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[2010] ZAGPPHC 182
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A.M.L v A.L (Leave to Appeal) (19357/2010) [2010] ZAGPPHC 182 (5 November 2010)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION, PRETORIA)
CASE
NO.: 19357/2010
DATE:
05/11/2010
In
die application of
L,
A
M
...........................................................................................................
Applicant
and
L,
A
...............................................................................................................
Respondent
In
re:
L,
A
................................................................................................................
Plaintiff
and
L,
A
M
...........................................................................................................
Defendant
CORAM:
EBERSOHN AJ. HEARD ON 29th October 2010
JUDGMENT
HANDED DOWN ON 5th November 2010
JUDGMENT
IN THE APPLICATION FOR LEAVE TO APPEAL AGAINST THE ORDER MADE IN
TERMS OF UNIFORM RULE 49(11)
EBERSOHN
AJ.
[1]
In this judgment the parties will be referred to as in the main
matter.
[2]
The plaintiff was successful in the main matter. After the defendant
brought an application for leave to appeal against the
whole of the
divorce order, including the maintenance order, the plaintiff brought
an application in terms of Uniform Rule 49(11)
to have the portion of
the divorce order with regard to the maintenance put into operation
pending the finalisation of the application
for leave to appeal and
if granted the finalisation of the appeal. Whilst the divorce was
pending there was an order in terms of
Uniform Rule 43 in terms of
which the defendant paid maintenance pendente lite to the plaintiff.
[3]
In the application for the Uniform Rule 49(11) order the plaintiff
made out a case to the effect that she was in desperate need
of
maintenance. The defendant did not file an answering affidavit to the
Uniform Rule 49(11) application and after having heard
the
application and argument, an order was made in terms of Uniform Rule
49(11).
[4]
An application for leave to appeal against the Uniform Rule 49(11)
order made by the court, was then filed by the defendant.
[5]
This court caused a directive to be issued and forwarded by the
Registrar to the attorneys of the parties on the 26th October
2010,
which directive reads as follows:
"Please
take notice that His Lordship, Mr. Acting Justice Ebersohn, directed
that both parties are to file heads of argument,
not in excess of 10
pages, by 14:30 on Thursday the 28th October 2010 at his Chambers
wherein counsel deal specifically with the
legal issue of whether a
Rule 49(11) is appealable or not."
[6]
The plaintiffs counsel filed heads but the counsel of the defendant
did not and Mr. Smith, who appeared at the hearing on behalf
of the
defendant, apologised for not having done so and stated that the
notice was a bit short and that he was finalising heads
of argument
in another matter which is before the Supreme Court of Appeal.
[7]
The issue which must, firstly, be decided is whether the order made
by the court in terms of Uniform Rule 49(11) was appealable
or not
and if so, whether the defendant made out a case for leave to appeal.
If it was not appealable, the notice of application
for leave to
appeal against the order was a nullity and did not suspend the
operation of the order granted. See South African Druggists
Limited v
Beecham Group pic
1987 (4) SA 876
(T) at 880G; Van Leggelo v
Transvaal Cellocrete (Pry) Limited and Another
1953 (2) SA 287
(T) at
289C - D.
[8]
To date, the question of whether an order made in terms of Uniform
Rule 49(11) (i.e. that the operation and execution of the
order
sought to be appealed against shall not be suspended pending the
decision of the appeal) is appealable has been determined
by the
application of common law principles. See South Cape Corporation
(Pty) Limited v Engineering Management Services (Pty) Limited
1977
(3) SA 534
(A) at 551H -552A; South African Druggists Limited v
Beecham Group pic supra. These principles were reconsidered
comprehensively
in Zweni v Minister of Law and Order
1993 (1) SA 523
(A) because of the amendment of section 20 of Act 59 of 1959 which
provides for appeals against "judgments or orders"
of the
High Court. The court pointed out that only "judgments or
orders" are appealable and proceeded to state the attributes
of
a judgment or order. At 532F - 533F the court said that in
determining the nature and effect of a judicial pronouncement "not
merely the form of the order must be considered but also,
predominantly, its effect." The court said that 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. The
court also said that the
second attribute 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.
