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[2016] ZAGPPHC 864
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Heppel v Law Society of the Northern Provinces (15860/2013) [2016] ZAGPPHC 864 (21 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 15860/2013
DATE:
21 SEPTEMBER 2016
In
the matter between:
WARRICK
LESLIE VISSER
HEPPEL
........................................................................
Applicant
And
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
.....................................
Respondent
JUDGEMENT
DE VOS J:
[1]
The application for leave to appeal in
this matter served before myself and my brother, Motgotsi AJ, on 25
February 2014. Leave
to appeal against our judgment, handed down on
05 December 2013,
and was
granted to the
applicant. The order which was granted on 25 February provided that
leave be granted to the full bench of this Court.
[2]
It was subsequently brought to our
attention that leave to appeal to the full bench of this Court is
inadmissible as section 16(1
)(a)(ii) of the
Superior Courts Act, No.
10 of 2013
specifically provide that:
“
16.(1)
Subject to
section 15(1)
, the Constitution and any other law -
(a)
An appeal against any decision of a Division as a court of first
instance lies, upon leave having been granted -
(i)
...
(ii)
if the court consisted of more than one judge, to the Supreme Court
of Appeal”.
[3]
It is abundantly clear that when
judgement was delivered on 05 December 2013 the court presided by
myself and Mogotsi AJ became
functus officio. The application could
accordingly no longer be regarded as a pending proceeding for the
purposes of
section 52(1)
of the
Superior Courts Act, as
the
provision of the Act are not to be applied to pending cases.
Section
52(2)
of the Act defines pending cases as matters where summons had
been issued but judgement had yet to be passed as at the date of the
commencement of the
Superior Courts Act. The
Act came into operation
on 12 August 2013. The notice of motion was issued during March 2013.
The main application was to be concluded
in terms of the provisions
of the Supreme Court Act, which was in fact done. The Supreme Court
Act was no longer applicable when
the application for leave to appeal
was issued. The application for leave to appeal was dated 09 December
2013 and should therefore
be concluded in terms of the
Superior
Courts Act. Section
16 of the
Superior Courts Act does
not alter the
position as it was under section 20 of the Supreme Court Act.
[4]
From the aforegoing it is clear that the
referral to the full court cannot stand and should be recalled in
terms of Rule 42 of the
Rules of Court. Rule 42 of the Rules of Court
provides that a court may mero motu or upon application of any party
affected, rescind
and vary:
(a)
An order or judgement erroneously sought
or erroneously granted in the absence of any party affected thereby.
(b)
An order or judgement in which there is
ambiguity, or a patent error or omission, but only to the extent of
such ambiguity, error
or omission; and
(c)
An order or judgement granted as the
result of a mistake common to the parties.
[5]
Subsection (3) provides that the Court
shall not make any order rescinding or varying any order or judgement
unless satisfied that
all parties whose interest may be affected have
notice of the order proposed. Such a notice was sent to both parties
on the 29
th
July 2016, informing them that we intend to recall that portion of
the order granting leave to appeal to the full court of this
division
and to substitute same granting the applicant leave to appeal to the
Supreme Court of Appeal. The parties both concurred
with the proposed
amendment.
ACCORDINGLY
THE FOLLOWING ORDER IS MADE:
1.
The order granted by myself and my brother Mogotsi AJ on 25 February
2014 is recalled and substituted with the following order:
1.1
Leave to appeal is granted to the
Supreme Court of Appeal;
1.2
Costs shall be costs in the cause.
DE
VOS J
JUDGE
OF THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA
I
agree and it is so ordered.
EEDWABA
DJP
DEPUTY
JUDGE PRESIDENT OF THE GAUTENG
DIVISION
OF THE HIGH COURT OF SOUTH AFRICA
(ON
BEHALF OF MOGOTSI AJ)