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[2020] ZAWCHC 54
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Mannatt and Another v De Kock and Others (18799/2018) [2020] ZAWCHC 54 (22 June 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
No.: 18799/2018
In
the matter between:
MARC
MANNATT
First
Applicant
LOUSE
MANNATT
Second
Applicant
and
PIERRE
DE KOCK
First
Respondent
Executor
of the Estate of E. K. de Kock – 28082/2014 + 025544/2014
and
Trustee of the Lady Mcepa Trust – IT3609/2005
and
Trustee of the MM de Kock Trust – MT/3871/1987
DECEASED
ESTATE OF EMMERENTIA KATHARINA DE KOCK
(DE
VILLIERS) – 28082/2014 +
025544/2014
Second
Respondent
MYTTHYS
DE KOCK
Third
Respondent
Trustee
of the Lady Mcepa Trust – IT3609/2005
and
Trustee of the MM de Kock Trust – MT/3871/1987
and
Director of Dumaresq (Pvt) Ltd Reg. No. 1967/009619/07
CHARL
DE KOCK
Fourth
Respondent
(Also
known as RUDOLPHUS DE CHATILLION DE KOCK)
Trustee
of the Lady Mcepa Trust – IT3609/2005
and
Trustee of the MM de Kock Trust – MT/3871/1987
and
Director of Dumaresq (Pvt) Ltd Reg. No. 1967/009619/07
LADY
MCEPA TRUST –
IT3609/2005
Fifth
Respondent
MYTTHYS
MICHAEL DE KOCK TRUST –
MT/3871/1987
Sixth
Respondent
JOHANN
FRANCOIS VOS
Seventh
Respondent
(Curator
Bonis of Emmerentia Slabbert senior “the Patient”)
and
Trustee of the Lady Mcepa Trust - IT3609/2005
ESTATE
EMMERENTIA SLABBERT SENIOR
Eighth
Respondent
CR
171/2017
DEPARTMENT
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Ninth
Respondent
MASTER
OF THE HIGH COURT CAPE
TOWN
Tenth
Respondent
L.
P. LE ROUX (MAGISTRATE,
HERMANUS)
Eleventh
Respondent
NEIL
SLABBERT
Twelve
Respondent
EMMERENTIA
SLABBERT
JUNIOR
Thirteenth
Respondent
EMILY
VAN DER
MERWE
Fourteenth
Respondent
KEITH
MATTHEE
Fifteenth
Respondent
LUCAS
STEYN
Sixteenth
Respondent
COENRAAD
BIERMAN
Seventeenth
Respondent
DUMARESZ
(PTY) LTD – Reg. No.
1967/009619/07
Eighteenth
Respondent
LORAINE
DE
KOCK
Nineteenth
Respondent
MATTHYS
DE KOCK
JUNIOR
Twentieth
Respondent
STEPHANUS
DE
KOCK
Twenty
First Respondent
ALDALENE
BRAND (Neé DE
KOCK)
Twenty
Second Respondent
TREVOR EDWARD
EYDEN
Twenty
Third Respondent
DECEASED ESTATE OF
STANLEY WESLEY EYDEN
13864/2007
Twenty
Fourth Respondent
THE SHERIFF OF
HERMANUS
Twenty
Fifth Respondent
THE SHERIFF OF
BELLVILLE
Twenty
Sixth Respondent
JUDGMENT (Application
for leave to appeal)
The judgment was
delivered by email to the parties and release to SAFLII.
It shall be deemed to
have been delivered at 10h00 on 22 June 2020
BINNS-WARD
J:
[1]
The applicants have applied for leave to appeal against the judgment
of this court, delivered on 21 February 2020, in which
an order was
made striking the principal application from the roll with costs on
the attorney-client scale. That order followed
upon a finding
that a case for the application to be entertained as an urgent
application in terms of rule 6(12) had not been made
out. A
punitive costs order was made because the enlisting of the matter as
a purportedly urgent application had not only
been misguided, but
also, very evidently, an abuse of process. The judgment is
listed on SAFLII as
Mannatt and Another v De Kock and Others
[2020] ZAWCHC 10
(21 February 2020). It speaks for itself.
The application for leave to appeal is opposed by the second to
twenty fourth
respondents. The application was delivered a few
days after the expiry of the time limit in terms of the rules.
It
was accompanied by an application for condonation, which was not
opposed. An order granting condonation will follow.
[2]
Owing to the special measures in place in respect of the conduct of
the court’s business during the Covid-19 related lockdown,
I
directed that the application would be determined without an oral
hearing on the basis of written argument When inviting
the
parties to submit written argument, I indicated, through my
registrar, that I would like in particular to be addressed on the
question of the appealability of the order striking the application
from the roll.
[3]
Written
argument running in length to 89 pages (excluding the lengthy case
heading and the several pages at the end of the document
particularising the persons to whom it was addressed) was submitted
by the applicants. Counsel for the respondents also put
in a
comprehensive, but thankfully much shorter, set of heads. The
application for leave itself was a 131 page document.
