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[2021] ZAGPPHC 56
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Myeni v Organisation Undoing Tax Abuse and Another (15996/2017) [2021] ZAGPPHC 56 (15 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHERS
JUDGES: YES/
NO
(3)
REVISED
15
February 2021
Case
No: 15996/2017
In
the matter between:
DUDUZILE
CYNTHIA
MYENI
APPELLANT
and
ORGANISATION
UNDOING TAX ABUSE NPC
FIRST
RESPONDENT
SOUTH
AFRICAN AIRWAYS PILOTS’
ASSOCIATION
SECOND RESPONDENT
Section
18 of Superior Courts Act – execution of principal judgment and
order – 18(4)(ii) – automatic right of
appeal against
execution of principal judgment and order – preliminary point
on jurisdiction – failure to timeously
lodge petition to SCA –
right of appeal lapsed – no existing right of appeal –
suspended judgment non-existent
– condonation application to
SCA – principal judgment and order executable and final
pending condonation application
– application premature –
appeal struck from the roll
JUDGMENT
THE
COURT
INTRODUCTION
[1]
On 27
May 2020 Tolmay J declared Ms. Dudu Myeni (“the appellant”)
to be a delinquent director in terms of section 162(5)
of the
Companies Act
[1]
based on the
finding that the appellant has seriously misconducted herself during
her tenure as the former non-executive chairperson
of South African
Airways SOC Ltd (“the principal order.”)
[2]
When
Tolmay J made her order declaring the applicant a delinquent
director, the order immediately came into operation on the date
of
the order (27 May 2020) and could be executed. When the
applicant filed her application for leave to appeal on 18 June
2020 –
which was well within the prescribed time period for the filing of an
application for leave to appeal
[2]
– the principal order was immediately suspended pending the
outcome of the application for leave to appeal. On 9 July
2020
the respondents (the Organisation Undoing Tax Abuse NPC and the South
African Airways Pilots’ Association) filed their
counter-application in terms of section 18 of the Superior Courts
Act
[3]
for the enforcement of
the principal order pending the outcome of the decision in the
application for leave to appeal.
[3]
On 22 December 2020, Tolmay J dismissed the
appellant’s application for leave to appeal and simultaneously
upheld the respondents’
counter-application in terms of section
18(1) and 18(3) of the Superior Courts Act. The relevant parts
of her order read
as follows:
“
2.
The application for leave to appeal is dismissed with costs, on a
party
and party
scale;
3.
The application in terms of
section 18 for
interim
enforcement
of the
court’s
order as set out in the judgement of 27 May 2020 is granted; and the
order granted will be immediately enforceable
pending the
finalisation of all appeal processes.”
[4]
The appellant now brings an appeal in terms of
section 18(4) of the Superior Courts Act against the order of Tolmay
J dated 22 December
2020. This section provides for an
automatic statutory appeal which is to be heard with extreme urgency.
SECTION
18(1) OF THE SUPERIOR COURTS ACT
[5]
It is
a trite principle that, in terms of the common law, the noting of an
appeal suspends the operation and execution of a judgement
pending
the outcome of the appeal.
[4]
Section 18(1) of the Superior Courts Act, whilst restating the
common law position,
[5]
provides that a party in whose favour judgment was given, may apply
to the High Court in terms of section 18(3) for an order that
the
execution and operation of the decision not be suspended pending the
decision of the application or appeal, but that the order
be
executed. A court may grant an order to execute under
exceptional circumstances and, in addition, where the applicant
proves on a balance of probabilities that he or she will suffer
irreparable harm if the court does not so order and that the other
party will not suffer irreparable harm if the court so orders
(section 18(3)). Section 18 of the Superior Courts Act reads
as
follows:
“
18
Suspension of decision pending appeal
(1) Subject
to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and
execution of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the
decision of the application
or appeal.
(2) Subject
to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of
a decision that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application for
leave to appeal or of
an appeal, is not suspended pending the decision of the application
or appeal.
(3) A court
may only order otherwise as contemplated in subsection (1) or (2), if
the party who applied to the court to order otherwise,
in addition
proves on a balance of probabilities that he or she will suffer
irreparable harm if the court does not so order and
that the other
party will not suffer irreparable harm if the court so orders.
