Firstrand Bank Limited t/a First National Bank v Makaleng (034/16) [2016] ZASCA 169 (24 November 2016)

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[2016] ZASCA 169
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Firstrand Bank Limited t/a First National Bank v Makaleng (034/16) [2016] ZASCA 169 (24 November 2016)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No: 034/16
In
the matter between:
FIRSTRAND
BANK LIMITED

APPELLANT
T/A
FIRST NATIONAL BANK
and
MODINGWANA
HARRY MAKALENG
RESPONDENT
Neutral
citation:
FirstRand
Bank Limited t/a First National Bank v Makaleng
(034/16)
[2016] ZASCA 169
(24
November 2016)
Coram:
Shongwe, Tshiqi,
Seriti and Willis JJA and Makgoka AJA
Heard:
7 November 2016
Delivered:
24 November 2016
Summary:
Civil Procedure: an
order by the high court postponing,
sine
die
, an application
for default judgment, and directing the appellant to file, at the
next hearing within not less than six months
of the said order, an
affidavit detailing attempts to prevent foreclosure, is not
appealable. Appeal struck from the roll for lack
of jurisdiction.
ORDER
On appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Weiner J) sitting as
court of first instance.
The appeal is struck from the roll
for lack of jurisdiction with no order as to costs.
JUDGMENT
Shongwe
JA (Tshiqi, Seriti JJA and Makgoka AJA concurring)
Introduction
[1]
This appeal concerns the question whether the Gauteng Local Division
of the High Court, Johannesburg, (Weiner J, sitting as
court of first
instance) (the high court) was correct in postponing the default
judgment application against the respondent-debtor,
Mr Makaleng, in
favour of the appellant for a money judgment and ordering that the
respondent’s immovable property is executable.
The high court
made the following order:
‘
1.
The matter is postponed
sine die
,
and is not to be set down in less than six months.
2. An
affidavit is to be filed on the next date of hearing, detailing all
efforts made by the applicant to negotiate a settlement
with the
respondent, in order to prevent foreclosure’.
This
appeal is with the leave of the court a quo. A question which
immediately springs to mind, having regard to the order, is whether

or not the court a quo’s order is appealable.
Background
[2]
On 7 August 2007, the appellant and the respondent entered into a
facility agreement. In terms of this agreement, the appellant
granted
the respondent a credit facility in the sum of R432 000, with
which the respondent purchased immovable property. Pursuant
to the
conclusion of the loan agreement, a mortgage bond was duly
registered, on 13 September 2009, in favour of the appellant,
with
the registrar of deeds, over the immovable property. The mortgage
bond served as security for the loan, bearing interest at
the rate of
11,75 per cent per annum, at the time of its registration. The
monthly payment due to the appellant by the respondent
was the sum of
R3 337.82 over a period of 240 months. The total amount
repayable was R801 076.26.
[3]
The loan agreement, as loan agreements often do, contained certain
‘special terms and conditions’ under clause 3,
as well as
‘general terms of conditions’ under clause 4 which terms
and conditions I need not evaluate in detail as
nothing turns on
them. Suffice to mention that the mortgage bond served as security
for the loan facility, and that the mortgaged
immovable property is
the respondent’s primary residence.
[4]
It is common cause that the respondent fell into arrears with his
bond repayments. As a result, on 30 June 2015 the appellant
sent a
letter to the respondent, which was hand delivered on 6 July 2015,
informing him of his arrears in the sum of R12 945.53,
and
therefore in breach of the loan agreement. The respondent did not
respond to this letter. Subsequently, on 23 July 2015, the
appellant
purportedly sent a notice in terms of s 129(1)
(a)
of the
National Credit Act 34 of 2005 (the Act), informing the respondent of
his indebtedness. Section 129(1)
(a)
of the Act sets out the
required procedures before a debt may be enforced and reads:
‘
129
Required procedures before debt enforcement
(1) If the
consumer is in default under a credit agreement, the credit provider-
(a)
may
draw the default to the notice of the consumer in writing and propose
that   the consumer refer the credit agreement
to a debt
counsellor, alternative dispute resolution agent, consumer court or
ombud with jurisdiction, with the intent that the
parties resolve any
dispute under the agreement or develop and agree on a plan to bring
the payments under the agreement up to
date’.
[5]
Because the respondent remained silent and was still in arrears, the
appellant on 20 August 2015, caused summons to be issued
in the court
a quo, claiming payment of the sum of R262 331.23 plus interest
at the rate of 8,25 per cent per annum, calculated
daily and
compounded monthly from 25 July 2015 to date of payment. In addition,
the appellant sought an order declaring the immovable
property
executable. It is not disputed that the summons was served on the
respondent’s wife and the return of service reflected
that the
respondent was ‘temporarily absent’. It is also common
cause that the respondent did not defend the action:
[6]
On 28 September 2015, naturally the appellant applied for a default
judgment.  In support of this application, the appellant
filed
an affidavit deposed to by the manager of its Home Loan Division in
which it set out a detailed account of the facts relevant
to the
application. In it, the deponent set out the appellant’s
compliance with s 129(1)
(a)
of the Act, and alleged that the respondent’s required monthly
payment towards his loan was approximately R3 000. It also
stated
that the respondent had fallen into arrears during September 2014 and
that in the light of the total outstanding amount
due by the
respondent as well as his payment history, the deponent did not
believe that there was a possibility that the respondent’s

