Mobile Telephone Networks Holdings (Pty) Ltd (MTN) v Knoetze (JA12/2004) [2005] ZALAC 9; [2006] 3 BLLR 250 (LAC); (2006) 27 ILJ 968 (LAC) (8 December 2005)

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Mobile Telephone Networks Holdings (Pty) Ltd (MTN) v Knoetze (JA12/2004) [2005] ZALAC 9; [2006] 3 BLLR 250 (LAC); (2006) 27 ILJ 968 (LAC) (8 December 2005)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG)
CASE
NO: JA 12/2004
REPORTABLE
In
the matter between:
MOBILE
TELEPHONE NETWORKS HOLDINGS (PTY) LTD
(“MTN”)
Appellant
(Respondent
in the Court
a
quo
)
and
ELOISE
KNOETZE
Respondent
(Applicant
in the Court
a
quo
)
JUDGMENT
WILLIS
JA:
An
Outline of the History of the Matter
[1]
The respondent, who was the applicant in the Court
a
quo
and to whom I
shall hereinafter, for the sake of convenience, refer as “the
employee”, approached that Court
ex
parte
,
by way of urgency,
for an order that the appellant (who was the respondent in the court
a
quo
)
and to whom I shall
hereinafter, for the sake of convenience, refer as “the employer”:
“
(i)
(B)e
compelled to comply with a fair retrenchment procedure;
(B)e
interdicted or restrained from dismissing the applicant from its
employment, prior to complying with a fair procedure;
(P)ay
the costs of the application on a scale of attorney and own client.
”
and
certain alternative relief
.
[2]
Waglay J granted the
following order on 30 September 2003 in response to this application:
“
1. A rule
nisi
is hereby issued returnable
on 14 October 2003 calling upon the Respondent to show cause why an
order should not be made in the following
terms:
Interdicting
and restraining the Respondent from dismissing the applicant from
its employ pending compliance with applicable procedures.
2. Paragraph 1.1 above
will serve as an interim order pending the return date.
3.
Insofar as other prayers are sought in this application, such will be
dealt with on the return date.
4. The Respondent is to
file replying papers by no later than 10h00 on the 7
th
October 2003.
5. The
Applicant is to file its opposing papers by no later than the close
of business on 10
th
October 2003.
6.
Both parties must file their heads of argument by noon on 13
th
October 2003.
7.
Costs are reserved for determination on the return day.
”
[3]
The rule
nisi
was
extended from time to time. The matter then came before Revelas J on
10 November 2003. Revelas J handed down her judgment in the
matter on
17 November 2003. In her judgment she notes the following:
“
On the papers of the
applicant, she and other employees were not properly consulted in
accordance with fair procedures as envisaged
by
section 189
of the
Labour Relations Act 66 of 1995
, as amended (‘the Act’).
”
and
“
The
respondent unfortunately has not been helpful in its opposition of
the applicant’s founding affidavit, to supply the Court with
enough
reasons why the rule should not be further extended or confirmed.
”
and
“
On the papers I have a
virtually uncontradicted version of the applicant.
”
and
“
It would appear from
the rest of the papers that she was treated very unfairly.
”
(In the context in which Revelas J said this, she clearly meant ‘in
a procedurally unfair manner.’)
[4]
The ruling or order which Revelas J gave in that judgment reads as
follows:
“
1.
The rule is extended to 31 March 2004 on which day it should
automatically be discharged.
2.
The respondent is to pay the applicant’s costs save for the costs
occasioned on 10 November 2003, in respect of all supplementary
affidavits and supplementary heads of argument.
”
Related to the
question of the finality of the effect hereof, is the question of
whether this is a ‘ruling’ or ‘order’
1
.
For the sake of convenience, I shall, in the same way as counsel did,
refer to it as an ‘order’.
[5]
It was against the order of Revelas J that the employer brought an
application for leave to appeal. The Court
a quo
the
application. The employer thereupon successfully petitioned this
Court for leave to appeal.
