About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 47
|
|
Neotel (Pty) Ltd v Telkom SA Soc Ltd and Others (605/2016) [2017] ZASCA 47 (31 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 605/2016
In
the matter between:
NEOTEL
(PTY)
LTD
APPELLANT
and
TELKOM
SA SOC
LTD
FIRST RESPONDENT
MOBILE
TELEPHONE NETWORKS
(PTY)
LTD
SECOND RESPONDENT
CELL
C (PTY)
LTD
THIRD RESPONDENT
DIMENSION
DATA (PTY) LTD T/A INTERNET
SOLUTIONS
FOURTH RESPONDENT
DR
STEVEN MNCUBE
NO
FIFTH RESPONDENT
MS
KATHARINA PILLAY
NO
SIXTH RESPONDENT
INDEPENDENT
COMMUNICATIONS
AUTHORITY
OF SOUTH AFRICA
SEVENTH RESPONDENT
VODACOM
(PTY)
LTD
EIGHTH RESPONDENT
INTERNET
SERVICE PROVIDERS’ ASSOCIATION
NINTH RESPONDENT
THE
WIRELESS ACCESS PROVIDERS’ GROUP
TENTH RESPONDENT
CRYSTAL
WEB (PTY)
LTD
ELEVENTH RESPONDENT
SEPCO
COMMUNICATIONS (PTY) LTD
TWELFTH RESPONDENT
VSNL
SNOSPV PTE LIMITED
THIRTEENTH RESPONDENT
NEXUS
CONNEXION SA (PTY) LTD
FOURTEENTH RESPONDENT
MINISTER
OF COMMUNICATIONS
FIFTEENTH RESPONDENT
MINISTER
OF TELECOMMUNICATIONS
AND
POSTAL
SERVICES
SIXTEENTH RESPONDENT
(HUGE
TELECOM (PTY) LTD
and
HUGE GROUP LIMITED
intervening
)
Neutral
citation:
Neotel
(Pty) Ltd v Telkom SOC & others
(605/2016)
[2017] ZASCA 47
(31 March 2017)
Bench:
Maya AP and Majiedt
JA and Fourie, Gorven and Coppin AJJA
Heard:
17 March 2017
Delivered:
31 March 2017
Summary:
Appeal :
Appealability : appeal against reasons for substantive order and not
the order itself: appeal struck from the roll for
lack of
jurisdiction: confirmed that an appeal does not lie against reasons
for an order or decision, but against the substantive
decision itself
: application to intervene to support appellant dismissed.
ORDER
On
appeal from
:
Gauteng Division of the High Court,
Pretoria (Fourie J sitting as court of first instance):
The
following order was made on 17 March 2017:
1.
The appeal is struck from the roll.
2.
The application to intervene in the appeal is dismissed.
JUDGMENT
Coppin
AJA (Maya AP and Majiedt JA and Fourie and Gorven AJJA concurring):
[1]
Immediately after hearing counsel on the issue of appealability, the
appeal was struck from the roll and an application to intervene
in
the appeal, brought by Huge Telecom (Pty) Ltd (Huge Telecom) and Huge
Group Limited (Huge Group) (the intervention application),
was
dismissed. The reasons for those orders were to follow. These are the
reasons.
[2]
The Independent Communications Authority of South Africa (seventh
respondent) (ICASA) approved an application of Neotel (Pty)
Ltd (the
appellant) and Vodacom (Pty) Ltd (eighth respondent) (Vodacom) for
the transfer of control of certain individual electronic
communication service licences and radio frequency spectrum licences,
held by the appellant, pursuant to an acquisition by Vodacom
of the
entire issued share capital of the appellant. ICASA’s decision
approving the transfer was taken on 11 June 2015 and
published on 2
July 2015.
[1]
[3]
Telkom SA SOC Limited (first respondent) (Telkom) and other
parties
[2]
brought applications in the court a quo impugning the lawfulness of
ICASA’s decision on the application on several grounds
and
sought to have it reviewed and set it aside. One of the grounds
raised related to the interpretation of s 9(2)(6), read with
s 13(6),
of the Electronic Communications Act
[3]
(ECA). It relates, particularly, to the requirement of equity
ownership to be held by persons from historically disadvantaged
groups in entities applying for the transfer of a licence, or the
transfer of control of a licence, contemplated in those sections
of
the ECA (the Black Economic Empowerment (BEE) requirement).
