About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2016
>>
[2016] ZAKZPHC 96
|
|
Stainforth N.O. and Others v Bravospan 230 CC and Another (AR81/2016, 42466/2014) [2016] ZAKZPHC 96 (16 September 2016)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR81/2016
Magistrates’
Court, Durban Case No.: 42466/2014
In
the matter between:
WAYNE
RONALD STAINFORTH
N.O.
FIRST APPELLANT
LYNN
ELIZABETH PROUDE
N.O.
SECOND APPELLANT
MERRIL
HEATHER NICHOLSON
N.O.
THIRD APELLANT
(First
to Third Defendants in the Court a quo)
and
BRAVOSPAN 230
CC
FIRST RESPONDENT
SHINE
THE WAY 138
CC
SECOND
RESPONDENT
(First
and Second Plaintiffs in the Court a quo)
JUDGMENT
Delivered
on : FRIDAY, 16 SEPTEMBER 2016
[1]
This appeal comes to us from the Magistrates Court at Durban where an
enrichment action was instituted by the two respondents
(close
corporations, which I will refer to as the first and second
plaintiffs) against the three appellants who were sued in their
capacities as trustees of a Trust which I will call the defendant.
[2]
It is necessary to furnish a brief account of the pleadings in order
to explain our conclusion that we cannot entertain this
appeal.
In doing so I shall avoid unnecessary detail, and forsake precision
where it makes no contribution to an understanding
of the problem
which arises in this appeal.
[3]
The case for the plaintiffs was pleaded as follows.
(a)
The
defendant let certain premises to the first plaintiff in terms of the
written agreement of lease annexed to the particulars
of claim.
(b)
During
2012 both plaintiffs were under the impression that in terms of the
lease agreement the first plaintiff was obliged to pay
to the
defendant a contribution to levies, rates and taxes payable by the
defendant in respect of the property in question.
(I will call
these outgoings “rates”.)
(c)
Being
under that impression the first plaintiff paid some R26 000 to
the defendant in respect of rates during 2012, and the
second
plaintiff paid some R3000 to the defendant (presumably on behalf of
the first plaintiff) for the same reason.
(d)
In
fact no such contribution to rates was due in terms of the lease
agreement.
(e)
In
the result the defendant was unjustly enriched, the plaintiffs
co-extensively impoverished, and the defendant had to refund the
monies paid in error.
[4]
The defendant’s plea proceeded along the following lines.
(a)
The
first plaintiff was not the tenant contemplated by the lease annexed
to the particulars of claim. The defendant explained
that,
without limiting the generality of its denial of the allegation that
the first plaintiff was that tenant, the document reveals
that the
lease was concluded on behalf of a tenant which would be a close
corporation still to be formed. The first plaintiff
had not
ratified the lease according to law and accordingly was not the
tenant.
(b)
The
defendant denied the allegation that a contribution to rates was not
payable by the tenant in terms of the lease agreement.
(c)
The
defendant admitted that it had received some payments in respect of a
contribution to such rates but did not admit the particular
amounts
pleaded on behalf of each of the plaintiffs.
(d)
The
defendant denied that it had been unjustly enriched.
(e)
Concerning
the second plaintiff it was pleaded that if it regarded itself as
impoverished by the payment it claimed to have made,
it should look
to the first plaintiff for recompense.
(f)
Finally
the defendant pleaded that in any event the issue as to whether
a contribution to rates was payable to the defendant
in terms of the
lease agreement was settled after the commencement of the lease in
terms of an oral agreement.
[5]
At the commencement of the trial the parties requested the learned
magistrate to make an order in terms of s29 (4) of the Magistrates’
Court Act, that the issue as to whether the lease required the tenant
to make a contribution to rates should be decided separately
and
first, leaving all other matters over for later determination should
that prove necessary. A reading of the record shows
that this
was somewhat imperfectly conveyed to the magistrate. However it
is clear that he understood that the issue upon
which he had to rule
was the proper construction of the lease agreement insofar as it
dealt with the question of rates.
[6]
Some evidence was led and the matter was argued. The magistrate
thereafter delivered judgment and made the following order.
“
(i)
The 1
st
plaintiff was not obliged as per the lease agreement to pay a
pro-rata share of the levies, rates and taxes payable by the
[defendant]
to the local authority in respect of the leased premises.
(ii)
The monies paid by the 1
st
plaintiff to the [defendant] in
payment of pro-rata share of rates, levies and taxes were not owing
to the same.
