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[2017] ZASCA 13
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Cilliers NO and Others v Ellis and Another (200/2016) [2017] ZASCA 13 (17 March 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JU
DGMENT
Reportable
Case No: 200/2016
In
the matter between:
CATHERINE
CLARIS CILLIERS NO
FIRST APPELLANT
CATHERINE
CLARIS
CILLIERS
SECOND APPELLANT
DELIA
DU TOIT NO
THIRD APPELLANT
and
EDWARD
ELLIS
FIRST RESPONDENT
LISA
ELLIS
SECOND RESPONDENT
Neutral
citation:
Cilliers
& others v Ellis & another
(200/2016)
[2017] ZASCA 13
(17 March 2017)
Coram:
Ponnan,
Willis and Zondi JJA and Fourie and Nicholls AJJA
Heard:
7 March
2017
Delivered:
17
March 2017
Summary:
Appeal :
non-appealability of order : appellants not having
locus
standi
to pursue the appeal : appeal dismissed.
ORDER
On appeal from:
Western
Cape Division of the High Court, Cape Town (Blommaert AJ sitting as
court of first instance):
The
appeal is dismissed with costs, which costs are to be borne, jointly
and severally, by the deceased estates of Mr J R Cilliers
and Mrs C C
Cilliers.
JUDGMENT
Fourie
AJA
(Ponnan,
Willis and Zondi JJA and Nicholls AJA concurring):
[1]
In this appeal the appellants were confronted with two significant
obstacles, namely whether: (a) the order appealed against
is
appealable; and (b) they have the necessary
locus
standi
to pursue the appeal.
[2]
The appeal, with the leave of the court a quo, is against the
following order made by Blommaert AJ in the Western Cape Division
of
the High Court, Cape Town:
‘
79.1
Plaintiffs succeeds (
sic
)
on the merits for such relief as he (
sic
)
can prove.
(subject
to paragraph 78 above).’
Paragraph
78 of the judgment reads thus:
‘
The
issue of the remedies sought by plaintiff and the possible bar
thereto as a result of plaintiff’s earlier election of
restitution in the urgent application, is also left over for later
determination as belonging in my view more appropriately to
the
quantum issue.’
[3]
Prior to the hearing of the appeal this court directed the parties,
if the appeal were to be persisted in, to address the following
issue:
‘
Can
it be said that the above order is final in effect or definitive of
the rights of the parties or that it disposes of any portion
of the
relief claimed and is thus appealable? Even if the order is indeed
appealable, given that the proceedings are unterminated
in the court
a quo, will entertaining an appeal at this stage not conduce (or at
least potentially conduce) to a proliferation
of piecemeal appeals?’
The
appellants persisted in the appeal and the parties filed
supplementary heads of argument in response to address
the query.
[4]
In order to understand the context in which the order was made, it is
necessary to briefly summarise the history of the litigation
between
the parties:
It
commenced with the sale of a timber dwelling (the property) situated
in Knysna, to the respondents, Mr and Mrs Ellis. The property
was
co-owned by Mr and Mrs Cilliers, but the former had passed away prior
to the sale of the property. Mrs Cilliers and a local
attorney, one
Ms Delia du Toit (Du Toit), had been appointed as the co-executors of
the estate of the late Mr Cilliers. Mrs Cilliers
signed the deed of
sale in her personal and representative capacity, while Du Toit
signed the agreement of purchase and sale in
her representative
capacity. The respondents duly paid the agreed purchase price of R1.6
million and the property was registered
in their joint names on 24
January 2011.
[5]
Soon after taking occupation of the property, the respondents
embarked upon extensive renovations during the course of which
they
allegedly discovered that the property suffered from material latent
defects, which had not been disclosed to them. In fact,
they
contended that these defects had knowingly been concealed and that
the sellers (in particular Mrs Cilliers) had fraudulently
failed to
apprise them of the defects. Therefore the respondents, after seeking
legal and other expert advice, launched urgent
proceedings as
applicants in the court a quo seeking the following relief:
(a)
That the sale of the property be cancelled.
(b)
That, upon the restoration of the property, the purchase price of
R1.6 million be repaid
to the respondents.
[6]
The respondents cited Mrs Cilliers in her representative and personal
capacity as the first and second respondent respectively.
In her
answering affidavit in opposition to the application, Mrs Cilliers,
inter alia, raised a defence of non-joinder, by virtue
of the
respondents’ failure to join Du Toit, the co-executrix of the
estate of the late Mr Cilliers, as a party to the application.
