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[2019] ZAWCHC 3
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Jacobs v Beacon Island Shareblock and Another (A258/2018) [2019] ZAWCHC 3 (6 February 2019)
Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Appeal
Case No. A258/2018
Trial
Case No. 4500/2014
Before:
The Hon. Mr Justice Bozalek
The
Hon. Mr Justice Binns-Ward
The
Hon Ms Justice Boqwana
Hearing:
1February 2019
Judgment:
6 February 2019
In
the matter between:
JUAN
A.
JACOBS Appellant
and
BEACON
ISLAND
SHAREBLOCK First
Respondent
SOUTHERN
SUN HOTEL INTERESTS (PTY)
LTD Second
Respondent
JUDGMENT
BINNS-WARD
J (BOZALEK and BOQWANA JJ concurring):
[1]
This
matter should never have had to come before the court a quo; even
less so before us on appeal. It tells a story of how
litigation
should
not
be conducted.
[2]
It
arises out of an application for interlocutory relief brought by the
defendants (who are the respondents in the appeal) in a
still pending
action, in which the plaintiff claims compensation for the injuries
that she allegedly sustained when a jammed shower
door shattered as
she was attempting to open it. The incident occurred while the
plaintiff was a guest in one of the units
at the Beacon Island Hotel
resort at Plettenberg Bay. The resort is owned by the first
defendant, a share block company;
and is managed and operated by the
second defendant. The claim is founded on the alleged wrongful
and negligent failure by
the defendants to properly maintain the
shower door.
[3]
The
defendants have denied liability. They have also joined the
plaintiff’s father and mother as first and second third
parties, respectively, in the action. The plaintiff’s
father, Juan Albertus Jacobs, who is the appellant before us,
is the
holder of a timeshare use right in the hotel unit concerned. He
was joined on the grounds that he had allegedly bound
himself
contractually to indemnify the first defendant against any liability
it might incur in respect of the sort of claim brought
by the
plaintiff.
[4]
The
annexure to the defendants’ third party notice recited in
outline the nature of the plaintiff’s claim against the
defendants, and recorded that the defendants had denied liability on
the grounds set forth in their plea. It then proceeded,
in
paragraphs 7 and 8 thereof, as follows:
7.
The
Defendants incorporate by reference all allegations as contained in
the Plaintiff’s particulars of claim as are admitted
in their
plea, together with all further allegations in their plea.
8. In particular,
the First Defendant alleges that the Third Party is liable to
indemnify it in terms of clause 7.5 of the Use Agreement
as read in
conjunction with the “
C-form
”,
against any loss, damage or injury which any person using the
premises sustained in the premises by reason of any act whatsoever,
or neglect on the part of the First Defendant or the First
Defendant’s servants, as well as against any loss, damage or
injury of any description sustained by reason of the premises at any
time falling into a defective state, or by reason of any repairs,
renovations and/or maintenance work to the rest of the property
effected or to be effected by the First Defendant or by any other
user thereof, or by reason of such repairs, renovations and
maintenance work not being effected timeously or at all.
The
‘C-form’, a partly legible copy of which is annexed to
the defendants’ plea, appears to be a pro forma document
drafted for execution by the transferee of any shares in the first
defendant that give a right to the occupation of a unit in the
Beacon
Island resort share block scheme. It appears from the copy of
the ‘C-form’ annexed to the defendants’
plea that
the deed was executed in respect of the transfer to the first third
party of certain ordinary shares in the first defendant
company from
the estate of the late Mrs Cornelia Jacobs. Insofar as can be
made out (because part of the wording is blocked
out by what appears
to have been a sticker affixed to the document
[1]
),
clause 3 thereof provides that the transferee, by signing the
document, agrees and undertakes to assume and discharge all
the
obligations imposed upon and accepted by the holder/transferor under
the use agreement/s and articles of association.
A statutory
context for the contractual undertaking is to be found in s 7(2)
of the Share Blocks Control Act 59 of 1980, which
provides ‘
The
articles of a share block company shall provide that a member shall
be entitled to the use of a specified part of the immovable
property
in respect of which the company operates the shareblock scheme, on
the terms and conditions contained in a use agreement
entered into
between the company and such member
.’
A copy of what is alleged to have been the relevant use agreement was
attached as annexure B to the defendants’
plea.
