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[2016] ZAKZDHC 11
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Reddy v Reddy and Others (11174/15) [2016] ZAKZDHC 11 (24 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWA-ZULU
NATAL LOCAL DIVISION, DURBAN
CASE
NO.: 11174/15
In
the matter between:
NAYESAN
REDDY
...................................................................................................................
Applicant
And
LERENDAREN
REDDY
.............................................................................................
First
Respondent
SHERIFF
OF THE COURT, DURBAN
COASTAL
.............................................
Second
Respondent
SHERIFF
OF THE COURT, DURBAN
NORTH
....................................................
Third
Respondent
FIRST
NATIONAL BANK
LTD
.............................................................................
Fourth
Respondent
Coram
Koen, J
Heard
: 14 March 2016
Delivered:
24 March 2016
O
R D E R
The
application is dismissed with costs.
J
U D G M E N T
KOEN
J:
[1]
The Applicant claims
inter
alia
the
following relief in respect of an order directing him to make certain
interim payments to the First Respondent:
[1]
That
the Respondents are called upon to show cause to this Honourable
Court on the day of 2016
at 9H30
a.m. or soon thereafter as the matter may be heard, why an order in
the following terms should not be made final.
2.1
That the Writ issued on 26 February 2016 be and is hereby set aside;
2.2
That all attachments made in execution of such Writ be and are hereby
set aside;
2.3
That the First Respondent pay the costs of the Application;
2.4
Any other relief that may be granted by the Court.
The
Orders contained in paragraph 2.1 and 2.2
supra
are
to operate as Interim Orders pending finalisation of the Application
and/or the Appeal to the Natal Provincial Division against
the Order
of Court dated 4 February 2016
[2]
and the Appeal to the Supreme Court of Appeal against the Order of
Court dated 9 February 2016.’
[2]
The relevant background facts giving rise to the above application
are briefly as follows. On 3 March 2016 the Second Respondent
at the
instance of the First Respondent attached the banking account of City
Plumbers and Builders, a partnership between the Applicant
and the
First Respondent, held with the Fourth Respondent. This
attachment was made pursuant to a writ of execution for payment
of
the amounts of R76 983,58 and R76 983,58 said to be ‘in
respect of orders granted by the Honourable Justice
Madondo on the
2
nd
and 9
th
of February 2016’.
[3]
The relevant part of the order granted by Madondo J on 2 February
2016 reads as follows:
‘
1.
That a rule nisi do issue, calling upon the Respondents to show cause
to this Court on the 23 day of February 2016, at 9:30 a.m.
also soon
thereafter as counsel may be heard, why, pending the outcome of an
application to review and set aside the first and
second respondents
decision dismissing the applicant from his employment, an order in
the following terms should not be granted:
1.1
The first respondent
[3]
acting
personally or through the second respondent
[4]
is hereby interdicted and restrained from withholding payment to the
Applicant
[5]
of his salary and
other benefits for the month of January 2016 and the following months
that were last paid to him in December
2015 and which include the
following:
1.1.1
Basic salary R40 000,00;
1.1.2
Vehicle instalment R16 739,10;
1.1.3
Vehicle instalment R25 392,48;
1.1.4
Vehicle insurances R 4 294,00;
1.1.5
Vehicle tracking instalment R558,00.
1.2
The First Respondent is ordered to pay the
salary and other benefits referred to in para 1.2 above to the
Applicant for January
2016, forthwith;
1.3
…’
[4]
The material part of the order of 9 February 2016 reads as follows:
‘
The
application for leave to appeal is dismissed with costs, such costs
on attorney and client scale against 1st Respondent.
[6]
That
a rule nisi do issue, calling upon the Respondents to show cause to
this Court on the 17
th
day of February 2016 at 9:30 a.m.
or so soon thereafter as counsel may be heard, why, an order in the
following terms should not
be granted:
1.1
The interim order granted in the above
matter, by this court on 2
nd
February 2016, will not be suspended by any application for leave to
appeal or the noting of any appeal against such order;
1.2
The First Respondent is hereby ordered to
comply with the set order granted by this court, on 2
nd
February 2016 forthwith;
1.3
The First and Second Respondents are in
contempt of court for not having complied with the said order on 2
nd
February 2016 which they were obliged to do;
1.4
…
1.5
…
1.6
…
That
the order described in paragraphs 1.1, 1.2 and 1.4 above shall have
immediate effect pending the outcome of this application.
