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[2021] ZAGPJHC 521
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Nkala and Another v Dlodlo In re: Dlodlo v Nkala and Another (16715/2018) [2021] ZAGPJHC 521 (9 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 16715/2018
REPORTABLE:
NO
OF
INTEREST
TO
OTHER
JUDGES: NO
REVISED
9
April 2021
In
the matter between:
SUKOLUHLE
THANDO NKALA
First Applicant
HERBERT
NKALA
Second Applicant
and
MOLEFE
RUFARO MTHULISI DLODLO
Respondent
In
re:
MOLEFE
RUFARO MTHULISI DLODLO
Applicant
and
SUKOLUHLE
THANDO NKALA
First Respondent
HERBERT
NKALA
Second Respondent
JUDGMENT
ROME,
AJ:
Introduction:
1.
This
is
an
application
for
leave
to
appeal
against my judgment of 19 February 2021. For convenience I refer to
the applicants for leave (who were the applicants in
the
stay application) as “the applicants”
and to the respondent in the application for leave to appeal (who was
the respondent
in the stay application) as “the respondent”.
2.
The applicants’ notice for leave to
appeal is dated 12 March 2021. The notice of
application is succinct and contains two
grounds of appeal.
3.
The first ground is that the judgment
contains an error of fact. The error is stated
to be that I mistakenly found that it was
common cause that none of the various
cost
orders which the applicants had obtained as against the respondent
had been taxed to finality. In other words, they had not
been finally
taxed in the sense
that
the taxing master had not provided his allocatur in respect of any
Bill of costs
that
the applicants had prepared.
4.
The second ground of appeal is that the
judgment contains an error of law in that it failed to consider or
deal with a decision,
referred to by the applicants in their heads,
in which a stay application arising out of an adverse costs order was
granted in
circumstances where there had not yet been a taxation of
the bill of costs.
5.
Before dealing with both grounds of appeal,
it is necessary to have regard to basic
principles governing applications for leave
to appeal and the significance of
whether
the order appealed against is interlocutory or final in effect.
6.
The principles governing the adjudication
of whether leave to appeal ought to be granted are both clear and
settled. There are several
judgments which set out these principles.
Before turning to these principles, it is helpful to deal with the
issue of whether the
order sought to be appealed against is an
interlocutory order
or
of a final nature.
7.
The unreported judgment of Sardiwala J in
Public Protector of the Republic of
South Africa v Minister of Water and Sanitation and Another (2019)
ZAGPPHC 645
(16
October 2019)
is of great assistance on
this aspect of the present application.
In
what follows I refer to certain of the cases cited in that judgment.
8.
The
locus
classicus
on the issue of whether an
order is interim/interlocutory or final
in
nature is the case of
Cape Corp. Pty
Limited v Engineering Management Services Pty Limited
1977 (3) SA 543
(A)
. In that case Corbett J (as he then
was)
explained
the distinction (at 549 G) in the following terms:
“
In
a wide and general sense, the term ‘interlocutory’ refers
to all orders by the court, upon matters incidental to
the dispute,
preparatory to, or during the progress
of, the litigation. But orders of
this kind are divided into two classes: (i) those which
have a final effect on the
proceedings; and (ii) those, known as ‘simple (or purely)
interlocutory orders’ or
‘interlocutory orders proper’ which do not”.
9.
As stated in
Atkin
v Botes 2011 (6) (SA) 231 (SCA) (esp. at 234B-C)
an
interim or
interlocutory
order is appealable if it is final in effect and not susceptible to
alteration by the court of first instance.
10.
The
distinction
between
final
and
interlocutory
orders
remains
important
notwithstanding
that under the Superior Courts Act ‘
the
overarching role of interests of justice has relativised in
determining the final effect of the order… in determining
appealability
”.
[1]
11.
As was explained in
International
Trade Administration Commission v Scaw South
Africa Pty Limited
2012 (4) SA 618
(CC) (at 639F)
there are important
policy considerations underlying the traditional distinction between
the appealability of final orders and the
(non) appealability of
interlocutory orders; these considerations
are the following:
“
Courts
are
loath
to
encourage
wasteful
use
of
judicial
resources
and
of
legal
costs by
allowing
appeals
against
interim
orders
that
have
no
final
effect
and
that are susceptible to
reconsideration by a court a quo when final relief is
determined. Also allowing appeals at
an interlocutory stage would lead to piecemeal
adjudication and delay the final
determination of disputes
.”
12.
The question of whether the order is final
in effect in that it disposes of a substantial
portion of the dispute between the
litigants, remains relevant in the adjudication of
an application for leave to appeal. The
Supreme Court of Appeal and the Constitutional Court have explained
the application of the
interests of justice requirement by reference
to considerations of whether the order sought to be appealed against
has immediate
and substantial effect, including whether the harm
that flows from the order may be serious
immediate, ongoing and irreparable. (See
the authorities cited at paragraphs 4 -12
in
Public Protector of the Republic of
South
Africa
v Minister of Water and Sanitation and Another
,
s
upra
)
13.
