THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 034/16

In the matter between:

FIRSTRAND BANK LIMITED

APPELLANT
T/A FIRST NATIONAL BANK

and

MODINGWANA HARRY MAKALENG

RESPONDENT

Neutral citation: FirstRand Bank Limited t/a First National Bank v Makaleng
(034/16) [2016] ZASCA 169 (24 November 2016)

Coram:
Shongwe, Tshiqi, Seriti and Willis JJA and Makgoka AJA

Heard:
7 November 2016

Delivered: 24 November 2016

Summary: Civil Procedure: an order by the high court postponing, sine die, an
application for default judgment, and directing the appellant to file, at the next
hearing within not less than six months of the said order, an affidavit detailing
attempts to prevent foreclosure, is not appealable. Appeal struck from the roll
for lack of jurisdiction.

ORDER
________________________________________________________________

On appeal from:  Gauteng Local Division of the High Court, Johannesburg
(Weiner J) sitting as court of first instance.
The appeal is struck from the roll for lack of jurisdiction with no order as to
costs.

JUDGMENT
________________________________________________________________

Shongwe JA (Tshiqi, Seriti JJA and Makgoka AJA concurring)
Introduction
[1] This appeal concerns the question whether the Gauteng Local Division of
the High Court, Johannesburg, (Weiner J, sitting as court of first instance) (the
high court) was correct in postponing the default judgment application against
the respondent-debtor, Mr Makaleng, in favour of the appellant for a money
judgment and ordering that the respondent‟s immovable property is executable.
The high court made the following order:
„1. The matter is postponed sine die, and is not to be set down in less than six months.
2. An affidavit is to be filed on the next date of hearing, detailing all efforts made by the
applicant to negotiate a settlement with the respondent, in order to prevent foreclosure‟.
This appeal is with the leave of the court a quo. A question which immediately
springs to mind, having regard to the order, is whether or not the court a quo‟s
order is appealable.

Background

[2] On 7 August 2007, the appellant and the respondent entered into a facility
agreement. In terms of this agreement, the appellant granted the respondent a
credit facility in the sum of R432 000, with which the respondent purchased

immovable property. Pursuant to the conclusion of the loan agreement, a
mortgage bond was duly registered, on 13 September 2009, in favour of the
appellant, with the registrar of deeds, over the immovable property. The
mortgage bond served as security for the loan, bearing interest at the rate of
11,75 per cent per annum, at the time of its registration. The monthly payment
due to the appellant by the respondent was the sum of R3 337.82 over a period
of 240 months. The total amount repayable was R801 076.26.

[3] The loan agreement, as loan agreements often do, contained certain
„special terms and conditions‟ under clause 3, as well as „general terms of
conditions‟ under clause 4 which terms and conditions I need not evaluate in
detail as nothing turns on them. Suffice to mention that the mortgage bond
served as security for the loan facility, and that the mortgaged immovable
property is the respondent‟s primary residence.

[4] It is common cause that the respondent fell into arrears with his bond
repayments. As a result, on 30 June 2015 the appellant sent a letter to the
respondent, which was hand delivered on 6 July 2015, informing him of his
arrears in the sum of R12 945.53, and therefore in breach of the loan agreement.
The respondent did not respond to this letter. Subsequently, on 23 July 2015, the
appellant purportedly sent a notice in terms of s 129(1)(a) of the National Credit
Act 34 of 2005 (the Act), informing the respondent of his indebtedness. Section
129(1)(a) of the Act sets out the required procedures before a debt may be
enforced and reads:
„129  Required procedures before debt enforcement
(1) If the consumer is in default under a credit agreement, the credit provider-
(a)   may draw the default to the notice of the consumer in writing and propose that   the
consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent,
consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute

under the agreement or develop and agree on a plan to bring the payments under the
agreement up to date‟.

