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[2013] ZASCA 195
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Theron N.O and Another v Loubser N.O and Others, InRe; Theron N.O and Another v Loubser and Others (161/2013) [2013] ZASCA 195; [2014] 1 All SA 460 (SCA); 2014 (3) SA 323 (SCA) (2 December 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 161/2013
REPORTABLE
In the matter between:
GIDEON JOHANNES JACOBUS THERON N.O. FIRST
APPELLANT
ANTOINETTE THERON N.O. SECOND
APPELLANT
And
ANDREW THOMAS LOUBSER N.O. FIRST
RESPONDENT
ANNA LOUBSER N.O. SECOND
RESPONDENT
THE MASTER OF THE HIGH COURT THIRD
RESPONDENT
AND
In the matter between:
GIDEON JOHANNES JACOBUS THERON N.O. FIRST
APPELLANT
ANTOINETTE THERON N.O. SECOND
APPELLANT
And
ANDREW THOMAS LOUBSER FIRST
RESPONDENT
ANNA LOUBSER SECOND
RESPONDENT
ANDREW THOMAS LOUBSER N.O. THIRD
RESPONDENT
ANNA LOUBSER N.O. FOURTH
RESPONDENT
THE MASTER OF THE HIGH COURT FIFTH
RESPONDENT
Neutral citation: Theron v Loubser (161/13)
[2013] ZASCA 195
(2 December 2013)
Bench: Ponnan, Leach,
Majiedt, Wallis and Petse JJA
Heard: 13 November 2013
Delivered: 2 December 2013
Summary: Trusts
locus standi - any person who has an interest in entitled to approach the
court for declaratory relief as
to who are the trustees of the trusts.
ORDER
On appeal from
:
Western Cape High
Court, Cape Town (Cloete AJ sitting as court of first instance):
(a)
The appeal is upheld with costs.
(b)
The order of the high court dismissing the
application under case number 12238/06 is set aside.
(c)
The order of the high court dismissing the
application under case number 13978/11 is set aside.
(d)
Both matters are remitted to the high court.
JUDGMENT
PONNAN JA:
[1]
'Two households both alike in dignity, In
fair Verona, where we lay our scene,From ancient grudge break to new mutiny,Where
civil
blood makes civil hands unclean',
is William
Shakespeare's introduction to the feuding families in Romeo and Juliet
(Prologue 1-4). Substitute the Cape for fair Verona
and the Therons and
Loubsers for the Montagues and Capulets and that, I daresay, would perhaps be
an equally apt introduction in
this matter. The Therons Gideon and Antoinette
(the first and second appellants) and the Loubsers Dr Andrew and Anna (the
first and second respondents) are the protagonists in a long-standing family
feud (Gideon and Anna are siblings) which has culminated
in extensive
litigation between them. Dr Andrew Loubser explains:
'Currently there are at least 12 to 15 matters pending in the
Magistrate's court and at least 2 applications and 5 actions pending
in the
High Court. A report is also awaited from the presiding officer in an enquiry
in terms of the Companies Act relating to
the liquidation of the company in
which the parties were all involved previously and from which various
allegations of fraud, misappropriation
of funds, mismanagement, theft,
dishonesty, etc. emanate.'
[2] The
present is an appeal with the leave of this court from the Western Cape High
Court. Three separate applications served
before the high court. The first
application related to the Jacknet Trust. In it, the Therons sought an order:
'1. Dat die besluit geneem deur Eerste en Tweede Respondente
[Andrew and Anna Loubser NNO] tydens ongeveer middel 2005 om
Eerste en Tweede
Applikante [Gideon and Antoinette Theron NNO] te onthef van hul pligte as
trustees van die Jacknet Trust (IT 951/95)
nietig en kragteloos is.
2. Dat verklaar word dat Eerste Applikant, Tweede Applikant,
Eerste Respondent en Tweede Respondent die huidige trustees
is van die gemelde
Trust.