The applicants did not advance any
substantive argument regarding the question of whether, albeit that
the order granted may be
of an interlocutory nature, it is
nonetheless in the interests of justice, by having regard to the
above-mentioned considerations,
that leave to appeal should be
granted.
14.
The notice of application for leave to
appeal does not contain any averments as to
why (assuming the order is interlocutory in
nature), it would be in the interests of justice for leave to appeal
to be granted.
In argument the applicants’ counsel focused his
contentions on a submission that because the application for a stay
had been
dismissed, the judgment is final in effect. The contention
was that the dismissal of the stay application was akin to the
upholding
of an exception and that
its
effect was final and res judicata. In essence the argument was that
the judgment
had
finally disposed of the applicants’ claim for a stay of
proceedings as against the respondent based on the adverse costs
orders against him. I do not consider that this characterization of
the judgment is correct. The order granted does not, in
effect or otherwise, finally dispose of any
issue in the protracted
lis
between
the applicants and the respondent.
15.
The order granted falls, in my view,
squarely within the category of that type of order which may be
subject to reconsideration
by a court a quo in the course of the
proceedings between the parties. In
Tony
Rahme Marketing Agencies Sa (Pty) Ltd and Another v Greater
Johannesburg Transitional Metropolitan Council
1997 (4) SA 213
Goldstein J stated (at 215 -216) that:
“
The
interlocutory decisions of Colleagues, and indeed those of our own,
are not binding at later stages of the proceedings and should,
and I
trust, do yield easily to
persuasive
arguments indicating error or oversight.”
16.
I note that in the
Tony
Rahme
matter, the learned judge was
dealing with the issue
of
whether decisions of law adjudicated upon and determined in an urgent
interdict application were thereafter final and binding
(or
res
judicata
) when the matter was
later before the trial court. Goldstein J
concluded that they are not and will easily yield to persuasive
arguments indicating error
or insight. While that matter concerned an
interim
interdict,
the
same
considerations
would
have
application
where
a simple
interlocutory
order
might
be
reconsidered
at
a
later stage in the proceedings. To the extent that my judgment is
shown by persuasive argument to indicate error or oversight,
the
order granted would therefore not be binding at later stages of these
proceedings, were the issue of the stay to again be considered.
The
interlocutory nature of my judgment is however not of itself
dispositive of whether the interests of justice require that leave
be
granted.
17.
In order to assess whether the interests of
justice have application it is necessary
briefly to traverse the grounds of appeal.
As already indicated, the errors in the judgment (assuming same to be
errors) are stated
firstly to be an error of fact and
secondly an error of law.
18.
The error of fact is said to be that
the judgment contains a misdirection. The applicants are correct in
submitting that annexure
SA8 to their founding affidavit does, on a
close perusal of its contents, indicate that the document contains
what
appears to
the stamp of the Taxing Master apparently certifying that an
allocatur was made on 29 January 2020 by the Taxing Master
on the
relevant bill of costs. Nonetheless, nowhere in the founding
affidavit did the applicants refer to or identify the existence
of
any allocatur having been provided in regard to any of the costs
orders in their favor or of what the amount of the costs, as
determined on taxation,
was.
Instead, what they alleged was that “
one
bill of costs has already been served on the [respondent] which I
attach hereto as annexure SA8. The proof of service is further
attached hereto marked as annexure SA9. Due to the Covid 19
restrictions,
the
remaining bills of costs have not yet been finalized and served,
however will be attended to and made available at the hearing
hereof.
”
19.
In his answer, the respondent denied the
above allegations and stated that the applicants had not acted on the
costs order nor “presented
the bill of costs she now”
complains about.
20.
In reply, the applicants did not dispute
the respondent’s above allegations and instead stated that,
“the
court should note that since
deposing to the founding affidavit in this application, yet another
costs order has been made against
(the respondent
).
It is denied that I stated in the founding affidavit that no bill of
costs
have been
presented to the (respondent). I refer to paragraph 12 of the
founding
affidavit
wherein I attached the bill of costs and proof of service thereof.”
21.
I note that the service of the bill of
costs, predated any taxation thereof. This is because the applicants
attorneys’ email
enclosing the bill of costs (annexure SA9)
is dated 25 October 2019, while the
Master’s stamp on the bill of costs is (
ex
facie
SA8)
dated 29 January 2020.
22.
In addition, the heads of argument for the
applicants stated that one bill of costs had been served on the
respondent and the rest
were being prepared. The case made out in the
applicants’ affidavits (and in the heads of argument) thus was
that
a bill of
costs (and not the allocatur) was served on the respondent.
23.
It is trite that in motion proceedings, the
affidavits constitute both the pleadings and
evidence. The allegations in the affidavits
serve not only to place evidence before the court but also to define
the issues between
the parties. An applicant must accordingly raise
the issues it intends to rely on in the founding affidavit by both
identifying
the relevant issues and setting out the evidence
pertinent to those issues. It is not open to an applicant merely to
annex to its
affidavit documentation
without identifying the portions thereof of
which reliance is placed (Per Joffe J in
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of The Republic
of South Africa And Others
1999 (2)
SA 279
TPD at 323 F – G).
