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[2016] ZAFSHC 57
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Du Plessis v Erasmus (A118/2015) [2016] ZAFSHC 57 (24 March 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A118/2015
DATE:
24 MARCH 2016
In
the appeal between:-
SUSANNA
ISABELLA DU
PLESSIS
.....................................................................................
Appellant
And
ALBERTUS
JOHANNES
ERASMUS
.................................................................................
Respondent
CORAM:
VAN ZYL J
et
OPPERMAN, AJ
HEARD
ON:
7 DECEMBER 2015
DELIVERED
ON:
24 MARCH 2016
JUDGMENT
Opperman,
AJ
[1]
This is an appeal against an order of the District Court. The
succinct and trite facts in introduction are that the respondent
(Erasmus) sold cattle to the appellant (Du Plessis) for R240
000.00
[1]
following an oral
agreement. A subsequent written agreement
[2]
was drafted and signed. The payment did not happen and the respondent
repossessed the cattle. Both parties claimed breach of contract
in
the court
a
quo
.
The claim (by Erasmus) was for the payment of the amount of R22
094.34 plus interest and costs. The merits of the claim was disputed
(by Du Plessis) with a counterclaim of R27 475.57 plus interest and
costs. The claims are for peripheral expenditures to have remedied
and limited the consequences of the breach.
Separation
of actions
[2]
No formal application or formal order for separation of merits and
quantum in the proceedings
a quo
occurred
.
Perusal of the evidence points to an ambiguity as to whether one or
the other or both were dealt with during the trial.
[3]
During the hearing of the appeal a conclusion on separation could
also not be reached. The appeal was noted on the merits according
to
paragraph 1.1 of the Notice of Appeal. In paragraph 1.3 of the same
notice as drafted by Mr. van Wyk, the appellant protested
the fact
that the claim was granted without proof of the quantum. The record
shows a different story:
“
Mnr.
van Rooyen: Dit is die saak vir die eiser op die meriete,
Edelagbare.
[3]
Mnr
van Wyk: En wat die teeneis aanbetref is daar ooreengekom dat wat die
quantum aanbetref dit oor sal staan vir latere beregting.
As dit die
Hof mag behaag.
[4]
”
[4]
The hearing stood down and council contacted the instructing
attorneys involved in the trial. Council conceded after consultation
that merits and quantum were separated by agreement. They further
agreed that the court order may be interpreted to be for both.
The
wording of the order coupled with the pleadings support this. The
order reads:
[5]
“
1.
The Applicant’s claim succeeds with costs.
2.
The Respondents claim is dismissed with costs.”
[5]
The above is relevant because a finding that the defendant is liable
to the plaintiff without a determination of quantum is
not
appealable. See
Jordaan v
Bloemfontein TLA
2004 (3) SA 371
(SCA),
Steenkamp v SABC
2002 (1) SA 625
(SCA),
Zweni v
Minister of Law and Order of the RSA
1993
(1) SA 523
(A) and
Lucky
Arthur
Ndlovu v Santam Limited
(550/2003)
[2005] ZASCA 41
(13 May 2005).
[6]
The quirk is that when the court was first approached merits and
quantum were still in dispute, council agreed to separate before
the
hearing and the court order was on both. Is the matter appealable on
this quandary of events? The escapade does not end here.
Judgment
[7]
Although the matter
a
quo
was remanded for judgment such was never handed down and the
proceedings were concluded with the order on 17 December 2014.
[6]
The absence of any reasons in terms of Rule 51(8)
[7]
exacerbates the already prevailing muddle.
[8]
It is imperative to pause and deal with the difference between
‘judgment’, ‘an order/final judgment’
and
‘reasons for judgment’ in appeals.
[9]
According to Harms AJA
[8]
the
word ‘judgment’ has two meanings, firstly the reasoning
of the judicial officer (known to the American jurists
as ‘opinion’)
and secondly, ‘the pronouncement of a disposition’ upon
relief claimed in a trial action.
Thus; opinion and finding.
