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IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.: 4012/2008

In the matter between:

ELIZABETH ANDRIENA VAN HEERDEN …...........................Plaintiff/Respondent

and

PIETER JOHANNES VAN HEERDEN ….........................First Defendant/Appellant

PIETER JOHANNES VAN HEERDEN N.O. …...........Second Defendant /Appellant

ELIZABETH ANDRINA VAN HEERDEN …....................Third Defendant/Appellant

JOHANNES ANTONIE MICHAEL PRINSLOO ….........Fourth Defendant/Appellant

TAMSIN VAN HEERDEN …...........................................Fifth Defendant/Appellant

JAN PIERRE VAN HEERDEN …...................................Sixth Defendant/Appellant

THE MASTER OF THE HIGH COURT …...................Seventh Defendant/Appellant

APPLICATION FOR LEAVE TO APPEAL JUDGMENT DELIVERED: WEDNESAY, 07 SEPTEMBER 2011

MANTAME, AJ

[1.] This is an application for leave to appeal against the judgment I made on the 4^th May 2011. I dismissed Applicant's Special Plea.

[2.] The grounds as set out in the application for leave to appeal are essentially the following:-

[2.1] That I erred in law in finding that the point argued on behalf of Applicant is not a legal point and therefore being capable of being decided on the pleadings.

[2.2] That I erred in law in finding that the application to strike out stands to be

decided on facts which are properly before Court and as a result of no evidence

being placed before Court, the application should be dismissed.

[2.3] That I erred in law in not finding the application to strike out was a "Special

exception" which could be dealt with at the commencement of trial.

[2.4] That I erred in law in not upholding the argued points as stated.

[3] It is correct that this ruling is an interlocutory one, and the question is whether it is appealable.

[4.] It is common cause that Plaintiff is the trustee of the trust. She requested that assets of the trust be transferred to her in terms of Section 73 of the Divorce Act.

[5] Mr. Van Niekerk who appeared on behalf of the Applicant submitted that the issue of assets in terms of the Divorce Act did not have to have any evidence placed before the court, as the point was capable of being decided on pleadings. He made reference to Wiid v Wiid, Case No; 1640/2008 Northern Cape High Court unreported judgment, where the court dealt with the entitlement of the Plaintiff to raise an "informal exception."

[6.] Counsel for the Appellants (Defendants) further referred to the Christiaan Louw Carstens & Others v Bridig May Carstens No: 1519/2004 (unreported judgment) Eastern Cape, Port Elizabeth, where an appeal against an order dismissing an exception was granted. It was therefore Mr. Van Niekerk's argument that, likewise, this court should grant leave to appeal to the full bench of this court.

[7.] Mr. Van Embden submitted an interlocutory application is not appealable, as it does not have the final effect. There is no reason at all why Applicants (Defendant) do not raise these points at trial. He reiterated that the order granted by this court is interlocutory both in form and in effect, no matter what reasons are advanced in that order or judgment.

[8.] On the argument advanced by Mr. Van Niekerk SC that Plaintiff (Defendants) lacked locus standi and therefore not competent to bring the proceedings against the Trust as she was a Trustee. Mr. Van Embden argued that Plaintiff (Respondent) brought these proceedings in her own personal capacity and not as a Trustee. The reason for the Plaintiff (Respondent) to proceed this way was because the Trust was controlled by First Appellant (Defendant) as his "alter ego," and these are the issues that Plaintiff (Respondent) could testify on during trial.

[9.] Similarly, whether Plaintiff (Respondent) is acting contrary to her fiduciary duty to preserve trust assets and has a conflict of interest by joining herself as atrustee to the pleadings, can only be determined satisfactorily after the evidence has been led.

[10.] Furthermore, Mr. Van Embden argued that the case Wiid (supra) should be disregarded as it does not address the situation in this case. In turn, the case of Carstens (supra) is totally different to the current case as it had a final effect.

[11.] Mr. Van Embden argued that an "interlocutory" order refers to all orders pronounced by the Court, upon matters incidental to the main dispute, preparatory to, or during the progress of the litigation. Orders of this kind are divided into two classes, i.e those that have a final and definitive effect on the main action and those known as "simple (or purely) interlocutory orders" or interlocutory order proper" which do not....". See South Cape Corporation (Ptv) Ltd v Engineering Management Services (Ptv) Ltd¹

[12.] Further he submitted that the rule to be applied in determining whether a preparatory or procedural order is purely interlocutory was laid down in Pretoria Garrison Institutes v Danish Variety Products (Ptv) Ltd². Consequently only those interlocutory orders which have a final and definitive effect on the main action are appealable.

[13.] The main action in these proceedings is the divorce action, that is still pending. In my view, the disposal of this point, will not at all dispose off the substantial portion of this matter. It is therefore my judgment that this order is an interlocutory order and therefore not appealable.

[14.] In Zweni v Minister of Law and Order³, the court said: "Generally speaking, a non appealable decision (ruling) is a decision which is not final (because the court of first instance is entitled to alter it) and not definitive of the rights of the parties nor has the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings."

[15.] In turn, I agree with Mr. Van Embden that the authorities quoted by Mr. Van Niekerk SC supra, do not have any significance in these proceedings.

[16.] This principle was confirmed in Maize Board v Tiger Oats Ltd and Others⁴, the Court said: "generally, for a decision to be appealable, it must be final in nature. See Jacobs and Others v Baumann NO and Others⁵: Pitelli v Everton Garden Projects CC⁶

[16.] The underlying statutory policy provisions prohibiting or limiting appeals against interlocutory orders is the discouragement of pierce meal appeals⁷.

[17.] Consequently I make the following order:-

[17.1] Leave to appeal is refused with costs.

MANTAME, AJ

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