THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1213/2016
In the matter between:

HMI HEALTHCARE CORPORATION (PTY) LIMITED
APPELLANT

and

MEDSHIELD MEDICAL SCHEME
FIRST RESPONDENT

JOHANNES ZACHARIAS HUMAN MULLER NO
SECOND RESPONDENT

MICHAEL MMATHOMO MASILO NO
THIRD RESPONDENT

THE MASTER OF THE GAUTENG HIGH COURT,
PRETORIA
FOURTH RESPONDENT

Neutral citation:  HMI Healthcare Corporation (Pty) Limited v Medshield Medical Scheme &
others (1213/2016) [2017] ZASCA 160 (24 November 2017)

Bench:
Ponnan and Petse JJA and Tsoka, Lamont and Mbatha AJJA

Heard:
13 November 2017
Delivered:
24 November 2017
Summary: Application for rescission – whether applicant an affected party as contemplated in
Rule 42(1)(a) of the Uniform Rules of Court – whether rescission appealable.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Division, Pretoria (Tuchten J (Tolmay J concurring) and
Makgoka J dissenting sitting as a court of appeal):

The appeal is dismissed with costs including the costs consequent upon the
employment of two counsel.

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Ponnan JA (Petse JA and Tsoka, Lamont and Mbatha AJJA concurring):

[1] The appellant, HMI Healthcare Corporation (Pty) Ltd (HMI), is the sole
shareholder of Calabash Health Solutions (Pty) Ltd (in liquidation) (Calabash). Calabash
was incorporated during 1999 and commenced business as a provider of capitation
services to medical schemes in 2005. In October 2006 it concluded a written capitation
agreement1 with the first respondent, the Medshield Medical Scheme (Medshield). The
agreement commenced operating with retrospective effect from 1 January 2006 and
was to endure for a period of three years until 31 December 2008. During its
subsistence several disputes arose between the parties, consequently the agreement
came to be prematurely terminated during the middle of 2008.

1 In terms of the general regulations promulgated under the Medical Schemes Act 131 of 1998, capitation
agreement means: ‘an arrangement entered into between a medical scheme and a person whereby the
medical scheme pays to such person a pre-negotiated fixed fee in return for the delivery or arrangement
for the delivery of specified benefits to some or all of the members of the medical scheme.’

[2] Calabash was liquidated by way of a creditors’ voluntary liquidation pursuant to a
special resolution dated 13 July 2009.2 On 18 August 2009 Johannes Zacharias Human
Muller NO (the second respondent) and Michael Mmathomo Masilo NO (the third
respondent) were appointed by the fourth respondent, the Master of the Gauteng High
Court, Pretoria (the Master) as the joint provisional liquidators of Calabash. Their
appointment was subsequently made final by the Master, who issued a certificate to that
effect on 23 October 2009. At the first meeting of creditors on 22 September 2009 HMI
proved a claim in the sum of R3 530 000.00 against Calabash. The second meeting of
creditors was held on 27 October 2009 at which, a related company, Agility Global
Health Solutions Africa Ltd (Agility) proved a claim in the sum of R9 959 829.96 against
Calabash. HMI, Agility and Calabash are related companies, being subsidiaries within
the Bathabile Group of Companies.

[3] During April 2011, Medshield called for a special meeting of creditors to be
convened, at which it proved claims in the total sum of R39 226 814.40 against
Calabash. On 29 November 2012 Medshield caused summons to be issued against
Calabash, wherein it claimed payment as follows:
(i)
R2 000 000.00 in respect of claim A;
(ii)
R3 500 000.00 in respect of claim B;
(iii)
R26 526 715.00 in respect of claim C;
(iv)
R2 922 197.00 in respect of claim D;
(v)
R2 952 831.00 in respect of claim E;
(vi)
R1 025 375.20 in respect of claim F;
(vii)
R299 696.18 in respect of claim G;
(viii)
R935 605.00 in respect of claim H; and
(ix)
R459 690.00 in respect of claim I.