(iii)
The [defendant] to pay the costs of the 1
st
plaintiff up to the appearance in court on 25 May 2015 and such costs
to include the reasonable cost of counsel on brief.”
[7]
The defendant then delivered a notice of appeal against the whole of
the judgment of the magistrate. The grounds of appeal
(which
run to some 12 pages) canvassed principally the errors the magistrate
was said to have perpetrated in interpreting the lease;
but also the
defendant’s contention that the magistrate had erred by making
findings beyond the one he was asked to make.
No ground of
appeal set out in the document canvassed the question as to whether
it was proper for the magistrate to have made
an order as to costs at
that stage, notwithstanding his decision favourable to the plaintiffs
on the question of the proper construction
of the lease.
[8]
A little over a week before the day set for the hearing of the appeal
we addressed a query to the parties, referring them to
the judgment
in
Steenkamp
v South African Broadcasting Corporation
2002
(1) SA 625
(SCA), and requesting them to prepare to address the court
on the question as to whether the orders made by the magistrate were
appealable. Thus forewarned, the defendant’s attorney
addressed us supporting the proposition that the magistrate’s
judgment is appealable, and the plaintiffs’ counsel argued the
contrary proposition.
[9]
Section 48 of the Magistrates Court Act, 32 of 1944 provides for what
judgments and orders the court may make “as a result
of the
trial of an action”. It speaks to what is to be done at
the end of the case. Section 83 of the Magistrates
Court Act
deals with appeals against decisions made in the magistrates court,
and s83 (a) provides for an appeal against any judgment
of the kind
described in s48. Such a judgment was not given by the
magistrate in this case.
[10]
For present purposes, s83 (b) then goes on to allow an appeal against
“any rule or order made in such suit or proceeding
and having
the effect of a final judgment, ... and any order as to costs.”
[11]
The case of
Steenkamp
concerned the appealability of a ruling made by a magistrate on
liability in a delictual claim, that issue having been separated
from
the issue of quantum which was to be dealt with later. In
Steenkamp
the court endorsed as correct what had already been held (
obiter
)
in
Durban’s
Water Wonderland (Pty) Limited v Botha and Another
1999 (1) SA 982
(SCA) that, in terms of s83 (b), any order made in a
suit had to have the effect of a final judgment before it would be
appealable;
and that an order or ruling on a component of a
plaintiff’s case (such as liability, when quantum still remains
to be determined)
does not have that quality; and that it could not
gain that quality by being regarded as a declaratory order (final in
the sense
that the magistrate cannot revisit it) because a magistrate
has no jurisdiction to make declaratory orders.
[12]
As pointed out in
Steemkamp
(paragraph 15) a magistrate’s finding on liability which has
been separated from quantum does not dispose of a portion of
the
relief claimed by the plaintiff and does not constitute an order upon
which the appellant can execute; as a result of which
such a finding
cannot be regarded as an order having the effect of a final
judgment. It is accordingly not appealable.
[13]
In this case the situation is if anything even more clear. It
will be apparent from the summary of the pleadings given
earlier that
there are a number of hurdles which the plaintiffs have to clear in
order to succeed in their action. The magistrate
was asked to
deal with only one of them. It was presumably selected because,
if the defendant won the argument over the question
as to whether the
tenant under the written lease had to make a contribution to rates,
that would bring the litigation to a swift
conclusion. The
claim would be dismissed with costs. But if the plaintiffs won
that argument the trial would have to
resume in order to resolve all
the remaining issues, not the least of which was the question as to
whether the first plaintiff
was in fact the tenant contemplated by
the written lease. The order the magistrate would make if he
found for the plaintiffs
on the single point he was asked to decide
would dispose of no part of the relief claimed by the plaintiffs.
[14]
As I understood the argument advanced by Ms Nel on behalf of the
defendant, she does not question the propositions and principles
stated above. Instead she argued that the magistrate’s
judgment is appealable because certain features of the magistrate’s
order had the effect of putting this case outside the scope of what
was held in
Steenkamp
.
I will deal with these arguments in turn.
[15]
Before doing so I should state that much of the argument advanced on
behalf of the defendant is based on a most uncharitable
reading of
the magistrate’s judgment and of the orders he made. I
think it is safe to say that a reading of the judgment
(and the
orders) illustrates that the magistrate was in some respects confused
about how to approach the issue he had been asked
to decide.
