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[2007] ZASCA 116
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Van Niekerk and Another v Van Niekerk and Another (460/06) [2007] ZASCA 116; [2008] 1 All SA 96 (SCA); 2008 (1) SA 76 (SCA); 2007 BIP 414 (SCA) (21 September 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 460/06
Reportable
In the matter between:
MARIUS VAN NIEKERK
.......................
First A
ppellant
SWEEPRO BRUSH (PTY) LTD
.......................
Second A
ppellant
and
GERHARD ALBERTUS VAN NIEKERK
.......................
First Respondent
SWEEPA INSTRUMENTS (PTY) LTD
.......................
Second Respondent
Coram
:
Harms
ADP,
Scott,
Mthiyane, Van Heerden, JJA et Kgomo AJA
Heard:
14 September 2007
Delivered:
21 September 2007
Summary:
Anton Piller order – preservation of evidence –
application for setting aside of order granted ex parte –
dismissal of application – whether appealable
.
Neutral
citation: This judgment may be referred to as
Van
Niekerk & Others v Van Niekerk & Another
[2007]
SCA 116 (RSA)
REASONS FOR ORDER
VAN HEERDEN JA:
Introduction
This appeal was directed against
an order of the Port Elizabeth High Court (Liebenberg J),
dismissing an application by the
appellant
s
for the setting aside of an order for the preservation of evidence
(commonly referred to as an
Anton Piller
order) earlier
granted by Jansen J. An application for leave to appeal
against the whole of this order was dismissed
by Liebenberg J on the
basis that the order was not appealable. With leave subsequently
granted by this court, the appellants appealed
to us.
On 14 September 2007, after
hearing argument, we struck this appeal from the roll with costs,
including the costs occasioned by
the employment of two counsel. We
indicated that reasons for our order would follow in due course.
These are the reasons.
The test
for appealability
In
Zweni v Minister of Law and Order
(1993 (1) SA 523
(A) at
531H–533E), Harms AJA embarked on ‘a brief exposition
and a critical review of some of the general propositions
commonly (and sometimes loosely) advanced in the decided cases’
before summarising the following ‘three attributes’
of
an appealable judgment or order (at 532J–-533A):
‘
[F]irst,
the decision must be final in effect and not susceptible of
alteration by the Court of first instance; second, it must be
definitive of the rights of the parties; and, third, it must have the
effect of disposing of at least a substantial portion of the
relief
claimed in the main proceedings.’
Zweni’s
case has
been referred to and followed in numerous subsequent decisions of
this Court (see eg
Maize Board v Tiger Oats Ltd & Others
2002
(5) SA 365
(SCA) para 6 at 370C–371C and authorities there
cited ).
The
test as formulated in
Zweni
, although easy to state, is not
always easy to apply. Thus, in
Cronshaw & Another v Coin
Security Group (Pty) Ltd
[1996] ZASCA 38
;
(1996 (3) SA 686
(A) at 690D-E),
Schutz JA remarked that ‘the question [as to when a
decision is ‘interlocutory’, and thus
not appealable, or
‘final’, and thus appealable] is –
‘
.
. . a question that has vexed the minds of eminent lawyers for many
centuries and the answer has not always been the same. The
question
is intrinsically difficult, and a decision one way or the other may
produce some unsatisfactory results.’
In
similar vein, in
Minister of Safety and Security & Another v
Hamilton
(2001 (3) SA 50
para 4 at 52B), Cameron JA stated that
the question of which judgments, orders and rulings are appealable
to this court ‘has
presented persisting complexity’.
In considering the question of
appealability, the underlying consideration is that it is
undesirable to have a piecemeal appellate
disposal of the issues in
litigation and that it is advisable to limit appeals to certain
‘orders’. (See, eg,
Pretoria Garrison Institutes v
Danish Variety Products (Pty) Ltd
1948 (1) SA 839
(A) at
866–871;
Guardian National Insurance Co Ltd v Searle NO
1999 (3) SA 296
(SCA) at 301B–D.)