indebtedness could be discharged within a reasonable time without
having to execute against the respondent’s immovable property.

The deponent also stated that the appellant had no knowledge of the
respondent’s dependents or other occupants of the immovable

property, but that the appellant was aware that it was the
respondent’s primary residence.
[7]
The matter was heard on 8 October 2015 and the aforesaid order was
made on the same day. The respondent did not attend the hearing.
The
judgment is brief and concise. The court a quo remarked that the
application was not served personally on the respondent as
required
in the high court’s practice directive. It also noted that the
amount by which the respondent was in arrears was
very low and had
not been outstanding for a lengthy period of time (only 3 and a half
months). It further concluded:
‘
[T]he
[appellant] seeks judgment for the monetary amount if the court is
not prepared to grant execution. In line with the recommendations
in
Absa Bank Limited v Lekuku
(32700/2013) [2014] ZAGPJH 244 (14 October 2014), judgements should
not be granted in a piecemeal fashion, ie for the monetary
amount
only, postponing the execution’.
[8]
Discontent with the high court’s judgment the appellant sought
leave to appeal. The court a quo granted leave to appeal
to this
court, purportedly in terms of s 17(1)
(a)
(ii)
of the
Superior Courts Act 10 of 2013
. It reasoned, in its judgment
granting leave to appeal, that there were conflicting judgments in
its division and several others,
pertaining to the granting of
foreclosure where personal service of summons was not effected. It
also indicated that there were
disparate views regarding the status
of practice directives, and that views also varied on the question
whether piecemeal judgments
ought to be granted. Consequently, it
granted leave to this court. I should mention at this stage that the
respondent has not opposed
the proceedings throughout. As a result,
this court sought the assistance of the Free State Bar, and we were
assisted,
pro bono
,
by Mr Hefer, for whose help we are grateful.
[9]
It is clear from the appellant’s notice of appeal that it has
taken the view that the effect of the high court’s
judgment is
a refusal of its application for default judgment, and it mounted its
appeal on several grounds. It argued before us,
that the high court
did not possess a general discretion to refuse relief claimed upon a
contract, but that it indeed had a discretion
not to sanction
execution against the respondent’s immovable property –
due to it being his primary residence. The
respondent argued that the
high court was duly entitled to postpone the matter, and that such
postponement did not preclude the
appellant from obtaining a default
judgment at the following hearing. As a result of the view I take on
the question of appealability
to which I now turn, it is not
necessary to deal with these contentions.
Appealability
[10]
As foreshadowed the court a quo postponed the application for default
judgment. My immediate reaction, as indicated, is to
ask whether the
judgment and order is appealable. The appellant argued that it is
appealable on two grounds. Firstly that insofar
as it directs the
appellant to engage the respondent in settlement negotiations, it is
final. Secondly, that the
Superior Courts Act 10 of 2013
has
abandoned the finality of a ‘judgment or order’ as a
prerequisite to appealability. Elaborating on this proposition,
the
appellant contrasted the provisions of
s 20
of the Supreme Court Act
59 of 1959 which referred to a judgment and order being appealable,
and
sections 16
and
20
of the
Superior Courts Act 10 of 2013
, which
only refers to decisions.
Discussion
[11]
The question of appealability of a judgment or order has, under the
Supreme Courts Act, been the subject of a large number
of judgments
over many years. In
Zweni v Minster of Law and Order
1993 (1)
SA 523
(A), Harms AJA (as he then was) summarised the general
proposition pronounced in various judgments as follows (at
531H-533F):
‘
1.
For different reasons it was felt down the ages that decisions of a
'preparatory or procedural character' ought not to be appealable
(per
Schreiner JA in the
Pretoria Garrison
Institutes
case
supra
at 868). One is that, as a general rule, piecemeal consideration of
cases is discouraged. The importance of this factor has somewhat

