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[2000] ZASCA 164
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Pretorius v Slabbert (468/98) [2000] ZASCA 164; 2000 (4) SA 935 (SCA) (22 September 2000)
CASE NO.486/98
IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In
the matter between
Jacobus
Pretorius
Appellant
and
Anton
Jacobus Slabbert
Respondent
BEFORE: VAN HEERDEN DCJ, GROSSKOPF, HOWIE, SCHUTZ JJA
AND
FARLAM AJA
HEARD: 15 SEPTEMBER 2000
DELIVERED: 22 SEPTEMBER 2000
W
P SCHUTZ
Non-joinder
- raised
mero motu
-
not to speculate on what uninvited party might wish to say - appeal
postponed.
_______________________________________________________________
J U D G M E N T
_______________________________________________________________
SCHUTZ JA:
The
appellant sold a farm to the respondent in 1988. The final balance
of
the price was payable by 31 August,
1997. On the following day the appellant issued a
mora
notice threatening cancellation if the balance were not paid within
14 days. After the 14 days had run he purported to cancel
the sale.
The respondent sued him for transfer, tendering a guarantee of
payment. The issue in the trial before Le Roux J, sitting
in the
Transvaal Provincial Division was whether the appellant had divested
himself of the right to issue the notice and cancel
the sale, in the
light of the admitted fact that he had ceded the rights arising from
the deed of sale
in
securitatem debiti
to Syfrets Bank (“Syfrets”) in 1989. The court
a
quo
held in the
respondent’s favour and granted an order substantially as
prayed. Syfrets was not joined and there is no clear
indication in
the record what its attitude to the proceedings might have been.
Leave
to appeal having been granted below, the appeal was set down before
us. Three days before the appeal was heard the parties
were asked by
this court to address the question whether there had not been a
non-joinder. At the hearing neither counsel was
able to give us a
definite answer as to whether Syfrets had been given proper notice of
the proceedings, nor as to what its attitude
to them might be.
Mr Louw, for the respondent, sought
to persuade us that Syfrets had no material interest in the
proceedings, so that the appeal
might proceed. There is an immediate
difficulty with this argument, as it appears to contradict the very
contention upon which
the respondent succeeded below and wishes to
succeed here, namely that the appellant’s rights in the deed of
sale (reversionary
rights excepted) had become vested in Syfrets.
Depending upon a variety of possible considerations, upon which the
record throws
no clear light, Syfrets might have an interest. For
instance, it may have something to say about the form of order, which
envisages
payment to the appellant and not itself as cessionary. But
more to the point, as was rightly said in
Selborne
Furniture Store (Pty) Ltd. Steyn NO
1970 (3) SA 774
(A) at 780 G, the substantial question is whether it
is proper for this court to proceed to draw an inference as to
Syfret’s
rights, without giving it an opportunity of being
heard in regard thereto. The answer is no.
Counsel
were agreed that if this conclusion were reached the argument on the
merits of the appeal would have to be postponed, in
order that the
attitude of Syfrets could be ascertained and demonstrated. Because
of the general uncertainty that prevails the
proper order as to costs
is to reserve them.
The following order is made: The
appeal is postponed
sine
die
in order to
allow the appellant to demonstrate what the stand of Syfrets is.
This is to be done within two months of this order
by the filing of
appropriate papers. Thereafter either party may move to have the
appeal set down for hearing. Costs of the
appeal are reserved.
W
P SCHUTZ
JUDGE
OF APPEAL
CONCUR
VAN
HEERDEN DCJ
GROSSKOPF
JA
HOWIE JA
FARLAM AJA