Liberty Life Association of Africa Ltd v Prof G.C. Kachelhoffer N.O and Another (2447/2000) [2002] ZAWCHC 23 (30 April 2002)

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[2002] ZAWCHC 23
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Liberty Life Association of Africa Ltd v Prof G.C. Kachelhoffer N.O and Another (2447/2000) [2002] ZAWCHC 23 (30 April 2002)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: 2447/2000
In
the matter between:
LIBERTY
LIFE ASSOCIATION OF AFRICA LTD
Applicant
and
PROF
G C KACHELHOFFER NO
1
st
Respondent
W JURD AND 22
OTHERS
2
nd
and Further Respondents
­­­­­­­­­JUDGMENT
_____________________________________________________
VAN
REENEN et JALI JJ:
1] When
this review served before us on 20 September 2000 we were, by
agreement between the legal representatives of the applicant
and
second and further respondents (the respondents), called upon to
adjudicate three issues
in limine litis.
2] One
of those issues was whether the applicant had complied with the
provisions of Rule 53 relating to the making available of
“the
record of the proceedings” and if not, the impact thereof on the
further conduct of the proceedings in which the applicant
seeks the
review of certain judgments, orders and/or determinations made by the
Industrial Court.
3] We
in our judgment handed down on 12 April 2001, reported as
Liberty
Life association of Africa v Kachelhoffer NO and Others
2001(3) SA 1094 (C), found that it was impossible, at that juncture,
to decide whether the applicant had complied with the provisions
of
Rule 53(3) as regards the furnishing of certified copies of the
record to the registrar and the respondents.
4] It
was common cause at the earlier hearing before us that the applicant
had not made a complete copy of the record of the proceedings
available to the respondents and/or their attorney. Empowered
thereto by the provisions of Rule 53(3) the applicant furnished
“copies
of such portions of the record as may be necessary for the
purposes of the review” to the registrar and the respondents. That
record, hereinafter referred to as the attenuated record, consisted
of 126 selected pages of the transcribed record of the proceedings
as
well as seven annexures. That record was subsequently supplemented
by two further pages of the transcribed record as well as
four
annexures.
5] One
of the issues between the applicant and the respondents was whether
the review was capable of being decided on the attenuated
record or
whether the comprehensive record was essential for that purpose.
6] As
the applicant, in addition to the attenuated record, at the hearing
provided the court with what the applicant contended was
the
comprehensive record of the proceedings before the Industrial court,
its counsel, in response to repeated requests from the court
to
signify on which of the attenuated- and comprehensive records the
review had to be adjudicated, in the clearest of terms, elected
the
former.
7] We
in our judgment, at 1116 E, articulated our inability to have decided
whether the review could be decided on the attenuated
record as
follows:
“
The
decision of that issue will entail an assessment of whether it is
possible to decide the merits of each of the grounds on which
the
review is based on the attenuated record and will be inextricably
intertwined with a
consideration of the
merits of the review. As by agreement between the parties the merits
of the review are to be adjudicated later,
we deem it inappropriate
to consider the adequacy, or otherwise, of the attenuated record at
this juncture.”
8] It
is implicit in the provisions of Rule 53(3) which provides that
“…
the applicant
shall thereupon cause copies of such portions of the record as may be
necessary for the purposes of the review to be
made and shall furnish
the registrar with two copies and each of the other parties with one
copy thereof …”
it
is for an applicant to decide whether a comprehensive or merely
portions of the record should be so furnished. Accordingly, the
applicant’s legal representatives by having decided that the
attenuated record was sufficient for the adjudication of the review,
acted fully within their powers.
9] We,
when we handed down our judgment, were unaware of the decision of the
Supreme Court of Appeal in
SACCAWU
and Others v President, Industrial Tribunal & Another
2001(2) SA 277 in which it was held, at 282 D, that an applicant in
review proceedings who does not furnish an adequate record to
the
court, runs the risk of not discharging the onus, especially where
the allegations upon which he, she or it relies are placed,
in issue.
