THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable

Case no: 605/2016

In the matter between:

NEOTEL (PTY) LTD
APPELLANT

and

TELKOM SA SOC LTD
FIRST RESPONDENT
MOBILE TELEPHONE NETWORKS
(PTY) LTD
SECOND RESPONDENT
CELL C (PTY) LTD
THIRD RESPONDENT
DIMENSION DATA (PTY) LTD T/A INTERNET
SOLUTIONS
FOURTH RESPONDENT
DR STEVEN MNCUBE NO
FIFTH RESPONDENT
MS KATHARINA PILLAY NO
SIXTH RESPONDENT
INDEPENDENT COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA
SEVENTH RESPONDENT
VODACOM (PTY) LTD
EIGHTH RESPONDENT
INTERNET SERVICE PROVIDERS’ ASSOCIATION
NINTH RESPONDENT
THE WIRELESS ACCESS PROVIDERS’ GROUP
TENTH RESPONDENT
CRYSTAL WEB (PTY) LTD
ELEVENTH RESPONDENT
SEPCO COMMUNICATIONS (PTY) LTD
TWELFTH RESPONDENT
VSNL SNOSPV PTE LIMITED
THIRTEENTH RESPONDENT
NEXUS CONNEXION SA (PTY) LTD
FOURTEENTH RESPONDENT
MINISTER OF COMMUNICATIONS
FIFTEENTH RESPONDENT
MINISTER OF TELECOMMUNICATIONS

AND POSTAL SERVICES
SIXTEENTH RESPONDENT

(HUGE TELECOM (PTY) LTD and HUGE GROUP LIMITED intervening)

Neutral citation:
Neotel (Pty) Ltd v Telkom SOC & others (605/2016)
[2017] ZASCA 47 (31 March 2017)

Bench:
Maya AP and Majiedt JA and Fourie, Gorven and Coppin
AJJA

Heard:
17 March 2017

Delivered:
31 March 2017

Summary: Appeal : Appealability : appeal against reasons for substantive
order and not the order itself: appeal struck from the roll for lack of jurisdiction:
confirmed that an appeal does not lie against reasons for an order or decision,
but against the substantive decision itself : application to intervene to support
appellant dismissed.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Fourie J sitting
as court of first instance):

The following order was made on 17 March 2017:
1. The appeal is struck from the roll.
2. The application to intervene in the appeal is dismissed.
______________________________________________________________

JUDGMENT
______________________________________________________________

Coppin AJA (Maya AP and Majiedt JA and Fourie and Gorven AJJA
concurring):

[1] Immediately after hearing counsel on the issue of appealability, the
appeal was struck from the roll and an application to intervene in the appeal,
brought by Huge Telecom (Pty) Ltd (Huge Telecom) and Huge Group Limited
(Huge Group) (the intervention application), was dismissed. The reasons for
those orders were to follow. These are the reasons.

[2] The Independent Communications Authority of South Africa (seventh
respondent) (ICASA) approved an application of Neotel (Pty) Ltd (the
appellant) and Vodacom (Pty) Ltd (eighth respondent) (Vodacom) for the

transfer of control of certain individual electronic communication service
licences and radio frequency spectrum licences, held by the appellant,
pursuant to an acquisition by Vodacom of the entire issued share capital of
the appellant. ICASA’s decision approving the transfer was taken on 11 June
2015 and published on 2 July 2015.1

[3] Telkom SA SOC Limited (first respondent) (Telkom) and other parties2
brought applications in the court a quo impugning the lawfulness of ICASA’s
decision on the application on several grounds and sought to have it reviewed
and set it aside. One of the grounds raised related to the interpretation of s
9(2)(6), read with s 13(6), of the Electronic Communications Act3 (ECA). It
relates, particularly, to the requirement of equity ownership to be held by
persons from historically disadvantaged groups in entities applying for the
transfer of a licence, or the transfer of control of a licence, contemplated in
those sections of the ECA (the Black Economic Empowerment (BEE)
requirement).

[4] It was common cause that  the appellant and Vodacom did not comply
with the BEE requirement at the time of the application and that ICASA had,
nevertheless, approved the transfer, subject to a condition that there be
compliance at some future date that still had to be determined.

