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[2020] ZALMPPHC 93
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Schnehage v Espag Magwai Attorneys (HCA24/2019) [2020] ZALMPPHC 93 (29 September 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPODIVISION,
POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES: YES/
NO
(3)
REVISED.
CASE
NO: HCA 24/2019
In
the matter between:
ADV
M.S SCHNEHAGE
APPELLANT
and
ESPAG
MAGWAI ATTORNEYS
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
The
Appellant appeals against the whole of the Judgment and order ,
including the order as to costs, made by the Magistrate's Court,
Polokwane on 18 June 2019 in terms whereof the Magistrate upheld a
point in limine
to
the effect that a Magistrate Court has no jurisdiction to grant an
order in the form or nature of an "Anton Piller Order".
[2]
The
Respondent opposes this appeal on two grounds, namely:
2.1.
Certain
procedural shortcomings in the Appellant's noting and prosecuting of
the appeal which resulted in the appeal having lapsed;
and
2.2.
The
lack of jurisdiction of a Magistrate's Court to grant an Anton Piller
Order.
Background
[3]
The
Appellant, an advocate, issued summons in the Polokwane Magistrate's
Court against the Respondent, his instructing attorneys,
on 28 May
2018 for an amount of R 48 500.00 being for professional services
rendered to the Respondent. The matter was defended
and upon
application for summary judgment the Respondent was granted leave to
defend the action.
[4]
On
30 July 2018 the Appellant approached the Magistrate's Court; on
ex
parte,
for an order, inter alia:
"6.
The Respondent or its representatives or any other third party where
the
Respondent
might have sent or stored, or are keeping any photo's, objects,
registers, files and documents, to point out and to disclose
to the
sheriff specified files, objects, registers and documents, together
with the Applicant, to wit the following files:
……………………………
7.
The
Respondent to disclose at which third party and address these photos,
objects, registers, files and documents will be found,
in the event
of these photos, objects, registers, files and documents not being in
the possession of the Respondent.
8.
The
Sheriff be authorised to seize, attach and remove the specified
photos, objects, registers, files and documents.
9.
The
photos, objects, registers, files and documents be kept in the
possession of Mr Morris Pogrund, an attorney practicing under
the
name and style of Kampherbeek
&
Pogrund Attorneys, 25 Biccard street,
Polokwane, pending the directions of the Court.
10.
Costs
of the application
11.
That
prayers 1 to 10 supra will be in the form of a rule nisi with
immediate effect and with return date on
........
.at
.......
On which date the Respondent must
show cause why the rule nisi should not be confirmed.
12.
The
order is to be served on the Respondent, and it is entitled to
anticipate the postponement date referred to below upon 48 hours'
notice to the Applicant.
13.
The
application is postponed to 20 August 2018."
[5]
At
the hearing of the present appeal the Appellant explained the essence
of the above order as an application for relief for purposes
of
preservation of evidence in what has commonly become known as an
"Anton Pillar Order" which order was actually granted
as
per draft order made an order of Court on 30 July 2018.
[6]
At
the opposed hearing of the application in the Magistrate's Court the
Respondent raised two points
in
limine,
that (1) the Magistrate's
Court lacked jurisdiction to grant such an order and that (2) the
order granted by the Magistrate's Court
on 30 July 2018 is a nullity
and stands to be set aside.
[7]
The
Magistrate pronounced judgment on the point
in
limine
on 18 June 2019 upholding the
point
in limine
with
costs. It is against that judgement and order including the costs
order, that this appeal lies.
The Process of Appeal
[8]
Section
84 of the Magistrates' Court Act 32 of 1944 provides
inter
alia
that every party noting an
appeal shall do so within the period and in the manner prescribed by
the rules. The periods for noting
an appeal are laid down by Rule
51(3) of the Magistrate's Court rules and the periods for prosecuting
appeals in the High Court
are governed by Uniform Rule of Court 50,
that is, the prosecution of an appeal from the Magistrate's Court is
a proceeding which
is conducted in the High Court. In other words,
although the noting of an appeal is an act done in the Magistrate's
Court, it lays
the foundation of the proceedings in the High Court.
[9]
An
appeal must therefore be noted within the period and in the manner
prescribed by Magistrate's Court rule 51 and prosecuted within
the
period and in the manner prescribed by Uniform Rule of Court 50. In
the present appeal before us, the Magistrate, Mr Maharaj
gave and
oral judgment on 18 June 2019. There is no indication in the papers
before us that the Appellant made a written request
for a judgment in
writing as provided for in rule 51(1) of the Magistrates' Court
Rules. Rule 51(3) provides,
inter
alia,
that an appeal may be noted
within 20 days after the date of the judgment appealed against. This
will be the case where an appellant
has not made a written request
for judgment in writing as provided for in rule 51(1) of the
Magistrates' Court Rules.