[6]
It is common cause that the employer had intended to retrench the
employee on 30 September 2003. The employer has protested that
it did
indeed follow fair procedures.
[7]
During the course of argument in the appeal hearing it became common
cause that, consequent upon the order of the Court
a
quo
, the employee
was paid up to 31 October 2003 only.
The
Parties’ Respective Submissions
[8]]
Mr Cassim
,
who appeared for the employer, conceded that the order of Waglay J
was an interim order, in the generally understood meaning of
that
term.
[9]
The employer has consistently taken the point that the Labour Court
did not have jurisdiction to hear the matter because the matter
had
not first been conciliated and a certificate issued to the effect
that the dispute had been referred to the Commission for Conciliation
Mediation and Arbitration (the “CCMA”) for a conciliation “as
is required in terms of
section 157
(4) read together with
sections
135
and
191
of the Labour Relations Act”.
[10]
The employer has relied on other grounds as well,
inter alia
,
that the requirements for an interdict had not been met, that it was
most seriously prejudiced and that no urgency had been established.
[11]
The employee, on the other hand, has defended the judgment of the
court
a quo
on a number of grounds but has taken, in effect,
a point
in limine
: the Court
a quo
had merely granted
an interim interdict and, as such, no appeal could lie against it.
[12]
It will be recalled that the Court
a quo’s
order extended
until 31 March 2004 only. Although
Mr Cassim
conceded that the
order of Waglay J was an interim order, he protested vigorously that
the subsequent order of Revelas J was either
a final one or, at the
very least, final in effect. As the question of the finality of her
order is relevant both as to the question
of (a) jurisdiction and (b)
appealability, I shall deal with it now.
The
Question of the Finality of the Order
[13]
In my opinion the concession of
Mr
Cassim
that the
order of Waglay J was an interim order, in the generally understood
meaning of that term, was correctly and fairly made.
Although there
was some debate before us as to the precisely correct interpretation
of Waglay J’s order, it is clear that he did
not purport to
pronounce upon whether or not the employee had been or was about to
be dismissed for a fair reason. Furthermore, the
order was made
before the dismissal had taken place. It needs to be emphasized that
the order was made pending
the
happening of certain events which, quite conceivably, could occur in
the near future. For all practical purposes, Waglay J ordered
procedural compliance by the employer before taking the decision to
dismiss. The object of an interdict is the protection of an existing
right. It is not a remedy for a past invasion of rights.
2
[14]
Although the manner in which
Revelas J cast the order was unusual, it seems to me that, somewhat
exasperated, she was attempting to
deal in a practical way with a
problem which, in her view, should have been relatively easily
resolved. It seemed to her, on the
ordinary test applicable to
interim interdicts, that the employer had indeed not complied with
fair procedures. The effect of the
order of Revelas J was that the
employer was not to dismiss the employee until the employer had
complied with a fair procedure or
the 31 March 2004 arrived,
whichever should first occur.
Mr
Cassim
conceded that
this was indeed the effect of the order. It seems to me that Revelas
J made an order
ad
servandam causam
(in
the service of the case). Essentially, the first paragraph contains
both a ruling and an order as follows:
“
(i) The rule is
extended until 31 March 2004; (a ruling);
(ii) On 31 March
2004 the rule
nisi
is
to be discharged (an order).” or, alternatively,
“
(i)
The rule
nisi
is discharged (an
order);
(ii)
The discharge of the rule
nisi
is suspended until
31 March 2004 (a ruling).”
It
has a dual character. Revelas J discharged the interim order but
suspended the operation of that discharge for a duration of time.

Suspending the operation of an order for a relatively short duration
of time seems to me to bear all the hallmarks of an interim
order.
3
It does not seem to me that Revelas J’s order was definitive of the
rights between the parties. There was no final pronouncement
as to
the fairness, whether procedural or otherwise, of the employee’s
dismissal. Ironically, however, when the rule was discharged
on 31
March 2004, it became a final order against the
employee
:
she could not approach the Court again for the same or similar relief
on the same issues.