[4]
It was common cause that the appellant and Vodacom did not
comply with the BEE requirement at the time of the application
and
that ICASA had, nevertheless, approved the transfer, subject to a
condition that there be compliance at some future date that
still had
to be determined.
[5]
One of the main contentions was that ICASA had erred in its
interpretation of s 9(2)
(b),
i.e. the BEE requirement, and that there had to be compliance with
the requirement from the outset.
[6]
All the applications for review were heard together and the court a
quo gave one judgment in respect of all of them. It found
that a case
had been made in respect of the BEE requirement ground and certain
other grounds,
[4]
and granted an order reviewing and setting aside ICASA’s
decision. It specifically upheld the argument that s 13(6) of the
ECA, read with s 9(2)
(b),
required
compliance with the BEE requirement at the outset. The court a quo
held that ICASA’s approach, which was tantamount
to permitting
compliance with that requirement in due course (after having approved
the application), was irreconcilable with the
clear wording of s
9(2)
(b)
.
It consequently held that ICASA had been materially influenced by an
error of law as contemplated in s 6(2) of the Promotion of
Administrative Justice Act
[5]
(PAJA) and that its decision was unlawful.
[7]
The appellant brought an application for leave to appeal against the
order of the court a quo, and specifically also against
its finding
in respect of the BEE requirement issue. In the meantime the
transaction between the appellant and Vodacom, which necessitated
the
transfer of control of the licences, lapsed and the court a quo’s
order was rendered moot. At the hearing of its application
for leave
to appeal the appellant no longer sought leave against the order, but
only against the court a quo’s findings concerning
the BEE
requirement in s 9(2)
(b),
read with s 13 of
the ECA. The court a quo in its judgment, in respect of the
application for leave to appeal, states that ‘leave
to appeal
is not sought against the [o]rder, but only with regard to paragraphs
75 to 80 of the judgment.’ Those paragraphs
contain the court a
quo’s findings concerning the BEE requirement issue.
[8]
Although adamant that it was not granting leave against its order,
the court a quo was persuaded that leave could be granted
in respect
of the ‘contents’ of, and the ‘reasons and
findings’ in the said paragraphs of its judgment.
This was on
the basis that it was in the interests of justice, and that because
its reasons relating to the BEE requirement will
be relevant to each
and every application before ICASA in future and even if the order
itself was moot, it raised a discrete issue
of public importance that
will have an effect on future matters of similar nature. The court a
quo accordingly granted the appellant
leave to appeal to this court,
and made no costs order.
[9]
Save for the appellant and Mobile Telephone Networks (Pty) (second
respondent) (MTN), none of the other parties that were cited,
as
either applicants or respondents in the applications before the court
a quo, indicated a willingness to participate in this
appeal. A
number of them, including ICASA, indicated that they would abide by
the decision of this court in respect of the appeal.
Despite its
indication to the appellant that it would be participating in the
appeal, MTN did not participate and also did not
file any heads of
argument. Only the appellant filed heads of argument and was pursuing
this appeal on its own, until about a week
before the hearing when
Huge Telecom and Huge Group brought the intervention application with
the stated intention to support the
appellant.
[10]
After it was granted leave to appeal by the court a quo, as is
evident from the main heads of argument filed on its behalf,
the
appellant proceeded from the basis that the only obstacle that it
still had to confront in this court was that of the mootness
of the
court a quo’s order, in respect of which it was not granted
leave. It sought, in its original heads of argument, to
persuade this
court to exercise its discretion
[6]
and deal with the merits of the appeal as it constitutes ‘a
discrete legal issue of public importance’
[7]
which would affect matters in the future. This was the same argument
that it made in the court a quo in support of its application
for
leave to appeal, albeit in a different context.
[11]
The spectre of the appealability of ‘the contents’ of,
and of the ‘reasons, and findings’ in, certain
paragraphs
of the court a quo’s judgment, was not raised by the appellant,
despite its obviousness. This court
mero
motu
raised it and requested the appellant to address the issue in
supplementary heads of argument. More specifically, the appellant
was
requested to deal with the issue of appealability and, in particular
with the following: (a) whether it was contended
by the
appellant that there is a distinction between a ‘decision’
contemplated in s 16(1)
(a)
of
the Superior Courts Act,
[8]
and a ‘judgment or order’ contemplated in s 20(1) of the
Supreme Court Act,
[9]
(b) whether the ‘content, reasons and findings’, in
respect of which leave was granted to appeal to this court, is
a
‘decision’ in terms of s 16(1)
(a)
of
the Superior Courts Act; and (c) on what basis, if any, it is
contended that the said ‘content, reasons and findings’
are appealable.
