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

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - TIM FLETCHER, DESHNI NAIDOO & LLEWELLYN AN­GUS

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:

First,

lay

with

the

ex­cep­tional

cir­cum­stances

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.

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