24.
Applicants’ counsel submitted that
regardless of how the applicants’ founding and
replying affidavit (had not) dealt with the
existence of the Taxing Master’s allocatur,
the respondent had during oral argument
before me conceded that the bill of costs
at annexure SA8 had been taxed. I did not
have a note of this concession.
Instead,
and perhaps because of the nature of the
allegations in the applicants’ affidavits, I
had understood the concession to be that
the respondent admitted that the bill of costs (not the allocatur)
had been served on him.
Nonetheless during argument in
the leave application, the respondent, to
his credit, stated that that he had indeed made this concession.
25.
Thus, as a result of the applicants not
identifying in their affidavits that a taxation had occurred and an
allocatur provided,
and because the dispute arising from the
affidavits was whether or not the
applicants had served the relevant bill of costs on
the respondent, I assumed that there had
been no determination made by the Master of the taxed costs payable.
The assumption, while
based on the factual allegations contained in
the affidavits, was incorrect. Nevertheless, the question (which I
return to below)
remains whether given the interlocutory nature of my
judgment it is in the interests of justice that leave to appeal be
granted.
26.
Turning now to the issue of law. The
applicants, relying on the judgment in the 1958 decision in
Keshavjee
v Ismail
1958 (4) SA 385
(T)
submitted
that had I considered (“applied my mind”) to that
judgment, I would have apprehended that there exists authority
for
the proposition that a stay of proceedings may be granted
in the absence of any taxation of the
relevant award of costs.
27.
It is correct that the decision in
Keshavjee v Ismail
is
authority for the proposition that in circumstances where a bill of
costs has not yet been taxed, a court has a discretion to
issue a
stay of proceedings, but this would be subject to the condition
that the applicant submit its bill of costs
to the taxing master for taxation by a certain
date. In this matter, the applicants had
not however proposed that that any order for their requested stay be
subject to a condition
that their bills of costs be submitted to
taxation by the taxing master by a particular date.
28.
More importantly, and in any event, this
ground of appeal is moot. If the applicants
were to have identified and set out the
correct facts (namely that an allocatur has been provided and a
determined amount was therefore
owing and payable by the
respondent), no question would have arisen
as to whether an order should have been granted to stay the
proceedings but such an order
then be made subject to the sort of
condition provided for in the
Keshavjee
v Ismail
judgment. Accordingly,
and given the interlocutory nature of my
judgment, this ground of appeal does not
serve as a basis for establishing why it
would be in the interests of justice for leave
to appeal to be granted.
29.
I now return to the issue of whether the
factual error relied upon requires that leave
to appeal be granted. Although my judgment
is interlocutory in nature and the grounds of appeal do not directly
address the requirement
of the interests of justice, I am still
obliged to consider whether (assuming the judgment contains the
errors or oversight contended
for), it is in the interests of justice
that leave be granted. I do so by reference to the considerations of
whether the judgment
has immediate and substantial effect, including
whether the harm that might flow from it (if it was indeed wrongly
decided) is
immediate, serious, ongoing and irreparable.
30.
In my view the judgment and the order
granted herein does not dispose of any of the main issues in either
of the proceedings between
the parties. The harm that might flow from
the judgment is not of a kind that is likely to be irreparable. There
is nothing in
the judgment to preclude the applicants from obtaining
a reconsideration of an application for a stay. There is likewise
nothing
in the judgment which precludes them from serving a new
founding affidavit in which the
relevant
facts (that a bill of costs has been subjected to taxation by the
Taxing Master and an allocatur provided) might be clearly
and
properly set out. In contrast, the granting of a stay application for
unpaid costs, not its dismissal, would
be
more likely (much as the dismissal of an exception) to have an effect
that is immediate and irreparable. This is because an order
staying a
party in particular proceedings from taking further steps in those
proceedings, until it pays the unpaid
taxed
costs owed by it, may well have the effect of precluding that
litigant from continuing with the litigation.
31.
Moreover, the granting of leave to appeal
would, given the interlocutory nature of
my
judgment, likely result in the piecemeal adjudication of the
litigation and delay the resolution of both the variation application
and the trial of the action in case number: 2017/252717. Accordingly,
I do not consider that the granting of leave to
appeal would be in the interests of
justice.
32.
As to costs, the respondent is an
unrepresented litigant. He did not indicate that he incurred any
legal costs or direct expenses
or disbursements in responding to this
application. I therefore do not consider it appropriate to make any
order in respect of
the costs occasioned by this leave application. I
accordingly make the following order:
32.1.
The application for leave to appeal is
dismissed. There is no order as to
costs.
9
April 2021
GB
ROME
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances:
For
the applicants (leave) :
H Viljoen
Instructed
by:
Ramsay Webber Inc
For
the respondent (leave) :
Represented in
person
Date
of hearing:
23 March 2021
Date
of judgment:
9 April
2021
[1]
see
Public Protector v Minister of Water, supra, citing Tshwane City v
Afriforum (2) SA 279 (CC) at 294B.