4
[15]
Mr Cassim
however, persisted with the submission that even if
the order was not final in form, it was final in effect.
5
In
African Wanderers F.C. v Wanderers F.C.
6
Muller JA, delivering the unanimous judgment of the highest court
in the land, said the following at 48 H:
“
The
fact that the order made by Howard J., could well prove to be
prejudicial to the company does not therefore justify a contention
that the order was a final and definitive order and not merely an
order
ad servandam causam
.
Indeed, it very often happens that, when a court is asked to grant a
temporary interdict, and the right which it is sought to protect
is
not clear, the court weighs,
inter
alia
, the prejudice to the
applicant, if the interdict is refused, against the prejudice to the
respondent if it is granted.
”
[16]
The
African Wanderers
case was approved vsoon thereafter, in
the case of
South Cape Corp. v Engineering Management Services
7
and, more recently, in the Supreme Court of Appeal in the well-known
case of
Knox D’Arcy Ltd and Others v Jamieson and Others
8
.
From these cases useful guidance may be gleaned on the difference
between interim and final orders. The fact that a decision may
cause
a party an inconvenience or place that party at a disadvantage in the
litigation which nothing but an appeal can correct, is
not taken into
account in determining its appealability.
9
In the case of
Zweni v Minister of Law and Order
10
the following was said:
“
In
the light of these tests and in view of the fact that a ruling is the
antithesis of a judgment or order, it appears to me that,
generally
speaking, a non-appealable decision (ruling) is a decision which is
not final (because the Court of first instance is entitled
to alter
it), nor definitive of the rights of the parties nor has the effect
of disposing of a substantial portion of the relief
claimed in the
main proceedings.
”
11
[17]
It is not necessary for the purposes of this case to delve into the
differences between purely interlocutory orders (or interlocutory
orders proper) on the one hand and interim or temporary orders on the
other. For obvious reasons, these expressions are often used
coextensively and interchangeably with one another. Nevertheless, I
am of the respectful opinion that, for the purposes of understanding
the distinction between final orders and others, it would be
difficult to improve on what Johannes Voet, after having noted that
judgments are either interlocutory or definitive, said so many years
ago:
“
Interlocutoria
est pronuncatio aliqua de plano super incidenti aliquo in principio
vel mediis litis facta, causam principalem non
plene determinans.
”
12
(“
An
interlocutory judgment is some announcement from the floor
13
of the Court made on some incidental mater at the beginning or in the
middle of a suit, and not fully deciding the main cause.
”
(Gane’s translation))
I
consider that it is appropriate in the context of this case to make a
few general observations. It seems to me that, in practice,
we
usually refer to orders:
which
are made, ordinarily, as a matter of urgency, where a Court,
weighing the possibility of the respective prejudice of the parties,
does not wish to make a final order but nevertheless considers that
a party is entitled to some kind of relief until greater clarity
has
been obtained on the matter, as ‘interim orders’; and
which
are made during the course of proceedings and which are incidental
to main proceedings as ‘interlocutory’ orders.
It
seems that an interim order is a species, type, genus or subset of
an interlocutory order.
14
These observations are made strictly
obiter
.
[18]
My conclusion is that to the extent that the order of Revelas J
operated until 31 March 2004, it was not a final one, in the
generally understood meaning of that term. As against the
employee
,
the discharge of the order on 31 March 2004 was indeed final but this
has implications which I shall consider later on. In the meantime,
I
shall proceed on the basis the order was interim until 31 March 2004
and determine, in the light thereof, whether (a) the Labour
Court had
the jurisdiction to make the order and (b) the order of Revelas J is
appealable.
The
Question of Jurisdiction
[19]
One way in which to cast the question as to whether or not the Court
had jurisdiction is as follows: is a prior referral to conciliation
a
necessary ‘jurisdictional fact’ in order for the Court to be able
to make an order of the kind made either by Waglay J or Revelas
J?
