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[2021] ZAGPPHC 12
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Independent Examinations Board v Umalusi and Others (83440/2019) [2021] ZAGPPHC 12 (7 January 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 83440/2019
In
the matter between:
INDEPENDENT
EXAMINATIONS BOARD
Applicant
(Respondent
in the application for leave to appeal)
and
UMALUSI
First
Respondent
(Applicant
in the application for leave to appeal)
PROFESSOR
JD VOLMINK, NO
Second Respondent
DOCTOR
MS RAKOMETSI, NO
Third Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
AC BASSON, J
[1]
This is an application for leave to appeal
brought by the first respondent (“Umalusi”) against an
interlocutory ruling
of this court refusing Umalusi permission to
file a further affidavit. The application to file a further affidavit
was dismissed
with costs, such costs to include the costs of two
counsel where so employed.
Test for leave to
appeal
[2]
The merits of the application for leave to appeal must be considered
against the background
of the test for leave to appeal. It is now
trite that section 17(1)(a)(i) of the Superior Courts Act
[1]
have raised the threshold for grating leave to appeal. Bertelsmann, J
in
The
Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others
[2]
explains:
"[6]
It is clear that the threshold for granting leave to appeal
against a judgment of a High Court has
been
raised in the new Act. The former test whether leave to appeal should
be granted was a reasonable prospect that
another court
might come to a different conclusion, see
Van
Heerden v Cronwright & Others
1985
(2) SA 342
(T)
at 343H. The use of the word "would" in the new
statute indicates a measure of certainty that
another
court will differ from the court whose judgment is sought to be
appealed against."
[3]
The Supreme Court of Appeal in
S
v Smith
[3]
also
had
occasion to consider what constituted reasonable prospects of success
in terms of section 17(1)(a)(i):
"[7]
What the test of reasonable prospects of success postulates is 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 order to succeed, therefore,
the appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects
are not remote, but
have a realistic chance of succeeding. More is required to be
established than that there is a mere possibility
of success, that
the case is arguable on appeal or that the case cannot be categorised
as hopeless. There must, in other words,
be a sound, rational
basis for the conclusion that there are prospects
of success on appeal."
[4]
There must therefore exist more than just a mere possibility that
another court will,
not might, find differently on both facts and
law.
Is this order
appealable?
[5]
This appeal essentially hinges upon the question whether or not an
appeal
court has jurisdiction to hear this appeal. Umalusi argues
that it does. The Independent Examinations Board (“IEB”)
holds a different opinion. The IEB argues that Umalusi is seeking
leave to appeal before the merits of the matter have been considered
or decided and thus opposes this application on the basis that the
order is not appealable, alternatively, that the appeal, in
any
event, has no prospects of success.
[6]
Umalusi advances several grounds of appeal.
[4]
It argues,
inter
alia
,
that this court erred in rejecting the explanation of a
miscommunication between Umalusi and its legal team and instead
finding
that Umalusi waited until the last possible moment to file
its further affidavit; that the court erred in finding that any
prejudice
which would be caused by allowing the further affidavit,
cannot be resolved or ameliorated by way of an appropriate cost
order;
and that this court misdirected itself in finding that a
completely new and contradictory case was made out in the further
affidavit.
I have considered all the grounds of appeal although I do
not deal with each and every ground of appeal explicitly in this
judgment.
For the reasons, set out herein below, I am of the view
that firstly, the order is not appealable and secondly, there are, in
any
event, no reasonable prospects that another court will come to a
different conclusion.
[7]
The IEB submits that the order is not appealable for two reasons:
Firstly, an order
dealing with the question whether or not to file a
further affidavit is not appealable. In this regard the Supreme Court
of Appeal
has categorically declined to hear applications for leave
to adduce a further affidavit. See in this regard
Adams & Adams Attorneys v Pointer Fashion
International CC
[5]
where
the court held as follows:
“
[4] That
recitation of the history of the litigation, and the description of
what was before Prinsloo J and the
orders that he made, makes it
clear that he was dealing with an interlocutory matter, namely,
whether to permit the new legal point
to be raised by Pointer. The
order was purely procedural in nature and disposed of no issue in the
litigation between the parties.
In the circumstances on
well-established authority the order was not appealable.”
[8]
Umalusi relies on two decisions in support of its argument that the
rejection of a
further affidavit can ground an appeal on its own. The
IEB contends that neither of the two judgments supports that
contention.