[4] Claims A to G, although initially proved at a meeting of creditors, were
subsequently expunged by the Master in terms of the provisions of s 45 of the
Insolvency Act 24 of 1936 (the IA). Thereafter, Medshield sought to prove claims H and

2 In terms of s 349 and 351 of the old Companies Act 61 of 1973.

I at a further meeting of creditors, but these claims were also rejected by the Master. In
expunging the claims, the Master stated:
‘The nature of the factual disputes of these claims is of such technical intensity that the Master
as a quasi-judicial officer cannot investigate and adjudicate on these claims. It would in this
instance be prudent of the Master to expunge these claims and afford creditors the opportunity
to prove their claims by way of action. All interested parties can voice their respective merits of
either proving or disallowing the claims in a court of law.’

[5] On 2 October 2012 and, at the instance of the Registrar of Medical Schemes,
Medshield was placed under provisional curatorship by the North Gauteng High Court,
Pretoria. Mr Themba Benedict Langa was appointed the provisional curator of
Medshield.

[6] On 18 December 2012 HMI applied ex parte to the North Gauteng High Court,
Pretoria for an order in the following terms:
‘1.
That, in terms of s 387(4) and s 388 of the Companies Act, 61 of 1973: –
1.1
the applicant be and is hereby empowered to defend the action instituted by Medshield
Medical Scheme (“Medshield”) against Calabash Health Solutions (Pty) Ltd (in liquidation)
(“Calabash”) out of the above Honourable Court under case number 2012/69139, in the name of
Calabash and subject to the applicant furnishing an indemnity as to cost to the duly appointed
joint liquidators of Calabash, Johannes Zacharias Human Muller NO and Michael Mmathomo
Masilo NO (“the joint liquidators”);
1.2
the applicant be and is hereby empowered to defend any other legal proceedings
brought against Calabash by Medshield, in the name of Calabash and subject to the applicant
furnishing an indemnity as to costs to the joint liquidators;
1.3
the applicant be and is hereby empowered to institute action against Medshield, or to
launch a counterclaim under case number 2012/69139, for recovery of the claim articulated in
the draft particulars of claim attached to the letter addressed by the applicant’s attorneys to the
joint liquidators on 6 September 2012, as well as for any other claim which Calabash may have
against Medshield, in the name of Calabash and subject to the applicant furnishing an indemnity
as to costs to the joint liquidators;
2.
That the costs of this application be costs in the action under case number 2012/69139,
alternatively, costs in the liquidation of Calabash, unless opposed by any third party, in which
event such third party be ordered to pay the costs of this application.’

[7] The ex parte application succeeded before Van der Merwe DJP, who issued the
following order:
‘1.
The applicant is empowered and authorised to defend the action instituted by Medshield
Medical Scheme, against Calabash Health Solutions (Pty) Ltd (In Liquidation), in the North-
Gauteng High Court under case number 2012/69139, in the name of Calabash Health Solutions
(Pty) Ltd (In Liquidation), subject to it furnishing an indemnity as to costs to the joint liquidators,
Johannes Zacharias Human Muller NO and Michael Mmathomo Masilo NO;
2.
The applicant is empowered and authorised to defend any other legal proceedings
brought against Calabash Health Solutions (Pty) Ltd (In Liquidation) by Medshield Medical
Scheme, in the name of Calabash Health Solutions (Pty) Ltd (In Liquidation), subject to it
furnishing an indemnity as to costs to the joint liquidators, Johannes Zacharias Human Muller
NO and Michael Mmathomo Masilo NO;
3.
The applicant is empowered and authorised to institute legal proceedings, either in the
form of a summons or a counterclaim, substantially in the form of annexure “A”, against
Medshield Medical Scheme, in the name of Calabash Health Solutions (Pty) Ltd (In Liquidation),
subject to it furnishing an indemnity as to costs to the joint liquidators, Johannes Zacharias
Human Muller NO and Michael Mmathomo Masilo NO;
4.
The cost of this application will be cost in the action under case number 2012/69139.’

[8] On 4 April 2013 Medshield applied to the high court to rescind the order of Van
der Merwe DJP. It sought an order in the following terms:
‘2.
Rescinding the ex parte order of his lordship, Mr Justice van der Merwe, dated 18
December 2012 (“the ex parte order”), in terms of rule 42(1)(a) of the Uniform Rules of Court;
3.
Setting aside the further steps taken by HMI Healthcare Corporation (Pty) Ltd (“HMI”)
pursuant to the ex parte order, namely:
3.1
The notice of intention to defend Medshield’s action in case number 2012/69139, filed on
behalf of Calabash Health Solutions (Pty) Ltd (in liquidation) (“Calabash”);
3.2
The notice of substitution in terms of Rule 15(2) filed by HMI on 18 December 2012; and
3.3
The special plea, plea over and counterclaim, filed on behalf of Calabash in case
number 2012/69139;
4.
Declaring that HMI is not entitled to:
4.1
defend the action instituted by Medshield against Calabash, in the name of Calabash, in
case number 2012/69139;

