THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 1332/2021

In the matter between:
UNICA IRON AND STEEL (PTY) LTD
FIRST APPELLANT

MOHAMED ASIF QASIM
SECOND APPELLANT

and

THE MINISTER OF TRADE

AND INDUSTRY
FIRST RESPONDENT

THE MANUFACTURING

DEVELOMENT BOARD
SECOND RESPONDENT

Neutral citation: Unica Iron and Steel (Pty) Ltd and Another v The Minister
of Trade and Industry and Another (Case no 1332/21)
[2023] ZASCA 42 (31 March 2023)
Coram:
VAN DER MERWE, SCHIPPERS, MOTHLE, WEINER
AND GOOSEN JJA
Heard:

17 February 2023
Delivered:
31 March 2023

Summary: Appeal – order declaring that attorney authorised to act in
action – not appealable unless interests of justice so demand – parties agreeing
that appeal hinges on legal issue – issue agreed upon academic and abstract –
interests of justice do not require order be regarded as appealable decision –
matter struck from roll.

_____________________________________________________________
ORDER
_____________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Matime AJ
sitting as court of first instance):
The matter is struck off the roll with costs, including the costs of two counsel.
_____________________________________________________________
JUDGMENT
_____________________________________________________________
Weiner JA (Van der Merwe, Schippers, Mothle and Goosen JJA
concurring)
[1] In March 2015, the respondents, the Minister of Trade and Industry (the
Minister), and the Manufacturing Development Board (the MDB)1 instituted
action in the Gauteng Division of the High Court, Pretoria (the high court)
against the appellants, Unica Iron and Steel (Pty) Ltd (Unica) and
Mr Mohamed Asif Qasim (Mr Qasim).2 In the action, they claimed repayment
of incentive grants in the sum of R4 734 986.00, which had been paid to Unica
in terms of the Small Medium Enterprise Development Programme
(SMEDP).

[2] The Minister is responsible for the Department of Trade and Industry
(the DTI). The MDB is a juristic entity established in terms of s 2(1) of the
Manufacturing Development Act 187 of 1993 (the Act). The Minister, in
terms of the Act, implemented the SMEDP which offered incentive grants to

1 When the respondents are referred to together, they will be referred to as the ‘respondents’.
2 Similarly, when the appellants are referred to together, they will be referred to as the ‘appellants’.

beneficiaries who qualified for the programme. Pursuant to an application by
Mr Qasim, on behalf of Unica, an agreement was concluded in terms of which
such grants were made available to and paid to Unica. The respondents alleged
in the action that Unica and Mr Qasim had breached the agreement, by failing
to comply with the requirements of the relevant local authorities relating to
the protection of the environment. They thus sought to recover the amounts
paid.

[3] The appellants filed a Notice in terms of Rule 7 of the Uniform Rules
of Court (rule 7), disputing the mandate of Rudman & Associates
Incorporated (Rudmans) to act on the respondents’ behalf. Rule 7(1) provides
that:
‘Subject to the provisions of sub-rules (2) and (3) a power of attorney to act need not be
filed, but the authority of anyone acting on behalf of a party may, within 10 days after it
has come to the notice of a party that such a person is so acting, or with the leave of the
court on good cause shown at any time before judgement, be disputed, whereafter such
person may no longer act unless he satisfies the court that he is authorised so to act, and to
enable him to do so the court may postpone the hearing of the action or application.’

[4] Rule 7 does not prescribe the manner in which authority to act may be
established, where such authority is challenged. In Administrator, Transvaal
v Mponyane and Others,3 Botha J dealt with the requirements of rule 7 and
stated that:
‘In my view there is nothing in Rule 7 in its present form that requires the authorisation of
an attorney to be embodied in a document styled a power of attorney. The provisions of
Rule 7 specifically requiring powers of attorney in appeals fortifies the impression that
otherwise an attorney's mandate can be proved otherwise than by the production of a

3 Administrator, Transvaal v Mponyane and Others [1990] 4 All SA 257 (W).

written power of attorney. I also think that Rule 7 should be viewed against the background
of its original form. Before its recent amendment it only required powers of attorney to be
lodged in the case of actions and appeals…I have no doubt that the underlying intention of
the recent amendment of Rule 7 was to make the Rule less cumbersome and formalistic.
I therefore conclude that proof of the authority of the respondents' attorney is not dependent
on the production of a written power of attorney.’3

[5] The respondents attempted to demonstrate to the appellants that
Rudmans were duly authorised, without success. In the light of this dispute,
the respondents applied to the high court for a declarator that Rudmans had
been and were authorised to represent them in the matter.