3. Dat die Meester (Derde Respondent) versoek en gelas word om 'n
Meestersertifikaat uit te reik wat die huidige trustees
aandui soos vermeld in
paragraaf 2 hierbo.'
In the second application
under case number 12238/06, which related to the Namakwari Trust (the Namakwari
application), the Therons
sought an order:
'1. Dat die (gepoogde) aanstelling van Eerste Respondent [Andrew
Loubser] as trustee van die Namakwari Trust (IT 4018/95)
op 20 Junie 2006
ongeldig en dus nietig is.
2. Dat die besluit geneem op 'n vergadering van die trustees van
die Namakwari Trust op 23 Augustus 2006, in terme waarvan
Tweede Respondent
[Anna Loubser] onthef is van haar amp as trustee van die gemelde trust, geldig
is.
3. Dat verklaar word dat Eerste en Tweede Applikante die huidige
trustees is van die gemelde Trust.
4. Dat die Meester (Derde Respondent) versoek en gelas word om 'n
Meestersertifikaat uit te reik wat die huidige trustees
aandui soos vermeld in
paragraapf 3 hierbo.'
And, in the third
application, bearing case number 13978/11 (which came to be described by the
parties as the 2011 application)
the Therons sought, inter alia, the following
relief:
. . .
2. That it be declared that First and Second Respondents, having
committed deeds of insolvency, have been (automatically)
discharged as trustees
of each of the following trusts as provided for in such trusts' respective
trust deeds:
2.1 Traka 5 Trust;
2.2 Traka 6 Trust;
2.3 Traka 7 Trust;
2.4 Traka 8 Trusts;
2.5 Traka 9 Trust;
2.6 Traka 10 Trust;
2.7 The Jacknet Trust;
2.8 The Namakwari Trust;
. . . '
[3] All
three applications came before Cloete AJ, who after hearing argument over the
course of several days, granted the
relief sought in the first application and
dismissed the other two. In dismissing the Namakwari and 2011 applications the
high
court held that the Therons lacked 'the necessary locus standi to have
brought those applications'. It reasoned (paras 30-32):
'It must surely be that before exercising any power conferred on them by
the trust instrument the trustees must resolve to exercise
that power; and that
in order to effect a resolution they must follow the procedure set out in
clauses 4.5.1 to 4.5.3.
To find otherwise would mean that each trustee would be able to act
independently of the others in relation to the powers set out
in the trust
instrument. This would offend not only against the trust instrument itself but
also the common law.
With regard to legal proceedings the common law position is that unless
one of the trustees is authorised by the remaining trustee
or trustees, all of
the trustees must be joined in suing and all must be joined when action is
instituted against the trust. .
. .'
[4] Clauses
4.5.1 to 4.5.3 provide:
'4.5.1 Twee (2) Trustees
(waarvan een 'n party moet wees wat te alle tye onafhanklik en vry is van die
beheer van die Stigter
of van enige ander party wat enige bates aan hierdie
Trust oorgemaak het) sal 'n kworum uitmaak.
4.5.2 Voldoende kennis
(afhangende van hoe dringend die vergadering gehou moet word) van elke
vergadering van die Trustees en
die sake wat by sodanige vergadering bespreek
sal word, moet aan elke Trustee gegee word by sy woonadres (as hy 'n natuurlike
persoon
is) of sy besigheidsadres (as hy 'n regspersoon is) soos in die rekords
van die Trust opgeteken. Die tydelike afwesigheid van 'n
Trustee by sodanige
adres wanneer sodanige kennis gegee word, maak die kennisgewing nie ongeldig
nie.
4.5.3 Geen besluit geneem by
enige vergadering van Trustees sal geldig en van krag wees nie tensy die
Trustees wat teenwoordig
is 'n kworum uitmaak en almal ten gunste van die
besluit stem.'