4.2
defend any other legal proceedings brought against Calabash by Medshield, in the name
of Calabash; and
4.3
institute any action against Medshield, or launch a counterclaim against Medshield under
case number 2012/69139, in the name of Calabash;
5.
Directing HMI to pay the costs, on an attorney and own client scale:
5.1
of this application, including the costs of two counsel; and
5.2
associated with the notice of intention to defend, the notice in terms of Rule 15(2) and
the special plea, plea over and counterclaim under case number 2012/69139, including the
costs of two counsel where applicable.’

[9] The rescission application succeeded before Tlhapi J, who subsequently granted
leave to HMI to appeal to the full court of that division. The full court (per Tuchten J
(Tolmay J concurring) and Makgoka J dissenting) dismissed the appeal. The further
appeal by HMI is with the special leave of this court.

[10] I deal later in this judgment with whether an appeal against the order of Tlhapi J
is competent. Before turning to that issue it is necessary to first consider whether
Medshield had the necessary locus standi to bring the rescission application. HMI
contends that Medshield is not an affected party as contemplated in Rule 42(1)(a) of the
Uniform Rules of Court. That rule provides:
‘The court may, in addition to any other powers it may have, mero motu or upon the application
of any party affected, rescind or vary [a]n order or judgment erroneously sought or erroneously
granted in the absence of any party affected thereby.’
An applicant for an order setting aside a judgment or order of court must show, in order
to establish locus standi, that ‘he has an interest in the subject-matter of the judgment or
order sufficiently direct and substantial to have entitled him to intervene in the original
application upon which judgment was given or order granted’.3 A court will accordingly
refrain from deciding a dispute unless and until all persons who have a direct and
substantial interest in both the subject matter and the outcome of the litigation, have

3 Per Corbett J in United Watch & Diamond Co (Pty) Ltd & others v Disa Hotels Ltd & others 1972 (4) SA
409 (C) at 415A.

been joined as parties.4 It has been held that a ‘direct and substantial interest’ is more
than a financial interest in the outcome of the litigation.5

[11] It is important to determine what interest it is that Medshield claims to have had
in the proceedings leading to the grant of the ex parte order. HMI approached the court
for relief in terms of s 387(4) of the Companies Act 61 of 1973, which provides that:
‘[a]ny person aggrieved by any act or decision of the liquidator may apply to the court
after notice to the liquidator and thereupon the court may make such order as it thinks
just.’ That provision empowers a court in the exercise of its discretion to make any order
that it considers that justice requires.6 Medshield contends that HMI failed to properly
disclose such interest as it (Medshield) had to the court hearing the ex parte application
and that its version should have been placed before the court so as to enable that court
to properly exercise the discretion conferred by s 387(4).

[12] According to Medshield, that it had locus standi to bring the rescission application
is evident from the following: First, Medshield has a direct and substantial interest in the
relief sought in the ex parte order. The extensive references in HMI’s founding affidavit
to its interactions with Medshield are evidence of this. Second, Medshield is an asserted
creditor of Calabash. It is allegedly owed a total amount of approximately R40 million by
Calabash and has instituted action against the latter for the recovery of the money. Its
claims are set out in its particulars of claim, which were attached to HMI’s founding
affidavit in the ex parte application. The Master expunged claims A to G, and rejected
claims H and I, in order that Medshield could prove its claims by way of action
proceedings. That case is pending. Until a decision is made in that action, Medshield
retains a substantial interest in the affairs of Calabash and in particular, whether HMI is
entitled to litigate on behalf of Calabash. Third, Medshield’s action against Calabash

4 See eg Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 657 and 659;
Gordon v Department of Health, KwaZulu-Natal 2008 (6) SA 522 (SCA) para 9; City of Johannesburg &
others v South African Local Authorities Pension Fund & others (20045/2014) [2015] ZASCA 4 (9 March
2015) para 9.
5 See Judicial Service Commission & another v Cape Bar Council & another 2013 (1) SA 170 (SCA) para
12, where Brand JA stated: ‘It has by now become settled law that the joinder of a party is only required
as a matter of necessity – as opposed to a matter of convenience – if that party has a direct and
substantial interest which may be affected prejudicially by the judgment of the court in the proceedings
concerned . . . .’
6 Cohen NO & another v Ruskin and Smith NNO & another 1981 (1) SA 421 (W) at 425.