[5] Because the respondent remained silent and was still in arrears, the
appellant on 20 August 2015, caused summons to be issued in the court a quo,
claiming payment of the sum of R262 331.23 plus interest at the rate of 8,25 per
cent per annum, calculated daily and compounded monthly from 25 July 2015
to date of payment. In addition, the appellant sought an order declaring the
immovable property executable. It is not disputed that the summons was served
on the respondent‟s wife and the return of service reflected that the respondent
was „temporarily absent‟. It is also common cause that the respondent did not
defend the action:

[6] On 28 September 2015, naturally the appellant applied for a default
judgment.  In support of this application, the appellant filed an affidavit deposed
to by the manager of its Home Loan Division in which it set out a detailed
account of the facts relevant to the application. In it, the deponent set out the
appellant‟s compliance with s 129(1)(a) of the Act, and alleged that the
respondent‟s required monthly payment towards his loan was approximately R3
000. It also stated that the respondent had fallen into arrears during September
2014 and that in the light of the total outstanding amount due by the respondent
as well as his payment history, the deponent did not believe that there was a
possibility that the respondent‟s indebtedness could be discharged within a
reasonable time without having to execute against the respondent‟s immovable
property. The deponent also stated that the appellant had no knowledge of the
respondent‟s dependents or other occupants of the immovable property, but that
the appellant was aware that it was the respondent‟s primary residence.

[7] The matter was heard on 8 October 2015 and the aforesaid order was
made on the same day. The respondent did not attend the hearing. The judgment
is brief and concise. The court a quo remarked that the application was not
served personally on the respondent as required in the high court‟s practice
directive. It also noted that the amount by which the respondent was in arrears
was very low and had not been outstanding for a lengthy period of time (only 3
and a half months). It further concluded:
„[T]he [appellant] seeks judgment for the monetary amount if the court is not prepared
to grant execution. In line with the recommendations in Absa Bank Limited v Lekuku
(32700/2013) [2014] ZAGPJH 244 (14 October 2014), judgements should not be granted in a
piecemeal fashion, ie for the monetary amount only, postponing the execution‟.

[8] Discontent with the high court‟s judgment the appellant sought leave to
appeal. The court a quo granted leave to appeal to this court, purportedly in
terms of s 17(1)(a)(ii) of the Superior Courts Act 10 of 2013. It reasoned, in its
judgment granting leave to appeal, that there were conflicting judgments in its
division and several others, pertaining to the granting of foreclosure where
personal service of summons was not effected. It also indicated that there were
disparate views regarding the status of practice directives, and that views also
varied on the question whether piecemeal judgments ought to be granted.
Consequently, it granted leave to this court. I should mention at this stage that
the respondent has not opposed the proceedings throughout. As a result, this
court sought the assistance of the Free State Bar, and we were assisted, pro
bono, by Mr Hefer, for whose help we are grateful.

[9] It is clear from the appellant‟s notice of appeal that it has taken the view
that the effect of the high court‟s judgment is a refusal of its application for
default judgment, and it mounted its appeal on several grounds. It argued before
us, that the high court did not possess a general discretion to refuse relief

claimed upon a contract, but that it indeed had a discretion not to sanction
execution against the respondent‟s immovable property – due to it being his
primary residence. The respondent argued that the high court was duly entitled
to postpone the matter, and that such postponement did not preclude the
appellant from obtaining a default judgment at the following hearing. As a
result of the view I take on the question of appealability to which I now turn, it
is not necessary to deal with these contentions.

Appealability
[10] As foreshadowed the court a quo postponed the application for default
judgment. My immediate reaction, as indicated, is to ask whether the judgment
and order is appealable. The appellant argued that it is appealable on two
grounds. Firstly that insofar as it directs the appellant to engage the respondent
in settlement negotiations, it is final. Secondly, that the Superior Courts Act 10
of 2013 has abandoned the finality of a „judgment or order‟ as a prerequisite to
appealability. Elaborating on this proposition, the appellant contrasted the
provisions of s 20 of the Supreme Court Act 59 of 1959 which referred to a
judgment and order being appealable, and sections 16 and 20 of the Superior
Courts Act 10 of 2013, which only refers to decisions.

Discussion
[11] The question of appealability of a judgment or order has, under the
Supreme Courts Act, been the subject of a large number of judgments over
many years. In Zweni v Minster of Law and Order 1993 (1) SA 523 (A), Harms
AJA (as he then was) summarised the general proposition pronounced in
various judgments as follows (at 531H-533F):
„1. For different reasons it was felt down the ages that decisions of a 'preparatory or
procedural character' ought not to be appealable (per Schreiner JA in the Pretoria Garrison
Institutes case supra at 868). One is that, as a general rule, piecemeal consideration of cases

