Notshe Attorneys v The State Attorney, Mthatha and Others

Notshe Attorneys rendered legal services to various government departments after being outsourced cases by the State Attorney Mthatha. The State Attorney subsequently failed to pay Notshe Attorneys for services rendered. On 20 January 2022, Mr Hanise, Acting Head of the State Attorney Office, wrote a letter to Notshe Attorneys. Notshe Attorneys brought an application against the State Attorney Mthatha and the Minister of Justice and Correctional Services for payment. Third parties (MEC for Health Eastern Cape, Minister of Police, and National Director of Public Prosecutions) were joined. The court delivered judgment on 17 October 2024 in favour of Notshe Attorneys. Following this judgment, three applications were brought: (1) the State Attorney and Minister of Justice sought leave to appeal; (2) the Minister of Police sought leave to appeal; and (3) Notshe Attorneys sought a declaratory order under section 18(3) of the Superior Courts Act that the judgment not be suspended pending appeal.

• Whether leave to appeal should be granted on the basis of reasonable prospects of success or other compelling reasons
• Whether the court erred in accepting Notshe Attorneys' evidence that it carried out the work
• Whether the letter dated 20 January 2022 constituted an admission of liability or was written during settlement negotiations
• Whether Notshe Attorneys proved the services rendered and computation of the amount claimed
• Whether the State Attorney acted within the scope of its powers under section 8 of the State Attorney Act 56 of 1957 in outsourcing cases to private attorneys
• Whether the Minister of Police had locus standi to pursue a review application
• Whether the third-party notice disclosed a cause of action for contribution or indemnification against the Minister of Police
• Whether the decision to outsource cases was unlawful, irrational and unreasonable
• Whether the review application was instituted timeously
• Whether execution of the judgment should be suspended pending appeal under section 18(3) of the Superior Courts Act
• Whether Notshe Attorneys would suffer irreparable harm if execution was suspended
• Whether the respondents would suffer irreparable harm if execution was not suspended

1. Application for leave to appeal by State Attorney Mthatha and Minister of Justice to the Full Court of the Division is granted, with costs to be costs in the appeal. 2. Application for leave to appeal by Minister of Police to the Supreme Court of Appeal is dismissed with costs. 3. Application in terms of Section 18 of Superior Courts Act 10 of 2013 by Notshe Attorneys to declare that execution of the order granted on 17 October 2024 not be suspended is dismissed with costs.

1. Under section 17(1) of the Superior Courts Act, leave to appeal requires either reasonable prospects of success or compelling reasons why the appeal should be heard. An applicant must convince the court on proper grounds that there is a reasonable prospect of success - a mere possibility of success or arguable case is insufficient; there must be a sound, rational basis for concluding there are reasonable prospects. 2. Under section 18(3) of the Superior Courts Act, a court may only order that execution not be suspended if the applicant proves on a balance of probabilities that: (a) exceptional circumstances exist; (b) the applicant will suffer irreparable harm if execution is suspended; and (c) the respondent will not suffer irreparable harm if execution proceeds. 3. The prospects of success in a pending appeal remain a relevant factor in determining section 18(3) applications - the less confident a court is about the judgment being upheld on appeal, the less inclined it will be to grant the exceptional remedy of execution pending appeal. 4. Past harm (such as having already paid employees) cannot constitute irreparable harm for purposes of section 18(3), as the harm must be prospective.

The court noted the tension between different judicial approaches to the relevance of prospects of success in section 18(3) applications. While Incubeta Holdings and Liviero Wilge Joint Venture held that prospects were irrelevant, Justice Alliance and University of Free State held they remained relevant. The court preferred the latter approach. The court also observed that the review application by the Minister of Police raised issues concerning cooperative governance under sections 40 and 41 of the Constitution, and that a private attorney should not be denied justice because of misunderstandings between organs of state. The court commented that where prospects of appeal are weak, there is no need to find sufficient exceptionality to justify an order under section 18(3).

This case provides guidance on the application of section 18(3) of the Superior Courts Act 10 of 2013 regarding suspension of execution pending appeal. It confirms that prospects of success on appeal remain a relevant factor in section 18(3) applications, following University of Free State v Afriforum rather than the earlier approach in Incubeta Holdings. The case also addresses important questions about the State Attorney's powers to outsource cases to private attorneys under section 8 of the State Attorney Act 56 of 1957, which will be further considered on appeal. It demonstrates the court's approach to determining when there are reasonable prospects of success for leave to appeal purposes, and reinforces that irreparable harm must be prospective rather than historical.