[10] In
the absence of proper service of a notice of appeal on the respondent
or his attorney, no appeal
has been noted - Rule 51(4) Bringing the
appeal to the notice of the other party in a manner which is not in
accordance with that
prescribed by the rules, is not sufficient. See
Nunlal v Pillay
1948 (4) SA 720(N)
[11]
Rule 51(8) of the Magistrate's Court
Rules provides, inter alia, as follows:
"(8)(a)
Upon delivery of
a
notice
of appeal the relevant judicial officer shall within 15 days
thereafter hand to the registrar or clerk of the court
a
statement in writing showing (so far
as may be necessary having regard to any judgment in writing already
handed in by him or her)
-
(i)
the facts he or she found to be
proved;
(ii)
the grounds upon which he or she
arrived at any finding of fact specified in the notice of appeal as
appealed against;
and
(iii)
his or her reasons for any ruling
of the law or for the admission or rejection of any evidence so
specified as appealed against.
(b)
A statement referred to in paragraph (a) shall become part of the
record".
[12]
The provision in subrule (8)(a) is
imperative.
The Magistrate's written
explanation forms an integral part of the appeal record and serves to
assist the Court of appeal in dealing
with the appeal in a speedy and
cost-effective manner.
(Regent Insurance Co Ltd v
Maseko
2000 (3) SA 983
(W) at 990A-E)
If a notice of appeal has been
filed without a prior request in terms of rule 51(1) for the
Magistrate's written judgment, the Magistrate
must thereafter give
his findings of fact and rulings of law in terms of subrule (8)(a).
A
Magistrate is entitled, despite having given reasons, to give further
reasons dealing specifically with any ground of appeal set
out in the
Notice of Appeal.
[13]
Rule 51(9) reads in relevant part as
follows:
"(9) A party noting an
appeal .... ...shall prosecute same within such time as may be
prescribed by rule of the Court of appeal
and, in default of
prosecution, the appeal
.
....shall be
deemed to have lapsed, unless the Court of Appeal shall see fit to
make an order to the contrary"
By
prosecution of an appeal is meant applying in writing to the
registrar of the High Court on notice to all other parties, for
a
date of hearing. See in this regard Rule 50(4) of the Uniform Rules
of Court, that is the High Court rules.
See
also
Hall v Van Tonder
1980 (1) SA 908
(C) at 910
[14]
As
stated above the prosecution of appeals from Magistrates' Courts is
dealt with in Uniform Rule of Court 50. The relevant time
limits
prescribed by Uniform Rule of Court 50(1) to (4) are as follows:
14.1.
the
appeal must be prosecuted within 60 days after the noting of the
appeal;
14.2.
if
the appellant has not within 40 days after noting the appeal applied
to the registrar for a date of hearing, the respondent may
do so
within the remaining 2 weeks;
14.3.
if
no application for a date of hearing is made by either the appellant
or the respondent within 60 days, the appeal lapses.
[15]
In terms of Uniform Rule of Court 50(5)
the registrar shall upon receipt of the appellant’s written
application for the assignment
of a date (Rule 50(4)) forthwith
assign a date of hearing of the appeal, which date shall be at least
40 days after receipt of
the said application. The registrar shall
give the parties and the clerk of Court from which the appeal
emanated, at least 20 days,
written notice of the date of set down.
Whether the Appellant has
followed the Appeal Procedure
[16]
Having set out herein above the
prescribed procedure in civil appeals, it remains to be seen whether
the Appellant in the present
appeal has complied with the rules
regulating the appeals from Magistrate Court to the High Court. I
hasten to state herein that
the Appellant has not followed the
procedure provided for in Magistrate's Court rule 51 and Uniform Rule
of Court 50. There is
no indication on the papers before us that the
Appellant had timeously noted the appeal as provided for in the
Magistrate's Court
rules, and/or prosecuted same as provided for in
the Uniform Rules of Court and, in so doing preventing the appeal
from lapsing.