Most of
the application went to the supposed merits of the applicants’
principal application and did not engage with the
only issues that
the judgment of 21 February 2020 decided; viz. (i) that the
matter did not warrant hearing as a matter of
urgency
because
any urgency had been self-created by reason of their failure to apply
for leave to appeal from Rogers J
,
[1]
and (ii) that the applicants should pay the costs occasioned by
the enrolment of the application as a matter of urgency on
the scale
as between attorney and client. Apart from being unduly long,
it was in places incoherent.
[4]
No point
will be served, however, by treating of the supposed substance of the
application if the order (probably more correctly
termed a ‘ruling’)
that the applicants seek to impugn is not appealable. There are
quite a number of appeal court
judgments that explain the
characteristics of an appealable order. None of them was
referred to in the applicants’
written argument, which advanced
the unqualified, but wholly misconceived, proposition that ‘all
judgments are appealable’.
[2]
It suffices for now to mention only those of the applicable
authorities that are generally acknowledged to be amongst the
more
salient.
[5]
Although the applicable statutory regimes have evolved through a
number of differing iterations over the years, it has consistently
been the policy that decisions of a procedural or preparatory
character are generally not appealable; see
Pretoria Garrison
Institutes v Danish Variety Products (Pty) Ltd
1948 (1) SA 839
(A) at 868 (per Schreiner JA). In
Zweni v Minister of Law
and Order
1993 (1) SA 523
(A), Harms AJA, writing for the
Appellate Division, noted that, in terms of the governing provisions
of the Supreme Court Act 59
of 1959 then in force, only ‘
judgments
or orders
’ were appealable, and decisions that did not
qualify as such were not. Without purporting to lay down an
absolute rule,
the court in
Zweni
defined a ‘
judgment
or order
’ as ‘
in general principle
’
having three attributes: ‘
first, 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;
and, third, it must have the effect of disposing of at least a
substantial portion of
the relief claimed in the main proceedings
’.
The second requirement could be satisfied only if the order concerned
went to definitively determining at least some
of the substantive
relief sought in the proceedings. It would, of course, be
unusual for a purely procedural ruling ever
to have that effect.
[6]
It seems to
be established that the word ‘
decision
’
in s 16 of the currently applicable
Superior Courts Act 10 of
2013
has exactly the same import as the words ‘judgment or
order’ did in
s 20(1)
of the repealed Supreme
Court Act; see e.g.
Firstrand
Bank Limited t/a First National Bank v Makaleng
[2016] ZASCA 169
(24 November 2016), at paras 10-15, and
Neotel
(Pty) Ltd v Telkom SA Soc Ltd and others
[2017]
ZASCA 47
(31
March 2017), at paras 12-13.
[7]
As
mentioned, what
Zweni
established was a general principle, not an immutable rule, nor
something ‘cast in stone’. This much was stressed
by Howie P in
S
v Western Areas Ltd
and
Others
[2005] ZASCA 31
(31 March 2005);
[2005] 3 All SA 541
(SCA), who
said ‘
it
should be observed that this court said in
Moch
[3]
that the
requirements for appealability laid down in
Zweni
were not intended to be exhaustive or to cast the relevant principles
‘in stone
’.
Farlam JA subsequently elaborated on that observation as
follows in
Philani-Ma-Afrika
and Others v Mailula and Others
[2009] ZASCA 115
;
[2010] 1 All SA 459
(SCA),
2010 (2) SA 573
, holding
that the belief that the judgment in
Zweni
was all encompassing as to which decisions might be appealable was
wrong: ‘
That
belief was erroneous. It is clear from such cases as
S
v Western Areas
… at paras 25 and 26 … that what is of paramount
importance in deciding whether a judgment is appealable is the
interests of justice. See also
Khumalo
v Holomisa
[2002] ZACC 12
;
[2002] ZACC 12
;
2002 (5) SA 401
(CC) para [8] …
’. And, most recently, in
Director-General,
Department of Home Affairs and Another v Islam and Others
[2018] ZASCA 48
(28 March 2018) at para. 10, Maya P observed
that ‘t]
raditionally,
under common law, an interim order was not appealable except where it
was shown that it was (a) final in effect as
it could not be altered
by the court which granted it; (b) definitive of the rights of the
parties in that it granted definitive
and distinct relief; and (c)
was dispositive of at least a substantial portion of the relief
claimed in the main proceedings. The
test has since evolved. So
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 eg where
the interim order ‘has an
immediate and substantial effect,
including whether the harm that flows from it is serious, immediate,
ongoing and irreparable
’
(footnotes omitted).
[8]
The extent to which the defining attributes for appealability
identified in
Zweni
still remain decisive in most cases,
however, is evident in judgments such as that of the majority in
Cipla Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation and Others
[2017] ZASCA 134
; [2017]
4 All SA 605
(SCA);
2018 (6) SA 440.
[9]
The decision to strike the principal application in the current
matter from the roll for lack of urgency was of a purely procedural
character. It did not have any of the three attributes of a
‘
judgment or order
’ identified in
Zweni
.
