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[2017] ZAGPPHC 258
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Hunter v Financial Services Board and Others (3275/2016) [2017] ZAGPPHC 258 (16 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 3275/2016
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED.
16/3/2017
In
the matter between:
ROSEMARY
THÈRÈSE
HUNTER
Applicant
and
FINANCIAL
SERVICES
BOARD
1
st
Respondent
ABEL
MOFFAT SITHOLE
N.O.
2
nd
Respondent
DUBE
PHINEAS TSHIDI
N.O.
3
rd
Respondent
JURGEN
ARNOLD BOYD
N.O.
4
th
Respondent
PRAVIN
GOROHAN
N.O.
5
th
Respondent
JUDGMENT
HF
JACOBS, AJ:
[1]
This is an application for leave to appeal brought by the
unsuccessful applicant a
quo
where her application for
amendment of her notice of motion was refused and her application for
interdictory relief dismissed. The
third and fourth respondents
applied for leave to cross-appeal a cost order. The application for
leave to cross-appeal is conditional
upon leave being granted to the
applicant. Counsel for the applicant urged me to grant leave to
appeal to the Supreme Court of
Appeal. I will return to the grounds
upon which leave to appeal is sought presently. Before doing so, it
is necessary to refer
to the principles applicable to applications
for leave to appeal which are set out in section 17
[1]
of the Superior Courts Act 10 of 2013 ("the
Superior Courts
Act"
;).
[2]
The
Superior Courts Act
[2
]
repealed the Supreme Court Act
[3]
and introduced according to
Mont
Chevaux Trust
[4]
and
Minister
of Justice and
Constitutional Development
&
Others
[5]
a new and more stringent
approach to be followed by a Court of first instance when considering
an application for leave to appeal.
[3]
Unlike the Supreme Court Act,
section 17
of the
Superior Courts Act
imposes
substantive law provisions applicable to applications for
leave to appeal. The following principles are distilled therefrom:
First,
it stipulates that leave to appeal “
may
only be given"
if the judge is of the opinion that
certain jurisdictional facts exist. The discretion of a judge sitting
as a court of first instance
is, therefore, fettered.
Second,
the
jurisdictional facts which are in the “
opinion"
of
the Judge required to be present are:
[3.1] that the appeal would have
reasonable prospects of success,
[6]
or
[3.2] the existence of some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter
under consideration.
[7]
[4]
The reasonable prospect of success-criterion is well established.
Section 20(4)(b) of the Supreme Court Act and Rule 49 of the
Uniform
Rules of Court governed applications for leave to appeal before the
advent of the.
Superior Courts Act. That
subsection and rule
contained no substantive law provisions applicable to applications
for leave to appeal and dealt exclusively
with procedural aspects of
appeals and applications for leave to appeal. Over the years our
Courts have, in the application of
section 20(4)(b) of the Supreme
Court Act, adopted the criterion of ”
reasonable
prospect of success
”
.
The criterion appears from
Baloyi, Nxumalo Ngubane,
Olivier and Paulsen.
[8]
[5]
An appeal will have prospects of success if it is arguable in the
narrow sense of the word. It requires that the argument advanced
by
an applicant in support of an application for leave to appeal must
have substance. The notion that a point of law is arguable
on appeal,
entails some degree of merit in the argument. The argument, however,
need not be convincing at the stage when leave
to appeal is sought
but it must have a measure of plausibility.
[9]
[6]
Third,
the
decision sought on appeal may not fall within the ambit of section
16(2)(a) of the Act and should, therefore, not be
"of
such a nature that the decision sought will have no practical effect
or result"
and that
"the question whether
the decision would have no practical effect or result is to be
determined without reference to any consideration
of costs.
”
[10]
[7]
Fourth,
section
17(6)(a)
of the
Superior Courts Act provides
that if leave is granted
under
section 17(2)(a)
or (b) to appeal against the decision of a
court of first instance consisting of a single judge, the judge “
must
direct that the appeal be heard by a Full Court of that Division"
unless the judge considers
that the decision to be appealed Involves a question of law of
importance, whether because of its general
application or otherwise,
or in respect of which a decision of the Supreme Court of Appeal is
required to resolve differences of
opinion or that the administration
of justice, either generally or in the particular case, requires
consideration by the Supreme
Court of Appeal of the decision, in
which case the judge granting leave
must
direct that the appeal be
heard by the Supreme Court of Appeal.
