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[2020] ZAGPJHC 301
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Dlodlo v Nkala and Another (16715/2018) [2020] ZAGPJHC 301 (18 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
number : 16715/2018
IN
THE MATTER BETWEEN:
MOLEFE
RUFARO MTHULISI DLODLO
Applicant
and
SUKOLUHLE
THANDO NKALA
First Respondent
HERBERT
NKALA
Second Respondent
JUDGMENT
BHOOLA
AJ:
Introduction
[1]
The applicant seeks leave to appeal the whole order of this court
granted on 12 August
2020. Reasons for the order were provided on 28
August 2020. The notice of application for leave to appeal was filed
on 18 August
2020 and was accompanied by the founding affidavit of
the applicant. The order reads as follows:
1. The application is
enrolled as an urgent application, the non-compliance with the Rules
is condoned and the forms, service and
ordinary time periods provided
for in the Uniform Rules of Court are dispensed with.
2. The variation
application under the above case number (presently provisionally set
down for 17 August 2020) is stayed pending
the outcome of the:
2.1. stay application
launched by the Applicants on 25 May 2020 under the above case number
(attached to the founding affidavit
as annexure “A”);
2.2. rule 47(3)
application launched by the Applicants on 21 July 2020 under the
above case number (attached to the founding affidavit
as annexure
“B”); and
2.3. the application
to compel heads of argument and practice note launched by the
Respondent on 20 May 2020 under the above case
number (attached to
the founding affidavit as annexure “D”).
3. The Respondent is
to pay the costs of this application.
[2]
The respondents (who are the applicants in the Stay of the variation
application and
the Rule 47(3) application) brought an application to
strike out the founding affidavit attached to the notice of
application for
leave to appeal. They submit that the founding
affidavit is an irregular proceeding and seeks to place evidence
before this court
in relation to the main application ("the
variation application") and to which the respondents have not
had an opportunity
to answer. The respondents sought attorney and
client costs. The applicant persisted with his submission that his
founding affidavit
was relevant. After hearing both Ms. Blumenthal,
appearing for the respondents, and the applicant, I granted an order
striking
out the founding affidavit with costs payable on the
attorney and client scale. I proceeded to hear and determine the
appeal based
on the grounds of appeal set out in the notice of
application for leave to appeal.
Grounds
of appeal
[3]
It is trite that
section 17(1)(a)
of the
Superior Courts Act 10 of
2013
sets out the test for granting leave to appeal as being whether
the appeal would have reasonable prospects of success, or whether
there is some other compelling reason why the appeal should be heard.
[4]
The applicant raises various procedural issues related to the late
filing of his answering
affidavit (filed on the morning of the urgent
application and after the order had already been granted) and
technical problems
experienced as a result of which he was not
present in the videoconference when the urgent application was heard.
The substantive
grounds for the appeal are in essence that:
4.1
The court erred dealing with the
matter as an unopposed matter when he had filed a notice of intention
to oppose (notwithstanding
the absence of an answering affidavit);
4.2
The court erred in staying the (main) variation application when he
has brought a variation
application pursuant to the
actio communi
dividundo
judgment/order of 22 January 2020 that allows for the
order’s variation.
4.3
The court erred in staying the (main) variation application pending
the outcome of both
the Stay of Proceedings Application and the
Rule
47(3)
Application brought by the Respondents.
4.4
The court erred in burdening him with the costs of the urgent
application.
[5]
The applicant submitted that the appeal has reasonable prospects of
success on various
grounds including that the court should
inter
alia
have
mero motu
:
"3.1
Enquired as to what/which order was the subject of the (main)
variation application lest an undesirable
situation –
prejudicial curtailment of standing court ordered rights/process -
was being birthed,
3.2
Appraised herself of all three (3) applications that have been
launched by the applicant lest her order would, result in prejudice
to the applicant, as well as different outcomes."
