Avtjoglou v First National Bank of Southern Africa (17/2003) [2003] ZASCA 88; 2004 (2) SA 453 (SCA) (19 September 2003)

Avtjoglou v First National Bank of Southern Africa (17/2003) [2003] ZASCA 88; 2004 (2) SA 453 (SCA) (19 September 2003)

The Supreme Court of Appeal held that the grant of provisional sentence is not appealable. Provisional sentence is an interlocutory remedy that does not finally determine the rights of the parties, is susceptible to alteration in the principal case, and does not dispose of the relief claimed in the main proceedings. The characteristics required for an order to be appealable, as set out in Zweni v Minister of Law and Order, are not present in a provisional sentence order. The court declined to comment on the liquidity of the document or the merits of the appellant's defence, as these issues are not properly before the court at this stage. The appeal was accordingly struck off the roll with...

Citation
[2003] ZASCA 88
Parties
Appellant: A Avtjoglou; Respondent: First National Bank of Southern Africa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
19 September 2003
Case Number
17/2003
Procedural Posture
Civil Appeal / Appeal Against Grant of Provisional Sentence
Outcome
Appeal struck off the roll with costs.
Judges
Zulman, Navsa, Brand
Legal Topics
Provisional Sentence, Appealability of Interlocutory Orders, Liquid Documents
Civil Procedure Provisional Sentence Appealability of Interlocutory Orders Liquid Documents

Case Brief

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Parties

A Avtjoglou

Appellant

First National Bank of Southern Africa

Respondent

Procedural Posture

Civil Appeal / Appeal Against Grant of Provisional Sentence

Legal Issues

  1. 1 Whether the grant of provisional sentence is appealable.
  2. 2 Whether the document relied upon by the respondent is liquid.
  3. 3 Whether the appellant discharged the onus to show the respondent is unlikely to succeed in the principal case.

Ratio Decidendi

The Supreme Court of Appeal held that the grant of provisional sentence is not appealable. Provisional sentence is an interlocutory remedy that does not finally determine the rights of the parties, is susceptible to alteration in the principal case, and does not dispose of the relief claimed in the main proceedings. The characteristics required for an order to be appealable, as set out in Zweni v Minister of Law and Order, are not present in a provisional sentence order. The court declined to comment on the liquidity of the document or the merits of the appellant's defence, as these issues are not properly before the court at this stage. The appeal was accordingly struck off the roll with...

Court Disposition

Appeal struck off the roll with costs.

Orders

  • The appeal is struck off the roll with costs.