Once an application for leave to appeal against a court order has been delivered or an appeal has been noted against the order, the operation of the order is suspended until the matter has been finally determined.  A successful party who wishes to have the order put into operation pending the finalisation of the appeal process must apply to court for leave to do so.

Historically, if a party applied for the order to be put into operation pending an appeal, exceptional circumstances needed to be shown and the court had a judicial discretion to rule in accordance with the equities present in a specific case.

The Johannesburg high court in Incubeta Holdings v Ellis recently considered the impact of the Superior Courts Act, 2013 on the rule providing for the suspension of a court order pending finalisation of an application for leave to appeal or an appeal.  While the requirement of exceptional circumstances remains, the Superior Courts Act has introduced a second leg to the test to determine whether an order should be put into operation.  The second leg requires proof, on a balance of probabilities, by the person applying to court, that there is a presence of irreparable harm to him and an absence of irreparable harm to the other party.  In addition, the court confirmed the well-established principle that the existence of exceptional circumstances is a finding of fact, and not the product of discretion.

The second leg of the test is a departure from the previous discretion given to a court when deciding whether to put the order into operation pending the final determination of the matter.  In the past, the question was really who would be worse off if the order is put into operation.  The court had to make that decision by weighing up the equities. 

The law now requires a different enquiry.  If the losing party will suffer irreparable harm, the order cannot be put into operation, even if the person applying for the order to be put into operation will also suffer irreparable harm.  In addition, even if the losing party will not suffer any irreparable harm, the party applying to court still needs to show the presence of irreparable harm to him if the order is not put into operation.  Two distinct findings of fact must therefore be made rather than a weighing up of the equities.  As a consequence, the court’s discretion to weigh up the equities has been removed.

It is therefore important to consider not only whether exceptional circumstances exist before applying to court to put an order into operation pending an appeal but also whether irreparable harm exists, not only to the person applying but also to the other side.

Written by Jeffrey Kron, Director, and Jocelyn Evans, Associate, Norton Rose Fulbright