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[2015] ZAWCHC 197
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D.L.M v L.S.M (20350/2012) [2015] ZAWCHC 197 (24 November 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NUMBER: 20350/2012
DATE: 24 NOVEMBER 2015
In the matter between:
D L
[M……………]
...................................................................................................................
Applicant
And
L S
[M…………...]
..............................................................................................................
Respondent
J U D G M E N T
DAVIS, J:
Introduction:
[1] This is an application in terms of
Rule 30(1) of the Uniform Rules of Court. The applicant and first
respondent, husband and
wife, in a divorce action which is pending
before this Court, in which the first respondent has instituted
action against the applicant,
as well as the trustees of several
trusts (“the Trust”) in October 2012.
[2] In February 2015, applicant brought
an application in terms of Rule 33(4) of the Uniform Rules of Court,
for a separation of
issues in the divorce action. He sought a
separate determination of the following issues at a preliminary
trial: the claims for
a decree of divorce, it being common cause
that the marriage had broken down irretrievably, as well as the
contact arrangement
in respect of the parties’ minor child.
Inasmuch as the applicant consented to a maintenance order claim by
the first respondent
in respect of the child, he proposed that an
order could be granted by consent at the first trial. At the second
trial it was
proposed that the first respondent’s proprietary
claims be determined; that is her accrual claim, including her claims
in
respect of the Trust assets, as well as her claim for damages.
[3] It appears that the trustees
supported this Rule 33(4) application, but brought a
counter-application in terms of Rule 33(4)
to the effect that the
legal issue, regarding the effective date upon which the extent and
value of the parties’ estates
must be calculated for the
purposes of the first respondent’s accrual claim, should be
determined separately. It appears
that first respondent initially
opposed this counter-application, but subsequently accepted that the
issue of the effective date
should be determined separately and prior
to the determination of her accrual claim.
[4] Thereafter the Trust and the first
respondent further agreed that the hearing on 18 June 2015 could be
employed to argue the
merits of the effective date issue before Ndita
J, together with the main Rule 34 application.
[5] On 3 September 2015, Ndita, J
handed down a ruling in the Rule 33(4) main application and in the
counter-application, in what
has been referred to as a composite
order, in terms of which she ruled that the issues should be
separated as sought by the applicant
in the main Rule 33(4)
application. The learned judge further ruled, in respect of the
counter-application, that the effective
date issue must be determined
separately in accordance with the agreement between the first
respondent and the trustees. It appears
that she did not determine
the merits in respect of the effective date issue, as the first
respondent and the trustees had invited
her to so do.
[6] On 8 September 2015, first
respondent’s attorney advised the case management judge in the
divorce action, Mantame, J,
that the first respondent intended to
appeal the Rule 33(4) order.
[7] The letter generated by Ms Catto,
legal representative of the first respondent, reads as follows:
“We refer to correspondence
directed to you by the first defendant’s attorney, on 4
September 2015, relating to the
further conduct of this matter and
requesting you to reconvene a Rule 37(8) conference. Our
instructions are to request reasons
for the order granted by the
honourable Ms Justice Ndita, with a view to appealing the order,
which we were advised by counsel
is finally in effect.” (My
emphasis).
[8] On 8 September 2015, first
respondent’s attorney delivered a letter to Ndita, J, enclosing
a request for reasons for the
order which she had granted.
That reads thus:
“We are advised by counsel that
the order is final in effect, and that our client should consider an
appeal against its terms.
We are accordingly instructed to request
that you please furnish us with your reasons for the order at your
earliest convenience
to enable our client to lodge an appeal should
it be warranted. To the extent it is necessary to do so, we attach a
formal notice
requesting reasons for the order.” (My
emphasis).
[9] There followed a formal request,
which reads thus:
“Request for reasons for order.
Be pleased to take notice that first
respondent hereby requests reasons for the court’s order dated
2 September 2015 and handed
down on 3 September 2015.”
[10] On 16 September 2015, the
applicant served a notice in terms of Rule 30(2)(b) on the first
respondent, notifying her of the
intention to apply in terms of rule
30(1) for an order setting aside the request for reasons as an
irregular step, and affording
the first respondent an opportunity to
withdraw the request for reasons within a specified period.
[11] Mr Pincus, who appeared with Ms
Gassner on behalf of the applicant, correctly defined the core
question as follows: Applicant
contends that the Rule 33(4) order
constitutes a simple interlocutory order or ruling which is not
appealable, and that consequently
the first respondent is not
entitled to apply for reasons in terms of Rule 49 in respect of the
decision relating to the Rule 33(4)
main application.
