Unica Iron and Steel (Pty) Ltd and Another v The Minister of Trade and Industry and Another

In March 2015, the Minister of Trade and Industry and the Manufacturing Development Board (the respondents) instituted action in the Gauteng Division of the High Court, Pretoria against Unica Iron and Steel (Pty) Ltd and Mr Mohamed Asif Qasim (the appellants), claiming repayment of incentive grants totaling R4,734,986.00 paid to Unica under the Small Medium Enterprise Development Programme (SMEDP). The respondents alleged that Unica and Mr Qasim breached the agreement by failing to comply with local authority requirements relating to environmental protection. The appellants filed a Notice in terms of Rule 7 of the Uniform Rules disputing the mandate of Rudman & Associates Incorporated (Rudmans) to act on the respondents' behalf. The respondents then applied to the high court for a declarator that Rudmans had been and were authorized to represent them. The instruction to Rudmans emanated from the DTI (Department of Trade and Industry), not the State Attorney. The high court granted the order with costs, and granted leave to appeal.

• Whether the order declaring that an attorney was authorized to act was an appealable 'decision' in terms of section 16(1)(a) of the Superior Courts Act 10 of 2013
• Whether the interests of justice require that an interlocutory order not meeting the Zweni requirements should be regarded as appealable
• Whether it is legally permissible for the State Attorney to appoint private attorneys to act on its behalf in a district where the State Attorney has an office
• Whether the agreed question of law raised an abstract and academic issue bearing no relation to the facts of the case

The matter was struck off the roll with costs, including the costs of two counsel.

An interlocutory order that does not meet the three Zweni requirements (final in effect, definitive of rights, and disposing of substantial portion of relief) will only qualify as an appealable 'decision' under section 16(1)(a) of the Superior Courts Act if the interests of justice require it to be regarded as such. The interests of justice do not require an appeal to be entertained where the agreed question of law is abstract and academic, bearing no relation to the actual facts of the case. The Supreme Court of Appeal is not bound by a lower court's grant of leave to appeal and must independently determine whether a matter falls within its jurisdiction as an appeal against a 'decision'.

The Court clarified that Rule 7 of the Uniform Rules does not require an attorney's authorization to be embodied in a document styled as a power of attorney, and that an attorney's mandate can be proved otherwise than by production of a written power of attorney. The underlying intention of the amendment to Rule 7 was to make the rule less cumbersome and formalistic. The Court also noted that an appeal lies against an order and not against the reasoning on which the order is based. The Court reiterated the principle that it does not determine abstract and academic issues.

This case reinforces important principles regarding appealability of interlocutory orders in South African law. It confirms that the Supreme Court of Appeal is not bound by a lower court's grant of leave to appeal and must independently determine whether an order constitutes an appealable 'decision' under section 16(1)(a) of the Superior Courts Act. The judgment reiterates the Zweni test for appealability and the principle that where an order does not meet those requirements, it will only be appealable if the interests of justice so require. Importantly, it establishes that where parties agree on a question of law for determination that is abstract, academic, and bears no relation to the actual facts of the case, the interests of justice do not require the appeal to be entertained. The case also demonstrates that courts will not determine abstract or academic questions of law divorced from the factual matrix of the dispute.