diminished in recent times
(SA Eagle
Versekeringsmaatskappy Bpk v Harford
[1992] ZASCA 42
;
1992
(2) SA 786
(A)
at 791B-D).
The emphasis is now rather on whether an appeal will necessarily lead
to a more expeditious and cost-effective
final determination of
the main dispute between the parties and, as such, will decisively
contribute to its final solution
(Priday
t/a Pride Paving v Rubin
1992
(3) SA 542
(C)
at 548H-I).
2. In order
to achieve this result, a number of different legislative devices
have been employed from time to time. The requirement
of leave to
appeal is one. Another is to prohibit appeals unless the order
appealed against has the effect of a final judgment.
And the Courts
have, by way of interpretation, held consistently that rulings are
not appealable decisions.
3. The
expression “judgment or order” in s 20(1) of the Act has
a special, almost technical, meaning; all decisions
given in the
course of the resolution of a dispute between litigants are not
“judgments or orders”
(Constantia
Insurance Co Ltd v Nohamba
1986
(3) SA 27
(A)
at 35F-G,
42I).
4. The
word “judgment” has (for present purposes) two meanings,
first the reasoning of the judicial officer (known to
American
jurists as his “opinion”), and second, “the
pronouncement of the disposition” (Garner
A
Dictionary of Modern Legal Usage sv
“Judgments”, “Appellate Court”) upon relief
claimed in a trial action. In the context of s 20(1) we are
concerned
with the latter meaning only. An “order” is said to be a
judgment for relief claimed in application proceedings
(Dickinson
and Another v Fisher's Executors
1914
AD 424
at 427;
Administrator,
Cape, and Another v Ntshwaqela and Others
1990
(1) SA 705
(A)
at
714I-715F). I would venture to suggest that the distinction between
“judgment” and “order” is formalistic
and
outdated; it performs no function and ought to be discarded.
5.
Section 20(1) of the Act no longer draws a distinction between
“judgments or orders” on the one hand and interlocutory

orders on the other. The distinction now is between “judgments
or orders” (which are appealable with leave) and decisions

which are not “judgments or orders”
(Van
Streepen & Germs (Pty) Ltd v Transvaal Provincial
Administration
1987
(4) SA 569
(A)
).
6.
Whether so-called “simple interlocutory orders”, ie
“
all
orders pronounced by the    Court upon matters
incidental to the main dispute preparatory to or during the progress

of the litigation” and not having a final or definitive
effect, are either “judgments or orders” or simply

