THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case no: 1046/2023

In the matter between:
HASHTAG MOVEMENT
APPELLANT
and
ETHIOPIAN CHURCH OF SOUTH AFRICA         FIRST RESPONDENT
JOHNSON SIBONDA LUPHUWANI                   SECOND RESPONDENT
SANDILE ZONDI                                                       THIRD RESPONDENT
ENOCK VUSUMUZI MDLALOSE                      FOURTH RESPONDENT
ANNA MAROSHA
FIFTH RESPONDENT
SIBUSISO AGRICOLIST STHEBE                          SIXTH RESPONDENT
KINGDOM ZWELINJANI KHANGELANI
NDLOVU                                                                SEVENTH RESPONDENT
ALFRED MILINDENI MZILA
EIGHTH RESPONDENT
SONWABO DLULA                                                   NINTH RESPONDENT
ZINGISILE NGQAMSHOLO
TENTH RESPONDENT
TSHEPO ERROL TSOANYANA                    ELEVENTH RESPONDENT
SOLOMON SERAME NNETE                          TWELFTH RESPONDENT
MBULELO GQAJI
THIRTEENTH RESPONDENT
DESMOND MTHETHELELE
GABONI                                                        FOURTEENTH RESPONDENT

Neutral citation: Hashtag Movement v Ethiopian Church of South Africa and
Others (1046/2023) [2023] ZASCA 173 (8 December 2023)

Coram:
PETSE DP, MATOJANE and GOOSEN JJA and BINNS-
WARD and MASIPA AJJA

Heard:

28 November 2023

Delivered:
This judgment was handed down electronically by circulation
to the parties’ representatives by email, published on the Supreme Court of
Appeal website, and released to SAFLII. The date and time for hand-down is
deemed to be 11h00 on 8 December 2023.

Summary:
Automatic appeal in terms of s 18(4) of Superior Courts Act
10 of 2013 – order made by a single judge of a High Court – appeal lies to the
full court of the Division as next highest court – this Court lacks jurisdiction –
appeal struck from the roll.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Bhisho (Matebese
AJ, sitting as court of first instance):
The appeal is struck from the roll with costs, including the costs of two counsel.
________________________________________________________________

JUDGMENT
________________________________________________________________
Goosen JA (Petse DP, Matojane JA and Binns-Ward and Masipa AJJA
concurring):

[1] On 28 November 2023, this Court heard argument in an appeal prosecuted
in terms of s 18(4) of the Superior Courts Act 10 of 2013 (the Act). An order was
made striking the appeal from the roll with costs, including the costs of two
counsel. It was stated that reasons for the order would be provided to the parties
later. These are the reasons. It is unnecessary to burden these reasons with an
account of the litigation preceding the appeal and the issues which are said to be
engaged in the appeal.

[2] The hierarchy of our courts is plainly established. This Court is a national
appellate court. It hears appeals against judgments of the divisions of the high
court. It does so upon the basis set out in s 17 of the Act. The section provides
that an appeal from a decision of a single judge of the high court lies to a full
court of that division, unless directed otherwise. This is the default position. Thus,
a single judge sitting as a court of first instance against whose decision leave to
appeal is sought may, in terms of s 17(6) of the Act, only direct otherwise under

circumscribed circumstances. He or she may do so where: (a) the decision to be
appealed involves a question of law of importance, whether because of its general
application or otherwise, or in respect of which a decision of the Supreme Court
of Appeal is required to resolve differences of opinion; or (b) the administration
of justice, either generally or in the particular case, requires consideration by the
Supreme Court of Appeal of the decision, in which case they must direct that the
appeal be heard by the Supreme Court of Appeal.1 None of these two crucial
prerequisites is satisfied in this case. The full court of a division is, therefore, the
next highest court above a court comprised of a single judge. This is manifest in
the text of the section itself.

[3] Section 18 deals with the consequences of an appeal against a judgment. It
provides, in relevant part, that:
‘(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.
. . .
. . .
(4)
If a court orders 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.’

[4] Subsection (4)(ii) confers an automatic right of appeal to the next highest
court. Most recently, in City of Tshwane Metropolitan Municipality v Vresthena
(Pty) Ltd and Others,2 this Court stated that:

1 See in this regard s 17(6)(a)(i) and (ii).
2 City of Tshwane Metropolitan Municipality v Vresthena (Pty) Ltd and Others [2023] ZASCA 104 para 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.’

[5] In this case too, the order which was made in terms of s 18(1) of the Act
was made by a single judge of the high court. Accordingly, the automatic appeal
lies to the full court of the Eastern Cape Division of the High Court.
Consequently, this Court does not have the jurisdiction to hear the appeal.

[6] No basis was advanced for why the appellant should not pay the costs that
the respondent was compelled to incur because of the prosecution of the appeal
before this Court. For the sake of completeness, I repeat the order:
The appeal is struck from the roll with costs, including the costs of two counsel.

____________________
G GOOSEN
JUDGE OF APPEAL

Appearances

For the appellant:

D Kela and M Sebopa
Instructed by:

T Faku Attorneys Inc, Johannesburg

C/o Maduba Attorneys, Bloemfontein

For the 1st to 14th respondents: A M Bodlani SC and L Van Vuuren
Instructed by:

Sakhele Incorporated, East London
C/o Eugene Attorneys, Bloemfontein.