Leslie v Viana and Another

The applicant (landlord) obtained an interim interdict and eviction order by agreement (the 'May order') against the first respondent (tenant) in the Western Cape High Court. The first respondent vacated the property on 30 June 2023, rendering the interdictory relief moot before the return date. On 31 January 2024, the court handed down judgment ordering the first respondent to pay R97,200 in arrear rental and costs on an attorney and client scale. The first respondent, acting in person, delivered a notice of appeal on 12 February 2024 against both the May order and the costs order, but failed to bring a formal application for leave to appeal as required by Uniform Rule 49(1)(b). The court condoned the procedural defect and treated the matter as an application for leave to appeal.

• Whether the first respondent could appeal against an interim interdict that had become moot prior to confirmation.
• Whether leave to appeal should be granted against a costs order in the absence of exceptional circumstances as required by s 16(2)(a) of the Superior Courts Act 10 of 2013.
• Whether the first respondent met the threshold of reasonable prospects of success under s 17(1)(a)(i) of the Superior Courts Act 10 of 2013.

The application for leave to appeal was dismissed with costs on the scale as between attorney and client.

An appeal lies only against an existing order; there can be no appeal against interim interdictory relief that has become moot. A court of appeal will only interfere with a costs order — a true judicial discretion — in limited circumstances, and s 16(2)(a) of the Superior Courts Act 10 of 2013 requires 'exceptional circumstances' for leave to appeal on costs alone. The test under s 17(1)(a)(i) requires a measure of certainty that another court would reach a different conclusion.

The court observed that the first respondent appeared in person, and to avoid undue delays and unnecessary costs, it condoned his failure to comply with Rule 49(1)(b). The court further noted that the first respondent was contractually liable for costs on the attorney and client scale under the lease agreement, which applied to the present proceedings.

The case reinforces the raised threshold for leave to appeal under s 17(1)(a)(i) of the Superior Courts Act 10 of 2013, confirms that no appeal lies against moot orders, and illustrates the application of s 16(2)(a) requiring exceptional circumstances for appeals limited to costs. It also affirms the deferential approach of appellate courts to costs orders made in the exercise of a true judicial discretion.