[20]
In
South African
Defence and Aid Fund and Another v Minister of Justice
15
,
Corbett J, as he then was, described a ‘jurisdictional fact’ as:
“…
a
fact or state of affairs, which objectively speaking, must have
existed before the statutory power could validly be exercised.
”
The Constitutional Court has said that this remains the leading
authority in our law on ‘jurisdictional facts’.
16
[21]
Section 157(4)
of the
Labour Relations Act No. 66 of 1995
, as amended
(‘the LRA”), provides that:
“
(a)
The Labour Court
may
refuse to determine any dispute, other than an appeal or review
before the Court, if the Court is not satisfied that an attempt
has
been made to resolve the dispute through conciliation.
(b)
A certificate issued by a commissioner or a council stating that the
dispute remains unresolved is sufficient proof that an attempt
has
been made to resolve that dispute through conciliation.
”
(emphasis added)
[22]
It is trite that, ordinarily, the use of the word ‘may’ in a
statute is permissive rather than peremptory and confers upon
a Court
a discretion (even if that discretion is a limited one)
17
.
It is not insignificant that the statute did not employ ‘shall’
or ‘must’ instead of ‘may’.
18
[23]
It is tempting, therefore, to conclude, on the simple basis that the
section in question uses the word ‘may’, that it was
not a
necessary precondition for the Court
a
quo
to
have jurisdiction to
hear the matter (or, put differently, a necessary ‘jurisdictional
fact’) that the dispute should first have
been referred for
conciliation.
[24]
Mr Cassim
relied
very strongly, however, on the case of
Numsa
v Driveline Technologies (Pty) Ltd & Another
which
has been decided in this Court.
19
In order to understand the issues in that case, it is necessary for
one to have a summary of the facts. The union had referred a
dispute
to the Labour Court in which it had alleged that its members’
dismissal for operational reasons had been unfair because
the
employer had not fully complied with its obligations in terms of
section 189
of the LRA. The dismissals had in fact taken place. The
union then sought to amend its attack on the unfairness of the
dismissals
to include the allegation that their dismissals were
automatically unfair in terms of
section 187
(1) (c) of the LRA. The
employer had objected to the amendment on the basis that the dispute
concerning the allegedly automatically
unfair dismissals had not
first been referred for conciliation. The Labour Court upheld the
objection and disallowed the amendment
on that basis. The matter went
on appeal on the question of whether or not the Labour Court should
have allowed the amendment. Conradie
JA, who gave the minority
judgment, held that the failure to comply with the formalities
relating to conciliation did not deprive
the Labour Court of the
power to adjudicate the matter.
20
He held that the Labour Court had a discretion which should be
exercised after examining the full factual matrix.
21
He held, further, that the Labour Court had erred in not allowing the
amendment on the basis that the alleged automatically unfair
dismissal had not first been referred to conciliation.
22
This line of reasoning informed his decision to allow the amendment.
Zondo AJP, as he then was, (with whom Mogoeng AJA, as he then
was,
concurred), agreed that the amendment should be allowed but for a
somewhat different reason: the amendment did not introduce
a fresh
dispute.
23
Zondo AJP strongly disagreed with Conradie JA’s line of reasoning.
24
He said, in concluding his disagreement with Conradie JA,:
“
The long and short of
the above is therefore that, in my view,
section 157(4)(a)
provides
no basis for the proposition that the Labour Court has jurisdiction
to adjudicate a dismissal dispute which has not been
referred to
conciliation. It is only a basis for the proposition that, in a case
where no certificate of outcome stating that a dispute
remains
unresolved has been issued but the dispute was referred to
conciliation but no attempt was made to conciliate the dispute,
the
Labour Court may in its discretion refuse to determine the dispute.
