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[2015] ZAGPPHC 516
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Body Corporate of the Bel Aire Scheme No. SS 1821/2006 v Sure Guard CC (A741/2013) [2015] ZAGPPHC 516 (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
APPELLANT
NO.
SS
1821/2006
And
SURE
GUARD
CC
RESPONDENT
JUDGMENT
PRETOR/US
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
thejudgment
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 th
e
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 soughf'
.
[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',
'bes/issing' en
'vonnis' alma/
dui
op die uitsluitse/
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
gehee/
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 fo
r
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 th
e
judgment
and orde
r
..."
[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