Supreme Court of Appeal changes its mind on appealability

Until recently, the locus classicus on appealability was Zweni v Minister of Law and Order 1993 1 SA 523 (A).  In that judgment, the Appellate Division held that three requirements had to be met in order for a judgment or order to be “appealable”:

  1. the decision sought to be appealed must be final in effect. This means it must not be susceptible to alteration by the court appealed from;
  2. the decision must be definitive of the rights of the parties; and
  3. the decision must have the effect of disposing of at least a substantial portion of the relief claimed.

Over the last decade, however, the Supreme Court of Appeal seems to have foregone the test in Zweni in favour of the constitutionally prescribed “interests of justice” standard.  Thus, in S v Western Areas Ltd 2005 5 SA 214 (SCA), the Supreme Court of Appeal held that a decision might be appealable even if it did not meet the requirements laid down in Zweni so long as the interests of justice required that it should nevertheless be subject to an appeal (at para 28).

Similarly, in Philani-Ma-Afrika v Mailula 2010 2 SA 573 (SCA), the Supreme Court of Appeal held that the facts of the case provided a “striking illustration of the need for orders…to be regarded as appealable in the interests of justice” (at para 20).

Because of these and other judgments, the assumption over the last decade has been that the interests of justice, and not Zweni, defined the test for appealability.  As Moseneke DCJ, writing for the Constitutional Court, said in International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 4 SA 618 (CC), “the Supreme Court of Appeal has adapted the general principles on the appealability of interim orders, in my respectful view, correctly so, to accord with the equitable and the more context-sensitive standard of the interests of justice, favoured by our Constitution” (at para 53).

Thus was born a new orthodoxy.  But, as pointed out by Quentin du Plessis in the Journal of South African Law, the budding orthodoxy had some issues.  For one, both S v Western Areas Ltd and Philani-Ma-Afrika were decided in the context of the Supreme Court Act 59 of 1959, which has since been repealed by the Superior Courts Act 10 of 2013.  Second, because section 17(1) of the Superior Courts Act 10 of 2013 expressly defines necessary conditions for the granting of leave to appeal, and does not make the interests of justice the standard for appealability.  Third, because the dicta in both S v Western Areas Ltd  and Philani-Ma-Afrika were obiter: in neither case was the “interests of justice” standard actually applied to determine the appealability of the decision in question.  And fourth, because section 167(6) of the Constitution expressly makes the interests of justice the standard for appealability to the Constitutional Court, but not to any other court.

The Supreme Court of Appeal has recently vindicated many of Quentin’s arguments.  In TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggins (Pty) Ltd and Others [2023] ZASCA 63, the Court held that “[r]ecent decisions of [the Supreme Court of Appeal] which may have been tempted into the general orbit of the interests of justice should now be approached with the gravitational pull of Zweni” (at para 30).

In doing so, the Court argued that the “interests of justice” standard has a specific constitutional provenance: section 167(6) of the Constitution, which governs appeals to, and only to, the Constitutional Court (at paras 25-26).  Unterhalter AJA, writing for the court, also argued that section 16 of the Superior Courts Act “determines to which court an appeal lies.  It does not define the class of decisions that can be appealed” (at para 22).  As it was put in the article referred to above: “Section 16(1) deals merely with the question where an appeal lies.  It does not deal with the question which decisions are amenable to an appeal.”

On the whole, the decision in TWK Agriculture Holdings is to be welcomed.  The “interests of justice” standard is too indeterminate to act as a reliable guide to litigants who wish to know whether their decisions are appealable.  On the other hand, the decision leaves unclear what role section 17(1) of the Superior Courts Act plays in determining appealability.  This is unwelcome.  A further clarificatory judgment may be needed. 

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