Generally speaking, the balance of convenience more often than not
requires that the case be brought to a conclusion at the first
level
and the whole case then be appealed (see
Take and Save Trading CC
& Others v Standard Bank of SA Ltd
2004 (4) SA 1
(SCA) para
4 at 5D). Thus, in the
Guardian National
case (at 301B-C),
Howie JA held that –
‘
As
previous decisions of this Court indicate, there are still sound
grounds for a basic approach which avoids the piecemeal appellate
disposal of the issues in litigation. It is unnecessarily expensive
and generally it is desirable, for obvious reasons, that such
issues
be resolved by the same Court and at one and the same time.’
Howie JA proceeded to point out
that, where this approach has been relaxed, it has been because the
judicial decisions in question
– ‘whether referred to as
judgments, orders, rulings or declarations’ – had the
three attributes referred
to in
Zweni’s
case (above,
loc cit
).
Applying the test to
an
Anton Piller
order
Whether the grant of an
Anton
Piller
order is appealable or not has not thus far pertinently
been decided by this court. Appeals concerning
Anton Piller
orders which have thus far reached this court have all concerned
refusal
by the court
a quo
of relief (see, eg,
Universal City Studios Inc v Network Video
[1986] ZASCA 3
;
1986 (2) SA 734
(A);
Jafta v Minister of Law and Order
[1991] ZASCA 1
;
1991 (2) SA 286
(A)
;
Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam, &
Another; Maphanga v Officer Commanding, South African
Police Murder
and Robbery Unit, Pietermaritzburg, & Others
1995 (4)
SA 1
(A);
Memory Institute SA CC v Hansen
2004 (2) SA 630
(SCA)) and the question of appealability has not arisen, presumably
because it is settled law that the refusal, but
not
the
granting, of interim interdicts is appealable (see, eg,
African
Wanderers Football Club (Pty) Ltd v Wanderers Football Club
1977
(2) SA 38
(A) at 47C–48H),
Cronshaw’s
case at
690B–691G;
Knox D’Arcy Ltd & Others v Jamieson &
Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at 356H–360D).
As repeatedly emphasised by this
court, an
Anton Piller
order is directed at the preservation
of vital evidence that might otherwise be lost. It will be granted,
inter alia
where ‘there is a real and well-founded
apprehension that this evidence may be hidden or destroyed or in
some manner be spirited
away by the time the case comes to trial or
to the stage of discovery’ (
Shoba’s
case at
15G–16D; and cf also the
Memory Institute
case para 3
at 633E–F).
The order granted in this case –
as most other orders of this kind – consists, on the one hand,
of procedural directions
and safeguards and, on the other, of orders
aimed at obtaining evidence to be preserved. Its provisions have
nothing to do with
the substantive rights of the parties in the
causes of action which are foreshadowed in the papers. As pointed
out by Conradie J
in
Hall & Another v Heyns & Others
1991 (1) SA 381
(C) at 385D –
‘
The
relief which it [an
Anton
Piller
order]
affords serves no end in itself. Its only utility is that it assists
the successful applicant by ensuring the greater effectiveness
of some other proceedings in which substantive relief is claimed. It
does not dispose of any issue in those proceedings.’
In the circumstances, counsel
for the respondents argued that the relief granted in this case
falls short of all three of the requirements
for appealability set
out in
Zweni’s
case. Counsel relied,
inter alia
,
on the judgment of Froneman J in
The Reclamation Group
(Pty) Ltd v Smit & Others
(unreported judgment in SECLD Case
No 678/02), where the learned judge refused leave to appeal against
the
Anton Piller
order previously granted by him (see
The
Reclamation Group (Pty) Ltd v Smit & Others
2004 (1) SA
215
(SEC)) on the basis that the order was not appealable. In his
judgment refusing leave to appeal, Liebenberg J was
‘unable
to hold that Froneman J was clearly wrong in his
approach’.
Counsel for the
appellant
s
contended that both these decisions are wrong and should be
overruled. Relying on the judgments of this court in
Phillips &
Others v National Director of Public Prosecutions
2003 (6) SA
447
(SCA) and
Metlika Trading Ltd & Others v Commissioner,
South African Revenue Service
2005 (3) SA 1
(SCA), counsel
sought to persuade us that the grant of
Anton Piller
relief
is
not
akin to the grant of an interim interdict, and that
the
African Wanderers
and
Cronshaw
cases are thus
distinguishable. As in the
Cronshaw
case, counsel stressed
the prejudice suffered by the respondents by the grant of the
Anton
Piller
order and argued that this order had ‘final
jurisdictional effect’ in the sense referred to by this court
in
Phillips
para 19 at 452I–453A).
