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[2015] ZASCA 55
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Atholl Developments (pty) Ltd v Valuation Appeal Board for the City of Johannesburg and Another (209/2014) [2015] ZASCA 55 (30 March 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 209/2014
Non
reportable
In
the matter between:
ATHOLL
DEVELOPMENTS (PTY)
LTD
...................................................................
APPELLANT
and
THE
VALUATION APPEAL BOARD FOR
THE
........................................
FIRST
RESPONDENT
THE
CITY OF JOHANNESBURG
CITY
OF JOHANNESBURG METROPOLITAN
..................................
SECOND
RESPONDENT
MUNICIPALITY
Neutral citation:
Atholl Developments v The Valuation Appeal Board for the City
of Johannesburg
[2015] ZASCA 55
(30 March 2015)
Coram:
Ponnan,
Willis, Saldulker JJA and Van Der Merwe and Meyer AJJA
Heard: 27
February 2015
Delivered:
30
March 2015
Summary:
Appeal
– Appealability - appeal does not lie against the reasons for
an order of court - matter struck off the roll
ORDER
On
appeal from:
Gauteng Local Division, Johannesburg (Vally J
sitting as court of first instance).
The
matter is struck off the roll with costs, including the costs of two
counsel.
JUDGMENT
Saldulker
JA (Ponnan, Willis JJA and Van Der Merwe and Meyer AJJA Concurring):
[1]
The appellant, Atholl Developments (Pty) Ltd (Atholl), is the lessee,
in terms of a 99 year registered long lease (the lease),
of Erven 482
and 483, Illovo Extention 4, Johannesburg (the property). The
property, which is located opposite the Wanderers Cricket
Stadium, is
owned by the Wanderers Club. Pursuant to the lease the appellant
constructed a hotel on the property and has for some
time now traded
as the Protea Hotel Wanderers (Protea). The appellant is responsible
for the payment of the rates levied on the
property. Aggrieved by a
valuation, and the assessment of rates pursuant to that valuation,
which was levied by the second respondent,
the City of Johannesburg
Metropolitan Municipality (the City) in respect of the property, the
appellant appealed to the first respondent,
the Valuation Appeal
Board (the Appeal Board).
[2]
The Appeal Board is a statutory body established in terms of s 56(1)
of the Local Government: Municipal Property Rates Act 6
of 2004 (the
MPRA) to hear and decide reviews and appeals against the decision of
a municipal valuer. The effect of the Appeal
Board’s decision
was to overturn the valuation imposed by the City. On 13 June 2012,
the Appeal Board handed down the reasons
for its decision. The Appeal
Board determined that the combined value of the leased property was
approximately R308 million. Not
persuaded by the reasons of the
Appeal Board for its decision, the appellant launched an application
in the Gauteng Local Division,
Johannesburg to review and set aside
that decision.
[3]
The appellant sought the following order:
‘
1.
Reviewing and setting aside the following decisions of the first
respondent [the Appeal Board], delivered on 13 June 2012 and
reasoned
on 12 July 2012:
1.1 The decision to
value the registered lease over stand 482 Illovo Extension 4,
Johannesburg in an amount of R130 390.000
(One Hundred and
Thirty Million, Three Hundred and Ninety Thousand Rand); and
1.2 The decision to
value the registered lease over stand 483 Illovo Extension 4,
Johannesburg in an amount of R161 610 000.00
(One hundred
and Sixty One Million, Six Hundred and Ten Thousand Rand).
. . . .
3. In the
alternative to paragraph 2 above, remitting the matter to the first
respondent for the appeal against the decision of
the municipal
valuer, communicated to the applicant on 17 February 2012, to be
reconsidered In the light of this Court’s
judgment.
4.
Ordering the first respondent [the Appeal Board] and second
respondent [City] to pay the applicant’s [Atholl’s]
costs, jointly and severally, the one paying the other to be
absolved.’
The
application succeeded with costs before Vally J who set aside the
decision of the Appeal Board and remitted the matter to it
for
reconsideration of the objection of the appellant.
[4]
That notwithstanding the appellant sought and
obtained leave from Vally J to appeal to this court.