[12]
The appellant correctly conceded in argument that there was no
difference in the meaning that was assigned to the phrase ‘judgment
or order’ in s 20 of the Supreme Court Act and a ‘decision’
in s 16(1)
(a)
of
the Superior Courts Act. This has been held to be so.
[10]
[13]
If a decision did not constitute a ‘judgment or order’
the decision was not appealable under the Supreme Court
Act.
[11]
Since there is no conceptual difference between such a judgment or
order and the ‘decision’ contemplated in s 16(1)
(a)
of
the Superior Courts Act, the same would hold true under the Superior
Courts Act. The ‘judgment or order’ was held
to refer to
a substantive judgment or order in terms of which the court granted
or refused the relief sought.
[12]
The same meaning has to be given to the ‘decision’
contemplated in s 16(1)
(a)
of the Superior Courts Act.
[14]
The appellant correctly conceded that, what was before this court,
was not an order in that sense, but the reasons for such
an order.
The order itself was not before this court as no leave to appeal
against it was granted by the court a quo.
[15]
While accepting the trite position
[13]
that an appeal does not lie against the reasons for the order, it was
argued on behalf of the appellant, in essence, that this
case
presented an opportunity for this court to find that, in exceptional
circumstances, an appeal may lie against the reasons
for an order.
[16]
Counsel for the appellant argued that this ought to be found in light
of the following: that in
Philani–Ma–Afrika
& others v Mailula & others
[14]
(
Philani-
Ma- Afrika
)
and
Nova
Property Group Holdings Ltd & others v Cobbett and another
[15]
(
Nova
Property
)
this court held that a more flexible approach was called for and that
the interests of justice ought to be the main consideration
in
determining appealability. Further, that the word ‘decision’
in s 16(1)
(a)
of
the Superior Courts Act ought to be interpreted as including the
reasons for an order or judgment, where there were exceptional
circumstances present.
[17]
Counsel for the appellant contended that the following were
exceptional circumstances, namely, that the court a quo’s
interpretation of s 9(2)
(b),
read with s 13(6),
of the ECA, was part of the
ratio
decidendi
of its
order and was binding, not only on the appellant, ICASA and the other
parties, but generally. Further, that it will affect
the future
conduct of everyone bound by it and that no one may ever again have
an opportunity to challenge the court a quo’s
interpretation of
s 9(2)
(b),
read with s 13(6), of the ECA. Meaning, effectively, that neither the
appellant, nor others affected by the interpretation, such
as the
parties seeking to intervene, would be able to transfer control of
licenses, unless the BEE requirement in s 9(2)
(b)
of the ECA was met
at the outset. It was also submitted that the BEE issue that was
raised in this appeal was of great public importance.
[18]
Counsel for the appellant submitted that the finding it was urging
this court to make, regarding the appealability, would not
result in
a piecemeal consideration of matters; that even though this court was
being asked, in essence, to create an exception
to the general
principle that appeals do not lie in respect of the reasons for a
judgment or order, the exception would be a narrow
one and there was
no danger of this court being inundated with appeals against reasons,
as a result.
[19]
Counsel readily conceded that he could not cite any authority
directly in support of this ‘novel’ approach, but
seemed
to suggest that there was some indirect support for it in a dictum of
Moseneke DCJ in
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[16]
(
ITAC
).
There, the learned Deputy Chief Justice stated;
‘
[w]hilst
it is true that
ordinarily
an appeal lies against an order and not the reasoning in a
judgment...’
[17]
(emphasis
added).
[20]
The appellant’s reliance on the decisions in
Philani-Ma-Afrika
and
Nova
Property
is
misplaced. In both matters the appeals were against substantive
orders. In
Philani-Ma-Afrika
the appealability of an execution order for eviction, pending the
final determination of the appeal by this court, was considered.
This
court held that the belief that the execution order was not
appealable was erroneous and that it was clear from cases such
as
S
v Western Areas Ltd & others
[18]
and Khumalo & others v Holomisa
[19]
that what was of paramount importance in deciding whether a
judgment was appealable, was the interests of justice.
[20]
In
Nova
Property
the
appealability of an order to compel discovery was considered. This
court held that even though such an order was not appealable
under
the traditional test laid down in
Zweni
v Minister of Law and Order
[21]
that
test, as held in
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
[22]
was
not exhaustive. Referring to
Philani-Ma-Afrika,
this court concluded that even though the interlocutory order was not
appealable under the traditional test laid down in
Zweni,
it was appealable in terms of s 17(1) of the Superior Courts Act.
