Don’t celebrate your victory too soon
Superior Courts Act in effect from last year introduces stricter test which has tipped the scales in favour of the appellant for leave to appeal
HAVING your day in court and winning is cause for celebration, but when should you celebrate? Your celebration can be cut short when your hard won court order is automatically suspended pend- ing an application for leave to appeal. This was the case under Rule 49(11) of the Uniform Rules of the High Court, but s18(1) of the Superior Courts Act, No 10 of 2013 — which came into operation on 23 August 2013 — has tipped the scales in favour of the appellant.
Before s18 of the Superior Courts Act came on the scene earlier this year, Rule 49(11) of the Uniform Rules provided that unless the court otherwise directs, an order of court is suspended pending the decision of an application for leave to appeal.
The common law gave the judge hearing such a matter a wide discretion to decide whether or not to allow the order to be put into effect notwithstanding the appeal.
The applicant in terms of Rule 49(11) would need to show that it would suffer irreparable harm if the order was not executed, that irreparable harm would not be suffered by the appellant if the order were to be executed, that the prospects of success on appeal were poor and that the balance of hardship or inconvenience applicant.
S18 of the Superior Courts Act has introduced a stricter test which provides that the court must find as a matter of fact that there are exceptional circumstances rather than the court exercising its discretion. The automatic suspension of the order is still in place pending the decision of the application or appeal.
To be successful in avoiding the suspension of an order, a party will now have to show that exceptional circumstances exist justifying the lifting of the suspension of the order.
In addition the applicant will still need to show that it will suffer irreparable harm and that the other party will not suffer irreparable harm if effect is given to the order.
The impact of s18 on Rule 49(11) was considered recently in the case of Incuberta Holdings (Pty) Ltd v Ellis. The court held that the new test is twofold:
The common law gave the judge hearing such a matter a wide discretion to decide whether or not to allow the order to be put into effect notwithstanding the appeal
must exist. Exceptionality is that which is out of the ordinary and of an unusual nature. The circumstances concerned must arise from or be incidental to the particular case. Whether exceptional circumstances exist is not a decision based on discretion, but must be a finding of fact.
Secondly, there must be proof of irreparable harm to the party who wishes to put into operation the order and proof of the absence of irreparable harm to the party who seeks leave to appeal.
S18 goes even further, however, to provide that even if a court does uplift the suspension of an order, that decision to lift the suspension is itself automatically appealable (in that an application for leave to appeal is not required) and in the event of the decision being appealed, the execution of the original order is suspended again.
Litigation is rarely a sprint: usually it’s a marathon, or sometimes a steeplechase. But the trick is in knowing when to open the champagne.