[9]
The first judgment relied upon is the decision of the Appellate Court
in
James
Brown & Hamer (Pty) Ltd (Previously named Gilbert Hamer & Co
Ltd) v Simmons, NO
("
Hamer
").
[6]
In
Hamer
the respondent sought leave to file a further affidavit (deposed to
by a certain Mr Owens). In the High Court, Henochsberg
J,
denied the application for leave to introduce a further affidavit.
After that ruling counsel for the respondent then conceded
the case
and the entirety of the application was dismissed. Counsel for
the respondent indicated to the court that he would
no longer be able
to satisfy the court that the applicant was entitled to the relief
sought. The dismissal of the application then
served before the Full
Bench on appeal. The issue of leave to file a further affidavit
was but one of the grounds of appeal.
What was before the Full
Bench was the
dismissal
of the entire application and not only the issue of leave to file a
further affidavit. This was therefore not an appeal, what is
colloquially termed as a piece-meal application for leave to appeal.
[11]
The
latter point ties in with the submission advanced on behalf of the
IEB that granting leave to appeal at this stage would result
in a
piece-meal appeal. Hearing appeals piece-meal has consistently been
discouraged by our courts. In
Health
Professions Council of South Africa and another v Emergency Medical
Supplies and Training CC t/a EMS
[7]
the Court, for example, cautioned against granting leave to appeal in
circumstances where the issue on appeal is only but one of
the issues
to be decided and where the balance of the issues in the matter have
yet to be determined.
[11]
Hamer
is
therefore not authority for the proposition that a court will
independently consider an appeal on the basis whether or not the
court ought to have allowed a further affidavit. To restate: the
facts in
Hamer
are
clearly distinguishable from the present matter. There the entire
application has been dismissed. In other words, the merits
have been
disposed of finally by virtue of the order dismissing the
application. In this matter, the court has not pronounced on
the
merits at all. The merits in this matter are still very much alive.
[12]
The second matter on which Umalusi relies is the decision of the
Appellate Division in
Zweni
v Minister of Law and Order
.
[8]
Umalusi contends that even though an order may not necessarily
possess all of the three attributes indicative of an order or
judgment,
such an order may nonetheless remain appealable if it has
final jurisdictional
[9]
effect
or is such to “
dispose
of any issue or any portion of the issues in the main action or suit
”
or “
irreparable
anticipates or precludes some of the relief which would or might have
been given at the hearing
”.
[10]
[13]
The Court in
Zweni
identified the following three attributes
of “
a judgment or order”
:
“
7.
In determining the nature and effect of a judicial pronouncement,
'not merely the form of the order must be considered but also,
and
predominantly, its effect'…
8.
A 'judgment or order' is a decision which, as a general principle,
has three attributes, first, the decision must be final in
effect and
not susceptible of alteration by the Court of first instance; second,
it must be definitive of the rights of the parties;
and, third,
it must have the effect of disposing of at least a
substantial portion of the relief claimed in the main
proceedings….
The second is the same as the oft-stated requirement that a
decision, in order to qualify as a judgment
or order, must grant
definite and distinct relief…”
[11]
[14]
With reference to the decision in
Zweni
Umalusi submitted that the order of this court refusing Umalusi
permission to file a further affidavit is, firstly, final in its
effect and not susceptible to alteration; secondly, definitive of the
rights of the parties and; thirdly irreparably precludes
the adducing
of the evidence contained in the further affidavit at the hearing.
Umalusi further submits that the evidence which
were sought to be
introduced in the further affidavit is relevant and crucial to a
proper ventilation of the issues.
[15]
IEB disagrees with this submission and submits that Umalusi
misidentifies the right at play.
The right which must be
finally determined is the relief sought in the main application - not
the "right" to adduce further
evidence. Umalusi’s
right to relief sought in the application is the
dismissal
of the review application. This issue has not yet been decided. When
this court refused permission to file a further affidavit,
it did
not, in doing so, pronounce on the merits of the application nor did
it dispose of at least a substantial portion of the
relief claimed in
the main proceedings. The court in
Zweni
explains:
“
Stated
somewhat differently, a decision is a ruling if it does not affect
the relief sought in the main action -
Nxaba
v Nxaba (supra)
;
Heyman
v Yorkshire Insurance Co Ltd
1964
(1) SA 487 (A)
at
490H-491C;
Holland
v Deysel
1970
(1) SA 90 (A)
at
93A-C - or because no relief was granted on that claim
(Union
Government (Minister of the Interior) and Registrar of
Asiatics (supra
at
50-51)). See also
Levco
Investments (Pty) Ltd v Standard Bank of SA Ltd
1983
(4) SA 921
(A)
at
928.