is discouraged. The importance of this factor has somewhat diminished in recent times (SA
Eagle Versekeringsmaatskappy Bpk v Harford 1992 (2) SA 786 (A) at 791B-D). The
emphasis is now rather on whether an appeal will necessarily lead to a more expeditious and
cost-effective final determination of the main dispute between the parties and, as such, will
decisively contribute to its final solution (Priday t/a Pride Paving v Rubin 1992 (3) SA 542
(C) at 548H-I).
2. In order to achieve this result, a number of different legislative devices have been
employed from time to time. The requirement of leave to appeal is one. Another is to prohibit
appeals unless the order appealed against has the effect of a final judgment. And the Courts
have, by way of interpretation, held consistently that rulings are not appealable decisions.
3. The expression “judgment or order” in s 20(1) of the Act has a special, almost technical,
meaning; all decisions given in the course of the resolution of a dispute between litigants are
not “judgments or orders” (Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (A) at
35F-G, 42I).
4. The word “judgment” has (for present purposes) two meanings, first the reasoning of the
judicial officer (known to American jurists as his “opinion”), and second, “the
pronouncement of the disposition” (Garner A Dictionary of Modern Legal Usage sv
“Judgments”, “Appellate Court”) upon relief claimed in a trial action. In the context of s
20(1) we are concerned with the latter meaning only. An “order” is said to be a judgment for
relief claimed in application proceedings (Dickinson and Another v Fisher's Executors 1914
AD 424 at 427; Administrator, Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705
(A) at 714I-715F). I would venture to suggest that the distinction between “judgment” and
“order” is formalistic and outdated; it performs no function and ought to be discarded.
5. Section 20(1) of the Act no longer draws a distinction between “judgments or orders” on
the one hand and interlocutory orders on the other. The distinction now is between
“judgments or orders” (which are appealable with leave) and decisions which are not
“judgments or orders” (Van Streepen & Germs (Pty) Ltd v Transvaal Provincial
Administration 1987 (4) SA 569 (A)).
6. Whether so-called “simple interlocutory orders”, ie “all orders pronounced by the    Court
upon matters incidental to the main dispute preparatory to or during the progress of the
litigation” and not having a final or definitive effect, are either “judgments or orders” or
simply “rulings” has not yet been decided by this Court (the Van Streepen & Germs (Pty) Ltd
case supra at 583I-584D).

7. In determining the nature and effect of a judicial pronouncement, “not merely the form of
the order must be considered but also, and predominantly, its effect” (South African Motor
Industry Employers' Association v South African Bank of Athens Ltd 1980 (3) SA 91 (A) at
96H).
8. 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 of alteration by the Court of first
instance; 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 (Van Streepen & Germs (Pty) Ltd case supra at 586I-587B; Marsay v
Dilley 1992 (3) SA 944 (A) at 962C-F). The second is the same as the oft-stated requirement
that a decision, in order to qualify as a judgment or order, must grant definite and distinct
relief (Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another 1992 (4) SA 202
(A) at 214D-G).
9. The 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 (South Cape Corporation (Pty) Ltd v Engineering Management
Services (Pty) Ltd 1977 (3) SA 534 (A) at 550D-H). To illustrate: the exclusion of certain
evidence may hamper a party in proving his case. That party may notionally be able to prove
it by adducing other evidence. In that event an incorrect exclusion would not necessarily have
an effect on the final result. In deciding upon the admissibility of evidence a court is not
called upon to speculate upon or divine (with or without the assistance of the parties) the
ultimate effect of its decision on the course of the litigation. Should it appear at the
conclusion of the matter that an incorrect ruling amounted to an irregularity which may have
had a material effect on its outcome, the Court of appeal may, in adjudicating the “merits”,
set aside the final judgment on that ground and, in an appropriate case, remit it back to the
trial
Court
(Coopers
(South
Africa)
(Pty)
Ltd
v
Deutsche
Gesellschaft
Für
Schädlingsbekämpfung MBH 1976 (3) SA 352 (A); Caxton Ltd and Others v Reeva Forman
(Pty) Ltd and Another 1990 (3) SA 547 (A) at 566C-D).‟

[12] At 536 A-C of Zweni having reviewed further judgments, the court
remarked:

„In the light of these tests and in view of the fact that a ruling is the antithesis of a
judgment or order, it appears to me that, generally speaking, a non-appealable decision

(ruling) is a decision which is not final (because the court of first instance is entitled to alter
it), nor definitive of the rights of the parties nor has the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings‟.

