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[2019] ZAECPEHC 67
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Safintra South Africa (Pty) Ltd v Prince (4036/2018) [2019] ZAECPEHC 67 (8 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE NO. 4036/2018
In
the matter between:
SAFINTRA
SOUTH AFRICA (PTY) LTD
Applicant
/ Defendant
and
MARK
PRINCE
Respondent
/ Plaintiff
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
MBENENGE
JP:
[1]
This application served before me in terms of
section 17(2)
(a)
of the
Superior Courts Act 10 of 2013
[1]
,
the judge
[2]
who granted the
impugned order having been no longer readily available.
[2]
The facts of this case are fairly simple. The respondent
[3]
,
who had been a machine operator in the applicant’s fabrication
factory, launched action proceedings on 9 March 2009 seeking
to
recover, from the applicant
[4]
,
damages in the sum of R2 910 000. The claim is
alleged to have arisen from an incident which occurred on or about
11
November 2013 and during which the respondent sustained an injury
whilst operating one of the applicant’s metal fabrication
machines; the respondent’s left hand was crushed after having
been caught and trapped by rollers of the machine whilst the
respondent was manually feeding metal sheet into the corrugated
machine.
[3]
The applicant excepted to the respondent’s particulars of claim
contending that
it lacked averments necessary to sustain a cause of
action against the applicant, more particularly in that “
in
terms of
section 35(1)
of the Compensation for Occupation Injuries
and Diseases Act 130 of 1993
[5]
no action shall lie by the employee for the recovery of damages in
respect of any occupational injury or disease resulting in the
disablement or death of such employee against such employee’s
employer.
”
[4]
The exception was heard on 6 June 2017. On that date the
court
[6]
issued an order
upholding the exception with costs, and directing the respondent to
amend his particulars of claim “
within
ten (10) days
[
from
6 June 2017
].”
No reasons for the order were furnished, and none were sought by any
one of the parties.
[5]
From a perusal of the relevant pleadings, the respondent delivered
amended particulars
of claim purporting to remove the applicant’s
cause of complaint. The quantum of the claim was increased to
R5 100 000.
The respondent also embarked upon a
constitutional attack on sections 35 and 44 of COIDA, lamenting that
in certain respects
the sections are inconsistent with employees’
constitutional rights, and that they fell to be declared
unconstitutional and
invalid. The prayer in the amended
particulars of claim is, however, bereft of the constitutional
challenge.
[6]
The delivery of the amended particulars of claim once again attracted
the delivery of an exception from the applicant’s
camp. The
applicant reiterated its stance that, having regard to section 35(1)
of COIDA, the amended particulars of claim
lacked averments necessary
to sustain a cause of action.
[7]
The second exception came before court on 22 February 2018, when the
court
[7]
upheld the exception
and dismissed the action. Before handing down the order, the judge is
on record as having remarked:
“
COURT
Alright, What I’m going to do is … I will provide
reasons later in relation to the matter.
What I’m
going to do is … hand down an order for this matter to be
finalised because in principle I think we are all
aware (indistinct)
JOOSTE.
All of us and there is nothing more than that, that we
are going to essentially be persuaded by. And the order that
I’m
going to make and the reasons which will follow in due
course
.
”
[8]
The pledge to hand down reasons for the order was never fulfilled,
resulting in the
respondent, on 09 March 2018, seeking to be
furnished with the reasons. The reasons, dated 23 June 2019,
were eventually
furnished. According to the applicant’s
heads, the reasons were brought to the attention of the applicant’s
camp
on or about 02 July 2019, approximately one year and four months
after the impugned order had been granted.
[9]
The last paragraph of the reasons reads:
“
On the day of the
hearing, due possibly to pressure of the numerous opposed matters on
the roll for the two days in question,
I handed down an order which
but, in hindsight I should in fact have allowed the plaintiff an
opportunity to suitably amend its
particulars with costs in the
cause. I once more extend my sincere apologies for the delay in
finalising this matter and
the regrettable background facts
involved. In the circumstances
the exception is upheld
.
