THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1156/2022
In the matter between:
CIBA PACKAGING (PTY) LTD T/A CIBAPAC
APPELLANT

and

TIMELINK CARGO (PTY) LTD                                                   RESPONDENT

Neutral citation: Ciba Packaging (Pty) Ltd t/a Cibapac v Timelink Cargo (Pty)
Ltd (1156/2022) [2023] ZASCA 161 (28 November 2023)

Coram:
MAKGOKA, HUGHES and MABINDLA-BOQWANA JJA and
BINNS-WARD and TOKOTA AJJA

Heard:
7 November 2023

Delivered: 28 November 2023

Summary:  Civil procedure – appealability of dismissal of an exception –
restatement of principles.

ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Matojane
J, sitting as court of first instance):
The appeal is struck from the roll, with costs.

JUDGMENT
Mabindla-Boqwana JA (Makgoka and Hughes JJA and Binns-Ward and
Tokota AJJA concurring):

[1] The appeal concerns the much debated and recurring question of the
appealability of a court order. The Gauteng Division of the High Court,
Johannesburg (the high court) dismissed an exception raised by the appellant,
Ciba Packaging (Pty) Ltd t/a Cibapac (Cibapac), to the particulars of claim of the
respondent, Timelink Cargo (Pty) Ltd (Timelink). The appeal is with the leave of
the high court.

[2] Timelink instituted an action against Cibapac, in the high court. It alleged in
its particulars of claim that during December 2011, it concluded an agreement with
Cibapac. In terms of the agreement, it would supply freight services for Cibapac
within three days of receipt of written purchase orders from Cibapac. The services
would be rendered at Timelink’s usual rate, alternatively at the reasonable rate

determined according to the industry standard. In addition, Cibapac would be liable
for all necessary disbursements incurred in the rendering of services on its behalf.

[3] Timelink further alleged that during December 2019 to March 2020, it
rendered the services in terms of the agreement, as a result of which it became
entitled to receive payment in the sum of R1 652 678.80. On 3 April 2020, it sent a
letter of demand to the Cibapac claiming payment of the alleged debt.

[4] In addition, it made the following allegations: (a) on 14 May 2020, Cibapac
was placed under business rescue; (b) Cibapac admitted its indebtedness to it and
recorded it as a creditor in its business rescue plan; (c) the business rescue plan was
adopted in September 2020; and (d) the business rescue plan terminated on
18 December 2020 after the business rescue practitioner filed a notice of substantial
implementation. Timelink pleaded that it did not participate in the business rescue
proceedings.

[5] Cibapac filed an exception to Timelink’s particulars of claim on the grounds
that the particulars of claim did not disclose a cause of action. This, Cibapac alleged,
was because Timelink’s claim was barred by the provisions of s 154(2) of the
Companies Act 71 of 2008 (the Act), which reads as follows:
‘(1)
A business rescue plan may provide that, if it is implemented in accordance with its terms
and conditions, a creditor who has acceded to the discharge of the whole or part of a debt owing
to that creditor will lose the right to enforce the relevant debt or part of it.
(2)
If a business rescue plan has been approved and implemented in accordance with this
Chapter, a creditor is not entitled to enforce any debt owed by the company immediately before
the beginning of the business rescue process, except to the extent provided for in the business
rescue plan.’

[6] The thrust of Cibapac’s exception was therefore this. Timelink was seeking to
enforce a debt allegedly owed by Cibapac immediately before the beginning of the
business rescue process. Since Timelink did not plead that the business rescue plan
allowed for the enforcement of its alleged debt, its particulars of claim did not
disclose a cause of action.

[7] The high court dismissed the exception with costs. Relying on this Court’s
interpretation of s 154(2) in Van Zyl v Auto Commodities (Pty) Ltd, 1 it reasoned as
follows:
‘. . . the approval and implementation of the business rescue plan do not necessarily discharge the
debt. It cannot be said that the pleadings are excipiable on every interpretation that can reasonably
be attached to it.
On a reading of the particulars of claim, the claim in respect of the breach of oral contract has been
set out to enable the excipient to respond to it. I find that the plaintiff’s cause of action is not
dependent on the allegations relating to business rescue proceedings pleaded in paragraph 10 of
the particulars of claim. I, therefore, find that the excipient can respond to the claim for breach of
the oral agreement, and it follows that the exception must fail.’