”
25
[25]
Earlier on in his judgment Zondo AJP had remarked that:
“
Section 157
(4)(a)
will only apply, in my view, in a dispute where no certificate such
as is referred to in
section 191(5)
was issued but where the employee
acquired the right to refer the dispute to the Labour Court by virtue
of the happening of the second
event mentioned in
section 191
(5),
namely, the expiry of a period of 30 days.
Section 157(4)(a)
cannot
apply to a dispute where the first event occurred, namely where a
certificate of outcome was issued
.”
26
and
“
I say the above
because in terms of
section 157(4)(a)
the Labour Court only has the
discretion which my colleague relies upon for his proposition where
it is not satisfied that an attempt
was made to conciliate the
dispute.
”
27
[26]
It is not necessary, however, in this case to enter into the fray
between the two opposing views. The reason lies in the fact
that in
the
Driveline
case
the parties were clearly dealing with an appeal against a final
order.
28
Furthermore, as noted earlier, the dismissals had already taken
place. The facts in the present case are clearly distinguishable.
[27]
Section 158
(1) (a) of the LRA provides that the Labour Court “
may
make any appropriate order, including-
the
grant of urgent
interim
relief;
an
interdict
;
an
order directing the performance of any particular act which order,
when implemented will remedy a wrong and give effect the primary
objects of this Act…
”
(emphases added)
It
has to be borne in mind that the LRA gives the CCMA no power to
grant interdicts. If a Court cannot make an urgent interim order
unless there has first been a referral to the CCMA (never mind wait
for the 30 day period referred to in
section 191(5))
, it cannot give
effect to the powers given to it in terms of
section 158
,
inter
alia
,
to grant urgent
interim relief and interdicts. The powers conferred on the Labour
Court in
section 158
would be nugatory. It is for this reason, quite
apart from the fact that the
Driveline
case dealt with a
case in which there had been a final order, that I am convinced that
Zondo AJP and Mogoeng AJA could not have had
in mind the kind of
situation with which we are dealing
in
casu
.
[28]
In the Labour Court, there have been a series of decisions which
either expressly or by necessary implication, have recognized
that
that Court does indeed have the power to grant interim interdicts of
the kind in question, without there first being a referral
to
conciliation.
29
In a number of these cases the orders in question have been referred
to as
status quo
orders. The term is
a convenient one. Obviously, the interim interdicts which may be
granted in terms of
section 158
(1) (a) neither provide specifically
for
status quo
orders
nor are limited to them. An interdict directed at the maintenance of
the
status quo
pending final
determination of the matter is,
par
excellence
, an
interim interdict.
30
[29]
It should also be borne in mind that
section 77
of the
Basic
Conditions of Employment Act No 75 of 1997
confers upon the Labour
Court “
concurrent
jurisdiction with the civil courts to hear and determine any matter
concerning a contract of employment
”.
[30]
In the case of
Airoadexpress
v LRTB, Durban
31
the common law principle that a Court could grant interim relief to
prevent ‘hardship’ and ‘injustice’, provided that the
ordinary principles applicable to interim interdicts were satisfied,
was recognized. Historically, in Holland temporary relief of
this
nature was usually granted by way of a
mandamentum
poenaal
(
mandatam
poenale
)
32
.
The right, power and duty of a Court to cut through adjectival
obstructions on an interim basis in order to prevent hardship or
injustice, more particularly to prevent irreparable harm, is
therefore an ancient one, having a respectable pedigree. There seems
to me to be no canon of interpretation which would require one to
conclude that the legislature intended to deprive the Labour Court
of
the power to grant such eminently sensible and just relief.
[31]
I therefore conclude that the Court
a
quo
did indeed
have jurisdiction to
hear the matter and to grant interim relief even though the dispute
had not first been referred for conciliation.
This conclusion does
not disturb the decision of the majority in the
Driveline
case to the effect
that a final order cannot be granted in the principal dispute without
there being a prior referral to conciliation.
