IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISIONS)

In the matter between:

And

JUDGMENT

(Application for Leave to Appeal)

[1] On 14 December 2007 I ruled that the plaintiffs in this matter could substitute one Swiss executor for another in this action and join a further plaintiff.     Defendants, respondents in the opposed application, now wish to appeal my ruling either to the Full Bench of this Court or the Supreme Court of Appeal.

[2] Two questions initially arise, namely whether the order is appealable and secondly, the prospects of success of any such appeal. At the risk of putting the cart before the horse I shall deal firstly with the second question.

[5] As regards the appealability of the judgment, the position is, in my view, somewhat less clear because here we are deafing with an interlocutory application. The question is then is whether the judgment or order made has a final and definitive effect on the main action. Furthermore, the Court must also take into account in this situation that the proper approach is a more flexible one where the Court will have regard to whether an appeal against the interlocutory decision will lead to a more expeditious and cost-effective decision-making process.

[6] I have said that there are reasonable prospects that another Court may find that the summons was a nullity from the outset. Certainly, in the light of my order it is not open to the trial Court to find in the main trial that Baumann is not, for the purposes of the action, the administrator of the estate and thus, probably, that the summons was regular.   If, however, the summons is a nullity it may well spell the end of this particular action, if not the end of the claim itself.

[7] In the circumstances, on balance, I consider that although the issues of the merits of the appeal and the order's appealability are interlinked, this Court's judgment is appealable or at least there are reasonable prospects that another Court will find that it is appealable.

[9] The facts of this case are, moreover, unusual and less than straightforward. The point at issue has considerable importance for the parties and the future of

the action. The record is also not onerous. In the circumstances I consider that this is a matter which warrants the attention of the Supreme Court of Appeal rather than the Full Bench of this Court.

[10] In the result, leave to appeal to the Supreme Court of Appeal on the grounds set out in respondents' notice of application for leave to appeal is granted. The costs of this application, including the costs of two counsel, will be costs in the appeal.