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[2008] ZAWCHC 149
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Baumann NO and Others v Jacobs and Others (845/2008) [2008] ZAWCHC 149 (27 February 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISIONS)
CASE
NO
:
845/2005
DATE:
27
FEBRUARY 2008
In
the matter between:
HERRN
SEBASTIAN BAUMANN N.O 1
st
Applicant
SAMUEL
SPYCHER 2
nd
Applicant
JOHANNES
SPYCHER 3
rd
Application
RACHEL
SPYCHER 4
th
Applicant
THERESE
SPYCHER 5
th
Applicant
DAVID
SPYCHER 6
th
Applicant
And
TABEA
JACOBS
1
st
Respondent
CLIFFORD
JACOBS
2
nd
Respondent
TABEA
INVESTMENT HOLDINGS CC 3
rd
Respondent
JUDGMENT
(Application
for Leave to Appeal)
BOZALEK,
J
:
[1]
On 14 December 2007 I ruled that the plaintiffs in this matter could
substitute one Swiss executor for another in this action
and join a
further plaintiff. Defendants, respondents in the opposed
application, now wish to appeal my ruling either to
the Full Bench
of this Court or the Supreme Court of Appeal.
[2]
Two questions initially arise, namely whether the order is
appealable and secondly, the prospects of success of any such
appeal. At the risk of putting the cart before the horse I shall
deal firstly with the second question.
[3]
I do not propose to traverse again the merits of the opposing
arguments on the issue of whether the substitution is competent
or
not. Mr
Binns-Ward
argued that it is not competent, simply put, because the action is
one on behalf of a deceased estate and since the first Swiss
administrator's appointment was set aside as unlawful, the summons
which commenced the action in his name as first plaintiff
was a
nullity. The effect of substituting the executor or administrator
subsequently appointed was, he argues, to purport to
cure that
nullity, impermissibly so.
[4]
This conclusion depends not only on the facts in this matter but on
the relevant case law. The facts in the application, although
not
always easy to divine, can be interpreted as supporting this
conclusion. Secondly, there is authority which supports
the
approach contended for by the respondents, most notably the case of
Van
Heerden v Du Plessis
1969(3) SA at 298 (O). In my view, there is thus a reasonable
prospect of another Court arriving at conclusion different to this
Court's conclusion.
[5]
As regards the appealability of the judgment, the position is, in my
view, somewhat less clear because here we are deafing
with an
interlocutory application. The question is then is whether the
judgment or order made has a final and definitive effect
on the main
action. Furthermore, the Court must also take into account in this
situation that the proper approach is a more flexible
one where the
Court will have regard to whether an appeal against the
interlocutory decision will lead to a more expeditious
and
cost-effective decision-making process.
[6]
I have said that there are reasonable prospects that another Court
may find that the summons was a nullity from the outset.
Certainly,
in the light of my order it is not open to the trial Court to find
in the main trial that Baumann is not, for the
purposes of the
action, the administrator of the estate and thus, probably, that the
summons was regular. If, however, the
summons is a nullity it may
well spell the end of this particular action, if not the end of the
claim itself.
[7]
In the circumstances, on balance, I consider that although the
issues of the merits of the appeal and the order's appealability
are
interlinked, this Court's judgment is appealable or at least there
are reasonable prospects that another Court will find
that it is
appealable.
[8]
I am, therefore, inclined to grant leave to appeal. As far as the
forum for the appeal is concerned, Mr
Binns-Ward
submits
that leave should be granted to the Supreme Court of Appeal. There
Is not inconsiderable authority on the general point
of the
substitution of a plaintiff in similar circumstances but there is,
in my view, no authority directly on point. Existing
authority
appears also to reveal to some extent at least that the conflicting
tugs of what can be termed a technical approach
as opposed to one
which places greater emphasis on substance rather than form.
[9]
The facts of this case are, moreover, unusual and less than
straightforward. The point at issue has considerable importance
for
the parties and the future of
the
action. The record is also not onerous. In the circumstances I
consider that this is a matter which warrants the attention of
the
Supreme Court of Appeal rather than the Full Bench of this Court.
[10]
In the result, leave to appeal to the Supreme Court of Appeal on the
grounds set out in respondents' notice of application
for leave to
appeal is granted. The costs of this application, including the costs
of two counsel, will be costs in the appeal.
BOZALEK,
J