[5] A trust
is not a legal persona. In its strictly technical sense a trust is a legal
institution sui generis . . . The
trustee is the owner of the trust property
for purposes of administration of the trust but qua trustee has no beneficial
interest
therein'. (Braun v Blann and Botha NNO & another
[1984] ZASCA 19
;
1984 (2) SA 850
(A) at 859E-H, Commissioner for Inland Revenue v Friedman & others NNO
[1992] ZASCA 190
;
1993
(1) SA 353
(A) at 370.) As Nugent JA explained in Lupacchini NO & another
v Minister of Safety and Security
2010 (6) SA 457
(SCA) para 1:
'A trust that is established by a trust deed is not a legal person it
is a legal relationship of a special kind that is described
by the authors of Honoré's
South African Law of Trusts as "a legal institution in which a person, the
trustee, subject to
public supervision, holds or administers property
separately from his or her own, for the benefit of another person or persons or
for the furtherance of a charitable or other purpose". In Land and
Agricultural Bank of South Arica v Parker and others
[2005 (2) SA 77
(SCA)]
Cameron JA elaborated:
"[A trust] is an accumulation of assets and liabilities. These
constitute the trust estate, which is a separate entity. But
though separate,
the accumulation of rights and obligations comprising the trust estate does not
have legal personality. It vests
in the trustees, and must be administered by
themand it is only through the trustees, specified as in the trust instrument,
that
the trust can act. . . .
It follows that a provision requiring that a specified minimum
number of trustees must hold office is a capacity-defining condition.
It lays
down a prerequisite that must be fulfilled before the trust estate can be
bound. When fewer trustees than the number specified
are in office, the trust
suffers from an incapacity that precludes action on its behalf."'
[6] Here
though in demanding compliance with clauses 4.5.1 to 4.5.3 of the trust deed,
the high court appeared to lose from
sight that the litigation was not being
conducted in the name of or on behalf of the trust. Rather the application to
court was
intended to have a logically anterior question resolved, namely, who
are the trustees of each of the trusts in question? Until that
issue was
resolved it would continue to remain the subject of dispute between the parties
as to who exactly was supposed to participate
in the formal process
contemplated by the trust deed. In those circumstances any person who had an
interest in those trusts, whether
as trustee or beneficiary or otherwise, was
entitled to approach the court for declaratory relief on that score.
[7] In
support of the relief sought in the Namakwari application Mr Theron asserted:
'2. Ek bring hierdie aansoek in my hoedanigheid as trustee van die
Namakwari Trust . . . .'
The response that
that allegation elicited was:
'21. AD PARAGRAAF 2
Ek ontken dat die Eerste Applikant 'n trustee is van die Trust en soos in
meer besonderhede hieronder sal blyk, is hy outomaties
onthef as trustee in terme
van die Trust se trustakte.'
Likewise, in the 2011
application Mr Theron alleged:
'I am a trustee of each of the trusts mentioned in paragraph 6 below, and
bring this application in such capacity.'
Those allegations
by Mr Theron plainly established an interest by him in the various trusts
sufficient to entitle him to approach
the court for the relief sought.
[8] Moreover,
in an affidavit filed in support of the 2011 application, Mr Theron alleged:
'7. This application is
for a declaratory order to confirm that First and Second Respondents have been
(automatically) discharged
as trustees of the trusts.
8.
8.1 The trust deed of
each of the trusts provides that a trustee "word outomaties van sy amp
onthef [amongst others]
indien hy 'n daad van insolvensie pleeg soos in die
insolvensiewet
bedoel".
8.2 First and Second
Respondents have each committed an act of insolvency in that:
(a)
In terms of section 8(b)
of the Insolvency Act 24 of 1936 ("the Act") they failed, upon demand
of the sheriff, to satisfy
a judgment against them or to indicate to him
disposable property sufficient to satisfy the judgment debt. It furthermore
appears
from the Sheriff's return that he did not find sufficient disposable
property to satisfy the judgment debt.
(b)
Furthermore,
irrespective of the above, in terms of section 8(g) of the Act, Respondents
gave notice in writing that they are (were)
unable to pay the judgment debt.'
Given its approach
to the matter the high court did not deal with this aspect of the case.
