THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case no:1124/2022
In the matter between:
THE CITY OF TSHWANE METROPOLITAN
MUNICIPALITY

APPELLANT
and
VRESTHENA (PTY) LTD
(REGISTRATION NO. 2001/015148/07)
FIRST RESPONDENT
THE BODY CORPORATE OF
ZAMBEZI RETAIL PARK

SECOND RESPONDENT
ZAMBEZI RETAIL PARK
INVESTMENTS (PTY) LTD

THIRD RESPONDENT
THUMOS PROPERTIES (PTY) LTD                    FOURTH RESPONDENT
ZRJ PROPERTIES (PTY) LTD                                 FIFTH RESPONDENT

Neutral citation: City of Tshwane Metropolitan Municipality v Vresthena (Pty)
Ltd & Others (Case no 1124/2022) [2023] ZASCA 104 (22
June 2023)

Coram:
SALDULKER, MOTHLE, MATOJANE and MOLEFE JJA and
DAFFUE AJA
Heard:
4 May 2023
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 11h00 on 22 June 2023.
Summary: Civil Procedure – Section 18(4) of the Superior Courts Act 10 of
2013 (the Act) – interpretation of the ‘next highest court’ – whether the appellant
has a second right to an automatic appeal to approach the next highest court in
terms of s 18(4) of the Act where a full court has already heard an appeal in terms
of s 18(4) of the Act – whether the notice of appeal is irregular and the appeal
void.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Tolmay, Nyati
and Koovertjie JJ concurring, sitting as the full court on appeal):
1.
The matter is struck from the roll with costs, including the costs of two
counsel where so employed.

JUDGMENT

Matojane JA (Saldulker, Mothle, Molefe JJA and Daffue AJA concurring):

[1] The issue before us is whether s 18(4)(ii) of the Superior Court Act 10 of
2013 (‘the Act’) allows for a second automatic right to appeal to the ‘next highest
court’ under s 18(4), against an order granted under s 18(3) of the Act, with
further appeals being possible.

Background
[2] The first respondent Vresthena (Pty) Ltd (Vresthena), is the owner of six
units in the Sectional Title Scheme known as Zambesi Retail Park, which is a
shopping centre. Vresthena leases its properties to different businesses in the
scheme. These properties share a single electricity supply point. The City of
Tshwane Metropolitan Municipality (the Municipality) provides electricity to
these properties through the Body Corporate of Zambesi Retail Park. The Body
Corporate has been dysfunctional from its inception. On 28 March 2022, the

Municipality issued disconnection notices to the tenants and occupiers of the
scheme. These notices were given because the tenants and occupiers had failed
to pay for electricity and other services. As a result, the electricity and water
services were disconnected on 13 April 2022.

[3] Vresthena filed an urgent application requesting the court to compel the
Municipality to accept and review its application for a separate electricity
connection for the tenants. Additionally, Vresthena sought an order to restore its
electricity and water supply.

[4] On 16 June 2022, the Gauteng Division of the High Court, Pretoria (the
high court) per Madam Justice Ndlokovane AJ granted an interim order on an
urgent basis, ordering the Municipality to restore electricity and water supply to
the property within 14 (fourteen) days of the order. The high court further
authorised Vresthena to instruct an electrician to reconnect the electricity should
the Municipality fail to comply with the order.

[5] On 6 July 2022, the Municipality delivered an application for leave to
appeal. Then, on 23 August 2022, Vresthena filed an application under s 18(3) of
the Act. Vresthena sought a declaratory order stating that the order issued by the
high court on 16 June 2022 should not be suspended while the Municipality’s
application for leave to appeal is being considered.

[6] On 28 September 2022, the high court granted the Municipality leave to
appeal the judgment granted on 16 June 2022. The high court also ordered that
the order given on 16 June 2022 should be put into effect and carried out while
the appeal decision is pending. The Municipality exercised its automatic right of
appeal under s 18(4) by filing an appeal to the full court of the Gauteng Division
of the High Court, Pretoria (the full court), against the execution order. On 10

November 2022, the full court rejected the s 18(4) appeal and issued an order
allowing the main order to be implemented while the appeal decision was
pending.