[11]
[8]
Fifth,
whether a Court of first instance grants or refuses
leave to appeal it is required to provide reasons for its order
Furnishing reasons
-
“
... explains to the parties,
and to the public at large which has an interest in Courts being open
and transparent, why a case is
decided as it is. It is a discipline
which curbs arbitrary judicial decisions. Then, too, it is essential
for the appeal process,
enabling the losing party to take an informed
decision as to whether or not to appeal or, where necessary, seek
leave to appeal.
It assists the Appeal Court to decide whether or not
the order of the lower court 1s correct And finally, it provides
guidance
to the public in respect of similar matters."
[12]
[9]
In her notice of motion and her proposed amended notice of motion the
applicant sought declaratory orders and interdictory relief
ordering
the FSB to
"procure the conduct of an investigation by
a
firm of independent and appropriately qualified forensic auditors
(the investigator) chosen by it in consultation with the fifth
respondent (the Minister)"
and to mandate the FSB to
determine “
on the basis of information and records and any
other past or present
employee of the FSB who, in the opinion
of the investigator, may have information
or
records relevant
to the investigation in relation to each of the 500 funds"
and
to require from the Investigator when to commence the investigation,
to produce a written interim report, to make written
recommendations, perform reasonably required conduct for the
successful and expeditious conclusion of the investigation and to
appoint an inspector in terms of the
Inspection of Financial
Institutions Act, 1998
and to confer such powers and authority in
terms of that Act on the inspector as may be reasonably required and
that the actions
of the FSB and its appointees be supervised by the
Court.
[10]
It was common cause throughout the proceedings that the FSB appointed
Mr Mort to undertake the Investigation and inspections
the FSB
considered appropriate in the circumstances. The relief sought by the
applicant in her main application and the proposed
amended
application 1s to have another person or institution appointed to
undertake the work and to prescribe by way of court order
the manner
of execution thereof and for monitoring of execution of that order by
the Court.
[11]
The application for amendment of the applicant's notice of motion and
the main application failed due to a lack of standing
in law on her
part in the main application and, should the proposed amendment be
allowed, the amended main claim would suffer the
same fate. The
applicant seeks a court order to prescribe to the FSB how, when and
by whom its statutory functions should be performed.
I have listed
the grounds in law on which the applicant relies in my main judgment.
The grounds there stated do not, in my view,
afford the applicant the
right to claim the relief sought against the respondents. During
argument of the application for leave
to appeal Mr Loxton SC relied
on the Judgments of the Constitutional Court in
Khumalo,
[13]
Areva,
[14]
and
Merafong
[15]
in support of the
submission that application of the rule of law to the facts
in
casu
imposed upon the
respondents, when they became aware of irregularities in the
cancellation of pension funds, the duty to deal with
the
irregularities in the manner in which her relief is framed in her
main application. In this regard the applicant relies on
the dictum
in paragraph [61] in
Merafong
which reads as follows:
"This
was
out of kilter
with Merafong's duty
as
an organ of State and
as
constitutional citizen. This Court has affirmed
as
a
fundamental principle that the Stale 'should
be
exemplary in
its compliance with the fundamental constitutional principle that
proscribes selfhelp'. What is more, in Khumalo, this
Court held that
State functionaries are enjoined to uphold and protect the rule of
law by, inter alia, seeking the redress of their
department's
unfawful decisions. Generally, it is the duty of the State
functionary to rectify unlawfulness. The Courts have a
duty 'to
insist that the State, in all its dealings, operates within the
confines of the law and, in
so
doing, remains accountable
to
those on whose behalf it exercises power'. Public functionaries
'must, where faced with an irregularity in the pub/le administration,
in the context of employment or otherwise, seek to redress ii'. Not
to do so may spawn confusion and conflict, to the detriment
of the
administration and the public. A vivid instance is where the
President himself has sought judicial correction for the process
misstep in promulgating legislation.”
[12]
The submission in my view loses sight of the fact that the FSB In the
present matter considered the applicant's views on the
cancellations
project, the recommendations of the O'Regan report and that of KPMG
and acted in a manner not fully in line with
the-aforesaid
recommendations, but as the FSB saw fit Absent In the present matter
is conduct which the FSB and the Minister consider
irregular or
unlawful to obligate the FSB to act in the manner claimed by the
applicant. The FSB did act but in a different manner
by appointing Mr
Mort and not the entities the applicant has in mind.
[13]
In my view the judgments of
Areva
and
Merafong
[16]
do not, if applied to the
facts in the present matter, afford the applicant
locus
standi in iudicio
to claim
the rellef sought.
[14]
Under the circumstances I am not of the opinion that the appeal would
have reasonable prospects of success and in my view no
other
compelling reason exists why the appeal should be heard. The
investigation of Mr Mort continued at the time of the hearing
and
beyond. The applicant herself handed up at the hearing a further
interim report prepared by Mr Mort shortly before the hearing.