[13] Recently in Nova Property Group Holdings Limited v Cobbett & others
[2016] ZASCA 63; 2016 (4) SA 317 (SCA), this court expressed the position as
follows:
„[8] On the test articulated by this court in Zweni v Minister of Law and Order, the
dismissal of an application to compel discovery, such as by the court a quo, is not appealable
as it is (a) not final in effect and is open to alteration by the court below; (b) not definitive of
the rights of the parties; and (c) does not have the effect of disposing of a substantial portion
of the relief claimed. However, three years later in Moch v Nedtravel (Pty) Ltd t/a American
Express Travel Service 1996 (3) SA 1 (A) at 10F-G, this court held that the requirements for
appealability laid down in Zweni  “. . .[d]o not purport to be exhaustive or to cast the relevant
principles in stone”. Almost a decade later, in Philani-Ma-Afrika v Mailula & others 2010 (2)
SA 573 ( SCA) para 20, this court considered whether an execution order (which put an
eviction order into operation pending an appeal) was appealable. It held the execution order
to be appealable, 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
favoured by our Constitution”. In so doing, it found the “interests of justice” to be a
paramount consideration in deciding whether a judgment is appealable.‟

[14] With regards to the question of the interest of the justice, this court
continued:
„[9] It is well established that in deciding what is in the interests of justice, each case
has to be considered in light of its own facts. The considerations that serve the interests of
justice, such as that the appeal will traverse matters of significant importance which pit the
rights of privacy and dignity on the one hand, against those of access to information and
freedom of expression on the other hand, certainly loom large before us. However, the most
compelling, in my view, is that a consideration of the merits of the appeal will necessarily
involve a resolution of the seemingly conflicting decisions in La Lucia Sands Share Block Ltd
& others v Barkhan & others 2010 (6) SA 421 (SCA) and Bayoglu v Manngwe Mining (Pty)
2012 JDR 1902 (GNP) on the one hand, and Basson v On-Point Engineers (Pty) Ltd 2012

JDR 2126 (GNP) and M & G Centre for Investigative Journalism NPC v CSR-E Loco Supply
case number 23477/2013 (8 November 2013) on the other.‟

[15] I agree with the authors DE van Loggerenberg and E Bertelsmann
Erasmus: Superior Court Practice vol 1 2016 A2-43 (looseleaf), where they say
that reference to „decisions‟ in  s 16(1) of the Superior Courts Act still
corresponds with the test articulated in Zweni, although the three attributes set
out therein are not exhaustive. The appellant‟s contention to the effect that
reference to „decision‟ has changed the requirements for appellabilty, is thus
misplaced. Counsel for the appellant was in any event unable to refer us to any
authority in this regard. If he was correct, this court would certainly be
inundated with appeals.

[16] Accordingly, we would follow the approach of this court in Absa Bank
Limited v Mkhize and two similar matters [2013] ZASCA 139; 2014 (5) SA 16
(SCA) and Absa Bank v Van Rensburg & another [2014] ZASCA 34; 2014 (4)
SA 626 (SCA). In Mkhize in a majority judgment, it was held that an order for
postponement in the circumstances of these cases amounted to no more than a
direction, from the high court, before the main action could be entered into, as
to the manner in which the matter should proceed. What had occurred in that
matter was that, not being satisfied with the service effected by Absa, the court
had directed that certain further steps be taken. It did not amount to a refusal of
default judgment, nor did it directly bear upon or dispose of any of the issues in
the main action, and could therefore not be said to be tantamount to a dismissal
of Absa’s action. It follows therefore that, as the order was not one having the
effect of a final judgment, the court lacked jurisdiction to entertain the appeal.
The appeal was accordingly struck from the roll with costs. The court stated
that:

„[63] The order does not amount to a refusal of default judgment, nor does it directly bear
upon or dispose of any of the issues in the main action, it thus cannot be said that it is
tantamount to a dismissal of Absa's action (contra Durban City Council v Petersen 1970 (1)
SA 720 (N) at 723). It may be that the order of the high court causes Absa some
inconvenience but as Harms AJA, with reference to South Cape Corporation supra, pointed
out (Zweni at 533B – C): “The 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.‟‟
[64] Accepting that this order is appealable could result in a situation where virtually every
refusal to enter default judgment, including those for want of proper service, would be
appealable. That “would indeed open the door to the fractional disposal of actions and the
piecemeal hearing of appeals” (Levco Investments (Pty) Ltd v Standard Bank of SA Ltd 1983
(4) SA 921 (A) at 928H). In seeking and obtaining leave to appeal to this court, no
consideration was given by Absa or the high court as to whether the order was indeed
appealable. Thus the fact that the high court granted leave carries the matter no further, since
its power to do so arises only in respect of “a judgment or order” within the meaning of that
expression. In truth the matter was approached as if an appeal lies against the reasons for
judgment. It does not. Rather, an appeal lies against the substantive order made by a court.
(Western Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd 1948 (3) SA
353 (A) at 355.)‟
(See also Jacobs & another v Baumann NO [2009] ZASCA 43; 2009 (5) SA
432 para 9).

