocutory
    application for the same relief.







  1. The
    second application came before a different Judge, Heathcote AJ, who
    did not have the benefit of the reasons of the Judge in the first
    application, Ndauendapo J. All Heathcote AJ had was the order made
    by Ndauendapo J dismissing the application with costs. Heathcote AJ
    took the view that the first application had not been dismissed on
    the merits, but had failed because the applicant had not established
    urgency. He inferred this from the fact that Ndauendapo J had not
    granted the applicant leave to proceed on the basis of urgency. As
    a result of this inference, Heathcote AJ rejected an argument that
    the matter was
    res
    judicata.
    He held that as
    the merits had not been addressed by Ndauendapo J, it was open to
    the appellant to approach the Court again and seek to establish
    urgency if the facts had changed. Heathcote AJ accepted that on the
    facts set out in the second application, urgency had been
    established so he granted the appellant leave to proceed by way of
    urgency. However, upon an examination of the merits, Heathcote AJ
    concluded that the balance of convenience did not favour the
    appellant, and so dismissed the application. The appellant has not
    appealed against that order. I do not comment on the correctness or
    otherwise of Heathcote AJ’s conclusions on urgency and the
    merits of the application, issues which are not before us. Given
    the facts summarized especially at paragraphs 8 – 9 above,
    this judgment should not be understood as an endorsement of his
    findings on urgency.







  1. What
    is clear now that we have the benefit of the reasons of Ndauendapo
    J, is that he did indeed not decide the merits but concluded that
    the applicant had failed to establish urgency. In such
    circumstances, a judge will ordinarily not dismiss the application,
    but will strike it from the roll. The reason for this is that the
    first prayer in a notice of motion where an applicant seeks to
    proceed by way of urgency is a prayer that the Court condone the
    non-compliance with the Rules of Court and permit the applicant to
    proceed by way of urgency. If a court concludes that an applicant
    has not made out a case to proceed by way of urgency, that prayer is
    not granted and the rest of the application is not considered at
    all. The effect, therefore, is that the application is improperly
    before the Court because the rules have not been complied with, and
    the Court will therefore strike the application from the roll. When
    a matter is struck from the roll in this fashion, it is clear that
    there has been no ruling on the merits at all. As Cameron JA
    helpfully explained in a recent judgment of the South African
    Supreme Court of Appeal:







Urgency
is a reason that may justify deviation from the times and forms the
Rules prescribe. It relates to form, not substance, and it is not a
prerequisite to a claim for substantive relief. Where an application
is brought on the basis of urgency, the Rules of Court permit a Court
(or a Judge in chambers) to dispense with the forms and service
usually required, and to dispose of it ‘as to it seems meet’
(Rule 6(12)(a)). This, in effect, permits and urgent applicant,
subject to the Court’s control, to forge its own Rules (which
must ‘as far as practicable be in accordance with’ the
Rules). Where the application lacks the requisite element or degree
of urgency, the Court can, for that reason, decline to exercise its
powers under Rule 6(12)(a). The matter is then not properly on the
Court’s roll and it declines to hear it. The appropriate order
is generally to strike the application from the roll. This enables
the applicant to set the matter down again, on proper notice and
compliance.” (footnotes omitted)

33






  1. An
    adverse decision on the application to proceed urgently does not
    “close the doors” of the High Court to the litigant. A
    litigant may re-approach the High Court for the same relief, if he
    or she can establish that the relief is urgent. A decision by the
    High Court on urgency alone is thus not ordinarily appealable to
    this Court because it normally lacks the element of finality which
    would render it a “judgment or order” within the meaning
    of section 18(1) of the High Court Act.







  1. The
    next question that arises is whether the fact that the High Court
    granted leave to appeal against the order renders the order
    appealable. This question brings us back to the second
    dictum
    in
    Aussenkehr contained
    in the last sentence of the paragraph of the judgment cited at para
    [26] above, where the Court mentioned that a decision on urgency
    might be regarded as an ‘interlocutory order” within the
    meaning of section 18(3) and, therefore, appealable with leave.