[17]
The Appellant filed a Notice of Appeal,
dated 25 October 2019, which was served on the Respondent's attorneys
of record on the same
day on 25 October 2019 in this Court, being the
Court of Appeal. The Appellant somehow procured the enrolment of the
appeal by
the registrar of this Court for hearing on 11 September
2020 without following the procedure prescribed in Magistrate 's
Court
rule 51(9) and Uniform Rule of Court 50(1), (4) and (5) for
prosecuting the appeal. Clearly, there is no indication in the
indexed
and paginated bundles that the Appellant had applied for a
date for the hearing of the appeal within the period provided for in
the Uniform Rule of Court 50 (4)(a).
[18]
Furthermore the following irregular
steps are apparent from the papers before us:
18.1.
the Appellant chose not to request a
written judgment from the Magistrate in terms of rule 51(1);
18.2.
the Appellant did not note the appeal as
provided for in rule 51(4) read with rule 51(3).
18.3.
as a result the Magistrate was not
called upon to hand a written statement as required by rule 51(8) to
the clerk of the Magistrate's
court;
18.4.
there was no prosecution of the appeal
as required by rule 51(9), as a result of which the appeal is deemed
to have lapsed;
18.5.
the registrar somehow assigned the date
of hearing of the appeal without having received a written
application from the Appellant
as provided for in Uniform Rule of
Court 50(4) read with Uniform Rule of Court 50 (5).
[19]
In the light of the Appellant's
non-compliance with the rules regarding the appeal, he brought an
application for condonation, which
application is dealt with
hereunder.
Condonation
[20]
In the application for condonation the
Appellant sought the following relief:
20.1.
That Appellant's non-compliance with the
rules of this Court, if any, as regards the appeal be condoned;
20.2.
That the appeal, which has lapsed, be
reinstated.
The Respondent opposed the application.
[21]
The Appellant stated in his founding
affidavit that a notice of appeal, containing the grounds of appeal,
was served on the Respondent
on 17 July 2019 after judgment was
pronounced by the magistrate on 18 June 2019. A request for a
transcription of the Court record
was made on 15 July 2019 and the
transcribed record was received by his attorney on 14 October 2019,
that is after almost three
months. The Appellant made a concession
that as a result of the transcribed record of proceedings being
provided to his attorneys
at such a late stage, the prosecution of
the appeal was out of time.
[22]
The
Appellant stated further that one Mr Arno Maree a clerk at the firm
of Appellants attorneys of record attended the registrar's
office and
filed with the registrar bundle of documents required for the appeal
on 25 October 2019. A copy of the same bundle was
served on the
Respondent on the same date. On this occasion the said clerk enquired
from the registrar as to a date for the hearing
of the appeal,
whereupon he was told by the registrar that a date of hearing would
be allocated and communicated to his attorneys.
The Clerk thought
that the requirements for the appeal had been complied with and he
was not informed that a notice requesting
the assignment of the date
of hearing (also to be served on the Respondent) was necessary.
[23]
On the basis of this assertion the
Appellant has clearly failed to validly prosecute the appeal in
accordance with the provisions
of rule 51(9) of the Magistrate's
Court Rules and rule 50 of the Uniform Rules of Court with the result
that the appeal has lapsed.
The Appellant alleges that he only became
aware of the fact that a notice of application for a trial date of
the appeal was not
served on the Respondent in terms of the rules,
when he had sight of the Respondent's heads of argument wherein they
take this
point, that is on 31 August 2020.
[24]
The Appellant's predicament is of his
own, and/or his attorney's making. Their flagrant disregard of the
relevant rules of Court
has resulted in the appeal not being properly
noted as required by rule 51(3) of the Magistrate's Court Rules and,
accordingly
not being capable of being prosecuted as required by rule
51(9) of the Magistrates' Court Rules and rule 50 of the Uniform
Rules
of Court. It is the duty of the Appellant and his attorneys of
record to ensure that the relevant court rules pertaining to the
noting and the prosecution of an appeal from the Magistrate's Court
to the High Court are complied with.
[25]
In paragraph 6 of the founding
affidavit, the Appellant alleges as follows:
"A notice of appeal,
containing the grounds of appeal, was then served on the Respondent
on 17 July 2019. I
am
aware that an
appeal has to be lodged within 20 days from date of judgment, and as
judgment was given on 18 June 2019, I submit
that notice of appeal
was given timeously"
The Appellant has not attached a
copy of the notice of appeal that he alleges was served on the
Respondents on 17 July 2019. No
such document appears from any of the
bundles of documents placed before this Court for purposes of the
hearing of this appeal.
The only notice of appeal before
us is the one served on the Respondent, dated 25 October 2019 and
served on the same day. This
then means that this appeal was
apparently noted on 25 October 2019, well out of time.
