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2022
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[2022] ZANCHC 45
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Scholtz and Another v Rossouw and Another (689/2020) [2022] ZANCHC 45 (26 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: 689/2020
Date
heard: 08-11-2021
Date
delivered: 26-08-2022
Reportable:
Yes/No
Circulate
to Judges: Yes/No
Circulate
to Magistrates: Yes/No
In
the matter between:
ANDRIES
WIKUS SCHOLTS
1
st
Applicant/Respondent
HERTZOG
VENTER
2
nd
Applicant/Respondent
and
JACOBUS
ANDRE NEL ROSSOUW
1
st
Respondent/Applicant
RYNO
ROODS
2
nd
Respondent/Applicant
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
This is an application for leave to
appeal brought by the respondents in the main application against the
whole judgment and paragraphs
1 to 4 of the order made in the
aforesaid application. I will continue to refer to the parties
as described in the main application.
2.
As the main application was one of some
urgency, I made an order after hearing argument on 23 October 2020
and reserved the reasons
therefore. The order made reads as
follows:
(1)
The first and second respondents
are to make the applicants’ 7 (seven) rhinoceros available to
them for collection within
7 (seven) days of this order.
(2)
The first respondent is to hand
over the original microchip information and VGL information, to the
extent that he has it in his
possession, in respect of the rhinoceros
to the applicants.
(3)
The applicants are to pay the
amount of R120 000, 00 (ONE HUNDRED AND TWENTY THOUSAND RAND) to
the first respondent immediately
after the rhinoceros have been
handed over to the applicants.
(4)
The first and second respondents
are to pay the costs of this application jointly and severally, the
one paying the other to be
absolved.
3.
On 11 November 2020 the respondents
filed a request for reasons for the order and before the reasons were
given, filed their notice
of application for leave to appeal on 11
January 2021.
4.
The applicants opposed the application
for leave to appeal and in an affidavit dated 26 January 2021
objected essentially to:
(i)
The fact that the respondents had
unconditionally and without any reservation of rights complied with a
substantive portion of the
order by making the rhinoceros available
for collection within seven days of the order and that the rhinoceros
were removed from
the second respondent’s farm on 30 October
2020 as per paragraph 1 of the order. Likewise the respondents
have accepted
payment of R120 000, 00 as per paragraph 3 of the
order. There would therefore be nothing left to appeal against;
(ii)
As a result of the compliance an appeal
would have no practical result or effect.
(iii)
The fact that the notice of application
was brought out of time with no application for condonation. In
terms of Rule 49(1)
(b) the application had to be made within 15 days
of the order i.e. by 13 November 2020.
5.
At the hearing of the application for
leave to appeal Mr Goodman SC indicated that the applicants would not
pursue the issue of
the late notice of application.
6.
With regard to the merits, the essence of the respondents grounds of
appeal are
as follows:
6.1
That I erred in not finding that a material dispute of fact existed
which could not be determined on the papers;
6.2
That I erred in finding that the agreement relied upon by the
respondents was a
locatio conductio operis;
6.3
That I erred in not finding that the agreement was a reciprocal one
which would only entitle the applicants
to possession of the
rhinoceros upon performing their contractual obligations or tendering
performance of such;
6.4
That I erred in finding that it was not necessary for the applicants
to prove the termination of the conceded
right;
6.5
That I erred in not correctly applying the principles enunciated in
Plascon Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
1984(3) SA 623 (A) in relation to the approach to be adopted in
respect of disputes of fact in motion proceedings; and
6.6
That I erred, as a consequence of the above – mentioned
misdirection, in granting a cost order against
the respondents.
7.
With regard to the practical effect of an appeal in the light of the
rhinoceros
having been returned to the applicants, Mr Van Niekerk SC
for the respondents conceded that that particular factual situation
could
not be turned around but that it would not impact on the
further orders made. So for instance a court of appeal may
find,
on the basis that the respondents denied being in possession of
the VGL information referred to in paragraph 2 of the order, that
there was no factual basis upon which such an order could be made.
