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[2015] ZAGPPHC 370
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Body Corporate of the Bel Aire Scheme N.O. SS 1821/2006 v Sure Guard CC (A741/2013) [2015] ZAGPPHC 370 (1 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: A741/2013
Date:
1/6/2015
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 generally
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:
“
Na 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 appèl wat in die onderhawige
geval ingedien is. Waar dit voorgee 'n appèl
teen die hele
uitspraak te wees, dui dit na my mening ondubbelsinnig daarop dat die
appèl 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 appèl teen die hele
bevel van die Hof a quo te wees nie. Die kennisgewing van appèl
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 Reël 5 (2) van die Reëls
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
I agree:
_____________________
Judge 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
: 2015