But, of significance is that none of those decisions support
the
approach advanced by the appellant in the present matter.
[21]
The appellant’s reliance on the dictum in
ITAC
is
also misplaced. The Constitutional Court was not considering the
issue of appealability, but mentioned that it was permissible
and
sometimes necessary for a court to look at the reasons for an order
to fully grasp the reach and effect of that order.
[23]
The dictum was obiter and, read in context, makes it clear that
Moseneke DCJ was not implying that in exceptional cases an appeal
lies against the reasons for an order.
[22]
The contentions of the appellant’s counsel effectively required
this court to jettison a sound principle which has been
confirmed in
numerous decisions,
[24]
including decisions of this court
[25]
over a long period and as recently as the same day on which the
present matter was heard.
[26]
[23]
While it is so that this court has in recent times, as is evident
from the decisions referred to above, adopted a more flexible
and
pragmatic approach in determining whether interlocutory orders are
appealable, that did not extend to making reasons of judgments,
or
orders, appealable.
[24]
The approach contended for by the appellant not only holds the
potential of ‘opening the floodgates’, with its
inherent
challenges, but also the undesirable prospect of matters being
disposed of in a piecemeal fashion. And, even more concerning,
the
‘hollowing-out’, or erosion, of the substratum of
judgments and orders that are not before this court, and the
negative
consequences accompanying such a process.
[27]
[25]
In any event, I am not persuaded that there are any exceptional
circumstances present that would justify what would be a radical
departure from a sound, tried and, doubtlessly, trusted principle.
The contention that the appellant and others, who may have to
comply
with s 9(2)
(b)
of
the ECA, would not be able to do anything about the binding effect of
the court a quo’s interpretation of that section
and s 13 of
the ECA, is, in my view, grossly exaggerated. There is nothing
preventing anyone affected from challenging the correctness
of that
interpretation in a matter where it is properly raised. It was not
for this court, in a matter such as the present, to
anticipate what
may or may not be faced by those that are required to comply with the
BEE requirement, and to act precipitately
and thereby unleash the
undesirable consequences referred to above, which, until thus far,
have been restrained by the sound principle
that reasons for
judgments and orders are not appealable.
[26]
In truth the appellant was requesting this court to give an opinion
on the meaning of s 9(2)
(b),
read with s 13(6), of the ECA, in circumstances where the substantive
order made by the court a quo is not before this court, and
which,
consequently, is incapable of being altered or substituted. That is
not in the interests of justice.
[27]
This court does not have jurisdiction in the present matter, and that
conclusion also sealed the fate of the intervention application.
[28]
[28]
Accordingly,
the
following order was made on 17 March 2017:
1.
The appeal is struck from the roll.
2.
The application to intervene in the appeal is dismissed.
______________________
P
Coppin
Acting
Judge of Appeal
APPEARANCES:
For
the Appellant:
S Budlender (with him M Musandiwa)
Instructed by: Bowman
Gilfillan, Johannesburg
Honey
Attorneys, Bloemfontein
For
the Intervening Parties:
R Bhana SC
Instructed by:
Norton-Rose Fulbright, Johannesburg
Honey
Attorneys, Bloemfontein
[1]
The
decision was published in Government Gazette 38951, 2 July 2015;
Notice 684 of 2015.
[2]
Mobile
Telephone Networks (Pty) Ltd (MTN) (second respondent), Cell C (Pty)
Limited (Cell C) (third respondent), Dimension Data
Middle East &
Africa (Pty) Ltd t/a Internet Solutions (fourth respondent).
[3]
Electronic
Communications Act 36 of 2005
.
[4]
A
‘competition’ ground, namely, that ICASA’s failure
to consider competition and to defer to the Competition
Commission
was materially influenced by an error of law, and a procedural
ground, namely, that ICASA was reasonably suspected
of bias in
making the impugned decision.
[5]
The
Promotion of Administrative Justice Act 3 of 2000
.
[6]
Centre
for Child Law v Hoërskool Fochville & another
[2015]
ZASCA 155
;
2016 (2) SA 121
(SCA) at 129 para 11, where the approach
in the case of mootness of an order on appeal, is summarised.
[7]
Ibid at 130
para 14.
[8]
Superior
Courts Act 10 of 2013
.