[5]
The
‘
further
allegations in
[the defendants’]
plea
’
incorporated by reference in terms of paragraph 7 of the annexure to
the third party notice that appear to be germane are
the following:
Para 4.2 The First
Defendant specifically pleads that the Plaintiff was a guest of her
father, Juan Albertus Jacobs (“
the holder”
)
,
at
the time that the incident occurred on 2 April 2012.
Para 4.3 The holder
held a use right in the First Defendant in terms of the Share Blocks
Act 59 (sic)
[2]
by virtue of
clause 3 of an agreement of cession and use dated 10 February 2010
(“
C
form
”
– annexure “
A
”),
as read with the relevant Use Agreement entered into in terms of
section 7 of the Share Blocks Act, a copy of which is
attached as
annexure “
B
”
(“
the
Use Agreement
”).
Para 4.4 In terms of
clause 3 of the “
C
form
”,
the holder agreed and undertook to assure
[3]
and duly discharge all the obligations imposed upon and accepted by
the First Defendant in terms of the Use Agreement. The
holder
was further registered as a shareholder of the First Defendant in
terms of a share certificate attached as annexure “
C
”,
and bound by the First Defendant’s articles of association
(annexure “
D
”)
(“the Articles of Association”).
Para 5.7.1 The
Defendant specifically pleads that, to the extent that it may be held
that the shower door or any other fixtures
and fittings relating to
the shower were defective, or had been improperly maintained, or that
the Defendants were in any way negligent
as alleged:
Para 5.7.1.1 Such
maintenance was the responsibility of the holder and not the
Defendants in terms of the “C-form” as
read with the Use
Agreement, and in any event the holder agreed that the use of the
unit for the week would be on a “voetstoots”
basis
without any warranties, express or implied, and that the unit would
be in the condition in which it presently stood at the
commencement
of the holder’s use thereof
.
[6]
The
first third party pleaded to paragraph 7 and 8 of the annexure to the
third party notice as follows in paragraphs 1 and 2 of
his plea:
1.
Ad
paragraph
(sic)
1-7 thereof:
The contents of
these paragraphs are admitted.
2.
Ad
paragraph 8 thereof:
2.1 The contents
thereof are denied.
2.2 In amplification
of the aforesaid denial, but without detracting from the generality
thereof, the First Third Party alleges
that:
2.2.1 in terms of
clause 6 of the Use Agreement, as read in conjunction with the “C
Form”, the First Third Party was
not permitted to,
inter
alia
, tamper with any fittings connections or plumbing serving
the premises;
2.2.2 in terms of
clause 7.1.1 of the Use Agreement, as read in conjunction with the “C
Form”, the First Defendant had
a duty to procure the due
maintenance and repair of the entire premises, including, without
limitation, inter alia, all fittings
and attachments, plumbing
installations, piping and apparatus of all fittings whatever and all
window frames, fittings and doors
in good and sound order and repair,
the First Third Party having no liability therefore (sic);
2.2.3 in terms of
clause 7 of the Use Agreement, as read in conjunction with the “C
Form”, the First Defendant had a
duty to repair and maintain
the premises in good, secure, clean and thoroughly tenantable order
and condition from time to time
and as and when necessary or
requisite to renovate and renew the same;
2.2.4 as a result of
the aforesaid, the First Defendant had a general duty of care to
ensure that the premises were properly maintained
and inspected at
all times and in particular, to ensure that the premises were safe at
all times for use by all person/s (sic)
entering or exiting the
shower in the suite, more particularly on the day in question;
2.2.5 in particular,
but without derogating from the generality of the aforesaid, the
First Defendant had a duty of care to ensure
that the premises were
in a fit and proper condition, and free from defects at all times.
[7]
In
accordance with the practice in this division of the High Court, the
action was taken under judicial case management once the
pleadings
were closed. The case manager judge gave directions, amongst
other things, concerning the dates by which any particulars
required
for purposes of trial were to be requested and furnished by the
parties. It was subsequently reported to him that
the dates he
had fixed had come and gone without any of the parties having
requested such particulars; it being therefore accepted
that none of
them required them. On the basis of such assurance, the case
manager judge issued a trial-readiness certificate,
and the date of
6 March 2018 was consequently allocated by the registrar for the
commencement of the trial.
[8]
In
disregard of the case management scheme, the defendants subsequently
delivered a request for trial particulars to the third parties
on
30 January 2018. The first third party’s reply to
the request was delivered on 13 February 2018.
The
plaintiff also delivered a last minute request for trial particulars.
[9]
At
paragraph 16 of their belated request for trial particulars the
defendants asked:
Does the First Third
Party deny its obligation to indemnify the First Defendant as per
clause 7.5 of the Use Agreement? If
so on what basis?
