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[2008] ZAWCHC 313
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Lewis NO and Others v Cooper and Another (20454/2008) [2008] ZAWCHC 313 (11 December 2008)
JUDGMENT
IN
THE HFGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
no:
20454/2008
Date:
11 DECEMBER 2008
In
the matter between:
justin
rory Mckenzie lewis n.o.
1
st
Applicant
justin
rory Mckenzie lewis
2
nd
Applicant
robert
william semple
3
rd
Applicant
cornelia
lewis
4
th
Applicant
and
peter
cooper
1
sl
Respondent
the
trustees for the time being of
the
helderfontein farming trust
2
nd
Respondent
judgment
gauntlett.
aj
:
This
is an urgent application brought on less than one court day's notice
seeking the 'suspension' of 'proceedings flowing out of
judgments in
case no 11292/2003 and 14889/2006',
The
first applicant in this matter appears in person. He is a farmer, a
trustee of a trust, and the recent applicant in an urgent
application
to interdict the respondents from placing a certain shareholding or
property on the market for sale. This application
was brought on 17
July 2008 (under case number 11292/2008), and was heard on 13
November 2008 by
Fourie,
J
.
It
appears from the founding affidavit in the application before me that
Fourie.
j
refused
an
in
limine
application
for postponement and also refused related relief dealing with the
manner in which the matters were to be heard.
The
gravamen of the application this morning is as follows:
"I
am advised that I [had] a right in the event of the request for
postponement in both matters being denied, and my request
that the
matters be argued separately being denied, to request that this
decision be taken on review.
Justice
Fourie
did
not inform me of that right at that time, before the proceedings
began. Had I been informed of this right timeously I would
have
requested that the learned judge's decision be taken on review."
On
the basis of this alleged denial of the contended right - to the
judicial review of an interlocutory ruling by a superior court
regulating the conduct of proceedings before it - the applicant now
asks "that the judgments be set aside as submitted in
this
application", and that while that application "is underway
that the judgments be suspended until such time as the
application
for the setting aside of the judgments referred to is heard".
Mr
Lewis clarified in oral argument that what he seeks at this time in
the present application is the suspension of the "judgments"
pending the hearing of a further application, not yet instituted, for
the setting aside of these judgments.
As
I have put to Mr Lewis, the difficulty which presents itself in this
matter is of the following nature. In the first place what
he seeks
evidently at this stage - some form of suspension of judgments (
quite what it is, is confused ) pending an application
to set aside
the dismissal of the postponement applications by
Fourie,
j
-
is incompetent because his putative main relief is incompetent
.
Fourie,
J
f
s
rulings were of an interlocutory nature, did not purport to be finaJ,
and have not been shown on these papers to be final in effect.If
they
are not appealable, then the temporary order sought now is for that
reason alone aEso not competent.
The
second difficulty which I pointed out to Mr Lewis is that the
decision of a superior court judge is in our law not susceptible
itself to judicial review. Thus on this basis too a suspension or
interference with the postponement decision pending the main
application contemplated must fail, because there is no such right
underlying the main matter.
Thirdly,
there is the further difficulty that no proper grounds at all are set
out In the founding affidavit to interfere with court
orders which do
have final effect. This is by virtue of the well established
authority in
Schierhout
v Union Government
to the effect that judgments on substantive matters are final in
effect, and may only be set aside on very strict grounds such
as
fraud. (See further
Firestone
South Africa fPtv) Limited v Gentircuoaq
1977(4)
SA 298 (A), at 206 F-G). Thus even were the applicant be able to show
that the rulings by Fourie J were final in effect,
it has not
established a proper basis to assail these.
Fourthly,
there is equally no prospect of success in the putative main matter
on the basis that Fourie J failed in a contended duty
to advise a
civil litigant of a non-existent procedural right (to review a judge,
and this in relation to a purely procedural ruling).
In
the circumstances it is unnecessary to deal in any detaii with other
defects which present themselves in the matter. The lack
of a proper
notice of motion, the Jack of a proper case being made out in the
founding affidavit, and a recourse to urgency which
in the
circumstances seems to me not to be not far short of an abuse of
court, given the fact that the ruling made by
Fourie
was handed down on 13 November 2008, and this application was onEy
faunched and served less than 24 hours ago - on the reasoning,
as it
was disclosed to me in argument by Mr Lewis that today is the last
day of the court term. Having regard to the manner in
which this
application has been presented and its timing, I believe that it has
crossed the line from a mere deficiency as regards
meeting urgency
(such as would warrant it merely being struck from the roll) to
amounting to an abuse of proceedings. There is
no indication to me on
the papers as to why this should be sufficiently excused by the fact
that the litigant appears in person
(he discloses in argument that he
has been assisted by a 'reired judge').Whetherr or not that is so,
the papers speak of a regrettably
extensive lack of judgment in the
institution of the application and the seeking of the relief.
Be
that as it may, as I have indicated, these are secondary factor to
the principal reasons why I find that the application is incompetent.
As I hcive indicated it is that the application is based on four
entirely faulty premises. An Interlocutory decisfon given just
weeks
ago by
Fourie,
J
declining postponements may not be revisited at will by a litigant
such as the applicant on the basis that he may be proceed from
court
to court seeking a different view in
relation
to
the
correctness of a refusal of a postponement, pending a legally
untenable main application.
En
the circumstances, the
APPLICATION
IS DISMISSED
with costs.
GAUNTLETT,
A J