Rule 51(1) demands a judgment in writing that shows the facts found
to be proven and reasons for
judgment. In
Securiforce
CC v Ruiters
2012
(4) SA 252
(NCK) at 259E to 260D it was stated that a judgment must
be a proper judgment. Terse reasons for judgment will not suffice.
[9]
[10]
According to MM Corbett, in ‘Writing a Judgment’,
The
South African Law Journal
115 (1998) at 116 a judgment comprises
the following elements; an introductory section, a setting out of
facts proven, the law
and the issues, applying the law to the facts
proven, determining the relief and finally, the order of the court.
[11]
An order issued by a court is to direct a party or participant in a
case to take a certain action.
[10]
Corbett
put it as part of a judgment and as a decree ending the judgment. The
Lawgiver in sections 48 and 83 of the
Magistrate’s
Court Act 32 of 1944,
(the Act) defines ‘order’ and ‘final judgment’
in synonym for purpose of appeal. In the
Zweni
-case
on 532J-533A it was found that an order or judgment that is final has
three attributes: First, the decision must be final in effect
and not
susceptible to alteration by the court that made it; 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 proceedings.
[12]
Rule 51(8) entitles a magistrate, in spite of a judgment wherein
reasons were given, to give further reasons specifically dealing
with
any ground of appeal. These are the ‘reasons for judgment’
for purpose of an appeal.
[13]
Notice of Appeal was lodged on 23 December 2014.
[11]
Disconcertingly, the presiding officer that did not hand down any
judgment on the order, stated on 5 January 2015 that: ‘No
further reasons are given with regard to the judgment.’ There
was no judgment in the first place to make sense of the: ‘No
further
reasons…’
[12]
[14]
After the appeal was already placed on the roll in the High Court,
the appellant, realizing the lacuna, requested reasons from
the
magistrate. It is not clear whether this was in terms of Rule 51(1)
or Rule 51(8). It is presumed to be in terms of Rule 51(1)
because
the magistrate did not deal with the facts specified in the notice of
appeal. The request should have been made before
the noting of
the appeal and within 10 days after judgment. The judicial officer
had to, within 15 days of this, hand down to the
clerk of the court a
judgment in writing which shall become part of the record showing the
facts he or she found to be proved and
his or her reasons for
judgment. On 29 October 2015, more than 10 months after the appeal
was noted, the magistrate stated in a
document that:
[13]
“
Die
feite deur die Hof bevind as bewese is die volgende:
1.
Die bedoeling dat die finale betaaldatum
vir die beeste 31 Maart 2012 wou wees is bewys.
2.
Dit is baie duidelik dat die Verweerder nie
finansieël in staat was om op daardie datum te betaal nie want
daar is getuig dat
daar slegs ‘n bedrag van R100 000-00
(Eenhonderd duisend) rand beskikbaar is.
3.
Die verweerder het ten spyt van die
ooreenkoms later aangebied om slegs ‘n gedeelte van die getal
beeste te neem en daardeur
is ook duidelik bewys dat die ooreenkoms
soos aangegaan nie aan voldoen sou word nie.
4.
Die skuldbewys (bewysstuk C) soos aangegaan
tussen die partye dui duidelik aan wat die onderskeie partye se regte
en verpligtinge
sal wees in geval van verbreking van die ooreenkoms,
derhalwe was die Eiser geregtig om te eis soos tans voor die Hof en
slaag
sy eis. Wat die teeneis betref is dit ook duidelik uit die
skuldbewys dat die Verweerder geen teen-eis teen die Eiser het nie.”
[15]
The document was submitted to this court as part of the Heads of
Arguments of the appellant on 16 November 2015. None of the
above is
identifiable in the prescribed procedures of law and seems to be a
self-constructed creation between the appellant and
the magistrate.
It is procedurally wrong and illegal.
[16]
The respondent did not object to the document forming part of the
record of the appeal but criticized the content as being
worthless.
The statement may be correct; the above is neither a proper judgment
as defined above, nor in terms of Rule 51(1). It
is not reasons in
terms of Rule 51(8). It is also not of much value to the court of
appeal.
[17]
The question was posed earlier whether the appeal may proceed?