To which the first
third party responded in paragraph 27 of his reply:
Yes. First
Third Party has never seen the ‘Use Agreement’, nor is he
a party to such agreement.
(Quite
why it was thought necessary by the defendants to obtain further
particulars in this regard is by no means clear. The
first
third party’s plea expressly denied liability in terms of
clause 7.5; and it also set out, with reference to the alleged
effect
of other specifically identified clauses of the use agreement, the
basis of the denial.)
[10]
It was
as a consequence of the defendants’ request for trial
particulars and the third party’s reply thereto that the
action
that had been certified trial-ready many months earlier was
subsequently, at a very late stage, alleged by the defendants
actually not to be so. The defendants contended that the first
third party’s denial in paragraph 27 of his reply to
their
request for trial particulars stood in contradiction of his admission
in paragraph 1 of his plea of ‘the further allegations’
in the defendants’ plea quoted in paragraph [5]
above. They
complained that this had embarrassed them in their preparation for
trial. The upshot was that, instead of
proceeding to trial on
the pleaded case on 6 March 2018, the defendants brought an
application on that date in which orders were
sought –
1.
Striking
out paragraph 27 of the First Third Party’s response to the
Defendants’ trial particulars (sic) dated 13 February
2018
(“
the
response
”)
2.
Alternatively
to paragraph 1 above:
2.1 Postponing
the trial of this matter
sine die
; and
2.2 Directing
the First Third Party to amend his pleadings in terms of rule 28
so as to cure the embarrassment caused
by paragraph 27 of the
response.
3.
Directing
the First Third Party to pay the costs of this application, and, in
the event that the alternative relief claimed in paragraph 2
above is granted, any wasted costs of the postponement; and
4.
Granting
such further and/or alternative relief as may be necessary or
appropriate.
[11]
The
court a quo entertained the application and, on 7 March 2018,
directed that an order should issue as prayed in terms of paragraphs
2.1, 2.2 and 3 of the defendants’ notice of application.
It is from that decision that the first third party comes
on appeal
to the full court with the leave of the learned judge at first
instance.
[12]
It is
evident from the reasons for the order furnished by the learned judge
a quo that she read the third party’s plea to
the annexure to
the third party notice as having admitted ‘the further
allegations’ quoted above, with the attendant
implication that
the first third party had not placed in dispute the defendants’
allegation that he was bound by the use
agreement. The judge
considered that that much followed from the unqualified admission in
paragraph 1 of his plea quoted
above.
[4]
The judge then referred to the defendants’ characterisation of
the response furnished by the first third party in paragraph 27
of his reply to the defendants’ request for trial particulars
as an effective withdrawal of the pleaded admission. She
appears to have accepted the defendants’ assertion that this
required them at a late stage to prove matter that had hitherto
been
common ground on the pleaded case. Consistently with that view
of the matter, the judge rejected the first third party’s
contention that the information provided in his trial particulars did
not contradict the admission in his plea. She held
that in the
result, ‘[a]s the pleadings stand, the case [the defendants
have] to meet is contradictory and ambiguous’.
Having
concluded that the pleadings were contradictory, the judge expressed
herself to be ‘satisfied that the defendant would
be prejudiced
if the matter proceeds on trial with the pleadings as they stand’.
[13]
It is
convenient at this stage to consider briefly the substance of the
defendants’ application to the court a quo.
[14]
The
postponement they sought was allegedly to allow them to address the
prejudicial circumstances in which they contended the first
third
party’s trial particulars had placed them. According to
their supporting affidavit that would be achieved by
giving them time
to assemble the evidence necessary to prove that the first third
party had undertaken to be bound by the use agreement.
[15]
It
will be recalled that they also sought a direction that the first
third party should amend his pleadings. Quite how the
pleadings
were required to be amended was not specified in the defendants’
supporting affidavit. Indeed, after a discursive
rehearsal of
the pleadings and the trial particulars that had been furnished, the
deponent to the defendants’ supporting
affidavit concluded:
‘Based on the above it is clear that the defence advanced on
the pleadings is excipiable. It is
at best vague and
embarrassing but – as a practical reality – does not
disclose any defence’. That statement
begged the obvious
question, ‘Well, if so, why not deliver a notice of exception,
instead of seeking the relief sought in
terms of paragraph 2.2 of the
notice of application?’ The defendants’ application
did not identify the question
or offer an answer. It also did
not contain any indication of what should happen in regard to the
further conduct of the
action should the first third party fail to
comply with any direction given by the court in terms of paragraph
2.2 of their notice
of application.