[7] On 22 November 2022, the Municipality filed a ‘notice of appeal’ in this
Court, asserting that the phrase ‘next highest court’ in s 18(4) of the Act should
be interpreted to include more than one court of appeal. Vresthena, on the other
hand, contends that s 18(4) allows for only one appeal to the court immediately
above the lower court. Therefore, the Municipality’s notice of appeal is irregular
and, as a result, void.

Statutory provisions
[8] Section 16 of the Act regulates appeals generally and provides in s 16(1)(b)
that an appeal against any decision of a high court on appeal or of a full bench
sitting as a court of first instance lies with this Court. Leave to lodge such appeal
may be granted by the full bench or upon special leave having been granted by
this Court.

[9] Section 17(1) of the Act provides that leave to appeal can only be granted
if the judge or judges concerned are of the opinion that there is a compelling
reason why the appeal should be heard. This may include factors such as
conflicting judgments on the subject matter, the practical implications of the
order, or whether the appeal would result in a fair and timely resolution of the
actual disputes between the parties.

[10] Section 17(3) of the Act provides that an application for special leave to
appeal brought under s 16(1)(b) of the Act may be granted by this Court on an
application filed with the registrar of the court within one month after the decision
sought to be appealed against, or such longer period as may on good cause be

allowed, and the provisions of subsecs 2(c) to (f) shall apply with the necessary
changes required by the context.

[11] Sections 16 and 17 of the Act establish a requirement for obtaining leave
to appeal as a precondition for prosecuting a civil appeal. Should a litigant wish
to appeal a judgment from a provincial or local division, they must first obtain
leave to appeal from that division. Should that division not grant leave, the person
may then seek leave from this Court. This provision serves as a screening
mechanism to prevent the abuse of the appeal process and to ensure that only
cases with merit proceed to appeal. By requiring leave to appeal, the law aims to
filter out cases that do not have a reasonable chance of success, allowing the
appellate courts to focus on cases that raise significant legal issues or have a
genuine chance of being overturned.

[12] Section 18 of the Act contains a sui generis provision for an automatic right
of appeal to the next ‘highest court’ against an order made under s 18(3) of the
Act. I now turn to deal with the provision of s 18 which reads as follows:

‘(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision which is the subject of an
application for leave to appeal or of an appeal, is suspended pending the decision of the
application or appeal.
(2) Subject to subsection (3), unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision that is an interlocutory order not having
the effect of a final judgment, which is the subject of an application for leave to appeal or of
an appeal, is not suspended pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2) if the party who
applied to the court to order otherwise, in addition, proves on a balance of probabilities that he
or she will suffer irreparable harm if the court does not so order and that the other party will
not suffer irreparable harm if the court so orders.

(4) If a court order otherwise, as contemplated in subsection (1) –
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest court;
(iii) the court hearing such an appeal must deal with it as a matter of extreme urgency;
and
(iv) such order will be automatically suspended, pending the outcome of such appeal.
(5)  For the purposes of subsections (1) and (2), a decision becomes the subject of an application
for leave to appeal or of an appeal as soon as an application for leave to appeal or a notice of
appeal is lodged with the registrar in terms of the rules.’

[13] Section 18(1) of the Act regulates the suspension of a decision pending
appeal. It provides that when an application for leave to appeal or an appeal is
being considered, the implementation and execution of the decision in question
is suspended until a decision is reached regarding the application or appeal.

[14] An order issued in terms of s 18(3) is an extraordinary remedy reserved for
exceptional circumstances. It empowers a high court to deviate from the general
principle that pending an appeal, a judgment and attendant orders are suspended
if the party requesting the court to do so can prove, on a balance of probabilities,
two things. Firstly, they must demonstrate that they will suffer irreparable harm
if the court does not issue the requested order. Secondly, they must show that the
other party involved will not suffer irreparable harm if the court grants the
requested order. This provision allows the court to consider the potential harm to
both parties and make a decision that aims to prevent irreparable harm to the party
seeking the order because of the extreme nature of the remedy.

