By Simbongile Siyali and Nwabisa Sanda

The question of whether interim orders are appealable is a complex one that has been subject to judicial interpretation over time. The landmark case of Zweni v Minister of Law and Order 1993 (1) SA 523 (A) provides crucial guidance on the appealability of interim orders, laying down essential principles. These principles were further refined and affirmed in subsequent case law, including the recent Supreme Court of Appeal (SCA) judgment in MEC for Economic Development, Gauteng and Another v Sibongile Vilakazi and Others (SCA) (unreported case no 783/2023, 17-9-2024) (Dambuza, Mocumie, Kgoele and Smith JJA, and Dolamo AJA). This article will explore the general principles established in Zweni, analyse how they have been applied in later cases, and consider the broader implications of these judgments in determining whether an interim order can be subject to an appeal.

The nature of interim orders

Interim orders are temporary relief measures granted by a court, often pending the outcome of the main proceedings. They do not resolve the substantive issues of the case but aim to preserve the status quo or prevent irreparable harm until a final judgment can be made. Examples of interim orders include interim interdicts, interlocutory applications, or orders granting temporary custody in family law matters.

Given their temporary nature, interim orders are typically not considered final judgments. As such, the general rule has long been that interim orders are not appealable. This rule is founded on principles of judicial efficiency and the avoidance of piecemeal litigation, ensuring that cases are not unduly delayed by numerous interlocutory appeals. However, exceptions to this rule exist, particularly in cases where the interim order has significant implications for the rights of the parties involved.

The requirements for appealability established in Zweni

The Appellate Division in Zweni dealt extensively with the issue of appealability of such orders and laid down a set of criteria to determine whether an order is appealable. The court held that for an order to be appealable, it must meet the following requirements:

• The decision must be final in effect and not open to alteration by the court of first instance.
• It must be definitive of the rights of the parties.
• It must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.

These three principles form the backbone of South African jurisprudence on the issue of appealability, and they have been applied and tested in numerous subsequent cases.

• The decision must be final in effect

The first requirement, that the decision must be final in effect, means that the order cannot be altered or varied by the court that granted it. A purely interim order, such as an interim interdict, which is granted pending the outcome of a trial, does not usually meet this criterion because it can be revisited or altered depending on the ultimate findings of the court. The courts are cautious not to allow appeals on decisions that are still fluid and may change during the trial.

In Zweni, the court stressed that if an order does not resolve the substantive rights of the parties but merely regulates their conduct until the final hearing, it lacks finality and, therefore, should not be appealable. However, some interim orders, despite being ostensibly temporary, can have far-reaching consequences. In such cases, courts may treat the interim order as having final effect, allowing an appeal to proceed.

• The decision must be definitive of the rights of the parties

The second requirement requires that the order defines or conclusively determines the rights of the parties. A typical interim order, such as an interdict, does not definitively resolve the legal rights of the parties but merely preserves the status quo or provides temporary relief. However, there are instances where an interim order may have a significant impact on the rights of the parties, even though it is not the final order in the matter. In such cases, the courts have allowed appeals.

For example, in a situation where an interim interdict is granted preventing a party from exercising certain rights (such as a business from trading or an individual from accessing their property), the interim order may substantially affect the party’s legal position, even though it is not the final resolution of the case. If the interim order effectively determines the rights of the parties for an extended period or impacts their ability to exercise those rights, it may be considered appealable.

• The order must dispose of at least a substantial portion of the relief claimed in the main proceedings

The third criterion established in Zweni is that the order must dispose of at least a substantial portion of the relief sought in the main proceedings. This requirement is essential because it ensures that only orders that significantly impact the core issues of the case are subject to appeal. If the order is merely procedural or does not resolve a significant part of the dispute, it is unlikely to be appealable.

This principle was applied in cases where an interim order might not resolve the main issue of the case, but nonetheless has significant consequences for one or more of the parties involved. For instance, in cases where an interim interdict is granted in a commercial dispute, the order may effectively determine the outcome of the main proceedings if it causes irreparable harm to one party or prevents them from continuing their business.

The application of the Zweni principles in subsequent case law

Following the judgment in Zweni, South African courts have consistently applied the three criteria to determine the appealability of interim orders. However, there have been cases where the courts have expanded on or clarified the principles established in Zweni.

One such case is Philip Morris Inc and Another v Marlboro Shirt Co SA Ltd and Another 1991 (2) SA 720 (A), where the Appellate Division had to determine whether an interim interdict preventing the use of a trade name was appealable. The court found that the order met the Zweni criteria because it had a final effect on the rights of the parties and disposed of a substantial portion of the relief sought in the main proceedings. The decision was thus appealable.

In contrast, in cases where the interim order does not meet the Zweni criteria, courts have refused to entertain appeals. In Cronshaw and Another v Coin Security Group (Pty) Ltd 1996 (3) SA 686 (A), the court held that an interim order granting an interdict was not appealable because it did not dispose of any of the substantive issues in the main proceedings, nor did it have any final effect on the rights of the parties. The court emphasised that allowing an appeal in such circumstances would undermine the efficiency of the judicial process by encouraging piecemeal litigation.

The recent SCA judgment in Vilakazi

The recent case of Vilakazi further clarified the principles governing the appealability of interim orders. In this case, the respondents sought an interim interdict against the appellants, preventing them from implementing certain economic measures that would have adversely affected the respondents’ business. The High Court granted the interim interdict, and the appellants sought to appeal the order.

The SCA reaffirmed the principles established in Zweni, emphasising that not all interim orders are automatically non-appealable. The court held that the interim order in question had a substantial impact on the rights of the parties and effectively disposed of a significant portion of the relief sought in the main proceedings. Therefore, the order was appealable.

In reaching its decision, the SCA highlighted that the purpose of the Zweni principles is to strike a balance between judicial efficiency and fairness to the parties. The court recognised that while the general rule is that interim orders are not appealable, there are exceptions in cases where the order has serious implications for the parties’ rights or effectively determines a substantial portion of the dispute.

Conclusion

The appealability of interim orders in South African law hinges on the application of the principles established in Zweni. These principles ensure that only orders with significant legal consequences are subject to appeal, thereby promoting judicial efficiency and preventing unnecessary delays in the resolution of cases.

While the general rule is that interim orders are not appealable, exceptions exist where the order has final effect, determines the rights of the parties, or disposes of a substantial portion of the relief sought. These criteria have been applied and refined in subsequent case law, including the recent SCA decision in Vilakazi, which underscores the importance of balancing fairness with efficiency in determining the appealability of interim orders.

Ultimately, the principles established in Zweni continue to play a crucial role in guiding courts when faced with the question of whether an interim order is appealable, ensuring that the interests of justice are served without undermining the judicial process.

Simbongile Siyali BA Law LLB LLM (Criminal and Procedure) (NWU) and Nwabisa Sanda LLB (UFH) are Assistant State Attorneys in Johannesburg.

This article was first published in De Rebus in 2024 (December) DR 21.