First respondent argues that she is
entitled to reasons for the purposes of considering an appeal. She
contends in the alternative,
that even if the Rule 33(4) order is not
appealable, she nevertheless has a right to request reasons. Much of
Mr Pincus’
submissions concerned the appealability of the order
of Ndita, J.
[12] As I indicated in open court, the
determination of the legal fate of this order has to be decided by
the judge who granted
the order, namely Ndita, J. It would be
entirely improper of this Court to encroach upon the scope of Ndita,
J’s powers.
I have no intention of doing so and have full
confidence that the matter will be properly and fully argued, should
it be necessary,
before the learned judge.
[13] There is one caveat that I must,
however, offer in respect of this observation. This flows directly
from Mr Pincus’
argument. Mr Pincus contends that as there
could never have been a basis for an appeal on any of the issues
decided by Ndita,
J, the entire request for reasons must have been
generated for ulterior purposes, in particular “a delaying
tactic”
on behalf of first respondent.
[14] In summary, Mr Pincus submitted
that Rule 33(4) orders, are non-appealable, within the meaning as set
out in Zweni v Minister
of Law & Order
1993 (1) SA 523
(A) at
531, and do not, in any way, fall under any of the exceptions which
have been recognised by our courts. By contrast, in
her answering
affidavit, first respondent submits that the requirements for
appealable as set out in Zweni are not “cast
in stone”.
Mr Pincus conceded that our courts have recognised some limited
exceptions to the general principles set out
in Zweni, supra. For
example, in Moch v Nedtravel (Pty) Ltd t/a American Express Travel
Service
1996 (3) SA 1
(A), the court held that the dismissal of an
application for the recusal of a judge was appealable, because the
decision, although
not defining the parties’ rights, or
disposing of any of the relief claimed in respect thereof, had a very
definite bearing
on these rights. It is clear from this judgment
that the court regarded the dismissal of the recusal application as a
special
case, involving a fundamental decision which went to the core
of proceedings and, if incorrectly made, would have vitiated them.
However, as Hefer, JA said at 10F:
“However, the passage in question
does not purport to be exhaustive or to cast the relevant principles
in stone.”
[15] Notwithstanding this caveat, Mr
Pincus referred as further authority for his argument to a case which
had been cited by the
court in Moch, namely Van Streepen v Germs
(Pty) Ltd & Transvaal Provincial Administration
1987 (4) SA 569
(A). He submitted that a Rule 33(4) order is a ruling within the
meaning discussed by Corbett, JA (as he then was) in Van Streepen
at
580E, namely that not every decision made by the Court in the course
of judicial proceedings constitutes a judgment or an order.
As Ndita
J made a ruling and not a judgment, there was no necessity to provide
reasons A Rule 33(4) specifically provides that
a separate order does
not necessarily have to be made on application by one of the parties,
but can simply be made mero motu by
the court, if it appears to be
convenient to do so. Hence, on Mr Pincus’ line of argument, as
the order of Ndita, J cannot
be appealed, no justifiable purpose
could have possibly been served by first respondent’s conduct.
[16] The only point on which I wish to
comment with regard to the question of appealability is the
following: As Mr Fitzgerald,
who appeared with Ms Dicker on behalf
of first respondent, noted, the approach to the issue of whether an
order is appealable,
has become far more flexible since Zweni, supra.
As set out in Phillips v SA Reserve Bank & Others
2013 (6) SA
450
(SCA) in paras 24-28, the classification of an order as either
interlocutory or final, is not determinate of its appealability.
The
courts have been more pragmatic and hence decide what is appropriate
in any given case. See National Treasury v The Opposition
to Urban
Tolling Alliance
2012 (6) SA 223
(CC) at para 24, where Moseneke, DCJ
said:
“It is so that courts are rightly
reluctant to hear appeals against interim orders that have no final
effect and that, in
any event, are susceptible to reconsideration by
a court when the final relief is determined. That, however, is not
an inflexible
rule. In each case, what best serves the interests of
justice dictates whether an appeal against an interim order should be
entertained.
That accords well with developments in case law
dealing with when an appeal against an interim order may be
permitted. This
court has granted leave to appeal in relation to
interim orders before and has made it clear that the operative
standard is “the
interest of justice”. To that end it
must have regard to and weigh carefully all germane circumstances.”