Plaintiff is ordered to suitably amend its particulars and remove
the cause of complaint within 15 (fifteen) days of receipt of this
order
.
Costs are to be costs in the cause.
”
(Own emphasis)
[10]
From a reading of the above quoted excerpt, it is plain that the
reasons embody a purported order, which is a far-cry
from that
initially granted. The amendments introduced by the order
namely, granting the respondent leave to amend and pronouncing
that
costs be in the cause, constituted a substantial and material
alteration, not justified by any lawful dispensation. The
judge
became
functus officio
on 22 February 2018 upon handing down
the order he did. Nor could the variation have been justified
under any one of the
dispensations provided for by rule 42 of the
Uniform Rules of Court.
[11]
It is trite law that once a court has duly pronounced a final
judgment or order, the matter is
res
judicata
,
and it has itself no authority to correct, alter or supplement
it.
[8]
The reason is that
it is
functus
officio
;
its jurisdiction in the case having been fully and finally exercised,
its authority over the subject matter has ceased.
[9]
[12]
In light of the trite legal position alluded above, there is no doubt
in my mind that this application
meets the threshold.
[10]
[13]
It is regrettable that the reasons for the impugned order were not
furnished within a reasonable
time in relation to an issue of law,
dispositive of the case. In terms of note 9 (ii) to article 9
of the Code of Judicial
Conduct adopted in terms of
section 12
of the
Judicial Service Commission Act 9 of 1994
a number of decisions do
not necessarily require reasons
[11]
because the reasons are usually self-evident. The note goes
further to state that if reasons in such cases are later reasonably
required, they must be given within a reasonable time.
[14]
It is incumbent upon a judge to give judgment promptly and without
undue delay, and litigants
are entitled to judgment as soon as
reasonably possible.
[12]
This
principle applies
a
fortiori
to the furnishing of reasons. The instant matter demonstrates
the complications associated with giving brief reasons and
undertaking to provide full reasons later or when requested to do so.
In relation to that the Honourable then Chief Justice
Corbett
remarked:
“
The practice
referred to (that is, an immediate order, reasons later) leaves no
room for afterthought or changing one’s mind
about the case.
You should follow it only when you are convinced that no amount
of subsequent consideration or research,
and more particularly the
actual writing of the reasons can possibly lead one to a different
conclusion.
Another disadvantage of
the practice of giving an order, reasons later, is the delay which
often occurs in the furnishing of those
reasons. I think that
sometimes there is a feeling that parties have their order and there
is no urgency about the reasons.
This is the first step down
the slippery slope of procrastination, which is part of the law’s
notorious delay. My
advice is that you treat such reasons with
the same urgency and expedition as you devote to your ordinary
reserved judgment, if
anything, they should enjoy priority. There is
nothing worse than allowing a matter to become stale; to lose one’s
grasp
of the case and one’s recollection of the reasons which
prompted the order. Moreover, the parties are still just as
interested
in the reasons despite the order having been granted; and
further proceedings may be contemplated, which could depend on the
reasons
and the way in which they are formulated.”
[13]
[15]
The cautioning remarks by the former Chief Justice were not heeded in
this matter, with the result
that with the passage of time the judge
became tempted to change his mind about the case.
[14]
Add to this, the fact that a possible appeal which had been
contemplated by the respondent against the initial order depended
on
the reasons, the issuing of which was delayed.
[15]
[16]
Here is why I say the central issue of law emerging from a reading of
the papers could and should
have been dealt with at the outset.
Section 35
has stood constitutional muster.
[16]
It is not conceivable that on the pleaded facts the respondent could
seek compensation outside of COIDA. I do not see
how the attack
on
section 44
of COIDA will advance the respondent’s case.
These are matters for consideration at another stage. No more need
thus
be said on the merits.
[17]
The application must succeed. There is no reason why the usual cost
order should not be made
namely, that costs be in the appeal.
[18]
Consequently-
(a) The applicant is
granted leave to appeal to the Full Court of this Division against
the order dated 23 June 2019 in so
far as it grants the respondent
leave to amend the amended particulars of claim and directs that
costs be in the cause.