(4) If a
court orders otherwise, as contemplated in subsection (1) —
(i) the
court must immediately record its reasons for doing so;
(ii) the
aggrieved party has an automatic right of appeal to the next highest
court;
(iii) the
court hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such
order will be automatically suspended, pending the outcome of such
appeal.
(5) For the
purposes of subsections (1) and (2), a decision becomes the subject
of an application for leave to appeal or of an appeal,
as soon as an
application for leave to appeal or a notice of appeal is lodged with
the registrar in terms of the rules.”
[6]
On 29 January 2021 the appellant’s legal
representative (Mr. Mabuza) wrote to the Judge President seeking the
constitution
of a Full Court and an urgent enrolment and hearing of
the section 18(4) appeal by the Full Court. Mr. Mabuza stated
in his
letter that a petition had been lodged in the Supreme Court of
Appeal (“SCA”) and that, that “court is accordingly
seized with that issue”. In a letter to the Judge
President, the respondents’ attorneys responded stating that
Ms. Myeni “had failed to file any application for leave to
appeal in the Supreme Court of Appeal (SCA) within the one month
period specified under section 17(2)(b) of the Superior Courts Act”,
that the Registrar of the SCA and the appellant’s
own
correspondent attorneys had confirmed that no petition had in fact
been lodged in the SCA and that consequently “the
order granted
by Tolmay J on 27 May 2020 is now in full force and effect.”
Mr. Mabuza responded to this letter admitting
that no petition
had in fact been filed in the SCA due to unspecified “logistic
problems”, but noted that a petition
for leave to appeal
together with an application for condonation would be filed in the
SCA the next day.
[7]
It is therefore common cause before us that the
application for leave to appeal to the SCA was not filed timeously in
terms of the
one-month period for an application for leave to appeal
to the SCA specified under section 17(2)(b) of the Superior Courts
Act.
It is also common cause that in terms of section 17(2)(b)
of the Superior Courts Act, this period expired on 22 January 2021.
PRELIMINARY
POINT
[8]
The respondents raised a preliminary point, as
foreshadowed in their attorney’s letter referred to above,
arguing that, by
virtue of the fact that no application has been
filed in the SCA, there is currently no pending application for leave
to appeal
against Tolmay J’s delinquency order of 27 May 2020.
The effect thereof, so argument went, is that the belated
petition
(coupled with an application for condonation) does not have
the effect of suspending the delinquency order. This, they
argued,
means that the delinquency order granted by Tolmay J is now
in full force and effect and that we were incompetent to hear this
urgent appeal in terms of section 18(4) against the section 18(3)
order which it was submitted had now been rendered moot: The argument
was further that, until the appellant is granted condonation in the
SCA for the late filing of the petition, the section 18(4)
appeal was
thus premature.
[9]
It is necessary to deal with this preliminary
point first. Only in the event that it is decided that the
preliminary point
is without substance, will we proceed to deal with
the requirements set out in section 18 and determine whether Tolmay J
was correct
that there are exceptional circumstances justifying the
granting of the execution order.
THE
RESPONDENTS’ SUBMISSIONS
[10]
The
appellant took issue with the preliminary point and, relying mainly
on the decision in
Ntlemeza
v Helen Suzman Foundation and Another
,
[6]
submitted that the fact that an application for leave to appeal had
not been filed timeously did not prevent this court from hearing
the
present application.
[11]
In
Ntlemeza
,
the SCA was similarly seized with an automatic appeal against an
execution order made by a full court of the High Court.
[7]
In that matter, the High Court presided over the review
application to have General Ntlemeza’s appointment set aside.
The High Court set aside the appointment of General Ntlemeza on
grounds of unfitness (“the principal order”).
Subsequently, General Ntlemeza applied for leave to appeal the
principal order. The respondents in turn filed a
counter-application
for a declarator that the operation and execution
of the principal order not be suspended by virtue of any application
for leave
to appeal or any appeal.