“rulings” has not yet been decided by this Court (the
Van
Streepen & Germs (Pty) Ltd
case
supra
at
583I-584D).
7.
In determining the nature and effect of a judicial pronouncement,
“not merely the form of the order must be considered
but also,
and predominantly, its effect”
(South
African Motor Industry Employers' Association v South African Bank of
Athens Ltd
1980
(3) SA 91 (A)
at
96H).
8.
A “judgment or order” is a decision which, as a general
principle, has 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
(Van Streepen &
Germs (Pty) Ltd
case
supra
at 586I-587B;
Marsay v Dilley
1992
(3) SA 944 (A)
at 962C-F).
The second is the same as the oft-stated requirement that a decision,
in order to qualify as a judgment or order, must
grant definite and
distinct relief
(Willis Faber Enthoven
(Pty) Ltd v Receiver of Revenue and Another
[1991] ZASCA 163
;
1992
(4) SA 202
(A)
at 214D-G).
9.
The fact that a decision may cause a party an inconvenience or place
him at a disadvantage in the litigation which nothing but
an appeal
can correct, is not taken into account in determining its
appealability
(South
Cape Corporation (Pty) Ltd v Engineering Management Services
(Pty)
Ltd
1977
(3) SA 534 (A)
at 550D-H).
To illustrate: the exclusion of certain evidence may hamper a party
in proving his case. That party may notionally be
able to prove it by
adducing other evidence. In that event an incorrect exclusion would
not necessarily have an effect on the final
result. In deciding upon
the admissibility of evidence a court is not called upon to speculate
upon or divine (with or without
the assistance of the parties) the
ultimate effect of its decision on the course of the litigation.
Should it appear at the conclusion
of the matter that an incorrect
ruling amounted to an irregularity which may have had a material
effect on its outcome, the Court
of appeal may, in adjudicating the
“merits”, set aside the final judgment on that ground
and, in an appropriate case,
remit it back to the trial Court
(Coopers (South Africa) (Pty) Ltd v
Deutsche Gesellschaft Für Schädlingsbekämpfung
MBH
1976
(3) SA 352 (A)
;
Caxton
Ltd and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990
(3) SA 547
(A)
at
566C-D).’
[12]
At 536 A-C of
Zweni
having reviewed further judgments, the
court remarked:
‘
In
the light of these tests and in view of the fact that a ruling is the
antithesis of a judgment or order, it appears to me that,
generally
speaking, a non-appealable decision (ruling) is a decision which is
not final (because the court of first instance is
entitled to alter
it), nor definitive of the rights of the parties nor has the effect
of disposing of at least a substantial portion
of the relief claimed
in the main proceedings’.
[13]
Recently in
Nova Property Group Holdings Limited v Cobbett &
others
[2016] ZASCA 63
;
2016 (4) SA 317
(SCA), this court
expressed the position as follows:
‘
[8]
On the test articulated by this court in
Zweni
v Minister of Law and Order,
the
dismissal of an application to compel discovery, such as by the court
a quo, is not appealable as it is (a) not final in effect
and is open
to alteration by the court below; (b) not definitive of the rights of
the parties; and (c) does not have the effect
of disposing of a
substantial portion of the relief claimed. However, three years later
in
Moch v Nedtravel (Pty) Ltd t/a
American Express Travel Service
1996
(3) SA 1
(A) at 10F-G
,
this
court held that the requirements for appealability laid down in
Zweni
“. . .[d]o not purport to be exhaustive or to cast the relevant
principles in stone”. Almost a decade later,
in
Philani-Ma-Afrika v Mailula & others
2010 (2) SA 573
( SCA) para 20
,
this court considered whether an execution order (which put an
eviction order into operation pending an appeal) was appealable.
It
held the execution order to be appealable, by adapting “the
general principles on the appealability of interim orders
to accord
with the equitable and more context-sensitive standard of the
interests of justice favoured by our Constitution”.
In so
doing, it found the “interests of justice” to be a
paramount consideration in deciding whether a judgment is