That finding, to us appears to be consonant therewith that the
record of proceedings assailed on review, in circumstances
where,
such as in the instant case, the review is based on the contents
thereof, becomes part of the evidential material on which
the review
is to be decided. There does not appear to be any basis in principle
or logic why the aforementioned finding in the SACCAWU
case should
not also find application where the record on review consists of only
portions of the record of the proceedings. In
the light of the
judgment in the SACCAWU case the following view expressed by us in
our judgment can no longer be supported:
“
If
the record of the proceedings is materially defective or if it is
impossible to decide the review on such portions of the record
as
have been made available, a court may, by analogy with the situation
in the case of an appeal,
refuse to entertain the
application until the record is put in order and mulct the
responsible party in such wasted costs as may have
resulted (See:
The Civil Practice of the
Superior Court of South Africa
4
th
Edition, 92).”
10] The
applicant on 15 February 2002, served on the applicants’ attorneys
and filed with the registrar, a notice in terms of Rule
53 in the
following terms:
“
KINDLY
TAKE NOTICE that the Applicant hereby serves and files the following
documents on the Second and Further Respondents in terms
of A
comprehensive copy of the record of
the the abovementioned
rule:
Proceedings in the
Industrial Court, together with a copy of the bundles of documents
to which reference was made in the Industrial
Court, which documents
are duly certified by the Applicant as being true copies.
That the Applicant
hereby serves and files further documents as being part of the
record mentioned in 1 above for purposes of the
review and to which
the Applicant may refer to during the review proceedings. The pages
to which the applicants will refer are
as follows: pp. 1238, 2141,
2126-2167, 1789 -1811, 1950-1953, 1049-1058, 1427-1428, 1440-1442,
1450-1451, 1731-1732 and 1734-1739,
1224-1225, 1052-1053, 1069-1070,
1071-1072, 1210, 1816-1817, 1876, 2029-2030, 2105, 1202-1206,
2119-2120, 2128-2129, 1507, 1752,
2163, 2157-2158, 1042, 1327, 2184,
1090, 1507, 1542, 1549-1550, 1739, 1101, 846, 1465-1466. Copies of
the aforesaid pages are
annexed as part of the record as mentioned
in 1 above. The Applicant reserves the right to refer to any other
pages of the record
which has now been duly served on the Second and
Further Respondents in anticipation of any argument relating to the
review process.
Save for the above the Applicant does not intend to
amplify, amend, add or vary the terms of the notice of motion.
The Second and Further Respondents
are duly afforded the opportunity within 30
days after service of
this notice on them to deliver any further affidavits they may
desire to file in answer to the allegations
made by the Applicant.”
11] The
applicant on 15 March 2002 launched an application in which it
claimed the following relief:
“
1. That the late
service of the comprehensive record of the proceedings in the
Industrial Court together with a copy of the bundle
of documents to
which reference was made in the Industrial Court, under Case No NHK
11/2/4871, be condoned:
Costs of the application
in the event of opposition thereof;
Alternative relief.”
12] The
respondents opposed the granting of the relief prayed for in that
application and launched a counter- application in which
they claimed
an order in the following terms:
“
1. Declaring as
impermissible the steps taken by die applicant pursuant to its
“Notice in Terms of Rule 53” dated 9 May 2001.
Directing that the costs
of this application stand over for later determination;
Alternative relief.”
13] The
applicant’s application for condonation of the late furnishing of
the comprehensive record is based on a flimsy ground namely,
deference to the view expressed by respondents’ counsel during
argument that it was impossible to decide the review on the
attenuated
record. Thát ground was expanded upon in the applicant’s
answering affidavit to the counter-application so as to include a)

that the applicant has been advised that the question whether the
attenuated record is sufficient or not could result in a further
postponement of the review proceedings and, b) that the judgment
of the Supreme Court of Appeal in the SACCAWU case, in which
it was
held that an applicant who does not furnish the record to the court,
runs the risk of failing to discharge the onus, had been
brought to
the applicant’s attention and that thát consideration prompted the
decision to file the comprehensive record.