Accordingly, whether the Loubsers had
committed certain acts of insolvency and
thereby automatically fell to be disqualified remained unresolved. In the light
of those
allegations, as also the other evident disputes between the parties as
to who could rightly claim to be trustees of the trusts in
question, it was
plainly absurd to insist on a formal meeting and resolution as a necessary
pre-requisite to the launch of the
application. It goes without saying that in
the circumstances just sketched it is hardly likely that a formal meeting of
trustees
could even have been convened, much less that a resolution could have
been adopted to approach the court. What makes the high courts
insistence on a
formal meeting all the more bizarre is the following observation in its
judgment:
'. . . (the "appointment" of Andrew as trustee of Namakwari on
20 June 2006 was conceded by his counsel during argument
as being invalid for
purposes of determination of the merits.)'
That observation
begs the obvious question: If a meeting of the trustees of the Namakwari Trust
is to be held as insisted upon by
the high court, did it have to include Dr
Andrew Loubser?
[9] It must
follow, I consider, that the high courts conclusion that both of the Therons
lacked locus standi to approach
the court for the relief sought cannot be
supported. For, as I have endeavoured to demonstrate, on the Therons' showing,
at the
very least Mr Theron had established that he possessed the requisite
standing to approach the court. It is thus unnecessary to consider
separately
the position of his wife, Ms Antoinette Theron.
[10] It
remains to comment on the approach adopted by the high court to the matter. The
high court stated:
Having regard to the aforegoing I have come to the conclusion that the
Therons lacked the necessary locus standi to have brought
this application and
it falls to be dismissed on that ground alone. It is accordingly not necessary
for me to consider the merits
of the application.
What commended
this approach to the high court remains unexplained.
[11] It bears
noting that the approach adopted by the high court is not sanctioned by rule
33(4), which only applies to actions.
But, as Nestadt J put it in Reymond v
Abdulnabi & others
1985 (3) SA 348
(W) at 349E-F:
Though it is not sanctioned by Supreme Court Rule 33 (4), which applies
only to actions, and is unfortunately not one of those sections
which, in
terms of Rule 6 (14), is made applicable to applications, the suggested
procedure is obviously a convenient and sensible
one, which, under my inherent
jurisdiction, I am, I consider, empowered to adopt. It would, if first
respondent be successful,
avoid a trial in which applicant's cause of action
would, ex hypothesi, be stillborn. Moreover, it is one sanctioned by authority
(Aling and Streak v Olivier
1949 (1) SA 215
(T)
at 216). In any event, Mr Goodman, for applicant, had no
objection to it being adopted, though he very much disputed the correctness
of
the point being taken.
In Aling and
Streak, which Nestadt J relied on, Price J had this to say:
The matter comes before the Court by way of an application but, as there
is a dispute of fact on the papers, the parties have brought
witnesses to Court
to give viva voce evidence of the facts set out in the affidavits. Before
hearing evidence, however, the Court
suggested that argument might be heard
(assuming the facts in the petition to be correct) on the question as to whether
the restraint
provided for in the agreement to which I shall refer later is
reasonable and valid.
Counsel have argued the case, therefore, on the basis that the facts set
out in the petition are correct. . . .'
Significantly
therefore, no reasons were advanced by Price J as to why he believed that that
course was open to him.
[12] Reymond has
gained some currency in recent times. In two different matters: Union Finance
Holdings Ltd v I S Mirk Office
Machines II (Pty) Ltd & another
2001 (4) SA
842
(W) at 843F-G and De Reuck v Director of Public Prosecutions, Witwatersrand
Local Division & others
2002 (6) SA 370
(W) at 374G-H, the same judge
(Epstein AJ), relying on Reymond, had this to say:
Although Rule 33(4) of the High Court Rules applies only to actions, it
is within the inherent jurisdiction of the Court to deal
with this application
on the basis that the point in limine is one which may conveniently be decided
separately from the other
questions in this matter, as envisaged by the
Rule. . . .'
Locus standi or
rather the lack thereof was the point in limine that Epstein AJ was concerned
with in each of those cases.
