Seneca Civils (Pty) Ltd v Centriq Insurance Company (12450/16) [2023] ZAGPJHC 1378 (27 November 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2023 >> [2023] ZAGPJHC 1378 | Noteup | LawCite sino index ## Seneca Civils (Pty) Ltd v Centriq Insurance Company (12450/16) [2023] ZAGPJHC 1378 (27 November 2023) Seneca Civils (Pty) Ltd v Centriq Insurance Company (12450/16) [2023] ZAGPJHC 1378 (27 November 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2023_1378.html sino date 27 November 2023 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NUMBER: 12450/16 NOT REPORTABLE NOT OF INTEREST TO OTHER JUDGES REVISED In the matter between: SENECA CIVILS (PTY) LIMITED Plaintiff And CENTRIQ INSURANCE COMPANY Defendant JUDGMENT MALUNGANA AJ [1] The present case concerns the appealability of the interlocutory order. On 17   April 2023 I granted an ex tempore interlocutory order for the plaintiff   compelling the defendant’s expert to: (i) sign the joint expert’s minute arising out of the meeting held with the plaintiff’s expert on 21 February 2020; alternatively  (ii) to produce his own minute of what transpired at the meeting, failing compliance therewith, I granted leave for the plaintiff (iii) to bring an application to strike out the defendant’s defence. [2] Following the above order, the defendant requested reasons for the above   decision  which I duly provided on 22 September 2023. [1] It is not necessary for   the purposes of this judgment to regurgitate the background facts underlying the decision. Suffice to state that the decision is the result of the application brought by the plaintiff in the interlocutory court, in which it sought to compel   the defendant’s expert to sign the joint minute arising of the meeting held on 21 February 2020. It was not in dispute during the hearing of the main application   that the said meeting of experts was convened, however, there was a dispute   as to whether the draft minute provided by the plaintiff’s expert reflects what had transpired at the meeting. It is against this background that the decision in question ensued. Now the defendant has launched an application for leave to appeal against the order. [2] [3] The relevant grounds for the defendant’s application for leave to appeal can be briefly stated: (a) the Court erred in failing to consider all the evidence placed before it; (b) in particular the  Court erred in failing to consider that there were no facts justifying an order directing the expert to sign a report which such expert was not satisfied with; (c). the Court failed to consider that compelling the expert order to sign an expert report in circumstances  where the said expert was not in agreement with the contents thereof infringed upon the impartiality and objectivity of the   expert in question; (d)  the Court failed to consider that an order in question infringed upon the applicant’s right to a fair trial; (e) the Court ought to have directed that the experts hold a further meeting , or   meetings, in order to allow the Applicant’s expert to be satisfied with the accuracy of the joint expert report before signing same; (f) the Court erred in failing to apply the provisions of Rule 36(9A) of the Uniform Rules of Court (g) the Court erred in directing the defendant’s expert who is not a party to the action to sign a joint minute which the defendant’s expert disagreed with; (h) the Court erred in failing to take into consideration that the defendant’s expert has called for the a further meeting to canvass all aspects of the experts’ report. [4] The plaintiff has filed written submissions in response to the defendant’s application in which it raised a point in limine concerning  the  appealability of the order in question. Although the parties were agreed that the point in limine will be dealt with first, I allowed the parties to also argue the merits application as I held the view that issues were factually bound to each other. [5] It is apposite to have regard to the legal principles appertaining to issues raised above.  Section 17 of the Superior Court Act 10 of 2013 (“the Act”) regulates applications for leave to appeal from a decision of a High Court. It provides as follows: ‘ (1) leave to appeal may only be given where the judge or judges concerned   are of the opinion that- (a) (i) the appeal would have a reasonable prospect of success; or (ii) there is some other compelling reason why the appeal should be   heard, including conflicting judgments on the matter under consideration; (b)   the decision sought on appeal does not fall within the ambit of section   16(2)(a); and (c)   Where the decision sought to be appealed does not dispose of all the   issues in the case, the appeal would lead to a just and prompt resolution   of the real issues between the parties.’ [6] What is required of the Court is to consider, objectively and dispassionately,   whether there are reasonable prospects that another court will find merits in the arguments advancing by the losing party. [3] [7] In National Treasury and Others v Opposition to Urban Tolling Alliance [4] the Constitutional Court remarked as follows: “ [25]  This Court has granted leave to appeal in relation to interim orders before. It has made it clear that the operative standard is “the interests of   justice.” To that end, it must have regard to and weigh carefully all germane circumstances. Whether an interim order has a final effect or disposes of a substantial portion of the relief sought in a pending review is a relevant and   important consideration.  