[6] The high court granted the order with costs. The arguments of the
appellants before the court a quo included a submission that it was not legally
permissible for the State Attorney to appoint private attorneys to act on its
behalf in a district where the State attorney has an office. The appellants
contended that this was contrary to the provisions of s 8 of State Attorney Act
56 of 1957.4 The high court rejected this contention and accepted that
Rudmans had been instructed by the State Attorney, as its correspondent.

[7] The order was based upon the supposition that it was the State Attorney,
as opposed to the DTI, who had instructed Rudmans, when this was not
correct. It is apparent that, based upon this reasoning, the parties formulated
the question of law on the basis that the State Attorney had instructed and

3 Ibid at 258.
4 Section 8 (1) provides: The State Attorney shall be entitled in the exercise of his functions aforesaid to
instruct and employ as correspondent any attorney or other qualified person to act in any legal proceedings
or matters in any place in the same way and, mutatis mutandis, subject to the same rules, terms and conditions
as govern attorneys in private practice, and shall be entitled to receive and recover from such correspondent
the same allowances as he would be entitled to do if he were an attorney in private practice.

mandated Rudmans to act for the respondents. However, as will appear below,
on the facts of this case, there is no evidence that the State Attorney appointed
Rudmans to act on its behalf.

[8] The high court granted leave to the appellants to appeal to this Court.5
In terms of rule 8(8) of this Court,6 the parties agreed that the appeal hinged
on a question of law and they formulated it by agreement. It reads as follows:
‘Does the State attorney, pursuant to, inter alia, the State Attorneys Act 56 of 1957, have
the power and authority to appoint and instruct an attorney from the private sector, in the
same district as that in which the State attorney is based or has an office, to act as the
primary attorney in a matter involving the State or an organ of State?’

[9] Although the high court granted leave to appeal to this Court, that
decision does not bind this Court. The Constitutional Court in United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd
and Others (United Democratic Movement)7 held that:
‘In terms of section 168(3) of the Constitution, the Supreme Court of Appeal has
jurisdiction to hear and decide appeals on any matter arising from the High Court. When a
matter comes before the Supreme Court of Appeal, it has jurisdiction to determine whether
the lower court’s ruling in the proposed appeal is a “decision” within the meaning of
section 16(1)(a) of the Superior Courts Act. The Supreme Court of Appeal is not bound by

5 The appellants do not appeal against the costs order.
6 Rule 8(8) of the Rules regulating the conduct of the proceedings of the SCA states that:
‘(8)(a) Whenever the decision of an appeal is likely to hinge exclusively on a specific issue or issues of law
and/or fact, the appellant shall, within 10 days of the noting of the appeal, request the respondent’s consent
to submit such issue or issues to the Court, failing which the respondent shall, within 10 days thereafter, make
a similar request to the appellant.
(b) The respondent or the appellant, as the case may be, shall within 10 days agree thereto or state the reasons
for not agreeing to the request.
(c) The request and the response shall form part of the record.
7 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others [2022] ZACC
34; 2022 (12) BCLR 1521 (CC); 2023 (1) SA 353 (CC).

the lower court’s assessment and is entitled to reach its own conclusion on the question.
The word “decision” is given a meaning equivalent to the meaning given to the words
“judgment or order”. The word “judgment” is used to refer to the decision of a court as
well as its reasoning.’8 (Emphasis added.)
‘…The Supreme Court of Appeal was not only entitled but obliged to determine whether
the matter was an appeal against a “decision” and thus an appeal within its jurisdiction.
The High Court’s granting of leave to appeal did not bind the Supreme Court of Appeal on
that issue.’9

[10] An appeal lies only against an order granted. The order in the present
matter is an interlocutory order. Thus, the first question is whether it is a
‘decision’ in terms of s 16(1)(a) of the Superior Courts Act 10 of 2013
(Superior Courts Act), which provides:
‘16 Appeals generally. —
(1) Subject to section 15(1), the Constitution and any other law —
(a) an appeal against any decision of a Division as a court of first instance lies, upon leave
having been granted —
(i)
if the court consisted of a single judge, either to the Supreme Court of Appeal
or to a full court of that Division, depending on the direction issued in terms
of section 17(6); or …’ (Emphasis added.)