Council for the appellant, argued for the consideration of the
merits
and final adjudication of the case by this court. The rationale of
the contention is that it is the best way to serve justice;
it will
lead to the just, speedy and inexpensive settlement of the case in
the interest of both parties. The solution to lie in
section 87(d) of
the Act which states the same.
[18]
Farlam JA ruled in paragraph [16] of the
Jordaan
-case
that the power conferred on the court of appeal by section 87(d) of
the Act does not extent to doing something to a non-appealable
order
to make it appealable.
[19]
The principle grounds of appeal in the Notice of Appeal on the
credibility findings or presumed credibility findings of the
court
a
quo
, cannot be addressed before the
predicaments of law that emerged during the hearing of the appeal,
are unravelled and adjudicated.
A miscarriage of justice will only be
condoned and inflamed.
[20]
The facts remain that:
1.
The Magistrate did not give judgment; he just made the order. The
Magistrate did not supply proper and timeous reasons for judgment.
The argument from council for the respondent was: No judgment, no
reasons, no legal finding, no legal order.
2.
The appeal is premature and unfair towards the respondent due to the
non-existence of a judgment or reasons therefor. Proper
access to
justice in the appeal cannot follow.
3.
The Magistrate erred by making an order on the merits and quantum
whereas the evidence was on merits only. It is an illegal and
erroneous order.
4.
The matter is not appealable as a consequence of the separation of
issues.
[21]
I apologise for the song and dance; the case demands it. Since the
dawn of democracy in 1994 there has not been, is not at
this time and
will not be in future, a case in any court of this country that is
not deserving of judgment that is founded on defensible
reasons. The
judicial authority within the triad of government and as represented
by the courts will be grossly ineffective if
shorn of decrees bereft
of adequate reasons in sustenance thereof. The right to access to
courts, the independence of the judiciary
and accountability of the
courts, will be illusory. Trials and hearings will be moot and
futile. Democracy will fail.
[22]
Section 34 of the
Constitution of the
Republic of South Africa, 1996
(the
Constitution) orders the right of access to courts:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
Allied
to this is judicial independence in sections 165(1) to (4) which
states:
“
(1)
The judicial authority of the Republic is vested in the courts.
(2)
The courts are independent and subject only to the Constitution
and the law, which they
must apply
impartially and without fear, favour or prejudice.
(3)
No person or organ of state may interfere with the functioning
of the courts.
(4)
Organs of state, through legislative and other measures, must
assist and protect the courts to ensure the independence,
impartiality, dignity, accessibility and effectiveness of the
courts.”
Sections
195(1)(f) and (2) of the Constitution demands that the conduct of all
organs of state be transparent, accountable and responsive.
Self-evidently this must also apply to judicial officers.
[23]
Bosielo JA
[14]
imparted that
undoubtedly section 165(1) gives the courts the power to exercise
judicial authority. These are awesome powers which
must be exercised
with caution, restraint and responsibility. This is accomplished by
way of reasoned judgments and it is crucial
that such be furnished in
public and in open court. This allows the public to use their
democratic rights to comment or criticise
the judgments of our
courts. Such engagement will no doubt serve to engender and enhance
the confidence and faith of the public
in the judicial system. See
S
v Mathebula
2012
(1) SACR 374
(SCA),
S
v Mokela
2012 (1) SACR 431
(SCA) at paras 11-13. In addition, the furnishing
of reasons serves another important objective of demonstrating to
interested
parties that a judicial officer has applied his/her mind
to the issues which were put before him/her and therefore the
judgment
is not arbitrary.
[24]
This critical role was voiced by the RT Hon Sir Harry Gibbs:
[15]
“…
it
is of particular importance that the parties to the litigation –
and the public – should be convinced that justice
has been
done, or at least that an honest, careful and conscientious effort
has been made to do justice; in any particular case
the delivery of
reasons is part of the process which has that end in view.”
[25]
Rule 51(1) dictates that judgment in writing
shall
be handed down. Rule 51(8) demands that reasons for judgment
must
;
it is not optional, be furnished. Inferior courts are creatures of
statute and the magistrate transgressed the Act.