1 The decision was published in Government Gazette 38951, 2 July 2015; Notice 684 of 2015.
2 Mobile Telephone Networks (Pty) Ltd (MTN) (second respondent), Cell C (Pty) Limited (Cell
C) (third respondent), Dimension Data Middle East & Africa (Pty) Ltd t/a Internet Solutions
(fourth respondent).
3 Electronic Communications Act 36 of 2005.

[5] One of the main contentions was that ICASA had erred in its
interpretation of s 9(2)(b), i.e. the BEE requirement, and that there had to be
compliance with the requirement from the outset.

[6] All the applications for review were heard together and the court a quo
gave one judgment in respect of all of them. It found that a case had been
made in respect of the BEE requirement ground and certain other grounds,4
and granted an order reviewing and setting aside ICASA’s decision. It
specifically upheld the argument that s 13(6) of the ECA, read with s 9(2)(b),
required compliance with the BEE requirement at the outset. The court a quo
held that ICASA’s approach, which was tantamount to permitting compliance
with that requirement in due course (after having approved the application),
was irreconcilable with the clear wording of s 9(2)(b). It consequently held that
ICASA had been materially influenced by an error of law as contemplated in s
6(2) of the Promotion of Administrative Justice Act5 (PAJA) and that its
decision was unlawful.

[7] The appellant brought an application for leave to appeal against the
order of the court a quo, and specifically also against its finding in respect of
the BEE requirement issue. In the meantime the transaction between the
appellant and Vodacom, which necessitated the transfer of control of the
licences, lapsed and the court a quo’s order was rendered moot. At the

4 A ‘competition’ ground, namely, that ICASA’s failure to consider competition and to defer to
the Competition Commission was materially influenced by an error of law, and a procedural
ground, namely, that ICASA was reasonably suspected of bias in making the impugned
decision.
5 The Promotion of Administrative Justice Act 3 of 2000.

hearing of its application for leave to appeal the appellant no longer sought
leave against the order, but only against the court a quo’s findings concerning
the BEE requirement in s 9(2)(b), read with s 13 of the ECA. The court a quo
in its judgment, in respect of the application for leave to appeal, states that
‘leave to appeal is not sought against the [o]rder, but only with regard to
paragraphs 75 to 80 of the judgment.’ Those paragraphs contain the court a
quo’s findings concerning the BEE requirement issue.

[8] Although adamant that it was not granting leave against its order, the
court a quo was persuaded that leave could be granted in respect of the
‘contents’ of, and the ‘reasons and findings’ in the said paragraphs of its
judgment. This was on the basis that it was in the interests of justice, and that
because its reasons relating to the BEE requirement will be relevant to each
and every application before ICASA in future and even if the order itself was
moot, it raised a discrete issue of public importance that will have an effect on
future matters of similar nature. The court a quo accordingly granted the
appellant leave to appeal to this court, and made no costs order.

[9] Save for the appellant and Mobile Telephone Networks (Pty) (second
respondent) (MTN), none of the other parties that were cited, as either
applicants or respondents in the applications before the court a quo, indicated
a willingness to participate in this appeal. A number of them, including ICASA,
indicated that they would abide by the decision of this court in respect of the
appeal. Despite its indication to the appellant that it would be participating in

the appeal, MTN did not participate and also did not file any heads of
argument. Only the appellant filed heads of argument and was pursuing this
appeal on its own, until about a week before the hearing when Huge Telecom
and Huge Group brought the intervention application with the stated intention
to support the appellant.

[10] After it was granted leave to appeal by the court a quo, as is evident
from the main heads of argument filed on its behalf, the appellant proceeded
from the basis that the only obstacle that it still had to confront in this court
was that of the mootness of the court a quo’s order, in respect of which it was
not granted leave. It sought, in its original heads of argument, to persuade this
court to exercise its discretion6 and deal with the merits of the appeal as it
constitutes ‘a discrete legal issue of public importance’7 which would affect
matters in the future. This was the same argument that it made in the court a
quo in support of its application for leave to appeal, albeit in a different
context.