appealable.’
[14]
With regards to the question of the interest of the justice, this
court continued:
‘
[9]
It is well established that in deciding what is in the interests of
justice, each case has to be considered in light of its
own facts.
The considerations that serve the interests of justice, such as that
the appeal will traverse matters of significant
importance which pit
the rights of privacy and dignity on the one hand, against those of
access to information and freedom of expression
on the other hand,
certainly loom large before us. However, the most compelling, in my
view, is that a consideration of the merits
of the appeal will
necessarily involve a resolution of the seemingly conflicting
decisions in
La Lucia Sands Share Block
Ltd & others v Barkhan & others
2010
(6) SA 421
(SCA) and
Bayoglu v Manngwe
Mining (Pty)
2012 JDR 1902 (GNP) on the
one hand, and
Basson v On-Point
Engineers (Pty) Ltd
2012 JDR 2126 (GNP)
and
M & G Centre for Investigative
Journalism NPC v CSR-E Loco Supply
case
number 23477/2013 (8 November 2013) on the other.’
[15]
I agree with the authors DE van Loggerenberg and E Bertelsmann
Erasmus: Superior
Court Practice
vol
1 2016 A2-43 (looseleaf), where they say that reference to
‘decisions’ in
s 16(1)
of the
Superior Courts Act
still
corresponds with the test articulated in
Zweni
,
although the three attributes set out therein are not exhaustive. The
appellant’s contention to the effect that reference
to
‘decision’ has changed the requirements for appellabilty,
is thus misplaced. Counsel for the appellant was in any
event unable
to refer us to any authority in this regard. If he was correct, this
court would certainly be inundated with appeals.
[16]
Accordingly, we would follow the approach of this court in
Absa
Bank Limited v Mkhize
and two similar matters
[2013] ZASCA
139
;
2014 (5) SA 16
(SCA) and
Absa Bank v Van Rensburg &
another
[2014] ZASCA 34
;
2014 (4) SA 626
(SCA). In
Mkhize
in a majority judgment, it was held that an order for postponement in
the circumstances of these cases amounted to no more than
a
direction, from the high court, before the main action could be
entered into, as to the manner in which the matter should proceed.

What had occurred in that matter was that, not being satisfied with
the service effected by
Absa
, the court had directed that
certain further steps be taken. It did not amount to a refusal of
default judgment, nor did it directly
bear upon or dispose of any of
the issues in the main action, and could therefore not be said to be
tantamount to a dismissal of
Absa’s
action. It follows
therefore that, as the order was not one having the effect of a final
judgment, the court lacked jurisdiction
to entertain the appeal. The
appeal was accordingly struck from the roll with costs. The court
stated that:
‘
[63]
The order does not amount to a refusal of
default judgment, nor does it directly bear upon or dispose of any of
the issues in the
main action, it thus cannot be said that it is
tantamount to a dismissal of Absa's action (contra
Durban
City Council v Petersen
1970 (1) SA 720
(N) at 723). It may be that the order of the high court causes Absa
some inconvenience but as Harms AJA, with reference to
South
Cape Corporation
supra, pointed out
(
Zweni
at
533B – C): “
The
fact that a decision may cause a party an inconvenience or place him
at a disadvantage in the litigation which nothing but an
appeal can
correct, is not taken into account in determining its
appealability.’’
[64]
Accepting that this order is
appealable could result in a situation where virtually every refusal
to enter default judgment, including
those for want of proper
service, would be appealable. That “would indeed open the door
to the fractional disposal of actions
and the piecemeal hearing of
appeals” (
Levco Investments (Pty)
Ltd v Standard Bank of SA Ltd
1983
(4) SA 921
(A)
at 928H). In
seeking and obtaining leave to appeal to this court, no consideration
was given by Absa or the high court as to whether
the order was
indeed appealable. Thus the fact that the high court granted leave
carries the matter no further, since its power
to do so arises only
in respect of “a judgment or order” within the meaning of
that expression. In truth the matter
was approached as if an appeal
lies against the reasons for judgment. It does not. Rather, an appeal
lies against the substantive
order made by a court. (
Western
Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd
1948
(3) SA 353
(A)
at 355.)’
(See
also
Jacobs &
another v Baumann NO
[2009]
ZASCA 43
;
2009 (5) SA 432
para 9).
[17]
In the current appeal, it is clear, upon a perusal of the notice of
appeal that the appellant’s premise is that the court
a quo
refused the default judgment. For instance, one of its grounds of
appeal is that ‘the court cannot refuse to give effect
to the
implementation of contractual provisions on the basis that their
provisions appear to the court unreasonable and unfair.’
This
is an erroneous way of interpreting the order, which is very clear,
and it must be the reason why the appellant’s heads
of argument
did not comprehensively deal with the issue of appealability. The
high court granting leave to appeal could not have
assisted matters.
Although the respondent’s counsel, Mr Hefer, conceded that the
matter is appealable, he however stated
that the concession was not
made on the strength of the appellant’s submission, but because
of the ambit of the high court’s
granting of leave to appeal.
As stated, the court a quo granted leave to appeal so that the issue
of conflicting judgments could
be resolved by this court. None of
these conflicting judgments were at issue in the default application
and were also not at issue
before us, and neither were they placed
before us. In fact, counsel for the appellant submitted that the
appellant had no issue
with the practice directive. The appellant
only contended that the court a quo did not have the power,
mero
motu
, to postpone
the default judgment application. It argued that the court a quo was
enjoined to uphold the terms of the contract
between the parties and
accordingly grant the appellant relief on the contract if a case for
relief is made out. As mentioned,
it is not necessary to pronounce
upon these matters.
[18]
It follows therefore that on the point of appealability the order of
the court a quo is not a judgment or order having the
effect of a
final judgment. Accordingly, I make the following order.
‘
The
appeal is struck from the roll for lack of jurisdiction with no order
as to costs.’
_____________________
J B Z Shongwe
Judge of Appeal
Willis JA (dissenting):
[19]
I have had the privilege of reading the judgment prepared by my
brother Shongwe JA. I disagree with him that the judgment is
not
appealable.  Section 16(1) of the Superior Courts Act 10 of 2013
(the
Superior Courts Act) provides
that an appeal lies ‘against
any decision of a Division as a court of first instance.’
[1]
The corresponding provision of the predecessor to the
Superior Courts
Act was
20(1) of the Supreme Court Act 59 of 1959 (the old Supreme
Court Act), which provided that an appeal would lie against a
‘judgment
or order’.
[20]
It is a trite principle of our law that Parliament is presumed to
have been acquainted with the interpretation of earlier legislation

