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[2010] ZAGPPHC 574
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Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd and Others (A363/2008) [2010] ZAGPPHC 574 (19 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
Appeal Case no.
A363/08
DATE: 19 FEBRUARY
2010
In the matter
between:
STUTTAFORD’S
STORES (PTY)
LTD
................................................................................
First
Appellant
STUTTAFORD’S
INTERNATIONAL FASHION
CO
(PTY)LTD
.......................................................................................................................
Second
Appellant
THE GAP,
INC
........................................................................................................................
Third
Appellant
GAP
(APPAREL)
LLC
.........................................................................................................
Fourth
Appellant
GAP(ITM),
INC
........................................................................................................................
Fifth
Appellant
and
SALT
OF THE EARTH CREATIONS (PTY)
LTD
..........................................................
First
Respondent
KINGSGATE
CLOTHING (PTY)
LTD
..........................................................................
Second
Respondent
PAUL VIVALDI
FASHIONS (PTY)
LTD
........................................................................
Third
Respondent
JUDGMENT
PRELLER J:
This
appeal comes before us by virtue of leave granted by Makgoka AJ (as
he then was) due to the unavailability of the judge who
had heard the
matter. It is an appeal against the refusal of the judge
a
quo
of
an application for his recusal from further participation in that
case.
The
dispute before the court
a
quo
was
but one round in an ongoing battle between the present parties and
also some others that were not involved in this round. Strange
as it
may sound, the bone of contention is the right to use the name “The
Gap" on certain articles of clothing. Judging
by the size of the
guns pulled out by the parties to represent them and the number of
rounds that they had already gone in court,
that right must be worth
a substantial amount of money. Before us the parties were represented
by no fewer than four senior counsel
and two juniors.
The
present skirmish kicked off with an opposed urgent application based
on passing-off before the court
a
quo.
Argument
was heard over a period of three days. We do not know the length of
the papers on which the application was based, but
what does appear
from the affidavits before us, is that the applicant filed main heads
of 105 pages, the answering heads ran to
some 122 pages and that was
followed by replying heads of 88 pages.
It is unfair of
practitioners, not only to the judge sitting in the court for urgent
matters and who often has to deal with 60 or
more urgent applications
in a week, but also to the other practitioners who are awaiting their
turn, to take up two of the five
av ailable days with a single matter
and to furthermore burden the judge with more than 300 pages of heads
of argument in addition
to the voluminous papers that must have been
filed. It is not humanly possible to give the necessary attention to
so many urgent
matters in the time available and the judge sitting in
that court often has no choice but to limit the ambit and detail of
the
judgment he has to give in order to do some justice to all the
parties that have come to coun -w'ith their urgent problems.
The
appellants, (the respondents
a
quo),
applied
for the recusal of the
judge
a quo
shortly
after he had delivered his judgment. That application was based on
his perceived bias against them which, according to the
appellants,
appeared mainly from the form in which his judgment had been given:
after reserving his judgment, he requested the
parties to furnish him
with an electronic version of their heads of argument. In their
recusal application the appellants illustrated
that he had composed
his judgment almost exclusively from verbatim extracts from the main
and replying heads of argument that had
been submitted in electronic
form by the respondents. On a practical level the judgment,
consisting of 1890 lines of typing, contained
only approximately 32
lines of the judge's original writing, apart from his order at the
end of the judgment. Of the 122 pages
of written argument filed by
the appellants, not a single sentence found its way into the
judgment, except in so far as the appellants'
arguments had been
quoted by the respondents in their heads. Except for the above, there
is no separate consideration of the submissions
made on behalf of the
appellants, nor of the decided cases referred to by them. Even though
the learned judge may have been wrong
in some of the respects
mentioned by the appellants, it is not a question that concerns us,
since the correctness or otherwise
of the judgment in the main
application is not before us.
A further result was
that all the exaggerated and sometimes scathing terms and hyperbole
in which the respondents dealt in their
heads with the appellants'
affidavits and submissions, were repeated verbatim in the judgment.
The appellants understandably took
offence to this.
The appellants also
complain about the very late stage at which the respondents' replying
heads (and w'hich. according to them,
also contained new matter) were
offered and accepted by the learned judge. The heads are dated some
five days before the final
day of the hearing, but w'ere only handed
to the appellants on the morning of the last day of the hearing. At
the very end of the
hearing and just before the court adjourned, the
respondents handed to the appellants an undertaking of liability for
any damage
that they may suffer in the event of the interim relief
not being made final. The appellants contend that they did not even
have
the opportunity to consider the terms of the undertaking and
that the acceptance thereof by the court without further ado is
another
illustration of the court’s bias against them. Except
for the acceptance of the undertaking (as far as the judge may have
played a part in it) this part of the conduct complained of was
exclusively the doing of the respondents and could hardly constitute
bias on the part of the judge. The appellants seem to have been
scraping the barrel with this part of their argument.