However, in their replying affidavit the respondents attached a
letter from Du Toit in which she consented to her joinder, whilst
indicating that she would not oppose the application and that she
abided the decision of the court.
[7]
The application was initially heard by Louw J, who referred the
matter to trial and ordered the filing of further pleadings.
The
respondents (as plaintiffs) filed a declaration to which Mrs Cilliers
in her personal and representative capacity filed a plea.
Du Toit,
who was cited as the third defendant in the declaration, did not
defend the action, filed no plea and, in accordance with
her earlier
indication, abided the decision of the court a quo.
[8]
In their declaration the respondents did not (as originally in their
application) limit the relief sought to the cancellation
of the sale
and restoration of the property and the purchase price, but rather
applied a blunderbuss approach claiming the following:
‘
A.
Cancellation of the agreement; and/or
B.
Damages in the amount of R472 573,58 [representing transfer costs,
building costs, expert reports and legal fees, rental for
alternative
accommodation and garden services]; and/or
C.
Restitution by the parties, respectively, of the property and of the
purchase price; alternatively
D.
Reduction of the purchase price in the amount of R1 472 573,58
[representing R1 million payable for the structural correction
of the
house on the property and the aforesaid amount of R472 573,58]
or in such amount as the court may determine.’
[9]
In her plea, Mrs Cilliers (in her representative and personal
capacity), inter alia, raised the
defence
that the respondents,
having initially in their notice of motion elected to cancel the sale
agreement and to claim restitution,
were legally bound by the
election and precluded from seeking alternative relief consequent
upon the enforcement of the agreement.
Differently put, it was
contended that the respondents were legally precluded from
approbating and reprobating.
[10]
In the event, the matter proceeded to trial before Blommaert AJ. On
the first day of the hearing, during the opening address,
counsel for
Mrs Cilliers recorded that the respondents should at that stage
indicate whether they persisted with the alternative
relief sought in
their declaration, and, if so, a point of law should be argued as to
whether the respondents could change their
election or whether they
were bound by their initial election and could only claim
cancellation of the agreement and restitution.
The trial judge shared
this view as appears from his following comment:
‘
.
. . but I think we do need to know whether it is restitution or
whether it is a reduction in purchase price or damages or whatever
you want to.’
[11]
Counsel for the respondents did not then respond to the trial judge’s
request, but during the morning of the second day
of the trial he
informed the court that he had taken instructions from the
respondents and would ‘during the course of this
morning . . .
put on record what it is that we’re going for’. Counsel,
however, did not honour this undertaking and
the trial was,
unfortunately, allowed to continue for another five days without any
clarity being provided as to what specific
relief was sought by the
respondents. I should add that, during her cross-examination, the
second respondent conceded that, by
virtue of the extensive
renovations done to the property, the respondents were no longer in a
position to restore the property.
She confirmed that this was a
deliberate choice that they had made.
[12]
A further unfortunate development in the trial was referred to by the
trial judge at para 27 of the judgment, as follows:
‘
Fairly
late in the proceedings, the parties sought an order separating the
issues of merit of the dispute from the quantum. This
request was
granted by myself.’
There
is no such order in the record of appeal, nor could we find any
reference in the transcript of the proceedings indicating
that any
separation order was made in terms of Uniform rule 33(4). We have,
however, been informed by counsel for the parties,
both of whom
appeared at the trial, that such an order was made, albeit in an
informal manner.
[13]
In
Absa Bank Ltd v Bernert
2011 (3) SA 74
(SCA);
[2010] ZASCA
36
para 21, this court stressed the importance of the proper
application of rule 33(4) by a trial court, as follows:
‘
It
is imperative at the start of a trial that there should be clarity on
the questions that the court is being called upon to answer.
Where
issues are to be separated Rule 33(4) requires the court to make an
order to that effect. If for no reason but to clarify
matters for
itself a court that is asked to separate issues must necessarily
apply its mind to whether it is indeed convenient
that they be
separated, and if so, the questions to be determined must be
expressed in its order with clarity and precision.’
In
Denel (Edms) Bpk v Vorster
2004 (4) SA 481
(SCA) para 3, this
court sounded a warning that:
‘
.
. . where the trial court is satisfied that it is proper to
make such an order – and, in all cases, it must be so
satisfied
before it does so – it is the duty of that court to ensure that
the issues to be tried are clearly circumscribed
in its order so as
to avoid confusion.’
[14]
In the present matter there was no attempt by the trial judge to
circumscribe or at least identify the issues relating to the
‘merits’
and this failure no doubt contributed to the unclear order that was
made at the conclusion of the hearing.