[9]
The requirements for a "judgment or order" set out in
Zweni's case have continued to be applied by the courts to determine
whether a particular decision or order is appealable. See Jones v
Krok
[1994] ZASCA 177
;
1995 (1) SA 677
(A) at 683H; Avtjoglou v First National Bank of
Southern Africa Limited
2004 (2) SA 453
(SCA) at 457G -H; Smit v
Scania South Africa (Pty) Limited
2004 (3) SA 628
(SCA) at 629F - H
and Scott-King (Pty) Limited v Cohen
1999 (1) SA 806
(W) at 824D - G.
[10]
Mr. Smith raised certain aspects regarding interpretation and effects
of the Uniform Rule 49(11) order:
a)
The plaintiffs Uniform Rule 49(11) application was understood to the
effect that relief was only sought in the event of the court
granting
the defendant leave to appeal and as no judgment regarding the
application for leave to appeal was handed down (yet) and,
so went
the argument, the order granted in terms of Uniform Rule 49(11) was
granted prematurely and constituted a misdirection.
I disagree. There
was a proper application before the court.
b)
The effect of the Uniform Rule 49(11) order was that the maintenance
was in fact due and payable, retrospectively, as from the
date of the
granting of the order namely the 23rd December 2009. The court, not
wanting further arguments and splitting of hairs
on the part of the
defendant, however, and for the sake of clarity ordered that it was
due and payable with retrospective effect
from the 23rd December
2009. Mr. Smith argued, however, that no such relief was asked for in
the application and that "the
court accordingly erred in
granting such order." There is absolutely no substance in such
argument.
c)
Mr. Smith also argued that the court erred by ordering that the
arrears maintenance be payable forthwith, within 7 days, with
mora
interest. Mr. Smith did not appreciate that when the Uniform Rule
49(11) order was made all the arrears maintenance and the
interest
thereon, owing as from 23rd December 2009 in any case became due and
owing
ex
lege
with
mora
interest.
The granting of a seven day period of grace was in fact an act of
kindness on the part of the court towards the defendant.
d)
Mr. Smith also, speculatively, because no answering affidavit was
filed by the defendant in opposition to the plaintiffs founding
affidavit wherein she detailed the dire financial straits she was in,
argued that there was a potential of irreparable harm and
prejudice
to the defendant in the event of the appeal succeeding and the
possibility of recovering from the plaintiff any monies
paid by way
of maintenance. These arguments were, at best, speculative with no
substance at all.
e)
Mr. Smith also made mention of some or other order made by the
Maintenance Court which, according to him, in effect reduced the
maintenance payable by the defendant to the plaintiff. It was common
cause that the defendant did not file an answering affidavit
and did
not put anything, no papers, no nothing at all, before this court in
connection with the Uniform Rule 49(11) application
and there were
thus no particulars of such alleged proceedings in the Maintenance
Court before this court and particulars of such
an alleged order
before this court yet Mr. Smith blatantly, openly and in abusive
language accused the court of acting to the detriment
of the
defendant in direct conflict with the order of the Maintenance Court.
Perchance it is time for the legal representatives
of the defendant
to get their act together and putting papers before the court before
slurring the court openly.