The
Question of Appealability
[32]
In terms of
section 166
(1) of the LRA:
“
Any party to any
proceedings before the Labour Court may apply to the Labour Court for
leave to appeal against any final judgment
or final order of the
Labour Court.
”
It
seems to me, by necessary implication, that the LRA envisages no
appeal against interim orders.
[33]
In the
Knox D’Arcy
,
33
Grosskopf
JA said at 359F:
“
In
passing it may be noted that the
grant
of an interim interdict
stands on a different footing (from a refusal on an interdict
34
).
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
35
,
and, ultimately, prevailed in the Appellate Division.
”
36
The
Knox D’Arcy
case has, more recently, been affirmed in
the case of
Maize Board v Tiger Oats Ltd and Others
37
.
[34]
As noted above, in my opinion the order granted by Revelas J on 17
November 2003 and which applied until 31 March 2004 was a
temporary
or interim interdict made merely
ad servandam causam
.
Accordingly, there can be no appeal against it. The learned judge
therefore correctly dismissed the application for leave to appeal.
Save for the question of costs, all the other submissions on behalf
of the employer as to why the appeal should be upheld, therefore
fall
away.
[35]
Even if the order of Revelas J (at least until 31 March 2004) is not
to be considered an interim one, it seems to me that after
31 March
2004, there was no order against which the employer could appeal.
S.A.B. Lines (Pty) Ltd v Cape Tex Enginerring Works
38
,
Corbett J made it quite clear that once a rule
nisi
has been
discharged, there is no order pertaining to the interim relief.
39
This judgment has been approved by the Supreme Court of Appeal.
40
[36]
Taken as a whole, therefore, Revelas J did not make an order against
which the employer could have any interest in the question
of an
appeal after 31 March 2004.
MrCassim
conceded that this was
correct except that, he submitted, the question of costs remained
relevant.
[37]
Having come to the conclusion that the order of Revelas J was not
appealable, I think it may be appropriate to note that aparty
which
considers itself prejudiced by an interim order has other remedies
available to it. It may anticipate the return day or it
may request
the Court to make an order for security for damages should it
subsequently appear that the other party was not entitled
to the
relief in question.
41
Moreover, if the employee wishes to claim payment of more money by
way of unpaid salary, it is open to the employer in this case
to
defend the claim on the basis that by 31 October 2003 it had indeed
complied with a fair procedure.
Mr Knoetze
, who appeared for
his wife in this matter, conceded that this was so. Furthermore, if
as a result of the interim order, it is subsequently
established that
by 30 September 2003 the employer had indeed complied with a fair
procedure, it may recover payments made after
that date from the
employee. Again,
Mr Knoetze
conceded that this was so.
Small
Legal Conundrums and the Question of Costs
[38]
In
Western Cape Education Department and Another v George
42
,
the Supreme Court of Appeal said:
“
The
cumulative consequence of all these factors is that no practical
effect or result can be achieved in this case. No other reasons
were
suggested why the appeal should not be dismissed in terms of
section
21A
(of the Supreme Court Act, No 59 of 1959, as amended
43
).
This is therefore a proper case in which to order such dismissal
”.
Subsection
3 of this section reads as follows:
“
Save
under exceptional circumstances, the question whether the judgment or
order would have no practical effect or result, is to be
determined
without reference to consideration of costs.
”
[39]
It is true that section 21A of the Supreme Court Act refers to civil
appeals to the “Appellate Division” and not to this
Court.
Nevertheless, the provisions of section 21A (1) and (3) of the
Supreme Court Act appear to be a codification of the common
law.
44
The aversion to courts having to hear appeals relating to “small
legal conundrums unrelated to a substantial dispute or one of
public
or professional interest”
45
is well known. I shall not, therefore, embark upon a detailed enquiry
as to the merits of the Court
a quo’s
order as to costs,
which, in any event, is a discretionary matter. Although the order
relating to costs is perhaps amenable to criticism,
it can be
justified in the light of the employer’s unhelpful attitude
referred to in the judgment of the Court
a quo
.
