THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 566/10

In the matter between:

MARK JULIAN ATKIN

Appellant

and

PETRUS JACOBUS BOTES

Respondent

Neutral citation: Atkin v Botes (566/10) [2011] ZASCA 125 (9 September

2011).

Coram:
CLOETE, VAN HEERDEN, BOSIELO and SERITI JJA,

and MEER AJA

Heard:
17 AUGUST 2011

Delivered:
9 SEPTEMBER 2011

Summary:
An interdict restraining the respondent from disposing of part
of its assets pending an action for damages is not appealable.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: North Gauteng High Court (Pretoria) (Makgoka J sitting as
court of first instance):

The appeal is struck off the roll. The appellant is ordered to pay the
respondent's costs.
______________________________________________________________

JUDGMENT
______________________________________________________________

CLOETE JA (VAN HEERDEN, BOSIELO and SERITI JJA, and MEER AJA
concurring):

[1] This appeal raises the question whether the grant of an interdict, which
prevents a respondent from freely dealing with its assets in order to defeat a
judgment the applicant believes it will obtain in due course in an action for
damages, is appealable.

[2] In May 2009 the respondent, Botes, was shot with a firearm by the
appellant, Atkin. On 5 February 2010 Botes instituted an action against Atkin
for delictual damages arising from the shooting. On 26 February 2010 and at
the suit of Botes, Van der Byl AJ in the North Gauteng High Court granted, ex
parte, an urgent interim interdict with immediate effect. The interdict restrained
Atkin's attorneys (the second respondent in the court a quo) from paying out
the nett proceeds of the sale of Atkin's house, and directed them to invest
such proceeds in an interest bearing account 'with an acknowledged bank'
pending finalisation of Botes' action for damages. Atkin anticipated the return
day. Makgoka J confirmed the interim order on 31 March 2010 and
subsequently granted leave to appeal to this court.

[3] The interdict granted by the court a quo is of the type discussed in
Knox D'Arcy Ltd & others v Jamieson & others 1996 (4) SA 348 (A). Its factual
basis was the conclusion by Makgoka J that Botes' apprehension that Atkin
was dissipating his assets with the intention of defeating Botes' claim for
damages, was well founded. It is this finding which Atkin sought to challenge
on appeal.

[4] At the request of the court, counsel filed heads of argument dealing
with the appealability of the order. Not surprisingly, counsel for Atkin
contended that the order was appealable, whilst counsel for Botes contended
to the contrary. As in many cases where this question has been raised, the
answer is far from obvious. Schutz JA said in Cronshaw & another v Coin
Security Group (Pty) Ltd1 1996 (3) SA 686 (A) at 690D-E:
'Where to draw the line between decisions which are "interlocutory" and such as
have to await their decision on appeal until the proceedings in the court of first
instance have been concluded, and those which are "final", deserving to be
appealable before the main suit is, is a question that has vexed the minds of eminent
lawyers for many centuries, and the answer has not always been the same. The
question is intrinsically difficult, and a decision one way or the other may produce
some unsatisfactory results.'

[5] In Knox D'Arcy it was definitively held,2 approving previous authority to
this effect, that the refusal of an interim interdict is appealable. However, E M
Grosskopf JA also discussed, obiter, the position in regard to the grant of an
interim interdict, as follows:3
'In passing it may be noted that the grant of an interim interdict stands, historically, on
a different footing. As far back as Prentice v Smith (1889) 3 SAR 28 the Court held
(at 29) that an order granting an interim interdict "is an interlocutory order, and that
consequently there can be no appeal". On the whole this view was followed in the
Provincial Divisions (see Loggenberg v Beare 1930 TPD 714; Davis v Press & Co
[1944 CPD 108]; and authorities referred to in those cases) and, ultimately, prevailed
in the Appellate Division (African Wanderers Football Club (Pty) Ltd v Wanderers

1 Incorrectly cited in the law reports and on the internet as 'Cronshaw & another v Fidelity
Guards Holdings (Pty) Ltd'.
2 At 356H-359E.
3 At 359F-360C.