[6]
Prior to raising these grounds of appeal the applicant had also
sought to appeal the
court's finding that application by the
respondents was urgent, but following the submissions on legal
authorities by Ms. Blumenthal,
subsequently conceded that such an
order was not appealable.
[7]
Ms Blumenthal raised
an
in
limine
point that the order is not
appealable because it is not definitive of the rights of the parties
and not dispositive of at least
a substantial portion of the relief
claimed in the main proceedings. In this regard reliance was placed
on what was said by the
Supreme Court of Appeal in,
inter
alia, Zweni v Minister of Law and Order
1993
(1) SA 523
(A) at 536 B-C. This approach was confirmed by the Supreme
Court of Appeal in
Andrew Lionel
Phillips v South African Reserve Bank & Others
(221/11)
[2012] ZASCA 38
(29 March 2012). The court held as follows :
"[26]
The question of appealability in a case such as this, where a party
seeks to attack on appeal an order made in judicial
proceedings which
have not yet terminated, was discussed by Nugent JA in a judgment
with which the other members of the court concurred
in NDPP v
King 2010 (2) SACR (SCA) at 166e–167c (paras 50–51),
where he said the following:
‘
There
will be few orders that significantly affect the rights of the
parties concerned that will not be susceptible to correction
by a
court of appeal. In Liberty Life Association of Africa Ltd v
Niselow (in another court), which was cited with approval
by
this court in Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA), I observed that when the question arises whether an order is
appealable what is most often being asked is not whether the
order is
capable of being corrected, but rather whether it should be corrected
in isolation and before the proceedings have run
their full course. I
said that two competing principles come into play when that question
is asked. On the one hand justice would
seem to require that every
decision of a lower court should be capable not only of being
corrected but of being corrected forthwith
and before it has any
consequences, while on the other hand the delay and inconvenience
that might result if every decision is
subject to appeal as and when
it is made might itself defeat the attainment of justice."
[8]
Accordingly, Ms Blumental submitted that the order does not dispose
of the dispute
between the parties and it is clear from the
authorities that the court should not grant such an order in
isolation where there
are still issues to be determined. The order is
of an interlocutory nature and it is not determinative of any of the
rights of
the parties.
[9]
The applicant submitted that the effect of the order is to make a
determination that
the variation application is stopped and this is
in fact final and effective. It moreover removes his variation
application from
the process and leaves it as a stand-alone
application, leaving him to oppose two applications which should be
dealt with together
with the variation application, and this has
caused prejudice to him.
[10]
I am of the view that the submissions made by counsel on the
authorities should prevail. The
applicant's rights in respect of the
variation application are not prejudiced by the granting of the
urgent relief sought. In these
circumstances I do not consider it
necessary to deal with the merits of the application.
[11]
The applicant was invited to make submissions as to why attorney and
client costs should not
be awarded in this application. The
applicant's submissions were to the effect that he cannot afford to
litigate and has expended
all his resources conducting litigation in
this longstanding dispute.
Order
[12]
In the result, I make the following order:
12.1
The founding affidavit to the notice of application for leave to
appeal is struck out.
12.2
The applicant is to pay the costs of the application to strike out on
the attorney and client scale.
12.3
The application for leave to appeal is dismissed.
12.4
The applicant is to pay the costs of this application on the attorney
and client scale.
______________________________
U. BHOOLA
Acting Judge of the High
Court of South Africa
Gauteng
Local Division, Johannesburg
Date
of hearing: 16 September. Heard by videoconference as per the
Consolidated Directive of the Judge President of 11 May as extended
to 15 October 2020.
Date
of judgment: 18 September 2020. This judgment was handed down
electronically by circulation to the parties’ legal
representatives
by email, by being uploaded onto the CaseLines
digital system of the GLD and by release to SAFLII. The date and time
for hand-down
is deemed to be 10:00 on 18 September 2020.
Appearance:
Applicant:
Self represented.
Respondents:
Adv R Blumenthal
Instructed
by: Ramsay Webber Inc.