by the court, especially when there has been a settled and
well-recognised judicial interpretation before the relevant
legislation
was passed.
[2]
As the judgment of Shongwe JA makes clear, there has been no dearth
of authority dealing with the meaning of ‘judgment or
order’
within the context of s 20(1) of the old Supreme Court Act.
[21]
To my mind, it is obvious that there is not only a difference in
meaning between a ‘decision’ of a court on the
one hand
and its ‘judgment or order’ on the other but also the
legislature, against the trite background of principle
to which I
have referred, must deliberately have chosen the word ‘decision’
in the new Act to make a break with the
interpretation of ‘judgment
or order’ under the old.
[22]
Although in
Khumalo
& others v Holomisa
,
[3]
the Constitutional Court was dealing with a context somewhat
different from the present (the word ‘decision’ in its

Rule 18, contrasted  with ‘judgment or order’ in s
20(1) of the old Supreme Court Act),  the unanimous judgment

thereof, delivered by O’Regan J, gives a strong indication that
it would not be appropriate to give a meaning to ‘decision’

of a high court that was equivalent to that given to ‘judgment
or order.’
[4]
[23]
Ordinary, everyday English usage gives a ‘decision’ by a
court a much broader meaning than a ‘judgment or
order’
and , in my opinion, self-evidently may include a decision of the
kind made by Weiner J. Not only did she consider
her decision to be
appealable but so also did counsel for both the appellant and the
respondent. This is also an entirely sensible
interpretation at which
to arrive in the circumstances.
[5]
That a decision by the high court may be appealable does not mean
that, willy-nilly, every decision is deserving of an appeal or
that
the general rules against interlocutory, interim and procedural
rulings or orders being appealable should be jettisoned.