Costs
is granted against 1
st
Respondent with costs on attorney and client scale.’
[5]
The founding affidavit refers to these two orders as follows:
‘
In
short, two orders of court were granted. The first on 2
February 2016 which is being taken on appeal to the Supreme Court
of
Appeal. The second granted on 9 February 2016 is the subject matter
of Annexure “B” supra.’
[7]
The
Applicant further concedes in his founding affidavit that these were
‘interim orders’. That concession is plainly
correctly
made, particularly in respect of the order of 2 February 2016, when
regard is had to its terms.
[6]
The Applicant’s case however is that the operation and
execution of these orders have been suspended. He relies for that
proposition on the provisions of s 18 of the Superior Courts Act No.
10 of 2013 (‘the Act’) which he maintains ‘specifically
precludes any execution of a judgment or order upon the lodgement of
an appeal’.
[7]
Section 18 of the Act provides:
‘
Suspension
of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation
and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision of
the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an application
for leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3)
A court may only order otherwise as
contemplated in subsection (1) or (2), if the party who applied to
the court to order otherwise,
in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the
court does not so order and
that the other party will not suffer
irreparable harm if the court so orders.
(4)
If a court orders otherwise, as
contemplated in subsection (1) –
(i)
the court must immediately record its
reasons for doing so;
(ii)
the aggrieved party has an automatic right
of appeal to the next highest court;
(iii)
the court hearing such an appeal must deal
with it as a matter of extreme urgency; and
(iv)
such order will be automatically suspended,
pending the outcome of such appeal.
(5)
For the purposes of subsections (1) and
(2), a decision becomes the subject of an application for leave to
appeal or of an appeal,
as soon as an application for leave to appeal
or a notice of appeal is lodged with the registrar in terms of the
rules’.
[8]
The effect of s 18(2) is clearly that absent a direction to the
contrary granted by the court in exceptional circumstances,
the
default position is that the operation and execution of an
interlocutory order not having the effect of a final judgment, are
not suspended.
[9]
Mr Gunase
who appeared on behalf of the Applicant, accepted that the orders
were interlocutory orders. That concession is correctly made.
He
contended however that they were not interlocutory orders ‘not
having the effect of a final judgment’, but indeed
were
interlocutory orders having the effect of a final judgment, and hence
that their execution would not be ‘not suspended
pending the
decision of the application or appeal’, and thus being
suspended, could not be executed upon.
[10]
Regardless as to whether they were orders ‘…having the
effect of a final judgment’ or not, a precondition
for s 18 (1)
or (2) of the Act to apply is that the order concerned must be
the
‘
subject of an application for leave
to appeal or of an appeal’. In this regard the position
regarding the two orders is as
follows:
(a)
The order of 2 February 2016:
(i)
If that order was an interlocutory order not having the effect of a
final judgment, then its execution would not be suspended
irrespective of whether an appeal was pending in terms of s 18(2) of
the Act, or whether no appeal was pending, and it could be
executed
upon;
(ii)
If the order of 2 February 2016 was an interlocutory order having the
effect of a final judgment, then it would fall under
s 18(1) and its
operation and execution would be suspended pending the decision of an
application for leave to appeal or an appeal,
provided such an
application or appeal were pending. The Applicant had filed an
application for leave to appeal against the order
dated 2 February
2016 but that application was dismissed by Madondo J on 9 February
2016 with costs on the attorney and client
scale. No ‘decision
of the application or appeal’ as contemplated in either s 18(1)
or s 18(2) was therefore pending
in respect of that order when the
writ was issued on 26 February 2016. The operation and execution of
the order of 2 February 2016
was therefore not suspended when the
writ was issued.
(b)
The order of 9 February 2016:
No
application for leave to appeal was brought against the order of 9
February 2016 and hence no ‘decision of the application
or
appeal’ was pending in respect of that order and its operation
and execution, if in any way relevant, could not be suspended.