[8] The issue in the appeal is whether the high court’s order dismissing the
exception is appealable; and, if so, whether Timelink’s particulars of claim are
excipiable on the basis that they do not disclose a cause of action.

[9] The general principle is that the dismissal of an exception is not appealable,
save where the exception challenges the jurisdiction of the court.2 This Court, in
TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and

1 Van Zyl v Auto Commodities (Pty) Ltd [2021] ZASCA 67; 2021 (5) SA 171 (SCA); [2021] 3 All SA 395 (SCA).
2 Maize Board v Tiger Oats Limited and Others [2002] 3 All SA 593 (A); 2002 (5) SA 365 (SCA) para 14.

Others, recently confirmed this.3 One of the exceptions raised in TWK was that the
plaintiff had no cause of action to secure an appraisal remedy in terms of s 164 read
with s 37(8) of the Act, unless the company had more than one class of shares. That
was an alleged statutory prerequisite, which was, at best for the defendant, found to
be no more than a question of law.

[10] Cibapac accepted the position as set out in TWK. It sought to distinguish its
case on the basis that its exception went to the competence or the jurisdiction of the
high court to determine the matter before it, and as such is appealable because it fell
within the exception to the rule in respect of the non-appealability of orders
dismissing exceptions recognised in TWK.4 Counsel for Cibapac argued that it is not
competent for the court to entertain a claim, such as the one advanced by Timelink
in its summons, because, so he submitted, the claim is expressly prohibited by
s 154(2) of the Act.

[11] As to the exception itself, counsel submitted that the cause of action as pleaded
by Timelink could not be divorced from the allegations relating to the placing of
Cibapac in business rescue and the existence and termination of the business rescue
plan. Because of these allegations, so it was contended, Timelink had the onus to
plead why the prohibition in s 154(2) of the Act was not applicable.

3 TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and Others [2023] ZASCA 63; 2023
(5) SA 163 (SCA) paras 9 and 43.
4 TWK paras 10 and 43.

[12] The submission in relation to the appealability issue is unsustainable for
reasons explained in TWK as follows:5
‘Maize Board does recognise a carve-out to the rule that the dismissal of an exception is not
appealable. An order dismissing an exception will be appealable where the exception challenges
the jurisdiction of the court. That is so for reasons that were explained in Moch. Where the
challenge concerns the jurisdiction of a court, and hence the competence of a judge to hear the
matter, the decision of the court is considered definitive, and appealable. This is consistent with
the principles enunciated in Zweni because the decision as to jurisdiction is considered final. This
position is entirely justified because an error as to jurisdiction, if not subject to appellate
correction, would permit the court below to proceed with a matter when it had no competence to
do so, rendering what it did a nullity. That is plainly an undesirable outcome. Furthermore, a
challenge to jurisdiction is taken at the commencement of proceedings. Until this challenge is
finally resolved, a court should not exercise coercive powers that compel compliance.’ (My
emphasis.)

[13] Counsel for Cibapac submitted that Cibapac’s exception is similar to the
situation in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service,6 which
had to do with the appealability of an order dismissing an application for recusal.
This is not so. In Moch, the Court underscored that:
‘A decision dismissing an application for recusal relates, as we have seen, to the competence of
the presiding judge; it goes to the core of the proceedings and, if incorrectly made, vitiates them
entirely. . . That a decision dismissing an application for recusal has such a bearing stands to reason
because it reflects on the competence of the presiding judge to define the parties’ rights and to
grant or refuse the relief claimed. For this very reason it is comparable with a decision on a plea
to a court’s jurisdiction . . .’7 (My emphasis.)

5 TWK para 43, referring to Maize Board v Tiger Oats Limited and Others [2002] 3 All SA 593 (A); 2002 (5) SA 365
(SCA); Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) and Zweni v Minister of
Law and Order [1993] 1 All SA 365 (A); 1993 (1) SA 523 (A).
6 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A).
7 Moch at 10D-G.