[16]
The
institution of the application was misconceived and led by
concatenation to an order that in material part was nugatory.
It seems to me, with respect, that both the court a quo and the
parties were led into error by a failure to recognise that a
litigant’s
reply to a request for trial particulars does not
form part of the pleadings.
[17]
A
succinct analysis of the conceptual position that actually obtains in
this type of situation is to be found in
Ruslyn
Mining & Plant Hire (Pty) Ltd v Alexkor Ltd
[2011] ZASCA 218
; [2012]
1 All SA 317
(SCA).
Ruslyn
concerned a case in which the plaintiff had sought, unsuccessfully,
to apply for an amendment to the further particulars that it
had
furnished for the purposes of trial. It made the application
during an argument by the defendant for absolution from
the instance
at the end of the plaintiff’s case. The purpose of the
amendment that was sought was to bring the trial
particulars that it
had furnished into line with evidence that had already been led,
without objection, during the plaintiff’s
case. The judge
at first instance had refused the application on the basis of his
appreciation of the principles applicable
to the amendment of
pleadings, treating the further particulars for practical purposes as
if they were a pleading. Absolution
from the instance was
granted. On appeal, the order of absolution from the instance
was reversed. The order refusing
the application to amend the
trial particulars was confirmed, however; not because an amendment of
the trial particulars had been
inappropriate or impermissible, but on
the basis that the application to amend them had been an
inappropriate and unnecessary proceeding,
in respect of which the
court below did not need to have made an order.
[18]
At
paras. 18-19 of its judgment in
Ruslyn
,
the appeal court held as follows:
18. To deal first
with the principle, … . Further particulars for trial are not
pleadings. The opportunity to request them
arises after the close of
pleadings: uniform rule 21(2). They are limited to obtaining
information that is strictly necessary to
prepare for trial. They do
not set up a cause of action or defence by which a party is, in the
absence of amendment or tacit concurrence,
bound and by which the
limits of his evidence are circumscribed. Nor can they change an
existing cause of action [or defence
[5]
]
or create a new one (as the trial judge appears to have believed). …
Because they are not pleadings, they do not limit
the scope of the
case being made by the party that supplies them. A party has a right
to rely on all and any evidence that is admissible
and relevant to
his pleaded cause or defence and …
19. Applications to
amend particulars for trial seem to me to be largely inappropriate
and unnecessary, particularly once the trial
has got under way. It
should be sufficient for counsel to notify his opponent at an early
stage when he becomes aware that his
evidence may depart materially
from the information in the particulars for trial. The latter can
then take the matter up with the
trial court if necessary. …
[19]
In
describing how the application to amend its trial particulars that
had been brought by the plaintiff fell to be dealt with, the
appeal
court in proceeded as follows (at para. 21):
The application
being unnecessary, the wasted costs generated by it should have been
held to the account of [the plaintiff]. These
however should not
include [the defendant’s] costs of opposition, as it had
precipitated the application by its contention
that [the plaintiff’s]
case was restricted by the trial particulars and this was aggravated
by its determined resistance
to the amendment, which not only served
no purpose in the circumstances but was predicated upon principles
that related to amendment
of pleadings.
At
para. 35, the court concluded that as the application to amend
the trial particulars had been unnecessary the court below
should
have refused it.
[6]
[20]
The
parallels between the issues raised by the defendants’
application to the court a quo in the current matter and those
determined in the relevant part of
Ruslyn
are
starkly evident. It should have been apparent that the first
third party could not, and did not, by anything he said in
paragraph 27 of his reply to the defendants’ request for
trial particulars, effectively withdraw the admissions incorporated
in paragraph 1 of his plea to the defendant’s third party
notice. The pleaded case remained unaltered.
[21]
It is
not for us to decide the question definitively, but I am inclined to
agree with the court a quo’s assessment, and that
of the
defendants, that the answer given in paragraph 27 was
essentially contradictory of the defence pleaded by the first
third
party in his plea. In my view, a fair reading of the plea
conveys that the defendant admitted being bound by the use
agreement,
but contended that the indemnity provided for in terms of clause 7.5
of that agreement was not applicable because of
what he contended was
the effect of the other identified clauses in the agreement. In
the context of the pleaded defence,
evidence that the first third
party had not seen, nor been party to the use agreement would be
irrelevant, and liable to exclusion
on that account at the trial.
