Secona Freight Logistics CC vs. Samie and Others

South Africa

22.12.2023

Civil

An interlocutory order is not appealable unless it disposes of any issue or any portion of the issue in the main action

This appeal is against an order of the KwaZulu-Natal Division of the High Court, which dismissed a point in limine to the effect that the first respondent lacks locus standi to institute an application against the appellant and the second to ninth respondents. The appeal is with the leave of the high court.The issue before present Court is whether the high court’s order on the point in limine appealable to this Court?

On the facts of present matters, all indications point to one attribute: the order of the high court is interlocutory. It is trite that, an interlocutory order (which is a preliminary or procedural order) is not appealable unless it disposes of any issue or any portion of the issue in the main action. If, therefore, an order is made during the progress of litigation which leaves the applicant's claim intact and not decided upon, it is prima facie an order which does not have the force of a definitive order. The applicant is not barred from proceeding with their application, as the order is merely incidental to the main dispute.

The order of the high court did not possess any of the attributes articulated in Zweni v Minister of Law and Order. Nor was it appealable on any other ground, including the interests of justice. It followed that the matter was not appealable. The anomaly arose as a result of the high court’s decision to separate the issues without considering whether it was appropriate to do so. In that way, it confined itself to the single issue as it did.

At para 3 of the order, it postponed the application sine die. This aspect, amongst others, indicated that the high court perceived that the matter would still proceed on the dispute before it, even if differently constituted. The high court was alive to the fact that what it had decided, namely, the locus standi point in limine, was not dispositive of the whole matter. The SCA cautioned that rule 33(4) if not appropriately applied, resulted in a proliferation of piecemeal appeals; a principle which the high court seemed to have overlooked. The SCA thus held that to entertain an appeal at this stage offended against its jurisprudence.

Tags : Appeal Locus standi Maintainability

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