With regard to paragraph 3 of the order i.e. the payment
of R120 000,
00 to the applicant, the argument is that a court of appeal may, upon
finding that my judgment on the merits
of the application was flawed
as alluded to in the grounds of appeal, order that the R120 000,
00 be returned to the applicants
and/or that an order in terms of
prayer 4 of the Notice of Motion would be appropriate (prayer 4 can
be found on pages 4 to 5 of
the main judgment).
8.
As far as the VGL information goes, it will be noted that the order
in relation
thereto is qualified by the words “
to the extent
that he has it in his possession”.
An appeal of that
order would therefore have no practical effect.
9.
As far as a court of appeal may make an order in terms of prayer 4 of
the Notice
of Motion, such an order envisages action to be instituted
by the respondents for the amount they consider due to them by the
applicants.
To institute such an action does not require a
court order. An appeal on this basis would therefore also have
no practical
effect or result.
10.
Mr Goodman is correct that the only issue which would remain is that
of costs. In
terms of
s16(2)(a)(ii)
of the
Superior Courts Act
10 of 2013
, the question whether the decision would have no practical
effect or result is to be determined without reference to any
consideration
of costs, save in exceptional circumstances.
11.
The application for leave to appeal can be dismissed solely on the
basis that an appeal
would have no practical effect or result.
12.
Mr Goodman has however also raised the issue of peremption which I
deal with briefly.
13.
In
South African Revenue Services v Commission for Conciliation,
Mediation and Arbitration and Others
2017(1) SA 549 (CC) at 561
E-H the Constitutional Court states the position regarding peremption
as follows:
“
[26]
Peremption is a waiver of one’s constitutional right to appeal
in a way that leaves no shred of reasonable doubt
about the losing
party’s self resignation to the unfavourable order that could
otherwise be appealed against. Dabner
articulates principles
that govern peremption very well in these terms:
“
The
rule with regard to peremption is well settled, and has been
enunciated on several occasions by this Court. If the conduct of
an
unsuccessful litigant is such as to point indubitably and necessarily
to the conclusion that he does not intend to attack the
judgment,
then he is held to have acquiesced in it. But the conduct
relied upon must be unequivocal and must be inconsistent
with any
intention to appeal. And the onus of establishing that position
is upon the party alleging it.”
The
onus to establish peremption would be discharged only when the
conduct or communication relied on does “point indubitably
and
necessarily to the conclusion” that there has been an
abandonment of the right to appeal and a resignation to the
unfavourable
judgment or order.”
14.
It is clear that peremption is not lightly presumed. To this
effect Mr Van Niekerk
has pointed out that peremption had been raised
for the first time during argument (I presume without having given
the respondents
an opportunity to deal with the issue) and that in
any event the respondents had without unreasonable delay filed the
notice of
application for leave to appeal, which conduct cannot in
the circumstances be seen to constitute conduct inconsistent with an
intention
to appeal.
15.
The issue of peremption should however not have come as a surprise to
the respondents.
In their affidavit opposing the application
for leave to appeal the applicants clearly state
inter alia
that the respondents have without reservation of rights and
unconditionally complied with substantive portions of the order.
16.
The respondents have not filed an answering affidavit and have given
no explanation for
why there was compliance with the order if there
was a firm intention to appeal. The application for leave to
appeal was
also only filed two and a half months after the order,
with no explanation for the delay. There is no reason why I
should
not find that the right to appeal has been perempted.
17.
Finally and for the sake of completeness, as far as the merits are
concerned, I am not of
the opinion that an appeal, on the grounds
raised, would have any prospects of success.
In
the circumstances the application for leave to appeal is dismissed
with costs.
CC
WILLIAMS
JUDGE
For
Applicants/Respondents:
Adv.
J Van Niekerk SC
De
Klerk & Van Gend Inc.
c/o
Duncan & Rothman Attorneys
For
Respondents/Applicants:
Adv.
R Goodman SC
Spamer
Triebel Attorneys
c/o Van De Wall Inc