The final ground of
complaint was that the respondents had, some six days after the
judgment, arranged an interview with the judge
concerned in order to
discuss the further conduct of the case with him. The appellants were
informed by letter of the arrangement
and invited to attend the
proposed meeting. The appellants rely on the well-established rule of
ethics that it is improper for
a part\ to communicate with the judge
handling a matter in the absence of the opposing party. In the end
not much was made of this
point because it appeared that the
respondents had done nothing more than to arrange a suitable date for
the meeting with the judge's
registrar.
In
their heads of argument (page 21) the appellants referred us to an
unreported judgment by a full court of this division in which
a
similar situation had arisen. The case was
L
van Rooven and Another v. Imperial Transport Holdings
delivered
on 13 February 2006 in Case number A1696/04. The following passage
was quoted from p. 12 of the judgment:
“
Natuurlik
staan dit ‘n hof vry om ruimskoots van hoofde van betoog van
een of albei partye in Iitigasie gebruik te maak. Hoe
dit gedoen
word, maak natuurlik ook saak. As dit gebruik word in ‘n oorwoë
bespreking van die feite, regsargumente en
gevolgtrekkings op fcite
en die reg, het ek weinig probleem daarmee. As daar egter iuidens die
uitspraak nie oorvveging geskenk
word aan verskillende standpunte
nie, kan dit ‘n probleem gee. Die wvse van gebruikmaking van ‘n
stel hoofde kan ook
betekenisvol wees.'"
The exact extent to
which the court had in that matter made use of the heads of the one
part)' is not clear, apart from the statement
:
“
...as
die verhóofhof na 22 maande feitiik woordeiiks een party se
hoofde oorneem as sy uitspraak, sonder om na ‘n enkele
argument
van die teenparty le verwys.”
It
seems clear enough though that the trial court in that matter had. as
in the present case, adopted the heads of the one party
as its
judgment. A possible difference between the two cases is that in the
present case the heads of the respondent (which were
adopted as the
judgment), dealt extensively with the arguments advanced b\ the
appellants. The court
a
quo
must
therefore have taken cognisance of the arguments of the appellants in
the process of converting the respondent's heads into
its judgment.
In any event the
question of bias did not feature in the judgment at all. The full
court merely took the view that after 22 months
the trial court could
not possibly remember all the details that are seen as giving a trial
court an advantage over a court sitting
on appeal, and concluded that
it was in as good a position, if not a better one. to adjudicate the
facts as the trial court was
and concluded that the trial court had
made a wrong finding of fact on the evidence before it.
While I with respect
fully agree with the disapproval of the full court of the practice of
simply adopting the heads of one ofthe
parties as the judgment of the
court, that judgment is not authority for the proposition that if a
court doesjust that, it may
give rise to a perception of bias.
It
does not necessarily follow that the way in which the judgment was
given is indicative of bias. If the court
a
quo
concluded
that the respondents were correct and if he was satisfied with all
the arguments raised by them, and taking imo account
that the case
was heard in the urgent court, there was no compelling reason why he
should not have adopted their heads as his judgment,
rather than to
find the time to write his own judgment
de
novo.
The
fact that he fully agreed with the arguments of the respondents and
adopted their heads for the sake of convenience when he
was saying
just that, is no indication of bias.
In any event the
essential question in issue in the present appeal, viz whether Basson
J should have recused himself, has become
of academic interest only,
if that had not been the case from the day when hisjudgment was
delivered. It would certainly not have
constituted grounds for an
application for his recusal if he had said exactly the same things in
his judgment. but in his own words.
Admittedly there remained
thereafter the possibility of an application for leave to appeal and
perhaps an application in terms
of Rule 49 (11), but one can hardly
imagine the loser in every case applying for the recusal of the judge
concerned every time
that a judgment goes against it. If the
application succeeds and the judgment of the second judge goes the
other way, one couid
expect the loser to then bring a similar
application.
thus leading to
litigation in ever decreasing concentric circles until the parties
disappear into the resulting whirlpool. The correct
remedy of the
appellants was an appeal in which the question of bias could be
raised as one of its points. In m\ view the appeal
must be dismissed
for that reason aione.
The
application for leave to appeal was heard before Makgoka AJ (as het
then was) in the temporary absence of Basson J, and succeeded.
The
latter has since retired and has become permanently unavailable. The
risk of perceived or even real bias from a judge who has
to decide
the further fate of the application has therefore disappeared and the
only result of allowing the present appeal will
be that there will
effectively be a”mini-appear before the real appeal. The
question that has to decide the outcome of this
appeal is purely
whether the refusal of the application for its recusal by the court
a
quo
was
correct or not. At the same time we should not entirely close our
eyes to the reality of the subsequent events and the untenable
situation that will arise if the appeal were to succeed.
I would finally like
to record my appreciation for the comprehensive, lucid and ven
helpful heads filed by counsel for both sides.
The order that I
propose is that the appeal be dismissed with costs, including the
costs of two counsel.
F G PRELLER
JUDGE
OF THE HIGH COURT
I
agree.
WRC PRINSLOO
JUDGE OF THE
HIGH COURT
I agree
A
M L PHATUDI
JUDGE
OF THE HIGH COURT