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[2016] ZAECMHC 7
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Mtshayeni v Eastern Cape Development Corporation; In re: Mtshayeni v Eastern Cape Development Corporation (CA&R42/13) [2016] ZAECMHC 7 (31 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: CA&R42/13
Heard
on: 04/02/2016
Delivered
on: 31/03/2016
In
the matter between:
NOMBUYISELO
AGNES
MTSHAYENI
...............................................................................
Applicant
And
EASTERN
CAPE DEVELOPMENT
CORPORATION
...................................................
Respondent
In
re: the matter between:
NOMBUYISELO
AGNES
MTSHAYENI
..............................................................................
Appellant
And
EASTERN
CAPE DEVELOPMENT
CORPORATION
...................................................
Respondent
JUDGMENT
NHLANGULELA
DJP:
[1]
Having entertained the matter on appeal to us arising from the
magistrate of Butterworth at the instance of the applicant and
decided it in favour of the respondent, two processes followed.
The first was an application for leave to appeal that we
granted in
the terms that the appeal be heard by the Full Bench of this court
instead of the Supreme Court of Appeal. The
next process is the
application brought in terms of Rule 42 of the uniform rules of this
court at the instance of the applicant
seeking the correction of the
order such that an order be made referring the appeal to the Supreme
Court of Appeal in terms of
s 20 (4)(b) of the Supreme Court Act 59
of 1959 (hereinafter referred to as “the old Act”).
Incorporated in such application
is a counter application brought at
the instance of the respondent for a declarator that this Court has
no jurisdiction to entertain
the application for leave as sought by
the applicant. These applications are hereinafter referred to
as “the application”
purely for the purposes of
convenience.
[2]
The basis of the application is that the order made was premised on a
mistake common to the parties within the ambit of Rule
42 (1)(c); to
the extent that the provisions of s 20 (4)(b) of the old Act enjoined
the court to make an order referring the appeal
to the Supreme Court
of Appeal. It is indeed so that on the reading of s 20 (4)(b)
the High Court sitting as a court of appeal
from the magistrates’
court had power to grant leave to appeal to either the Full Bench or
Supreme Court of Appeal.
[3]
The provisions of s 20 (4) of the old Act read as follows:
“
4.
No appeal shall lie against a judgment or order of the Court of a
Provincial or Local Division in any civil proceedings or against
any
judgment or order of that Court given on appeal to it except –
(a)
in the case of a judgment or order given in
any civil proceedings by the Full Court of such a division on appeal
to it in terms
of ss (3), with the special leave of the Appellate
Division;
(b)
in any other case,
with
the leave of the Court against whose judgment or order the appeal is
to be made
or, where such leave has
been refused, with the leave of the Appellant Division.”
(The
underlining is mine for emphasis).
[4]
The application is opposed by the respondent on the basis that the
provisions of s 16 (1)(b) of the Superior Courts Act 10 of
2013
(hereinafter referred to as the new Act) replaced the provisions of s
20 (4)(b) of the old Act pursuant to the repealing thereof
in
entirely, with effect from the commencement of the new Act on 23
August 2010. The provisions of s 16 (1)(b) of the new
Act read
as follows:
“
(1)
Subject to section 15 (1), the Constitution and any other law -
(a)
…
(b)
an appeal against any decision of a
Division on appeal to it, lies to the Supreme Court of Appeal upon
special leave
having
been granted by that court or the Supreme Court of Appeal…”.
(The
underlining is mine for emphasis).
[5]
Therefore, the issue for decision is whether in light of the
provisions of s 16 (1)(b) of the new Act this Court sitting as
an
appeal court did have the power to entertain an application for leave
to appeal.
[6]
The parties were busy with the appeal at the time when the new Act
came into operation. The origin of the appeal goes
back to the
summons that was issued in the magistrates’ court by the
respondent against the applicant on 08 March 2012. The
respondent
claimed payment of R129 170,83 and some unqualified damages
based on an alleged breach of a lease agreement.