In
the light of these tests and in view of the fact that a ruling is the
antithesis of a judgment or order, it appears to me that,
generally speaking, a non-appealable decision (ruling) is a
decision which is not final (because the Court of first instance
is
entitled to alter it), nor definitive of the rights of the parties
nor has the effect of disposing of at least a substantial
portion of
the relief claimed in the main proceedings. It is not in dispute that
the decision of Goldstein J is characterised by
all three these
negative integers.”
[16]
The true nature of the order granted by this court is thus an
interlocutory which is not final
in effect. The authors in
Herbstein
& Van Winsen
[12]
explains:
"An
interlocutory order is an order granted by a court at an intermediate
stage in the course of litigation, settling or giving
directions with
regard to some preliminary or procedural question that has arisen in
the dispute between the parties. Such an order
may be either purely
interlocutory or an interlocutory order having final or definitive
effect. The distinction between a purely
interlocutory order and an
interlocutory order having final effect is of great importance in
relation to appeals. The policy underlying
statutory provisions
prohibiting or limiting appeals against interlocutory orders is the
discouragement of piece-meal appeals."
[17]
Umalusi has therefore not met the
Zweni
-test.
Consequently, the decision of this court to disallow the filing of a
further affidavit it not final in nature and effect
and therefore not
susceptible to appeal.
Are there any
prospects of success on appeal?
[18]
Although I am not persuaded that Umalusi met the jurisdictional
requirements to engage the appellate
court, this application - even
if it did (which it does not) - has no prospects of success. Briefly:
No exceptional circumstances
have been advanced by Umalusi to justify
to be permitted to file a further affidavit. As pointed out in
the judgment, Umalusi’s
explanation for the about-turn is
wanting: Umalusi relied on the absence of annexure AA10 as a basis
for the need for the further
affidavit whereas this annexure was
attached twice to the founding papers. I am in agreement with
the submission on behalf
of the IEB that Umalusi has provided nothing
but remissness as an explanation. Also, and importantly, the
prejudice that will result
were leave to file a further affidavit
granted, is significant. As a result of Umalusi’s complete
volte
face
change of justification, "
the
entire application has to a large extent been rendered obsolete: This
is not the kind of prejudice that can be cured by a costs
order
."
[13]
[19]
I am thus not persuaded that another court will not come to a
different conclusion in this regard
as Umalusi's
volte-face.
Not once has Umalusi relied on the explanation it seeks to rely on
now: Umalusi also did not rely on this explanation in
any of
its correspondence, meetings prior to the launch of these
proceedings, the record or its answering affidavit. The entire
basis
of the dispute between the parties, and the present application is
premised on an explanation which Umalusi now accepts does
not explain
the increase in fees. The prejudice and the massive wasted costs that
will result in allowing Umalusi to file a further
affidavit cannot be
cured if Umalusi can curate its reasons after the IEB has challenged
the reasons. Also, the prejudice is not
only wasted costs, but also a
fair procedure to hold a public body to account for the exercise of a
public power.
[20]
The application for leave to appeal therefore has not prospects of
success.
Order
“
The
application for leave to appeal is dismissed with costs, such costs
to include the costs of two counsel where so employed.”
AC BASSON
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION OF
THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 7 January 2021.
Appearances
For
the applicant:
AG South SC
Instructed
by: Macrobert Inc
For
the respondents:
Greg Fourie SC
Adv Irene de Vos
Instructed
by: Brian Bleazart Attorneys
[1]
Act
10 of 2013.
[2]
2014
JDR 2325 (LCC).
[3]
2012
(1) SACR 567
(SCA).
[4]
Umalusi
raised 19 grounds for leave to appeal.
[5]
(324/2013)
[2014] ZASCA 11
, 2014 JDR 0511 (SCA).
[6]
1963
(4) SA 656
(A).
[7]
2010
(6) SA 469 (SCA).
[8]
1993
(1) SA 523
(A)
.
[9]
See
Jacobs and Other v Baumann NO and Others
2009 (5) SA 432
(SCA) at 436F – G.
[10]
Ibid
.
[11]
Zweni
at 535I – 536B.
[12]
5th
Ed, 2009 chapter 39 at 1205.
[13]
Judgment
ad
para
[29].