[14] The objective of limiting the appeal of a dismissal of an exception to
challenges of jurisdiction, is evident from these cases. Proceeding with a matter in
circumstances where a judicial officer is not competent to grant or refuse the relief
sought, goes to the heart of the proceedings. An order issued by a court that lacks
jurisdiction will vitiate the entire proceedings and it is final. An error committed in
those circumstances cannot be corrected or revisited by that court at a later stage.

[15] That is, however, not what we are dealing with in the present matter. Here,
the high court has jurisdiction to determine the action brought by Timelink. It may
grant or refuse the claim. It may base its refusal of the claim on the legal challenge
posed by s 154(2) of the Act or on other bases. Thus, any view taken by the high
court when dismissing the exception is capable of being altered by the court deciding
the matter on trial. That order will be competent. In Blaauwbosch Diamonds Ltd v
Union Government (Minister of Finance),8 this Court had this to say:
‘. . . one would say that an order dismissing an exception is not the final word in the suit on that
point that it may always be repaired at the final stage. All the Court does is to refuse to set aside
the declaration; the case proceeds; there is nothing to prevent the same law points being re-argued
at the trial; and though the Court is hardly likely to change its mind there is no legal obstacle to its
doing so upon a consideration of fresh argument and further authority.’

[16] Counsel further placed reliance on the minority judgment of the Constitutional
Court in Baliso v Firstrand Bank Limited t/a Wesbank,9 which he contended
characterised non-compliance with a provision of a statute as a matter going to the

8 Blaauwbosch Diamonds Ltd v Union Government (Minister of Finance) 1915 AD 599 at 601.
9 Baliso v Firstrand Bank Limited t/a Wesbank [2016] ZACC 23; 2016 (10) BCLR 1253 (CC); 2017 (1) SA 292 (CC).

competence of the court and hence its jurisdiction. This, he submitted, the majority
judgment did not disagree with.

[17] The exception in Baliso concerned non-compliance with the notice required
under s 127(2) of the National Credit Act 34 of 2005 (the NCA). Section 130(3)(a)
of the NCA permits a court to determine a matter in respect of a credit agreement,
only after procedures required by ss 127, 129 or 131 have been complied with, where
those sections apply.

[18] The majority judgment observed that regardless of the outcome of the
exception, the applicant was in a position to provide evidence at the trial that he was
not given proper notice in terms of s 127(2) of the NCA. ‘After hearing evidence
from both parties, the presiding judicial officer would then have to assess this
evidence in order to decide whether proper notice was given’.10 It further found that
the dismissal of the exception was not final in its effect, neither was it definitive of
the rights of the parties, nor dispositive of any substantial portion of the relief sought
in the main proceedings, as required in Zweni.11 The appealability test was, therefore,
not met.12

[19] The minority, however, adopted a different view. It held that the decision
sought to be appealed against related to the jurisdiction or competence of the high
court to determine the matter before it did, and, as such, the decision (of the high
court) was appealable. It further held that s 130(3) of the NCA introduced a

10 Baliso para 19.
11 Zweni v Minister of Law and Order [1993] 1 All SA 365 (A); 1993 (1) SA 523 (A).
12 Baliso para 20.

precondition that must exist before the court may have the competence or
jurisdiction to determine the matter.

[20] One of the relevant passages referred to in Baliso reads as follows:
‘This Court made it clear that section 191(5) concerns jurisdiction. Given the use of “if” and “may”
in section 191(5), and “may” and “only if” in section 130(3) of the Act, it seems to me that section
130(3) relates to the competence or jurisdiction of the court. Its effect is that, the court will have
no jurisdiction in respect of a matter where the procedures prescribed by section 127(2) have not
been complied with. Therefore, compliance with the procedure in section 127(2) goes to the
competence or jurisdiction of the court. A decision that there has been compliance with section
127(2) is a decision on the competence or jurisdiction of the court. Once a court of first instance
has made a decision on jurisdiction, it cannot alter that decision later.’13 (My emphasis.)

