Historically, the "interests of justice" served as a foundational ground for seeking leave to appeal from the High Court to the Supreme Court of Appeal (SCA). However, the SCA has taken a nuanced approach, shifting from reliance on this broad standard to a more structured and predictable doctrine. This article reviews the key legal precedents shaping the concept of appealability, with a focus on the decision in TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and Others ("TWK"), which clarifies the role of finality in determining whether an order is appealable, in particular the appealability of an exception.
In this matter the Defendant excepted to the Plaintiff’s amended particulars of claim, in relation to its cause of action, which was based on appraisal rights in terms of section 164 read with section 37(8) of the Companies Act 71 of 2008.
Crucial legal authorities to date in relation to the “interests of justice” ground
The SCA’s current approach is rooted in over a century of jurisprudence. Below, we outline the landmark cases that have fundamentally shaped the courts' perspective on the appealability of orders:
1. Blaauwbosch Diamonds Ltd v Union Government (Minister of Finance) 1915 AD 599 (“Blaauwbosch”)
This case dates as far back as 1915 and established a foundational rule: the dismissal of an exception is not appealable because it lacks finality. Chief Justice Innes remarked that “though the Court is hardly likely to change its mind, there is no legal obstacle to doing so upon consideration of fresh argument and further authority.” This statement addresses the doctrine of finality, which was further examined by the Courts in the Zweni case, discussed below.
2. Zweni v Minister of Law and Order [1993] 1 All SA 365 (A) (“Zweni”)
The court in Zweni refined the standard for appealability, introducing a three-part test:
a. It is final in effect and not susceptible to alteration by the court of first instance;
b. It is definitive of the parties’ rights (it must grant definitive and distinct relief); and
c. It has the effect of disposing of a substantial part of the relief claimed in the main proceedings.
This judgment remained influential for decades, but the Constitutional Court later in National Commissioner of Police and Another v Gun Owners of South Africa [2020] ZASCA 88, subsumed it under a broader "interest of justice" standard. The court emphasised that this standard is flexible and must be applied based on the specific facts of each case. It highlighted that the "interests of justice" criterion is paramount in determining both the appealability of orders and the granting of leave to appeal, regardless of any pre-Constitution common law constraints. This signalled a shift towards a more flexible and equitable approach in line with constitutional principles.
3. Maize Board v Tiger Oats Ltd and Others [2002] 3 All SA 593 (A) (“Maize Board”)
Building on Zweni, the court reiterated that a dismissal of an exception is not typically appealable because it does not dispose of the issue conclusively. However, the judgment acknowledged that this rule is not immutable. In exceptional cases—where an exception conclusively decides the issue (as set out in the case of in the case of Minister of Environmental Affairs and Another v Really Useful Investments No 219 (Pty) Ltd [2016] ZASCA 156) —the dismissal could be appealable. This flexibility signaled a move towards a more nuanced understanding of appealability, tempered by the "interests of justice."
4. TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and Others (273/2022) [2023] ZASCA 63.
In the TWK case, the SCA revisited the principles of appealability, specifically addressing the reliance on the "interests of justice" as a catch-all ground for appeals. The court clarified that while the interests of justice are relevant, they cannot be used to undermine the doctrine of finality. The SCA rejected an open-ended approach, warning that using the "interests of justice" as the sole basis for appealability would lead to “unpredictability and an open-ended" regime that could lead to judicial dysfunction.
In applying the doctrine of finality, the SCA found that the authority of considerable pedigree had held that the dismissal of an exception was not appealable because no legal obstacle stood in the way of the trial court finally deciding the point of law. The dismissal of an exception, for instance, is not typically appealable unless it represents the last word on a substantive issue.
The SCA’s decision in TWK marks a shift back to prioritizing finality over the open-ended flexibility provided by the "interests of justice." This could limit the ability of litigants to rely solely on the latter ground for appeals, particularly in commercial cases where legal certainty is paramount.
Impact of the TWK Judgment
General
The TWK judgment introduces significant implications for future appeals, particularly regarding the narrowing of the "interests of justice" ground for appealability in the SCA. This shift is likely to have the following impacts:
Stricter Appealability Criteria for the SCA
One of the primary effects of the TWK ruling is that it places greater emphasis on finality and certainty in determining whether an order is appealable. Litigants seeking to appeal to the SCA will now face stricter requirements, needing to show that the order meets the Zweni test criteria.
This limits the use of the broad and flexible "interests of justice" ground that many litigants have previously relied upon. As a result, fewer interlocutory or preliminary decisions will be appealable unless they conclusively resolve a major issue in the dispute.
Reduced Volume of Appeals to the SCA
Given the SCA’s more restrictive approach to appealability, there is likely to be a reduction in the volume of appeals brought before the court. Litigants who previously relied on the "interests of justice" argument alone may no longer find success in having their appeals heard by the SCA unless they can meet the more rigid “doctrine of finality” standard. This may lead to a decline in interlocutory appeals or appeals of rulings on procedural points like exceptions.
Increased Direct Appeals to the Constitutional Court
As the SCA narrows the scope for appealability, the Constitutional Court is likely to see an increase in direct applications. The CC retains the broader "interests of justice" criterion, which remains flexible and selective. Litigants may bypass the SCA and apply directly to the CC if they believe their case involves important constitutional matters or significant public interest.
This could lead to a shift in how appeals are structured, with more cases seeking direct leave to appeal to the highest court, especially in matters involving constitutional rights, administrative law, or issues of broad public importance.
Impact on Commercial Litigation
For commercial cases, the TWK judgment will have a considerable impact. Commercial litigants often appeal interlocutory rulings or exceptions, especially in high-stakes disputes involving contract or corporate law. The SCA’s insistence on finality as the central principle for appealability means that many such rulings may no longer be appealable unless they meet strict finality criteria.
This will likely lead to fewer delays in the litigation process, as fewer cases will be subject to piecemeal appeals, allowing commercial disputes to proceed more efficiently to trial.
Shift Towards Procedural Certainty
The SCA’s ruling in TWK is also likely to promote procedural certainty within the judicial system. By focusing on the finality of decisions, the SCA discourages the use of the appellate process as a strategy for delaying proceedings. This shift will reinforce the idea that appeals should be reserved for substantive, rather than procedural, matters, promoting more efficient and predictable outcomes in litigation.
Need for Comprehensive Legal Strategy
Future litigants will need to adapt their legal strategies in light of the stricter appealability criteria. Attorneys should ensure appeals to the SCA meet the Zweni test, rather than relying on broad "interests of justice" arguments.
Conclusion
The TWK decision represents a significant shift in the SCA’s approach to appealability, reinforcing the principles of finality and certainty in litigation. While this shift may lead to fewer appeals reaching the SCA, it provides a more structured and predictable framework for determining which cases are worthy