Thinus Smit v Scania South Africa (Pty) Ltd

On 23 August 2002, the High Court granted provisional sentence against the appellant for payment of R239,400 and ancillary relief. The action was based on a cheque. The appellant appealed against that order with leave of the court a quo. The appeal was enrolled for 27 February 2004, and both parties filed heads of argument on the issue of whether the appellant had incurred personal liability on the cheque. On 13 February 2004, the appellant's attorneys withdrew, and on 25 February 2004, notice was given that the appellant would not attend court to prosecute the appeal and had given notice of his intention to surrender his estate on 20 February 2004. The appellant did not appear on 27 February 2004.

• Whether the grant of provisional sentence is generally appealable
• Whether the requirements for appealability set out in Zweni v Minister of Law and Order 1993 (1) SA 523 (A) were satisfied
• What costs order should be made in relation to an abortive appeal

(1) The appeal is struck off the roll. No order is made as to the costs of the appeal. (2) The appellant is ordered to pay the costs of the application for leave to appeal.

The grant of provisional sentence is generally not appealable. To determine whether a provisional sentence judgment is appealable, the requirements for appealability laid down in Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I-J must be applied. While it is possible that in exceptional cases the application of these requirements to a provisional sentence judgment will show that it is appealable, such cases will be rare. Where a court a quo grants leave to appeal against a provisional sentence judgment in circumstances where the Zweni requirements are not satisfied, the Supreme Court of Appeal will strike the appeal off the roll rather than dismiss it for non-prosecution.

The court made observations on the proper approach to costs in abortive appeals. It noted that where a respondent fails to dispute the appealability of a provisional sentence judgment both at the application for leave to appeal and in its heads of argument, and thereby contributes as much as the appellant to an abortive appeal reaching the Supreme Court of Appeal, it would be fairer if each party paid its own costs of appeal rather than the respondent recovering such costs from the appellant. However, the court distinguished the costs of the application for leave to appeal, noting that a respondent is obliged to attend court to oppose such an application and is entitled to costs if the applicant should not have succeeded, regardless of whether the respondent opposed the grant on the merits rather than on the basis of unappealability.

This case confirms and reinforces the principle established in South African law that the grant of provisional sentence is generally not appealable. It provides important guidance on the application of the Zweni v Minister of Law and Order test for appealability to provisional sentence judgments. The case also illustrates the proper exercise of judicial discretion on costs in cases of abortive appeals, particularly where both parties contributed to the matter improperly reaching the appeal court. It serves as a warning to both applicants and respondents to carefully consider the appealability of provisional sentence judgments before seeking or agreeing to the grant of leave to appeal.