Judgment summary
This is a judgment on an application for leave to appeal brought by Ocean Ark Shipping Ltd and Astron Energy (Pty) Ltd against an earlier order of the same court (the section 18 judgment, handed down on 8 June 2026) refusing their application under section 18(3) of the Superior Courts Act 10 of 2013 for immediate enforcement of an interim order pending the Commissioner's appeal to the Supreme Court of Appeal (paras 1 to 3).
The court restated the legal test for appealability of a section 18(3) refusal, applying the Zweni triad and the interests of justice standard, and concluded that such a refusal is generally not appealable because it is interlocutory, not final in effect, and does not dispose of substantial relief (paras 26 to 40).
The court refused leave to appeal, finding no reasonable prospect of success and no other compelling reason to grant leave, and ordered the applicants to pay costs jointly and severally, with counsel's costs taxed on scale C (paras 42 to 44).
Background
The matter concerns the MT Essien, a vessel owned by Ocean Ark Shipping Ltd and used by Astron Energy (Pty) Ltd for coastwise fuel transportation. According to the Commissioner, the Vessel entered South African waters in September 2023 under a foreign flag without due entry or payment of import value-added tax, leading to its detention, seizure, and a deemed importation decision by SARS (para 10).
On 30 January 2026 and 2 March 2026, the court heard an urgent application by Ocean Ark and Astron seeking temporary suspension of SARS' decisions pending review proceedings in the Gauteng Division. The applicants proposed a financial on-demand guarantee, covering the Vessel's value, tax, penalties and interest, as a substitute for physical detention (paras 9 to 10).
On 24 April 2026, the court granted an interim interdict suspending the Commissioner's decisions and ordering release of the Vessel, accepting a revised guarantee from Lombard Insurance as adequate security. The court found that Astron faced losses of approximately R1 million per day (R31 million per month) and that Ocean Ark risked a R400 million asset, while also noting a public interest dimension relating to jet fuel supply for Cape Town International Airport (paras 11 to 12).
The Commissioner then applied for leave to appeal the main judgment, and the applicants launched a section 18(3) application to enforce the order pending that appeal. On 8 June 2026, the court granted the Commissioner leave to appeal to the Supreme Court of Appeal but dismissed the applicants' section 18(3) application, finding that the applicants had not shown the Commissioner would not suffer irreparable harm, particularly given the impending expiry of Astron's time charter and uncertainty over whether the Vessel would remain in South African waters (paras 13 to 16).
Core dispute
The applicants sought leave to appeal the refusal of the section 18(3) order to the Full Court, alternatively the Supreme Court of Appeal, contending there were reasonable prospects of success and compelling reasons for leave to be granted under sections 17(1)(a)(i) and (ii) of the SC Act (para 3).
The applicants argued that the court erred in finding SARS would suffer irreparable harm despite the guarantee, that SARS had adduced no evidence of a credible threat that the Vessel would leave South African territorial waters, that there was no basis to doubt Ocean Ark's undertaking to keep the Vessel in South African waters, and that the court overlooked the protections in section 18(4) that would cumulatively address any harm to SARS (paras 6 to 8).
The central issue for the court was whether the refusal of a section 18(3) enforcement order is itself an appealable decision, and, if so, whether the requirements for leave to appeal under section 17(1) of the SC Act were met (paras 17, 26 to 29).
Court findings
The court held that the automatic right of appeal under section 18(4)(a)(ii) of the SC Act does not arise where an enforcement order is refused; it applies only where a court departs from the default position that enforcement is automatically suspended pending appeal (paras 17 to 19).
Applying the Zweni triad, the court found that a refusal of section 18 relief is not, in the ordinary course, appealable, because it is not final in the ordinary sense (the court retains an inherent power and a further application may lie if circumstances change), does not definitively determine the parties' rights (the main appeal remains extant), and does not dispose of substantive relief (it merely preserves the statutory default position) (paras 39 to 40).
The court found that whatever the outcome of the present application, the fate of the Vessel depends on the decision of the SCA on the main appeal and ultimately on the review court, and that granting leave to appeal would not automatically render the main judgment and order enforceable (paras 30, 35, 37).
The court noted that the applicants had overlooked that one of the findings underpinning the grant of leave to appeal against the main judgment was that another court might find SARS should have been given an opportunity to make submissions before the revised guarantee was accepted as adequate security, and that another court might find the guarantee inadequate (para 38).
The court distinguished the Tau Mining Contractors judgment relied on by the applicants, noting that it did not deal with whether a section 18(3) refusal is appealable, and that no judgments in this or any other division had been found in which such an order had been granted leave to appeal on that basis (para 41).
The court concluded it was not persuaded that the appeal would have a reasonable prospect of success or that there was some other compelling reason why the appeal should be heard (para 42).
Outcome
The application for leave to appeal was refused. The applicants were ordered to pay the costs of the application, jointly and severally, the one paying the other to be absolved, with the costs of counsel to be taxed on scale C (para 44).
Major issues / areas of contention
- Whether the refusal of an enforcement order under section 18(3) of the Superior Courts Act is an appealable 'judgment or order' under section 16(1)(a) of the SC Act.
- Application of the Zweni triad (finality, definitiveness of rights, and disposal of substantial relief) to a section 18(3) refusal.
- Whether the automatic right of appeal under section 18(4)(a)(ii) applies to a refusal, as opposed to a grant, of enforcement pending appeal.
- Whether SARS would suffer irreparable harm if the Vessel were released pending the Commissioner's appeal, notwithstanding the guarantee provided.
- Whether the revised guarantee from Lombard Insurance adequately secured SARS' interests pending the outcome of the main appeal and review proceedings.
- Whether there were compelling reasons, including public importance, to justify granting leave to appeal despite the absence of reasonable prospects of success.