[21] The majority had recognised that compliance with the relevant sections of the
NCA is a prerequisite for determining the matter. Nevertheless, it concluded that the
question of whether proper notice was given would be assessed when evidence was
presented in the trial.14

[22] Even if the approach adopted by the minority were to be accepted, it is not
supportive of Cibapac’s contention. There is no precondition required to be fulfilled
in the current matter before the high court could determine the matter. It has
jurisdiction. Baliso dealt with a completely different set of circumstances and is
clearly distinguishable from the present case. The minority, in any event,
characterised the court’s decision on the dismissal of the exception as one that could
not be altered later.15

13 Baliso para 68.
14 Baliso para 19.
15 Baliso para 68.

[23] As in TWK, the dismissal of the exception in this case has nothing to do with
jurisdiction. At best, it turns on the question of law ‘that [has] nothing to do with the
competence of the trial court to try the action. Rather, the trial court can consider
again whether the dismissal of the exception was correct’.16

[24] Evidence may be required in relation to what is provided for in the business
rescue plan in relation to Timelink’s claim, taking into account the provisions of
s 154(2) of the Act. Facts surrounding its alleged non-participation in the business
rescue proceedings may, among other issues, also be relevant. All these matters
should be decided with finality at the trial. Given the findings on appealability, it is
not necessary to decide whether the exception is good in law or not.

[25] In the end, counsel for Cibapac submitted that Cibapac is not seeking the
dismissal of the action, but for Timelink to be afforded an opportunity to amend its
particulars of claim. This is a further indication that the dismissal of the exception
did not finally dispose of the issue between the parties and confirms the fact that the
high court has jurisdiction over the matter.

[26] In light of the order of the high court not meeting the requirements of
appealability, the appeal must be struck from the roll, with costs following the result.

[27] The following order is made:
The appeal is struck from the roll, with costs.

16 TWK para 44.

__________________________
N P MABINDLA-BOQWANA
JUDGE OF APPEAL

Appearances

For the appellant:
L E Combrink SC with W J Pietersen

Instructed by:

Venns Attorneys, Pietermaritzburg

Honey Attorneys, Bloemfontein

For the respondent:
K Gounden
Instructed by:

Larson Falconer Hassan Parsee Inc, Durban

Hendre Conradie Inc, 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:
28 November 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
Ciba Packaging (Pty) Ltd t/a Cibapac v Timelink Cargo (Pty) Ltd (1156/2022) [2023] ZASCA 161 (28
November 2023)
Today, the Supreme Court of Appeal (SCA) struck from the roll, with costs, an appeal against the
judgment of the Gauteng Division of the High Court, Johannesburg (the high court), which dismissed
an exception raised by the appellant, Ciba Packaging (Pty) Ltd t/a Cibapac (Cibapac), to the particulars
of claim of the respondent, Timelink Cargo (Pty) Ltd (Timelink).

The issue in the appeal was whether the high court’s order dismissing the exception was appealable;
and, if so, whether Timelink’s particulars of claim were excipiable on the basis that they did not disclose
a cause of action.

The thrust of Cibapac’s exception was that Timelink was seeking to enforce a debt allegedly owed by
Cibapac immediately before the beginning of the business rescue process under which Cibapac was
placed. Since Timelink did not plead that the business rescue plan allowed for the enforcement of its
alleged debt, Cibapac alleged that its particulars of claim did not disclose a cause of action. Hence,
Timelink’s claim was barred by the provisions of s 154(2) of the Companies Act 71 of 2008 (the Act).
Cibapac argued further that its exception was appealable, because it was not competent for the court to
entertain a claim such as the one advanced by Timelink in its summons, as the claim was expressly
prohibited by s 154(2) of the Act.

The SCA restated the general principle that the dismissal of an exception was not appealable, save
where the exception challenged the jurisdiction of the court. The SCA found that in this matter the high
court had jurisdiction to determine the action brought by Timelink. It might grant or refuse the claim.
It might base its refusal of the claim on the legal challenge posed by s 154(2) of the Act or on other
bases. Thus, any view taken by the high court when dismissing the exception was capable of being
altered by the court deciding the matter on trial. That order would be competent. The SCA found further
that there was no precondition required to be fulfilled in the matter before the high court could have
determined the matter. It thus had jurisdiction. As the dismissal of the exception in this case had nothing
to do with jurisdiction, the SCA found that it was not appealable.

Given the findings on appealability, the SCA found that it was not necessary to decide whether the
exception was good in law or not.
~~~~ends~~~~