[13] In Persadh
& another v General Motors South Africa (Pty) Ltd
2006 (1) SA 455
(SE)
Plasket J, albeit in a somewhat different context, stated:
[W]hile Rule 19(5) only applies to actions, and it is not one of
the Rules that, in terms of Rule 6(14), also applies to applications,
I have a
discretion, grounded in the inherent jurisdiction, to apply it to applications
. . . .
In addition to Reymond,
Plasket J also referred to Academy of Learning (Pty) Ltd
v
Hancock & others
2001 (1) SA 941
(C)
para 27, Ter Beek
v United Resources CC &
another
1997 (3) SA 315
(C)
at 333D and Truter
v Degenaar
1990 (1) SA 206
(T)
at 208F-H
to support that conclusion. Those other cases though were
concerned with rule 22(4) of the uniform rules. In Academy of Learning
(para 27),
Brand J put it thus:
My second consideration why these issues cannot be determined on the
papers relates to respondents' counterclaims for damages. It
is true that,
since these claims are not liquidated, respondents cannot apply set-off.
However, Rule 22(4) of the Uniform
Rules of this Court provides that a
defendant may ask that judgment on the claim against it be postponed until
judgment is given
on its counterclaim. In terms of this Rule, the Court then
has a discretion to grant or refuse the defendant's request. Although
the Rule
specifically refers to action proceedings it has been accepted that it applies
to motion proceedings as well (see, for
example, Truter v Degenaar
1990 (1) SA 206
(T)
). In the circumstances of this case, where the applicant's
claims in convention are in any event not capable of determination on
the
papers and where respondents' counterclaims cannot be described as frivolous or
vexatious, I believe I should exercise my discretion
in respondents' favour.
Consequently, I propose to refer the determination of applicant's claims
sounding in money as well
as the determination of respondents' counterclaims to
trial.
[14] In Brian
Khan Inc v Samsudin
2012 (3) SA 310
(GSJ) para 4, the Full Court (per
Van Eeden AJ (CJ Claassen and Heaton-Nicholls JJ concurring)), with
reference to Reymond, Union Finance Holdings and De Reuck, stated
:
It brooks of no doubt that a court is empowered, in the exercise of
its discretion, to direct that a preliminary point be disposed
of first in
motion proceedings.
It will be ordered when the
issue is one of substance that may dispose of the matter as a whole, or at
least of a substantial
portion thereof. In such circumstances it will normally
be convenient to allow the parties to first complete argument on the
preliminary
issue and, depending on the outcome thereof, to only then proceed
with the remainder of the matter.
Van Eeden AJ
added:
This procedure is particularly apposite when the legal issues are crisp
and far removed from any conflict of fact, much like when
parties first argue a
legal issue, but nevertheless request a court to refer the matter to oral
evidence if the appellant should
lose the legal point
.
[15] In
support of that last proposition the learned judge referred to Fax Directories
(Pty) Ltd v SA Fax Listings CC
1990 (2) SA 164
(D) at 167I-168A, where Hugo J
stated:
There are, it seems to me, cases where the legal issues are so crisp and
so far removed from the conflict of fact that it would
be fair to both parties
to allow argument thereon in initio. If the applicant loses the legal battle he
should not then be penalised
for having tried to save the costs involved in
hearing viva voce evidence. (Provided of course that his efforts were bona fide
and well considered and not merely frivolous.)
In my view this is a case in which counsel was justified in arguing the
legal point in initio and making his application for reference
to evidence
dependent upon my not finding in his favour.
[16] There is
thus a body of authority the correctness of which I leave open (that remains
for another day after fuller forensically
tested argument) that the high
court may have called in aid in support of its approach in this case.
[17] In S v Malinde
& others
1990 (1) SA 57
(A) at 67F-G it was said:
This Court is in principle strongly opposed to the hearing of appeals in
piecemeal fashion. . . . An exception may be made, however,
where unusual
circumstances call for such procedure . . . or in enkele gevalle van 'n besondere
aard . . . .'