[17] On the basis of this approach Mr
Fitzgerald submitted that the order granted by Ndita, J, may be
final, or, at least, final
in effect, and may hence proof to be
definitive of certain rights of the parties, particularly if the
separation of issues, including
the divorce, is not capable of being
amended by a trial court. Mr Fitzgerald observed that if the divorce
was separated and this
order was not appealable, the inevitable
consequence would be that there would be no longer a divorce action
pending, and accordingly
first respondent, inter alia, would no
longer be able to avail herself of any remedy in terms of Rule 43 of
a contribution to costs
for the second leg of the litigation.
[18] Applying the flexible approach to
appealability, Mr Fitzgerald submitted that the order, or part
thereof, granted by Ndita,
J, may well be appealable. The only point
of consequence for the present dispute that emerges from this
excursus, is that to assert
boldly that nothing in the order can ever
be appealable, and that no other reasonable inference could be drawn
from first respondent’s
conduct, other than a motivation based
solely on delay, must be regarded as unsustainable if, as appears to
be the case, Mr Pincus’
argument is based purely on an
inference. More than that concerning the questions of appealability,
I do not wish to comment.
These are questions for another court, and
I have found it distinctly uncomfortable to be required to even
traverse this particular
issue, as it encroaches upon the domain of
another court.
[19] Significantly, when pressed in
argument, Mr Pincus appeared to abandon the second point which had
been contained in his notice
and written argument, namely that a
litigant does not have a general right to request reasons for a
ruling or an interlocutory
order which is not appealable. Initially
he adopted the view that judicial pronouncements regarding a court’s
duty to give
reasons have only been made in relation to appealable
orders. A general right to request reasons for any judgment or
decision,
regardless of its nature, as contended for by the
respondent, would unduly hamper the conduct of proceedings and impede
the administration
of justice.
[20] But it this point more than any
other, which is dispositive of this application. The question which
arises is whether a litigant
has a right to be provided with reasons
for any order which is granted by a court. The case law has not been
targeted precisely
towards the kind of dispute with which this court
is unfortunately confronted. However, in Mphahlele v FNB (Ltd)
[1999] ZACC 1
;
1999
(2) SA 667
(CC), Goldstone, J said at para 12:
“There is no express
constitutional provision which requires judges to furnish reasons for
their decisions. Nonetheless in
terms of s1 of the Constitution, the
rule of law is one of the founding values of our democratic state and
the Judiciary is bound
by it. The rule of law undoubtedly requires
judges not to act arbitrarily and to be accountable. The manner in
which they ordinarily
account for their decisions by furnishing
reasons. This serves a number of purposes. It explains to the
parties, and to the public
at large, which has an interest in courts
being open and transparent, why a case is decided as it is. It is a
discipline which
curbs arbitrary judicial decisions. Then too, it is
essential for the appeal process, enabling the losing party to take
an informed
decision as to whether or not to appeal, or where
necessary, seek leave to appeal. It assists the appeal Court to
decide whether
or not the order of the lower court is correct. And
finally, it provides guidance to the public in respect of similar
matters.
It may well be, too that where a decision is subject to
appeal, it would be a violation of the constitutional right of access
to courts, if reasons for such a decision were to be held by a
judicial officer.”
[21] Justice Goldstone continued at
para 18:
“Courts of first instance
invariably furnish reasons for the decisions, whether in criminal or
civil cases. As I have already
suggested, if they failed to do so,
they might be in violation of their constitutional duty.”
[22] In Strategic Liquor Services v
Mvumbi N.O. & Others
2010 (2) SA 92
(CC), the court said at para
15:
“It is elementary that litigants
are ordinarily entitled to reasons for a judicial decision following
upon a hearing, and
when a judgment is appealed, written reasons are
indispensible. Failure to supply them, wil usually be grave lapse of
duty, a
breach of litigants’ rights and an impediment to the
appeal process.”
[23] In my view, the right to be
provided with reasons, is inextricably coupled to the principle of
legality. See Wessels v Minister
of Justice & Constitutional
Development
2010 (1) SA 128
(GNP) at 141. Section 34 of the Republic
of South Africa Constitution Act 108 of 1996, encapsulates the core
principles of the
rule of law (see in general Beinart
1962 Acta
Juridica 99.
In turn this principle must include the right of a
litigant to be given reasons by a court. Absent such a right,
transparency
is cloaked in darkness, accountability is honoured in
the breach.
