About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2022
>>
[2022] ZAECMKHC 46
|
|
East London Jewish Helping Hand and Burial Society (also known as The East London Chevra Kadisha) v Galperin and Others (1770/2020) [2022] ZAECMKHC 46 (2 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE NO: 1770/2020
In the matter between:
EAST LONDON JEWISH
HELPING HAND
AND BURIAL SOCIETY
(ALSO KNOWN AS
THE
EAST LONDON CHEVRA KADISHA)
Applicant
and
CHANOCH
GALPERIN
First respondent
THE JEWISH
ECCLESIASTICAL COURT (ALSO
KNOWN AS THE BETH DIN
OF JOHANNESBURG)
Second respondent
GIDEON FOX
N.O.
Fifth respondent
YOEL SMITH
N.O.
Sixth respondent
THE MASTER OF THE HIGH
COURT, GRAHAMSTOWN
Seventh respondent
JUDGMENT
LAING
J
[1]
This is an application for leave to appeal against the whole of the
judgment
of this court, handed down on 2 December 2021.
[2]
The matter has a complicated history. For immediate purposes, it is
necessary
to indicate that the judgment pertained to an application
to amend and a joinder application that were previously brought by
the
applicant (‘the Society’) in relation to an earlier
application that was brought by the first respondent (‘Rabbi
Galperin’). The earlier application (‘the main
application’) was for the findings of the second respondent
(‘the
Beth Din’) to be made an order of court.
[3]
At the time that the Society opposed the main application, it brought
a ‘conditional counter-application’ that it would pursue
only in the event that its opposition to the main application
was
unsuccessful. As it turned out, Rabbi Galperin subsequently withdrew
the main application. The parties, however, became embroiled
in
separate action proceedings which ultimately prompted the Society to
pursue its counter-application, but not before bringing
the present
application to amend, as well as the joinder application.
[4]
The grounds
for the application for leave to appeal include,
inter
alia
,
the following: the court ought to have found that Rabbi Galperin was
confined to the grounds set out in his notice of objection
and that
his contention to the effect that the averments made in the
counter-application were inextricably linked to the main application
did not appear in either the above notice or his opposing affidavit;
the court erred in relying upon such contention; the court
ought to
have found that paragraph 16 of the founding affidavit to the
counter-application, read with paragraphs 8 to 102 of the
answering
affidavit, only pertained to the facts applicable to the
counter-application and did not pertain to either the allegations
made by Rabbi Galperin in his founding affidavit in the main
application or to the pleadings in the separate action proceedings;
the court erred in finding that the paragraphs could not be
incorporated by reference, without qualification, into the founding
affidavit; the decision in
Pearson
and Hutton, NNO v Hitzeroth and others
[1967] 4 All SA 67
(E) was distinguishable from the present matter;
the court erred in finding that the counter-application would become
unmanageable
in the event that the application to amend and the
joinder application were granted; the court failed to apply the
relevant legal
principles, as enunciated in decided cases and the
matter of
Whittaker
v Roos and another; Morant v Roos and another
1911 TPD 1092
; the court erred in finding that the granting of the
applications in question would lead to the over-complication of the
matter
to the prejudice of Rabbi Galperin and the second, third and
fourth respondents; the court erred in relying upon the principle of
whether it was in the interests of justice to grant the application
to amend, rather than whether same was
bona
fide
and whether it would cause prejudice or an injustice; and the court
failed to exercise its discretion judicially,
[1]
having had regard to the relevant principles and facts of the matter.
[5]
The
provisions of
section 17(1)(a)
of the
Superior Courts Act 10 of 2013
provide that leave to appeal may only be given where,
inter
alia
,
the court is of the opinion that the appeal would have a reasonable
prospect of success. Consequent to the repeal of the Supreme
Court
Act 59 of 1959, it is generally accepted that a stricter test
applies. See
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen
(unreported, LCC case no. LCC 14R/2014, 3 November 2014), which was
cited with approval in
The
Acting National Director of Public Prosecution v Democratic Alliance
(unreported, GP case no. 19577/09, 24 June 2016).
[2]
The court must decide whether the appeal
would
have a reasonable prospect of success and there must be a sound,
rational basis for any conclusion to that effect. See
Four
Wheel Drive Accessory Distributors CC v Rattan NO
2019 (3) SA 451
(SCA), at 463F.
[6]
Turning
directly to the Society’s grounds of appeal, the Society’s
notice of intention to amend was limited to the deletion
of the word,
‘conditional’, wherever it appeared ‘in the heading
and body’ of the counter-application.
Its subsequent
application to amend was more expansive in nature, seeking leave also
to deliver a supplementary founding affidavit.
Accordingly, it would
be patently unfair to restrict Rabbi Galperin to the grounds set out
in his notice of objection which merely
addressed the society’s
terse notice of intention to amend. Furthermore, Rabbi Galperin
raises, squarely, the argument in
relation to the closeness of the
connection between the counter-application and the main application
in his heads of argument,
which was foreshadowed in both the notice
of objection and his opposing affidavit inasmuch as he indicated that
one of the reasons
for his objection to the proposed amendment was
that the Society sought to transform a conditional
counter-application (filed in
relation to an application which was
later withdrawn) into a ‘substantive stand-alone
application’.
