Section 18 of the Superior Courts Act – When will a judgment under appeal not be suspended pending the Outcome of the Appeal process?

Interden Management Services (PTY) LTD and Another v Denneboom Informal Traders and Others.

The Court looks at a Leave to Appeal Application and the effects of the suspension of a previously granted order. The requirements of section 18 of the Superior Courts Act (hereinafter referred to as “the Act”), is analysed and applied as well as the definition of exceptional circumstances.

Section 18 has 3 subsections which the court analysed and applied, namely:

“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”.

In other words, subsection one (1) says; when a Leave to Appeal Application is brought to the court, the order under appeal is suspended, until the leave to appeal can be heard and judgement is passed, UNLESS there are exceptional circumstances. Subsection two (2) states: that if the leave to appeal is based on an order in an interlocutory application the order that is being appealed will NOT be suspended unless there are exceptional circumstances.

Subsection three (3) is the test used to determine whether an order should be suspended or not during a Leave to Appeal Application. The test has three (3) requirements:

  1. Whether or not exceptional circumstances exist
  2. Proof on a balance of possibilities by the applicant that:

2.1 There will be irreparable harm to the applicant if the appealable order is suspended

2.2 The absence of irreparable harm to the respondent, who seeks leave to appeal.

The court in the above-mentioned case analysed the phrase exceptional circumstances and found that a “strict rather than literal meaning to the phrase” should be applied to really emphasise the legislature’s intention. The court found the phrase to mean ‘something out of the ordinary, unusual, rare or different’. The exceptional circumstances should be a matter of fact, the court should not apply any form of discretion to the circumstances.

The court found that the applicants in the above-mentioned case were able to prove that irreparable harm would have come to them had the order remained suspended during the Leave to Appeal application. They were also able to show that there would not be any irreparable harm to the respondents and that sufficient means had been taken to assist the respondents. The court also found that the order that was under appeal had been granted in an urgent court and therefore should be treated urgently, creating exceptional circumstances. The court stated that section 18(3) of the Act had been complied with and therefore stated that the order under appeal should NOT be suspended due to the irreparable harm it could have on the applicant.

The three (3) requirements in section 18(3) as stated above, are all that one has to use in order to give effect to an order pending in an Application for Leave to Appeal.