[24] It is extremely disturbing, in my
view, that senior legal practitioners can mount an argument that runs
so fundamentally against
the core of a legal system, whatever their
frustrations may be with regard to the conduct of the requesting
party.
[25] It is a foundational principle of
law that proceedings in court should be open and that parties should
understand, not simply
how they won, but also how they lost. The
principle of legality incorporates rationality and accountability.
It imposes a duty
on all manner of functionary to provide reasons for
her, his or its decision. It must follow, insofar as court
proceedings are
concerned, that a similar right should be available.
There is, therefore, no merit in the application which has been
brought by
applicant.
[26] This in turn, brings me to the
rather more unfortunate part of this case, that is the question of
costs. Mr Fitzgerald submitted
that it would be appropriate for this
Court to make an award of costs de bonis propriis against the legal
representatives of the
applicant. In order to decide this matter, I
was greatly assisted by the extremely helpful heads of Mr Muller, as
well as his
oral argument, Mr Muller appeared on behalf of
respondent’s counsel in this connection. Mr Muller referred to
the decision
in Multilinks Telecommunications Ltd v Africa Pre-Paid
Services Nigeria Ltd [2103]
4 All SA 346
(GNP) at para 34:
“Costs are ordinarily ordered on
the party and party scale. Only in exceptional circumstances, and
pursuant to a discretion
judicially exercised, is a party ordered to
pay costs on a punitive scale. Even more exceptional, is an order
that a legal representative
should be ordered to pay the costs out of
his own pocket. It is quite correct, as was submitted, that the
obvious policy consideration
underlying the Court’s reluctance
to order costs against legal representatives personally, is that
attorneys and counsel
are expected to pursue their clients’
rights and interests fearlessly and vigorously without undue regard
for their personal
convenience. In that context they ought not to be
intimidated, either by their opponent or even, I might add, by the
court…
It is true that legal representatives sometimes make
errors of law, omit to comply fully with the rules of court, or in
other
ways related to the conduct of the proceedings. This is an
every day occurrence. This does not, however, per se, ordinarily
result
in a court showing its displeasure by ordering the particular
legal practitioner to pay the costs for his own pocket. Such an
order is reserved for conduct which substantially and materially
deviates from the standard expected of a legal practitioner…”
[27] It must be so that an award of
costs de bonis propriis against legal representatives, can only be
made in very serious cases,
such as dishonestly, wilfulness or a
level of negligence which extends to the highest degree. If a court
extends the boundaries
beyond these very circumscribed limits,
litigation would be chilled. Counsel must be permitted to make legal
mistakes without
the risk of a drastic court order. Law invariably
is not so clear that a level of accurate precision, should be
required without
the risk of a punitive costs order of the weight of
a cost order de bonis propriis.
[28] Mr Muller correctly noted that
applicant’s counsel and attorney, all senior practitioners were
of the genuine belief
that the first respondent’s request for
reasons constituted an irregular step. They were further of the
belief that the
request was itself a strategic move by the first
respondent and an abuse of the process of court designed to delay the
divorce
proceedings. It appears that they were also fortified by a
very senior attorney acting for the Trust, who was also of the
opinion
that the request for reasons constituted an irregular step in
terms of Rule 30.
[29] Mr Muller’s argument has
considerable merit. I accept that an order of this nature would have
an extremely chilling
effect on the ability of legal practitioners to
pursue their clients’ rights and interests and present their
case in the
fearless and vigorous way which should be demanded. It
would also run counter to a common sense reaction of the courts to
practitioners,
whom they consider may have advised their clients to
bring an ill considered application. Courts, understandably, have
been loath
to mulct the legal practitioner in costs, save in
exceptional circumstances.
[30] I cannot accede to the request
insofar as a cost order de bonis propriis is concerned. That being
said, the idea that senior
lawyers would argue a point so
antithetical to the foundation of a legal system is disturbing. I do
consider that the course of
action what was employed by applicant, to
the effect that the first respondent was not entitled to be given
reasons, not entitled
to consider whether there may be an appeal, is
so fundamentally incongruent with core legal principles and a basic
sense of justice,
that it would be incorrect of this Court not to
express its displeasure at this conduct. Accordingly it is correct,
in my view,
to impose some form of sanction in these circumstances.
Accordingly the application is
dismissed with costs, including the cost of two counsel on an
attorney and client basis.
DAVIS, J