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[2016] ZAGPPHC 176
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Heppell v Law Society for the Northern Provinces (A220/2014) [2016] ZAGPPHC 176 (26 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A220/2014
DATE:
26/2/2016
In
the matter between
WARRICK
LESLEY VISSER
HEPPELL
APPELLANT
and
THE
LAW SOCIETY FOR
THE
NORTHERN
PROVINCES
RESPONDENT
REASONS
FOR J U D G M E N T
VAN
OOSTEN J:
[1]
The issue this court is required to determine is whether it has
jurisdiction to adjudicate this appeal.
[2]
The background to the litigation between the parties is the
following: On 5 December 2013 a court of this Division, consisting
of
De Vos J and Mogotse AJ, handed down judgment in terms of which, in
essence, the appellant was suspended from practicing as
an attorney
for a period of 6 months. The appellant applied for and was granted
leave to appeal by the court a quo, on 15 July
2015. In the
application for leave to appeal, dated 25 March 2014, leave to appeal
was sought to the 'Full Bench' of this Division
which was echoed in
the order of the court a quo granting leave to appeal to the 'full
bench' (as to the difference between a 'full
bench' and 'a full
court', see Harms
Civil Procedure in the Superior Courts
vol 1
B-345).
[3]
On 26 August 2015 the appeal came up for hearing before a full court
of this Division, consisting of Moshidi , Lauw and Tlhapi
JJJ. The
day before the hearing of the appeal the respondent, for the first
time, raised the question whether the full court had
jurisdiction to
adjudicate the appeal. The full court, in view thereof, ordered that
the appeal be postponed and issued directions
as to the filing of
heads of argument on the jurisdiction point. Heads of argument were
duly filed and the appeal is presently
before us for determination of
the jurisdictional issue.
[4]
The starting point in the consideration of the issue is the question
whether the relevant provisions of the Supreme Court Act
59 of 1959
(the old Act) or the Superior Courts Act 1O of 2013 (the new Act)
apply for the purpose of determining jurisdiction.
The litigation
between the parties straddles both Acts: the new Act came into
operation on 23 August 2013 and thus after institution
of the main
application but before the judgment of the court a quo was delivered
on 5 December 2013.
[5]
In regard to the old Act, s 20 thereof provides for appeals to the
then Supreme Court in general. In terms of s 20(2) and (4)
an appeal
to a full court is only possible from a judgment or order of a single
judge, of the court of first instance (s 13(1)(c)),
leave to appeal
having been granted to the full court or, if leave to appeal was
refused, by order of the Supreme Court of Appeal,
on application to
it (Herbstein & Van Winsen
The Civil Practice of the High
Courts of South Africa
5th ed p1156). No provision is made
in the old Act or the Uniform Rules of Court for the hearing of an
appeal by a full court on
appeal from a judgment of the full bench. I
am unable to find any authority for the proposition advanced by
counsel for the appellant
that the old Act can be construed as
providing for an appeal from a full bench to be heard by the full
court.
[6]
In the new Act the omission in the old Act of a provision for appeals
from a full bench has been cured. Section 16 of the new
Act provides
in clear terms that an appeal against a decision of a court of first
instance lies upon leave having been granted,
if the court consisted
of more than one judge, to the Supreme Court of Appeal. The
jurisdiction of a full court to hear appeals
from a full bench
accordingly, is ousted by these provisions. That normally would
swiftly have decided the issue at hand but a
further aspect was
addressed in argument before this court, which is whether the new Act
applies to the present matter. I propose
to briefly deal with this
aspect merely for the sake of completeness.
[7]
The question is what the status of this matter was at the time the
new Act came into operation in order to determine whether
it was
applicable. The motion proceedings, which are the subject matter of
this appeal, were instituted and therefore commenced
in March 2013.
The new Act. as I have already pointed out. came into operation on 23
August 2013 and thus before judgment was delivered
on 5 December
2013. In terms of s 52(1) of the new Act, its provisions are not to
be applied to pending cases, which is defined
as cases where summons
had been issued (which would include institution of motion
proceedings) but judgment not yet been passed
as at the date of
commencement of the Act. From these provisions it follows that the
main application was indeed governed by the
old Act.
[8]
The main application was concluded on the date the judgment was
delivered. After that the application was no longer pending
within
the meaning of s 52(2) of the new Act. Had it been the intention of
the legislature to extend the meaning of 'pending' to
finalisation of
all appeals in regard to the main application, af was contended for
by counsel for the appellant, words to that
effect would have been
used in the section, of which there are none. The plain and ordinary
meaning of the wording in s 52(2) of
the new Act clearly shows the
intention of the legislature to exclude from the operation of the new
Act, pending matters where
judgment in that matter had not yet been
delivered. The further proceedings concerning appeal are
sui
generis,
the court a quo having become
functus
officio
in regard to the main application.
[9]
For all these reasons I have come to the conclusion that this court
lacks jurisdiction to adjudicate the appeal. In view thereof
this
court,
a
fortiore,
has no jurisdiction to
issue any order except to remove the appeal from the court roll.
[10]
In the result the appeal is removed from the roll.
____________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
I
agree.
_____________________
DS
MOLEFE
JUDGE
OF THE HIGH COURT
I
agree.
_____________________
MM
JANSEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPELLANT :
ADV CH HARMS
APPELLANT'S
ATTORNEYS :
STOPFORTH
SWANEPOEL & BREWIS INC
ATTORNEY
FOR RESPONDENT:
ATTORNEY
PJ SMITH
RESPONDENT'S
ATTORNEYS :
ROOTH
&
WESSELS
DATE
OF HEARING
&
ORDER :
24 FEBRUARY
2016
DATE
OF REASONS FOR JUDGMENT: 26
FEBRUARY
2016