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[2020] ZAGPPHC 44
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Moneyline Financial Services (Pty) Ltd v National Credit Regulator (A440/16) [2020] ZAGPPHC 44 (3 February 2020)
REPUBLIC
OF SOUTH AFRICA
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
YES
CASE
NO: A440/16
3/2/2020
In
the matter between:
MONEYLINE
FINANCIAL SERVICES (PTY) LTD
APPLICANT/APPELLANT
And
THE
NATIONAL CREDIT REGULATOR
RESPONDENT
JUDGMENT APPLICATION FOR LEAVE
TO APPEAL
COLLIS
J (at al SENYATSI AJ):
INTRODUCTION
1.
In
the present application, the applicant is seeking leave to appeal an
order
[1]
of this court upholding the point
in
limine
of non-joinder and postponing
the appeal
sine die.
2.
The
application for leave to appeal is premised on the basis that this
court erred in finding that the National Consumer Tribunal
has a
direct and substantial interest in any order that the court would
make in these proceedings. Secondly, the applicant alleges
that this
court erred in finding (at paragraph 28 of the judgment) that it
would be necessary for its judgement to bind the Tribunal
by
operation of the principle of res judicata. Thirdly, it is contended
by the applicant that this court erred in accepting (at
paragraph 29
of the judgment read together with the order of this court) that
“…
.
it
has become practice in this Division that where a statutory body has
made a decision which is the subject of an appeal that such
statutory
body ought to be cited
as a
party
in the proceedings." Fourthly, the applicant alleges, that this
court erred (in paragraph 29 of the judgment as read
with the order)
in concluding that the Tribunal had an interest in the appeal
proceedings on account of the fact that the issue
on appeal concerned
the interpretation of the Act and the Tribunal Rules. Fifthly, the
applicant alleges, that this court erred
(in paragraph 30 of the
judgment) in so far as any weight was attributed to the fact that "no
additional argument in this
regard was proffered in the heads of
argument prepared on behalf of the appellant. In addition the
applicant alleges that this
court erred in finding (in paragraph 31
of its judgment) that. because the Tribunal is an entity separate
from the National Credit
Regulator (being the respondent in the
appeal) it ought to be joined as a party in the appeal proceedings as
the Tribunal would
be bound by the determination of the Appeal Court.
It is for the above reasons that the applicant contends that the
precedent created
by the judgment and order accordingly stands to be
set aside by the Supreme Court of Appeal.
THE
LAW
3.
Section 17 of the Superior Court's Act
provides as follows:
[2]
"(1) Leave to appeal may
only be given where the judge or judges concerned are of the opinion
that-
(a)
(i) the appeal would have
a
reasonable prospect of
success;
or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b)
the decision sought to appeal
does not fall within the ambit of section 16(2)(a);
and
(c)
where the decision sought to be
appealed does not dispose of all the issues in the
case,
the appeal would lead to
a
just and prompt resolution of the
real issues between the parties."
4.
At
the commencement of the proceedings, the court directed the parties
to address it on the appealability of the court's decision
with
specific reference to the decision of Zweni v Minister of Law and
Order
1993 (1) SA 523
, more so, in that the order for the joinder of
the Tribunal made by this court is interlocutory in nature.
THE
ARGUMENTS
5.
In this regard, Mr Fine on behalf of the
applicant had conceded that an order for the joinder of a party is
interlocutory in nature
and does not have the effect of determining
any substantive issues as between the parties already joined in these
proceedings,
namely, the applicant and the respondent in the present
instance.
6.
He had however submitted that this
court's decision is appealable in terms of section 17(1) (c) quoted
above, wherein the interest
of justice would be served by the Supreme
Court of Appeal pronouncing on the correct interpretation of section
148 of the National
Credit Act and determining the issue of whether
the Tribunal exercises judicial or administrative functions. In
support of this
submission the applicant had placed reliance on the
decision of Nova Property Group Holdings v Cobbett.
[3]
7.
This issue as contended by Mr Fine, lies
at the heart of the question whether the members of the Tribunal must
be joined as parties
before the appeal in terms of section 148 can
proceed. He went on to argue that the decision (forming the
subject-matter of the
appeal). is judicial in nature as it relates to
the determination whether its decision is right or wrong. It is for
this reason
that he considers that the joinder of the decision-makers
(in this instance the Tribunal) is wholly inappropriate.
8.
In opposition, Mr. Kutumela appearing on
behalf of the respondent, argued that leave to appeal the court's
decision should be refused
as the decision sought to be appealed
against is not appealable nor would it have a reasonable prospect of
success. As to the question
of appealability, Mr Kutumela placed
reliance on the decision of Absa Bank Limited v Mkhize and Others and
Related Matters
[4]
.
9.
