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[2018] ZAWCHC 170
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Greef v Cooper and Others (A176/2018) [2018] ZAWCHC 170; 2019 (3) SA 203 (WCC) (18 September 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE
NO: A176/2018
In
the appeal between:
DIANNE
MARJUNES GREEFF
Appellant
and
NEVILLE
CHARLES COOPER (SENIOR)
First
Respondent
ABSA
BANK LIMITED
Second Respondent
NEVILLE
CHARLES COOPER (JUNIOR)
Third
Respondent
JUDGMENT
DELIVERED ON 18 SEPTEMBER 2018
DAVIS,
AJ
1.
This appeal deals with the correct procedure to challenge a subpoena
duces tecum
issued out of the Magistrates’ Court. The
crucial question is whether it is legally competent to interdict
compliance with
a Magistrates’ Court subpoena
duces tecum
on the basis that it is an abuse instead of applying to set aside the
subpoena.
2.
The appellant (“Greeff”) initiated proceedings against
the third respondent (“Cooper Junior”) in the
Cape Town
Magistrates’ Court in terms of s 65A(1) of the Magistrates’
Court Act 32 of 1944 (“the Act”)
with a view to
recovering unpaid taxed costs of R 68 117.41 owed to her by
Cooper Junior in terms of an order of this
Court dated 1 July 2017.
The financial enquiry envisaged in s 65A(1) was scheduled to
take place on 28 November 2017.
3.
On 23 August 2017 Greeff’s attorney issued a subpoena
duces
tecum
against the second respondent (“ABSA”)
requiring the production of bank statements and applications for
credit in respect
of both Cooper Junior and the first respondent
(“Cooper Senior”). Cooper Senior is the father of Cooper
Junior and
the two have identical names. This judgment deals only
with the subpoena in relation to Cooper Senior, which I shall refer
to as
“the subpoena”.
4.
Cooper Senior was aggrieved by the subpoena. He brought an urgent
ex
parte
application under case number 6765/2017 in the Cape Town
Magistrates’ Court on 6 November 2017 for an order interdicting
ABSA
from filing any of his bank statements in terms of the subpoena,
alternatively setting aside the subpoena. The relevant prayers
in the notice of motion read as follows:
“
2.
That … ABSA Bank be interdicted in terms of Section 30(1) of
the Magistrates’ Court Act 32 of 1944 from filing any
bank
statements relating to any accounts, or any information regarding
applications for credit in terms of the subpoena duces tecum
issued
on the 23
rd
of August 217 relating to
NEVILLE CHARLES COOPER (Snr) with ID Number 4205265096082;
3.
Alternatively, that the subpoena duces tecum issued on the 23d of
August 2017 as it relates to the Applicant, being Neville Charles
Cooper (Snr) with ID Number 4205265096082, be set aside.”
5.
The
magistrate on 6 November 2017 granted an interdict as sought in
prayer 2, quoted above, and issued a
Rule
Nisi
returnable on 29 November 2017 calling upon the respondents in that
application
[1]
to show cause why
the order should not be made final.
6.
Greeff opposed the granting of a final order, and on 23 January 2018
the magistrate gave judgment in favour of Cooper Senior
confirming
the
Rule Nisi
and ordering Greeff to pay costs.
7.
This appeal lies against that judgment.
The
litigation history
8.
Greeff and Cooper Junior are the parents of a minor child, Caitlyn.
Cooper Senior is the father of Cooper Junior, and the grandfather
of
Caitlyn.
9.
Greeff and Cooper Junior have been involved in extensive litigation
involving Caitlyn. In the process Greef obtained two costs
orders
against Cooper Junior, one in the Children’s Court and one in
this Court.
10.
Cooper Junior failed to pay the Children’s Court costs, and
Greeff resorted to proceedings in terms of s 65A(1) of the
Act in the
Cape Town Magistrates’ Court in an attempt to recover the
Children’s Court costs. As Cooper Junior was uncooperative,
failing despite four appearances over six months to provide the
necessary documents, Greeff’s attorney resorted to issuing
subpoenas
duces tecum
to compel various financial institutions
to produce financial records of both Cooper Junior and Cooper
Senior.
11.
The reason for this course of conduct was explained in Greeff’s
affidavit in opposition to the confirmation of the
Rule Nisi
in
the court
a quo.
