About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 359
|
|
Body Corporate of the Bel Aire Scheme No.SS 1821/2006 v Sure Guard CC (A741/2013) [2015] ZAGPPHC 359 (1 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number: A741/2013
Date: 01 JUNE 2015
In the matter between:
THE BODY CORPORATE OF THE BEL AIRE
SCHEME NO. SS
1821/2006
.............................................................................................
APPELLANT
And
SURE GUARD
CC
.........................................................................................................
RESPONDENT
JUDGMENT
PRETORIUS J.
[1] This is an appeal against the
judgment and order delivered on 27 March 2013 in this court. Leave to
appeal was granted on 15
August 2013 and the appellant delivered its
notice of appeal on 11 September 2013.
[2] Heads of argument have been filed
by both the appellant and respondent. The respondent did not deal
with the merits of the appeal,
but only with the notice of appeal.
According to the respondent the applicant had not complied with the
provisions of Rule 49(4)
of the Uniform Rules of Court.
[3] Rule 49(4) provides:
“Every notice of appeal and
cross-appeal shall state-
(a) what part of the judgment or order
is appealed against; and
(b) the particular respect in which the
variation of the judgment or order is sought "
[4] The respondent’s argument is
that the appellant’s notice of appeal fails to specify the
findings of fact and/or
rulings of law that are appealed against, the
notice of appeal does not comply with the peremptory requirements of
Uniform Rule
49(4). The result of this alleged non-compliance is that
the notice of appeal is invalid ab initio.
[5] The respondent requests the court
to strike the appeal from the roll, as the notice of appeal is void
and cannot be cured by
an amendment. The appellant vehemently opposes
this argument of the respondent.
[6] The respondent only filed heads of
argument dealing with the point in limine and did not deal with the
merits of the appeal
at all. The court decided to hear the argument
that the notice of appeal is void and that another court would deal
with the merits
of the appeal at a later stage if the court finds for
the appellant on the point in limine.
[7] Legal Background:
Section 17(6)
of the
Superior Courts
Act, 10 of 2013
has been amended and provides:
“(6) (a) If leave is granted
under subsection (2) (a) or (b) to appeal against a decision of a
Division as a court of first
instance consisting of a single judge,
the judge or judges granting leave must direct that the appeal be
heard by a full court
of that Division, unless they consider-
(i) that the decision to be appealed
involves a question of law of importance, whether because of its
general application or otherwise,
or in respect of which a decision
of the Supreme Court of Appeal is required to resolve differences of
opinion; or
(ii) that the administration of
justice, either generally or in the particular case, requires
consideration by the Supreme Court
of Appeal of the decision, in
which case they must direct that the appeal be heard by the Supreme
Court of Appeal.
(b) Any direction by the court of a
Division in terms of paragraph
(a), may be set aside by the Supreme
Court of Appeal of its own accord, or on application by any
interested party filed with the
registrar within one month after the
direction was given, or such longer period as may on good cause be
allowed, and may be replaced
by another direction in terms of
paragraph (a).’’
[8] The present wording of Uniform
Rule
49(4)
was introduced by GNR472 of 12 July 2013 and took effect on 16
August 2013.
[9] It differs from Uniform
Rule 49(3)
,
which was applicable prior to the amendment, as
Rule 49(3)
provided:
“The notice of appeal shall state
whether the whole or part only of the judgment or order is appealed
against and if only
part of such judgment or order is appealed
against, it shall state which part and shall further specify the
finding of fact and/or
ruling of law appealed against and the grounds
upon which the appeal is founded. ”
[10] Uniform
Rule 49(3)
provides in
peremptory terms for these requirements to be set out in the notice
of appeal, namely whether the whole or part of
the judgment is
appealed against and if only part of the judgment is appealed
against, which part of the judgment is appealed against
as well as
the finding of fact and/or ruling of law appealed against. Thirdly it
must set out the grounds upon which the appeal
is founded.
[11] In the present Uniform
Rule 49(4)
only two requirements have to be met, where it is stated what part or
order is appealed against and the particular aspect in which
the
variation of the judgment or order is sought.
[12] The requirements as set out in the
previous Uniform
Rule 49(3)
were similar to the requirements of
Rule
51(7)
of the Magistrates’ Court Rule. The requirements are no
longer similar to Magistrates’ Court
Rule 51(7)
and therefor
the case law applicable to Magistrates’ Court
Rule 51(7)
is no
longer of assistance to interpret the provisions of
Rule 49(4)
presently.
[13] The respondent referred the court
to Kilian v Geregsbode, Uitenhage 1980(1) SA 808 AD. This dictum
deals with Magistrate’s
Court
Rule 51(7)
and cannot be applied
to
Rule 49(4)
as the three requirements in a notice of appeal has
been changed to only two requirements. Similarly, the court
cannot rely on the judgment in Tzouras
v SA Wimpy (Pty) Ltd 1978(3)
SA 204 (WLD) as it dealt with Uniform
Rule 49(4)
which is no longer applicable. Margo J found at p205 E-F:
“The particular requirements of
Uniform Rule of Court 49(4) and of the corresponding Rule in the
magistrates’ court
have generaiiy been regarded as peremptory
so that failure to comply with them (or at least to comply with them
substantially)
invalidates the notice of appeal ab initio. Such a
notice of appeal is void and therefore cannot be cure by amendment. ”
[14] It is thus clear that the Tzouras
judgment dealt with Uniform
Rule 49(4)
at the time, which was similar
to Magistrates’ Court
Rule 51(7)
and is no longer applicable to
Rule 49(4).