[15] Considering the context of s 18(4), it is evident that it specifies that an
appeal should be made from a single judge to a full court within the same division,
as mandated by s 17(6)(a), which designates the next highest court. Consequently,
if an order under s 18(1) is granted by a court composed of a single judge, an

automatic right of appeal lies with the full court, as it is the ‘next highest court’
in the hierarchy, which was the case in the present matter.

[16] Section 18(4)(ii) introduces a provision that grants an automatic right to
appeal to the ‘next highest court’ against an order issued under s 18(3) of the Act.
This provision is unique because it changes the general appeal processes in that
such orders, being interlocutory in nature, are generally not appealable and that
leave to appeal must first be obtained before an appeal can be lodged.
Section 18(4) establishes a mechanism for a single appeal that will be concluded
in an expedited process, as evidenced by the absence of provisions for appealing
the decision of the ‘next highest court’. In essence, the decision made by the ‘next
highest court’ in the appeal process is final and cannot be appealed any further.

[17] The current matter exemplifies the mischief that the legislature intended to
address through the introduction of s 18(4). Despite a reconnection order being
issued on 16 June 2022, an order under s 18(3) in September 2022 and an order
of the full court in November 2022, the Municipality has still not reconnected the
electricity to Vresthena, thus thwarting the purpose of the extraordinary appeal
process introduced by s 18(4).

[18] Section 18(4) of the Act serves as a protective measure to prevent
irreversible harm caused by a court granting an execution order inappropriately.
The court is required to immediately document its reasons for such a decision.
The party affected by the order has an automatic right to appeal, unlike the usual
situation where leave to appeal is required. The appeal against the execution order
is an inherent right, and the party who obtained the order cannot object to it. If
they want to uphold the execution order, they must contest the appeal. In an
instance where they want to avoid the suspension of the execution order and
potential harm, their recourse is to approach the head of the court overseeing the

appeal and take all necessary steps to expedite an urgent hearing, as provided by
this section.

[19] The Municipality argues that the automatic right of appeal should be
interpreted in a less restrictive manner. They contend that limiting litigants to only
one right of appeal would result in an interpretation that goes against the
Constitution and constitutional rights. They contend that such a restriction would
lead to injustices. Essentially, the Municipality is suggesting that allowing
multiple appeals is necessary to ensure fairness and protect the constitutional
rights of aggrieved litigants.

[20] A general principle of statutory interpretation is that the words used in a
statute should be understood in their normal grammatical sense unless this would
lead to an absurd result. In Cool Ideas 1186 CC v Hubbard and Another,1 (Cool
Ideas), the Constitutional Court added three additional principles to this general
rule. Firstly, statutes should be interpreted purposively. Secondly, the relevant
statutory provision must be properly contextualized, and lastly, all statutes must
be construed consistently with the Constitution. These three principles serve to
guide the interpretation of statutes and ensure that the law is applied in a manner
that aligns with the intended purpose and constitutional principles.

[21] Section 18(4) of the Act establishes a distinct provision that establishes a
unique category of appeals, specifically designed to be utilized solely for orders
made under s 18(3) of the Act. This provision carves out a specific and
extraordinary avenue for appeals in exceptional circumstances, especially when
it can be proved that irreparable harm would follow if the operation and execution
of a decision is suspended. The provision enhances access to court on appeal by

1 Cool Ideas 118 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC)
para 28.

guaranteeing one automatic appeal, bypassing the typical screening process
outlined in the general provisions of ss 16 and 17 of the Act. The purpose is to
streamline and facilitate access to courts for these specific appeals, providing a
more efficient and expedited avenue for seeking redress without infringing the
s 34 Constitutional right of access to courts.

[22] We endorse Navsa JA’s obiter viewpoint in Ntlemeza v Helen Suzman
Foundation,2 that s 18(4) of the Act specifically allows for a single automatic
right appeal indicating that multiple appeals are not permitted under the section.
He expressed it as follows:
‘Understandably, because it is such a dramatic change, only one appeal to the “next highest
court” is permissible. No further appeal beyond this court appears competent - for present
purposes it is not necessary to decide this point.’