Access to Cooper Senior’s bank
statements was sought because it was apparent from documents which
Cooper Junior had provided
that an amount of R 10 000.00 per
month was paid to him by Cooper Senior, who apparently employed
Cooper Junior in his business.
This amount had previously been
R 20 000.00 per month, but was mysteriously reduced to
R 10 000.00 in June
2014, precisely one year before Cooper
Junior launched an application to reduce the amount of maintenance
payable for Caitlyn.
It had further been noted that Cooper Junior
used Cooper Senior’s credit card to fund a lavish lifestyle
despite his pleas
of poverty. Greeff also suspected that Cooper
Junior was working as a specialist Information Technology Consultant
and that his
earnings were being paid into the account of his father,
who bears the identical name. It was also suspected that Cooper
Senior
was funding Cooper Junior’s expenses and paying money
for him into an undisclosed bank account. For all these reasons it
was considered necessary to have sight of the financial records of
both father and son.
12.
In the event, the procedure bore fruit as Cooper Senior, evidently
reluctant to produce his bank statements, agreed to pay the
Children’s Court bill of costs in the amount of some
R 28 000.00 on behalf of Cooper Junior. He did so on
condition
that the subpoenas
duces tecum
in respect of both
Cooper Senior and Junior were withdrawn.
13.
The High Court bill of costs remained unpaid, however, prompting
Greeff to pursue further s 65 proceedings against Cooper Junior
in an
attempt to recover the High Court costs.
14.
A notice in terms of s 65A(1) was issued on 11 August 2017 calling
upon Cooper Junior to appear on 28 November 2017 for purposes
of an
enquiry into his financial position with a view to making an order in
regard to payment of the taxed High Court costs in
the amount of R 68
117.41. The notice was duly served on Cooper Junior on 13 September
2017.
15.
The subpoena was then issued on 23 August 2017 and served on ABSA,
who alerted Cooper Senior to its existence on 5 October 2017.
ABSA
informed him that they were obliged to comply with the subpoena, and
that they had commenced locating the required documents
and would
shortly deliver them to the relevant authorities.
16.
Cooper wrote to ABSA on 9 October 2017 pointing out that in terms of
the subpoena ABSA was required to produce the documents
to the
court on the day of the hearing
, i.e. 28 November 2017, and was
neither obliged, nor entitled, to hand over the documents to Greeff
or her legal representatives.
Cooper Senior also stated that he
regarded the subpoena as “
an abuse”
and a “
fishing
expedition”
and indicated that he would challenge “
the
extremely wide ambit of this subpoena at the hearing”.
He
expressly forbade ABSA from disclosing his documents to Greeff or her
legal representatives.
17.
ABSA responded in writing on 20 October 2017, stating that they were
obliged to disclose customer information in accordance
with statute.
ABSA regarded itself as obliged to comply with the subpoena, and
stated that the documents requested therein would
be “
delivered
to the Clerk of the Court in compliance with Rule 38(1) of the
Uniform Rules of Court.”
ABSA warned that if it did not
receive a Court Order setting aside the subpoena by 27 October 2017,
it would deliver the documents
to the Clerk of the Court. Cooper
Senior evidently feared that once this was done, Greeff’s
attorney would have access to
the documents.
18.
ABSA
evidently did not appreciate that it was dealing with a Magistrates’
Court subpoena and that Uniform Rule 38 is not applicable.
The
High Court and Magistrates’ Court rules regarding subpoenas
duces
tecum
differ. Whereas Uniform Rule 38(1)(b)
[2]
obliges the recipient of a subpoena
duces
tecum
to hand the documents to the Registrar as soon as possible,
whereafter the parties to the matter may take copies thereof, Rule
26(3)
[3]
of the Magistrates’
Court Rules only obliges the recipient of such a subpoena to produce
the documents to the court at the
trial.
19.
In the event Cooper Senior approached the Cape Town Magistrates’
Court for the urgent interdictory relief referred to
above aimed at
preventing ABSA from filing documents at court in response to the
subpoena. He complained that the subpoena
was an abuse and a
fishing expedition on the part of Greeff because Cooper Junior had
not yet had a chance to place his financial
information before the
court (the implication being that Cooper Senior’s information
might not be required), that the subpoena
was vague and overly wide
in ambit and that it breached his right to privacy. Cooper
Senior alleged that he had no alternative
but to approach the court
for relief since ABSA had made it clear that they would deliver his
information to the Clerk of the Court
unless he obtained a Court
Order setting aside the subpoena.
20.
