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[2017] ZASCA 102
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Mgwenya NO and Others v Kruger and Another (1060/16) [2017] ZASCA 102 (6 September 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 1060/16
In
the matter between:
V
N MGWENYA
NO
FIRST
APPELLANT
S
P SMIT
NO
SECOND
APPELLANT
G
J AUGUST
NO
THIRD
APPELLANT
AFM
CHURCH OF SOUTH
AFRICA
FOURTH
APPELLANT
and
VERNON
XAVIER
KRUGER
FIRST
RESPONDENT
GOVERNING
BODY OF THE DANVILLE
ASSEMBLY
OF THE AFM OF
SA
SECOND
RESPONDENT
Neutral
Citation:
Mgwenya v Kruger
(1060/16)
[2017] ZASCA102 (6 September 2017).
Coram:
Shongwe AP, Bosielo and Majiedt JJA and Mokgohloa
and Fourie AJJA
Heard:
24 August 2017
Delivered:
6 September 2017
Summary:
Section 16(2)
(a)
(i)
and (ii) of the
Superior Courts Act 10 of 2013
– judgment or
order sought on appeal would have no practical effect or result –
no exceptional circumstances justifying
a consideration of the matter
with reference to the issue of costs – appeal dismissed.
ORDER
On
appeal from:
North West Division of the
High Court, Mahikeng (Gura and Kgoele JJ, Hendricks J dissenting,
sitting as court of appeal):
The appeal is dismissed with costs.
JUDGMENT
Fourie
AJA (Shongwe AP, Bosielo and Majiedt JJA and Mokgohloa AJA
concurring):
[1]
In this appeal counsel were, at the outset of the hearing on 24
August 2017, required to address argument on the preliminary
question
whether the appeal and any order made thereon would, within the
meaning of s 16(2)
(a)
(i)
of the Superior Courts Act 10 of 2013 (the SC Act), have any
practical effect or result. After hearing argument on this issue,
the
appeal was dismissed with costs and it was indicated that reasons for
the order would follow. The following are those reasons.
[2]
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: The first respondent, Vernon Xavier Kruger, was
previously a duly ordained pastor in the service of the fourth
appellant, the Apostolic Faith Mission Church of South Africa (the
church) at its Danville Assembly, Mahikeng. However, during
2012, the
church instituted disciplinary proceedings against the first
respondent and found him guilty of misconduct on four charges,
resulting in the termination of his pastoral status with immediate
effect from 23 January 2013. The first respondent then launched
an
application in the North West Division of the High Court, Mahikeng
(the NWHC) for the review and setting aside of the ruling
of the
disciplinary committee of the church.
[3]
On 11 June 2015, Gutta J dismissed the application with costs, but
the first respondent was granted leave to appeal to the full
court of
the NWHC (the Full Court). On 9 June 2016, the full court upheld the
first respondent’s appeal and reviewed and
set aside the ruling
of the disciplinary committee. The church and the three members of
the disciplinary committee (the latter
being the first to the third
appellants), with the special leave of this court, then noted the
current appeal.
[4]
However, on 27 January 2017 before the hearing of the appeal, the
first respondent passed away. This resulted in the parties
being
requested on 21 June 2017, to file supplementary heads of argument on
the preliminary question referred to in paragraph one
above. The
parties duly filed supplementary heads of argument and, for
completeness, I should add that, at the commencement of
the hearing
of the appeal, an application was granted pursuant to Uniform Rule
15(2), in terms of which the first respondent’s
son, Warren
Vernon Kruger in his official capacity as the executor of his late
father’s estate, was substituted for the first
respondent in
this appeal.
[5] Turning to the preliminary
question as to whether this appeal will have any practical effect or
result, the starting point is
s 16(2)
(a)
(i) of the SC
Act, which reads as follows:
’
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.’
[6]
Counsel for the appellants were constrained to concede that the
appeal and any order made thereon would have no practical effect
or
result. This concession was rightly made as, in view of the demise of
the first respondent, there are simply no live issues
remaining
between the parties. Therefore a decision on appeal will have no
practical effect or result as between the parties to
the appeal. On
this basis alone the appeal ought to be dismissed.
[7] Counsel for the appellants,
however, had a second string to their bow. They submitted that, if
the appeal were not to be heard
on its merits, the church would be
saddled with the costs orders made in favour of the first respondent
and this would be most
‘unfair’ to the church. In this
regard counsel for the appellants stressed that the costs incurred to
date were substantial.