[11]
Before the court gave judgment in the Uniform Rule 49(11) application
the court, although it was hampered by the defendant
not filing an
answering affidavit, considered, with the facts at its disposal:
a)
the potentiality of irreparable harm or prejudice in the most
unlikely event of an appeal succeeding (See South Cape Corporation
(Pty) Ltd. v Engineering Management Services (Pty) Ltd supra at 545E;
Burlington Hosiery Mills (SA) Ltd. v Arwa (Pty) Ltd. 1977
(4) SA 150
(W) at 153C; N v Government of the Republic of South Africa (No. 3)
2006 (6) SA 575
(D) at 5791-J);
b)
the prospects of success on appeal, including more particularly the
question as to whether the appeal was frivolous or vexatious
or has
been noted not with the
bona
fide
intention of seeking to reverse the judgment but for some indirect
purpose, eg to gain time or to harass the plaintiff (See Leask
v
French
1949 (4) SA 877
(C) at 893; Ismail v Keshavjee
1957 (1) SA 684
(T) at 688; Lubambo v Presbyterian Church of South Africa
1994 (3) SA
150
(W) at 153E; Burlington Hosiery Mills (SA) Ltd. v Arwa (Pty) Ltd.
supra at 153C; N v Government of the Republic of South Africa
(No.
3));
2006 (6) SA 575
(D) at 5791-J);
c)
whether there is a potentiality of irreparable harm or prejudice to
both plaintiff and defendant, the balance of hardship or
convenience,
as the case may be. (See Thirtwell v Johannesburg Building Society
1961 (4) SA 665
(D); Lewis v Culwicvk
1966 (3) SA 52
(D) at 58; South
Cape Corporation (Pty) Ltd. v Engineering Management Services (Pty)
Ltd supra at 545E; Burlington Hosiery Mills
(SA) Ltd. v Arwa (Pty)
Ltd. supra at 153C;
N
v
Government of the Republic of South Africa (No. 3)
2006 (6) SA 575
(D) at 579I-J).
[12]
The court considered and weighed up all the factors and in the end
had to find in favour of the plaintiff regarding the hardship
she was
suffering and that she desperately required maintenance. The court
also considered that any maintenance order this court
would make may
on good cause be shown, later varied by the Maintenance Court, and
was not final.
[13]
Insofar as the judgment in Phillips v National Director of Public
Prosecutions
2003 (6) SA 447
(SCA) may be recognised as an exception
to the general rule that in order to be a "judgment or order"
(and therefore
appealable) the order sought to be appealed against
must have the three attributes referred to in Zweni's case, the case
is not
analogous to the present case. In Phillips the court was
dealing with the appealability of a restraint order issued in terms
of
section 25
of the
Prevention of Organised Crime Act, 121 of 1998
and considered the effect of such order in the context of the
statutory framework provided by the act. In paragraph 23 the court
found that a restraint order is intended to be appealable because it
is final (in the sense in which was used in Zweni's case)
notwithstanding that it is not definitive or dispositive of any of
the issues that will arise in the main proceedings. In the present
case the order in terms of Uniform
Rule 49(11)
was not made in terms
of any statutory provisions which have the effect that the order is
final in effect and was simply a interlocutory
order putting the
payment of maintenance in operation and did not have a final and
definite effect on the main action. In South
Cape Corporation (Pty)
Limited v Engineering Management Services (Pty) Limited supra at 551G
- H the court stated:
"It
does not dispose of any issue or any portion of the issue in the main
suit, nor does it irreparably anticipate or preclude
any of the
relief which might be given at the hearing (taking the 'hearing' in
such a case to be the hearing of the appeal). It
leaves the Court of
appeal free to make whatever decision it deems fit in the main
action."
[9]
The respondents' second contention raises the question whether the
court in Minister of Health and Others v Treatment Action
Campaign
and Others (No. 1)
[2002] ZACC 16
;
2002 (5) SA 703
(CC) purported to replace the
above principles governing the issue of appealability with a new
principle i.e. whether it is in
the interests of justice that the
decision or order be appealed against. This question must be answered
unequivocally in the negative.
The court drew a clear distinction
between the non-appealability of an interim execution order at common
law and in terms of the
Supreme Court Act, 59 of 1959 and the
appealability of such an order where a decision on a constitutional
matter is concerned,
his appears from paragraphs 5 and 6 where the
court said the following:
'[5]
The first question that arises is whether the interim execution order
is appealable at all. In terms of both the common law
and the Supreme
Court Act 59 of 1959, an order granting leave to execute pending an
appeal is considered to be purely interlocutory
and not appealable.