The principle reason for that is quite easy to discern from the
record. Both parties gave opening addresses
in the course of
which the request for an order separating one issue from the rest was
made. The precise form of order which
the parties sought was
not given to the magistrate. Neither was he told what order he
should make if he decided the point
one way, and what order ought to
be made if he decided the point the other way. No clear account
of the remaining issues
in the case was given to the magistrate so as
to generate a sufficient awareness of context, and of where he should
take care not
accidently to stray when considering and delivering his
judgment and making his order. This case is yet another example
of
an overly casual attitude and approach to orders for the
separation of issues.
[16]
The first of the defendant’s arguments focuses on the fact that
in paragraphs (i) and (ii) of the order made by the magistrate
(reproduced earlier in this judgment) the magistrate found that the
first
plaintiff
was not obliged under the lease to pay rates and that the monies paid
by the
first
plaintiff
to the defendant for rates were not owing. The plaintiffs have
conceded that the magistrate ought to have made no reference
to the
first plaintiff but should instead have found that the lessee or
tenant under the lease was not obliged to pay a contribution
to
rates. The plaintiffs argue, correctly in my view, that the
error in the orders can be corrected by the magistrate.
Section
36 (1) (c) of the Magistrates Court Act would permit that to be
done. However that concession does not satisfy the
defendant.
[17]
Before us the defendant has argued that the magistrate has now
determined that the first plaintiff is the tenant under the
lease, an
issue he was not supposed to decide. It is argued that the
magistrate has thereby made a final ruling on what is
said to be one
of the defendant’s defences. The principle sought to be
applied is the one in
Ndlovu
v Santam Limited
2006 (2) SA 239
(SCA) at paras 8 – 10. As I
understand it the principle is that if a defence is raised which
stands entirely
outside the claim made by the plaintiff, and it is
decided by the court, that decision has the effect of a final
judgment.
As pointed out in
Ndlovu
the
case of
Durban’s
Water Wonderland
is a prominent example of the application of the principle the
defendant seeks to rely on. In
Durban’s
Water Wonderland
a contract excluding liability was raised by the defendant in answer
to a delictual claim made by the plaintiff, and a ruling on
that
special defence was held to be appealable because it finally disposed
of a discrete defence raised altogether outside the
elements of the
plaintiff’s case. In
Ndlovu’s
case
the court was concerned with a special plea as to jurisdiction raised
before the magistrate by the defendant. That was
held to be a
defence standing apart from and “entirely outside” the
plaintiffs claim.
[18]
What we are asked to hold is that the allegation made by the
defendant in the plea that the first plaintiff has not adopted
the
lease as required by law is such a separate defence standing apart
from the plaintiffs claim. And we are asked to conclude
that
the magistrate, by his reference to the “first plaintiff”
in his order, has in effect rejected that defence.
[19]
For at least two reasons this submission made by the defendant cannot
be sustained. Firstly, the question as to whether
or not the
first plaintiff is a party to the lease is very much part of the
plaintiff’s claim. It is denied by the
defendant, and the
need for a corporate body such as the first plaintiff to adopt or
ratify an agreement such as the lease (which
described the tenant as
a close corporation still to be formed) is pleaded merely in support
of the defendant’s general denial
of a crucial element of the
plaintiffs’ case, that the first plaintiff is in fact the
tenant under the lease. There
is no separate defence in that
regard raised by the defendant. Secondly, a perusal of the
judgment shows that the magistrate
did not consider the so-called
special defence. He did not in his judgment examine or consider
the question as to whether
the first plaintiff is the tenant, and did
not intend to make a finding that the first plaintiff is in fact the
tenant. His
reference to the first plaintiff in the order was
clearly an error.
[20]
The next argument raised by the defendant concerns the second of the
orders made by the magistrate. The defendant argues
that it has
the effect of determining the quantum of the claim. I
find difficulty understanding the argument.
It is correct that
the magistrate was not asked to determine the quantum of the claim.
It is said that “he finally
determined a substantial portion of
the relief insofar as quantum is concerned”. I am not at
all sure as to what that
means. The questions as to how much
money was paid to the defendant and as to who paid the monies remains
in dispute on the
pleadings and was not canvassed before the
magistrate. Clearly paragraph (ii) of his order was unnecessary, and
if one reads his
judgment one sees that he did not seek to determine
any dispute as to how much was paid and as to who paid it.
The
whole of the second paragraph of the order was made
in error, I suspect in an attempt to explain or clarify paragraph (i)
of the
order. That was done erroneously and it can be
corrected.