[11] The order is not final nor definitive of the rights of the parties to the
action and does not have the effect of disposing of any portion of the relief
claimed in the main proceedings. In DRDGOLD Limited and Another v Nkala
and Others (DRDGOLD),10 this Court stated:

8 Ibid para 39 footnotes omitted.
9 Ibid para 40.
10 DRDGOLD Limited and Another v Nkala and Others [2023] ZASCA 9.

‘What then, is a ‘decision’ contemplated in s 16(1)? To answer this question, one must
examine the corresponding position under the Supreme Court Act. Section 20(1) thereof
provided:
“An appeal from a judgment or order of the court of a provincial or local division in any
civil proceedings or against any judgment or order of such a court given on appeal shall be
heard by the appellate division or a full court as the case may be.”
In Zweni this court considered s 20(1). At 532C-D Harms AJA explained:
“The expression “judgment or order” in s 20(1) of the Act has a special, almost technical,
meaning; all decisions given in the course of the resolution of a dispute between litigants
are not “judgments or orders” . . ..”
He proceeded to say that in this context the word ‘judgment’ might have two meanings.
The first was the reasoning of the court and the second its pronouncement on the relief
claimed. He said that s 20(1) concerned only the second meaning. This was in accordance
with the trite principle that an appeal lies against an order and not against the reasoning on
which the order is based. Harms AJA famously concluded at 532I-533A:
“A “judgment or order” is a decision which, as a general principle, has three attributes,
first, the decision must be final in effect and not susceptible of alteration by the Court of
first instance; second, it must be definitive of the rights of the parties; and, third, it must
have the effect of disposing of at least a substantial portion of the relief claimed in the main
proceedings”.’11

[12] This Court in DRDGOLD proceeded to state:
‘In Western Areas this court had occasion to consider the issue of appealability in
accordance with the prescripts of s 39(2) of the Constitution. Howie P concluded as follows
at para 28:
“I am accordingly of the view that it would accord with the obligation imposed by s 39(2)
of the Constitution to construe the word “decision” in s 21(1) of the Supreme Court Act to
include a judicial pronouncement in criminal proceedings that is not appealable on the
Zweni test but one which the interests of justice require should nevertheless be subject to

11 Ibid para 19-20.

an appeal before termination of such proceedings. The scope which this extended meaning
could have in civil proceedings is unnecessary to decide. It need hardly be said that what
the interests of justice require depends on the facts of each particular case.”
In Philani-Ma-Afrika & Others v Mailula & Others [2009] ZASCA 115; 2010 (2) SA 573
(SCA) para 20, this court further developed the law in this regard by applying the reasoning
in Western Areas to a civil matter. It said that ‘what is of paramount importance in deciding
whether a judgment is appealable is the interests of justice.’
Thus, the following legal position crystallised under the Supreme Court Act. An order that
met the three Zweni requirements would be an appealable decision. In accordance with the
general rule against piecemeal entertainment of appeals, an order that did not have all the
Zweni attributes, would generally not be an appealable decision. Such an order would
nevertheless qualify as an appealable decision if it had a final and definitive effect on the
proceedings or if the interests of justice required it to be regarded as an appealable
decision.’12

[13] The only question is whether the order of the high court should, in the
interests of justice, be regarded as a ‘decision’ under s 16(1)(a) of the Superior
Courts Act, and thus qualify as appealable. For the reasons set out below, I am
of the view that it is not in the interests of justice that the appeal should be
entertained. This is because, as will be demonstrated below, the agreed
question of law bears no relation to the facts of the case.

[14] The instruction to Rudmans emanated from an email dated
2 June 2014 which Ms Cingo, the Trade and Industry Adviser of the DTI, sent
to the State Attorney and copied to Rudmans, for the attention of Mr Percy
Rudman. It read:
‘Dear Sir
RE: THE DTI/UNICA IRON AND STEEL Pty Ltd

12 Ibid para 23 and 24.

Your ref: New matter
Find herewith instruction to recover incentive payment that was made to the
abovementioned entity as they were not in compliance with the guidelines of the Small
Medium Enterprise Development Incentive Programme (SMEDP).
…
Rudman Attorneys are hereby appointed as per your instruction attached13 to refer all
incentive related recoveries to Rudman attorneys.’ (Emphasis added.)

[15] Ms Cingo attached a previous email dated 4 May 2014, which was
addressed by Mr Ramnarain, a State Attorney, to Ms Pretorius of the DTI. It
contained the ‘instruction’ referred to in the 2 June 2014 email. The
4 May 2014 email, however, referred to an unrelated matter of Khabonina
Guest House. Mr Ramnarain informed Ms Pretorius:
‘…As you might be aware I am overseeing all of your related matters that has been
outsourced to Rudman Attorneys. I guess on receipt of these instructions, I can only assume
that either registration or an attorney from Mr van Rensburg[‘s] section transferred the
documentation to me as I am overseeing all the incentive matters.
…I am also aware that there are many related matters of great value which Mr Rudman is
already attending to. Do you not think that it will be practical and economical if he deals
with this matter as well?’