There are important reasons of policy why this is so. In particular,
the effect of granting leave to appeal
against an order of interim
execution will defeat the very purpose of that order. The ordinary
rule is that the noting of an appeal
suspends the implementation of
an order made by a court. An interim order of execution is therefore
special relief granted by a
Court when it considers that the ordinary
rule would render injustice in a particular case. Were the interim
order to be the subject
of an appeal, that, in turn, would suspend
the order.
[6]
Of course, the question whether a matter is appealable to this Court
is governed by the Constitution itself. Section 167(6)
of the
Constitution of the Republic of South Africa Act 108 of 1996 provides
that:
'National
legislation or the Rules of the Rules of the Constitutional Court
must allow a person, when it is in the interest of justice
and with
leave of the Constitutional Court -
(a)
........; or
(b)
To appeal directly to the Constitutional Court from any other court.'
The
relevant Rule is Constitutional Court Rule 18(1), which prescribes
the procedure
'in
an application for leave to appeal directly to the Constitutional
Court where a decision on a constitutional matter, other than
an
order of constitutional invalidity under s 172(2)(a) of the
Constitution, has been given by any Court other than the Supreme
Court of Appeal Once it is clear that an application for leave to
appeal concerns a 'decision on a constitutional matter', the
criterion by which the Court then determines whether it shall grant
leave to appeal or not, is prescribed by s 167(6) of the
Constitution,
namely whether it is in the interests of justice to do
so. The first question then is whether the interim execution
order
is a decision on a constitutional matter as contemplated
by Rule 18."
[14]
In the present case the decision in the main application is not a
decision on a constitutional matter. This was not even argued
by Mr.
Smith. In N and Others v Government of the Republic of South Africa
and Others (No. 3)
2006 (6) SA 575
(D & CLD) the court simply
applied the reasoning of the Constitutional Court in a case involving
a decision on a constitutional
matter. The court did not purport to
establish new rules or principles applicable to the question of
applicability of an interim
execution order.
[15]
It is significant that the Constitutional Court unambiguously stated
that in terms of the common law and the Supreme Court
Act an order
granting leave to execute pending an appeal is considered to be
purely interlocutory and not appealable and refers
to the leading
cases in support of the statement.
[16]
Mr. Smith argued ultimately that no costs order should have been made
with regard to the Uniform Rule 49(11) application and
that the costs
should have been ordered to be costs in the appeal, with the rider
that if there was no appeal that the costs then
should be payable by
the defendant. This court carefully considered the question of costs
before making the order. This case is
of such a nature that it called
for an order of costs in terms of authorities such as Burlington
Hosiery Mills (SA) Ltd. v Arwa
(Pty) Ltd. supra; SA Breweries v
Solomon
1924 OPD 76
; Graham v Venter
1924 OPD 46
, Coetzee v Etheridge
1924 OPD 47
; Frankel v Pirie
1936 EDL 107
; Sorec Properties Hillbrow
(Pty) Ltd. v Van Rooyen
1981 (3) SA 650
(W) and Erasmus at p. Bl-371.
In any case costs is in the discretion of the court.
[17]
It is clear that the application for leave to appeal cannot be
sustained and the following order is made:
"The
application for leave t
o
appeal is
dismissed
with costs."
P.Z
EBERSOHN
ACTING
JUDGE OF THE HIGH COURT
Applicant/Defendant's
counsel Adv. D.A. Smith SC
Applicant/Defendant's
attorneys SCHOEMAN ATTORNEYS
Ref
J. Schoeman/0315
Tel.
012 665 4807
Respondent/Plaintiffs
counsel Adv. I. Vermaak-Hay
Respondent/Plaintiff's
attorneys VAN ZYL'S INCORPORATED
Ref..
LAN7/0001/Mr. van Zyl/mb
Tel.
012 667 5111