[11]
It seems however that the Applicant’s reasoning proceeds on the
basis that the order of 2 February 2016 directing the
interim
payments was an interlocutory order having the effect of a final
judgment,
ergo
an order as contemplated in s 18(1), and that
paragraph 1.1 of the rule
nisi
issued on 9 February 2016 read
with paragraph 2 of that order directing that:
‘
The
interim order granted in the abovementioned matter, by this Court on
2
nd
February 2016, will not be suspended by any application for leave to
appeal or the noting of any appeal against such order’
amounted
to an order made ‘under exceptional circumstances’ that
the execution of the order of 2 February 2016 would
be suspended
pending the decision of an application or appeal against that order
i.e. the one granted on 9 February 2016. This
construction of the
Applicant’s contention is consistent with the Applicant having
filed a notice on 10 February 2016 in
terms of s 18(4)(i) ‘for
the recording of the reasons for the order granted in terms of s
18(4) on 9 February 2016 by the
Honourable Justice Madondo’ and
him filing a ‘Notice of Appeal in terms of section 18(4)(ii) of
Act 10 of 2013’
also on 10 February 2016.
[12]
Two issues arise from this argument, namely:
(a)
whether the court order dated 2 February 2016 directing the interim
payments, is an interlocutory order ‘…having
the effect
of a final judgment’; and if so,
(b)
whether paragraph 1.1 of the rule
nisi
issued on 9 February 2016 read with
paragraph 2 thereof, is indeed an order made ‘otherwise …under
exceptional circumstances’
as contemplated by s 18(1), and to
which s 18(4) would thus apply.
[13]
As regards the first issue, as to what is meant by an order “not
having the effect of a final judgment” Harms AJA
in
Zweni
v Minister of Law and Order
[8]
held that in order to qualify:
‘…
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’.
[14]
Of further significance are the dicta in
M
V Snowdelta – Serva Ship Limited v Discount Tonnage Limited
[9]
where the court held that ‘an interim order has no independent
existence, but is conditional upon confirmation by the same
court’.
It held that the position now is that a judgment or order of court
must be final for it to be appealable.
If the order granted was
capable of being changed on the return date it was interim only and
could only be finalised on the return
date.
[15]
The terms of the order granted on 2 February 2016 must be taken at
face value. Relief is granted on an interim basis as part
of an
interlocutory order pending the outcome of an application to review.
Depending on the outcome of that review, the interim
orders providing
for monthly payments either will or will not be confirmed. If
not confirmed the amounts paid over to the
First Respondent will have
to be reversed and repaid.
[16]
Mr Gunase’s
argument, as I understood it, was that once the payments had been
made, the ‘horse has bolted’ and that if the review
was
unsuccessful the applicant would probably have to sue the First
Respondent for repayment of all monies paid over on an interim
basis. This he contended had ‘the effect of a final
judgment’.
[17]
I cannot, with respect, agree with that submission. The
finality or otherwise of the judgment has nothing to do with
the
manner of performance or the recovery of any performance should the
review be unsuccessful but is concerned solely with whether
the
interim payments directed are susceptible of alteration by this court
as a court of first instance, as opposed to a different
order
following on appeal. Clearly, the interim payments fall within the
former category. The direction that the interim payments
be made are
not definitive of the rights of the parties, and they certainly do
not dispose of a substantial portion of the relief
claimed in the
main proceedings relating to the review. The order was therefore not
one having final effect.
[18]
However, even if I was wrong in that regard and the order of 2
February 2016 had the effect of a final judgment, it seems to
me that
the application must also fail on the alternative issue posed for
determination.