On the basis of the authorities just referred to that counts strongly
against it being regarded as appealable. In
addition, there are
no considerations that would make it susceptible to appeal ‘in
the interests of justice’.
On the contrary, it would be
inimical to the interests of justice to permit or encourage the
applicants to continue on their misguided
path in the current
litigation. It is purposeless, and nothing more than an abusive
imposition on the court’s resources
and an unwarranted
derogation from the prima facie rights of those of the respondents
who are applicant’s judgment creditors.
[10]
The
applicants have been advised in at least one reasoned preceding
judgment of this court
[4]
that
their proper recourse lies in seeking leave to appeal against the
judgment of Rogers J given nearly two years ago, on
12 September
2018. As far as I can discern they have doggedly resisted
accepting that advice, notwithstanding having
initially made
approaches to the learned judge in September and October 2018 to
arrange for the hearing of such an application,
and despite having
had the effect of the applicable time limits on their right to do so
pointed out to them by the judge.
In the circumstances, I am in
no doubt that that the order striking their principal application in
the current matter from the
roll is not appealable, and that any
purported appeal from it would not be entertained by an appellate
court even were leave to
appeal (misdirectedly) granted.
[5]
[11]
The very
fact that the applicants could in all probability have obtained a
date for the hearing of their application on the ordinary
(i.e. non
urgent) opposed motion roll by now - nothing in the striking order
having prevented them from doing so - serves to highlight
just how
misguided this application for leave to appeal really has been.
This illustrates that even were an appeal to be
heard, the matter in
issue would be of such a nature that the decision sought (i.e. a
setting aside of the order striking the matter
from the roll for lack
of urgency) would have no practical effect or result. That
would be reason enough in itself for the
appeal to be dismissed, even
if the appellate bench might not itself have been inclined, were it
sitting at first instance, to
strike the matter from the roll for the
reasons that I did. See in this regard
s 17(2)(a)(i)
of
the
Superior Courts Act.
[6
]
[12]
The incidence of
s 17(2)(a)(i)
in the particular circumstances
means that an appellate court would not get to consider the costs
order that was made against the
applicants.
Section 17(2)(a)(ii) of the Act provides: ‘
Save under
exceptional circumstances, the question whether the decision
[i.e.
the decision appealed against]
would have no practical effect or
result is to be determined without reference to any consideration of
costs
’. There are no ‘exceptional
circumstances’.
[13]
The opposing respondents have asked for the application for leave to
appeal to be dismissed with costs on the attorney-client
scale.
In support of their request for a punitive costs order, they have
pointed to the abusive character of the application.
I do not
intend to review the content of the application and the written
argument with any particularity. It is an understatement
to say
that that the respondents’ characterisation of the application
as abusive is justified. The applicants have
persisted in the
unwarranted resort to a range of outrageously insulting, false and
defamatory statements about various members
of the judiciary (now
including me), legal representatives and others that has been
remarked on by other judges at previous stages
of this litigation.
[14]
Even without those grossly objectionable characteristics, the
vexatious way in which the application was compiled, with an
enormous
amount of irrelevant and argumentative material contributing to its
ultimately hugely disproportionate volume, would by
itself merit a
punitive costs order; cf.
Re Alluvial Creek Ltd
1929 CPD 532
at 535, where Gardiner JP said ‘
Now sometimes such an
order is given because of something in the conduct of a party which
the Court considers should be punished,
malice, misleading the Court
and things like that, but I think the order may also be granted
without any reflection upon the party
where the proceedings are
vexatious, and by vexatious I mean where they have the effect of
being vexatious, although the intent
may not have been that they
should be vexatious. There are people who enter into litigation with
the most upright purpose and a
most firm belief in the justice of
their cause, and yet whose proceedings may be regarded as vexatious
when they put the other
side to unnecessary trouble and expense which
the other side ought not to bear
’.
[15]
In the result the following orders are made:
1. The late delivery of
the application for leave to appeal is condoned.
2. The application for
leave to appeal from the judgment of this court dated 21 February
2020 is refused with costs on the
scale as between attorney and
client.
3. The applicants’
liability for payment of the respondents’ costs of suit shall
be joint and several.
____________________
A.G.
BINNS-WARD
Judge
of the High Court
[1]
See
paragraphs 9 and 10 of the judgment of 21 February 2020.
[2]
Paragraph
67 of the applicants’ written argument.
[3]
Moch v
Nedtravel (Pty) Ltd t/a American Express Travel Service
[1996] ZASCA 2; 1996 (3) SA 1 (A).
[4]
The
judgment of Bozalek J referred to in paragraph 3 of my judgment of
21 February 2020.
[5]
An
order granted leaving to appeal does not serve as a warrant that the
decision in issue is appealable; see
African
Wanderers Football Club (Pty) Ltd v Wanderers Football Club
1977 (2) SA 38 (A).
[6]
Section
17(2)(a)(i) provides: ‘
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.
’