[23] The language of s 18(4)(ii) is explicit and straightforward. As held in Natal
Joint Municipal Pension Fund v Endumeni Municipality,3 ‘the inevitable point of
departure is the language of the provision itself’. The provision in plain language
states that a party who is aggrieved has an automatic right of appeal to the ‘next
highest court’ (Own emphasis.) The use of the words ‘an’ and ‘court’ implies a
singular meaning, indicating a restriction on further appeals. Considering the
language, context, and purpose of the provision, the clear wording does not
support a broader interpretation to support the appellant's interpretation.

[24] The Constitutional Court in National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others,4 held that when

2 Ntlemeza v Helen Suzman Foundation [2017] ZASCA 93; [2017] 3 All SA 589 (SCA); 2017 (5) SA 402 (SCA)
para 24.
3 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);
2012 (4) SA 593 (SCA) para 18.
4 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2)
SA 1; 2000 (1) BCLR 39 para 65-66.

determining whether words should be severed from a provision or added to it, the
court takes into consideration two important factors. First, it focuses on ensuring
that the resulting provision, after the severance or addition of words, aligns with
the Constitution and its fundamental values. Second, the court aims to minimize
any interference with the laws established by the legislature. This means that the
court strives to maintain consistency with the Constitution while also respecting
the legislative intent as much as possible.

[25] The Municipality contends that the fundamental right to access to courts in
s 34 of the Constitution entails an automatic right of access to all appeal courts.
In National Union of Metal Workers of SA and Others v Fry’s Metal,5 this Court
held that s 34 of the Constitution does not explicitly provide for a right of appeal.
Unlike s 35(3)(o) of the Constitution, which specifically includes a right of appeal
or review for accused persons in their right to a fair trial, the court explained that
s 34 does not inherently imply the same right. The Court stated that even if it did,
any such right could be subject to reasonable limitations and justifiable
restrictions. Moreover, the principle of legality applies to all court decisions,
allowing them to be constitutionally reviewed. Therefore, it cannot be said that
the court’s general appellate jurisdiction automatically extends to the
appealability of all justiciable rights.

[26] In Besserglik v Minister of Trade, Industry and Tourism and Others,6 the
Constitutional Court considered the contention by the applicant in that case that
s 22 of the Interim Constitution (predecessor to s 34 of the Constitution) aimed
to ensure that individuals have the right to have their disputes resolved fairly by
a court of law, including the right of appeal. The Court dismissed this argument

5 National Union of Metal Workers of SA and Others v Fry’s Metal (Pty) Ltd 2005] ZASCA 39; [2005] 3 All SA
318 (SCA) at para 29.
6 Besserglik v Minister of Trade, Industry and Tourism and Others 1996 (6) BCLR 745; 1996 (4) SA 331 (CC)
para 10.

and held that the scope of s 22 does not necessarily imply a right of appeal. The
Constitutional Court further stated that a screening procedure, which excludes
appeals lacking merit, does not amount to a denial of access to a court. As long
as the screening process enables the highest court to assess the likelihood of
success for an appeal, it does not violate s 22 of the Interim Constitution.

[27] In view of all of the aforegoing, the notice of appeal dated 22 November
2022 delivered by the Municipality is irregular and void and no proper appeal
served before us.

[28] In the result, the following order is made:
1.
The matter is struck from the roll with costs, including the costs of two
counsel where so employed.

__________________________
K E MATOJANE
JUDGE OF APPEAL

APPEARANCES

For appellant:

M Dewrance SC with N Erasmus
Instructed by:

Diale Mogashoa Attorneys, Pretoria
Honey Attorneys, Bloemfontein

For first respondent:

P Cilliers SC with M Louw
Instructed by:

Wiese & Wiese Inc, Pretoria
Hendre Conradie Inc, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