Greeff in her answering affidavit denied the allegations of abuse of
process and disclosed why Cooper Senior’s bank statements
were
required. She explained that Cooper Junior was living far beyond his
professed means and that there were indications that
he was receiving
funds in undisclosed accounts, which included funds emanating from
Cooper Senior.
The
judgment of the court
a quo
21.
The magistrate referred to s 65A(1) and placed great emphasis on the
fact that the section relates to proceedings between the
judgment
creditor and the judgment debtor, and that Cooper Senior is not a
party to the s 65 proceedings between Greeff and Cooper
Junior. She
observed that Cooper Senior is not responsible for the debts of
Cooper Junior, that any amounts which he pays Cooper
Junior are at
his discretion, and that a court cannot order him to assume
responsibility for his son’s debts. She held –
and the
reasoning is difficult to follow in this regard – that the
subpoena was “
premature”
because Cooper Senior was
“
not a party to any of the court proceedings”
and
because Cooper Senior was not indebted to Greeff.
22.
The point evidently escaped the magistrate that Cooper Senior’s
bank accounts and documents were being sought not because
Cooper
Senior owed Greeff any money, but because it was thought that his
accounts would reveal payments into undisclosed bank accounts
for the
benefit of Cooper Junior as well as the receipt of monies earned by
Cooper Junior. Greeff’s affidavit makes it clear
that there was
a well-grounded suspicion that Cooper Senior was assisting Cooper
Junior to evade payment of his obligations to
Greeff,
inter alia
by permitting Cooper Junior’s earnings to be deposited into
his bank account.
23.
The magistrate had no regard to the provisions of s 65D(1) of the
Act, which reads as follows in relevant part:
“
On
the appearance before the court of the judgment debtor
[in terms
of s 65A(1)] …
the court shall permit the examination or
cross-examination of the judgment debtor … on all matters
relevant to the judgment
debtor’s financial position and his or
her ability to pay the judgment debt,
and the court shall
receive such further evidence as may be adduced
orally or
by affidavit or in such other manner as the court may deem just,
by
or on behalf of either the judgment debtor or the judgment creditor,
as is material to the determination of the judgment debtor’s
financial position
and his or her ability to pay the
judgment debt,
and for the purposes of such evidence
witnesses may be summoned in the manner prescribed in the rules
.”
[Emphasis added]
24.
Section 65D(1) of the Act makes it clear that a judgment creditor is
entitled to adduce relevant evidence at a s 65A(1) enquiry,
and that
witnesses may be summoned for that purpose as provided for in the
Magistrates’ Court Rules. Thus it is entirely
permissible to
subpoena a third party to give evidence at a s 65 enquiry,
and/or produce documents, if the third party has
information relevant
to the judgment debtor’s financial position and his or her
ability to pay the judgment debt. The magistrate
therefore
misdirected herself when she found that the subpoena
duces tecum
issued in respect of Cooper Senior’s documents was “
premature”
.
25.
In my view the magistrate also misdirected herself by failing to
consider whether the interdictory relief sought by Cooper Senior
was
legally competent, a question which I turn to examine.
Was
the interdict sought legally competent?
26.
It is
important to note that a Magistrates’ Court has no general
power to set aside a subpoena, and is bound by the four corners
of
the Act and the Magistrates’ Court Rules (“the rules”).
It may only cancel a subpoena issued against a judicial
officer in
the circumstances set out in s 51(3) of the Act,
[4]
and may set aside
service
of a subpoena in terms of Rule 26(5) of the rules where there has
been short service.
[5]
27.
Unlike the
High Court, a Magistrates’ Court has no inherent jurisdiction
to set aside a subpoena on the grounds that it is
vexatious or
amounts to an abuse of the process of the court.
[6]
Therefore where a person wishes to challenge a subpoena issued out of
the Magistrates’ Court on the grounds that it amounts
to an
abuse of process, it is incumbent on him or her to apply to the High
Court for an order setting aside the subpoena as an
abuse.
[7]
28.
However Cooper did not do so. Instead he approached the Magistrates’
Court for relief which, although couched as an interdict,
was
predicated on the basis that the subpoena was an abuse. Indeed the
notice of motion included an alternative prayer for the
setting aside
of the subpoena on that basis.
29.
It bears
emphasis that Cooper Senior did not base his case on the fact that
ABSA was under a misapprehension regarding what was
required of it
under Rule 26(3) of the rules, and that it was only obliged (and
therefore only entitled) to produce the documents
to
the court on the day of the hearing
.
