Cash Crusaders Franchising (Pty) Ltd v Cash Crusaders Franchisees

Cash Crusaders Franchising (Pty) Ltd (the applicant), a franchisor with approximately 250 outlets, was in dispute with a group of 78 franchisees (the respondents) regarding changes to the system for SSB transactions (pawn transactions). The applicant changed its policy to permit only a single initiation fee on loan extensions rather than multiple fees. The respondents disputed this, alleging breach of the franchise agreement, and in September 2023 threatened to cancel their franchise agreements. Despite an urgent application pending, the respondents proceeded to cancel their agreements on 26 September 2023 and began trading independently under the name 'Cash Xchange'. On 3 October 2023, the urgent court granted an interim interdict restraining the respondents from cancelling the agreements and compelling compliance pending the final determination of the dispute by an arbitrator or court. The interdict was to operate for 60 days. The respondents applied for leave to appeal to the Supreme Court of Appeal, contending that the order was final in effect and therefore automatically suspended pending appeal. The applicant sought a declarator that the order was interim and not suspended, alternatively an execution order under section 18 of the Superior Courts Act.

• Whether the interim interdict granted on 3 October 2023 is an interim order as envisaged in section 18(2) of the Superior Courts Act, and thus not suspended pending an application for leave to appeal
• Alternatively, whether the interdict is final in effect as contemplated in section 18(1) of the Superior Courts Act, and thus suspended pending appeal
• Whether, if the order is final in effect, the applicant is entitled to an execution order under section 18(1) read with section 18(3), requiring proof of exceptional circumstances, irreparable harm to the applicant, and no irreparable harm to the respondents

The applicant's application for a declaratory order and the alternative application for execution under section 18(3) are dismissed. The applicant is ordered to pay the costs of the application, including the costs of two counsel.

An interlocutory order may have final and definitive effect and thus be appealable under section 18(1) of the Superior Courts Act if it: (a) compels compliance with agreements already cancelled and seeks to restore a past state of affairs rather than preserve the status quo; (b) involves findings on the substantive merits of the dispute; (c) finally disposes of a self-contained defence such as jurisdiction; and (d) is invasive and far-reaching such that it is in the interests of justice for it to be treated as a final decision. For an execution order under section 18(3), the applicant must prove on a balance of probabilities that the respondent will not suffer irreparable harm if the order is granted; failure to do so is fatal to the application.

The court observed that the dispute between the parties would be ventilated and resolved in due course through arbitration in March and April 2024, and that the appeal to the Supreme Court of Appeal would likely become moot by the time it was heard. The court noted that if the loser (the respondents) would suffer irreparable harm from execution, the order must remain stayed even if the stay causes the victor irreparable harm.

This case clarifies the application of section 18 of the Superior Courts Act in distinguishing between interim orders under section 18(2) and orders that, although interim in form, are final in effect under section 18(1). It applies the Constitutional Court's flexible approach in Lebashe Investment, holding that the interests of justice test may render an ostensibly interlocutory order appealable. The case also illustrates the stringent requirements for execution orders under section 18(3), particularly the need to prove that the respondent will not suffer irreparable harm.