It was not necessary that the first third party should have seen, or
been party to, the use
agreement for him to effectively, by
subscribing to the ‘Form-C’ document, have assumed the
obligations of a predecessor
in title as owner of the shares in the
share block company. What rendered the reply to the request for
trial particulars
contradictory of the plea, in my opinion, was its
implication that the first third party was not bound by clause 7.5
because he
had not seen or been privy to the use agreement.
That implication contradicted his pleaded admission that he
had
assumed the holder’s obligations in terms of the use agreement.
[22]
But,
as I have sought to explain, the contradiction should not have been
seen as posing an embarrassment to the defendants.
On the
contrary, because any evidence that the first third party might seek
to adduce at the trial in contradiction of his pleaded
admissions
would fall to be excluded as irrelevant, any embarrassment that might
arise would rather be that of the first third
party. And the
fact that his ability to procure an amendment of his plea after the
commencement of the hearing might be adversely
affected by his having
rejected the opportunity to do so given to him in correspondence on
the point between his attorneys and
those of the defendants before
the institution of the defendants’ application would only add
to his embarrassment.
[23]
There
was in truth, as in
Ruslyn
supra, therefore no reason for the defendants to have brought the
application. They were entitled to enter into the hearing
on
the basis of the pleadings, and to object at the trial to any attempt
by the first third party to adduce any evidence at variance
with the
import of his pleaded case. Their legal representatives had
done all that they reasonably could have been expected
to do in the
circumstances by pointing out to the first third party’s
representatives the difficulty that could arise from
the third
party’s apparent intention to rely on a defence that had not
been pleaded and was in conflict with the defence
that had been
pleaded.
[24]
The
learned judge a quo clearly recognised, however, that the situation
was pregnant with potential difficulty, and that a disruption
to the
trial was eminently foreseeable if the first third party were
subsequently to seek to amend his plea to incorporate the
new defence
adumbrated in his reply to the request for trial particulars.
It was evidently in order to avoid that happening
that she directed
that the first third party should amend his pleadings before the
trial began. The judge’s clear and
commendable intention
was to engineer a situation in which the trial could commence on
pleadings that fully and clearly defined
the first third party’s
apparent defences, and on which the defendants should be given ample
opportunity to be properly prepared.
[25]
Assuming
that he does intend to contend that he was not bound by the use
agreement because he had not seen or been privy to it,
as the trial
particulars that he furnished suggest, the first third party would
have been well advised to have taken the opportunity
to have ordered
his pleaded case in accordance with the judge’s indications,
rather than seeking to attack the decision on
appeal. Indeed,
had the parties participated conscientiously in the case management
process and dealt with the matter of
trial particulars in compliance
with the case manager’s directions, the issue that gave rise to
the application to the court
a quo, and indirectly to this appeal,
could have been dealt with by the case manager judge in the
cost-effective and relatively
informal context of the case management
process. It would in all probability have given rise to a
direction by the case manager
judge that the parties should draw up a
statement of issues and a subsequent direction, if needs be, that the
litigants should
bring their pleadings into line with such issues if
a divergence between them and the pleaded case were identified.
The judge
would, of course, not have been able to order the parties
how to plead, but he could have indicated that a trial-readiness
certificate
would not be forthcoming while there remained confusion
or uncertainty as to exactly what the triable issues in the case
would
be; alternatively, have certified the matter trial-ready,
subject to a note to the allocating and trial judges of the first
third
party’s recalcitrant failure to clearly plead his
apparent defences. Proper engagement in the case management
process
is directed, amongst other things, at the avoidance of the
last minute confusion and consequent wastage of court time and
litigants’
money that occurred in the current matter.
[26]
The
only substantive respect in which I consider that the court a quo
erred was to make the order sought in terms of paragraph 2.2
of
the application, instead of perhaps merely allowing a postponement
and, in the course of its reasons for doing so, explaining
that the
first third party would be well advised to amend its plea if he
intended to pursue a defence that he was not bound by
the use
agreement. (In doing so, the judge a quo would have essentially
been assuming a case management function.)
A court does not
direct a litigant how to plead. It may hold that a pleading
does not make out a case or a defence, as the
case might be, and
afford the litigant the opportunity to remedy the position on pain of
having its claim dismissed or its defence
struck out if it does not
do so. But it will only do that in the context of determining
an exception. The defendants,
rightly or wrongly, had found
nothing objectionable in the first third party’s pleading of
his case and had not noted an
exception to it. In the
circumstances there was no basis for
an
order
to be made giving the third party the opportunity to amend his plea;
even less, directing him to do so.