He did not seek a temporary interdict restraining ABSA from
delivering the documents to the clerk of the court prior to the
hearing
with a view to his appearing at court and objecting to their
production on the day of the hearing.
[8]
30.
Such narrow interim relief would have been unexceptionable. By virtue
of his contractual relationship with ABSA as its customer,
he would
have been entitled to prevent ABSA from disclosing his confidential
information otherwise than
strictly in accordance with the behests
of Rule 26(3)
. Thus he could have interdicted ABSA from
delivering his documents to the Clerk of the Court instead of
producing them to the court
at the hearing, based on the wording of
Rule 26 (3).
31.
But instead he relied on an alleged abuse of process and breach of
his right to privacy, as one would in an application to set
aside a
subpoena. The case made out in the founding affidavit makes it clear
that although the relief was couched as an interdict,
the application
was, in substance and effect, an application to set aside the
subpoena – relief which a Magistrates’
Court cannot
grant.
32.
The
requirements for a final interdict are trite. An applicant is
required to establish a clear right, an infringement of the right
actually committed or reasonably apprehended, and the absence of an
alternative remedy.
[9]
Cooper
Senior relied on a breach of right to privacy by virtue of a subpoena
which he contended was an abuse, or, to put it differently,
had no
legitimate purpose.
33.
The right
to privacy is not unlimited. All things being equal, requiring
citizens to give material evidence or produce relevant
documents at
court in terms of the statutes governing subpoenas constitutes a
legitimate limitation of the right to privacy. As
Griesel J observed
in
Meyers
v Marcus and Another:
[10]
“
Our
courts have repeatedly emphasised the importance of the general duty
resting on all members of society to give whatever evidence
they are
capable of giving, coupled with the concomitant right of litigants to
command such assistance.”
34.
However the
right to privacy may be unlawfully infringed by a subpoena which
amounts in fact to an abuse of process, for instance
because it has
no legitimate purpose and is intended merely to oppress and harass
the witness, or because the information or documents
sought are
irrelevant or insufficiently relevant to the case, or could more
easily be obtained from another source.
[11]
35.
In order to make out the case of an unlawful invasion of his right to
privacy, Cooper Senior had to persuade the court that
the subpoena
was an abuse of process. I consider that the framing of the relief as
an interdict was ill-conceived. Firstly, the
notion of interdicting
compliance with lawful process is counter-intuitive. A subpoena is
lawful process which, absent lawful excuse,
must be obeyed unless and
until set aside by a competent court. If relief is required because
the subpoena exceeds the bounds of
lawful process, a competent court
must decide whether or not the subpoena is an abuse. If it is, it
must be declared as such and
set aside.
36.
Secondly, asking for an
interdict
to prevent compliance with a
subpoena because it is an abuse of process is rather like trying to
sneak in through the back door
because you are not allowed to enter
through the front door. It seems to me that if a Magistrates’
Court does not have jurisdiction
to set aside a subpoena on the
grounds of abuse, it cannot have jurisdiction to interdict compliance
with a subpoena on the grounds
that it is an abuse,
which amounts
to the same thing
. To hold otherwise would make a mockery of the
limits of the Magistrates’ Court jurisdiction in regard to
subpoenas.
37.
It seems to me that the proper remedy where it is complained that a
Magistrates’ Court subpoena amounts to an abuse of
process, is
to apply to the High Court for the setting aside of the subpoena, and
not to interdict compliance with the subpoena.
In my view the
interdictory relief granted by the magistrate was not legally
competent as it amounted, in substance, to an order
setting aside the
subpoena, which exceeded the court’s jurisdiction.
Condonation,
mootness and costs
38.
The notice of appeal was delivered on 1 March 2018 and security for
the respondent’s costs furnished on 10 May 2018, on
which date
Greeff’s attorney also delivered a notice in terms of Uniform
Rule 50(4)(a) requesting a date for the hearing
of the appeal.
39.
The notice
of appeal was delivered four court days out of time. On 9 July 2018
Greeff filed an application for condonation of the
late delivery of
her notice of appeal. The application was opposed, and in his
answering affidavit Cooper Senior took the point
that the appeal had
not been properly noted until 10 May 2018 when security for costs was
furnished.