In Pharmaceutical
Society of South Africa & others v Tshabala-Msimang & another NNO; New
Clicks South Africa (Pty) Ltd v
Minister of Health & another
2005 (3) SA
238
(SCA) para 15, after referring to that excerpt just quoted from Malinde, Harms
JA stated:
The same applies to applications, Nicholas AJA proceeded to state (at
68C-E):
"Substantial grounds should exist for the exercise of the power. The
basis of the jurisdiction is convenience the convenience
not only of the
parties but also of the Court. The advantages and disadvantages likely to
follow upon the granting of an order
must be weighed. If overall, and with due
regard to the divergent interests and considerations of convenience affecting
the parties,
it appears that the advantages would outweigh the disadvantages,
the Court would normally grant the application."'
[18]
In Malinde, Nicholas
AJA added (at 67I-J) that
there are no reported cases
which discuss the factors which may influence the court to direct that an appeal
be heard in stages.
Nicholas AJA accordingly sought guidance from the judgment
of Miller J in Minister of Agriculture v Tongaat Group Ltd
1976 (2) SA 357
(D)
. Miller J was there dealing with an application under rule
33(4).
Nicholas AJA endorsed Miller Js approach (at
68D-E) in these terms:
When deciding an application under the subrule [33(4)], the Court is not
called upon to give a decision on the merits. But it must
consider the cogency
of the point concerned, because unless it has substance a separate hearing
would be a waste of time and costs.
So, the Court should not grant an
application for a separate hearing unless there appears to be a reasonable
degree of likelihood
that the alleged advantages would in fact result. . . .'
Assuming that rule
33(4) did indeed find application in this case, the high court simply refrained
from embarking upon the enquiry
postulated by Nicholas AJA. Had it done so, it
may have recognised that in contradistinction to such advantages as may have been
present, its approach opened the door to a fractional disposal of proceedings
and the piecemeal hearing of appeals on each part
so disposed of.
[19] It was not disputed
before us that the judgment of the high court is indeed appealable (see Zweni v
Minister of Law and
Order
1993 (1) SA 523
(A) at
532J-533A). Moreover, that leave to appeal to this court was sought and
obtained by the Therons means that the jurisdictional
fact necessary for the
appeal has been satisfied (
Pharmaceutical Society of South
Africa para 22).
In those circumstances, it seems to me,
that the conclusion of the high court, which is obviously erroneous
and has the effect of non-suiting the Therons, cannot be allowed
to stand.
In Manong & Associates (Pty) Ltd v Minister of Public Works
& another
2010 (2) SA 167
(SCA), this court emphasized that our superior courts
have a residual discretion arising from their inherent power to regulate their
own proceedings. It said (para 11):
'That our courts were endowed with such power even in our
pre-constitutional era is evident from the following dictum of Corbett
JA:
There is no doubt the Supreme Court possesses an inherent reservoir of
power to regulate its procedures in the interests of the
proper administration
of justice. . . .
Courts now derive their power from the Constitution itself,
which in s 173 provides:
The Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to develop
the common-law, taking into account the interests of justice.
As it was put by the Constitutional Court in South African Broadcasting
Corp Ltd v National Director of Public Prosecutions and Others:
This is an important provision which recognises both the power of Courts
to protect and regulate their own process as well as their
power to
develop the common-law . . . . The power recognised in s 173 is a key tool for
Courts to ensure their own independence
and impartiality. It recognises that
Courts have the inherent power to regulate and protect their own process. A
primary purpose
for the exercise of that power must be to ensure that
proceedings before Courts are fair. It is therefore fitting that the only
qualification on the exercise of that power contained in s 173 is that
Courts in exercising this power must take into account
the interests of
justice.'
[20] Having disposed of the
matter on the preliminary issue, the high court did not give a decision on the
merits of the matter.