On 30 November
2012 the magistrate granted summary judgment against which the
applicant appealed to this Court constituted of two
judges. The
appeal was unsuccessful, judgment having been handed down on 28
November 2013. In pursuit of a further
appeal, the applicant
brought an application for leave to appeal which was decided on 01
September 2014. As already stated,
that application was duly
granted ostensibly in terms of the provisions of s 20 (4)(b) of the
old Act,
albeit
at the time that the provisions of s 16 (1)(b) of the new Act were
operational. It was unfortunate that during the hearing
of that
application neither of the parties pointed out that s 20 (4) of the
old Act had been substituted by s 16 (1)(b) of the
new Act. It
was discovered for the first time during preparations for arguments
of the appeal in the Full Bench that the
provisions of s 16 (1)(b)
provide to the effect that an appeal from a judgment of two judges of
the High Court lies directly to
the Supreme Court of Appeal on
special leave. Having withdrawn the matter from the roll of
hearing and consent to do so having
been obtained from the parties, I
encouraged the parties to either abandon the judgment of 01 September
2014 to pave the way for
this matter to be pursued in terms of s 16
(1)(b) or bring an application to vary the order to obviate the need
of involving the
Full Bench. A considerable period of time was
taken by the parties to exercise their choices until the matter was
finally
brought back to court on application in terms of Rule 42.
[7]
In the application for a variation order,
Mr Nkubungu,
for the
applicant, submitted that the provisions of s 52 of the new Act
created an exception to the new rule in s 16 (1)(b)
that all
appeals from the appeal courts of the High Courts lie to the Supreme
Court of Appeal on special leave. He argued
that this case
falls under the exception. The provisions of s 52 read:
“
(1)
Subject to section 27, proceedings pending in any
court at the commencement of this Act, must be continued
and
concluded as if this Act had not been passed”
(2)
Proceedings must, for the purposes of this section, be deemed
to be pending if, at the commencement of this Act,
a summons
had been issued but judgment had not been passed.”
[8]
Mr Nkubungu
contended that s 12 (2)(c) of the Interpretation Act 33 of 1957 and
the case of the
Minister of Public Works
v Haffejee NO
[1996] ZASCA 17
;
1996 (3) SA 745
(A) of
755 C-G give force to his submission that the provisions of s 20
(4)(b) of the old Act continue to apply despite the fact
that the old
Act had been repealed. He contended further that in this case s
16 (1)(b) will, if applied, offend the presumption
against statutory
retrospectivity to the prejudice of the applicant’s vested
rights in terms of s 20 (4)(b).
[9]
Recourse to the facts of the case of
Haffejee
will help towards appreciating counsel’s arguments. On 20
April 1986 a property vesting in the respondent (
Haffejee
NO
) had been expropriated in terms of s
13 (1) of the Development Trust and Land Act 18 of 1936 read with the
provisions of the Expropriation
Act 63 of 1975 (the Act) in exchange
for an offer of compensation in the sum of R20 500,00 subject to
respondent, if he rejected
the offer, exercising its legal right to
apply for a determination of the amount of compensation within 8
months to a compensation
court or High Court clothed with
jurisdiction to grant compensation. The respondent rejected the
amount offered but failed to approach
any of the courts, resulting in
the offer being deemed accepted in terms of s 10 (5) of the Act. On
01 May 1992 the
Legislature abolished the compensation court.
However, the offer had been extended to 20 August 1992.
Notwithstanding the
abolishment, on 06 August 1992 the respondent
lodged an application for compensation in the compensation court, but
which
had been substituted by an ordinary provincial or Local
Division of the High Court. The appellant, in turn,
brought
an application for an order nullifying the respondent’s
application on the basis that the respondent had been deemed to have
accepted the offer long before the abolishment of the compensation
court. It was contended on behalf of the respondent that
the
amending Act did not apply retro-actively to take away the
respondent’s rights to apply for a determination of
compensation
in the compensation court that had vested to him in
terms of the Act. The High Court found for the respondent.
On appeal
to the Supreme Court of Appeal the decision of the High
Court was reversed on the grounds, that
inter
alia
, that the amending Act was a
purely procedural provision which did not impact upon respondent’s
existing rights and obligations
that were still capable of
enforcement by recourse to the provincial or local division of the
High Court.