  1. In
    order to consider this issue, it is necessary to look at the
    language of section 18 of the High Court Act more carefully.
    Section 18(1) provides that an appeal from a “judgment or
    order” of the High Court lies to the Supreme Court. Section
    18(3) then provides that a “judgment or order” where the
    order is interlocutory or concerned with an order of costs alone is
    not appealable without leave. Given that section 18(3) repeats the
    words “judgment or order” which are used in section
    18(1) as well, it seems plain that section 18(3) does not expand the
    scope of “judgments or orders” against which an appeal
    will lie; it merely provides that in the cases of certain “judgments
    or orders”, an appeal will only lie with leave.







  1. If
    the High Court grants leave to appeal against a decision that does
    not constitute a “judgment or order” within the meaning
    of section 18(1), the Supreme Court is not bound to decide the
    appeal. The Court must always first consider whether the decision
    is appealable. If the decision against which leave to appeal has
    been granted does not fall within the class of “judgments or
    orders” contemplated by section 18(1), then it is not
    appealable at all.







  1. Not
    every decision made by the Court in the course of judicial
    proceedings constitutes a “judgment or order” within the
    meaning of section 18(1).
    34
    As Corbett JA explained in
    Van
    Streepen and Germs v Transvaal Provincial Administration
    ,








But
not every decision made by the Court in the course of judicial
proceedings constitutes a judgment or order. Some may amount merely
to what is termed a ‘ruling’, against which there is no
appeal.”







  1. In
    South African law, the distinction between “judgments and
    orders” on the one hand and “rulings” on the
    other, as has been mentioned above, stems from the early judgment of
    the Appellate Division in
    Dickinson
    and Another v Fisher’s Executors
    35
    where Innes ACJ reasoned:








But
every decision or ruling of a Court during the progress of a suit
does not amount to an order. That term implies that there must be a
distinct application by one of the parties for definite relief. The
relief prayed for may be small, …, or it may be of great
importance, …, but the Court must be duly asked to grant some
definite and distinct relief, before its decision upon the matter can
properly be called an order.” (At 427)






  1. There
    will be many occasions, where a ruling by the High Court will not
    constitute a judgment or order that is appealable within the meaning
    of section 18(1). Such a ruling may not be converted into an
    appealable “judgment or order” simply by the grant of
    leave to appeal. The distinction between an “interlocutory
    order” that is appealable with leave in terms of section 18(3)
    and a ruling which is not appealable because although interlocutory,
    it lacks the quality of being a judgment or order, will often be
    difficult to draw for the reasons that appealability itself is
    challenging as observed above.
    36







  1. The
    question in this case is whether the order made by Ndauendapo J,
    framed as it was, as an order “dismissing the application with
    costs”, is an order subject to appeal. Upon a reading of the
    reasons given by Ndauendapo J, it is clear that whatever the form
    and words of the order, the Judge had concluded that the appellant
    had not made out a case for urgency as required by rule 6(12)(b).
    Accordingly, good practice would have resulted in the Court’s
    striking the application from the roll. Such an order would not have
    prevented the appellant from re-enrolling the application with or
    without supplemented evidence, either with greater compliance with
    the Rules of Court or in the ordinary course, whichever course the
    appellant considered appropriate. Given that the doors of the Court
    would not have been closed to the appellant, and given that we have
    concluded that no rights of the applicant would have been finally
    determined by the order, no appeal could have been brought against
    such an order. In the circumstances, the
    obiter
    suggestion in
    Aussenkehr,
    that a decision on urgency could be appealed with leave under
    section 18(3), cannot be accepted without qualification. Only
    “judgments or orders” may be appealed, whether without
    leave under section 18(1) or with leave under section 18(3). The
    order by Ndauendapo J did not close the doors of the High Court to
    the appellant, nor did it definitely determine his rights. It thus
    lacked the element of finality necessary to constitute a “judgment
    or order” and is therefore not appealable, even with leave.