14] The
respondents’ counter-application was based on two grounds. The
first was that the applicant’s “notice in terms of Rule
53” of
9 May 2001 was in conflict with the applicant’s unequivocal
election to proceed with the review on the basis of the attenuated
record and, in the absence of an application to this court for leave,
was impermissible. The second was that the applicants’ failure
to
have filed a comprehensive record at an earlier stage of the
proceedings was no longer capable of being cured or condoned.
15] In
our view the choice given to an applicant in terms of Rule 53(3)
namely, to furnish a comprehensive or an attenuated record,
does not
entail an election between two inconsistent remedies the election of
one whereof constitutes an unequivocal abandonment
of the other
(See:
Montesse
Township and Investment Corporation (Pty) Ltd v Gouws NO and
Another
1965(4) SA 373 (A) at 380 H;
S
v Moos
1998(1) SACR 372 (C) at 381 g). Accordingly, nothing precluded the
applicant, who elected to have the review adjudicated on an
attenuated record, from changing its mind and having it adjudicated
on a comprehensive record of the proceedings, subject however
to the
caveat that follows. The applicant as a result of the
reconsideration of its election is seeking the introduction of
additional
documentary material at a juncture when certain points
in
limine
have already been adjudicated upon. One of those issues related to
the question whether the requirements of Rule 53(3) had been
complied
with. We in our judgment did not finally dispose of that issue.
Accordingly, the applicant cannot as of right now deliver
a
comprehensive record of the proceedings. As the applicant is seeking
an indulgence in extant proceedings, it could only do so
with the
leave of this court after a substantive application in which the
existence of good or sufficient cause has been shown to
be present
(See:
Silber
v Ozen Wholesalers (Pty) Ltd
1954(2) SA 345 (A) at 352 H). Whether or not good cause exists,
depends on the exercise of a judicial discretion by a court on
the
basis of all the circumstances of a particular case, with a view to
achieving fairness between the parties (See:
Torwood Properties (Pty) Ltd v South African Reserve Bank
1996(1) SA 215 (W) at 228 B).
16] To
the extent that the applicant is seeking to introduce what is
tantamount to additional evidential material and the cases that
have
established the criteria for the introduction further evidence may be
of guidance, Leon J said the following in
Barclays Western Bank v Gunas and Another
1981(3) SA 91 (N) at 96 G:
“
The considerations
which should guide a court in an application of this kind and which
are referred to in the cases should in my view,
be regarded as guides
rather than fixed principles and in the end the fact of each
particular case must be decisive in deciding what
is the fair and
just order to make.”
17] The
reasons provided by the applicant for the introduction of the
comprehensive record are simple and convincing. The applicant
has
been advised, on the strength of the judgment in the SACCAWU case,
that if the stance that the attenuated record is the record
of the
proceedings is persisted with, there is a real risk that this court
may find that the applicant has failed to discharge the
onus that
rests on it or that a further postponement could result. In order to
obviate those possibilities, the applicant wishes
to introduce the
comprehensive record. Two records of the proceedings before the
Industrial Court appear to be in existence. The
record prepared for
the pending appeal in the Labour Appeal Court and the record the
applicant endeavoured to furnish in terms of
its notice of 9 May
2001. As the record on appeal has been available to the respondents’
legal representatives and they have consistently
adopted the stance
that the review had to be argued on the basis of a comprehensive
record, there is no possibility of any prejudice
to the respondents
should the applicant be permitted to furnish a comprehensive record.
To do so would furthermore obviate further
delays and also serve the
convenience of this court.
18] The
problem is that the applicant did not in its notice of motion seek an
order permitting it to substitute the attenuated record
with a
comprehensive one. Can the applicant be permitted to file the
comprehensive record under the claim for alternative relief?