[10]
On a point that is relevant to the issue (s) of the present matter
the Supreme Court of Appeal in
Haffejee
said the following at
755 C-D:
“
As
we have already seen, the common law recognises no vested right in
procedure
simpliciter
.
See
Curtis's
case
supra
at 319. Were it otherwise, no procedural amendment would apply to
cases or causes of action arising before their commencement and
that
is certainly not the law. Most procedural provisions regulating the
institution and conduct of litigious proceedings have
a cost
implication and many have a tactical implication. Yet that has never
in the past been regarded as imparting to them a special
character
taking them out of the realm of purely procedural provisions and
subjecting them to the presumption against legislative
interference
with vested rights. I see no good reason to commence doing so now. To
label procedural provisions instead as conferrers
of privileges does
nothing, in my view, to improve their claim to be regarded as
anything more than what they truly and essentially
are, namely purely
procedural provisions designed to regulate the institution and
conduct of litigious proceedings. So much
for the common law.
The
same applies, in my view, to s 12(2)
(c)
and
(e)
of the
Interpretation Act which reads:
'(2)
Where a law repeals any other law, then unless the contrary intention
appears, the repeal shall not -
(a)
. . .
(b)
. . .
(c)
affect any right, privilege, obligation or
liability acquired, accrued or incurred under any law so repealed; or
(d)
. . .
(e)
affect any investigation, legal proceeding or
remedy in respect of any such right, privilege, obligation,
liability, forfeiture
or punishment as is in this subsection
mentioned,
and any
such investigation, legal proceeding or remedy may be instituted,
continued or enforced, and any such penalty, forfeiture
or punishment
may be imposed, as if the repealing law had not been passed.'”
[11]
The submissions made by
Mr Hobbs,
for
the respondent, is that since s 20 (4) of the old Act is a procedural
provision the applicant cannot be said to have had vested
rights,
neither do such rights arise from the special leave procedure created
in s 16 (1)(b) of the new Act, the applicant’s
right to appeal
to the Supreme Court having been preserved by the Legislature under
both the old Act and the new Act. Counsel
placed reliance on
the case of
Poswa v President Of
The Republic of South Africa
and
Others
2015 (2) SA 127
(GJ) at 148,
para [71].
[12] As
it is stated in the case of
Haffejee, supra,
an amending law
which is purely procedural in nature does not offend the principle of
statutory retrospectivity as it is not a
conferer of vested legal
rights. For this reason it does not appear to me that the case
of
Haffejee
supports the case advanced on behalf of the
applicant on the issue that s 16 (1)(b) of the new Act does not apply
to her appeal
matter. The case of
Poswa, supra,
gives
expression to the same legal principle as adumbrated in the case of
Haffejee
. And both cases seems to me to be anchored on
the seminal statements of Miller JA in the case of
Euromarine
International of Mauren v The Ship Berg And Others
1986 (2) SA
700
(A) at 709H – 710H, which read:
“
The
general principles which should guide the Court when considering
whether a statutory provision is to apply not only to future
matters
but also to those which existed prior to its coming into operation,
have been frequently discussed by our Courts, but perhaps
nowhere
more fully than in
Curtis v Johannesburg
Municipality
1906 TS 308
, when each of
the members of the Court discussed the principles involved. "The
general rule", said INNES CJ, was
that "in the absence of
express provision to the contrary, statutes should be considered as
affecting future matters only;
and more especially that they should,
if possible, be so interpreted as not to take away rights actually
vested at the time of
their promulgation".
