Reportable: Circulate to Judges: Circulate to Magistrates: Circulate to Regional Magistrates: YES / NO YES / NO YES / NO YES / NO IN THE HIGH COURT OF SOUTH AFRICA NORTH WEST HIGH COURT, MAFIKENG In the matter between: CASE NO: M 342/2016 ANDREW LESIBA SHABALALA Applicant and GOUDINI CHROME (PTY) LTD SCORMIN (PTY) LIMITED 1 st Respondent 2 nd Respondent DATE OF HEARING : 27 OCTOBER 2017 DATE OF JUDGMENT : 02 NOVEMBER 2017 COUNSEL FOR THE APPLICANT : ADV. MATLHAPE COUNSEL FOR THE RESPONDENTS : ADV. KLOPPER JUDGMENT ON LEAVE TO APPEAL 1
HENDRICKS J Introduction [1] On 26 th January 2017 this Court confirmed the interim order (rule nisi) granted by Gura J. on 08 th July 2016 in which it was inter alia ordered that the Sixth Respondent (applicant in this application for leave to appeal) should return the caterpillar which he bought on auction to the care and possession of the Sheriff for the District of Zeerust within 48 hours from the date of the order. Other ancillary relief was also granted. The facts of this case are comprehensively set out in the judgment of 26 th January 2017 and same need not be repeated in any detail herein. [2] This is an application for leave to appeal to the Supreme Court of Appeal (SCA) alternatively to the Full Bench of this division, against the order/judgment of this Court granted on 26 th January 2017. Coupled with this application for leave to appeal is an application for condonation for the late filing of the application for leave to appeal. This application for condonation was filed on 22 nd August 2017 and is unopposed. The Respondent leaves it in the hands of this Court to pronounce on the merits or demerits of the application for condonation. 2
[3] Condonation is not for the mere asking. It is incumbent upon an applicant in an application for condonation to prove that (s) he / it did not wilfully disregard the timeframes provided for in the Rules of Court. Furthermore, that there are reasonable prospects of success on appeal. In Melane v Southern Insurance Co Ltd 1962 (4) SA 531 (AD) at page 532 B-E, the following is stated about the factors that will be taken into account when considering a condonation application: In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent s interest in finality must not be overlooked. 3
[4] As reason for the delay, it is stated in the founding affidavit deposed to by the Applicant that he was overcome by grief because of the passing of his erstwhile attorney of record who was shot and killed on 26 th April 2017. He thought that the attorney lodged the application for leave to appeal, only to ascertain from the Registrar of this Court on 14 th July 2017 that it was never done. On 17 th July 2017 he approached his current attorneys of record who was willing to assist him. The founding affidavit was attested to on 19 th July 2017. It was however only filed more than a month thereafter on 22 nd August 2017. [5] The delay from 26 th January 2017 to 22 nd August 2017 is not properly explained in the founding affidavit. The order/judgment was handed down on 26 th January 2017. The erstwhile attorney was shot on 26 th April 2017. There is no explanation what steps were taken by the Applicant during this period of three (3) months to ensure that his application for leave to appeal is timeously prosecuted. [6] The period of delay between 26 th April 2017 and 14 th July 2017 (almost three (3) months) are also not adequately explained. There is no explanation of what the Applicant did during this period to prosecute his application for leave to appeal. It was only on 17 th July 2017 that he approached his current attorney of record. It took only two (2) days for him to depose to the founding affidavit and caused it to be attested to on 19 th July 2017. The period between the 4
attestation of the affidavit on 19 th July and 22 nd August 2017 when the application was filed (more than a month later) is also not explained. In summary, the facts in the founding affidavit are very scanty. It lacks detail. [7] Section 17 (1) of the Superior Court Act 10 of 2013 provided as follows: 17. (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that (a) (i) the appeal would have a reasonable prospect of success; or (ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration; (b) the decision sought on appeal does not fall within the ambit of section 16(2)(a); and (c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real 15 issues between the parties. It was contended, on behalf of the Applicant, that there are reasonable prospects of success on appeal and that there is a compelling reason why the appeal should be heard. 5