[17] In the current appeal, it is clear, upon a perusal of the notice of appeal
that the appellant‟s premise is that the court a quo refused the default judgment.
For instance, one of its grounds of appeal is that „the court cannot refuse to give
effect to the implementation of contractual provisions on the basis that their
provisions appear to the court unreasonable and unfair.‟ This is an erroneous
way of interpreting the order, which is very clear, and it must be the reason why
the appellant‟s heads of argument did not comprehensively deal with the issue
of appealability. The high court granting leave to appeal could not have assisted
matters. Although the respondent‟s counsel, Mr Hefer, conceded that the matter

is appealable, he however stated that the concession was not made on the
strength of the appellant‟s submission, but because of the ambit of the high
court‟s granting of leave to appeal. As stated, the court a quo granted leave to
appeal so that the issue of conflicting judgments could be resolved by this court.
None of these conflicting judgments were at issue in the default application and
were also not at issue before us, and neither were they placed before us. In fact,
counsel for the appellant submitted that the appellant had no issue with the
practice directive. The appellant only contended that the court a quo did not
have the power, mero motu, to postpone the default judgment application. It
argued that the court a quo was enjoined to uphold the terms of the contract
between the parties and accordingly grant the appellant relief on the contract if a
case for relief is made out. As mentioned, it is not necessary to pronounce upon
these matters.

[18] It follows therefore that on the point of appealability the order of the
court a quo is not a judgment or order having the effect of a final judgment.
Accordingly, I make the following order.
„The appeal is struck from the roll for lack of jurisdiction with no order as to
costs.‟

_____________________

J B Z Shongwe

Judge of Appeal

Willis JA (dissenting):
[19]  I have had the privilege of reading the judgment prepared by my brother
Shongwe JA. I disagree with him that the judgment is not appealable.  Section
16(1) of the Superior Courts Act 10 of 2013 (the Superior Courts Act) provides

that an appeal lies „against any decision of a Division as a court of first
instance.‟1 The corresponding provision of the predecessor to the Superior
Courts Act was 20(1) of the Supreme Court Act 59 of 1959 (the old Supreme
Court Act), which provided that an appeal would lie against a „judgment or
order‟.

[20]  It is a trite principle of our law that Parliament is presumed to have been
acquainted with the interpretation of earlier legislation by the court, especially
when there has been a settled and well-recognised judicial interpretation before
the relevant legislation was passed.2 As the judgment of Shongwe JA makes
clear, there has been no dearth of authority dealing with the meaning of
„judgment or order‟ within the context of s 20(1) of the old Supreme Court Act.

[21] To my mind, it is obvious that there is not only a difference in meaning
between a „decision‟ of a court on the one hand and its „judgment or order‟ on
the other but also the legislature, against the trite background of principle to
which I have referred, must deliberately have chosen the word „decision‟ in the
new Act to make a break with the interpretation of „judgment or order‟ under
the old.

1 The provisions of s 16(1)(a)(i) of the Superior Courts Act are relevant, as the court
a quo consisted of a single judge.
2  See for example Fundstrust (Pty) Ltd (in Liquidation) v Van Deventer 1997 (1) SA
710 (A) at 732A-B; Commissioner for Inland Revenue v Estate Hulett 1990 (2) SA
786 (A) at 788A-C and Krause v Commissioner for Inland Revenue 1929 AD 286 at
297.