[19]
Paragraph 1.1 of the rule
nisi
read
with paragraph 2 of the order of 9 February 2016 is not an order made
‘otherwise’ in respect of an order ‘the
subject of
an application for leave to appeal or of an appeal, pending the
decision of the application or appeal’. The application
for
leave to appeal in respect of the order of 2 February 2016 had been
dismissed and no decision was pending. The next step, assuming
it to
be an order having final effect and appealable, would have been for
the Applicant to petition the President of the Supreme
Court of
Appeal. Had Madondo J granted leave to appeal, the operation and
execution of that judgment (again assuming it to be final
in effect)
being subject to appeal would have been suspended unless an order was
granted in terms of s 18(1) that its operation
not be suspended. Only
if an order was granted that its operation was not suspended would
there be an order ‘as contemplated
in subsection (1)’ for
the purposes of s 18(4) to which the provisions of that subsection,
and specifically an automatic
right of appeal against the grant of
that order (and not a refusal thereof) at the instance of an
aggrieved party would lie. There
was simply no such order. Paragraph
1.1 read with paragraph 2 of the order granted at the instance of the
First Respondent on 9
February 2016 was simply declaratory in nature
and a restatement of the general default position which applies in
our law.
[20]
The Applicant was misdirected in filing a notice in terms of s
18(4)(i) requesting reasons ‘for the order granted in
terms of
s 18(4) on 9 February 2016 …’ seemingly in the belief
that he has an automatic right of appeal in respect
of that order in
terms of s 18(4)(ii) of the Act. The order of 9 February 2016
was not an order made where ‘a court
orders otherwise’
when granting leave to appeal, as contemplated in subsection (1) to
which the provisions of s 18(4) could
apply.
[21]
Accordingly, the application falls to be dismissed.
[22]
Mr
Khan SC
,
who appeared on behalf of the First Respondent, asked that the
application be dismissed with costs on the attorney and client
scale
and in support of that submission referred to
Matshekga
and Another v Siphephile
[10]
where it was held that where an application for leave to appeal had
been pursued and handled in a reckless and negligent manner
with
regard to the procedures and applicable law in what was a clear
interim order resulting in the parties having to prepare and
appear
in court unnecessarily and incurring costs, that the application for
leave to appeal should be dismissed with costs on attorney
and client
scale.
[23]
The Applicant in this matter was clearly misdirected and one
certainly gets the impression that he resorted to desperate attempts
to try and avoid the operation of the orders of Madondo J. That might
possibly be indicative of
mala fides
on his part, but on the limited allegations before me, I am not
persuaded that such
mala fides
has been established on a balance of probabilities or sufficiently to
result in a costs order other than that on the party and
party scale.
[24]
The application is accordingly dismissed with costs.
DATE
OF HEARING: 14 MARCH 2016
DATE
OF DELIVERY: 24 MARCH 2016
APPLICANT’S
COUNSEL: MR. H GUNASE
INSTRUCTED
BY: RAVINDRA MANIKLALL & COMPANY
C/O
SUDESH SIDLALL & ASS.
RESPONDENT’S
COUNSEL: Mr. M S KHAN SC
INSTRUCTED
BY: KERSHNIE GOVENDER ATTORNEYS
[1]
The
Second and Third Respondents are respectively the Sheriff for the
Durban Coastal area and the Sheriff for the Durban North
area. The
Forth Respondent is First National Bank Limited.
[2]
There
is no ‘order of court dated 4 February 2016’ as
foreshadowed in paragraph 3 of the Notice of Motion.
Presumably that reference should be ‘2 February 2016’
being the judgment giving rise to the writ.” It
is only
the order of 2 February 2016 that directed the interim payments.
[3]
The
applicant in this application.
[4]
One D. Nundkissore.
[5]
The
first respondent in this application.
[6]
The
applicant in this application.
[7]
Annexure
“B” is headed ‘Notice of appeal in terms of s
18(4)(ii) of Act 10 of 2013’. It purports
to be a notice
of appeal in respect of the order of 9 February 2016, although no
application for leave to appeal on the grounds
foreshadowed in that
notice appears to have been granted by Madondo J against his order
of 9 February 2016. It seems that the
Applicant believes the notice
to be competent in terms of
s 18(4)(ii)
of the
Superior Courts Act.
[8
]
1993(1)
SA 523 A at 532I - 533 A.
[9]
2000
(4) SA 746
(SCA) at 752 B.
[10]
Case
No 366/2011 Limpopo High Court decided on 20 August 2011.