[27]
It
does not follow, however, that the decision of the court a quo is
appealable just because the remedy it provided was misconceived
or
wrongly formulated. Certainly, it is not made appealable merely
because the court granted leave to appeal.
[7]
Indeed, it was because we had reservations about the susceptibility
of the decision at first instance to appeal that counsel
were given
notice that they should be prepared to argue the question at the
hearing. We were subsequently favoured with heads
of argument
on the point.
[28]
The
approach that used to be adopted on a fairly rigid basis was that it
was only orders that were (i) final in effect and
not
susceptible to recall or amendment by the court of first instance,
(ii) definitive of the rights of the parties, and
(iii) dispositive of at least a substantial portion of the
relief claimed in the main proceedings that were susceptible to
appeal; see, for example,
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A) at 536; and
S
v Western Areas Ltd and Others
[2005] ZASCA 31
;
[2005] 3 All SA 541
(SCA) at para. 20. It has
more recently been accepted, however, that the qualifying criteria
identified in
Zweni
were not exhaustive or set in stone.
[8]
‘The interests of justice’ have been referred to by the
Constitutional Court as the relevant overriding criterion.
The
Court observed all the same that ‘it will often not be in the
interests of justice … to entertain appeals against
interlocutory rulings which have no final effect on the dispute
between the parties’.
[9]
When regard is had to the approach of the Constitutional Court it has
to be borne in mind, however, that appeals to that
court are subject
to a different regulatory regime.
[10]
Nevertheless, in
Director-General,
Department of Home Affairs and Another v Islam and
Others
[2018] ZASCA 48
(28 March 2018) at para. 10, Maya P, dealing
with the issue of appealability – in that case of an order
granting an
interim interdict - remarked that ‘…whilst
the traditional requirements are still important considerations, the
court
may in appropriate circumstances dispense with one or more of
those requirements if to do so would be in the interests of justice,
having regard to the court’s duty to promote the spirit,
purpose and objects of the Constitution e.g. where the interim order
“has an immediate and substantial effect, including whether the
harm that flows from it is serious, immediate, ongoing and
irreparable”’, an example that would seem to fall within
the ambit of a ‘compelling reason’ in terms of
s 17(1)(a)(ii) of the Superior Courts Act.
[11]
[29]
Cases
like
Zweni
were decided with reference to the governing provisions of ss 20
and 21 of the since repealed Supreme Court Act 59 of 1959,
whilst
regard must now be had instead to ss 16 and 17 of its
replacement, the Superior Courts Act. It is relevant to
note in
that connection that the Supreme Court of Appeal has acknowledged on
more than one occasion that the word ‘decision’
in s 16
of the new Act bears the same meaning that it did in s 21(1) of
the Supreme Court Act, with the effect that it
has the same import as
‘judgment or order’ did in s 20(1) of that Act.
[12]
It seems to me that s 17(1) construed as a whole is a
codification of the
Zweni
principles assessed in the context of subsequent gloss afforded in
salient decisions such as
Western
Areas
and
Philani-Ma-Afrika
supra.
[13]
[30]
With
those principles and considerations in mind I turn now to examine the
appealability of the decision of the court a quo.
[31]
No
order that we might make on appeal could undo the postponement
granted by the judge a quo. The position with regard to
the
postponement order is in any event analogous to that which obtained
in
Absa
Bank Ltd v Mkhize and Another, and two similar matters
[2013] ZASCA 139
;
[2014] 1 All SA 1
(SCA);
2014 (5) SA 16
(SCA), in
which it was held by the majority that an order postponing the case
to enable the carrying out of the court’s instructions
for its
further conduct constituted no more than a direction that had no
effect on the determination of the issues in the case,
and was
therefore not appealable.
[14]
Moreover, there is nothing about the matter that would make it
appropriate for us to entertain an appeal only on the issue
of
costs.
[15]
[32]
The
focus then must be on that part of the order that acceded to
paragraph 2.2 of the defendants’ notice of application.
[16]
In my judgment it is not final in effect, nor is it definitive of the
rights of the parties, and it does not dispose of any
of the
substantive issues in the principal case. It therefore does not
comply with any of the attributes for appealability
identified in
Zweni
.
