For litigants seeking to challenge judicial decisions, understanding when a court will grant leave to appeal is crucial. The criteria are set out in section 17(1)(a) of the Superior Courts Act 10 of 2013 (“the Superior Courts Act”), which allows a judge to grant leave to appeal only if there is a reasonable prospect of success or some other compelling reason, such as conflicting judgments on the matter. However, before assessing the merits of the case, the court must first determine whether the order in question is “appealable.”
The appealability of a court order is not automatic. According to the precedent set in Zweni v Minister of Law and Order 1993 (1) SA 365 (A), for an order to be appealable, it must satisfy three essential criteria:
- Finality: The order must have a final effect, meaning it is not open to alteration by the court of first instance;
- Definitiveness: The order must definitively affect the rights of the parties involved; and
- Substantial Effect: The order must dispose of at least a significant portion of the relief claimed in the main proceedings.
If these conditions are not met, the order is generally not appealable. For example, an interlocutory order—one made at an intermediate stage of litigation to address procedural or preliminary issues—usually lacks finality and is therefore not appealable. Courts are reluctant to allow appeals of interlocutory orders to avoid “piecemeal appeals”, which can unnecessarily prolong litigation and increase costs.
However, as was emphasised by the Supreme Court of Appeal (“SCA”) in the recent case of MEC for Economic Development, Gauteng and Another v Sibongile Vilakazi and Others (783/2023) [2024] ZASCA 126, in deciding whether an order is appealable, it is not enough to examine the form of the order; its effect is equally, if not more, important. Accordingly, an order, although interlocutory in form, may be considered appealable if its effect is such that it has, inter alia, a final and definitive impact on the parties’ rights.
The court may also permit an appeal of an interlocutory order if it serves the broader interests of justice. This discretionary standard allows courts to consider factors including fairness, efficiency, and the practical impact of the order on the parties. For instance, if an interlocutory order effectively resolves critical issues in the case or imposes significant consequences that cannot be easily reversed, a court might allow the appeal.
In light of the above, when seeking leave to appeal, litigants must first assess whether the court order is appealable. Under the Superior Courts Act and established case law, an order is considered appealable where the decision is final in effect and not open to alteration by the court of first instance, where it is definitive of the rights of the parties and where it has the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. While interlocutory orders are not typically appealable, exceptions exist where the order’s effect has a final or significant impact on the parties’ rights. Courts also retain discretion to permit appeals of interlocutory orders if doing so serves the broader interests of justice, balancing fairness, efficiency, and the practical consequences for the parties involved.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).