I do not agree. In my view, the
grant of an
Anton Piller
order is indeed akin to the grant of
an interim interdict and I am unpersuaded that the principles laid
down in (
inter alia
)
Cronshaw’s
case are not
directly applicable to the present situation. As was pointed out by
Grosskopf JA in
Knox d’Arcy
(above, at 359F–360B),
albeit
obiter
:
‘
As
far back as
Prentice
v Smith
(1889)
3 SAR 28 the Court held (at 29) that an order granting an interim
interdict “is an interlocutory order, and that consequently
there can be no appeal”. On the whole this view was followed
in the Provincial Divisions (see
Loggenberg
v Beare
1930
TPD 714
;
Davis
v Preiss & Co
(
supra
)
[1944 CPD 108]
; and the authorities referred to in those cases) and,
ultimately, prevailed in the Appellate Division (
African
Wanderers Football Club (Pty) Ltd v Wanderers football Club
1977
(2) SA 38
(A) at 46H-47A and
Cronshaw’s
case
supra
).
Some Judges have questioned the validity of the distinction between
the refusal and the grant of an interim interdict. This distinction
cannot be justified by the nature of the proceedings giving rise to
the decision – it is the same in both cases (see, for
example,
Davis
v Preiss & Co
(
supra
at
118
per
Fagan
J)). And it may be argued that the prejudice suffered by the
unsuccessful party also does not differ in principle. See
Davis’
case
supra
at 112–113 (De Villiers J). However, in
Loggenberg’s
case
supra
,
Greenberg J expressed the view (at 723) that “there is in fact
a real distinction on the question of irreparability between
the
case of a granting of a temporary interdict and the refusal of a
temporary interdict”. There may also be a difference
in the
finality of the decision. Thus, as stated above, the refusal of an
interim interdict is final. It cannot be reversed on
the same facts
(I disregard the possibility . . . of a refusal on some technical
ground). The same may not be true of the grant
of an interim
interdict. It may be open to the unsuccessful respondent to approach
the Court for an amelioration or setting aside
of the interdict,
even if the only new circumstance is the practical experience of its
operation. And, apart from the theoretical
differences between the
grant and the refusal of an interdict, there is also the practical
one, discussed in
Cronshaw’s
case . . . [at 691C–G], that an appeal against the grant of a
temporary interdict would often be inconsistent with the very
purpose of this remedy.’
It should also be pointed out
that the judgment in the
Phillips
case largely concerned the
interpretation of provisions of a certain statute (the
Prevention of
Organised Crime Act 121 of 1998
) and is thus inapplicable on that
basis. As regards
Metlika Trading,
, the interim order granted
in that case, ordering a party to take all necessary steps to
procure the return of an aircraft to South
Africa, pending
finalisation of an action launched against (
inter alia
) that
party by the applicant for the interim order, Streicher JA held
that, on the facts before the court, the interim order was
final in
its effect in the sense required to render it appealable. As was
pointed out by Streicher JA (para 22 at 12D-E), ‘whether
or
not the aircraft [in which the applicant for the interim order
allegedly had an interest] should be returned to South Africa
and
whether or not the other orders relating to the aircraft should be
granted is not an issue in the action pending which the
interdict
was granted.’ The order with which we are here concerned is a
largely procedural one aimed at the preservation
of evidence so as
to ensure the greater effectiveness of other proceedings in which
substantive relief is or will be claimed, and
for the substantiation
of which such evidence will be vital (see the
Shoba
case at
15H–16B). To my mind, the
Metlika
case is not
comparable and does not constitute an obstacle to the conclusion
that the preservation order under discussion is not
appealable.
In the result, we concluded that
the order granted by Liebenberg J refusing to set aside the
original
Anton Piller
order is not appealable. For this
reason, we struck the appeal from the roll with costs, including the
costs of two counsel.
B J VAN HEERDEN
JUDGE OF APPEAL
CONCUR
:
HARMS JA
SCOTT JA
MTHIYANE JA
KGOMO AJA