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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)       NOT REPORTABLE

(2)       NOT OF INTEREST TO OTHER JUDGES

(3)       REVISED.

CASE NO: 86673/2018

22/2/2019

 

In the matter between:

 

MAHOMED MAHIER TAYOB                                                                  First Applicant

EUGENE JANUARIE                                                                                  Second Applicant

 

And

 

SHIVA URANIUM (PTY) LIMITED

(IN BUSINESS RESCUE)                                                                          First Respondent

CHRISTOPHER KGASHANE MONYELA                                            Second Respondent

JUANITO MARTIN DAMONS                                                                 Third Respondent

IZAK BOSMAN MARAIS                                                                         Fourth Respondent

JAN BOSMAN MARAIS                                                                            Fifth Respondent

THE COMPANIES AND INNTELLECTUAL

PROPERTY COMMISSION                                                                      SIXTH Respondent

COMPANIES TRIBUNAL                                                                         Seventh Respondent

JUDGMENT

MOSOPA J

INTRODUCTION:

 

1.         This is leave to appeal to either the Full Bench of this Division or to the Supreme Court of Appeals, against the judgment and order I handed down on 21 December 2018.

2.         The matter served before me on the 5th of December 2018 as an urgent application wherein the applicants were seeking relief in the following;

2.1     That the sixth Respondent be interdict from implementing, enforcing and/or adhering to the order contained in paragraph 52 of the Companies Tribunal of the Republic of South Africa's decision, dated 27 November 2018 pending the determination of an application in terms of which;

2.2     The Companies Tribunal of the Republic of South Africa decision dated 27 November 2018 is reviewed and set aside, and;

2.3     A declatory order in terms of section 21 (1) (c) of the Superior Court's Act,1O of 2013,declaring the Applicants and the Second Respondent the duly and lawfully appointed business rescue practitioners of the First Respondent;

2.4     That the Applicants be ordered to institute the application referred to above within 10 days of the granting of the order and costs be costs in the business rescue of the First Respondent.

 

3.         I then dealt with the issue of urgency and ruled that the matter is urgent and proceeded to argument.

4.         Mr Veten in contention, submitted that the Applicants have no problem with the bulk of my judgment but the only problem is my finding as contained in paragraph 34 of the judgment which provides as follows;

"However it is clear from the aforegoing that the Board of Directors operates under the supervision of a practitioner. In adopting a resolution to appoint the Applicants as business rescuer practitioner the Second Respondent did not authorise such an appointment. In terms of section 137 (4) such action is void as it was no approved and authorised by the Second Respondent".

 

5.          Mr Veten contended that my interpretation of section 137 (4) is flawed as I was supposed to have interpreted the section as it stands.

6.          Mr Potgieter on behalf of the First to the Third Respondents elected not to deal with the merits of the matter and submitted that the appeal is fatally defective and this is not an appealable matter. What is best for the applicant to do is to bring a review proceedings.

7.          Section 17 of the Superior Courts Act,10 of 2013,governs leave to appeals and provides;

(1)       Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a)      (i) the appeal would have a reasonable prospects of success; or

(ii)     there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b)      The decision sought on appeal does not fall within the ambit of section 16(2) (a); and

(c)       Where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

 

8.          The Applicant in bringing his leave to appeal relies on the provisions of section 17(a) (1), that there are reasonable prospects of success and they are of the opinion that another court may come to a different finding.

9.          In The Mont Chevaux Trust (IT 2012/28) v Tina Goosen (unreported case,LCC 14R/2014) delivered on the 3^rd of November 2014,cited with approval in the Acting National Director of Public Prosecutions v Democratic Alliance ( unreported.GP case no 19577/09 dated 24 June 2016) the Land Claims Court held that, " the wording of this subsection raised the bar of the test that now has to be applied to the merits of the proposed appeal before leave should be granted. In Netshokovu v S (unreported case. Supreme Court of Appeal, case no: 157/15 dated 7 September 2016) it was held at paragraph 2 that an appellant faces a higher and stringent threshold, in terms of the Act (i.e this subsection),compared to the provisions of the repealed Supreme Court Act 59 of 1959.

 

APPEALABILITY OF INTERIM ORDERS

10.       In Machele and Others v Mailula and Others (CCT 99/08) [2009] ZACC 7; 2010 (2) SA 257 (CC) ; 2009 (8) BCLR 767 (CC) (26 March 2009),the court when dealing with appealability of interim order Skweyiya J at paragraph 21 observed;

"It is generally not in the interests of justice for a litigant to be granted leave to appeal against an interim order of execution. The rationale underlying the non­ appealability of interim orders was stated by this Court in the following terms; "[T]he effect of granting leave to appeal against an order of interim execution will defeat the very purpose of that order. The ordinary rule is that the noting of an appeal suspends the implementation of an order made by a court. An interim order of execution is therefore special relief granted by a court when it considers that the ordinary rule would render injustice in a particular case. Were the interim order to be the subject of an appeal that, in turn, would suspend the order".

" Para 23-The primary consideration in determining whether it is in the interests of justice for a litigant to be granted leave to appeal against an interim order of execution is, therefore, whether irreparable harm would result if leave to appeal is not granted. The applicant would have to show that irreparable harm would result if the interim order were not to be granted. A court will have regard to the possibility of irreparable harm and the balance of convenience".

 

11.        In Mathale v Linda and Another 2016 (2) SA 641 (CC) Khampepe J observed at para 25;

"Ordinarily, interim execution orders are considered interlocutory in that they provide parties with interim relief pending the finalization of legal action. Generally, it is not in the interests of justice for interlocutory relief to be subject to appeal as this would defeat the very purpose of that relief'.

 

12.       The nature of the order the Applicants was seeking in this matter is an interim relief pending the institution of review proceeding against the decision of the sixth Respondent.

13.        No argument was presented by Mr Veten on behalf of the Applicants on whether or not the order they intend appealing is an appealable order or not.

14.       The Applicant failed to show that they will suffer irreparable harm if leave to appeal is not granted.

15.        It is clear from the matter of Machele (supra) and Mathale (supra) that the only exception to the appealibility of the interim orders is when a party can show that the he or she will suffer irreparable harm if not granted.

16.        It is for this reason that I need not deal with the merits of the matter as this order cannot be appealed.

 

ORDER

17.        I therefore make the following order;

1.         The application for leave to appeal is dismissed;

2.        The Applicants are ordered to pay the costs of this application, which costs includes costs occasioned by the employment of senior counsel.

 

 

M.J MOSOPA

JUDGE OF THE HIGH COURT

PRETORIA HIGH COURT

 

 

 

APPERANCES

For Applicant: Adv Veten

Instructed by: Aphane Attorneys

 

For the First to Third Respondents: Adv N.V Potgieter SC

Instructed by: Smit Sewgoolam Inc.

 

Date of Hearing: 15 February 2019

Date of Judgment: 22 February 2019

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