Case summary written by Blake Liam Hamilton and checked by Khotso Mmatli.
25 February 2021
The matter concerns an application for leave to appeal brought by the first Respondent (“Umalusi”) against an interlocutory ruling of the High Court of South Africa, Gauteng Division, Pretoria (the “Court”) refusing Umalusi permission to file a further affidavit. Umalusi is a statutory body that provides assurance services to the Applicant, the Independent Examinations Board (“the IEB”) and other examination bodies.
The issue before the court is, inter alia, whether or not an appellate court has authority to hear an appeal against an interlocutory order before the merits of the main application have been considered. Umalusi argues that it does. The IEB opposed this application on the basis that the order is not appealable, alternatively that the appeal, in any event, has no prospects of success.
Accordingly, the first Respondent approached the Court, inter alia, on the following grounds:
- that the court erred in rejecting the explanation of miscommunication between Umalusi and its legal team which necessitated the filing of a further affidavit;
- it further argued that the court erred in finding that any prejudice which would be caused by allowing the further affidavit, cannot be resolved or ameliorated by way of an appropriate cost order;
- it further argued that the court misdirected itself in finding that a completely new and contradictory case was made out in the further affidavit.
The Court disagreed with Respondent’s submissions and the court held that Umalusi failed to meet the jurisdictional requirements to engage the appellate court. The Judge found that even if the requirements were met, of which they were not, there are still no prospects of success. No exceptional circumstances have been advanced by Umalusi to justify being permitted to file a further affidavit.
Umalusi relied on the absence of an annexure as a basis for the need to file the further affidavit, whereas the very same annexure was attached twice to the founding papers. The Court supported the submissions of the IEB that Umalusi provided nothing but remissness as an explanation and further indicated that, the prejudice that will result should leave to file a further affidavit be granted, is significant.
As a result of the Respondent’s complete volte face change of justification, the entire application has to a large extent been rendered obsolete and the court found that this prejudice cannot be cured by a cost order.
Furthermore, the presiding officer concluded that he is not persuaded that another court will come to a different conclusion and the prejudice is not only wasted costs, but also a fair procedure to hold a public body to account for the exercise of public power. The application for leave to appeal was dismissed with costs and such costs are to include the costs of two counsel where so employed.
Although a court has the discretion to allow the filing of further affidavits, such discretion must be exercised with due reference to the particular circumstances of a case. A court will generally not accept additional affidavits where a party seeks to introduce a whole new issue that does not constitute a reply to new issues raised in the applicant’s reply and which will entail the filing of further affidavits by the Applicant. Notwithstanding the above, it remains in the discretion of the court taking into consideration the explanation tendered for the need to file a further affidavit as well as the existence of exceptional circumstances.