[8] The application for leave to appeal is premised on the following grounds: KINDLY TAKE NOTICE that it is the intention of the above Applicant to make an application on the day of 2017 and at 10h00 am for leave to appeal to the Supreme Court of Appeal, alternatively, the Full Bench Division of the North West High Court, Mahikeng, based on sections 17(1) (a) (i) and (ii) of the Superior Courts Act 10 of 2013, against the whole judgment and order delivered by His Lordship Mr Justice Hendricks on 26 January 2017 in that: 1. The learned judge misdirected himself and erred in making the following order: 1.1 Confirming the Rule Nisi issued by the Honourable Court on 10 June 2016; 1.2 The Sheriff of the district of Zeerust, or any other Sheriff with comtepent jurisdiction, be ordered to attach the assets as set out on the Mahikeng roll under case number M297/2016( property) and that the property remain in the safe custody of the Sheriff pending the finalization of an action to be instituted by Goudini & Scorminfor a claim in respect of ownership of those assets; 1.3 That the order in paragraph 1.2 above operates as an interim interdict with immediate effect. 6
2. By failing to apply the requirements of a final interdict in that by confirming the Rule Nisi, the Learned Judge granted a final interdict and as such it should have been found that the Applicants in the court a quo failed to establish that they have a clear right to the properties in question. 3. By finding that Applicants in the court a quo had no other remedy other than to approach court a quo for the relief sought, instead of examining whether the Applicants in the court a quo had no other satisfactory remedy available at their disposal. 4. By ruling that no alternative remedy was available to Goudini & Scomim, whereas they had a damages claim against the Fifth Respondent. 5. By finding that the Applicant herein (Sixth Respondent in the court a quo) had knowledge of the fact that the property in question had been under attachment when he removed it. 6. By failing to consider that once a property has been attached and sold in execution pursuant an order of a competent court, the owner of such property has no recourse than to have the sale declared null and void or rescind the order of such competent court. 7. By failing to rule that Goudini & Scormin were not entitled to the relief sought as the main action about ownership of the said property is still pending. 7
8. By finding that the Applicant herein missed the point by proceeding as if the proceedings before the court a quo were about setting aside of a sale in execution. 9. By failing to discharge the Rule Nisi with costs. 10. The Honourable Court ought to have discharged the Rule Nisi or extend it pending the finalisation of the main action. [9] In summary, the grounds relate to the following: that a final interdict was granted as opposed to an interim interdict in favour of the Respondents (Applicants in the main application); that this Court erred in its ruling that no alternative remedy was available; that this Court erred in failing to rule that the relief sought cannot be granted because the issue relating to ownership of the properties is still pending. [10] In terms of the interim order granted on 10 th June 2016 under case number M 297/2016, which case has a bearing on this case, the Sheriff for the district of Zeerust was ordered to attach the assets as set out in the Vendu Role under case number 273/2015 and to keep it safe pending the finalization of an action to be instituted. Included as 8
one of the assets was the caterpillar which forms the basis of the application under case number M 342/2016 (the present case). [11] The wording of the interim order is clear and unambiguous. It is an interim order that has no final effect. The Sheriff was ordered to attach and keep the goods safe pending the finalization of an action to be instituted to determine ownership of the properties in question, including the caterpillar. This is clearly an interim measure to ensure that the goods are kept safe until the dispute about the ownership over the goods are finally determined by a court. This is an interlocutory interdict that was granted which is not final in effect and is therefore not appealable. [12] In Van Niekerk v Van Niekerk 2008 (1) SA 76 (SCA) at paragraph [3] to [8] the following is stated: 3. In Zweni v Minister of Law and Order (1993 (1) SA 523 (A) at 531H 533E), Harms AJA embarked on a brief exposition and a critical review of some of the general propositions commonly (and sometimes loosely) advanced in the decided cases before summarising the following three attributes of an appealable judgment or order (at 532J -533A): [F]irst, the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the rights of the parties; 9