[26]
In the premises there is no proof before
this Court that the Appellant had noted an appeal as provided for in
section 84
of the
Magistrates' Courts Act 32 of 1944
read with rule
51(3) and (4) of the Magistrates' Court Rules. There is, furthermore,
no application before us by the Appellant
for condonation of his
non-compliance with the provisions of rule 51 (3) insofar as the
noting of the appeal is concerned.
[27]
Counsel for the Respondent submitted
that the Appellant has failed to make out a case for the relief
sought by him in the condonation
application. There is no explanation
whatsoever in the founding affidavit for the Appellant's failure to
ensure that the relevant
court rules pertaining to the noting of the
appeal as well as the prosecution thereof had been duly followed. I
agree.
[28]
In this connection I would refer to the
case of
lmmelman v Loubser en 'n
Ander 1974(3) SA 816 (A)
where the
headnote reads in part as follows:
"In an application for condonation of
failure to note an appeal timeously, etc, the fact that the applicant
himself was in
no way to blame is an important consideration, but it
does not necessarily always serve as a sufficient excuse. A
reasonable prospect
of success on appeal is naturally also an
important consideration.
In
such an application there was, on the part of one or other of the
Applicants' attorneys, failure in a number of respects to comply
with
the Rules of both Courts, which had caused a long delay.
In
addition there was also the circumstance that no sufficient
explanation had been offered, either for the mistakes which had been
made with the noting of the appeal or the failure to file a complete
record timeously after the typed record had been obtained
"
See
also
Hall v Van Tonder and Another
1980 (1) SA 908
(CPD) at 916
D-F
[29]
In
Melane
v Santam Insurance Co Ltd 1962(4) SA 531 (A) at 532 C-E
it
was said:
"In deciding whether
sufficient cause has been shown, the basic principle is that the
court has
a
discretion to be
exercised judicially upon consideration of all the facts and in
essence it is
a
matter of
fairness to both sides.
Among
the facts usually relevant are the degree of lateness, the
explanation therefor, the prospects of success and the importance
of
the case.
Ordinarily
these facts are interrelated; they are not individually decisive, for
that would be
a
piecemeal
approach incompatible with
a
true discretion,
save of course that if there are no prospects of success there would
be no point in granting condonation."
Prospects
of Success
[30]
The prospect of success in the present
case will be determined in the light of the issue whether the
Magistrate's Court has jurisdiction
to grant an order in the nature
of an Anton Piller Order and furthermore whether in any event the
Appellant had made out a case
for such an order.
[31]
Jurisdiction means the power and competence of a court to hear and
determine an issue between the parties.
The Magistrates' Courts are
creatures of statute and have no jurisdiction beyond that granted by
the statute creating them, being
the
Magistrates' Courts Act 32 of
1944
. They have no inherent jurisdiction such as is possessed by the
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa, and can claim no authority which cannot be found in
the four corners of their constituent Act. Furthermore, Magistrates'
Courts do not have the power to protect and regulate their own
process and to develop the common law, taking into account the
interests of justice, that the Constitutional Court, the Supreme
Court of Appeal and the High Court of South Africa have by virtue
of
the provisons of section 173 of the Constitution of the Republic of
South Africa, 1996.
See
Graaf-Reinet
Municipality v Van Ryneveldt's Pass Irrigation Board 1950(2) SA
420(A) at 424;
Ndamase v Functions 4 All
2004
(5) SA 602
(SCA) at 605 F-H;
B
v B
[2007] ZAGPHC 306
;
2008 (4) SA 535
(W) at 543 C-E
The essence of Anton Piller
Order
[32]
An Anton Piller order is described as :
"a
civil search, seizure
and preservation of evidence procedure. In this process generally the
court orders the sheriff to search for,
then seize and preserve
evidence which is material to
a
matter. It will be employed
where the applicant justifiably believes the respondent
may
destroy the evidence if no order is granted"
See
Beecham Group Ltd v BM Group (Pty) Ltd
[1977] 1 All SA 267
(T);
1977(1) SA 50 (T)
Harms:
Civil Procedure in the Superior Courts, Lexis Nexis 2016 at page
8-255 says:
"It is an order directed at the preservation of
evidence."
To
obtain an Anton Piller order the following requirements must be
established:
(1)
the applicant has a cause of action
against the respondent which he intends to persue;
(2)
the respondent has in his possession
specific documents or things which constitute vital evidence in
substantiation of the applicant's
cause of action (but in respect of
which the applicant cannot claim a real right) and
(3)
there is a real and well-founded
apprehension that this evidence may be hidden or destroyed or in some
manner be spirited away before
discovery or by the time the case
comes to trial.
