THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No 621/02
REPORTABLE
THINUS SMIT                                                                APPELLANT
and
SCANIA SOUTH AFRICA (PTY) LTD                       RESPONDENT
Before:
Marais, Cloete JJA and Southwood AJA
Heard:
27 February 2004
Delivered: 27 February 2004
Grant of provisional sentence generally not appealable. May be appealable in
exceptional cases where the requirements for appealability in Zweni v Minister
of Law and Order 1993 (1) SA 523 (A) satisfied. Costs of abortive appeal.
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JUDGMENT
______________________________________________________
SOUTHWOOD AJA

[1] On 27 February 2004 the court made the following orders and
indicated that reasons for the orders would be furnished in due
course:
(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.
[2] On 23 August 2002 the High Court granted provisional
sentence against the appellant for payment of R239,400 and
ancillary relief. The appellant appealed against that order with the
leave of the court a quo.
[3] The appeal was enrolled for 27 February 2004. Both parties
filed heads of argument. The only issue was whether the appellant
had incurred personal liability on the cheque on which the action
was based. Neither party addressed the other defence raised.
[4] On 13 February 2004 the appellant’s attorneys gave notice
that they were withdrawing as the appellant’s attorneys of record
and on 25 February 2004 another attorney notified the registrar that
the appellant would not attend court to prosecute the appeal and
that on 20 February 2004 the appellant had given notice of his
intention to surrender his estate.

[5] The appellant did not appear on 27 February 2004. The
respondent was represented by Mr S van Niewenhuizen SC and Mr
W H J van Reenen. Mr van Niewenhuizen correctly did not ask that
the appeal be dismissed for non-prosecution.
[6] On 19 September 2003 in A Avtjoglou v First National Bank of
Southern Africa case no 17/2003 this court decided that, generally,
the grant of provisional sentence is not appealable. The court
confirmed the finding to that effect in Scott-King (Pty) Ltd v Cohen
1999 (1) SA 806 (W) at 825C-E and 825F-G and held that 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. It
found in that case that they were not satisfied.
[7] It is possible that in an exceptional case the application of
these requirements to a provisional sentence judgment will show
that that provisional sentence judgment is appealable. But that is
clearly not so in the present case and the court a quo should not
have granted leave to appeal. Accordingly this matter must be struck
off the roll rather than dismissed for non-prosecution.
[8] Mr van Niewenhuizen asked for the costs of the appeal
including the costs of two counsel. While conceding that the

provisional sentence granted in casu is not appealable and that the
court a quo should not have granted leave to appeal, he submitted
that in exercising its discretion on the question of costs this court
should take into account that the court a quo had indicated at the
hearing of the application for leave to appeal that leave to appeal
should be granted. The court a quo was apparently of the view that
the issue raised should be considered by the Supreme Court of
Appeal. This had influenced the respondent’s counsel.
[9] I do not agree with these submissions. The respondent should
have disputed the appealability of the provisional sentence both at
the application for leave to appeal and in its heads of argument. Had
it done so it is very unlikely that this matter would have reached this
stage. The respondent contributed as much as the appellant did to
the arrival of this abortive appeal in this court and there is no good
reason why it should have its costs of appeal paid by the appellant.
It would be fairer if each party paid its own costs of appeal.
[10] The costs of the application for leave to appeal stand on a
different footing. The respondent was obliged to attend court to
oppose the application for leave to appeal. The fact that it opposed
the grant of leave on the merits of the case and not on the
unappealability of the judgment cannot detract from that fact. The

appellant should not have succeeded in his application. The
respondent is therefore entitled to the costs of that application.
_________________
B R SOUTHWOOD
ACTING JUDGE OF APPEAL
CONCUR:
MARAIS JA
CLOETE JA