In its
notice of appeal the appellant intimated that its appeal lay only in
respect of certain paragraphs of the judgment, namely
32, 40, 46, 47
and 49. Prior to the hearing of the matter the registrar of this
court directed correspondence to the parties at
the instance of the
presiding judge, requesting the parties to file additional heads of
argument to address whether: (a) an appeal
properly so-called served
before this court inasmuch as, on the face of it, the appeal appeared
to be directed at the reasons for
judgment as opposed to the
substantive order of the court below; (b) the judgment sought on
appeal will have any practical effect
or result; and (c) entertaining
the appeal now opened the door to the fractional disposal of matters
and the piecemeal hearing
of appeals. In response, the appellant
filed supplementary heads of argument in which it indicated that it
was persisting with
the appeal because Vally J had found against it
on two main grounds, which, so it was suggested: (a) constitute final
and binding
findings as between the parties and would be binding on
the Appeal Board; and (b) an appeal lies against those findings. Each
of
those contentions will be considered in turn.
As
to a
:
[5]
It is so that usually when a court reviews
and sets aside a decision of an administrative body it almost always
refers the matter
back to that body to enable it to reconsider the
issue and make a new decision (per Heher JA,
Gauteng
Gambling Board v Silverstar Development Ltd & another
2005
(4) SA 67
(SCA) para 1). In circumstances such as those it would
ordinarily be prudent for a court not to expressly itself too firmly
on
any matter that has been remitted for a fresh decision to the
decision maker. For, to do so may well be to fetter
the
decision of the decision maker called upon to reconsider the matter.
And whilst Vally J may well have ranged beyond that narrow
remit in
this case, I do not believe that anything that was said by him will
either have the effect of unnecessarily fettering
the Appeal Board in
its later decision or will in truth be binding on it in its
reconsideration of the matter.
[6]
In my view the appellant’s rights remain unaffected. The views
expressed by Vally J are not automatically binding on the
appellant,
which will be free to reconsider the matter (
True Motives 84 (Pty)
Ltd v Mahdi and Another
2009 (4) SA 153
(SCA)). As Cameron JA put
it in
True Motives
at para 103: ‘the most authoritative
and illuminating exposition in our law of the distinction between
what is binding in
a previous decision, and what is stated “by
the way”, is that of Schreiner JA in
Pretoria
City
Council v Levinson
.’ In
Pretoria City Council v
Levinson
1949 (3) SA 305
at 317, Schreiner JA stated:
‘
(W)here
a single judgment is in question, the reasons given in the judgment,
properly interpreted, do constitute the
ratio
decidendi
,
originating or following a legal rule, provided
(a)
that they
do not appear from the judgment itself to have been merely subsidiary
reasons for following the main principle or principles,
(b)
that they were not merely a course of reasoning of the facts . . .
and
(c)
which may cover
(a)
) that they were necessary
for the decision, not in the sense that it could not be reached along
other lines, but in the sense that
along the lines actually followed
in the judgment the result would have been different but for the
reasons.’
[7]
Vally J remitted the matter to the Appeal Board. That order has
pivotal significance in applying Schreiner JA’s distinction.
Whatever Vally J said in the offending paragraphs was merely
incidental to and in no way formed part of the
ratio
of his
judgment. This means whatever was said in those paragraphs can in no
way be binding on the Appeal Board.
As
to b:
[8]
It will be immediately apparent that when one
compares the relief sought to that granted, the appellant was wholly
successful before
Vally J.
In
Administrator, Cape &
another v Ntshwaqela & others
1990 (1) SA 705
(A) at
714I-715D, this Court said:
‘
In
legal usage the word
judgment
has at least two meanings: a
general meaning and a technical meaning. In the general sense it is
the English equivalent of
the American
opinion
, which is
“(t)he statement by a Judge or court of the decision reached in
regard to a cause tried or argued before them,
expounding the law as
applied to the case, and detailing the reasons upon which the
judgment is based”. (
Black’s Law Dictionary
5
th
ed
sv
opinion.) In its technical sense it is the equivalent of
order
…
When
a judgment has been delivered in Court, whether in writing or orally,
the Registrar draws up a formal order of Court which
is embodied in a
separate document signed by him. It is a copy of this which is served
by the Sheriff. There can be an appeal only
against the substantive
order made by the Court, not against the reasons for judgment.’
[9]
In the oft-quoted judgment by Centlivres CJ in
Western
Johannesburg Rent Board & another v Ursula Mansion (Pty) Ltd
1948 (3) SA 353
(A) at 354, the following is said:
‘
This
court
mero motu
drew counsel’s attention to the fact that the so-called notice
of appeal was not a notice of appeal at all, for it does not
purport
to note an appeal against any part of the order made by the court
a
quo
. Even apart from sub-rules (2) and
(3) of Rule 6 of this Court, it is clear that an appeal can be noted
not against the reasons
for judgment but against the substantive
order made by a Court.’
