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2023
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[2023] ZAFSHC 504
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Van Den Berg v Land and Agricultural Development Bank of South Africa and Others (1955/2016) [2023] ZAFSHC 504 (22 December 2023)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case No: 1955/2016
Reportable: YES/NO
In the matter
between:
BAREND
JACOBUS VAN DEN BERG
Applicant
and
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH
AFRICA
1st
Respondent
SUIDWES
LANDBOU (PTY) LTD
2nd
Respondent
LORRAINE
MARLENE VAN DEN BERG
3rd
Respondent
BAREND
JACOBUS VAN DEN BERG N.O.
4th
Respondent
LORRAINE
MARLENE VAN DEN BERG N.O.
5th
Respondent
HENDRIK
STEPHANUS LODEWICUS
DU
PLESSIS N.O.
6th
Respondent
THE
REGISTRAR OF DEEDS
7th
Respondent
IN
RE
:
Case
No: 1955/2016
In
the matter between:
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH AFRICA
1st
Plaintiff
SUIDWES
LANDBOU (PTY) LTD
2nd
Plaintiff
and
BAREND
JACOBUS VAN DEN BERG
1st
Defendant
LORRAINE
MARLENE VAN DEN BERG
2nd
Defendant
BAREND
JACOBUS VAN DEN BERG N.O.
3rd
Defendant
LORRAINE
MARLENE VAN DEN BERG N.O.
4th
Defendant
HENDRIK
STEPHANUS LODEWICUS
DU
PLESSIS
N.O.
5th
Defendant
REGISTRAR
OF DEEDS, BLOEMFONTEIN
6th
Defendant
Coram:
Opperman
J
Heard:
29
September 2023
Delivered:
22
December 2023.
This
judgment was handed down in court and electronically by circulation
to the parties’ legal representatives
via
email and release to SAFLII on 22 December 2023. The date and time of
hand-down is deemed to be 15h00 on 22 December 2023
Judgment:
Opperman
J
Summary:
Application
for leave to appeal
JUDGMENT
[1]
The
applicant applies for leave to appeal against an order issued on 21
August 2023. This is the order:
[44]
ORDER
The application to
condone the late filing of an expert notice and summary in terms of
rules 36(9)(a) and (b) as well as an order
directing the parties in
the main action to comply with the purported interlocking provisions
of rule 36(9), rule 36(9A) and rule
37(A) are dismissed with costs
that includes the costs of two counsel.
[2]
The order
followed upon an opposed application in the main action in a trial
that is partly heard on various issues separated in
terms of rule
33(4) (“The rule 33(4)-trial”).
[3]
Brought
after the rule 33(4)-trial had already commenced on 27 November 2019
and pleadings that closed on 13 July 2016
,
it is
to now condone the late filing of an expert notice and summary as
contemplated in terms of rules 36(9)(a) and (b) as well
as an order
directing the parties in the main action to comply with the purported
interlocking provisions of rule 36(9), rule 36(9A)
and rule 37(A).
[4]
I gave
extensive reasons for the refusal of the application and will not
repeat it and burden this judgment. Nothing more can be
said. Nothing
can be added to what was already submitted in the grounds for appeal,
the heads of argument for the applicant and
the heads of argument for
the first and second respondents in respect of the application for
leave to appeal in the application
to call an expert witness.
The
arguments of the respondents are irrefutable and is it the law. These
documents must be read with this judgment for context.
[5]
This case
may not be allowed to go on appeal because:
1.
The order
is not appealable, and the decision sought on appeal will have no
practical effect or result;
2.
the
application for leave to appeal is fatally defective;
3.
there is no
reasonable prospect that another court would reach a different
conclusion; and
4.
the appeal
would not lead to a just and prompt resolution of the real issues
between the parties as contemplated in section 17(1)(c)
of the
Superior Courts Act 10 of 2013 ("the SC Act”).
[6]
The order
that is sought to be appealed is an interlocutory application and not
appealable and the
decision
sought on appeal will have no practical effect or result
.
The test and major factors to consider in an application for leave to
appeal on an interlocutory order have finally been established.
1.
The
interest of justice and thus potential for irreparable harm are vital
factors;
2.
guidance of
future cases;
3.
incorrect
statements of law in the judgment
a
quo
;
and
4.
the milieu
and perception in which the law must be interpreted may cause a need
for the adjudication of an interlocutory order on
appeal.