In this regard counsel argued that this
court by upholding the
point in
limine
on joinder, the decision of
the court was merely preparatory or procedural in nature and even if
it is of considerable practical
importance to the applicant, it is
not an order from which an appeal under the circumstances would lie,
apart from the final decision
on the merits. By permitting the
applicant to appeal this court's decision on joinder, it will result
in a fractional disposal
and a piecemeal hearing of the appeal.
10.
Furthermore, it might very well be that
this courts' decision may cause inconvenience to the applicant or
that it might place the
applicant at a disadvantage in the
litigation, which nothing but an appeal can correct, but that these
considerations are not taken
into account in determining the
appealability of the decision of the court.
11.
Lastly, Mr Kutumela, argued that as the
appeal relates to the interpretation of the National Credit Act, the
Tribunal Rules and
the manner in which the Tribunal exercises its
powers, the appeal cannot be heard without affording the Tribunal an
opportunity
to make submissions before the court of appeal if it so
wishes. It is on this basis that Mr Kutumela submitted that the
decision
sought to be appealed does not dispose of all the issues in
the case, nor would the appeal lead to a just and prompt resolution
of the real issues between the parties.
NON-APPEALABILITY
12.
The standard test whether a particular
decision is appealable was stated in Zweni as follows:
"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),
not definite 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."
13.
The three attributes on a non-appealable
decision as set out in Zweni need not all be present at the same
time. The presence of
any one of these attributes may render a
decision non-appealable. In the order of this court, all these
attributes are to be found
and I proceed to deal with same below.
Is
the court's decision final?
14.
In the order of this court, the matter
was determined on a
point In limine
raised by the respondent. In this
regard the court found that the Tribunal being a statutory juristic
body established in terms
of the National Credit Act and an entity
which acts separately and independently from the National Credit
Regulator, is an interested
party which ought to have been joined to
the proceedings. The court did not determine the merits of the
appeal, but merely concluded
that the failure by the applicant to
join the Tribunal to these proceedings, is material. However, the
aforesaid court's determination
is not dispositive of the appeal nor
does it render the appeal defective. It is for this reason that the
court deemed it fit to
postpone the appeal
sine
die.
Is
the decision definitive of the rights of the parties?
15.
The court's decision does not affect the
parties' rights at all. It does not affect the right of the applicant
to prosecute its
appeal. It merely directs the applicant, that in
order to prosecute its appeal, it ought to join the Tribunal whose
decision it
is taking on appeal. The applicant remains at liberty to
direct this court to evidence that it considers necessary and
relevant
for the adjudication of this appeal, and so too, it remains
at liberty to make submissions with reference to the law and cases in
support of such appeal. The decision sought to be appealed is
therefore, not definitive of the rights of the parties.
Does
the decision dispose of at least a substantial portion of the relief
claimed?
16.
The third question to be answered is
whether the decision of this court disposes of a substantial portion
of the relief claimed.
In this regard the relief claimed by the
applicant before the Tribunal was whether the investigation by the
respondent was conducted
without cause and not in accordance with the
National Credit Act; and whether or not there was a valid referral
before the Tribunal,
which answer is inextricably linked to the
admissibility or otherwise of the investigation reports. Two of the
members of the Tribunal
concluded that the investigation of the
respondent was valid and that the matter should proceed for
determination of the merits,
and it is this decision of the Tribunal
which forms the subject-matter of the appeal.
17.
This courts' order made no pronouncement
regarding the success or otherwise of the merits of the appeal. In
contrast the appeal
was postponed
sine
die.
The court is yet to decide on
the merits of the appeal upon its hearing should the applicant so
desire, and it therefore follows
that the order of the court does not
dispose of at least a substantial interest of the relief claimed.
18.
For the reasons set out above, I am not
persuaded that the decision of this court is indeed appealable.
Therefore it must follow
that the application would not have a
reasonable prospect of success and stands to be refused.
ORDER
19.
In the result the following order is
made:
19.1. The application for leave to
appeal the order dated 30 August 2019, is dismissed with costs, such
costs to include the costs
consequent upon the employment of counsel.
C.J. COLLIS
JUDGE OF THE HIGH COURT OF
SOUTH
AFRICA
I
agree
M. SENYATSI
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
Appearances
as follows:
For
the First and Second Applicants
: Adv. D. M. Fine SC and
Adv. A Milovanovic-Bitter
Attorney
of the First and Second Applicant
: Smit Sewgoolam Inc.
For
the Respondent
: Adv L. Kutume
Attorney
for the Respondent
: Geldenhuys
Malatji Inc
Date
of Hearing
: 02 December 2019
Date
of Judgment
: 03 February 2020
[1]
Judgment Collis J (et al Senyatsi AJ) delivered 30 August 2019
[2]
Act 10 of 2013
[3]
2016 (4) SA 317 (SCA)
[4]
[2014]
1 AU SA 1
(SCA)