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The appealability of interim Interdicts

Authors: Sipho Mtsweni– Candidate Attorney

*Supervised by: SJ Thema – Director & Member of the Management Board

It is settled law that interim interdicts granted by the High Court are not appealable, particularly because of the nature and purpose they serve. In the main, interim interdicts are what we may understand as blinkers of justice, with their focus solely on the administration of justice, and less on the merits and demerits of a case.

However, while the non-appealability of interim interdicts granted by the High Court is settled law, there is an exception to the rule. Interim interdicts can be appealed in exceptional circumstances and, importantly, if the interests of justice permit leave to appeal and demand that interim interdicts should be appealable.

In this article, we discuss two recent Supreme Court of Appeal judgments that dealt with the appealability of interim interdicts. The Eskom Holdings Soc Limited v Lekwa Ratepayers Association NPC and Others; Eskom Holdings Soc Ltd v Vaal River Development Association (Pty) Ltd and others (870/20) [2022] ZASCA 10 (21 January 2022) (Eskom) and the RTS Industries and 4 Others v Technical Systems (Pty) Ltd and Another [2022] ZASCA 64 (5 May 2022) (RTS)

The standard required and the prospects of success on appeal

The Eskom case is a public law case dealing with Eskom’s decision to reduce the quantity of supply of electricity to municipalities. The residents within the jurisdiction of the municipalities in question launched the application to interdict Eskom’s implementation of this decision. The SCA, among others, had to deal with the application of the requirements for the granting of interim interdicts, in particular, whether the applicants had established a prima facie right.

The RTS case is an intellectual property case dealing with an erstwhile employee’s misappropriation and use of confidential information and processes of manufacturing products belonging to their former employer, restraining them from use, production and appropriation of the confidential information and processes, and thereby from competing with the former employer. The SCA, among others, had to deal with the application and implementation of previous orders granted by the High Court. These orders were, by agreement between the parties, directing the extent of the erstwhile employee’s restraint and the implementation of the duration of the restraint.

In the Eskom case, all parties agreed that the matter was one of public importance, invoking the basic right of supply of electricity to the populace. There was no dispute between the parties whether the appeal by Eskom raised an issue of public importance. The SCA held that “electricity is one of the most common and important basic municipal services and has become virtually indispensable, particularly in urban society”.

In the RTS case, the issues turned exclusively on the interpretation of the orders that were made by the High Court, in particular whether the orders were final in effect, albeit couched as interim orders. The answer to this, it appears, would weigh in on the appetite of the SCA to entertain the appeal and the prospects of success of the appeal. The SCA held that

“it is clear that the 2020 order was not final in effect and was thus open to alteration by the court of first instance. All of this means that, in my view, the order of the high court is not appealable”.

In the Eskom case, the interests of justice ostensibly demanded the SCA to entertain the appeal due to special circumstances raised by the importance of the supply of electricity to the citizenry. However, in the RTS case, it appeared, although the appeal was entertained by the SCA, that the circumstances of the case did not warrant the demands of the interests of justice that an appeal against the order of the High Court should be considered.

The interests of justice standard and the Constitutional Court’s principles in this respect were applied in both the Eskom and RTS cases in determining whether these interests warranted the appeals to be entertained. However, while the interests of justice standard was applied in both cases to determine whether an appeal by the SCA was warranted, the RTS case appears to have been determined primarily on whether the order made by the High Court was final in effect. Therefore, because the order was not finalin effect, the interest of justice did not demand the SCA to entertain the appeal by RTS and it was struck off the roll. In the Eskom case, it was not in dispute as regards the demands of the interests of justice for the SCA to entertain the appeal, however it was dismissed.

The upshot of these decisions illustrates several important legal principles that appeal courts do not seem to be shy not to deviate from. While the interests of justice standard for appealability of interim interdicts is relatively higher, since the general rule is that interim interdicts are not appealable, the appeal courts seldom deviate from the orders that were made by the High Court. This so happens, even when interests of justice demand that an interim interdict be appealable.

Therefore, while interests of justice may dictate than an interim interdict be appealableit seldom happens that interests of justice demand the appeal courts to overturn an order that was made by a High Court. In the circumstances, it appears that appealing an interim interdict, while the burden of proving that the interest of justice demand that the interim interdict should be appealable is arduous, might prove to be a futile exercise as the prospects of success in the appeal of the interim interdict appear to be relatively low.

A different perspective

While a proper construction of the interests of justice standard ought not be confined to the public/private dichotomy, these two cases further illustrate the convenience of determining the demands of the interests of justice to allow an appeal of an interim interdict and the court’s appetite to entertain appeals of interim interdicts invoking public and private interests.

Because the interests of justice standard is a fact-specific enquiry, a pronunciation cannot be readily made of the court’s jurisprudence vis-à-vis the public/private dichotomy in respect of the appealability of interim interdicts. It remains to be seen of the appeal court’s approach to entertain appeals of interim interdicts in relation to the divide between matters invoking public and private interests and its reluctance, or otherwise, to hold that the demands of the interests of justice warrant an appeal of an interim interdict to be entertained.

In conclusion

Time will tell what the appeal court’s approach will be in circumstances where there is an appeal of an interim interdict that is couched as interim but interpreted as final in effect, particularly whether interests of justice will demand that such appeal be entertained and whether such appeal would ultimately succeed. In the same vein, we remain anticipant of the court’s approach when faced with a case that understandably raises issues of public importance, whether or not such will easily pass the interests of justice demand’s muster and ultimately succeed on the appeal.


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