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[2015] ZAECMHC 81
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Mdedelwa v Eskom Holdings Soc (Pty) Ltd (CA&R46/15) [2015] ZAECMHC 81 (26 November 2015)
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION :
MTHATHA
CASE NO. CA & R 46/15
In
the matter between:
NTOMBIKAYISE
MDEDELWA
Appellant
And
ESKOM
HOLDINGS SOC (PTY)
LTD
Respondent
APPEAL
JUDGMENT
GRIFFITHS,
J:
[1]
This matter is, to say the least, confusing. The appellant brought an
urgent application before the magistrate, Lusikisiki,
based on the
mandament van spolie
,
for her electricity supply to be restored. An interim order was
granted in terms of which the electricity was to be restored pending
finalization of the matter and answering and replying affidavits were
duly delivered. In the respondent' s answering affidavit
two points
in limine
were raised, these being to the effect that the lower court lacked
territorial jurisdiction and the power to grant the order as
the
appellant's cause of action was not, in effect, a
mandament
van spolie
, but an application for
specific performance based on a contract.
[2] The
matter ultimately served before the magistrate and was fully argued
by both parties. A well reasoned judgment was subsequently
delivered
by the magistrate which was later supplemented by further reasons.
From both of these it emerges clearly that in the
magistrate's s view
when the matter was argued before him the parties were in agreement
that the entire matter would be argued,
that is both the points
in
limine
and the merits of the matter,
and that he would thereafter reserve judgment on all these issues.
[3] The
magistrate found in favour of the appellant on both points
in
limine
. He then proceeded to consider
the merits of the matter and found in favour of the respondent. He
accordingly discharged the
rule nisi
with costs.
[4] On
appeal it was contended on behalf of the appellant that the
magistrate's aforementioned view was incorrect. According to
the
appellant, It was agreed between the parties that they would argue
only the points
in limine
before
the magistrate, that he would then give a ruling in due course on
those points
in limine
and that, in the event that the points
in
limine
were decided in favour of the
appellant, the parties would revert to argue the merits of the
matter. It seems, in the alternative,
that the appellant maintains
that despite the ultimate ruling in the matter, the magistrate ought
to have given the appellant some
sort of interim order for costs due
to the fact that the appellant was successful on the points
in
limine
. There has also been some
argument put up with regard to the question of whether or not the
matter is indeed appealable in that,
so it is submitted, the judgment
of the lower court was interlocutory in nature.
[5]
When the matter was argued before us, Mr. Gagela, who appeared for
the appellant, candidly conceded the question of costs. He
however
pursued the question relating to the magistrate’s incorrect
assumption with regard to the matters which were argued.
However,
when a number of interchanges between the legal representatives and
the magistrate reflected in the transcribed record
were pointed out
to him, he indicated that he could not argue this question with much
force.
[6] It
seems to me that this matter must be decided quite simply on a
determination as to whether or not the magistrate was correct
or
incorrect in accepting that the merits of the matter were indeed
dealt with at the hearing. If the merits were not dealt with
and only
the points
in limine
were argued, then the question as to whether or not a ruling in that
regard was appealable would only arise if indeed the magistrate
had
upheld such points in favour of the respondent and dismissed the
application on that basis or on one or other of the points
in
limine
.
[7] It
seems to me to be quite clear upon a reading of the papers that the
magistrate, as I have indicated at the outset of this
judgment,
dismissed the points
in limine
.
He in fact discharged the
rule nisi
because he found against the appellant on the merits of her
application. That is, of course, appealable. Accordingly, in my view
the question of the appealability of the judgment is not in issue in
this appeal.
[8] The
magistrate, in his reasons, has made it quite clear that at no stage
did either of the parties apply to separate the issues
raised by the
points
in limine
from the merits. In his supplementary reasons, prepared after the
notice of appeal had been delivered, he took issue with the
contention of the appellant that the parties had only argued the
points
in limine
.
He made it clear that although he did not at that stage have a copy
of the transcript of the proceedings, there were a number
of telling
indicators to fortify his understanding that the merits were argued
as well as the points
in limine
.
In this regard he mentioned the fact that the parties dealt with the
main issue on the merits, namely the question as to whether
or not
the appellant was in arrears with her payments for electricity and/or
had signed a deferred payment agreement in order to
allow her to
settle the arrear amounts due. A further telling indicator, in his
view, was the fact that he had raised with the
appellant's attorney
the question as to whether or not the appellant had, in the interim
and whilst the
rule nisi
was in force, paid the arrear amounts due. This was fully debated and
the answers gleaned therefrom were used by the magistrate
in
formulating his judgment and his reasons therefor.
[9]
Subsequent to his issuing the supplementary reasons for his judgment,
the transcript was made available and is included in the
appeal
record. This transcript reveals that the appellant and respondents'
attorneys argued the matter fully before the magistrate.
At the
outset of the proceedings there was no indication that the question
of the points
in limine
and the merits were to be separated.
Mr. Mjobo, who appeared in the court a quo for the appellant, stated
at the outset that the
matter was ready for argument and that as the
respondent had raised the preliminary points
in limine
, it had
been agreed that the respondent would commence. Mr. Dalasile, for the
respondent, thereafter specifically asked the magistrate
as to
whether he required them to address on the points
in limine
and the merits. Unfortunately the magistrate did not give a very
clear answer to that query but on a reading of the argument it
becomes patently clear that the parties did address him on the merits
as well. In fact, at some stage the following interchange
took place
between Mr. Mjobo and the magistrate:
"
Mr.
Mjobo
:
Your Worship, with the leave of the Court my learned friend has
raised the – a new few issues which were not at all canvassed
in the… argument. My learned friend appears to me to be now
saying he wants to argue the merits of the application by…
Court:
Thought
we'd agreed the merits of the application both ways.
Mr. Mjobo
:
By making reference now to these invoices.
Court
:
Yes"
[10] It
seems clear from this that even if Mr. Mjobo had misconstrued the
procedure prior to that, it was made patently clear at
that point
that the merits were also to be argued. There are a number of other
passages during the course of the submissions which
make it clear
that the merits were fully argued in addition to the preliminary
points.
[11] I
am accordingly satisfied that both the points
in
limine
and the merits were argued by
the parties before the court
a quo
.
The magistrate, correctly in my view, concluded that on the merits
there were indeed no merits in the appellant's case in that
the
appellant had signed the deferred payment agreement which, in itself,
was a clear indication that the appellant had been in
arrears in her
payments to the respondent for electricity supplied.
[12] In
all these circumstances the following order is made:
1.
The appeal is dismissed;
2.
The appellant is ordered to pay the
costs of the appeal.
JUDGE
OF THE HIGH COURT
MBENENGE,
J.
: I agree
JUDGE OF
THE HIGH COURT
HEARD
ON
: 13 NOVEMBER 2015
DELIVERED
ON
: 26 NOVEMBER 2015
COUNSEL
FOR APPELLANT
:
Mr Gagela
INSTRUCTED
BY
: Mduma Mjobo
Attorneys
COUNSEL
FOR RESPONDENT
:
Mr Mhambi
INSTRUCTED
BY
: MMV Attorneys