(b) The
costs of the application for leave to appeal shall stand over for
determination by the court hearing the appeal.
_______________________
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Counsel
for the applicant / defendant
:
B C Dyke SC
Instructed
by
: Brown Braude
and Vlok Incorporated
Newton
Park
Port
Elizabeth
Counsel
for the respondent / plaintiff
:
D
Khumalo SC
Instructed
by
: Gildenhuys Malatjie Inc
c/o
Strauss Daly Inc
Newton
Park
Port
Elizabeth
Date
heard
: 25
September 2019
Date
delivered
: 8 October 2019
[1]
The section provides that leave to appeal maybe granted by the
judge or judges against whose decision an appeal is to be
made or,
if not readily available, by any other judge or judges of the same
court or Division.
[2]
The judge who granted the impugned order was Mageza AJ.
[3]
The plaintiff in the action from which this application arises
(the main action).
[4]
The defendant in the main action.
[5]
Compensation for Occupation Injuries and Diseases Act 130 of
1993 (COIDA).
[6]
Per
Renqe
AJ.
[7]
Per
Mageza
AJ.
[8]
Herbstein and Van Winsen, The Civil Practice of the Supreme Court of
South Africa (5
th
edition) vol 1 p926
[9]
Firestone
South Africa (Pty) Ltd vs Gentiruco
1977(4) SA 298(A) at 306 F-G; also see
Gobo
Gcora Construction and Project and two Others v Nelson Mandela Bay
Municipality and Others
[2019]
JOL 42078
(case no. 992/16), reportable, but as yet unreported
judgment by Van Zyl DJP delivered on 16 April 2019; also see
Zondi
v Member of the Executive Council for Traditional and Local
Government Affairs
ZACC 18;
2006 (3) SA 1
(CC);
2006 (3) BCLR 423
(CC) at para [27],
where it was held:
“
Under
common law the general rule is that a judge has no authority to
amend his or her own final order. The rational for
this
principle is two-fold. In the first place a judge who has
given a final order is
functus officio
. Once a judge
has fully exercised his or her jurisdiction, his or her authority
over the subject matter ceases. The
other equally important
consideration is the public interest in bringing litigation to
finality. The parties must be assured
that once an order of
court has been made, it is final and they can arrange the affairs in
accordance with that order.”
[10]
The test is whether another court
would
come
to a different conclusion. See
South
African Breweries (Pty) Ltd (“SAB”) v The Commissioner
of South African Revenue Services (“SARS”)
( case number 3234/15, an unreported judgment of the Gauteng
Division, Pretoria by Hughes J, delivered on 23 March 2017), at
para
5.
[11]
For example unopposed cases and interlocutory rulings.
[12]
Botha v
White
[2003] All SA 362
(T); also see
Pharmaceutical
Society of SA & Others v Minister of Health & Another; New
Clicks SA (Pty) Ltd v Tshabalala-Msimang N.O.
& Another
[2005] 1 All SA 326 (SCA); 2005 (3) SA 238 (SCA).
[13]
The Honourable MM Corbett ‘Writing a Judgment’
(1998)
115 SALJ 116
at page 118. See also
National
Director of Public Prosecutions v Naidoo & Others
ZASCA 143;
2011 (1) SACR 336
(SCA);
[2011] 2 All SA 410
(SCA) at
para 20.
[14]
Especially if one has regard to the earlier comment he made when
granting the impugned order that in light of
Jooste
v Score Supermarket Trading (Pty) Ltd
(Minister
of Labour Intervening)
[1998] ZACC 18
;
1999 (2) SA 1
(CC);
1999 (2) BCLR 139
(CC) (
Jooste
)
there was nothing to be “
persuaded
by
”.
[15]
At the hearing of the matter I was informed, somewhat tentatively,
by Mr
Khumalo
who appeared for the respondent, that the respondent had always been
bent on appealing the initial order.
[16]
Jooste
above
n 14.