[16] Understandably, Rudmans (represented by Mr Werner Fourie)
requested clarity from Ms Cingo, in regard to the email of 2 June 2014 and its
attachment. She responded in a second email on 2 June 2014 as follows:
‘The email you referring to Werner its from the Office of the State Attorney giving the DTI
the right to directly refer matters to your office, but it arose from the matter of Khabonina
(your office already has instruction) which I think it [is] what might be causing confusion.

13 This instruction was imparted to the DTI in an email dated 4 May 2014.

Please note that whenever a new instruction is forwarded that email will be attached. It [is]
protecting the DTI and your office so to speak should a need arise.’
[17] This was, however, not what the 4 May 2014 email conveyed. It did not
afford ‘the right to directly refer matters’ to Rudmans. In any event, such right
or an ‘instruction to refer all incentive related recoveries to Rudman attorneys’
did not constitute a mandate from the State Attorney to Rudmans. Mr Fourie
confirmed under oath that Rudmans had been appointed by the DTI to act in
this matter.

[18] There was simply no evidence that the State Attorney instructed
Rudmans. A supporting affidavit of Mr Ramnarain was never signed. Such an
appointment would have required entering into a contract of mandate. There
was no such evidence. The appellants conceded that there was insufficient
evidence that the State Attorney had instructed Rudmans. It follows that, on
the facts as outlined above, Rudmans was mandated by the DTI and not the
State Attorney. The formulated question thus raises an abstract and academic
issue. This Court does not determine such issues. Therefore, it is not in the
interests of justice to entertain the appeal.

[19] In the result, the matter is struck off the roll with costs, including the
costs of two counsel.

________________________
WEINER JA
JUDGE OF APPEAL

Appearances

For appellants:
O A Moosa SC and A MacManus

Instructed by:
Pather and Pather Inc, La Lucia

Claude Reid Attorneys, Bloemfontein.

For respondents:  M Mphaga SC with ACJ Van Dyk

Instructed by:
Rudman and Associates Inc, Pretoria
Horn and Van Rensburg Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

31 March 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Unica Iron and Steel (Pty) Ltd and Another v The Minister of Trade and Industry and Another (1332/21)
[2023] ZASCA 42 (31 March 2023)
Today the Supreme Court of Appeal (SCA) handed down judgment with an order which struck the
appellants appeal from the roll with costs, including the costs of two counsel. The appeal was against
an order of the Gauteng High Court granted in favour of the respondents.
The respondents had issued summons to recover amounts paid to Unica Iron and Steel (Pty) Ltd in
terms of an incentive grant programme. The Minister of Trade and Industry (DTI) had mandated
Rudman & Associates Incorporated (Rudmans) to act on their behalf. The appellants filed a Notice in
terms of Rule 7 of the Uniform Rules of Court disputing the mandate of Rudmans to act on the
respondent’s behalf.
The respondents applied to the high court for a declarator that Rudmans had been and were authorised
to represent them in the matter. The appellants submitted that it was not legally permissible for the State
Attorney to appoint private attorneys to act on its behalf in a district where the State attorney has an
office. The high court rejected this contention and accepted that Rudmans had been instructed by the
State Attorney, as its correspondent.
Before the SCA, the parties agreed in terms of rule 8(8) of the Rules regulating the conduct of the
proceedings of the SCA that the appeal hinged on a question of law which they formulated by agreement
as follows:
‘Does the State attorney, pursuant to, inter alia, the State Attorneys Act 56 of 1957, have the power and
authority to appoint and instruct an attorney from the private sector, in the same district as that in which
the State attorney is based or has an office, to act as the primary attorney in a matter involving the State
or an organ of State?’ (the question of law)
The SCA stated that the high court order was based upon the supposition that it was the State Attorney,
as opposed to the DTI, who had instructed Rudmans, when this was factually incorrect. Based upon
this reasoning, the parties formulated the question of law.

The SCA held that the high court order was an interlocutory order and not an appealable ‘decision’ in
terms of s 16(1)(a) of the Superior Courts Act 10 of 2013. The order was neither final nor definitive of
the rights of the parties and did not dispose of any portion of the relief claimed in the main proceedings.
The question remaining was whether the order should, nevertheless in the interests of justice, be
regarded as appealable. The SCA held that was not in the interests of justice that the appeal should be
entertained because the agreed question of law bore no relation to the facts of the case. There was no
evidence that the State Attorney instructed Rudmans; on the facts presented in the matter, Rudmans
was mandated by the DTI and not the State Attorney.
The SCA held that the question of law raised an abstract and academic issue which the SCA does not
determine.
In the result, the matter was struck off the roll with costs, including the costs of two counsel.
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