Besides, we already have a viable test for appealability: ‘the
interests of justice’.
[6]
[24]
The National Credit Act 34 of 2005 (the NCA) has not escaped
criticism but there can be no doubt that its purposes and provisions

have required that the courts look at the enforcement of ordinary
consumers’ debt in new ways.
[7]
Weiner J was dealing with a conundrum that frequently arises in the
high court: how best to deal with a situation that is governed
by the
NCA in circumstances where to give judgment would not seem to be in
the interests of justice but, correspondingly, to dismiss
a credit
provider’s claim would also fall short of justice’s
exacting demands?  The judge decided, in effect,
to postpone the
matter for a reasonable period, to allow for the possibility that the
parties could make some sort of arrangement
or reach a compromise and
to call for more information. This is a situation that cries out not
only for guidance from this court
but also the kind of uniformity of
practice throughout the land that a judgment by this court, on appeal
to it, would necessarily
give. Accordingly, the interests of justice
require that the merits of her decision be considered in this appeal.
[25]
The judge exercised a discretion. The Constitutional Court’s
judgment in
National
Coalition for Gay and Lesbian Equality & others v the Minister of
Home Affairs
&
others
has made it
clear that an appeal court will not interfere with a lower court’s
discretion unless that court was influenced
by wrong principles or a
misdirection of the facts or if that court reached a decision the
result of which could not reasonably
have been made by the court
properly directing itself to all the relevant facts and
principles.
[8]
No such finding, adverse to the high court, can be made here. I
cannot fault the judge’s exercise of her discretion. On the

contrary, I consider it to have been exemplary. By way of contrast,
an illustration of the appealability of orders of this kind
may be
found by reference to the following example: suppose that a judge had
postponed the matter for so long a period of time
as to visit a
serious injustice upon a credit provider. Would it be correct to
refuse to hear an appeal, for the reasons given
by Shongwe JA? I
think not.
[26]
In my opinion, the correct order would have been to dismiss the
appeal. As counsel for the respondent acted
pro
bono
, no order as
to costs would be appropriate.
_____________
N P Willis
Judge
of Appeal
Appearances
For
the Appellant: H M Viljoen
Instructed by:
Charl Cilliers Inc. Attorneys,
Johannesburg;
Rossouws Attorneys, Bloemfontein.
For
the Respondent: J F Hefer
Instructed by:
Free State Bar of Advocates,
Bloemfontein.
[1]
The provisions of s 16(1
)(a)
(i)
of the
Superior Courts Act are
relevant, as the court a quo
consisted of a single judge.
[2]
See for example
Fundstrust (Pty)
Ltd (in Liquidation) v Van Deventer
1997 (1)
SA 710
(A) at 732A-B;
Commissioner for Inland
Revenue v Estate Hulett
[1990] ZASCA 23
;
1990 (2) SA 786
(A)
at 788A-C and
Krause v Commissioner for
Inland Revenue
1929 AD 286
at 297.
[3]
Khumalo & others v
Holomisa
2002
(5) SA 401 (CC).
[4]
Paras 7- 8.
[5]
See for example
Ekurhuleni
Metropolitan Municipality v Germiston Municipal Retirement Fund
[2009] ZASCA 154
;
2010 (2) SA 498
(SCA) para
13;
Natal Joint Municipal Pension Fund v
Emdumeni Municipality
[2012] ZASCA 13
;
2012
(4) SA 593
(SCA) para 18
; Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013] ZASCA 176
;
2014 (2) SA 494
(SCA) paras 10,12 & 19;
North
East Finance (Pty) Ltd v Standard Bank of South Africa Ltd
[2013] ZASCA 76
;
2013 (5) SA 1
(SCA)
para 25.
and
Firstrand
Bank Ltd v Land and Agricultural Development Bank of South Africa
[2014] ZASCA 115
;
2015 (1) SA 38
(SCA) para
27.
[6]
See for example
Nova
Property Group Holdings Ltd & others v Cobbett & another
[2016] ZASCA 63
;
2016 (4) SA 317
(SCA) para 8;
Philani-Ma-Afrika
& others v Mailulula & others
[2009] ZASCA 115
; 2010 (2) 573 (SCA);
S
v Western Areas Ltd & others
[2005] ZASCA 31
;
2005 (5) SA 214
(SCA) paras 25-26.  See also
Khumalo &
others v Holomisa
(above)
para 8.
[7]
See for example
Nkata
v Firstrand Bank Ltd
[2016] ZACC 12
;
2016 (4) SA 257
(CC) paras 96-98 and the cases
therein referred to.
[8]
National Coalition for Gay and Lesbian Equality &
others v Minister of Home Affairs
&
others
2000 (2) SA 1
(CC) para 11.