[12]
The full court dismissed the application for
leave to appeal and upheld the counter-application and ordered that
the principal order
be executed in full during the appeal process
(“the execution order”). The date of the execution
order was 12
April 2017 the reasons of which were provided on 10 May
2017. General Ntlemeza exercised his automatic right to appeal
the
execution order “to the next highest court” (the SCA)
as provided for in section 18(4)(ii).
[13]
The question on appeal before the SCA was whether
General Ntlemeza ought to be permitted to continue in his post as
National Head
of the Directorate for Priority Crime Investigation
pending the finalisation of an application for leave to appeal filed
in that
court. The point was raised on behalf of General
Ntlemeza that, because at the time when the application in terms of
section
18(3) was made to the High Court there was no appeal pending
against the principal order, the respondents’ application for
execution was premature. It was submitted that the
jurisdictional point was dispositive of the appeal before the SCA.
[14]
The
SCA considered the power granted to the court in terms of section 18
taking into consideration the general inherent power granted
to
courts in terms of section 173 of the Constitution
[8]
to regulate their own process. The court held as follows:
“
[29]
The preliminary point on behalf of General Ntlemeza …. does
not accord with the plain meaning of s 18(1). As pointed
out on
behalf of HSF and FUL, and following on what is set out in the
preceding paragraph, s 18(1) does not say that the court's
power to
reverse the automatic suspension of a decision is dependent on that
decision being subject to an application for leave
to appeal or an
appeal. It says that, unless the court orders otherwise, such a
decision is automatically suspended.”
[15]
It is
so that in the
Ntlemeza
matter, General Ntlemeza had not yet filed an application for leave
to appeal to the Supreme Court of Appeal at the time the execution
order in terms of section 18 was granted. To recap, the section
18 execution order was granted on 12 April 2017. The
application for leave to appeal against the High Court’s
execution order was filed a day later namely on 13 April 2017. The
application for leave to appeal against the principal order was filed
on 21 April 2017 (which was well within the time limit prescribed
by
the Rules).
[9]
General Ntlemeza filed his application for leave to appeal the
12 April order within the period allowed in section 17(2)(b).
The
urgent appeal in terms of section 18(4) was heard by the SCA on 2
June 2017. In the present matter, the applicant’s
right
to file an application for leave to appeal to the SCA has lapsed.
[16]
The difference between the factual matrix in the
Ntlemeza
matter and
the present matter is obvious: In the
Ntlemeza
matter, the application for leave to appeal against the principal
order was filed well within the one-month time period stipulated
in
section 17(2)(b) of the Act. Also, at the time when the urgent
appeal served before the SCA, the application for leave
to appeal the
principal order had, as already mentioned, been filed well within the
prescribed time limits which is not the case
before us.
[17]
Mr. Mpofu for the appellant submitted, with
reference to
Ntlemeza,
that this court should take into account that the parties in the
present matter have always anticipated that there would be further
appeals in the present matter. Because further appeal processes
were anticipated in the present matter, the fact that the
application
for leave to appeal to the SCA was not filed in time should not stand
in the way of this court hearing the present
urgent appeal.
[18]
This argument is misconceived. Section
18(1) provides that “…unless the court under exceptional
circumstances
orders otherwise, the operation and execution of a
decision which is the subject of an appeal for leave to appeal or of
an appeal,
is suspended pending the decision of the application or
appeal.” The quoted passage denotes that the existence of
an
application for leave to appeal or an ongoing appeal process is a
prerequisite for an application in terms of section 18 to arise.
Put differently, the wording of section 18(1) signifies that in the
absence of an application for leave to appeal or an appeal,
the
judgment and order in question are not suspended and are in fact
deemed final. The fact that the noting of an appeal
suspends
the execution of a judgment appealed against logically means that in
the absence of such an appeal, the judgment is not
suspended and is
in fact deemed executable and thus, final. Given that section
18 exists to regulate the position when an
application for leave to
appeal or an appeal against a judgment is pending, it stands to
reason that where no such application
for leave to appeal or appeal
is pending, the purpose of section 18 ceases to exist and as such,
the judgment and order are deemed
final and executable for all
intents and purposes.