The appellant’s counsel sought in his written argument to argue
that the court a quo’s interpretation of the
pleadings - with
which he takes issue - was of final or definitive effect. There
is no merit in that contention. The
court was not deciding an
exception. For the reasons explained earlier, the decision left
the pleadings in the state in which
it found them. And unless
they are subsequently amended, that is the state in which they will
remain when the trial commences.
Should there be any dispute
about their import (which would ordinarily occur in the context of a
dispute between the litigants
about the relevance or admissibility of
evidence that one or other of them might seek to adduce at the
hearing), it will be for
the trial judge to make a determination, and
he or she will in no way be bound in that regard by the court a quo’s
opinion,
or indeed ours.
[33]
It
remains only to consider whether there is anything about the effect
of the order (i.e. ‘some other compelling reason’)
that
would nevertheless make it in the interests of justice that an appeal
against it should be countenanced. In my view
there is not.
[34]
I
think it is clear, when assessed in the context of relevant principle
discussed above and the judge’s reasons, that the
‘order’
granting the remedy sought in terms of paragraph 2.2 of the
defendants’ notice of application is legally
ineffectual and of
merely advisory effect, notwithstanding its apparently mandatory
tenor. It does not prescribe any consequences
should the third
party fail to comply with it; and as legal principle acknowledges
that an amendment to a party’s pleadings
can occur only through
an act of volition by that party, he could not be held in contempt of
court for failing to comply with the
direction.
[17]
A failure to comply with the order would, moreover, not prevent the
trial from proceeding. The plaintiff is the
dominus
litis
,
and it is open to her to apply to the registrar to re-enrol the
action for trial. Nothing in the order prevents or prohibits
that. To the extent that non-compliance with paragraph 2 of the
order made by the court a quo were seen as some sort of obstacle
to
the trial proceeding, the trial court would be at liberty, by reason
of its simple interlocutory character, to recall it; alternatively,
to hold on account of its legal ineffectiveness that it might be
disregarded.
[18]
[35]
A rightminded
trial judge would have no difficulty in recognising that the order
made by the judge a quo could not possibly
be properly construed so
as to thwart the plaintiff’s constitutional right in terms of
s 34 of the Bill of Rights to
have the action adjudicated.
The trial judge would also recognise that the effect of any failure
by the first third party
to amend his plea to reconcile it with the
additional (and apparently alternative) defence adumbrated in
paragraph 27 of his
trial particulars would be that the trial
would proceed on the pleadings as they stand, and that the third
party’s triable
defence(s) would be limited accordingly.
Should the third party seek only during the course of the re-enrolled
hearing to
obtain an amendment to his plea of the sort contemplated
by the order, and should it then be contended by any other party that
it would be prejudicial to allow the amendment at that stage, the
judge would no doubt take into account the first third party’s
failure to avail of the opportunity afforded to him by the court a
quo’s order in weighing whether the indulgence then sought
should be allowed. But that does not render the court a quo’s
order definitive in any relevant way. In addition,
entertaining
this appeal would contribute nothing towards the achievement of the
just and expeditious determination of the action
or the related third
party claim.
[36]
In the
light of all these considerations I do not think it can be suggested
with any cogency that the interests of justice require
that a
challenge to the decision, which satisfies none of the ordinary
attributes for appealability, should nevertheless be entertained
on
appeal. Indeed, when the effect of the judgments in
Motala
and
Kirland
supra, which had been overlooked by counsel, was put to them at the
hearing of the appeal it was accepted that the decision by
the court
a quo was not appealable.
[37]
To sum
up: the application brought before the court a quo was unnecessary,
the resultant order had no substantive effect on the
pleaded case,
and the endeavour to take it on appeal was misdirected because the
decision was not appealable.
[38]
The
first third party’s counsel argued that the appropriate order
in the circumstances as to the costs of the appeal should
be that
each party should bear their own. I do not agree. The
first third party prosecuted the appeal in the face of
argument by
the defendants’ counsel in the application for leave to appeal
that the decision was not appealable; and he persisted
with it
notwithstanding having been alerted, many weeks before the hearing,
of this court’s concern about the appealability
of the
decision. In the circumstances I consider that the first third
party must bear the defendants’ costs in the
abortive appeal.
[39]
An
order in the following terms will issue:
The
appeal is struck from the roll with costs, including the costs of the
application for leave to appeal.
A.G.
BINNS-WARD
Judge
of the High Court
L.J.
BOZALEK
Judge
of the High Court
N.P.