[10]
More recently, i
n
Tecmed
Africa (Pty) Ltd v Minister of Health & another
[2012] 4 All SA 149
(SCA), Ponnan JA put it thus (paras 16-17):
‘
[16]
Before us, Counsel was constrained to concede that securing a licence
for the use of the machine by Cancare at the Durban Oncology
Centre
had indeed become academic. That notwithstanding, so he urged upon
us, the appeal should nonetheless be entertained. His
argument,
consistent with the approach adopted in the affidavit filed on behalf
of Tecmed on this aspect of the case, amounted
to this: the approach
and reasoning of the Full Court to the disputed factual issues on the
papers would stand and were it not
to be set aside by this court,
would serve as an insurmountable obstacle in due course to the
successful prosecution of its envisaged
civil claim against the
Minister. In my view, for the reasons that follow Counsel’s
submission lacks merit.
[17]
First, appeals do not lie against the reasons for judgment but
against the substantive order of a lower court. Thus, whether
or not
a Court of Appeal agrees with a lower court’s reasoning would
be of no consequence if the result would remain the
same.’
[11]
As the appeal is directed at the reasons as opposed to the
substantive order of the court below, there is no proper appeal
before us.
[1]
It must follow that the appeal must be struck off the roll.
[12]
I turn to consider the question of costs. There can be no dispute
that the first respondent was brought to court by the appellant
as an
unwilling party. When the application for leave to appeal was set
down before Vally J, the first respondent did not appear
in court to
oppose the application, in the belief that an appeal did not lie
against the reasoning of a court. Vally J granted
the appellant leave
to appeal on 5 March 2014. No reasons were furnished as to why he
believed the matter to be appealable. At
the very first opportunity,
on 1 June 2014, the first respondent’s attorney addressed a
letter to the appellant, raising
the question of appealability. This
letter reads:
‘
At
the outset we wish to adv
ise
that we are of
the op
i
nion
that your cl
i
ent
is
not
entitled to an appeal
,
and our
understanding
of Rule 49 of
the un
i
form
rules
of
Court
is
that
an Applicant can on
l
y
appeal
the
judgment
or
order
,
and
never the reasons for the judge reaching
his
or her
conclusion
.
In
this matter the order as granted was the order as prayed for by the
Applicant and as such it is our contention that the Applicant
would
not be entitled to proceed
with
this
appea
l.
It
is
on
this
bas
i
s
that our clients never opposed
the
Appl
i
cation
for Leave
to
Appea
l
in
front
of Judge Va
lly,
and we are
su
r
prised
that leave to appeal was
indeed
g
r
anted
.
In this regard
we refer you to Rule 49(4) and to the discussion thereon contained on
pages 356 and
357
of Erasmus
:
Superior
Court
Practice
:
“
An
appeal can be noted only aga
in
st
the judgment
itself
(i
.
e
.,
the
substantive order), not
against the
reasons for judgment and
a
notice
which
purport
to appeal aga
in
st
the reasons for judgment
is
bad
".
In
light of the above it is our contention that leave to appeal should
not have been granted and that this
i
s
a
matter
that
the
Supreme
Court of Appeal cannot enterta
in.’
The
appellant had thus been alerted to the point by its opponent at a
fairly early stage and even after the issue had been raised
by the
Registrar of this court it chose to persist with the appeal. The
first respondent was thus compelled to appear before this
court.
[2]
It follows that the appellant should bear those costs, which it was
agreed should include those of two counsel.
[13]
In the result the matter
is struck off the roll with costs,
including the costs of two counsel.
_________________
H
Saldulker
Judge
of Appeal
APPEARANCES:
For
the Appellant: A Subel SC (with him A Friedman)
Instructed
by:
Shapiro-
Aarons Inc, Johannesburg
Matsepes
Inc, Bloemfontein
For the First
Respondent: M M Rip SC (with him J Vorster)
Instructed by:
Ivan Pauw &
Partners, Pretoria
Phatshoane Henney
Attorneys, Bloemfontein
[1]
Rule
49(4) of the Uniform Rules of Court reads: ‘Every notice of
appeal and cross-appeal shall state - (
a
)
what part of the judgment or order is appealed against; and (
b
)
the particular respect in which the variation of judgment or order
is sought.’
[2]
Deutsches
Altersheim Zu Pretoria v Dohmen & others
[2015]
ZASCA 3
paras 11 – 12.