[12]
Greeff’s
attorney deposed to a replying affidavit in the condonation
application in which she explained that when she filed
the notice of
appeal at the Magistrates’ Court on 1 March 2018, she attempted
to pay the security of R 1 000.00
into court, but was told
that the money could not be received since the court file was
missing. She attempted unsuccessfully on
no less than six occasions
to pay the security into court, but the court file was not available
until 10 May 2018 when the security
was finally paid.
40.
This information should have been included in the founding affidavit
in the condonation application, but it appears that the
issue of
timeous lodging of security for costs was overlooked when the
condonation application was prepared. Be that as it may,
in my view
the explanation for the default is acceptable, and condonation should
be granted in the interests of justice in view
of the strong merits
of the appeal.
41.
On 5 March 2018 Greeff served a subpoena
duces tecum
on Cooper
Senior calling upon him to furnish all bank statements from which
monies are paid to Cooper Junior from the date of the
commencement of
the latter’s employment with Cooper Senior, and to testify at a
s 65 enquiry into the affairs of Cooper Junior
on 14 March 2018.
42.
Therefore by the time a date was sought for the hearing of the
appeal, the matter had already ceased to have practical significance
for the parties because the s 65 proceedings to which the subpoena
pertains have come and gone. The appeal has no relevance to
the
parties save for the issue of costs.
43.
Greeff was liable for the costs of Cooper Senior in the court
a
quo
. A bill of costs was drawn in the amount of R 17 591.68,
but was taxed and allowed on 8 March 2018 in the lesser amount
of R
3 840.26. To all intents and purposes an appeal was fought in
the High Court, with all the attendant costs, in order
to escape a
costs liability of R 3 840.26.
44.
In terms of
s 16(2)(a)(i)
of the
Superior Courts Act 10 of 2013
an
appeal may be dismissed on the sole ground that the issues are of
such a nature that the decision sought will have no practical
effect
or result.
Section 16(2)(a)(ii)
provides that the question
whether the decision would have no practical effect or result is to
be determined without reference
to any consideration of costs,
save
in exceptional circumstances
.
45.
Ms Ipser, who appeared for Cooper Senior, argued that the appeal
should be dismissed because the decision sought on appeal had
been
rendered moot because a similar subpoena had been served on Cooper
Senior in respect of a hearing which had already come and
gone. In
essence the decision sought on appeal had been superseded by
subsequent events. Mr Vismer, however, who appeared for Greeff,
contended that the magistrates’ judgment was legally
incompetent and manifestly wrong, and that it would be contrary to
the interests of justice to allow it to stand. He also submitted that
the matter was significant for legal practice generally.
46.
Section
16(2)(a)(i)
confers a discretion on the Court.
[13]
Notwithstanding the mootness of the issue as between the parties to
the litigation, a court may deal with the merits of the appeal
where
discrete legal issues of public importance arise which will affect
similar matters in future.
[14]
Although the answer in this case seems obvious, the issue raised in
this appeal is a novel one, and the decision would have a practical
effect in other cases where litigants seek to challenge a
Magistrates’ Court subpoena. It seems to me, therefore, that it
would be in the interests of justice to deal with the merits of the
appeal rather than dismissing it in terms of
s 16(2)(a)(i)
because of
a lack of practical effect as between the parties.
47.
However, this court’s willingness to entertain the appeal
should not be construed as tacit approval of the parties’
conduct in this matter. While it is understandable that litigants,
and their legal representatives, may be sorely aggrieved at
a
decision perceived to be patently wrong and palpably unfair,
righteous indignation should not be allowed to displace common sense
when it comes to considering an appeal. Litigants should be
discouraged from pursuing appeals in circumstances such as the
present
where the relief is essentially academic and the cost of
pursuing the appeal outweighs any potential benefit.
48.
Once the costs for which Greeff was liable in terms of the judgment
of the court
a quo
were reduced to a mere R 3 840.26,
it made no sense whatsoever to persist with the appeal. Nor did it
make any sense for
Cooper Senior to resist the appeal. Yet the
parties pressed on regardless, running up costs in the process. One
is left with the
inescapable impression that this was a “grudge
match” being fought to the bitter end.
49.
The court is not bound to award costs in favour of a successful
appellant. In the particular circumstances of this case, and
having
regard to the fact that the appeal had no practical effect as between
the parties and simply ran up unnecessary costs, it
seems to me that
the right thing to do would be to make no order as to costs in the
appeal, leaving each party to bear their own
costs.
Conclusion
50.
I would therefore make the following order:
1.
The late noting of the appeal is condoned.