[19]
As
such, an important question would then be what effect would the
lodging of the petition after the right to appeal has lapsed
then
have on the principal judgment’s order. Having regard to
the case law, in light of the belated petition now filed
by the
appellant, the principal judgment’s order continues to remain
operational for the mere fact that the service of an
application to
condone the late filing of the petition to the SCA does not suspend
the operation and execution of any order.
[10]
To conclude otherwise would give rise to an untenable situation in
law where, after an order has been operational for a number
of
months, a party could simply bring a condonation application which
would result in such an order suddenly being suspended.
Such a
situation would clearly give rise to far reaching consequences that
this court cannot condone.
[20]
In
Ntlemeza
,
the SCA did take into account that, because further appeal processes
were always highly likely and always in prospect,
[11]
the fact that an application for leave to appeal had not been filed
at the SCA at the time of the hearing of the application to
execute –
the one before the High Court having been dismissed – did
not curtail the court’s power in terms
of section 18, to
reverse the automatic suspension of a decision. This was
because the court’s power in terms of section
18(1) was not
dependant on that decision being subject to an application for leave
to appeal.
[12]
In
Ntlemeza
the following was further stated in this regard –
“
[32]
There can be no doubt that an application by HSF and FUL for leave to
execute, had there not been one earlier, could have been
brought and
would have been competent after the application for leave to appeal
was filed in this court. Courts must be the guardians
of their own
process and be quick to avoid a toing and froing of litigants. The
High Court's order achieved that end.
A proper case had been
made out by HSF and FUL for anticipatory relief. The High Court
reasonably apprehended on the evidence before
it that further appeals
were in the offing and issued an order that sought not just to
crystallise the position but also to anticipate
further appeal
processes. For all the reasons aforesaid there is no merit in
the preliminary point.”
[21]
Returning to the present matter: Whilst it is
correct that in the present matter, as in
Ntlemeza
,
further appeal processes have been anticipated (as is also evidenced
from a reading of the execution order by Tolmay J), the difference
is
that, in the present matter, the application for leave to appeal (the
petition) to the SCA of the principal order was filed
out of time.
In
Ntlemeza
the
application for leave to appeal was filed shortly after the execution
order was made and within the prescribed time period.
[22]
What is the effect thereof? We have already
referred to the submission on behalf of the respondents that the
failure of the
applicant to file the application for leave to appeal
to the SCA within the prescribed one-month period has the effect
that, by
operation of law, the order by Tolmay J dated 27 May 2020 is
now in full force and effect. On a proper application of the
law, this submission is correct.
[23]
This
issue was also pertinently considered by the High Court in
Panayiotou
v Shoprite Checkers (Pty) Ltd and Others
.
[13]
The
court in that matter pointed out that, in terms of section 18(5) of
the Superior Courts Act, and as a matter of fact and of
law, “a
decision becomes the subject of an application for leave to appeal or
of an appeal as soon as an application for
leave to appeal or a
notice of appeal is lodged with the registrar in terms of the rules”.
Section 18 thus contains
“the conditions necessary for a
judgment of the High Court to be suspended, pending a petition to the
Supreme Court of Appeal
for leave to appeal...”
[14]
[24]
For a decision to become the subject of an
application for leave to appeal, the application must have been
lodged in terms of the
Rules (section 18(5) of the Superior Courts
Act). Although section 18(4) grants an automatic right of
appeal to be heard
urgently, it does not dispense with the
requirement to comply with the time periods prescribed by the rules
for the launch of an
application for leave to appeal to the SCA.
[25]
Where
an application for leave to appeal is filed out of time, all that is
before the SCA is a condonation application. The
court in
Panayiotou
,
with reference to a plethora of authority,
[15]
explains:
“
[12]
It has been argued that s 18(5) is prescriptive and that the text
emphasises that the application for leave to appeal be lodged
with
the registrar 'in terms of the rules'. Accordingly, it is argued,
until (and only if) condonation is granted can the petition
be
'lodged'. All that is before the Supreme Court of Appeal at present
is an application for condonation, whose fate is uncertain.