In Karoluskraal
Farms (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk; Read Head Boer
(Edms) Bpk v Eerste Nasionale Bank
van Suider-Afrika Bpk; Sleutelfontein (Edms)
Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk
[1994] ZASCA 23
;
1994 (3) SA 407
(AD) at 416
C-D, Hefer JA put it thus:
'Wanneer dit danhetsy in 'n aksie of in mosieverrigtingegaan om 'n
spesiale verweer wat afsonderlik verhoor is, kom dit my logies
voor om te let
op die effek van die uitspraak op die regshulp wat deur die verweerder of respondent
aangevra is. In wese is die
Verhoorhof in so 'n geval gemoeid met 'n versoek
van die verweerder of respondent om die eis van die hand te wys op grond van 'n
verweer wat niks te make het met die meriete van die saak nie. Dít is die
regshulp wat op daardie stadium ter sprake is.'
[21] The
entire record of the proceedings did not serve before this court on appeal. The
record came to be limited by agreement
between the parties in the light of the
solitary issue that had been decided by the high court and which, in turn,
required determination
on appeal. But even if the full record had served before
us, the high court had declined to enter into a consideration of any of
the
other issues in the application. This court has thus been deprived of the
benefit of the high courts view on any of those
issues. In the result this
court will in effect be sitting both as a court of first instance, as also, a
court of appeal insofar
as those issues are concerned. It follows that the
matter has to be remitted to the high court for a determination of each of the
two applications which are the subject of this appeal. In the event, it was
agreed from the bar in this court that that course
should be adopted. For the
rest, it will be left to the Judge President of the Western Cape High Court to
issue directions to the
parties as to the further conduct of the matter in that
court.
[22] In the
result:
(a)
The appeal is upheld with costs.
(b) The
order of the high court dismissing the application under case number 12238/06
is set aside.
(c) The
order of the high court dismissing the application under case number 13978/11
is set aside.
(d) Both
matters are remitted to the high court.
V PONNAN
JUDGE OF APPEAL
WALLIS JA (LEACH,
MAJIEDT and PETSE JJA concurring):
[23] I
agree with Ponnan JA that the appellants clearly had locus standi to bring
these applications and that they must be
remitted to the high court for further
disposal. But I do not think that it is necessary to discuss, as he does in
paras 10 to
20 of his judgment, an issue that does not arise here, of the
circumstances in which a high court may, in the exercise of its inherent
jurisdiction, separate issues in application proceedings. The issue does not
arise because, contrary to what might be thought from
paras 10 and 16 of my colleagues
judgment, the judge did not agree to separate the issue of locus standi from
the remaining issues.
It is unnecessary and in my view undesirable to examine
cases in the high court where that has been done, especially as to do so
may be
taken, notwithstanding the express reservation in paragraph 16, as implying an
endorsement of some or all of those cases.
[24] These
cases were argued in full over four days and the judge dismissed both of the
applications that are on appeal before
us solely on the issue of locus standi
without expressing any view on the merits. She was perfectly entitled to adopt
that approach,
although it would have been preferable for her to set out her
views on the merits, against the eventuality that she might have erred
in
regard to the locus standi issue.
[25] Leave
to appeal was sought and granted by this court on an unrestricted basis. In the
ordinary course therefore we would
have been faced with a full record and the
matters would have been fully argued before us so that we could, if we held, as
we do,
that the locus standi point was bad, dispose of the applications on
their merits or refer them to trial or for the hearing of oral
evidence. We
have been precluded from following this conventional course because the parties
reached a private agreement to limit
the record before us to the portions
necessary to determine the issue of locus standi. They did so on the basis that
if the appeals
succeeded the applications would be remitted to the high court
for adjudication on the merits.
[26] Needless
to say this approach is most unsatisfactory because it results in the piecemeal
determination of the litigation.
[1]
This is not a case
where the court below was asked hear a point in limine without traversing the
merits. That is a course that
has on occasions been followed by courts in
application proceedings, where for example there is a dispute of fact that will
otherwise
need to be resolved by oral evidence, but the respondent contends
that even if the applicants factual allegations are proved it
will not be
entitled to the relief sought.
