- July 5, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Ruling in terms of Practice Directive 61
In 2022, the applicant launched this review application which is still pending before the High Court. During the course of the review application, Menzies brought an application to interdict the Airports Company pendente lite (pending litigation i.e., the review application and appeal against Sibeya J’s judgment in the Supreme Court) from, inter alia, implementing the award or any contract entered into between the Airports Company and Paragon (the second respondent) as a result of the tender/procurement in question. In essence, Menzies sought undisturbed further permission to render the ground-handling services at the Hosea Kutako International Airport pending the finalization of the review process which included possible appeal to the Supreme Court of the outcome of the said review process.
The application pendente lite was heard on 24 April 2023 by RAKOW J who delivered judgment on 23 May 2023 in which it was held that:
a) Held further that: a year is simply too long a period from bringing the review application to instituting the pendente lite application. There was further no explanation put before the court explaining the delay in bringing the said application and the court must conclude that as such, the application lacks bona fides. To add to this, the court also took into account that the applicant knew since at least November 2021 that they were not successful but chose to only institute review proceedings in June 2022.
Therefore, the pendente lite application was dismissed with costs. Menzies brought an application for leave to appeal the Court’s refusal to grant the pendente lite interdictory relief, which was opposed by both the Airports Company and Paragon. On 5 July 2023, RAKOW J granted leave to appeal the said refusal, and in her ruling, stated that:
‘Legal Considerations and Conclusions
[15] The court first needs to decide whether the current order is indeed an appealable order as contemplated in s 18(3) of the High Court Act, 16 of 1990. This section reads as follows:
‘(3) No judgment or order where the judgment or order sought to be appealed from is an interlocutory order or an order as to costs only left by law to the discretion of the court shall be subject to appeal save with the leave of the court which has given the judgment or has made the order, or in the event of such leave to appeal being refused, leave to appeal being granted by the Supreme Court.’
[16] In deciding whether an order or judgment is appealable, in the Di Savino v Nedbank Namibia Ltd 2017 (3) NR 880 (SC) matter, Shivute CJ referred to the three attributes that must be present to identify an appealable judgment or order as follows:
‘The three attributes counsel for the appellant referred to are those set out in the decision of the South African Appellate Division in Zweni v Minister of Law and Order 1993 (1) SA 523 (AD) and as endorsed in many judgments of this court, namely that (i) the decision must be final in effect and not susceptible to alteration by the Court of first instance; (ii) it must be definitive of the rights of the parties, ie. it must grant definite and distinct relief, and (iii) it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.’
[17] Applying the above to the current matter before the court, the court finds that the dismissing of the pendente lite application in this instance indeed meets the three attributes as set out in the Zweni matter and is therefore an appealable order.
[18] The test to be applied on whether leave to appeal should be granted, the following was stated by this court in African Selection Trust SA v Namsov Fishing Enterprises (Pty) Ltd (HC-MD-CIV-ACT-CON-2016/03860) [2017] NAHCMD 363 (17 November 2017):
‘In terms of the applicable test, the court will now have to determine whether or not there is a reasonable possibility that the Supreme Court may come to a different conclusion.’
[19] After hearing and considering the arguments, this court is of the opinion that the Supreme Court may come to a different conclusion as to what this court came to, and for that reason, the application for leave to appeal must be successful.’
As a result, leave to appeal was granted with costs to be costs in the appeal.