As
regards the ambit of a claim for general or alternative relief
I.
Isaacs:
Beck’s Theory and Principles of Pleading in Civil Actions
,
5
th
Edition at 61 – 62 states as follows:
“
Besides the exact
relief thus prayed for it is usual to make an alternative claim for
“general or alternative relief”, a claim
known as the “salutary
clause”. The object of this is to ensure the granting of such
other relief as the premises of the declaration
and the evidence at
the trial may warrant the court in granting, even though it has not
been specifically claimed. The extent to
which the salutary clause
may be permitted to cover claims which have not been specifically
made cannot be precisely indicated, but
from the opposite and
negative point of view it can be said definitely that it will not
operate to permit the granting of relief
which is of quite a
different nature from that primarily sought, at all events where the
necessity for that relief is not revealed
by the pleadings and
established by the evidence.”
19] The
relief the applicant claimed in prayer 1 of the notice of motion was
that the late service of the comprehensive record of
the proceedings
be condoned. There is nothing in Rule 53(3) which obliged the
applicant to furnish a comprehensive record of the
proceedings.
Neither does the said sub-rule describe a time-limit for the
furnishing of a comprehensive or an attenuated record.
The applicant
elected to file an attenuated record rather than a comprehensive one
and accordingly complied with the provisions
of Rule 53(3). In our
view, the applicant in its notice of motion misconceived the relief
that it requires. What the applicant
requires is an indulgence,
namely, to furnish a comprehensive record of the proceedings in
extant review proceedings after it made
an election to furnish an
attenuated record. We are of the view that such relief is
sufficiently similar in nature to the relief
originally claimed and
founded on fundamentally similar factual averments and accordingly,
it would be competent to grant it under
the prayer for alternative
relief.
20] We
accordingly incline to the view that the applicant could, under the
prayer for alternative relief, be permitted to substitute
the
attenuated record of the proceedings with a comprehensive one within
21 calendar days of the date on which this order is made
by
furnishing same in the manner and to the parties prescribed by Rule
53 and such an order is granted.
21] As
the order in paragraph 20 above obviates the need for the granting of
the relief sought in prayer 1 of the respondents’
counter-application
no order is made thereanent.
22] The
applicant in its notice of motion sought an indulgence and an order
for costs in the event of the respondents opposing its
application.
However, as the respondents’ opposition of the application was
reasonable they, in our view, are entitled to their
costs of
opposition on a party and party basis and it is so ordered.
23] The
respondents in their notice of motion in the counter-claim asked for
a direction that the costs thereof should stand over
for later
determination. In response to a question from the court the parties’
counsel appeared to be in agreement that it was
undesirable for the
costs of the counter-claim to stand over for later determination. We
share that view. As the merits of the
counter-claim have not been
decided we incline to the view that liability for the costs thereof
should be determined on the same
basis as in the case where a matter
has been settled and the only remaining issue is costs. In such a
case courts determine which
of the parties would probably have
succeeded on the merits on the basis the facts at their disposal
(See:
Gamlan
Investments (Pty) Ltd and Another v Trilion Cape (Pty) Ltd and
Another
1996(3) SA 692 (C) at 700 C – 701 G). In our view the decision in
the counter-claim would in all probability have been in favour
of the
respondents and accordingly they are entitled to their costs on a
party and party basis and it is so ordered.
24] The
review application is postponed to 21, 22 and 23
rd
August 2002.
25] It
is understood that heads of argument for the appeal before the Labour
Appeal Court have already been drafted on the basis of
the record on
appeal. As it would simplify and facilitate the drafting of heads of
argument in the pending review proceedings it
is recommended that the
applicant should furnish the record of the Labour Appeal Court as the
comprehensive record in the review.
Counsel indicated that they
would recommend such a
modus
operandi
to their respective clients and we express the hope that their
recommendations will be given effect to.
_______________ __________
D.
VAN REENEN T. S.B.JALI