However, in so arguing, the appellants were
confronted with a significant obstacle in the form of s 16(2)
(a)
(ii)
of the SC Act which reads as follows:
‘
Save
under exceptional circumstances, the question whether the decision
would have no practical effect or result is to be determined
without
reference to any consideration of costs.’
It
follows that it is incumbent upon the appellants to show that
exceptional circumstances exist justifying this court, in deciding
whether its judgment or order would have a practical effect or
result, to have regard only to considerations of costs.
[8] In
MV Ais Mamas Seatrans
Maritime v Owners, MV Ais Mamas & another
2002 (6) SA 150
(C), Thring J conducted a comprehensive inquiry as to the meaning of
‘exceptional circumstances’ in our case law. The
conclusion reached at 156H-J, with which I am in agreement, is that
‘[w]hat is ordinarily contemplated by the words “exceptional
circumstances” is something out of the ordinary and of an
unusual nature; something which is excepted in the sense that the
general rule does not apply to it; something uncommon, rare or
different . . .’. Further, the approach to the construction
of
the phrase ‘exceptional circumstances’ in legislation was
stated as follows by this court in
Norwich Union Life Insurance
Society v Dobbs
1912 AD 395
at 399:
‘
Moreover,
when a statute directs that a fixed rule shall only be departed from
under exceptional circumstances, the Court, one would
think, will
best give effect to the intention of the Legislature by taking a
strict rather than a liberal view of applications
for exemption, and
by carefully examining any special circumstances relied upon.’
[9]
In essence the submissions made on behalf of the appellants in this
regard constituted a plea
ad
misericordiam
. The appellants also
sought to rely on the judgment in
Oudebaaskraal
(Edms) Bpk en andere v Jansen van Vuuren en andere
2001
(2) SA 806
(SCA). In my view,
Oudebaaskraal
is clearly distinguishable. In that
matter the appeal became academic as a result of the repeal of the
Water Act 54 of 1956 at the
time when the appeal was ripe for
hearing. By that stage a trial of seven days in the Water Court had
taken place rendering a record
of 2 379 pages. This included the
evidence of several expert witnesses. The appeal record consisted of
35 volumes. This court
held that these circumstances were
exceptional, justifying the conclusion that in the event of a
successful appeal, the judgment
or order of the court would have had
a practical effect or result. I should mention that
Oudebaaskraal
was decided in terms of s 21A(3) of the Supreme Court Act 59 of
1959 which, for all practical purposes, is similarly worded
to
s 16(2)
(a)
(ii)
of the SC Act. See also
Radio Pretoria v
Chairman, Independent Communications Authority of South Africa &
another
2005 (1) SA 47
(SCA) at
55G-56F.
[10]
In the present matter the appeal related to an order granted in
Motion Court which was set aside by the full court. No
viva
voce
evidence was tendered and the
appeal record constituted only three volumes running to 437 pages.
Oudebaaskraal
and
the present appeal are simply not comparable. It follows that,
although the appeal was rendered moot by the death of the first
respondent, the circumstances relied upon by the appellants cannot,
for purposes of s 16(2)
(a)
(ii)
of the SC Act, by any stretch of the imagination be regarded as
exceptional in the sense of something out of the ordinary,
or of an
unusual nature, uncommon, rare or different to the extent that the
general rule as embodied in s 16(2)
(a)
(i)
should not apply.
[11]
In the result the appeal fell to be dismissed. With regard to the
costs of appeal, there is no reason why the appellants, as
the
unsuccessful parties, should not bear those costs. In this regard,
the appellants were the authors of their own misfortune.
As recorded
above, they were notified as early as 21 June 2017 of this court’s
concern that the hearing of the appeal may
not render a judgment or
order which would have any practical effect or result.
Notwithstanding this, they persisted with the appeal,
resulting in
the estate of the first respondent incurring costs in opposing same.
[12] These were the considerations on
which the dismissal of the appeal with costs was based.
____________
P B FOURIE
ACTING JUDGE OF APPEAL
APPEARANCES:
For
the Appellant: M C Erasmus SC; L W De Beer
Instructed by:
Meintjies Petzer Attorneys, Mahikeng
c/o
Symington De Kok, Bloemfontein
For the Respondent: J H F Pistor SC
Instructed by:
Herman Scholtz Attorneys, Mahikeng
c/o Rossouws Attorneys, Bloemfontein