In
support of this proposition reference was made to several
authorities.
[13] The failure to serve notices
of appeal or court records within the prescribed periods is
commonplace. The result of such
failures is that the appeals
lapse and require condonation to revive them.”
CONCLUSION
[26]
The application for leave to appeal in the
present matter has lapsed. In order for the application for
leave to appeal to
be revived, condonation will have to be granted by
the SCA. Until such time, there is no application as contemplated by
section
18(5) of the Superior Courts Act, and the ineluctable
consequence is that the section 18(4) appeal is not competent. We
further
hold the view that, although the length of the delay in
filing the application for leave to appeal to the SCA is negligible,
having
read the principal judgment of the court
a
quo
and the judgment in the application for
leave to appeal, the prospects of the appellant succeeding with her
condonation application
to the SCA are rather slim.
[27]
The appeal must clearly be struck off. In
respect of costs, both parties were
ad idem
that this is a self-standing application and that costs should follow
the result.
ORDER
[28]
In the event the following order is made:
1.
The application is struck from the roll.
2.
The appellant is to pay the costs, such costs to
include the costs of three counsel where so employed.
D MLAMBO
JUDGE PRESIDENT
OF THE HIGH COURT
GAUTENG DIVISION
OF THE HIGH COURT
V TLHAPI
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
OF THE HIGH COURT, PRETORIA
AC BASSON
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
OF THE HIGH COURT, PRETORIA
Delivered:
This judgment was prepared and authored by the Judges whose names are
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 15 February 2021.
APPEARANCES
Counsel
for the Appellant:
ADV. DC MPOFU SC
ADV. BN BUTHELEZI
ADV. N KEKANA
Instructed
by:
MABUZA ATTORNEYS
Counsel
for the Respondents:
ADV. C STEINBERG
ADV. C MCCONNACHIE
ADV. N KAKAZA
Instructed
by:
JENNINGS INC.
Date
of hearing:
8 February 2021
Date
of judgment:
15 February 2021
[1]
Act 71 of 2008.
[2]
In terms of Rule 49(1)(b) of the Uniform Rules of Court and section
17 of the Superior Courts Act.
[3]
Act 10 of 2013.
[4]
Ntlemeza v Helen
Suzman Foundation and Another
2017 (5) SA 402
(SCA)
ad
para 19 with
reference to the decision
in
South Cape Corporation (Pty) Ltd v Engineering Management Services
(Pty) Ltd
1977 (3) SA
534 (A).
[5]
Ibid ad
para
28.
[6]
Supra
note
4.
[7]
Because a full bench was constituted to hear the review and the
application to execute the principal order, the automatic appeal
had
to be brought before the SCA in terms of section 18(4).
[8]
Act 108 of 1996.
[9]
Ntlemeza supra
note
4
ad
para
33.
[10]
See
Panayiotou v
Shoprite Checkers (Pty) Ltd and Others
2016 (3) SA 110
(GJ) and
Modder
East Squatters and Another v Modderklip Boerdery (Pty) Ltd,
President of the Republic of South Africa and Others v Modderklip
Boerdery (Pty) Ltd
[2004] 3 All SA 169 (SCA).
[11]
Ntlemeza supra
note
4
ad
para
31.
[12]
Ibid ad
para
29.
[13]
Supra
note
10.
[14]
Ibid
ad
para
9.
[15]
Reference is
made,
inter
alia
,
to the well-known decision in
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, Amici
Curiae);
President
of the Republic of South Africa and Others v Modderklip Boerdery
(Pty) Ltd (Agri SA and Legal Resources Centre, amici
curiae) supra
note 10
ad
para
46: “
The
second was based on uniform rule 49(11), which provides that where
an appeal has been noted or an application for leave to
appeal made,
the operation and execution of the order is suspended. In this case,
as will appear soon in more detail, the ‘Modder
East
Squatters’ lodged their application for leave to appeal
together with an application for condonation some 18 months
after
the order had issued. The right to apply for leave to appeal by then
had lapsed. Rule 49(11) presupposes a valid application
for leave to
appeal to effect the suspension of an order.
[15]
In this case there was none.”