appears to be the principal reason for the ex parte application. By contrast, neither HMI
nor Agility, whose claims against Calabash were also expunged by the Master, have
attempted to prove their claims against Calabash by way of action. Those claims might
well have since prescribed, in that event, HMI and Agility would no longer be creditors of
Calabash. Fourth, the terms of the ex parte order cite Medshield expressly.

[13] It thus seems clear that Medshield was indeed an affected party and that the ex
parte order was granted in its absence, despite it having a direct and substantial interest
in the relief sought. As it was put by Streicher JA in Lodhi 2 Properties Investments CC
v Bondev Developments (Pty) Ltd:7
‘Where notice of proceedings to a party is required and judgment is granted against such party
in his absence without notice of the proceedings having been given to him such judgment is
granted erroneously.’
It follows that the ex parte order could not stand and was correctly rescinded by
Tlhapi J.

[14] I turn to a consideration of whether the rescission order is appealable. It was
stated in Zweni v Minister of Law and Order8 that a judgment or order is a decision
which, as a general principle, has three attributes: first, the decision must be final in
effect and not susceptible to alteration by the court that made it; second, it must be
definitive of the rights of the parties; and, third, it must have the effect of disposing of at
least a substantial portion of the relief claimed in the main proceedings. Zweni, more
particularly the requirement of finality, has been affirmed by this court in a number of
subsequent decisions.9 In Guardian National Insurance Co Ltd v Searle NO,10 Howie
JA, with reference to the three Zweni attributes, said:11
‘As previous decisions of this court indicate, there are still sound grounds for a basic approach
which avoids the piecemeal appellate disposal of the issues in litigation. It is unnecessarily
expensive and generally it is desirable, for obvious reasons, that such issues be resolved by the

7 Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd 2007 (6) SA 87 para 24.
8 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I-533A.
9 Those judgments are usefully collated in Maize Board v Tiger Oats Ltd & others 2002 (5) SA 365 (SCA)
para 6.
10 Guardian National Insurance Co Ltd v Searle NO [1992] 2 All SA 151 (A).
11 Zweni supra fn 8 at 301B-C.

same court and at one and the same time. Where this approach has been relaxed it has been
because the judicial decisions in question, whether referred to as judgments, orders, rulings or
declarations, had three attributes.’

[15] In Pitelli v Everton Gardens Projects CC12 Nugent JA observed:
‘An order is not final for the purposes of an appeal merely because it takes effect, unless it is set
aside. It is final when the proceedings of the court of first instance are complete and that court is
not capable of revisiting the order. That leads one ineluctably to the conclusion that an order
that is taken in the absence of a party is ordinarily not appealable (perhaps there might be
cases in which it is appealable, but for the moment I cannot think of one). It is not appealable
because such an order is capable of being rescinded by the court that granted it, and it is thus
not final in its effect. In some cases an order that is granted in the absence of a party might be
rescindable under rule 42(1)(a), and if it is not covered by that rule, as Van der Merwe J
correctly found, it is in any event capable of being rescinded under the common law.’

[16] It is so that the Zweni attributes are not cast in stone13 and that even where a
decision does not bear all those attributes it may nevertheless be appealable if some
other considerations are evident. This includes instances where the order disposes of
any issue or any portion of the issue in the main proceedings14 or if the appeal ‘would
lead to a just and reasonably prompt resolution of the real issue between the parties’.15
This court has held that no distinction can be drawn between ‘a decision’ in s 16(1)(a) of
the Superior Courts Act 10 of 2013 and ‘a judgment or order’ in s 20 of the Supreme
Court Act 59 of 1959.16 Therefore, a decision for the purposes of s 16(1)(a)(i) of the
Superior Courts Act must still bear the three attributes identified in Zweni.

