MAJIEDT J
in the interests of justice that the two cases be heard on direct appeal by this Court. As
will appear, there are also reasonable prospects of success.
[38]
What bears consideration next, is the appealability of the dismissal of an
exception. In Informal Traders, this Court held that whether an interlocutory decision
is appealable is an interests of justice enquiry.29 A similar “interests of justice” enquiry
ought to apply here. In Zweni, the Supreme Court of Appeal held that decisions that
can be appealed must have the following three attributes: they must be final in effect
and not susceptible to alteration by the court of first instance; they must be definitive in
some respect of the rights of the parties; and they must have the effect of disposing of
a substantial portion of the relief claimed.30 However, where an exception is not upheld,
an appeal will not lie because it does not meet the criteria enumerated in Zweni.
Previously, the Supreme Court of Appeal has pertinently declined to reconsider the
question of the appealability of decisions dismissing exceptions.31 However, the
interests of justice criterion is more expansive.
As this Court held in OUTA:
“[t]his Court has granted leave to appeal in relation to interim orders before. It has
made it clear that the operative standard is the ‘interests of justice’”.32 As stated, there
are reasonable prospects of success here. This set of exceptions plainly raise questions
concerning the constitutional validity of the common law of defamation, as was the case
in Khumalo.
[39]
The question whether an appeal may lie to this Court against the dismissal of an
exception by a High Court depends on whether such dismissal constitutes a “decision
on a constitutional matter” as contemplated by rule 1933 and, if it does, whether it is
29
South African Informal Traders Forum v City of Johannesburg [2014] ZACC 8; 2014 (4) SA 371 (CC); 2014
(6) BCLR 726 (CC) at para 20.
30
Zweni above n 10 at 532J-533A.
31
Minister of Safety and Security v Hamilton [2001] ZASCA 27; 2001 (3) SA 50 (SCA) at 53D-E.
32
National Treasury v Opposition to Urban Tolling Alliance [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11)
BCLR 1148 (CC) at para 25.
33
Rule 19(2) reads:
“A litigant who is aggrieved by the decision of a court and who wishes to appeal against it
directly to the Court on a constitutional matter shall, within 15 days of the order against which
17