[33]
An Anton Piller order has been described
as "a draconian form of a relief which should be granted only
under exceptional circumstance".
The use of the remedy has been
described as an example of the outer extreme of judicial power -
Roth
v Rees 2007(1) SA 99 (C) at 107-108
In
Mathias International Ltd and Another v Baillache and Others 2015
(2) 357 SA (WCC) at 3630
it was held that in exercising a
discretion to grant the order, the court will have regard to the
importance and value of the interest
that the applicant seeks to
protect and this will be weighed against the potential harm that will
be suffered by the respondent
if the remedy is granted as compared
with the potential harm to the applicant if the remedy is withheld.
[34]
I am of the view that due to the
delicate balancing exercise of the parties' rights and interests that
are required when granting
an Anton Piller order, it is appropriate
that such relief should be granted by a High Court (which has
inherent powers) and not
by a Magistrate's Court.
[35]
Section 30
of the
Magistrates' Courts
Act, 1944
under the heading
Arrests and Interdicts
provides
that:
"(1) Subject to the limits
of jurisdiction prescribed by this Act, the Court may grant against
persons and things orders for
attachments, interdicts and manament
van spolie.
(2) Confirmation by
the Court of any such attachment or interdict in the judgment in the
action shall operate
as
an extension of
the attachment or interdict until execution or further order of the
Court."
The Appellant argued that by
virtue of the provisions of section 30 of Magistrate's Court Act, the
Magistrate Court has the necessary
jurisdiction to grant an Anton
Piller order because, according to him, an Anton Piller order is
another form of interdict.
For
the reasons that will appear hereunder, I disagree.
[36]
Section 30 of the Act does not empower a
Magistrate's Court to grant an Anton Piller order. Section 30(1) of
the Act creates jurisdiction
and it authorises a Magistrate's Court
to grant certain extraordinary remedies of a temporary nature.
There is a distinction between the
two orders. An Anton Piller order is, by its very nature, of
temporary effect. On the other hand
an interdict is a judicial
process whereby a person is ordered to refrain from doing a
particular act or is ordered to perform
a particular act.
[37]
It was authoritatively decided in
Shoba
v Officer Commanding Temporary Police Camp, Wagendrift Dam 1995(4) SA
1 (A)
that an Anton Piller order is
not a rule nisi operating as an interim interdict. It is an order
which grants immediate relief of
a procedural nature, namely the
preservation of evidence, subject to the possibility of a later
variation or discharge of the order.
The sole purpose of an Anton
Piller procedure is the preservation of evidence. It is not a
substitute for possessory or proprietary
claims. On the other hand an
order for attachment of things is held to secure the claim of the
creditor. Therefore an Anton Piller
order is neither an order for
attachment nor an interdict.
[38]
In the premises, the Magistrate's Court
has no jurisdiction to grant an Anton Piller order. The Court a quo
was correct in upholding
the
point in
Jimine
raised by the Respondent.
Accordingly,
there are no prospects of success in the appeal in the event we were
to hear this appeal on the merits. It will be
inappropriate to grant
the application for condonation in the face of the lack of prospects
of success in the appeal.
Costs
[39]
The Respondent has prayed for a punitive
cost order on attorney and client scale for reasons I need not
canvass further in this
matter. It is trite that the granting of a
cost order is in the discretion of the Court which must be considered
judiciously. Attorney
and client costs of appeal are awarded only in
very exceptional or special circumstances -
Ward
v Sulzer
1973 (3) SA 701
(A) at 707;
and
Herold v Sinclair
1954 (2) SA 531
(A)
at 537.
Although the Appellant conducted
this appeal with flagrant disregard of the rules of Court, one may
not impute an element of
mala
fides
on his side. The
conduct of the Appellant may be reprehensible in pursuing a meritless
appeal such as this, but that cannot, without
more, justify a
punitive cost order.
We are of the view that a cost
order on party and party scale is appropriate in the present matter.
Order
[40]
In the result the following order is
made :
1.
The appeal is struck from the
roll.
2.
Appellant shall pay the costs of
the appeal.
EM
MAKGOBA
JUDGE
PRESIDENT OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
I
agree
RP MDHLULI
ACTING JUDGE OF THE HIGH
COURT, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 11 September 2020
Judgment
delivered on
: 29 September 2020
For
the Applicant
: Adv.M.S Schnehage
Instructed
by
: Maree VD Berg Attorneys
For
the Respondents
: Adv. J Malan
Instructed
by
: Espag Magwai
Attorneys