(At
311.) Side by side with that "rule" was the recognition
that any law regulating legal procedure must, where applicable,
govern the procedure "in every suit which comes to trial after
the date of its promulgation" (at 312). SMITH J (at 319)
was
disposed to say that it did "not follow of necessity" that
because a statute dealt with procedure it was to be treated
as
retrospective in its operation. The learned Judge reminded those who
might read what he had to say that in the case of "every
statute, whether dealing with procedure or not, the intention of the
Legislature had to be ascertained and no general rule applicable
to
all statutes" could be laid down. MASON J (at 325) observed that
the manner in which an action was to be brought was governed
by "the
law for the time being in force" and was "not a vested
right attached to the contract or obligation at the
time of its
creation". But, added the learned Judge, the "rule"
(ie regarding procedural matters)
"can
only be justified as a general maxim upon the understanding that the
parties concerned are able to adopt and to apply
to their vested
rights the existing procedure..."
Of
course, some of the observations made in the judgments in the
Curtis
case were prompted or moulded by a consideration of the nature of the
particular enactment with which the case was concerned -
it was a
statute of limitation of actions which required actions to be brought
within six months of the time when the causes of
such actions arose.
But what is clear from the several judgments is that primarily, in
every case, the inquiry must be into the
language of the enactment
and the purpose and intent of the Legislature which emerges
therefrom. This was also the approach of
Lord BRIGHTMAN in
Yew Bon
Tew v Kenderaan Bas Mara
[1982] 3 All ER 833
(PC) at 836:
"Apart
from the provisions of the interpretation statutes, there is at
common law a
prima facie
rule of construction that a statute
should not be interpreted retrospectively so as to impair an existing
right or obligation unless
that result is unavoidable on the language
used. A statute is retrospective if it takes away or impairs a vested
right acquired
under existing laws, or creates a new obligation, or
imposes a new duty, or attaches a new disability, in regard to events
already
past. There is however said to be an exception in the case of
a statute which is purely procedural, because no person has a vested
right in any particular course of procedure, but only a right to
prosecute or defend a suit according to the rules for the conduct
of
an action for the time being prescribed.
But
these expressions 'retrospective' and 'procedural', though useful in
a particular context, are equivocal and therefore can be
misleading.
A statute which is retrospective in relation to one aspect of a case
(eg because it applies to a pre-statute cause
of action) may at the
same time be prospective in relation to another aspect of the same
case (eg because it applies only to the
post-statute commencement of
proceedings to enforce that cause of action); and an Act which is
procedural in one sense may in particular
circumstances do far more
than regulate the course of proceedings, because it may, on one
interpretation, revive or destroy the
cause of action itself.
Whether
a statute is to be construed in a retrospective sense, and if so to
what extent, depends on the intention of the Legislature
as expressed
in the wording of the statute, having regard to the normal canons of
construction and to the relevant provisions of
any interpretation
statute."
[13]
The Constitutional Court in
Veldman v Director of Public
Prosecutions, Witwatersrand Local Division
2007 (3) SA 2010
(CC)
gives the stamp of approval to the principles as stated in the cases
of
Haffejee
and
Poswa
with regard to the manner in
which the presumption against statutory retrospectivity has been
interpreted and applied by our courts
over many years. In
adding the constitutional law flavour Makgoro J had the following to
say at 224, para [26]:
“
Generally,
legislation is not to be interpreted to extinguish existing rights
and obligations. This is so unless the statute provides
otherwise or
its language clearly shows such a meaning. That legislation will
affect only future matters and not take away existing
rights is basic
to notions of fairness and justice which are integral to the rule of
law, a foundational principle of our Constitution.
Also central to
the rule of law is the principle of legality which requires that law
must be certain, clear and stable. Legislative
enactments are
intended to 'give fair warning of their effect and permit individuals
to rely on their meaning until explicitly
changed.”
[14]
It must follow, therefore, that the provisions of s 52 of the new Act
ought to be interpreted together with and/or in the context
of s 16
(1)(b) with due regard to the basic notions fairness and justice to
the applicant, and taking into account the administrative
purpose
which the subsection was designed to serve for the courts.
[15]
On the consideration of the principle stated in the cases of
Haffejee, Poswa and Veldman
that the intention of the legislature must be ascertained from the
language used in the statute, there is no room for interpreting
the
words “proceedings pending” in s 52 (1) as being a
reference to this case because summons had been issued and judgment
had been passed in the magistrates’ court in this matter before
23 August 2013. In my view the submission made on behalf
of the
applicant that the present matter is the pending proceedings by
reason that summons were issued and judgment not passed
by the
magistrate can only result in a bifurcated interpretation, that the
legal uncertainty could not have been intended by the
Legislature.