[11] The spectre of the appealability of ‘the contents’ of, and of the
‘reasons, and findings’ in, certain paragraphs of the court a quo’s judgment,
was not raised by the appellant, despite its obviousness. This court mero
motu raised it and requested the appellant to address the issue in
supplementary heads of argument. More specifically, the appellant was
requested to deal with the issue of appealability and, in particular with the

6 Centre for Child Law v Hoërskool Fochville & another [2015] ZASCA 155; 2016 (2) SA 121
(SCA) at 129 para 11, where the approach in the case of mootness of an order on appeal, is
summarised.
7 Ibid at 130 para 14.

following: (a) whether it was contended  by the appellant that there is a
distinction between a ‘decision’ contemplated in s 16(1)(a) of the Superior
Courts Act,8 and a ‘judgment or order’ contemplated in s 20(1) of the Supreme
Court Act,9 (b) whether the ‘content, reasons and findings’, in respect of which
leave was granted to appeal to this court, is a ‘decision’ in terms of s 16(1)(a)
of the Superior Courts Act; and (c) on what basis, if any, it is contended that
the said ‘content, reasons and findings’ are appealable.

[12] The appellant correctly conceded in argument that there was no
difference in the meaning that was assigned to the phrase ‘judgment or order’
in s 20 of the Supreme Court Act and a ‘decision’ in s 16(1)(a) of the Superior
Courts Act. This has been held to be so.10

[13] If a decision did not constitute a ‘judgment or order’ the decision
was not appealable under the Supreme Court Act.11 Since there is no
conceptual difference between such a judgment or order and the ‘decision’
contemplated in s 16(1)(a) of the Superior Courts Act, the same would hold
true under the Superior Courts Act. The ‘judgment or order’ was held to refer
to a substantive judgment or order in terms of which the court granted or

8 Superior Courts Act 10 of 2013.
9 Supreme Court Act 59 of 1959 which was repealed by and replaced with the Superior
Courts Act 10 of 2013.
10 S v Van Wyk [2014] ZASCA 152; 2015 (1) SACR 584 (SCA) at 591 footnote 6 and the
majority judgment in Firstrand Bank Limited t/a First National Bank v Makaleng [2016] ZASCA
169 (24 November 2016) paras 10-15.
11 Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (A) at 42H-43C.

refused the relief sought.12 The same meaning has to be given to the
‘decision’ contemplated in s 16(1)(a) of the Superior Courts Act.

[14] The appellant correctly conceded that, what was before this court,
was not an order in that sense, but the reasons for such an order. The order
itself was not before this court as no leave to appeal against it was granted by
the court a quo.

[15] While accepting the trite position13 that an appeal does not lie
against the reasons for the order, it was argued on behalf of the appellant, in
essence, that this case presented an opportunity for this court to find that, in
exceptional circumstances, an appeal may lie against the reasons for an
order.

[16] Counsel for the appellant argued that this ought to be found in light
of the following: that in Philani–Ma–Afrika & others v Mailula & others14
(Philani- Ma- Afrika) and Nova Property Group Holdings Ltd & others v
Cobbett and another15 (Nova Property) this court held that a more flexible

12 See: Dickinson & another v Fisher’s Executors 1914 AD 424 at 427 and 429; Western
Johannesburg Rent Board & another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A) at 355;
Smit v Oosthuizen 1979 (3) SA 1079 (A) at 1087; SA Metal Group (Proprietary) Limited v The
International Trade Administration Commission & another (267/2016) [2017] ZASCA 14 (17
March 2017) para 15.
13 See: Western Johannesburg Rent Board supra at 355; ABSA Bank Ltd v Mkhize and two
similar cases [2013] ZASCA 139; 2014 (5) SA 16 (SCA) para 64; SA Metal Group
(Proprietary) Limited supra para 15 ;
14 Philani–Ma–Afrika & others v Mailula & others [2009] ZASCA 115; 2010 (2) SA 573 (SCA)
at 579 para 20.
15 Nova Property Group Holding Ltd v Cobbett & another [2016] ZASCA 63; 2016 (4) SA 317
(SCA) at 323 para 8.

approach was called for and that the interests of justice ought to be the main
consideration in determining appealability. Further, that the word ‘decision’ in
s 16(1)(a) of the Superior Courts Act ought to be interpreted as including the
reasons for an order or judgment, where there were exceptional
circumstances present.