[21]
These issues aside, the question which arises immediately is how the
defendant’s submissions as to the qualities of paragraph
(ii)
of the magistrate’s order can affect the question as to whether
the order is appealable. The answer to that question
given by
the defendant is that cases such as
Steenkamp
and
Jordaan
v Bloemfontein Transitional Local Authority and Another
2004
(3) SA 371
(SCA) hold that decisions on liability are not appealable
because the quantum of the claims remains to be established and
incorporated
into a judgment. That, argues the defendant, is
not the situation here because the magistrate has finally determined
the
issue of quantum. In my view there is no merit in this
argument. The principle applied in those cases is not that
judgments
are unappealable until the quantum of any claim has been
decided. It is that rulings or orders made by a magistrate are
not
appealable unless they have the effect of a final judgment.
Such a judgment must have the effect of disposing of at least
a
substantial portion of the relief claimed. Even if one wrongly
(and uncharitably) reads the order of the magistrate to
convey a
determination of the quantum of the plaintiffs’ claims, that
did not have the effect of disposing of any part of
the claims made
by the plaintiffs. The analysis of the pleadings given earlier
illustrates that.
[22]
There are one or two embellishments to the arguments advanced on
behalf of the defendant concerning the first two orders made
by the
magistrate, and dealt with above. An example is the fact that
the magistrate overlooked the late concession made by
the plaintiffs
that in terms of the agreement, whereas a contribution to the rates
payable in respect of the leased premises at
the time of conclusion
of the lease was not required of the tenant, if such rates were
increased the tenant would be obliged to
make a contribution to such
increase only. In my view no such embellishment adds anything
to the qualities of the two arguments
and they need not be canvassed
any further.
[23]
The defendant’s final argument is constructed around the
proposition that in terms of s83 (b) of the Magistrates Court
Act an
appeal lies against “any order as to costs”.
[24]
Relying on the case of
De
Vos
vs
Cooper & Ferreira
1999 (4) SA 1290
(SCA), the defendant argues that the order as to
costs made by the magistrate is appealable; and that in considering
an appeal
against such a costs order, we are obliged not to look at
the order which the magistrate actually made on the merits (which we
cannot alter because it is itself not appealable), but to the order
which the magistrate ought to have made on the merits.
The
defendant argues that we must therefore consider the merits of the
matter and decide whether the magistrate was right or wrong;
and if
we find that he was wrong, we must set aside his court order as to
costs. We must do this despite the fact that his
order on the
merits will continue to stand; as a result of which the trial will
proceed to its end. And if at its end the
plaintiffs are
successful, one of the grounds of appeal against the ultimate final
judgment will be that the order of the magistrate
which we now have
no jurisdiction to alter was in fact wrong. In arguing this
facially remarkable proposition the defendant’s
attorney did
not say anything to address the concern that if there is any merit in
her argument, the scenario she maps out involves
a totally
unacceptable potential for conflicting decisions by two appeal courts
of equal standing on the same issue between the
same parties in the
same litigation.
[25]
The principle upon which the defendants rely, and which was employed
in the case of
De Vos
, emanates from the judgment of
Watermeyer CJ (Tindall JA and Centlivres JA concurring on this point)
in
Pretoria Garrison Institutes v Danish Variety Products (Pty)
Limited
1948 (1) SA 839
at 863. The appeal in that case
concerned an order which a magistrate had granted directing a
plaintiff to furnish certain
particulars, accompanied by an order
that the plaintiff pay the costs of the application. The
majority decided that the order
to furnish particulars was not
appealable. It would therefore have to stand. However,
given the provisions of s83 (b)
of the Magistrates Court Act, the
order as to costs was appealable, and it was held that in determining
such an appeal the court
had to ask who ought to have been the
successful party in the application for the supply of the
particulars. Tindall JA expressed
his view as follows at pages
865 – 866.
“
From
the fact that no appeal lies against the substantive order it does
not seem to me to follow inevitably as a matter of
logic that
the legislature intended that, in the appeal against the order for
costs, the only question which the court can investigate
is whether,
assuming the substantive order to be right, the order as to costs is
in itself wrong. As the language, in terms
of which the right
of appeal against the order as to costs is granted, is unqualified,
it may equally well be held that the legislature
intended that the
enquiry into the validity of the order as to costs should not be
limited. The question is one on which
opinions may well
differ. The latter view strikes me as the better one, though I
would not be prepared to go to the stake
for it.”
[26]
What strikes me as important in considering the
Pretoria
Garrison
case is the fact that the order directing the furnishing of
particulars was one which, not being appealable, would never be
altered.
It would remain enforceable, right or wrong.
[27]
The same phenomenon is to be found in the case of
De
Vos
.