[2]
Similarly, in Reymond
v Abdulnabi & others,
[3]
where the court was
seized of a reference to oral evidence, it disposed of the case on the
preliminary point that even accepting
the applicants version, the application
had to fail as a matter of law. In general, however, the desirable course to be
followed
in application proceedings, where the affidavits are both the evidence
and the pleadings,
[4]
is for all the
affidavits to be delivered and the entire application to be disposed of in a
single hearing.
[5]
Whilst there are two
recent judgments
[6]
in which it has been
suggested that issues of locus standi are suitable for separate disposition in
this way, caution must be exercised
in that regard as pointed out by this court
in the Democratic Alliance case.
[7]
[27] However,
this is not a case where the court below decided the issue of locus standi as a
separate issue, so those considerations
should not detain us further. The court
below heard the applications in their entirety and decided that they fell to be
dismissed
on the locus standi point without expressing a view on the
substantive merits. The appeals to this court were against the dismissal
of the
applications and, had the merits been canvassed, and had we found that they
lacked merit, they would have been dismissed.
This would have been so
notwithstanding our taking a different view to the judge on the issue of locus
standi. Instead what has
happened is that the parties, through a
misunderstanding, have sought of their own volition in this court to separate
the locus
standi issue from the merits. There is no rule or practice entitling
them to do so and if they had thought it appropriate they should
have brought
an application for a direction to that effect as was done in Malinde.
[8]
The cases where this court will accede to such a request are rare and a
separation is not to be had for the asking.
[9]
[28] Having
said that, the unpalatable alternative to remitting the applications would be
to strike the appeals from the roll
with a considerable wastage of costs and
direct the parties to provide us with a full record so that the appeals could
be heard
at a later stage. That would add to the heavy burden of cases awaiting
a hearing in this court and might nonetheless result in the
case being remitted
for the hearing of oral evidence to resolve disputed factual issues. In those
circumstances I am satisfied
that in the interests of justice the applications
should be remitted to the high court for adjudication pursuant to our upholding
the appeals on the issue of locus standi. However, it must be said in the
strongest possible terms that the course adopted by the
parties in this case
should not be followed in the future. If parties wish to separate issues in
this court they must bring an
application directed to that end.
M J D
WALLIS
JUDGE OF
APPEAL
APPEARANCES:
For Appellants:
C H J Maree
Instructed by:
Theron & Partners, Stellenbosch
Matsepes Inc, Bloemfontein
For Respondents:
W P Coetzee
Instructed by:
Denys Stroebel Attorneys, Durbanville
Symington & De Kok, Bloemfontein
[1]
Democratic Alliance & others v Acting National Director of
Public Prosecutions & others
2012 (3) SA 486
(SCA) paras 48 and 49.
[2]
Aling and Streak v Olivier
1949 (1) SA 215
(T) at 216;
Taylor
v Welkom Theatres (Pty.) Ltd & others
1954 (3) SA 339
(O);
Bader
& another v Weston & another
1967 (1) SA 134
(C) 136B-137D;
Aspek
Pipe Co (Pty) Ltd & another v Mauerberger & others
1968 (1) SA 517
(C) at 519E-G;
[3]
Reymond v Abdulnabi & others
1985 (3) SA 348
(W) at
349E-F.
[4]
Hart v Pinetown Drive-In Cinema (Pty) Ltd
1972 (1) SA 464
(D) at 469C-E.
[5]
Bader v Weston, supra,
136E-F. See also
Kolbatschenko v
King NO & others
2001 (4) SA 336
(C) at 358A-359E.
[6]
Union Finance Holdings Ltd v IS Mirk Office Machines II (Pty)
Ltd
2001 (4) SA 842
(W);
De Reuck v Director of Public Prosecutions,
Witwatersrand Local Division & others
2002 (6) SA 370
(W),
coincidentally decided by the same acting judge.
[7]
Footnote 1
supra
.
[8]
S v Malinde
1990 (1) SA 57
(A) at 67F-G
[9]
Pharmaceutical Society of South Africa & others v
Tshabalala-Msimang & another
2005 (3) SA 238
(SCA) paras 15-17