[16]
[26]
The Constitution was defied in the District Court; a purpose of
judgment in writing is to enable the parties to a dispute legal
access to the court of appeal. The dispute to be taken on appeal was
not defined. The so-called lines of battle were not drawn
for purpose
of appeal.
[17]
The court was
not responsive. The dispute in the court
a
quo
was
not addressed and resolved due to the erroneous order. There are
costs implication for both parties and finalization in litigation
cannot be achieved. It is a collapse of justice.
[27]
The logical consequence following from this is that any judgment
concerning the impediments caused by the court
a
quo
have been overtaken by litigation
and hence will referral to the court
a
quo
to salvage the situation, be
without any practical effect or significance. The damage was done.
Any further delay in the adjudication
of the case will cause an added
embarrassment to the administration of justice. Justice further
delayed will be justice denied.
[28] What
distinguishes this case from the
Steenkamp, Jordaan and
Zweni
-
cases is that although erroneous, the magistrate
did decide on merits and quantum. It has the effect of final judgment
and therefore
we can entertain the appeal.
[29]
The court of appeal may- (a) confirm, vary or reverse the judgment
appealed from, as justice may require; (b) if the record
does not
furnish sufficient evidence or information for the determination of
the appeal, remit the matter to the court from which
the appeal is
brought, with instructions in regard to the taking of further
evidence or the setting out of further information.
[18]
[30]
Justice requires and law permits that this court rules on the merits
of the claims. The record does not furnish sufficient
evidence or
information to rule on quantum and it was also not the case of either
of the parties during trial. Quantum will still
have to be
adjudicated by the court
a quo.
The
merits
[31] The respondent
has been the owner of an Nguni stud since 1994. During the time
of doing business with the appellant he
was in the process of
reducing said stud. At that time he kept the best of the cattle but
deregistered it to limit expenditures.
On the 1
st
of
September 2011 the appellant and her family selected the stock they
wished to buy from this herd. The stock was delivered immediately.
On
the 16
th
of January 2012 it was described in an
Acknowledgment of Debt between the parties as: ‘sold and
delivered.’
Date
of payment
[32]
The respondent maintained that the R240 000-00 was to be paid on
delivery and not conditional of re-registration as stud animals.
It
is not clear from any evidence if the payment was supposed to be on 1
September 2011 and whether delivery occurred on this date.
There is
confusion in the pleadings and the evidence of the respondent. In any
way; the day of delivery and 1 September came and
went. According to
the respondent the date was extended to 1 December 2011. This date
also went by without payment. In the meanwhile
the re-registration
process has started. Inspection for this purpose by the relevant
institution was to be in May 2012.
[33]
According to the appellant payment was only due on 31 March 2012 and
after re-registration; never on delivery or any other
date.
[34]
On the 16
th
of January 2012 the Acknowledgment of Debt was drafted by the legal
representative of the respondent and signed by the parties.
Herein
the appellant declares that she acknowledges the debt of R240 000-00,
VAT excluded, for goods sold and delivered unconditionally.
The
mentioned amount shall carry interest at 15% per annum from 1
September 2011 until payment. The capital shall be payable on
or
before 31 March 2012. If the appellant is in default on the due date
of payment the respondent may repossess the cattle plus
increase. The
costs of transport for repossession will be for the account of the
appellant. The appellant waived legal exceptions
non
causa debiti
[19]
and
errore
calcutu
;
the meaning thereof to be known to the appellant.
The
sufficiency of the Acknowledgment of Debt (AoD)
[35]
First of all; the waiver of the
non
causa debiti
on the 16
th
of January 2012 in the AoD proofs the claim of the respondent without
any doubt. Further; purely on the other terms of the AoD
the
appellant was legally obliged to pay the capital and unconditionally
so, on 31 March.
The
issue of re-registration as condition for payment
[36]
The re-registration argument is rejected. The appellant’s case
on this issue is false.
1.
The undisputed fact is that she knew she
acquired quality stock that was de-registered. It must be remembered
that it was a case
of re-registration and not new registration. The
cattle was stud material. Re-registration was a formality.
