Atkin v Botes

In May 2009, the respondent (Botes) was shot with a firearm by the appellant (Atkin). On 5 February 2010, Botes instituted an action for delictual damages arising from the shooting. On 26 February 2010, Van der Byl AJ in the North Gauteng High Court granted an urgent ex parte interim interdict restraining Atkin's attorneys from paying out the net proceeds of the sale of Atkin's house and directing them to invest such proceeds in an interest-bearing account pending finalization of Botes' action for damages. Makgoka J confirmed the interim order on 31 March 2010 on the basis that Botes' apprehension that Atkin was dissipating his assets with the intention of defeating Botes' claim for damages was well founded. Makgoka J granted leave to appeal to the Supreme Court of Appeal. At the time the interdict was made final, Atkin was unemployed and had sold his house to support himself and his dependants until he obtained employment.

• Whether an interim interdict restraining a respondent from disposing of assets pending an action for damages is appealable
• Whether the interim order was final in effect and therefore appealable
• Whether the order was susceptible to variation or rescission by the court of first instance

The appeal was struck off the roll. The appellant was ordered to pay the respondent's costs.

An interim interdict restraining a party from disposing of assets pending an action for damages is not appealable where the order is susceptible to variation or rescission by the court of first instance. An order is not final in effect if the unsuccessful party can approach the court a quo for amelioration or setting aside of the interdict based on the practical experience of its operation or changed circumstances. The test for appealability requires consideration of both the form and, predominantly, the effect of the order.

The court noted the long-standing difficulty in drawing the line between interlocutory decisions that are appealable and those that are not, citing Schutz JA in Cronshaw v Coin Security Group. The court observed that there may be valid reasons for the historical distinction between the grant and refusal of interim interdicts, including: (1) the potential difference in finality of the decision; (2) the fact that it may be open to the unsuccessful respondent to approach the court for amelioration or setting aside of an interdict even if the only new circumstance is the practical experience of its operation; and (3) the practical consideration that an appeal against the grant of a temporary interdict would often be inconsistent with the very purpose of this remedy. The court also noted that a challenge to a court's jurisdiction is appealable simply because it concerns the competence of the court to grant relief sought, and suggested that the jurisdictional analysis in Metlika was sufficient to determine appealability without necessarily needing to consider whether the order was final in effect.

This case clarifies the test for appealability of interim interdicts in South African law. It confirms that an interim interdict is only appealable if it is final in effect and not susceptible to alteration by the court of first instance. The case distinguishes between different types of asset preservation orders and emphasizes that where a court retains the power to vary or rescind an interim order based on changed circumstances or the practical experience of its operation, such an order is not final in effect and therefore not appealable. The decision reinforces the principle that in determining appealability, both the form and, predominantly, the effect of an order must be considered. It also reaffirms the historical distinction between the grant and refusal of interim interdicts, with the former generally not being appealable unless truly final in effect.