[17] More recently, this court and the Constitutional Court have expanded on this test
by adapting the general principles on the appealability of interim orders to accord with
the equitable and more context-sensitive standard of the interests of justice.17 A

12 Pitelli v Everton Gardens Projects CC 2010 (5) SA 171 (SCA) para 27.
13 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 10F-11C.
14 Jacobs & another v Baumann NO & others 2009 (5) 432 (SCA) at 436F-G.
15 Zweni supra fn 8 at 531D-E and Jacobs ibid at 436E-G.
16 See Neotel (Pty) Ltd v Telkom SA Soc & others [2017] ZASCA 47 (31 March 2017) and the cases there
cited.
17 Philani-Ma-Afrika & others v Mailula & others 2010 (2) SA 573 (SCA) and International Trade

consideration of the interests of justice is now of particular importance. But, this does
not mean that it is the sole consideration or that one no longer takes into account the
factors set out by this court in Zweni. Specifically, this court has held that in deciding
what is in the interests of justice, each case has to be considered on its own facts,
including whether a judgment is dispositive of the main or real issues between the
parties.18 The Constitutional Court has elaborated on this as follows:
‘The test of irreparable harm must take its place alongside other important and relevant
considerations that speak to what is in the interests of justice, such as the kind and importance
of the constitutional issue raised; whether there are prospects of success; whether the decision,
although interlocutory, has a final effect; and whether irreparable harm will result if leave to
appeal is not granted. It bears repetition that what is in the interests of justice will depend on a
careful evaluation of all the relevant considerations in a particular case.’19

[18] It is plain that a rescission order does not have a final and definitive effect. In De
Vos v Cooper & Ferreira this court expressed the view that ‘[s]o ‘n bevel [that is, a
rescission order] het immers nie enige finale of beslissende uitwerking op die
geskilpunte in die hoofgeding nie’.20 The rescission order simply returns the parties to
the positions which they were in prior to the ex parte order being granted. De Vos relied
inter alia on Gatebe v Gatebe21 and Ranchod v Lalloo.22 In Gatebe, De Villiers JP held:
‘The order therefore does not dispose of the main case or of any of the issues in the main case,
and therefore has not the effect of a definitive sentence in this behalf. It still remains to consider
whether it has not the effect of a definitive sentence in that it causes irreparable prejudice. Here
again it seems to me to be clear that an order merely rescinding a default judgment does not
cause irreparable prejudice, for in the definitive sentence the effect of the decision can obviously
be repaired.’23
In Ranchod, Millin J endorsed the reasoning of De Villiers JP. He expatiated:

Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) para 53.
18 Nova Property Group Holdings v Corbett 2016 (4) SA 317 (SCA) at paras 8-10.
19 International Trade Administration Commission supra fn 17 at para 55.
20 De Vos v Cooper & Ferreira 1999 (4) SA 1290 (SCA) at 1297A-D.
21 Gatebe v Gatebe 1928 OPD 145.
22 Ranchod v Lalloo 1942 TPD 211.
23 Gatebe supra fn 21 at 149.

‘The plaintiff's claim remains intact. Nothing has been decided about it. All that has happened is
that the defendant has been given an opportunity of answering it; and the setting aside of the
default judgment for that purpose is reparable in the final stage.’24

[19] Counsel for HMI sought to escape these authorities with the argument that the
reasoning of Tlhapi J finally determined some of the issues between the parties and, as
a result, on the facts of this case the order was indeed appealable. That argument is
untenable. First, an appeal lies not against the reasoning, but the substantive order of
the court below.25 Second, as Ranchod makes plain: ‘[I]f the question of appealability
were to depend on the facts of each case, the same order might be appealable by one
litigant but not by another; and the court would in every case have to enter into the
merits of the appeal in order to determine whether there should be an appeal.’ It may be
that the rescission order will cause HMI some inconvenience but as Harms AJA pointed
out in Zweni:26 ‘[t]he fact that a decision may cause a party an inconvenience or place
him at a disadvantage in the litigation which nothing but an appeal can correct, is not
taken into account in determining its appealability’.

[20] In my view, the rescission order bears none of the attributes identified by the
court in Zweni. This is a central consideration in determining whether the interests of
justice favour a finding that the order is appealable. By rescinding the ex parte order,
the way is paved for the parties’ respective versions to be fully ventilated and
deliberated upon by a court, thereby ensuring a resolution of the real issues between
the parties. To find that the rescission order is appealable will therefore effectively
unnecessarily delay the resolution of the true issues between the parties. The interests
of justice therefore do not favour such an order being appealable.

