Nova property group holdings ltd first appellant

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Is the order appealable?

[8] On the test articulated by this court in Zweni v Minister of Law and Order,3 the dismissal of an application to compel discovery, such as by the court a quo, is not appealable as it is (a) not final in effect and is open to alteration by the court below; (b) not definitive of the rights of the parties; and (c) does not have the effect of disposing of a substantial portion of the relief claimed. However, three years later in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service,4 this court held that the requirements for appealability laid down in Zweni ‘. . .[d]o not purport to be exhaustive or to cast the relevant principles in stone’. Almost a decade later, in Philani-Ma-Afrika v Mailula,5 this court considered whether an execution order (which put an eviction order into operation pending an appeal) was appealable. It held the execution order to be appealable, by adapting ‘the general principles on the appealability of interim orders . . . to accord with the equitable and more context-sensitive standard of the interests of justice favoured by our Constitution’.6 In so doing, it found the ‘interests of justice’ to be a paramount consideration in deciding whether a judgment is appealable.7

[9] It is well established that in deciding what is in the interests of justice, each case has to be considered in light of its own facts.8 The considerations that serve the interests of justice, such as that the appeal will traverse matters of significant importance which pit the rights of privacy and dignity on the one hand, against those of access to information and freedom of expression on the other hand, certainly loom large before us. However, the most compelling, in my view, is that a consideration of the merits of the appeal will necessarily involve a resolution of the seemingly conflicting decisions in La Lucia Sands Share Block Ltd & others v Barkhan & others9 and Bayoglu10 on the one hand, and Basson v On-Point Engineers (Pty) Ltd11 and M & G Centre for Investigative Journalism NPC v CSR-E Loco Supply12 on the other.
[10] Section 17(1) of the Superior Courts Act 10 of 2013 (the Superior Courts Act), which provides for the circumstances in which a judge may grant leave to appeal, gives express recognition to this consideration. It 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 prospect 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.’

The provisions of s 17(1) of the Superior Courts Act are tailor-made for this appeal principally for two reasons. First, as already alluded to, there are at least four conflicting judgments, including that of the court a quo, on the proper interpretation of s 26(2) of the Companies Act. Second, the appeal would lead to a just and prompt resolution of the real issues between the parties for the reasons set out below.
[11] Rule 35(14) provides that a party may, for purposes of pleading, require any other party to make available for inspection, within five days, a clearly specified document or tape-recording in his possession ‘which is relevant to a reasonably anticipated issue in the action’, and to allow a copy or transcription to be made of it. In the context of this appeal, the Companies are required to demonstrate that the documents are relevant to a tenable ground of opposition to the main application. Since the Companies seek to compel discovery for the purpose of interrogating the ‘real motives’ of Moneyweb for requesting access to their securities registers, in terms of s 26 of the Companies Act, the question of the ‘relevance’ of the documents sought would be integral to the interpretation of s 26(2) of the Companies Act. It is important to bear in mind, in this respect, that although the court a quo did not decide the main application, it did pronounce on the proper interpretation of s 26(2) of the Companies Act in deciding whether to grant the interlocutory relief sought by the Companies. Before us, therefore, the parties in essence accepted that if the court construes s 26(2) of the Companies Act to confer an unqualified right of access to the securities register of a company, then Moneyweb’s ‘motives’ for requesting access to the registers would be irrelevant to the main application, and it would be entitled to an order compelling compliance with s 26(2) of the Companies Act, thereby resolving the ‘real issue’ in the main application, as envisaged in s17(1)(c) of the Superior Courts Act. On this basis, therefore, Moneyweb was constrained to concede that the judgment of the court below, although not appealable under the traditional Zweni test for interlocutory applications to compel discovery, would be appealable under s 17(1) of the Superior Courts Act.

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