Atkin v Botes

In May 2009 the respondent, Petrus Jacobus Botes, was shot by the appellant, Mark Julian Atkin. Botes instituted an action for delictual damages against Atkin in February 2010. Pending that action, Botes obtained an urgent ex parte interim interdict in the North Gauteng High Court restraining Atkin’s attorneys from paying out the net proceeds of the sale of Atkin’s house and directing that the proceeds be invested in an interest-bearing account. The basis for the interdict was Botes’ apprehension that Atkin was dissipating his assets to defeat a potential damages judgment. The interim interdict was confirmed on the return day, and Atkin was granted leave to appeal to the Supreme Court of Appeal.

The appeal was struck off the roll, and the appellant was ordered to pay the respondent’s costs.

The case reaffirms South African appellate principles governing the appealability of interim interdicts, particularly asset-preservation interdicts pending damages actions. It clarifies that the grant of such an interim interdict is generally not appealable where it is capable of variation or rescission by the court of first instance, thereby reinforcing the distinction between interim orders that are final in effect and those that are not.