2.
The appeal is upheld, with no order as to costs.
3.
The order of the Cape Town Magistrates’ Court made on 26
January 2018 under case number 6765/2017 is set aside and replaced
with the following order:
The
Rule Nisi
issued on 6 November 2017 is
discharged and the application is dismissed, with costs.
D M DAVIS
Acting
Judge of the High Court
I
agree and it is so ordered.
M J DOLAMO
Judge of the High Court
For
appellant:
Adv T Vismer
Instructed
by Tanya Nöckler Attorneys
For
respondent: Adv M Ipser
Instructed
by Ashman Attorneys
[1]
ABSA,
Greeff and Cooper Junior were cited as first, second and third
respondents respectively.
[2]
Uniform
Rule 38(1)(b)
reads as follows
:
“
Any
witness who has been required to produce any deed, document, writing
or tape recording at the trial shall hand it over to
the registrar
as soon as possible unless the witness claims that the deed,
document, writing or tape recording is privileged.
Thereafter the
parties may inspect such deed, document, writing or tape recording
and make copies or transcriptions thereof,
after which the witness
is entitled to its return.”
[3]
Magistrates’
Court
Rule 26(3)
reads as follows
:
“
If
any witness has in his or her possession or control any deed,
instrument, writing or thing which the party requiring his or
her
attendance desires to be produced in evidence, the subpoena shall
specify such document or thing and require him or her to
produce it
to the court at the trial.”
[4]
Where
it appears to the court that the judicial officer is unable to give
evidence or produce any documents, or that the documents
could be
produced by someone else, or that compelling the attendance of the
judicial officer would be an abuse of the process
of the court.
[5]
Magistrates’
Court
Rule 26(5)
reads as follows
:
“
The
court may set aside service of any subpoena if it appears that the
witness was not given reasonable time to enable him or
her to appear
in pursuance of the subpoena.”
[6]
S
v Matisonn
1981
(3) SA 302
(A) at 313 E – F;
Marais
v Smith
2000
(2) SA 924
(W) at 933 F – G.
[7]
S
v Matisonn (supra)
at
313 F. See, too,
De
Klerk v Scheepers and Others
2005
(5) SA 244
(T) where the High Court set aside as an abuse of process
a subpoena issued against a former head of state to appear and
testify
in support of a special plea which the accused had entered
in a criminal trial pending before
another
court
.
[8]
Cooper Senior would have been entitled to appear at the hearing on
28 November 2017 and object to the production and admission
into
evidence of his documents on the grounds that they were not
material
to the determination of Cooper Junior’s financial position and
his ability to pay the judgment debt
,
as envisaged in
s 65D(1)
, in other words on the grounds of
relevance. The magistrate would then have been in a position to
assess whether Cooper Junior’s
documents were sufficient for
purposes of the enquiry, or whether indeed Cooper Senior’s
documents were required in order
to make an accurate assessment of
Cooper Junior’s true financial position. The magistrate,
having heard argument from both
parties, would have been called upon
to make a ruling in this regard. Any party aggrieved by such ruling
would have been entitled
to launch review proceedings in the High
Court in terms of s 22 (1)(d) of the Superior Courts Act 10 of 2013.
(
cf
Marais
v Smith (supra)
at
933 D – F.
[9]
See
LTC Harms ‘
Interdict’
2
LAWSA
Part
11 (2 ed), paras 396 to 399.
[10]
2004
(5) SA 315
(C) at para 22.
[11]
See
Beinash
v Wixely
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA);
Meyers
v Marcus and Another
2004
(5) SA 315 (C).
[12]
In
terms of Magistrates’ Court Rule 51(4) an appeal is noted by
the delivery of a notice of appeal
and
the giving of security for costs.
[13]
Centre
for Child Law v Hoërskool Fochville and Another
2016
(2) SA 121
(SCA) para 11. See, too,
Absa
Bank v Van Rensburg
2014
(4) SA 626
(SCA) para 8 (dealing with s 21A(1) of the now repealed
Supreme Court Act 59 of 1959, being the forerunner to
s 16(2)(a)(i)
of the
Superior Courts Act 10 of 2013
.
[14]
Centre
for Child Law v Hoërskool Fochville and Another (supra)
para
11;
RAF
v Faria
2014
(6) SA 19
(SCA) para 25;
Motor
Industry Staff Association v Macun NO and Others
2016
(5) SA 76
(SCA) para 25.