[1]
[7]
Each case
must be adjudicated on its own peculiar facts. A fixed maximum of
factors will not suffice and must be read with the test
as pronounced
in sections 16 of the SC Act and the law that evolved around it. As
was eloquently put
in
United Democratic Movement and Another v Lebashe Investment Group
(Pty) Ltd and Others
(1032/2019)
[2021] ZASCA 4
(13 January 2021) at paragraph [9] the
assessment is now: “…to accord with the equitable and
the more context-sensitive
standard of the interests of justice
favoured by our Constitution.”
[8]
The law
that is applicable on the appealability of the issue of interlocutory
orders has been declared upon in numerous cases since
the
Zweni-judgment (
Zweni
v Minister of Law-and-Order
1993 (1) SA 523 (A)).
[2]
The Cipla-dictum evolved hereafter (
Cipla
Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation and others
2018 (6) SA 440
(SCA)). As said, the final word was now spoken in
United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd
and Others
(1032/2019)
[2021] ZASCA 4
(13 January 2021). The majority judgment,
Sutherland AJA (Cachalia and Mbha JJA concurring) ruled at paragraph
[9] with reference
to case law that “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”:
[7]
What is required to render an order appealable is well trodden
judicial turf. It is
to the law on appealability in this regard we
now turn.
[9]
... More recently, in
Philani-Ma-Afrika v Mailula
, the Supreme
Court of Appeal had to decide whether an order of the high court
which puts an eviction order into operation pending
an appeal was
appealable. In a unanimous judgment by Farla JA, the Court held that
the execution order was susceptible to appeal.
It reasoned that it is
clear from cases such as
S v Western Areas
that “what is
of paramount importance in deciding whether a judgment is appealable
is the interests of justice.” As
we have seen, the Supreme
Court of Appeal has adapted the general principles on the
appealability of interim orders, in my respectful
view, correctly so,
to accord with the equitable and the more context-sensitive standard
of the interests of justice favoured by
our Constitution. In any
event, the Zweni requirements on when a decision may be appealed
against were never without qualification.
For instance, it has been
correctly held that in determining whether an interim order may be
appealed against regard must be had
to the effect of the order rather
than its mere appellation or form. In
Metlika Trading Ltd and
Others v Commissioner, South African Revenue Service
the Court
held, correctly so, that where an interim order is intended to have
an immediate effect and will not be reconsidered
on the same facts in
the main proceedings it will generally be final in effect. Lastly,
when we decide what is in the interests
of justice, we will have to
keep in mind what this Court said in
Machele and Others v Mailula
and Others
. In that case, the Court had to decide whether to
grant leave to appeal against an order of the High Court authorising
execution
of an eviction order pending an appeal. In granting leave
to appeal, Skweyiya J, relying on what this Court held in TAC (1),
reaffirmed
the importance of “irreparable harm” as a
factor in assessing whether to hear an appeal against an interim
order, albeit
an order of execution: “
The primary
consideration in determining whether it is in the interests of
justice for a litigant to be granted leave to appeal
against an
interim order of execution is, therefore, whether irreparable harm
would result if leave to appeal is not granted”.'
(Emphasis
added)
[9]
Whether
irreparable harm will eventuate will depend on the merits of each
case. It is not the case here; there are other remedies
to be
resorted to. This brings the added hurdle to be jumped by the
applicant and that is the leave to appeal itself on the facts
of the
case.
[10]
The right
to appeal is, among others, managed by the application for leave to
appeal. It may not be abused but the hurdle of an
application for
leave to appeal may never become an obstacle to justice in the
post-constitutional era. Access to justice is access
to justice.
[11]
The Supreme
Court of Appeal in
Ramakatsa
and others v African National Congress and another
[2021] JOL 49993
(SCA) in March 2021 ruled that:
[10]
Turning the focus to the relevant provisions of
the
Superior Courts Act (the
SC Act), leave to appeal may only be
granted where the judges concerned are of the opinion that the appeal
would have a reasonable
prospect of success or there are compelling
reasons which exist why the appeal should be heard such as the
interests of justice.
This Court in Caratco, concerning the
provisions of section 17(1)(a)(ii) of the SC Act pointed out that if
the Court is unpersuaded
that there are prospects of success, it must
still enquire into whether there is a compelling reason to entertain
the appeal. Compelling
reason would of course include an important
question of law or a discreet issue of public importance that will
have an effect on
future disputes. However, this Court correctly
added that "but here too the merits remain vitally important and
are often
decisive". I am mindful of the decisions at High Court
level debating whether the use of the word "would" as
oppose
to "could" possibly means that the threshold for
granting the appeal has been raised. If a reasonable prospect of
success
is established, leave to appeal should be granted. Similarly,
if there are some other compelling reasons why the appeal should be
heard, leave to appeal should be granted. The test of reasonable
prospects of success postulates a dispassionate decision based
on the
facts and the law that a court of appeal could reasonably arrive at a
conclusion different to that of the trial court. In
other words, the
appellants in this matter need to convince this Court on proper
grounds that they have prospects of success on
appeal. Those
prospects of success must not be remote, but there must exist a
reasonable chance of succeeding.