2.
The above is supported by the fact that
there was an undisputed offer to buy some of the cattle without prove
of registration when
it came to light that the full amount was not
going to be paid.
3.
She knew inspection for this purpose was
only in May 2012 after 31 March 2012, but agreed the date of payment
to be 31 March.
4.
Significant is that nowhere and never was a
cut-off date for re-registration contracted. If re-registration was
the intention and
condition of payment, the contract could not have
gone without this date. Absence of this proves absence of such a
condition.
5.
The issue was never raised before 31 March
and before the appellant had to pay. Had this been a bone of
contention it could
have been raised during the signing of the AoD
but was not. It was not made part of the agreement.
6.
It was not raised during the telephonic
conversation with the husband of the appellant that will be discussed
later.
7.
Again, the reason why it was not mentioned
in any agreement or communication is that this was not a condition
for payment. The appellant
knew that the stock is stud and she does
not have to be concerned about the quality. This was confirmed by the
bona fides
of the respondent when he replaced some stock before the dispute
arose and to ensure quality.
The
issue of the 15% interest
[37]
Dovetailing with the lack of credibility in the appellant’s
case on re-registration is the fact that interest suddenly
became an
issue. With the interest-objection came the grazing-agreement, the
cross-bred story and the date of loading-of-the-cattle
dispute. None
was voiced until litigation started
[38]
The grazing-objection entails an agreement that other cattle of the
respondent will be put on the appellant’s veld and
interest
will then not be claimed on the R240 000-00 capital. It is common
cause that the grazing-agreement was not implemented
and thereafter
the AoD happened. Interest was now consulted and agreed upon. The
interest came about because the capital was not
paid from the start
and on delivery. The appellant realised this, hence no objection to
the terms of the AoD that interest be calculated
back to 1 September.
The
issue of mixed-bred calves
[39] The fact that
the cows were in calf from an Angus bull and not a stud Nguni was
claimed in the pleadings as justification for
non-payment. For some
unknown reason this allegation was withdrawn and explained away as a
miscommunication between client and
attorney. This reflects badly on
the trustworthiness of the appellant’s case, especially so
after all the flipping by the
appellant in the rest of the case.
The
loading of the cattle on 30 March
[40] The undisputed
conversations between the husband and the respondent that occurred on
Monday the 26
th
of March and the subsequent days, tips the
case against the appellant. The husband stated that they cannot pay
the total amount
because the property deal that should have generated
the money did not go through. He gave the respondent permission to
load on
30 March notwithstanding the agreement for the 31
st
of March. On the appellants own version they did not object to the
loading of the cattle. The cattle even stood in the kraal when
the
trucks arrived; ready to be loaded. The objections only came when
litigation started.
The
respondent stated unequivocally that he would not have loaded if he
did not have the said permission. His adherence to contract
and law
is corroborated by the fact that he studied the AoD before he refused
the offer of the husband to buy some of the cattle;
he was vigilant
to respect the contract. The trucks were only available on the Friday
and the respondent had to do what he could
to minimise his risks.
His version is accepted.
[41] Whether the
repossession date was 30 or 31 March is on the above, of no
significance. It is hours that would not have
made a difference
to the fact that the contract was not going to be honoured by the
appellant. On the version of the appellant
she was not going to pay
the monies on the 31
st
.
The
transfer of risk
[42]
Part of the claim of the respondent is the loss suffered for the cow
that died in the possession of the appellant; the repossession
was
short of one cow. The counterclaim
[20]
of the appellant proofs that she accepted the risk for the goods sold
and delivered. She claimed for vaccination of the cattle
and marking
as her property. If the risk was still on the respondent he would
have carried the responsibility and costs for vaccination.
The terms
of the AoD confirmed that she accepted risk. On the merits she was
correctly held accountable for the loss.
The
costs of the transportation of the cattle
[43] The merits of
this issue is obvious in terms of the AoD. The claim was correctly
granted by the court
a quo.