Yet, it is not the or always decisive consideration. It is just as important to assess whether the harm that flows from it is serious,   immediate, ongoing and irreparable.” [8] In Zweni v Minister of Law and Order [5] the SCA laid down the principle as   follows: Firstly the decision must be final effect and not be susceptible to   alteration by court of first instance; Secondly it must be definite of the right of the parties, and Thirdly it must have the effect of disposing of at least a   substantial portion of the relief claimed in the proceedings. [9] The rational underlying the non-appealability of interim orders was succinctly dealt with in Machele and Others v Mailula and Ohers [6] in which the Constitutional Court stated in paragraph 21 as follows: “ The effect of granting leave to appeal against an order of interim execution will   defeat the very purpose of that order. The ordinary rule is that the noting of an   appeal suspends the implementation of an order made by a court. An interim order of execution is therefore special relief granted by a court when it considers   that the ordinary rule would render injustice in a particular case. Were the   interim order to be subject of an appeal, that, in turn, would  suspend the order.” [10] In paragraph 27 of Machele judgment, supra the Court held: “ In Tac 1 this Court further stated: ‘ If the applicant can show irreparable harm, that irreparable harm would have to be weighed against any irreparable harm that the respondent (in   application for leave to appeal) may suffer were the interim execution   order to be overturned.” [11] The common law test for appealability has since been denuded of its somewhat   inflexible nature. Unlike before, appealability  no longer depends largely on whether the interim order appealed against has the final effect or dispositive of a portion of the relief claimed in the main application. All this is now subsumed under the constitutional interests of justice standard. [7] [12] It was contended  on behalf of the plaintiff that even if the order in question is   final in effect, the decision thereof is not definitive of the rights of parties and   does not dispose of a substantial portion of the relief in the main proceedings.   Counsel further argued that the defendant seeks to repudiate what the experts have agreed at meeting of experts on 21 February 2022. I am in agreement with the plaintiff’s submission in this regard. In my reasons for judgment, I made it clear that despite the disagreement the parties can still file their joint minute, and are not barred from convening a further  meeting for purpose of complying   with the provisions of Rule 36(9A) of the Uniform Rule of Court. The  current   decision  does not dispose of any of any portion of the relief sought in the main proceedings. It is simply a procedural interlocutory order which is not definitive   of the rights of the parties. [13] On the merits of the appeal, counsel for the plaintiff submitted that the appeal   lacks the prospects of success in that the Court had given the defendant’s   expert a latitude to prepare his own minute, if he disagrees with that of the   plaintiff’s expert. [14] On behalf of the defendant it was contended that the experts have not   concluded their joint minute because of outstanding information that needed to   be provided before the minute could be finalized. The court should instead have directed the parties to hold a further meeting to canvass the outstanding issues. It was further contended that the decision to force the defendant’s expert to sign the incorrect minute infringes upon the expert’s rights to impartiality in line with the applicable rule. [15] There is no substance in this argument. I have already stated in the order that the defendant’s experts is allowed to produce his own minute to contradict or agree with the minute already produced by the plaintiff’s expert. In so doing I do not see any basis upon which the order in question can affect the defendant’s expert impartiality. [16] I am therefore not persuaded that the order against which leave to appeal is sought meet the requirements set out in Zweni above. “An order that met the   three Zweni requirements would be an appealable decision. In accordance with the general rule against piecemeal entertainment of appeals, an order that did not have all the Zweni attributes would generally not be appealable decision.   Such an order would nevertheless qualify as an appealable decision if it had a final and definitive effect on the proceedings, or if the interests of justice   required it to be regarded as an appealable decision.” [8] The impugned decision   is neither definitive of the rights of the parties nor bears the features of disposing   any substantial portion of the relief sought. In assessing the characteristics of    the order  I have also taken into consideration whether either of the parties will   suffer irreparable harm if the order is allowed to stand. I could not find that any harm or prejudice would emanate from the order. As in Machele judgment above, there are no demonstrable facts placed before the Court to suggest   that the granting of the application for leave to appeal will serve the interests   of justice. In the circumstances I hold that the plaintiff’s point in limine on the appealability of the   above order is well taken, and should be upheld. [17] Having reached the above conclusions there is no point in considering the merits of the application for leave to appeal in the context of section 17 of the Act. Order 1.  The plaintiff’s point in lime  relating to appealability is upheld; 2.  The application for leave to appeal is dismissed with costs including costs occasioned by the employment of counsel. PH MALUNGANA Acting Judge of the High Court Gauteng Division, Johannesburg Heard: 09 November 2023 Judgment: 27 November 2023. APPEARANCES For the Applicant: BD Stevens Instructed by:   Jurgens Bekker Attorneys For the Respondent: D Watson Instructed by:  Tugendhaft Wapnick Banchetti & Partners [1] Case Lines 30-1 Written Reasons [2] Case Lines 29-1 Application for leave to appeal [3] Valley of the Kings Thaba Motswere (Pty) Ltd and Another v Al Maya International [2016] 137 (ZAECGHC) 137 (10 November 2016) at para 4. [4] National Treasury and Others v Opposition to Urban Tolling Alliance (CCT 38/12) [2012] ZACC 18. [5] Zweni v Minister of Law and Order 1993 (1) SA 523 [6] Machele and Others v Mailula and Others [2009] ZACC 7; 2010 (2) SA 257 (CC) [7] United Democratic Movement and Another v Lebashe Investments Group (Pty) Ltd and Others (1032/2019)[2021]ZASCA 4 [2021] 2 All SA 90 (SCA) (13 January 2021) at para [4]. [8] Drdgold Ltd and Another v Nkala and Others 2023 (3) SA 461 SCA, at para 24. sino noindex make_database footer start