[3]
[7]
The
contents of paragraph 16 of the founding affidavit to the
counter-application, read with paragraphs 8 to 102 of the answering
affidavit, set out in great detail the history of the dispute between
the parties. The averments are substantiated by numerous
annexures.
It cannot be said, as the Society argues, that they had nothing to do
with the allegations made by Rabbi Galperin in
his founding affidavit
in the main application and pertained only to the subject of the
counter-application. They represent the
basis upon which the Society
opposed the main application; they are the ‘relevant facts’
for such purposes
[4]
. This court
found that their incorporation by reference into an affidavit
intended for other purposes was problematic for the reasons
set out
in the judgment.
[8]
The general
principles expressed in
Pearson
and Hutton, NNO v Hitzeroth and others
are undoubtedly relevant and it is difficult to see how the above
authority, in that regard, is distinguishable from the present
matter. The granting of the applications would risk the ‘highly
cumbersome and undesirable course’ to which Addleson
J
referred, as well as the ‘considerable perusal and
cross-checking of the evidence and documents already filed’,
thereby incurring additional costs.
[5]
If the action is taken into account, too, then the prospect of
overlapping proceedings between the same parties becomes unavoidable
and the dispute as a whole becomes unmanageable.
[6]
The prejudice to the respondents is self-evident.
[9]
The wide
ambit of discretion that the court enjoys was stated unequivocally in
Whittaker
v Roos and another; Morant v Roos and another.
Moreover,
Wessels J made it clear that the purpose of granting an amendment was
to ensure that the court obtained ‘a true
account of what
actually took place’, such that a decision was not made on the
‘wrong facts’.
[7]
Here, the application for amendment is not so much for purposes of
placing the correct facts before the court, to allow for the
proper
ventilation of the dispute or for the real issues between the parties
to be decided, as for the Society to pursue a counter-application
as
a safeguard against the failure of its defences in relation to Rabbi
Galperin’s special plea.
[8]
The trial, however, remains the most appropriate forum in which to
test the relevant facts. It is far from satisfactory to permit
the
same or similar issues to be determined under a parallel process and
it remains unclear as to why the dispute cannot be decided
under a
single, consolidated set of proceedings. At the least, to grant the
application for amendment and the joinder application
would hamper
the efficient conduct and adjudication of the issues.
[10]
In
GMF Kontrakteurs (Edms) Bpk and another v Pretoria City Council
[1978] 2 All SA 407
(T), Franklin J emphasised, at 411, that:
‘
The granting or
refusal of an application for the amendment of pleadings is a matter
for the discretion of the Court, to be exercised
judicially in the
light of all the facts and circumstances of the case before it.’
[11]
This court, in reaching its decision, considered the effect of
granting the applications
and decided, ultimately, that the
counter-application would become unmanageable. Moreover, the
prejudice (to all parties) of overlapping
proceedings cannot be
ignored. Consequently, the court stands by the findings and order
previously made.
[12]
The granting or refusal of the applications involves the court’s
discretion. For
an appeal to succeed, the Society would need to
demonstrate that the exercise of such discretion was improper. See
Ciba-Geigy (Edms) Bpk v Lushof Plase (Edms) Bpk en ‘n ander
[2002] 2 All SA 525
(A), at 526. This court is not of the view that
the Society has demonstrated same successfully or established a
sound, rational
basis upon which to persuade the court that an appeal
would have a reasonable prospect of success.
[13]
Finally, senior counsel for Rabbi Galperin sought an order to include
the costs of two
counsel in the event that the Society’s
applications were unsuccessful. Whereas the nature of the dispute and
ensuing litigation
is convoluted and far from straight-forward, the
court is nevertheless satisfied that such an order would not be
justified.
[14]
In the circumstances, the application for leave to appeal is
dismissed with costs.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE:
For
the applicant:
Adv S Pincus SC, instructed by Whitesides Attorneys, Grahamstown.
For
the first respondent:
Adv IJ Smuts SC with Adv Miller, instructed by Wheeldon Rushmere and
Cole Inc., Grahamstown.
Date
of hearing:
29 July 2022.
Date
of delivery of judgment:
02 August 2022.
[1]
The Society used the term ‘judiciously’ in its grounds
of appeal, which appears to have been a misnomer when consideration
is given to discussion of the principle in the relevant case law.
[2]
See, too,
Notshokovu
v S
(unreported, SCA case no. 157/15, 7 September 2016).
[3]
See paragraph 5.2 of Rabbi Galperin’s notice of objection, as
well as paragraph 15 of Brin Brody’s answering affidavit.
[4]
The expression is used as the heading that precedes paragraphs 8 to
102 of the answering affidavit.
[5]
At 70.
[6]
The
problem of deciding ‘clearly linked’ issues side by
side, in separate proceedings between the same parties, was
raised
by
Lowe
J within the context of an application for the postponement of the
action. See [62] of this court’s earlier judgment,
n 18.
[7]
At 1102.
[8]
An application for amendment is usually granted when it is necessary
for deciding the real issues between parties or for allowing
the
proper ventilation of the dispute, provided that any injustice
caused can be remedied by an appropriate costs order. See
DR Harms,
‘Civil procedure: Superior Courts’, in
LAWSA
(Vol 4, 3ed, 2016), at 379.