Football Club 1977 (2) SA 38 (A) at 46H-47A and Cronshaw's case supra). Some
Judges have questioned the validity of the distinction between the refusal and grant
of an interim interdict. This distinction cannot be justified by the nature of the
proceedings giving rise to the decision ─ it is the same in both cases (see, for
example, Davis v Press & Co (supra at 118 per Fagan J)). And it may be argued that
the prejudice suffered by the unsuccessful party also does not differ in principle. See
Davis' case supra at 112-13 (De Villiers J). However, in Loggenberg's case supra,
Greenberg J expressed the view (at 723) that "there is in fact a real distinction on the
question of irreparability between the case of a granting of a temporary interdict and
the refusal of a temporary interdict". There may also be a difference in the finality of
the decision. Thus, as stated above, the refusal of an interim interdict is final. It
cannot be reversed on the same facts (I disregard the possibility, discussed above, of
a refusal on some technical ground). The same may not be true of the grant of an
interim interdict. It may be open to the unsuccessful respondent to approach the
Court for an amelioration or setting aside of an interdict, even if the only new
circumstance is the practical experience of its operation. And, apart from the
theoretical differences between the grant and the refusal of an interdict, there is also
the practical one, discussed in Cronshaw's case at 12-15,4 that an appeal against the
grant of a temporary interdict would often be inconsistent with the very purpose of
this remedy. See also Davis v Press & Co (supra at 119 (Fagan J)). It is, however,
not necessary to pursue this matter any further. The appealability of the grant of an
interim interdict does not arise directly for decision in this matter and is in any event
concluded by authority.'

[6] In Metlika Trading Ltd & others v Commissioner, South African
Revenue Service 2005 (3) SA 1 (SCA) this court held that an interim interdict
is appealable if it is final in effect and not susceptible to alteration by the court
of first instance. The decision also emphasised5 that in determining whether
an order is final in effect, it is important to bear in mind that 'not merely the
form of the order must be considered but also, and predominantly, its effect'.6
The crucial question in the appeal is therefore whether the granting of the

4 The reference is to the typed judgment in the archives of this court. The passage in question
appears at 691B-G of the reported judgment.
5 In para 23.
6 South African Motor Industry Employers' Association v South African Bank of Athens Ltd
1980 (3) SA 91 (A) at 96H. See also Zweni v Minister of Law and Order 1993 (1) SA 523 (A)
at 532I and JR 209 Investments (Pty) Ltd & another v Pine Villa Country Estate (Pty) Ltd; Pine
Villa Country Estate (Pty) Ltd v JR 209 Investments (Pty) Ltd 2009 (4) SA 302 (SCA) para 25.

interim interdict was final in effect. Counsel for Atkin relied on Metlika and JR
209 Investments (Pty) Ltd & another v Pine Villa Country Estate (Pty) Ltd;
Pine Villa Country Estate (Pty) Ltd v JR 209 Investments (Pty) Ltd 2009 (4)
SA 302 (SCA) in support of his argument that this was indeed so.

[7] The JR 209 Investments case is not of assistance in deciding the
present appeal. The order there was clearly final in effect. The same applies
to Maccsand CC v Macassar Land Claims Committee & others [2005] 2 All
SA 469 (SCA), another decision of this court. I shall deal with these two
decisions first, and then with Metlika.

[8] In the JR 209 Investments case there was a dispute between the seller
and the purchaser of an erf, Portion 7, in a township being developed by a
developer. The seller instituted action for retransfer of the erf. The court a quo
granted an interim interdict pending the final adjudication of the action. This
court said:7
'The order which was sought and granted had as its substrate that the purchaser and
the developer were prohibited from proceeding with the establishment of the
township as a whole and not only in respect of the development of Portion 7. The
order affected the entire development, yet the dispute between the parties related to
Portion 7 only. The order was overbroad. The right to develop the township as a
whole is not an issue that would be decided by the trial court and it was consequently
final in effect even if only for a limited period. In our view the merx could have been
preserved without the necessity for an order in those terms. It follows therefore that
the order of Rabie J was appealable.'

[9] In the Maccsand case, the Macassar Land Claims Committee brought
a claim in the Land Claims Court for restoration of the erf on which Maccsand
conducted its sand mining operations, on the basis of unregistered
commonage rights previously held by the owners of certain lots situated
adjacent to the erf. This court said:8
'It is settled law that in determining whether a decision is appealable "not merely the
form of the order must be considered but also, and predominantly, its effect" (South

7 In para 26.
8 In para 12.

African Motor Industry Employers' Association v South African Bank of Athens Ltd
1980 (3) SA 91 (A) at 96H, Zweni (supra) at 532I and Metlika (supra) at paragraph
23). Maccsand's right to mine exists for a limited period. The Land Claims
Commission, despite the passage of a considerable length of time, has not, because
of the complexity of the matter and the expense involved, commenced with the
verification of the claim. It was perhaps for this reason that the Committee decided to
approach the LCC directly. Counsel for the Committee conceded in argument that to
date the necessary research to verify the claim had not even commenced because of
a shortage of funds. The conclusion is inevitable in that because of the interdict
Maccsand will be unable to invoke its right to mine for a substantial period of time, if
at all, since if the delays that have occurred till now are an indicator, its rights to mine
may be lost forever. Accordingly as far as Maccsand is concerned the interim
interdict is final in effect. The interim order granted by the court a quo is therefore in
my view appealable.'