[40]
There is no reason why costs should not follow the result in the
appeal.
Order
[41]
The order of the Court is the following:
The
appeal is dismissed with costs.
DATED
AT JOHANNESBURG THIS 8
th
DAY OF DECEMBER 2005
N.P.
WILLIS
JUDGE
OF THE LABOUR APPEAL COURT
I
agree.
K.R.
McCALL
ACTING
JUDGE OF THE LABOUR APPEAL COURT
I
agree.
R.G.
COMRIE
ACTING
JUDGE OF THE LABOUR APPEAL COURT
Counsel
Appellant:
N.A. Cassim SC
Attorneys
for Appellant: Lebea & Associates
Counsel
for the Respondent:
A. Knoetze
Attorneys
for Respondent: Assenmacher Attorneys
Date
of hearing: 1 December, 2005
Date
of Judgment: 8 December, 2005
1
See,
for example,
Zweni v Minister of Law and Order
1993(1) SA 523 (A) at 536B
2
See,
for example,
Stauffer
Chemical Products Division of Cheesborough-Ponds (Pty) Ltd v
Monsanto Company
1988
(1) SA 805
(T) at 809F;
Philip Morris Inc v Marlboro Shirt Co SA Ltd
1991
(2) SA 720
(A) at 735B.
3
See,
for example,
Interlocutory
Interdicts
by C.B. Prest, Juta’s 1993 at page 5,
The
Characteristics of the Remedy
4
See,
for example,
Knox
D’arcy Ltd and Other v Jamieson and Others
[1996] ZASCA 58
;
1996
(4) SA 348
(A) at 358H-360D;
Donoghue
and Others v Executor of Van Der Merwe
(1897)
4 OR1;
Ex
parte Lewis & Marks
1904
TS 281
;
Carlis
v Hertz’s Trustee
1904 TS 584
;
Donaldson v Foster’s Executors
1909 TS 427
;
Davis
v Press & Co
1944
CPD 108
at 113.
5
See,
for example,
South
African Motor Industry Employers’ Association v South African Bank
of Athens Ltd
1980 (3) SA 91
(A) at 96H;
Zweni
v Minister of Law and Order
1993 (1) SA 523(A)
at 532H.
6
1977
(2) SA 38
(A)
7
1977
(3) SA 534
(A) at 549D
8
[1996] ZASCA 58
;
1996
(4) SA 348
(A) at 359G
9
See,
for example,
South
Cape Corporation (Pty) Ltd v Engineering Management Services
(
supra
)
at 533D;
Zweni
v Minister of Law and Order
1993
(1) SA 523(A)
at 533B-C
.
10
1993
(1) SA 523
(A) at 536B
11
This
case, in my respectful opinion, contains a comprehensive review of
the case law. It also describes as ‘thought-provoking’
an
article by Prof H. J. Erasmus ‘Leave to appeal against “Judgments
or Orders” in terms of s 20 of the Supreme Court Act
1959’
(1992) 109
SALJ
496
12
Ad
Pandectas
42.1.4
13
This
denotes a process that may be less formal than normal (
Ad
Pandectas
5.1.3)
14
See
Knox
D’arcy Ltd and Other v Jamieson and Others
[1996] ZASCA 58
;
1996
(4) SA 348
(A) at 359F;
Prentice
v Smith
(1889)
3 SAR 28 at 29 and Voet (
supra
)
15
1967
(1) SA 31
(C) at 34H-35A; See also
Stellenbosch
Municipality v Director of Valuations and Others
1993
(1) SA 9
(C).
16
President
of the RSA v South African Rugby Football Union
2000 (1) SA 1
(CC) at para [168]
17
See,
for example,
Gunn
and Another NN.O v Barclays Bank D.C.O.
1962
(3) SA 678
(A) at 685A-D
18
Ibid.