[22]  Although in Khumalo & others v Holomisa,3 the Constitutional Court was
dealing with a context somewhat different from the present (the word „decision‟
in its Rule 18, contrasted  with „judgment or order‟ in s 20(1) of the old
Supreme Court Act),  the unanimous judgment thereof, delivered by O‟Regan J,
gives a strong indication that it would not be appropriate to give a meaning to
„decision‟ of a high court that was equivalent to that given to „judgment or
order.‟4

[23]  Ordinary, everyday English usage gives a „decision‟ by a court a much
broader meaning than a „judgment or order‟ and , in my opinion, self-evidently
may include a decision of the kind made by Weiner J. Not only did she consider
her decision to be appealable but so also did counsel for both the appellant and
the respondent. This is also an entirely sensible interpretation at which to arrive
in the circumstances.5 That a decision by the high court may be appealable does
not mean that, willy-nilly, every decision is deserving of an appeal or that the
general rules against interlocutory, interim and procedural rulings or orders
being appealable should be jettisoned.  Besides, we already have a viable test
for appealability: „the interests of justice‟.6

3 Khumalo & others v Holomisa 2002 (5) SA 401 (CC).
4 Paras 7- 8.
5  See for example Ekurhuleni Metropolitan Municipality v Germiston Municipal
Retirement Fund [2009] ZASCA 154; 2010 (2) SA 498 (SCA) para 13; Natal Joint
Municipal Pension Fund v Emdumeni Municipality [2012] ZASCA 13; 2012 (4) SA
593 (SCA) para 18; Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun
Transport (Edms) Bpk [2013] ZASCA 176; 2014 (2) SA 494 (SCA) paras 10,12 & 19;
North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd [2013] ZASCA 76;
2013 (5) SA 1 (SCA) para 25.and Firstrand Bank Ltd v Land and Agricultural
Development Bank of South Africa [2014] ZASCA 115; 2015 (1) SA 38 (SCA) para
27.
6  See for example Nova Property Group Holdings Ltd & others v Cobbett & another
[2016] ZASCA 63; 2016 (4) SA 317 (SCA) para 8; Philani-Ma-Afrika & others v
Mailulula & others [2009] ZASCA 115; 2010 (2) 573 (SCA); S v Western Areas Ltd &
others [2005] ZASCA 31; 2005 (5) SA 214 (SCA) paras 25-26.  See also Khumalo &

[24]  The National Credit Act 34 of 2005 (the NCA) has not escaped criticism
but there can be no doubt that its purposes and provisions have required that the
courts look at the enforcement of ordinary consumers‟ debt in new ways.7
Weiner J was dealing with a conundrum that frequently arises in the high court:
how best to deal with a situation that is governed by the NCA in circumstances
where to give judgment would not seem to be in the interests of justice but,
correspondingly, to dismiss a credit provider‟s claim would also fall short of
justice‟s exacting demands?  The judge decided, in effect, to postpone the
matter for a reasonable period, to allow for the possibility that the parties could
make some sort of arrangement or reach a compromise and to call for more
information. This is a situation that cries out not only for guidance from this
court but also the kind of uniformity of practice throughout the land that a
judgment by this court, on appeal to it, would necessarily give. Accordingly, the
interests of justice require that the merits of her decision be considered in this
appeal.

[25]  The judge exercised a discretion. The Constitutional Court‟s judgment in
National Coalition for Gay and Lesbian Equality & others v the Minister of
Home Affairs & others has made it clear that an appeal court will not interfere
with a lower court‟s discretion unless that court was influenced by wrong
principles or a misdirection of the facts or if that court reached a decision the
result of which could not reasonably have been made by the court properly
directing itself to all the relevant facts and principles.8 No such finding, adverse

others v Holomisa (above) para 8.
7 See for example Nkata v Firstrand Bank Ltd [2016] ZACC 12; 2016 (4) SA 257
(CC) paras 96-98 and the cases therein referred to.
8 National Coalition for Gay and Lesbian Equality & others v Minister of Home Affairs
& others 2000 (2) SA 1 (CC) para 11.

to the high court, can be made here. I cannot fault the judge‟s exercise of her
discretion. On the contrary, I consider it to have been exemplary. By way of
contrast, an illustration of the appealability of orders of this kind may be found
by reference to the following example: suppose that a judge had postponed the
matter for so long a period of time as to visit a serious injustice upon a credit
provider. Would it be correct to refuse to hear an appeal, for the reasons given
by Shongwe JA? I think not.

[26]  In my opinion, the correct order would have been to dismiss the appeal.
As counsel for the respondent acted pro bono, no order as to costs would be
appropriate.

_____________

N P Willis
Judge of Appeal

Appearances

For the Appellant:
H M Viljoen

Instructed by:

Charl Cilliers Inc. Attorneys, Johannesburg;

Rossouws Attorneys, Bloemfontein.

For the Respondent:
J F Hefer

Instructed by:

Free State Bar of Advocates, Bloemfontein.