24 Ranchod supra fn 22 at 217.
25 See inter alia Absa Bank Ltd v Mkhize & another, Absa Bank Ltd v Chetty, Absa Bank Ltd v Mlipha
2014 (5) SA 16 (SCA); Western Johannesburg Rent Board & another v Ursula Mansions (Pty) Ltd 1948
(3) SA 353 (A) at 355; and Atholl Developments (Pty) Ltd v The Valuation Appeal Board for the City of
Johannesburg & another [2015] ZASCA 55 (30 March 2015).
26 Zweni supra fn 8 at 533B-C.

[21] In the result the appeal must fail and it is accordingly dismissed with costs,
including the costs consequent upon the employment of two counsel.

_________________
V M Ponnan
Judge of Appeal

APPEARANCES:

For Appellant:

E Kromhout

Instructed by:

Gildenhuys Malatji Inc, Pretoria

Honey Attorneys, Bloemfontein

For First Respondent:

A Subel SC (with him N Rajab-Budlender)

Instructed by:

Hogan Lovells c/o Friedland Hart Solomon & Nicolson

Attorneys, Pretoria

McIntyre van der Post, Bloemfontein
SUPREME COURT OF APPEAL SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
24 November 2017

STATUS
Immediate

HMI Healthcare Corporation (Pty) Limited v Medshield Medical Scheme & others
(1213/2016) [2017] ZASCA

Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

Today, the Supreme Court of Appeal dismissed HMI Healthcare Corporation (Pty) Ltd’s (the
appellant) claim against the judgment of the full court of the Gauteng Division, Pretoria (the full court)
in favour of the respondents. This appeal concerned whether the first respondent, Medshield Medical
Scheme, is an affected party in terms of Rule 42(1)(a) of the Uniform Rules of Court and whether the
rescission judgment of the court a quo is appealable.

The appellant is the sole shareholder of Calabash Health Solutions (Pty) Ltd (in liquidation)
(Calabash). Calabash was incorporated during 1999 and commenced business as a provider of
capitation services to medical schemes in 2005. In October 2006 it concluded a written capitation
agreement with Medshield. The agreement commenced operating with retrospective effect from 1
January 2006 and was to endure for a period of three years until 31 December 2008. During its
subsistence several disputes arose between the parties, consequently the agreement came to be
terminated before its expiry during the middle of 2008. Calabash was liquidated by way of a creditors’
voluntary liquidation pursuant to a special resolution dated 13 July 2009. During April 2011, Medshield
proved claims against Calabash and it thereafter caused summons to be issued against Calabash for
payment of the sum of R40 622 109.00.

On 12 December 2012 the appellant applied ex parte to the North Gauteng High Court, Pretoria for an
order authorising it, as the sole member of Calabash, to defend an action instituted by Medshield
against Calabash. On 18 December 2012, Van Der Merwe DJP granted the ex parte order.
Thereafter, Medshield sought to rescind the ex parte order on the grounds that it was erroneously
sought and granted in its absence. In addition, Medshield sought an order that steps taken by the
appellant pursuant to the ex parte order, be set aside and an order that the appellant is precluded in
the future from defending or instituting any claims on behalf of Calabash against Medshield.

In the court of first instance, Tlhapi J found that Medshield had a substantial interest in the ex parte
application and that the order was erroneously sought in its absence. The learned judge therefore
rescinded the ex parte order.

Subsequently, the appellant sought and was granted leave to appeal to a full court. The full court (per
Tuchten J (Tolmay J concurring) and Makgoka J dissenting) found that notice should have been given
to Medshield as it was an affected party as contemplated in Rule 42(1)(a). The appeal was therefore
dismissed and the further appeal by the appellant is with the special leave of the SCA.

On appeal to the SCA, the court stated that Medshield was indeed an affected party and that the ex
parte order was granted in its absence, despite it having a direct and substantial interest in the relief
sought. The court therefore found that that the ex parte order could not stand and was correctly
rescinded by Tlhapi J.

On the issue of whether the rescission order is appealable, the SCA found that by rescinding the ex
parte order, the way is paved for the parties’ respective versions to be fully ventilated and deliberated
upon by a court, thereby ensuring a resolution of the real issues between the parties. To find that the
rescission order is appealable will therefore effectively unnecessarily delay the resolution of the true
issues between the parties. The interests of justice therefore do not favour such an order being
appealable.

As a result, the appeal was accordingly dismissed with costs.