[9]
Supreme
Court Act 59 of 1959 which was repealed by and replaced with the
Superior Courts Act 10 of 2013
.
[10]
S v
Van
Wyk
[2014]
ZASCA
152
;
2015
(1) SACR 584
(SCA) at 591 footnote 6 and the majority judgment in
Firstrand
Bank Limited t/a First National Bank v Makaleng
[2016] ZASCA 169
(24 November 2016) paras 10-15.
[11]
Constantia
Insurance Co Ltd v Nohamba
1986 (3) SA
27
(A) at 42H-43C.
[12]
See:
Dickinson
& another v Fisher’s Executors
1914 AD 424
at 427 and 429
;
Western Johannesburg Rent Board & another v Ursula Mansions
(Pty) Ltd
1948 (3) SA 353
(A) at 355; Smit v Oosthuizen
1979
(3) SA 1079
(A) at 1087
;
SA Metal Group (Proprietary) Limited v The International Trade
Administration Commission & another
(267/2016)
[2017] ZASCA 14
(17 March 2017) para 15.
[13]
See:
Western
Johannesburg Rent Board
supra
at 355;
ABSA
Bank Ltd v Mkhize and two similar cases
[2013] ZASCA 139
;
2014 (5) SA 16
(SCA) para 64;
SA
Metal Group (Proprietary) Limited
supra
para 15 ;
[14]
Philani–Ma–Afrika
& others v Mailula & others
[2009]
ZASCA 115
;
2010 (2) SA 573
(SCA) at 579 para 20.
[15]
Nova
Property Group Holding Ltd v Cobbett & another
[2016]
ZASCA 63
;
2016 (4) SA 317
(SCA) at 323 para 8.
[16]
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd (ITAC)
[2010]
ZACC 6; 2012 (4) SA 618 (CC).
[17]
At 646A
para
71.
[18]
S v
Western Areas Ltd & others
2005 (5) SA
214
(SCA);
2005 (1) SACR 441
(SCA) paras 25 and 26.
[19]
Khumalo
& others v Holomisa
[2002] ZACC 12
;
2002 (5) SA
401
(CC);
2002 (8) BCLR 771
(CC) at 411 A-B para 8.
[20]
At 579 B-E
para 20.
[21]
Zweni v
Minister of Law & Order
1993 (1) SA
523 (A).
[22]
Moch v
Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA
1
(A) at 10 E-G.
[23]
ITAC
supra at 646A-B para 71.
The
basic principle is applicable to the interpretation of a judgment or
order:
Firestone
South Africa (Pty) Ltd v Gentiruco AG
1977
(4) SA 298
(A) at 304D-H.
[24]
See, the
locus
classicus
,
Western
Johannesburg Rent Board supra
at fn 9, which followed
Molteno
Bros v South Africa Railways
1936 AD 408
;
Haviland
Estates (Pty) Ltd & another v McMaster
1969 (2) SA 312
(A) at 335C-F;
Holland
v Deysel
1970
(1) SA 90
(A) at 93 E-F
;
Lipschitz NO v Saambou-Nasionale Bouvereniging
1979 (1) SA 527
(T) at 529G
;
SOS Kinderdorf International v Effie Lentin Architects
1993 (2) SA 481 (Nm).
[25]
Cape
Empowerment Trust Ltd v Fisher Hoffman Sithole
[2013]
ZASCA 16
;
2013 (5) SA 183
(SCA) at 198 I-J para 39;
ABSA
Bank v Mkhize
supra para 64.
[26]
SA Metal
Group (Proprietary) Limited
supra
para 15.
[27]
There are
some significant similarities between the facts of the present case
and those in
Molteno
Bros v South African Railways
supra fn 22. In that matter an exception to a declaration had been
upheld by the court of first instance on the basis that the
declaration was deficient on three grounds. The plaintiffs noted an
appeal to this court in which they, inter alia, stated that
they
were not questioning the correctness of the order of the court a quo
in respect of two of the grounds, but only in respect
of the third
ground. By a majority this court struck the appeal from the roll on
the basis that since there was no intention
to reverse the order of
the court a quo it had no jurisdiction to hear the appeal.
[28]
Since the
parties who sought to intervene had no interest in the order of the
court a quo, but only in the reasons the appellant
sought to advance
in this court, their application to intervene was also dismissable
on the ground of a lack of a direct and
substantial interest in that
order: see
National
Director of Public Prosecutions v Zuma
2009 (1) SACR 361
(SCA) at 392-393, paras 84-87.