A sound rational basis for the
conclusion that there are prospects of success must be shown to
exist.
(Accentuation added)
[12]
The fact
remains that the judicial character of the task conferred upon a
presiding officer in determining whether to grant leave
to appeal is
that it should be approached on the footing of intellectual humility
and integrity, neither over-zealously endorsing
the ineluctable
correctness of the decision that has been reached, nor over-anxiously
referring decisions that are indubitably
correct to an appellate
court.
[3]
[13]
In the
instance the words of Binns-Ward J in the Mannat-case
supra
is eerily applicable to this case:
[9]
… It did not have any of the three attributes of a 'judgment
or order' identified
in Zweni. On the basis of the authorities just
referred to that counts strongly against it being regarded as
appealable. In addition,
there are no considerations that would make
it susceptible to appeal 'in the interests of justice’.
On
the contrary, it would be inimical to the interests of justice to
permit or encourage the applicants to continue on their misguided
path in the current litigation. It is purposeless, and nothing more
than an abusive imposition on the court's resources and an
unwarranted derogation from the prima facie rights of those of the
respondents who are applicant's judgment creditors
. (Accentuation
added)
[14]
The grounds
for appeal are out of context and fatally defective. The
general arrangement of the grounds on which the applicant
seeks leave
to appeal is to criticise the judgment on an almost
paragraph-by-paragraph and word-by-word basis without
specifying
what effect any asserted erroneous finding or conclusion
has on the correctness of the substantive order. The disjointed
approach
in which the applicant has expressed his application for
leave to appeal influences against the importance of interpreting the
judgment of the court as a whole and in context. The first and second
respondents are correct where they stated that the grounds
on which
the applicant seeks leave to appeal are not set out in precise, and
succinct and unambiguous terms. It is difficult to
distinguish what
and on what basis the applicant seeks to impugn the substantive order
made by the Court.
[15]
In
Democratic
Alliance v President of the Republic of South Africa and Others
(2124/ 2020) [2020] ZAGPPHC 326 (29 July 2020) at paragraphs [4] –
[5] the Full Court held as follows:
…
This dictum
serves to emphasise a vital point:
Leave
to appeal is not simply for the taking. A balance between the rights
of the party which was successful before the court a
quo and the
rights of the losing party seeking leave to appeal need to be
established so that the absence of a realistic chance
of succeeding
on appeal dictates that the balance must be struck in favour of the
party which was initially successful.
(Accentuation
added)
[16]
I reiterate
what was remarked in the judgment
a
quo
and
the other judgments in this case and the sentiments that were
expressed in the previous judgments caused by the applicant,
are
significant:
[43]
In conclusion, the record of this case will show that much of the
delay in this case was
caused by the continuous issues that arose
after the trial commenced and initiated by the applicant
in casu
and the other defendants in the main action. With due respect to the
right to access to justice and courts, continuous conduct
of this
nature will lead to a waste of financial and judicial resources and
obstruct the administration of justice that may not
be allowed. The
time has come for the matter to be vented at trial and concluded.
[17]
ORDER
The application for leave
to appeal is dismissed with costs; including the costs of two
counsel.
M OPPERMAN J
APPEARANCES
On
behalf of the applicant
H.S.L.
DU PLESSIS
HSL
du Plessis Attorneys
c/o
Lovius Block Attorneys
BLOEMFONTEIN
On
behalf of the first and second respondents
DIRK
VAN DER WALT SC
WILLEM
VAN ASWEGEN
Symington
& De Kok Attorneys
BLOEMFONTEIN
[1]
Ba-Mamohlala
and Big Mash JV v Mafube Local Municipality
and
others
,
Coram: Opperman, J, Date of hearing:
25 February 2022, Order Delivered: 7 March 2022, Free State Division
of the High Court of South Africa,
https://www.saflii.org/za/cases/ZAFSHC/2022/43.pdf.
[2]
Mannatt
and Another v De Kock and Others
(18799/2018)
[2020] ZAWCHC 54
(22 June 2020).
[3]
S v
Smith
2012 (1) SACR 567
(SCA) at [7].