  1. Does
    the fact that the Judge formulated the order as one “dismissing
    the application” change this? In my view, it does not. The
    only issue determined by the High Court Judge was the issue of
    urgency. The merits of the dispute were not considered. The High
    Court was not precluded from reconsidering the matter, as subsequent
    events illustrated. The order of Ndauendapo J was therefore not a
    “judgment or order” within the contemplation of section
    18 of the High Court Act. I note in passing that it would advance
    the cause of clarity if High Court Judges, upon deciding that
    urgency has not been established and so do not proceed to consider
    the merits of application, were to strike such applications from the
    roll, rather than issuing orders that the application has been
    “dismissed”. Parties will then understand that the
    merits have not been traversed, and that the applicant is not
    prevented from re-approaching the High Court. An order striking a
    matter off the roll for want of urgency will then in the vast
    majority of cases not be appealable. The only remaining question,
    which does not arise finally for decision here, is whether a
    decision on urgency will be appealable if an appellant can establish
    that the effect of the refusal of a prayer for condonation on the
    basis of urgency, is such as to have “a final or definitive
    bearing on a right”.
    37
    As in this case, we have held that the order made by Ndauendapo J
    did not have a final bearing on appellant’s rights, that
    question does not arise for decision.







  1. In
    the circumstances, I conclude that the order made by Ndauendapo J,
    based as it was on a conclusion that the appellant had not
    established urgency as required by rule 6(12)(b) was not appealable
    even with leave, as it did not constitute a “judgment or
    order” within the contemplation of section 18 of the High
    Court Act. In the circumstances, the appeal in this matter was not
    properly enrolled and it, too, should be struck from the roll with
    costs.






Does
the decision by Heathcote AJ in the second interlocutory application
affect this conclusion?



  1. As
    will have become plain from the reasoning set out above, the
    decision by Heathcote AJ in the second interlocutory application has
    no effect on the conclusion reached above. No more need be said
    about it. In the light of the conclusion I have reached, the third
    question, set out at paragraph [16] above, does not arise for
    decision.






Costs



  1. Given
    that the first, second and fourth respondents, on the one hand, and
    the third respondent were compelled to oppose the appeal, and given
    that the appellant has not succeeded, it is appropriate to order
    that the appellant pay the costs of the opposition.







  1. In
    the premises, the following order is made:







1. The appeal is struck from the roll.



2. The appellant is ordered to pay the
legal costs of the first, second and fourth respondents who were
jointly represented, and the third respondent, such costs to
include, in both cases, the costs occasioned by the employment of one
instructed and one instructing counsel.








_________________


O’REGAN,
AJA









I
agree











_________________


MARITZ,
JA











I
agree











_________________


LANGA,
AJA













































COUNSEL ON
BEHALF OF THE APPELLANT:



Mr. G. Coleman



Instructed by:



LorentzAngula Inc.











COUNSEL ON
BEHALF OF 1
ST,
2
ND
AND 4
TH
RESPONDENT



Mr. G. Narib



Instructed by:



Government Attorney











COUNSEL ON
BEHALF OF 3
RD
RESPONDENT:



Mr. A.H.G. Denk



Instructed by:



Koep & Partners










1
See, for South
African authority,
Commissioner,
South African Revenue Services v Hawker Air Services (Pty) Ltd;
Commissioner, South African Revenue Services v Hawker Aviation
Partnership

2006 (4) SA 292 (SCA) at para 9;
Luna
Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture
Manufacturers)
1977
(4) SA 135 (W) at 139F – 140A .




2
Section 14(1) provides as follows: “The Supreme Court shall,
subject to the provisions of this Act or any other law, have
jurisdiction to hear and determine any appeal from any judgment or
order of the High Court and any party to any such proceedings before
the High Court shall if he or she is dissatisfied with any such
judgment or order, have a right of appeal to the Supreme Court.”