[17] Counsel for the appellant contended that the following were
exceptional circumstances, namely, that the court a quo’s interpretation of s
9(2)(b), read with s 13(6), of the ECA, was part of the ratio decidendi of its
order and was binding, not only on the appellant, ICASA and the other parties,
but generally. Further, that it will affect  the future conduct of everyone bound
by it and that no one may ever again have an opportunity to challenge the
court a quo’s interpretation of s 9(2)(b), read with s 13(6), of the ECA.
Meaning, effectively, that neither the appellant, nor others affected by the
interpretation, such as the parties seeking to intervene, would be able to
transfer control of licenses, unless the BEE requirement in s 9(2)(b) of the
ECA was met at the outset. It was also submitted that the BEE issue that was
raised in this appeal was of great public importance.

[18] Counsel for the appellant submitted that the finding it was urging this
court to make, regarding the appealability, would not result in a piecemeal
consideration of matters; that even though this court was being asked, in
essence, to create an exception to the general principle that appeals do not lie
in respect of the reasons for a judgment or order, the exception would be a

narrow one and there was no danger of this court being inundated with
appeals against reasons, as a result.

[19] Counsel readily conceded that he could not cite any authority directly
in support of this ‘novel’ approach, but seemed to suggest that there was
some indirect support for it in a dictum of Moseneke DCJ in International
Trade Administration Commission v SCAW South Africa (Pty) Ltd16 (ITAC).
There, the learned Deputy Chief Justice stated; ‘[w]hilst it is true that ordinarily
an appeal lies against an order and not the reasoning in a judgment...’ 17(emphasis
added).

[20] The appellant’s reliance on the decisions in Philani-Ma-Afrika and
Nova Property is misplaced. In both matters the appeals were against
substantive orders. In Philani-Ma-Afrika the appealability of an execution
order for eviction, pending the final determination of the appeal by this court,
was considered. This court held that the belief that the execution order was
not appealable was erroneous and that it was clear from cases such as S v
Western Areas Ltd & others18 and Khumalo & others v Holomisa19 that  what
was of paramount importance in deciding whether a judgment was
appealable, was the interests of justice.20 In Nova Property the appealability of
an order to compel discovery was considered. This court held that even

16 International Trade Administration Commission v SCAW South Africa (Pty) Ltd (ITAC)
[2010] ZACC 6; 2012 (4) SA 618 (CC).
17 At 646A para 71.
18 S v Western Areas Ltd & others 2005 (5) SA 214 (SCA); 2005 (1) SACR 441 (SCA) paras
25 and 26.
19 Khumalo & others v Holomisa 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) at 411 A-B
para 8.
20 At 579 B-E para 20.

though such an order was not appealable under the traditional test laid down
in Zweni v Minister of Law and Order21 that test, as held in Moch v Nedtravel
(Pty) Ltd t/a American Express Travel Service22 was not exhaustive. Referring
to Philani-Ma-Afrika, this court concluded that even though the interlocutory
order was not appealable under the traditional test laid down in Zweni, it was
appealable in terms of s 17(1) of the Superior Courts Act. But, of significance
is that none of those decisions support the approach advanced by the
appellant in the present matter.

[21] The appellant’s reliance on the dictum in ITAC is also misplaced.
The Constitutional Court was not considering the issue of appealability, but
mentioned that it was permissible and sometimes necessary for a court to
look at the reasons for an order to fully grasp the reach and effect of that
order.23 The dictum was obiter and, read in context, makes it clear that
Moseneke DCJ was not implying that in exceptional cases an appeal lies
against the reasons for an order.

[22] The contentions of the appellant’s counsel effectively required this
court to jettison a sound principle which has been confirmed in numerous

21 Zweni v Minister of Law & Order 1993 (1) SA 523 (A).
22 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 10 E-
G.
23 ITAC supra at 646A-B para 71. The basic principle is applicable to the interpretation of a
judgment or order: Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at
304D-H.

decisions,24 including decisions of this court25 over a long period and as
recently as the same day on which the present matter was heard.26
[23] While it is so that this court has in recent times, as is evident from
the decisions referred to above, adopted a more flexible and pragmatic
approach in determining whether interlocutory orders are appealable, that did
not extend to making reasons of judgments, or orders, appealable.