There it was held that a magistrate’s order rescinding a
default judgment was not appealable; but that, given the
provisions
of s83 (b) of the Magistrates Court Act, the order for costs made
against the party resisting the rescission of the
judgment was
appealable. Following
Pretoria
Garrison
the court decided (at 1302 A-H) that in considering the appeal
against the costs order the merits of the application for rescission
of the judgment had to be considered. Again, the decision to
rescind the judgment would never be altered and would remain
in
force.
[28]
In this case the position is quite different. As already
pointed out, there is a potential for the merits of the ruling
now
under consideration to be considered in a subsequent appeal once the
magistrate has finally delivered judgment in the action.
If the
plaintiffs are ultimately successful before the magistrate the
defendant will undoubtedly attack the ruling now under consideration
in any appeal which the defendant may launch. Likewise, if the
defendant is ultimately successful, in any appeal launched
by the
plaintiffs the defendant would undoubtedly argue that the judgment in
the defendant’s favour was correct because the
ruling now under
consideration was incorrect.
[29]
Neither
Pretoria
Garrison Institutes
nor
De
Vos
is in my view authority for the proposition that in a case like the
present, an appeal against the costs order can be used as a
surrogate
and premature appeal on the merits. In those cases there never
could be a subsequent appeal on the merits.
[30]
There is no need for us to consider the question as to whether
the order as to costs made by the magistrate in this case
could have
been appealed at this time (i.e. mid-trial) upon a ground which is
not dependent on the appeal court’s opinion
as to whether the
magistrate’s unappealable ruling on the merits was right or
wrong. The grounds upon which the defendant
appealed in this
case do not include such a self-standing attack on the costs order;
such as, for instance, that costs ought to
have been reserved or made
in the cause, given that the plaintiffs’ claim to a favourable
order of costs as successful parties
will only arise if they are
ultimately successful in the action. No such issue was argued
before us. It is quite plain
from the notice of appeal that the
order of costs was challenged only as an adjunct to the misconceived
appeal against the magistrate’s
decision on the merits.
[31]
I accordingly conclude that we have no jurisdiction to entertain the
present appeal.
[32]
We were informed from the Bar that the issue as to whether the
magistrate’s decision was appealable was raised by the
defendant’s attorney in an email addressed to the plaintiffs’
attorney before the appeal was launched, the defendant’s
attorney saying that the defendant did not want to become embroiled
in an appeal if the issue as to whether the magistrate’s
order
was appealable would arise. The plaintiffs’
attorney apparently replied, ambiguously it seems to me, with
the
words “I agree”. I stress that this account
was given to us orally from the Bar, the defendant’s
attorney
contending that in those circumstances, if the defendant is
unsuccessful in this appeal, each party should pay it’s
own
costs.
[33]
I do not think that this somewhat imperfectly conveyed exchange
between the attorneys justifies a conclusion that costs should
not
follow the result in this appeal. In
Steenkamp
the court observed that a person in the position of the plaintiffs in
this case has no option but to resist the appeal. (See
Steenkamp
,
para 19.) The same proposition can be put slightly
differently. The decision as to whether there will be an appeal
is that of the appellant. It is the appellant’s
responsibility, and not that of the proposed respondent, to avoid
engaging a court which lacks appellate jurisdiction. It
is also not without significance that having been forewarned
of the
problem a week before the appeal was due to be argued, the defendant
chose to press ahead, and to do so with a considerable
measure of
vigour in the face of opposition from plaintiffs’ counsel.
Costs must follow the result.
The
following order is made.
1.
The
appeal is struck off the roll with costs.
OLSEN
J
SEEGOBIN
J
Date
of Hearing:
MONDAY, 05 SEPTEMBER 2016
Date
of Judgment: :
FRIDAY, 16 SEPTEMBER 2016
For
the Appellant :
Ms C A NEL
Instructed
by:
MACGREGOR ERASMUS ATTORNEYS
Appellants’
Attorneys
114 Bulwer Road
Glenwood
Durban
(Ref.:
CN/sb/STA4/0001)
(Tel No.: 031
– 201 8955)
For
the Respondent:
MR C EDY
Instructed
by:
TOMLINSON MNGUNI JAMES
Respondents’
Attorneys
2 Ncondo Drive
Nedbank Building
Umhlanga Ridge
(Ref. R
Steyn/Kim/11B688514)
(Tel.: 031 –
566 2207)
c/o TOMLINSON
MNGUNI JAMES
165 Pietermaritz
Street
Pietermaritzburg
(Ref.: Mr V
Reddy)