[10] In Metlika, interdicts were granted by the court a quo aimed at
preserving certain assets (including an interest in an aircraft) pending a claim
by the Commissioner of the South African Revenue Service for a declaratory
order that the owners of the assets were persons against whom income tax
assessments had been raised. Subsequent developments were held by the
court a quo to have been designed to undermine the preservation order. That
court accordingly made further orders inter alia directing that the aircraft be
returned to South Africa. The decisive question on appeal was whether the
court a quo had jurisdiction to make this order. Streicher JA first considered
whether the order was appealable, and then considered whether the court a
quo had jurisdiction to make it. Both questions were answered in the
affirmative. In coming to this conclusion on the first question, the learned
Judge of Appeal said:9
'The order that steps be taken to procure the return of the aircraft to South Africa, as
well as the other orders relating to the aircraft, were intended to have immediate
effect, they will not be reconsidered at the trial and will not be reconsidered on the
same facts by the Court a quo. For these reasons, they are in effect final orders.'

9 In para 24.

[11] It was not, with respect, necessary for the court to have followed the
approach which it did. A challenge to a court's jurisdiction, which (as I have
said) was the decisive issue in the appeal, is appealable simply because it
concerns the competence of the court to grant the relief sought: Moch v
Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at
10E-11B; Phillips v National Director of Public Prosecutions 2003 (6) SA 447
(SCA) para 19. In any event, the decision in Metlika does not provide an
answer in the present appeal inasmuch as the order made by the court a quo
is, for the reasons which follow, capable of being altered by that court.

[12] Howie P said in Phillips,10 in the course of contrasting provisions of the
Prevention of Organised Crime Act 121 of 1998:
'And in the case of a common-law interim interdict or attachment pendente lite there
is no reason why, for sufficient cause, they would not, generally, be open to variation,
if not rescission.'
This is just such a case. To borrow from the passage already quoted from
Knox D'Arcy, Atkin could approach the court a quo for an amelioration or
setting aside of the interdict because of the practical experience of its
operation. According to Atkin, he was unemployed at the time the interdict
was made final and he had sold his house to tide him and his dependants
over until he obtained employment. The trial was due to commence earlier
this month, ie some 18 months after the order was made, but we were
informed from the bar that it had been postponed sine die. It may well be that
Atkin could show that the continued operation of the order would work great
hardship on him, his family, and his ex-wife and severely handicapped minor
child whom he is obliged to maintain in terms of a court order. If so, he would
be entitled to request the court a quo to reconsider the order and that court
would be entitled to vary or even rescind it. For that reason the order made in
the interdict proceedings cannot be said to have final effect. It is therefore not
appealable.

10 In para 21.

[13] The appeal is struck off the roll. The appellant is ordered to pay the
respondent's costs.

_______________
T D CLOETE
JUDGE OF APPEAL

APPEARANCES:
APPELLANTS:

G C Muller SC
Instructed by Gerard Stoop Attorney, Pretoria
Honey Attorneys Inc, Bloemfontein

RESPONDENTS:

J G W Basson
Instructed by Pieterse & Curlewis Inc, Pretoria
Martins Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal
Date: 9 September 2011

Status: Immediate
Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

MARK JULIAN ATKIN v PETRUS JACOBUS BOTES

1.
The appellant, Atkin, shot the respondent, Botes, with a firearm. Botes sued Atkin for
damages. Botes also alleged in ancillary proceedings that Atkin was dissipating his assets in
order to defeat Botes' claim. The North Gauteng High Court agreed and issued an interdict
preventing Atkin's attorneys from paying over to him the proceeds of the sale of his house,
pending the conclusion of Botes' action for damages.

2.
Atkin noted an appeal to the SCA. The SCA pointed out that the interdict could be
altered or even discharged by the North Gauteng High Court if its continued operation caused
hardship to Atkin or his family. The interdict was therefore not final, and not appealable for
that reason. The appeal was struck off the roll.

--ends--