3
See, for example,
Vaatz
and Another v Klotzsch and Others
,
unreported judgment of this Court SA 26/2001, dated 11 October 2002;
Aussenkehr
Farms (Pty) Ltd and Another v Minister of Mines and Energy and
Another
2005
NR 21 (SC);
Wirtz
v Orford and Another
2005
NR 175 (SC);
Handl
v Handl
2008
(2) NR 489 (SC);
Minister
of Mines and Energy and Another v Black Range Mining (Pty) Ltd,

unreported judgment of this Court SA 18/2009, dated 15 July 2010;
Knouwds
NO v Josea and Another
SA
5/2008, unreported judgment of this Court, dated 14 September 2010;
Namib
Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and
Others
,
unreported judgment of this Court, SA 25/2008 dated 19 May 2011.




4
Id.




5
See Erasmus
Superior
Court Practice
(Juta)
A1-43.




6
1993 (1) SA 523 (A) at 531 I – 533B.




7
This is a distinction with a long pedigree in South African
jurisprudence. See
Dickinson
and Another v Fisher’s Executors
1914
AD 424 at 427 – 8.




8
Id at p 535 G.




9
Id at 536 B.




10
SA 5/2008, as yet unreported judgment of this Court dated 14
September 2010, at para 13.




11
1999 (3) SA 296 (SCA).




12
Id at 301 B.




13
Id at 302 B.




14
Cronshaw
and Another v Fidelity Guard Holdings (Pty) Ltd
1996
(3) SA 686 (A) at 690D.




15
Health
Professions Council of South Africa and Another v Emergency Medical
Supplies and Training CC t/a EMS
2010
(6) SA 469 (SCA) at para 14.




16
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996
(3) SA 1 (A) at 10F and see discussion below at [29].




17
Phillips
v National Director of Public Prosecutions
2003
(6) SA 447 (SCA) at 453A.




18
See, for example,
Moch’s
case,
cited above n 16, and discussed below at [27].




19
See
Health
Professions Council
,
cited above n 15 at para 16.




20
Civil appeals to the Constitutional Court in South Africa are
governed by different provisions that do not concern us here.




21
See section 20(4)(a) and (b) of the Supreme Court Act, 59 of 1959.




22
See
Cronshaw
and Another v Fidelity Guards Holdings (Pty) Ltd,
cited
above n 14, at 689 B – D;
Guardian
National Insurance Co Ltd v Searle NO
1999
(3) SA 296 (SCA) at 300 – 301;
Health
Professions Council of South Africa
,
above n 15, at para 27.




23
At 29 B - C.




24
1996 (3) SA 1 (A).




25
At 33 A – D.




26
Section 150 of the Insolvency Act, 24 of 1936, as amended.




27
1996 (3) SA 1 (A) at 10B.




28
Id at 10E.




29
Id at 10 F – G.




30
SA 25/2008; as yet unreported judgment of this Court dated 19 May
2011.




31
Id at para [41].




32
Id.




33
See
Commissioner,
South African Revenue Services v Hawker Air Services (Pty) Ltd;
Commissioner, South African Revenue Services v Hawker Aviation
Partnership and Others,
cited
above n 1
,
at
para 9.




34
This was expressly contemplated in
Vaatz’s
case,
cited above n3, at p 14. In the South African context, see
Van
Streepen and Germs v Transvaal Provincial Administration
1987
(4) SA 569 (A) at 580E; see also
Dickinson
and Another v Fisher’s Executors
1914
AD 424 at 427 – 8 where Innes ACJ reasoned: “But every
decision or ruling of a Court during the progress of a suit does not
amount to an order. That term implies that there must be a distinct
application by one of the parties for definite relief. The relief
prayed for may be small, …, or it may be of great importance,
…, but the Court must be duly asked to grant some definite
and distinct relief, before its decision upon the matter can
properly be called an order.” (At 427)




35
1914 AD 424.




36
See para [22] above.




37
See
Aussenkehr,
cited above n 3, at p 33.