[24] The approach contended for by the appellant not only holds the
potential of ‘opening the floodgates’, with its inherent challenges, but also the
undesirable prospect of matters being disposed of in a piecemeal fashion.
And, even more concerning, the ‘hollowing-out’, or erosion, of the substratum
of judgments and orders that are not before this court, and the negative
consequences accompanying such a process.27

[25] In any event, I am not persuaded that there are any exceptional
circumstances present that would justify what would be a radical departure
from a sound, tried and, doubtlessly, trusted principle. The contention that the

24 See, the locus classicus, Western Johannesburg Rent Board supra at fn 9, which followed
Molteno Bros v South Africa Railways 1936 AD 408; Haviland Estates (Pty) Ltd & another v
McMaster 1969 (2) SA 312 (A) at 335C-F; Holland v Deysel 1970 (1) SA 90 (A) at 93 E-F;
Lipschitz NO v Saambou-Nasionale Bouvereniging 1979 (1) SA 527 (T) at 529G; SOS
Kinderdorf International v Effie Lentin Architects 1993 (2) SA 481 (Nm).
25 Cape Empowerment Trust Ltd v Fisher Hoffman Sithole [2013] ZASCA 16; 2013 (5) SA 183
(SCA) at 198 I-J para 39; ABSA Bank v Mkhize supra para 64.
26 SA Metal Group (Proprietary) Limited supra para 15.
27 There are some significant similarities between the facts of the present case and those in
Molteno Bros v South African Railways supra fn 22. In that matter an exception to a
declaration had been upheld by the court of first instance on the basis that the declaration
was deficient on three grounds. The plaintiffs noted an appeal to this court in which they, inter
alia, stated that they were not questioning the correctness of the order of the court a quo in
respect of two of the grounds, but only in respect of the third ground. By a majority this court
struck the appeal from the roll on the basis that since there was no intention to reverse the
order of the court a quo it had no jurisdiction to hear the appeal.

appellant and others, who may have to comply with s 9(2)(b) of the ECA,
would not be able to do anything about the binding effect of the court a quo’s
interpretation of that section and s 13 of the ECA, is, in my view, grossly
exaggerated. There is nothing preventing anyone affected from challenging
the correctness of that interpretation in a matter where it is properly raised. It
was not for this court, in a matter such as the present, to anticipate what may
or may not be faced by those that are required to comply with the BEE
requirement, and to act precipitately and thereby unleash the undesirable
consequences referred to above, which, until thus far, have been restrained
by the sound principle that reasons for judgments and orders are not
appealable.

[26] In truth the appellant was requesting this court to give an opinion on
the meaning of s 9(2)(b), read with s 13(6), of the ECA, in circumstances
where the substantive order made by the court a quo is not before this court,
and which, consequently, is incapable of being altered or substituted. That is
not in the interests of justice.

[27] This court does not have jurisdiction in the present matter, and that
conclusion also sealed the fate of the intervention application.28

28 Since the parties who sought to intervene had no interest in the order of the court a quo,
but only in the reasons the appellant sought to advance in this court, their application to
intervene was also dismissable on the ground of a lack of a direct and substantial interest in
that order: see National Director of Public Prosecutions v Zuma 2009 (1) SACR 361 (SCA) at
392-393, paras 84-87.

[28] Accordingly, the following order was made on 17 March 2017:
1. The appeal is struck from the roll.
2. The application to intervene in the appeal is dismissed.

______________________
P Coppin
Acting Judge of Appeal

APPEARANCES:
For the Appellant:

S Budlender (with him M Musandiwa)
Instructed
by:
Bowman
Gilfillan,
Johannesburg

Honey Attorneys, Bloemfontein

For the Intervening Parties:
R Bhana SC
Instructed
by:
Norton-Rose
Fulbright,
Johannesburg
Honey Attorneys, Bloemfontein