BOQWANA
Judge
of the High Court
APPEARANCES
Appellant’s
counsel: P.C. Eia
Appellant’s
attorneys; A Batchelor & Associates
Cape
Town
Respondents’
counsel: M.A. Grieg
Respondents’
attorneys: Dicks Van der Merwe Attorneys
Cape
Town
[1]
An unobscured copy of the pro
forma document was made available to us by the respondents’
counsel, for which we were grateful,
but I consider it preferable to
treat of the document as it appears in the pleadings.
[2]
An evidently intended reference
to the Share Blocks Control Act 59 of 1980.
[3]
The word ‘
assure
’
is taken from the text of the relevant agreement. It appears
to be a typographical misprint. The word ‘
assume
’
was plainly intended.
[4]
In paragraph [6].
[5]
My insertion.
[6]
As the court of first instance
had in fact refused the application, I think it is clear enough from
the context that the appeal
court intended to convey that the court
below should have made no order, save as to costs.
[7]
See, for example,
Cipla
Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation and Others
[2017] ZASCA 134
;
[2017] 4 All SA 605
(SCA);
2018 (6) SA 440
(SCA)
at para. 17, referring to
FirstRand
Bank Ltd t/a First National Bank v Makaleng
[2016] ZASCA 169
(24 November 2016) at para 15 and
Cilliers
NO & others v Ellis & another
[2017] ZASCA 13
(17 March 2017) (the latter being an example of
a case in which the matter was held by the appeal court not to be
appealable
notwithstanding leave to appeal having been given by the
court a quo). Although the paragraph cited is in a minority
judgment,
there is nothing in the majority judgment that detracts
from the point made there. On the contrary, the result of the
matter
supports it.
[8]
Moch v Nedtravel (Pty) Ltd
t/a American Express Travel Service
[1996] ZASCA 2
;
1996 (3) SA 1
(A) at 10F;
S
v Western Areas
supra, at para. 24.
[9]
Khumalo and others v Holomisa
[2002] ZACC 12
,
2002 (5) SA 401
(CC),
2002 (8) BCLR 771
, at
paras. 6-8.
[10]
As indeed pointed out by O’Regan
J in
Khumalo
supra, at para. 6.
[11]
The learned President of the
Supreme Court of Appeal supported her remarks citing
S
v Western Areas
supra;
Moch v
Nedtravel
supra;
Philani-Ma-Afrika &
others v Mailula & others
[2009] ZASCA 11
,
[2010] 1 All SA 459
(SCA),
2010 (2) SA 573
;
Nova
Property Group Holdings v Julius Cobbett
[2016] ZASCA 63
,
[2016] 3 All SA 32
(SCA),
2016 (4) SA 317
; and
City
of Tshwane Metropolitan Municipality v Afriforum
[2016] ZACC 19, 2016 (6) SA 279 (CC), 2016 (9) BCLR 1133.
[12]
FirstRand Bank Ltd t/a First
National Bank v Makaleng
supra, at para. 15
Neotel
(Pty) Ltd v Telkom SOC & others
[2017] ZASCA 47
(31 March 2017) at paras. 12-13; and
Cipla
Agrimed
supra, at
para. 18.
[13]
See note 11.
[14]
Paragraphs 1 and 2 of the order
made by the court of first instance in
Mkhize
(see para. 13 of the minority judgment for the terms of the
order in that case) are closely comparable in effect to those
made
in paragraphs 1 and 2 of the order made in the court a quo in the
current matter.
[15]
See s 16(2)(a)(ii) of the
Superior Courts Act, and cf.
Minister
of Rural Development and Land Reform v Phillips
[2017] ZASCA 1
,
[2017] 2 All SA 33
(SCA) at para. 37.
[16]
See paragraph [10]
above
[17]
Cf.
Master of the High
Court NGP v Motala N.O
.
[2011] ZASCA 238
, 2012 (3) 325 (SCA) at paras. 11-15, where it was
held that persons cannot be held in contempt of court for failure to
comply
with a legally ineffectual court order. And see the
explanation in
Member
of the Executive Council for Health, Eastern Cape and another v
Kirland Investments (Pty) Ltd
[2014] ZACC 6
,
2014 (3) SA 481
(CC),
2014 (5) BCLR 457
in fn. 78
in para. 103 in regard to the basis for distinguishing the treatment
by courts of legally ineffectual decisions
by judges from the
approach towards administrative decisions in terms of the
Oudekraal
principle (the latter being regarded as effectual until and unless
formally set aside).
[18]
See
MEC
Health, E. Cape v Kirland
cited in note 17
above at
the place mentioned.