As recorded above, the court a
quo concluded that the respondents succeeded on the merits ‘for
such relief as he [they] can
prove’. By incorporating paragraph
78 of the judgment in the order, the trial judge made it clear that
the relief (if any)
to which the respondents may be entitled, would
only be determined at the subsequent hearing of ‘the quantum
issue’.
I should add that the failure of the respondents to
indicate what specific relief they would be seeking no doubt
contributed to
this order being made.
Appealability
of the order
[15]
It is trite that, generally speaking, a judgment or order is
susceptible to appeal if it has three attributes, namely:
‘
[T]he
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 it must have the effect of disposing of at
least a substantial portion of the relief claimed
in the main
proceedings.’
[1]
[16]
As emphasised in
Makaleng
,
these three attributes are not necessarily exhaustive. Even where a
decision does not bear all the attributes of a final order
it may
nevertheless be appealable if some other worthy considerations are
evident, including that the appeal would lead to a just
and
reasonable prompt solution of the real issues between the parties.
[2]
Furthermore, the interests of justice may be a paramount
consideration in deciding whether a judgment is appealable.
[3]
[17]
It is immediately apparent that the order of the court a quo does not
possess any of the attributes articulated in
Zweni
.
It is not final in effect, as the final word as to the relief to
which the respondents may be entitled, has not yet been spoken.
Such
relief, if any, will, according to the order, only be determined at
the subsequent quantum hearing. This means that the order
declaring
that the respondents are successful on the merits, is susceptible to
alteration by the trial court. The order is also
not definitive of
the rights of the parties as it does not grant any conclusive and
distinct relief. Apart from this, the order
does not finally dispose
of any relief claimed by the respondents.
[18]
A further consideration to be borne in mind, is that the proceedings
in the court below are unterminated. Therefore, the question
arises
whether the entertaining of an appeal at this stage would not offend
against the jurisprudence of this court, that the piecemeal
appellate
disposal of the issues in litigation should be avoided –
particularly where, as in this matter, the order of the
court a quo
does not dispose of even a portion of the relief claimed.
[4]
What has to be stressed is that the factual findings of the court a
quo in its judgment did not, in themselves, dispose of any
relief
claimed by the respondents, but were, as held in
Searle
at 301F-G, ‘merely steps along the way towards the final
conclusion and consequent order’. They do not at this stage
of
the litigation have any final effect.
[19]
It follows that, if this court were to entertain the appeal at this
stage, it would not be able to finally dispose of the issues
relating
to the merits. Therefore, when the court a quo finally determines the
merits of the matter, either party may again be
entitled to appeal.
As was held in
Searle
at 302C, that would be squarely in conflict with the basic approach
which generally shuns piecemeal appeals.
[20]
In these circumstances, the order of the court a quo lacks the
attributes of an appealable order and, in any event, an appeal
would
not lead to a final determination of any of the real issues between
the parties. Nor has it been demonstrated that the interests
of
justice demand that the order be considered to be appealable.
Standing
of the Appellants
[21]
Mrs Cilliers in her representative and personal capacity and Du Toit
in her representative capacity, sought and were granted
leave to
appeal the order of the court a quo, as the first, second and third
appellants, respectively.
[22]
As recorded above, Du Toit had abided the judgment of the court a quo
and one is perplexed by the fact that she was granted
leave to appeal
the order. The decision of Du Toit to abide the judgment clearly
constituted a peremption of the appeal. In
Hlatshwayo v Mare and
Deas
1912 AD 242
at 253, Solomon JA put it as follows:
‘
.
. . under our law, by acquiescence in a judgment the right to appeal
from it is perempted. And when once the appeal has been perempted,
there is an end of the matter; there is no going back from that
position.’
In
regard to the question what is meant by a party acquiescing in a
judgment, the learned judge of appeal added the following at
253:
‘
In
my opinion the effect of the authorities on this subject is to show
that when once a party to an action has done an act from
which the
only reasonable inference that can be drawn by the other party is
that he accepts and abides by the judgment, and so
intimates that he
has no intention of challenging it, he is taken to have acquiesced in
it.’
[5]
[23]
The conduct of Du Toit in abiding the judgment of the court a quo;
not filing a plea and not participating in the trial, constitutes
clear evidence of acquiescence resulting insofar as she is concerned
in a
peremption
of the appeal against the
order. It follows that Du Toit as the co-executrix in the estate of
the late Mr Cilliers, had no
locus
standi
to participate in this appeal as the third appellant.