[16]
Further reasons show clearly that legal uncertainty could not have
been intended. In the first place, the summary judgment
that
was passed by the magistrate on 30 November 2012 remains a judgment,
envisaged in s 52 of the new Act as defined in the case
of
Zweni
v Minister of Law and Order
1993 (1) SA
523
(A) at 532I – 532B. And it matters not that
such judgement is the subject of appeal that is pending finalization
by the Supreme Court of Appeal in due course.
[17]
The historical background to s 20 (4)(b) of the old Act is the second
reason why the contention that there is no judgment on
the summons is
preposterous.
[18]
A search for an answer to the workload presented by a deluge of
unmeritorius appeals to the Appellate Division became the focal
point
in the
Hoexter Commission Of Enquiry
Into The Structure And Functioning Of The Courts.
The Enquiry’s recommendation that there should be “a
limitation of the right of appeal” in all cases culminated
in
the passing of the Appeals Amendment Act 105 of 1982 that led to the
introduction of the appeal procedure in terms of s 20 (4)(b)
of the
old Act. The case of
Westinghouse
Brake & Equipment v Bilger Engineering (Pty) Ltd
1986
(2) SA 555
(SCA) at 562 – 563 deals with the history as well as
the manner in which s 20 (4) applies. It is stated in the case
of
Numsa And Others v Fry’s Metals
(Pty) Ltd
2005 (5) SA 433
(SCA) at 450
A that the reason for the introduction of the special leave procedure
in s 20 (4) was to protect the Supreme Court
of Appeal against
appeals that have no
merit.
A
similar statement was made in the case of
Pharmaceutical
Society Of South Africa and Another NNO v Tshabalala-Msimang and
Another NNO
2005 (3) SA 238
(SCA) at
254B that the object of s 20 (4) was to protect the Supreme Court of
Appeal against baseless appeals by limiting appeals
to those that
have reasonable prospect of appeal. The noble legislative aim
behind s 20 (4) shows ineluctably to have been
advanced further in s
16 (1)(b) by doing away with a need to apply for leave in preference
for the special leave of the Supreme
Court of Appeal on all appeals
against the judgments of the High Courts sitting as a court of
appeal; consisted of more than one
judge.
[19]
Consequently, this Court sitting as an appeal court did not have
jurisdiction to entertain an application for leave to appeal.
That said, it becomes clear that the application in terms of Rule 42,
and the application for leave to appeal are ill-conceived.
[20]
In deciding the issue of costs the Court will take into account that
it will be unfair to saddle the Supreme Court of Appeal
with the task
of determining the costs incurred in applications for leave to appeal
and the interlocutory application in terms
of Rule 42 including the
counter-application, the reason simply being that the parties ought
to have known that leave in this case
is regulated in terms of s 16
(1)(b) of the new Act. The finding that a
declaratory order is competent does trigger
a consideration of costs
towards the Rule 42 application. Each of the applications under
Rule 42 and the counter application
were resisted, and the
applicant’s loss on both scores must be matched with an
appropriate award of costs in favour of the
respondent as a
successful party. I cannot find a reason for exonerating the
applicant from paying costs which she could
have earned had she won
the legal battles.
[21]
In the result the following order shall issue:
1.
The application in terms of Rule 42 be and is hereby dismissed.
2. The
counter-application succeeds.
3. The
application for leave to appeal be and is hereby dismissed.
4.
The applicant/appellant to pay the costs of the applications.
Z.M.
NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
I
agree:
B. MAJIKI
JUDGE
OF THE HIGH COURT
For
the applicant : Mr M. H. Nkubungu of
B.
Makade Incorporated
MTHATHA.
For the
respondent : Adv J. L. Hobbs
Instructed by :
J.S. Sikungo & Associates
MTHATHA.
c/o
R.G.M. Sogoni Inc
BUTTERWORTH.