22 June 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
City of Tshwane Metropolitan Municipality v Vresthena (Pty) Ltd & Others (Case no 1124/2022) [2023]
ZASCA 104 (22 June 2023)
Today the Supreme Court of Appeal (SCA) struck a matter from the roll with costs including costs of
two counsel.
The matter emanated from the full court of the Gauteng Division of the High Court, Pretoria (the full
court) with the issue before the SCA being whether s 18(4)(ii) of the Superior Court Act 10 of 2013 (the
Act) allows for a second automatic right to appeal to the ‘next highest court’ under s 18(4) of the Act,
against an order granted under s 18(3) of the Act, with further appeals being possible.
The first respondent Vresthena (Pty) Ltd (Vresthena), is the owner of six units in the Sectional Title
Scheme known as Zambesi Retail Park, which is a shopping centre. Vresthena leased its properties to
different businesses in the scheme. These properties shared a single electricity supply point. The
appellant, the City of Tshwane Metropolitan Municipality (the Municipality), provides electricity to these
properties through the Body Corporate of Zambesi Retail Park. The Body Corporate has been
dysfunctional from its inception. On 28 March 2022, the Municipality issued disconnection notices to
the tenants and occupiers of the scheme. These notices were given because the tenants and occupiers
had failed to pay for electricity and other services. As a result, the electricity and water services were
disconnected on 13 April 2022.
Vresthena filed an urgent application requesting the Gauteng Division of the High Court, Pretoria (the
high court) to compel the Municipality to accept and review its application for a separate electricity
connection for the tenants. Additionally, Vresthena sought an order to restore its electricity and water
supply. On 16 June 2022, the high court granted an interim order on an urgent basis, ordering the
Municipality to restore electricity and water supply to the property within 14 (fourteen) days of the order.
The high court further authorised Vresthena to instruct an electrician to reconnect the electricity, should
the Municipality fail to comply with the order.
On 6 July 2022, the Municipality delivered an application for leave to appeal, subsequently on 23 August
2022, Vresthena filed an application under s 18(3) of the Act. Vresthena sought a declaratory order
stating that the order issued by the high court on 16 June 2022 should not be suspended while the
Municipality’s application for leave to appeal is being considered.

On 28 September 2022, the high court granted the Municipality leave to appeal the judgment granted
on 16 June 2022. The high court also ordered that the order given on 16 June 2022, should be put into
effect and carried out while the appeal decision is pending. The Municipality exercised its automatic
right of appeal under s 18(4) by filing an appeal to the full court against the execution order. On 10
November 2022, the full court rejected the s 18(4) appeal and issued an order allowing the main order
to be implemented while the appeal decision is pending. On 22 November 2022, the Municipality filed
a notice of appeal in the SCA, asserting that the phrase ‘next highest court’ in s 18(4) of the Act should
be interpreted more boadly to include more than one court of appeal. Vresthena, on the other hand,
contended that s 18(4) of the Act allows for only one appeal to the court immediately above the lower
court, and therefore, the Municipality’s notice of appeal is irregular and as a result void.
In addressing the issue on appeal, the SCA held that s 18(4) of the Act establishes an extraordinary
provision that establishes a unique category of appeals, specifically designed to be utilised solely for
orders made under s 18(3) of the Act. It further held that this provision carves out a specific and
extraordinary avenue for appeals in exceptional circumstances, especially when it can be proved that
irreparable harm would follow if the operation and execution of a decision is suspended.
The SCA further reasoned that the language of s 18(4)(ii) of the Act is explicit and straightforward in
that it states that a party who is aggrieved has an automatic right of appeal to the ‘next highest court’
and that the use of the word ‘an’ and ‘court’ in s 18(4)(ii) of the Act indicates a meaning in the singular
rather than allowing for multiple appeals. The clear wording of the provision does not warrant a wider
interpretation and does not conflict with constitutional principles. Consequently, the SCA reasoned that
the remedy of reading down the section cannot be employed to endorse the Municipality’s interpretation
and that it cannot be said that a court’s general appellate jurisdiction automatically extends to the
appealability of all justiciable rights.
In the result, the SCA concluded that the notice of appeal dated 22 November 2022 delivered by the
Municipality is irregular and void and no proper appeal served before the SCA. Consequently, the matter
was struck from the roll with costs, including the costs of two counsel where so employed.
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