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[2018] ZAGPPHC 226
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Swart and Others v De Witt (34997/2015) [2018] ZAGPPHC 226 (17 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
CASE
NO: 34997/2015
DATE:
17/01/2018
IN
THE MATTER BETWEEN
:
SW
ART, JOHANNES RENIER
N. O. First
Applicant
SWART,
LEIGH ANN
N. O.
Second Applicant
LOUW,
WYNAND WESSELS
N. O
Third Applicant
.
(In
their capacities as trustees of the RJS Trust, IT4300/2003)
And
DE
WITT
,
JOSIAS ALEXANDER
Respondent
JUDGMENT
KOLLAPEN
J:
1.
This is an application for leave to
appeal against the whole of the judgment of this court of the 18th of
October 2016 when the
Applicants' exception to the Respondent's
particulars of claim was dismissed with costs.
2.
The grounds upon which the
application is premised are comprehensively set out in the Notice of
Application for leave to appeal
and in the main relate to the
findings by this Court that the provisions of the National Credit Act
(No. 34 of 2005) were applicable
to the agreements concluded between
the parties and upon which the action was based.
3.
The applicants contend that the
Court erred in finding that the agreement between the Applicants and
Magnolia was an agreement within
the ambit of the National Credit Act
and that by so doing erred in thus finding that the provisions of
Section 40 (l)(a) of the
National Credit Act were activated.
4.
During the hearing of the
application for leave to appeal the Court raised with Counsel for the
applicants the question of whether
the order of the Court of the 18th
October of 2016, dismissing the exception was appealable.
5.
In
BALISO
v FIRSTRAND BANK
2017(1) SA
292 (CC),
the Constitutional Court
dealt with the very same issue and in the majority judgment of
FRONEMAN J, the following is said (at 2941
to 296D):
[5]
The first hurdle facing the applicant is
procedural in nature. The disposal of the exceptions on appeal
presents particular problems
in relation to the attributes of an
appealable judicial decision. In
Zweni,
the Supreme Court of Appeal
canvassed different rationales distinguishing between non-appealable
rulings and appealable orders.
Harms AJA, writing for the court,
noted that, in determining in which category a judicial determination
falls, one must look 'not
merely [at] the form of the Oudicial
pronouncement]... but also, and predominantly, [at] its effect'. He
then enumerated three
attributes that an appealable judgment has:
'(F)irst,
the 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, third, it must have the
effect of disposing of at least a substantial portion
of the relief
claimed in the main proceedings....'
[6]
In
Hamilton,
Cameron JA noted the difference in
the Supreme Court of Appeal authority between the appealability of
decisions upholding exceptions
and the apparent inconsistency in
deciding the appealability of decisions dismissing exceptions. In the
particular circumstances
of that case the Supreme Court of Appeal
declined to overrule the decisions that held that the dismissal of an
exception was not
appealable.
[7]
In this court, the principles
applicable to the appealability of decisions were comprehensively
dealt with by Moseneke DCJ in
!TAC:
The
question whether an appeal against a decision of the High Court may
lie directly to this court is governed bys 167(6)(b) of
the
Constitution read with rule 19. The constitutionally prescribed
standard is whether it is in the interests of justice for this
court
to hear an appeal. In
Khumalo and Others v Holomisa
this court
held that it is not a jurisdictional requirement for an appeal to
this court that the matter must involve a "judgment
or order"
within the meaning of s 20(1) of the Supreme Court Act. However, the
court pointed out that it will not often be
in the interests of
justice for this court to entertain appeals against interlocutory
rulings which do not have a final effect
on the dispute between the
parties.
The
same point was made again in
Minister of Health and Others v
Treatment Action Campaign and Others (No 1) (TAC(J)):
"The
policy considerations that underlie the non appealability of
interim execution orders in terms of s 20 of the Supreme
Court Act,
are also relevant to the decision whether it is in the interests of
justice to grant an application for leave to appeal
to this Court
against an interim execution order."
In
this sense, the jurisprudence of the Supreme Court of Appeal on
whether a "judgment or order" is appealable remains
an
important consideration in assessing where the interests of justice
lie. An authoritative restatement of the jurisprudence is
to be found
in
Zweni
which has laid down that the decision must be final
in effect and not open to alteration by the court of first instance;
it must
be definitive of the rights of the parties; and lastly, it
must have the effect of disposing of at least a substantial portion
of the relief claimed in the main proceedings. On these general
principles the Supreme Court of Appeal has often held that the grant
of an interim interdict is not susceptible to an appeal.
The
"policy considerations" that underlie these principles are
self-evident. Courts are loath to encourage wasteful use
of judicial
resources and of legal costs by allowing appeals against interim
orders that have no final effect and that are susceptible
to
reconsideration by a court a quo when final relief is determined.
6.
Applying those principles it must in
my view follow that none of the three attributes to which reference
is made find any presence
in the judgment of this court of the 18th
of October 2016 as it could hardly be said that the judgment on the
applicability of
the National Credit Act is final and binding, is
definitive of the rights of the parties, or disposes of a substantial
portion
of the relief
claimed.
7.
It remains open to the applicant to
pursue the issue before the trial Court and that court may well upon
consideration of the evidence
advanced in support of the contention
relating to the applicability of the National Credit Act, find
otherwise than this Court
did. In this regard it bears mention that
an exception is generally dealt with and disposed of on the basis of
the correctness
of the factual matrix advanced in the particulars of
claim. The matter is considerably different at trial where the trial
Court
is called upon to determine the correctness of that very same
factual matrix and may well conclude differently.
It
is precisely on that basis that the trial court may well take a
different view on the matter that in essence, does not render
the
order of this Court of the 18th of October 2016 final in effect, or
for that matter, dispositive of the relief, or definitive
of the
rights of the parties.
8.
Under those circumstances and for
the reasons given, the application for leave to appeal falls to be
dismissed.
Order
9.
I make the following order:
The
application for leave to appeal is dismissed with costs.
CASE
NO.: 34997/2015
HEARD
ON: 03 October 2017
LEGAL
REPRESENTATIVES:
FOR
THE APPLICANTS: Adv.SD Wagener SC
INSTRUCTED
BY: Weavind & Weavind Inc. (ref.: E le Roux/PM/R223630)
FOR
THE RESPONDENT·: D J L Nel
INSTRUCTED
BY: Louis Nel Incorporated (ref.: D.230