The
costs for the re-registration of the cattle
[44]
The persistent illegal conduct of the appellant caused the costs for
the re-registration of the cattle to end up as a loss
to the account
of the respondent. The claim was also correctly granted by the court
a quo.
ORDER
1.
The appeal is dismissed, with costs.
2.
The main orders of the District Court dated
17 December 2014 is set aside and replaced with the following:
2.1
In the main claim:
2.1.1
The defendant is to be held liable for such
damages as may be proven by the plaintiff; alternatively agreed upon
between the parties.
2.1.2
The defendant is to pay the costs of the
plaintiff to date.
2.2
The counterclaim is dismissed, with costs.
3.
The Registrar must send a copy of this
judgment to the Chief Magistrate for the Kroonstad district.
M.
OPPERMAN, AJ
I
concur.
C.
VAN ZYL, J
On
behalf of the appellant: Adv. CD Pienaar
Instructed
by:
Rosendorff
Reitz Barry
BLOEMFONTEIN
On
behalf of the respondent: Adv. B. Knoetze SC
Instructed
by:
Phatsoane
Henney
BLOEMFONTEIN
[1]
See
Paragraph 31.
[2]
Exhibit
C of the record
a
quo
.
[3]
Transcript
of record court
a
quo
:
Volume 1, page 119 at 15.
[4]
Transcript
of record court
a
quo
:
Volume 2, page 165 at 3.
[5]
‘
1.
Die Eiser se eis slaag soos versoek met koste.
2.
Die Verweerder se eis word met koste van die hand gewys.’
[6]
Transcript
of record court
a
quo
:
Volume 2, page 219.
[7]
Magistrate’s
Court Rules
.
All references to rules will be in terms of the
Magistrate’s
Court Rules
unless otherwise stated.
[8]
Zweni
v Minister of Law and Order of the RSA
1993
(1) SA 523 (A).
[9]
Regent
Insurance Co Ltd v Maseko
[2000]
3 All SA 83 (W).
[10]
www.thefreedictionary.com/court+order(23/12/2015)
www.merriamWebster.com/dictionary/court%20order(23/12/2015)
[11]
Transcript
of record court
a
quo
:
Volume 2, page 220.
[12]
Transcript
of record court
a
quo
:
Volume 2, page 223.
[13]
Heads
of Argument: Appellant.
[14]
15
July 2013: South African Judicial Training Institute: Judgment
Writing For Aspirant Judges, Polokwane,
Judgment
Writing.
https://www.google.com/search?q=bosielo+judgment+writing&ie=utf-8&oe=utf-8
on
5 Jan 2016.
[15]
Sir
Harry Gibbs,
Judgment
Writing
,
Paper delivered at the Judges' Conference 19 January 1993.
https://www.google.com/search?q=Sir+Harry+Gibbs%2C+Judgment+Writing%2C+Paper+delivered+at+the+Judges%27+Conference+19+January+1993&ie=utf-8&oe=utf-8
on
5 Jan 2016.
[16]
Regent
Insurance Co Ltd v Maseko
2000
(3) SA 983
(W) and
Raubex
Construction h/a Raumix v Armist Wholesalers
1998
(3) SA 116
(O).
[17]
Section
34 of the Constitution.
Snyman
v Crous
1980
(4) SA 42
(O) at 45D.
[18]
Section
87
of the
Magistrates
Court Act 32 of 1944.
The
court of appeal may-
(a)
confirm, vary or reverse the judgment appealed from, as justice may
require;
(b)
if the record does not furnish sufficient evidence or information
for the determination of the appeal, remit the matter to
the court
from which the appeal is brought, with instructions in regard to the
taking of further evidence or the setting out
of further
information;
(c)
order the parties or either of them to produce at some convenient
time in the court of appeal such further proof as shall
to it seem
necessary or desirable; or
(d)
take any other course which may lead to the just, speedy and as much
as may be inexpensive settlement of the case; and
(e)
make such order as to costs as justice may require
[19]
Non
causa debiti
means
that the debtor cannot plead that there was no cause of debt.
[20]
Transcript
of record court
a
quo
:
Volume 1, page 12.