[15] Uniform
Rule 49(4):
In the present Uniform
Rule 49(4)
two
requirements are set out: that the applicant has to set out what part
of the judgment or order is appealed against and the
particular
respect in which the variation of the judgment or order is sought.
[16] The notice of appeal in the
present case sets out:
“BE PLEASED TO TAKE NOTICE that
the appellant, having been granted leave to do so on 15 August 2013,
hereby notes an appeal
against the whole of the judgment and order of
His Lordship Mr Justice Pathudi granted on 27 March 2013 in terms of
which judgment
was granted against the appellant in favour of the
respondent, the appellant being ordered to pay the respondent the
amount of
R324 558.00 together with costs of the action.
TAKE NOTICE FURTHER that the appellant
seeks an order in the following terms:
1. The appeal is upheld with costs.
2. The order of the court a quo is set
aside and replaced with the following order:
“The action is dismissed with
costs. ””
[17] Uniform
Rule 49(4)
must be
compared to Rule 7(3) of the Supreme Court of Appeal Rules which
provides:
“7(3) Every notice of appeal and
cross-appeal shall -
(a) state what part of the judgment or
order is appealed against;
(b) state the particular respect in
which the variation of the judgment or order is sought;
(c) ...”
[18] The respondent takes issue with
the provision that: “it shall state which part and shall
further specify the finding
of fact and/or ruling of law appealed
against and the grounds upon which the appeal is founded'. The
respondent argues that the
appellant should: “make it clear
whether the appeal is on a point of law; or on facts, or both”
and “specify
the findings of fact or rulings of law appealed
against, and in what particular respect variation thereof is sought'.
[19] In Holland v Deysel 1970(1) SA 90
(AD) Wessels JA found at p93 A-B:
“A/a my mening is die uitspraak
van hierdie Hof in Heyman v Yorkshire Insurance Co. Ltd.,
1964 (1) SA
487
(AA), egter
afdoende wat die geopperde vraag
betref. Dit bied regverdiging vir die beslissing dat die woorde
’uitspraak' ’bevel’,
’beslissing' en ’vonnis'
almal dui op die uitsluitsel wat 'n hof gee in verband met die
bepaalde regshulp wat in gedingvoering
deur 'n party aangevra is. Die
presiese formulering van die uitsluitsel sou van die woordkeuse van
die Hof afhang, of kan verband
hou met die formulering van die
aangevraagde regshulp of ook moontlik met die aard van die
gedingvoering. ”
And at C-D:
“Om terug te keer na die
kennisgewing van appel wat in die onderhawige geval ingedien is. Waar
dit voorgee 'n appel teen die
hele uitspraak te wees, dui dit na my
mening ondubbelsinnig daarop dat die appel op die beslissing van die
Hof a quo in sy geheel
gerig is. Dit sou geensins die sin van die
kennisgewing geaffekteer het nie indien dit woordeliks sou voorgegee
het 'n appel teen
die hele bevel van die Hof a quo te wees nie. Die
kennisgewing van appel is gerig op die hele omvang van die regshulp
wat volgens
die beslissing van die Hof a quo aan eiser toegestaan is,
en dit voldoen derhalwe aan die vereistes gestel in Reel 5 (2) van
die
Reels van hierdie Hof.”
[20] In Atholl Developments (Pty) Ltd v
The Valuation Appeal Board for the City of Johannesburg
[2015] ZASCA
55
(30 March 2015) the court found at para 8:
“There can be an appeal only
against the substantive order made by the Court, not against the
reasons for judgment”.
[21] This court has to agree that the
appellant set out in his notice of appeal: “hereby notes an
appeal against the whole
of the judgment and order..
[22] In Leeuw v First National Bank Ltd
2010(3) SA 410 SCA Snyders JA found at para 5:
“In this court it is not required
that grounds of appeal be stated in the notice of appeal. The nature
of the proceedings
is such that this court is entitled to make
findings in relation to ‘any matter flowing fairly from the
record’. The
parties in their written and oral arguments have
dealt with all the issues relevant to the appeal and the appellant
has not pointed
to anything that has been overlooked. The point,
apart from being bad, had long lost its significance. ”
It is thus clear that in an appeal to
the Supreme Court of Appeal the heads of argument, the record and
oral argument are used to
state the grounds of appeal.
In the present instance the appellant
supplied the court with the order it sought to replace the original
order with in the notice
of appeal. This was supplemented by heads of
argument which dealt solely with the contents of the notice of
appeal.
[23] Rule 49(4) is thus the same as
Rule 7(3) of the Supreme Court of Appeal Rules and the authorities
applicable to the Supreme
Court Rule should be applicable to Rule
49(4). It is no longer necessary for an appellant to the full court
to state grounds of
appeal in the notice of appeal, as the notice of
appeal will be augmented and amplified by written and oral arguments
of the parties.
The court cannot find that the respondent is correct
when
arguing that the notice of appeal is
void ab initio. The notice of appeal has been amplified by full
argument, both written and
oral, by both parties.
[24] The court finds that the appellant
had set out and dealt with the issues relevant to the appeal.
[25] Therefor the following order is
made:
1. The point in limine is dismissed;
2. The respondent to pay the
appellant’s costs relating to the point in limine;
3. The appeal on the merits is
postponed sine die.
Judge C Pretorius
NM Mavundla
Judge TM Makgoka
Case number : A741/2013
Appeal heard on : 29 April 2015
For the Applicant : Adv. J L MYBURGH
Instructed by : STUART VAN DER MERWE
INC.
For the Respondent : Adv. E. DREYER
Instructed by : SIKANDER TAYOB
ATTORNEYS
Date of Judgment : 01 JUNE 2015