[24]
The matter has been further complicated by the unfortunate passing of
Mrs Cilliers after the conclusion of the trial, but before
the
hearing of the appeal. On 11 January 2017 notice was given in terms
of Uniform rule 15 that Mrs Cilliers in her personal capacity
as the
second appellant was substituted in the appeal by the executrix of
her deceased estate. However, there has been no substitution
of Mrs
Cilliers in her representative capacity as the first appellant. As
stated by the authors D E van Loggerenberg and E Bertelsmann
Erasmus:
Superior Court Practice
2
ed vol 2 at D1-200, where an executor dies, the legal interest in the
suit passes, not to his or her estate, but to his or her
successor in
office as executor. See also
Chapman
v Rock
1915 EDL 33
at 35. Therefore, the estate of the late Mr Cilliers is
not represented in the appeal, as Du Toit has no
locus
standi
and her co-executrix, Mrs Cilliers, has passed away with no
substitution of her successor in office (if any) having taken place.
[25]
This is not the end of the sad tale. As recorded above, notice of the
substitution of Mrs Cilliers in her personal capacity
as the second
appellant by the executrix of her deceased estate, was given in terms
of rule 15. In so doing, the first proviso
to rule 15(2) was
overlooked, which states that, save with the leave of the court
granted on such terms as to it may seem meet,
no such notice shall be
given after the commencement of the hearing of any opposed matter.
The leave of the court a quo, or the
leave of this court, was not
sought prior to the filing of this notice in terms of rule 15. One
can imagine that in the adjudication
of an application of this nature
matters such as the solvency of the relevant deceased estate, the
provision of security and the
possible adjournment of the proceedings
may be relevant. Be that as it may, absent an application to court
for the substitution
of the executrix of the deceased estate of Mrs
Cilliers, the purported substitution is irregular and the executrix
has no
locus
standi
to participate in this appeal. It follows therefore that there is
simply no appellant herein with the necessary
locus
standi
to pursue the appeal.
Conclusion
[26]
For all the above reasons there is no proper appeal before this
court. The appeal accordingly falls to be dismissed.
[27]
With regard to costs, the first to third appellants persisted with
the appeal without heeding the timely warning of this court
that the
order may not have been appealable. In addition, no consideration was
given to the absence of legal standing to participate
in the appeal.
The respondents have been put to the expense of opposing an abortive
appeal. In the circumstances, the appellants,
or more accurately the
estates of Mr and Mrs Cilliers, are to bear the costs of the appeal.
[28]
In the result the following order is made:
The
appeal is dismissed with costs, which costs are to be borne, jointly
and severally, by the deceased estates of Mr J R Cilliers
and Mrs C C
Cilliers.
_____________________
P B
Fourie
Acting
Judge of Appeal
APPEARANCES:
For
the Appellants:
T A L L Potgieter SC
Instructed by:
Pieter Swanepoel
Attorneys c/o Heyns & Partners Inc.,
Cape Town
McIntyre & Van Der
Post Attorneys, Bloemfontein
For
the Respondent: A
Knoetze
Instructed by:
C & A Friedlander
Attorneys, Cape Town
Symington & De Kok,
Bloemfontein
[1]
Zweni v
Minister of Law and Order
1993
(1) SA 523
(A) at 532I-533B. See also
Jacobs
& others v Baumann NO & others
2009 (5) SA 432
(SCA);
[2009] ZASCA 43
para 9;
International
Trade Administration Commission v Scaw South Africa (Pty) Ltd
2012 (4) SA 618
(CC);
[2010] ZACC 6
para 49;
South
African Broadcasting Corporation Society Ltd & others v
Democratic Alliance & others
2016 (2) SA 522
(SCA);
[2015] ZASCA 156
para 63-65 and
FirstRand
Bank Limited t/a First National Bank v Makaleng
[2016] ZASCA 169
para 15.
[2]
See
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1
(A) at 10F-11C.
[3]
Philani-Ma-Afrika
& others v Mailula & others
2010
(2) SA 573
(SCA);
[2009] ZASCA 115
para 20 and
Nova
Property Group Holdings Ltd & others v Cobbett & another
2016 (4) SA 317
(SCA);
[2016] ZASCA 63
para 8.
[4]
See
Guardian
National Insurance Company Ltd v Searle NO
1999 (3) SA 296
(SCA) at 301B-E.
[5]
See too
Gentiruco
AG v Firestone SA (Pty) Ltd
1972 (1) SA 589
(A) at 600A
;
Natal Rugby Union v Gould
[1998] ZASCA 62
;
1999
(1) SA 432
(SCA) at 443E-G and
Fick
v Walter & another
2005 (1) SA 475
(C) at 480-482.