and, third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. 4. Zweni s case has been referred to and followed in numerous subsequent decisions of this Court (see eg. Maize Board v Tiger Oats Ltd & Others 2002 (5) SA 365 (SCA) para 6 at 370C 371C and authorities there cited). 5. The test as formulated in Zweni, although easy to state, is not always easy to apply. Thus, in Cronshaw & Another v Coin Security Group (Pty) Ltd [1996] ZASCA 38; (1996 (3) SA 686 (A) at 690D-E), Schutz JA remarked that the question [as to when a decision is interlocutory, and thus not appealable, or final, and thus appealable] is... a question that has vexed the minds of eminent lawyers for many centuries and the answer has not always been the same. The question is intrinsically difficult, and a decision one way or the other may produce some unsatisfactory results. In similar vein, in Minister of Safety and Security & Another v Hamilton (2001 (3) SA 50 para 4 at 52B), Cameron JA stated that the question of which judgments, orders and rulings are appealable to this court has presented persisting complexity. 6. In considering the question of appealability, the underlying consideration is that it is undesirable to have a piecemeal appellate disposal of the issues in litigation and that it is advisable to limit appeals to certain orders. (See, eg, Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A) at 866 871; Guardian National Insurance Co Ltd v Searle NO 1999 (3) SA 296 (SCA) at 301B D.) 10
7. Generally speaking, the balance of convenience more often than not requires that the case be brought to a conclusion at the first level and the whole case then be appealed (see Take and Save Trading CC & Others v Standard Bank of SA Ltd [2004] ZASCA 1; 2004 (4) SA 1 (SCA) para 4 at 5D). Thus, in the Guardian National case (at 301B-C), Howie JA held that As previous decisions of this Court indicate, there are still sound grounds for a basic approach which avoids the piecemeal appellate disposal of the issues in litigation. It is unnecessarily expensive and generally it is desirable, for obvious reasons, that such issues be resolved by the same Court and at one and the same time. 8. Howie JA proceeded to point out that, where this approach has been relaxed, it has been because the judicial decisions in question whether referred to as judgments, orders, rulings or declarations had the three attributes referred to in Zweni s case (above, loc cit). [13] In JR 209 Investments (Pty) Ltd v Pine Villa Country Estates (Pty) Ltd 2009 (4) SA 302 (SCA) at paragraph [24] and [25] the following is stated: [24] The final issue to be decided is whether the interdict granted by Rabie J was appealable. He granted an order in the following terms: 11
An interim interdict is granted pending the final adjudication of [the action]... in terms of which the [purchaser and the developer] are restrained from: (a) (b) (c) Lodging the plans, diagrams or title deeds in respect of the township Monavoni Ext 18 for endorsement or registration... or procuring the registration of the general plan of the township Monavoni Ext 18, Taking any further steps declaring the township an approved township. [25] In Cronshaw & Another v Coin Security Group (Pty) Ltd this Court held that an interim interdict was appealable if it were final in effect and not susceptible to alteration by the court of first instance. Metlika Trading Ltd and Others v Commissioner, South African Revenue Service held that in determining whether an order is final, it was important to bear in mind that not merely the form of the order must be considered but also, and predominantly, its effect. [14] This Court has a discretion whether or not to grant an interim interdict, which discretion should be exercised judiciously. All the elements relating to the granting of the interim interdict were duly considered by this Court. I am of the view that there are no reasonable prospects of success on appeal. There is also no other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration. The application for leave to appeal should therefore be dismissed. As a result of the absence of reasonable prospects of success on appeal, 12
condonation for the late filing and prosecution of the application for leave to appeal should also be refused. As far as costs are concerned, it should follow the result and be awarded in favour of the successful party, the Respondents. Order [15] Consequently, the following order is made: (i) Condonation for the late filing and prosecution of the application for leave to appeal is refused. (ii) The application for leave to appeal to the Supreme Court of Appeal (SCA) alternatively to the Full Bench of this division against the order/judgment of this Court granted on 26 th January 2017 is dismissed. (iii) The applicant is ordered to pay the costs of this application for leave to appeal. 13
R D HENDRICKS JUDGE OF THE HIGH COURT NORTH WEST HIGH COURT, MAHIKENG 14