19
(2000)
21 ILJ (LAC)
[2007] ZALC 66
; ;
[2000]
1 BLLR 20
(LAC)
20
Ibid.
at para [8]
21
Ibid
22
Ibid
at para [14]
23
Ibid
at paras [35], [42] and [43], for example
24
Ibid
at paras [68], [69] and [70], for example
25
Ibid
at para [81]
26
Ibid
at para [76]
27
Ibid
at para [77]
28
Ibid
at para [2]
29
See,
for example,
Fawu
v Simba (Pty) Ltd
[1997]
4 BLLR 408
(LC);
Vela
& Others v Savo & Others
(1998)
19 ILJ 916 (LC);
Fordham
v OK Bazaars (1929) Ltd
(1998)
19 ILJ 1156 (LC);
SACWU
& Others v Sentrachem
[1996]
6 BLLR 615
(LC);
Hultzer
v Standard Bank of South Africa (Pty) Ltd
[1999]
8 BLLR (LC);
NUM v Elandsfontein Colliery (Pty) Ltd
[1999]
12 BLLR 1330
(LC);
Tshwaedi
v Greater Louis Trichardt Transitional Council
[2000]
4 BLLR 469
(LC). But see
Fordham
v OK Bazaars 1929 Ltd
(1998)
19 ILJ 1156 (LC).
30
See,
for example,
Interlocutory
Interdicts
by C.B., Juta’s 1993 at page 5
31
[1986] ZASCA 6
;
1986
(2) SA 663
(A)
32
Ibid.
at 677G
33
(
supra
)
34
words
in parenthesis supplied by me
35
The
examples given by Grosskopf JA were L
oggenberg
v Beare
1930
TPD 714
and
Davis
v Press & Co
1944 CPD 108
36
The
Appellate Division Authorities to which Grosskopf JA referred were
the
African
Wanderers
case (
supra
)
and
Cronshaw
and Another v Coin Security Group (Pty) Ltd
[1996] ZASCA 38
;
1996
(3) SA 686
(A).
37
2002
(5) SA 365
(SCA) at para [6]
38
1968
(2) 535 (C)
39
See
also, for example,
Knox
D’Arcy Ltd and Other v Jamieson and Others
[1996] ZASCA 58
;
1996
(4) SA 348
(A) at 358H-360D;
Donoghue
and Others v Executor of Van Der Merwe
(1897)
4 OR1;
Ex
parte Lewis & Marks
1904
TS 281
;
Carlis
v Hertz’s Trustee
1904 TS 584
;
Donaldson v Foster’s Executors
1909 TS 427
;
Davis
v Press &Co
1944
CPD 108
at 113.
40
MV
Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd
2000 (4) SA 746
(SCA);
[2000] 4 All SA 400
(A) at para [6]
41
See,
for example,
Kelly
v Kirkwood & Another
(1857) 3 Searle 5
at 6;
Hillman
Bros (West Rand) (Proprietary) Ltd v Van Den Heuvel
1937 WLD 41
at 46;
Ndauti
v Kgami & Others
1948 (3) SA 27
(W);
Chopra
v Sparks Cinemas Pty) Ltd & Another
1973 (4) SA 372
(D) at 379D-380A;
Coalcor
(Cape) (Pty) ltd v Boiler Efficiency Services CC
1990 (4) SA 349
(C )at 360D-F;
Sibex
Engineering Services (Pty) Ltd v Van Wyk & Another
1991
(2) SA 482
(T) at 512D;
Shoprite
Checkers Ltd v Blue Route Property Managers (Pty) Ltd
1994 (2) SA 172
(C) at 185B;
Smith
v Day
(1882)
21 ChD 421
(CA) at 430.
42
1998
(3) SA 77
(SCA) at 84F
43
words
in parenthesis supplied by me.
44
See,
for example,
African
Guarantee & Indemnity Co Ltd
1956
(1) SA 326
(A) at 329 and
Haine
v
Podlashuc
and Nicolson
1933 AD 104
at 112
45
See
Haine’s case
(
supra
)
in footnote 44 above