That
interim report was supplied to the applicant by the FSB. Once Mr Mort
has completed his investigation, inspection and has
reported to the
FSB, the FSB and the Minister would be in a position to take a
decision on the cancellation project. On completion
thereof the FSB
and/or the Minister may decide on appropriate action to be taken in
regard to the cancellations project. An appeal
on the relief sought
by the applicant would in my opinion have no practical effect or
result, and would as contemplated by the
provisions of section
16(2)(a) of the Superior Courts Ac not be allowed.
[15]
The application for leave to appeal s refused with costs which costs
shall include the cost of two counsel where so employed.
___________________
H
F JACOBS
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
Counsel
for Applicant:
C
D A Loxton SC
A
Milovanovic
Counsel
for 1
st
& 2
nd
Respondents:
W
H Trengove SC
H
Rajah
Counsel
for 3
rd
& 4
th
Respondents:
M
C Maritz SC
T
Manchu
Counsel
for 5
th
Respondent:
F
B Pelser
[1]
"17 Leave to appeal
(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 on 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.
(2)
(a) Leave to appal may be granted by the judge or judges against
whose decision an appeal is to be made or, if not readily
available,
by any other judge or judges of the same court or division
…
(4)
The power to grant leave to appeal -
(a)
is not limited by reason only of the fact that the matter in dispute
is incapable of being valued in money; and
(b)
is subject to the provisions of any other law which specifically
limits it or specifically grants or limits any right of appeal.
(5)
Any leave lo appeal may be granted subject to such conditions as the
court concerned may determine, including a condition
-
(a)
limiting the issues in appeal; or
(b)
that the appellant pay the costs of the appeal
(6)
(a) If leave is granted under subsection (2)(a) or (b) to appeal
against a decision of a Division as a court of first instance
consisting of a single judge, the judge or judges granting leave
must direct that the appeal be heard by a full court of that
Division, unless they consider –
(i)
that the decision to be appealed involves a question of law of
importance, whether because of its general application or otherwise,
or in respect of which a decision of the Supreme Court of Appeal is
required to resolve differences of opinion; or
(ii)
that the administration of justice, either generally or in the
particular case, requires consideration by the Supreme Court
of
Appeal of the decision, in which case they must direct that the
appeal be heard by the Supreme Court of Appeal.
(b)
Any direction by the court of a Division in terms of paragraph (a),
may be set aside by the Supreme Court of Appeal of its
own accord,
or on application by any interested party filed with the registrar
within one month after the direction was given,
or such longer
period as may on good cause be allowed, and may be replaced by
another direction in terms of paragraph (a).
(7)
…
[2]
10 of 2013 which took affect on 23 August 2013
[3]
59 of 1959.
[4]
The Mont Chevaux Trust (IT2012/28) v Tina Gosen (unreported judgment
Land Claims Court, Case No LCC 14R/2014 dated 3 November
2014.
[5]
The Minister of Justice and Constitutional Development and Others v
The SA Litigation Centre and Others (Case No 27740/2015,
Gauteng
North High Court, Pretoria, unreported judgment of 15 September
2015.
[6]
Section 17(1)(a)(i).
[7]
Section 17(1)(a)(ii).
[8]
R v Baloyi
1949 (1) SA 523
(A) at 524, R v Nzumalo
1939 AD 580
, R v
Ngubane
1945 AD 185
at 187; Afrikaanse Pers Bpk v Olivier
1949 (2)
SA 890
(O); Paulsen & Another v Slip Knot Investments 777 (Pty)
Ltd
2015 (3) SA 479
(CC) at [21]–[24]
[9]
Paulsen supra at [21].
[10]
Section 16(2)(a)
of the
Superior Courts Act
[11
]
Section 17(6)(a)(i)
and (ii) of the
Superior Courts Act 10 of 2013
.
[12]
Botes & Another v Nedbank Ltd
1983 (3) SA 27
(A) at 28A-F;
Strategic Liquor Services v Mvumbi N.O
2010 (2) SA 92
(CC) at
[16]-[19].
[13]
Khumalo v Member of the Executive Council for Education:
KwaZulu-Natal [2013] ZACC 49; 2014 (5) SA 579 (CC): 2014 (3) BCLR
333 (CC)
[14]
Areva NP v Eskom Holdings Soc Ltd & Another [2016] ZACC 51.
[15]
Merafong City Local Municipality v AngloGold Ashanti Ltd
[2016] ZACC
35.
[16]
See footnotes 14 and 15 supra.