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[2019] ZASCA 61
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Crockery Gladstone Farm v Rainbow Farms (Pty) Ltd (592/18) [2019] ZASCA 61 (20 May 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 592/18
In
the matter between:
CROCKERY
GLADSTONE
FARM APPELLANT
and
RAINBOW FARMS (PTY)
LTD RESPONDENT
Neutral
Citation:
Crockery
Gladstone Farm v Rainbow Farms (Pty) Ltd
(592/18)
[2019] ZASCA 61
(20 May 2019)
Coram:
Tshiqi, Mbha and Mathopo JJA and
Davis and Weiner AJJA
Heard:
20 May 2019
Delivered:
20 May 2019
Summary:
Civil procedure –
the grant of an application for rescission of judgment is not
appealable – order of the Full court
granting rescission order
upheld.
ORDER
On
appeal from
: The
Limpopo Division of the High Court, Polokwane (Makgoba JP with
Kganyago JA and Sikhwari AJA) sitting as court of appeal):
The
appeal is dismissed with costs.
JUDGMENT
Mathopo
JA (Tshiqi and Mbha JJA and Davis and Weiner AJJA concurring):
[1]
In this appeal counsel were, at the outset of the hearing, asked to
address the court on the preliminary question whether the
order of
the Full Court, Limpopo Division of the High Court, Polokwane
(Makgoba JP with Kganyago J and Sikhwari AJ concurring)
is appealable
or not.
[2]
The issue arises against the backdrop of a default judgment granted
by Phatudi J on 2 August 2016. The common cause facts are
that on the
date the default judgment was granted, the appellant and respondent
were engaged in settlement negotiations. The respondent
had served
and filed its notice to oppose but held back the filing of the
answering affidavit pending settlement negotiations.
A day before the
hearing the respondent’s attorneys were advised by the
appellant’s attorneys that they were still
awaiting their
client’s instructions. Regarding the appearance the next day,
they were assured that they should not worry,
as this ‘would be
sorted out’. The appellant’s attorneys did not revert to
the respondent’s attorneys.
On 2 August 2016, the respondent’s
attorneys tried to contact the appellant’s attorneys
telephonically on several occasions
and out of caution the
respondent’s attorneys briefed counsel to ask for a
postponement as they were still awaiting the appellant’s
client’s instructions on the offer. When the matter came before
Phatudi J, he was not advised of the settlement discussions
and he
refused the application for a postponement and granted default
judgment against the respondent. Counsel for respondent nonetheless
informed the court that he had been informed that by agreement
between the parties’ respective attorneys, the matter was
to be
postponed. A subsequent application for rescission of the judgment
before Muller J was dismissed with costs on the erroneous
basis that
Phatudi J’s judgment was not a default judgment.
[3]
On appeal to the Full Court, the order of Muller J was set aside and
the respondent was given an opportunity to file the answering
affidavit. In its well-reasoned judgment the Full Court correctly
held that had the settlement negotiations been disclosed to the
court
of first instance (Phatudi J), he would not have granted the default
judgment. In my view, once the Full Court made a finding
that the
material facts were not disclosed, then it follows that the judgment
had been erroneously sought or granted. As counsel
for the respondent
submitted, it is not so much whether the agreement was purportedly
terminated or not. That issue is still to
be determined once the
parties have filed the necessary papers.
[4]
I now turn to the question whether
the
order of the Full Court is appealable or not. On the test articulated
by this Court in
Zweni
v The Minister of Law and Order
1993 (1) SA 523
(A), the order is not appealable if it has the
following attributes (a) not final in effect and is open to
alteration by the court
below; (b) not definitive of the rights of
the parties; and (c) does not have the effect of disposing of a
substantial portion
of the relief claimed See also
SA
Informal Traders Forum v City of Johannesburg
2014 (4) SA 971
(CC).
[5]
In this matter the appellant’s claim remained intact. Nothing
has been decided about it. All that has happened, is that
the
respondent has been afforded an opportunity of answering it. The Full
Court’s order is interlocutory and does not cause
the
appellants any irreparable harm or preclude it from obtaining some
relief in the future. It has no direct effect on the final
issue
relating to the purported termination of the agreement and neither
does it dispose of any portion of the appellant’s
claim. It is
accordingly not appealable and the appeal must be dismissed on this
ground alone.
[6]
It remains to consider whether the Full Court’s order mulcting
the appellant with the costs of the rescission application
and the
costs of appeal before it, is appealable. Courts should and ought not
to decide issues of academic interest only. That
much is trite. In
Radio Pretoria v
Chairman, Independent Communications Authority of SA
2005 (1) SA 47
(SCA) [also reported at
[2004] 4 All SA 19
(SCA) –
Ed], this Court expressed its disquiet about the proliferation of
appeals that had no prospect of being heard on
the merits, as the
order sought would have no practical effect. Section 16(2)(a)(i)
provides that ‘When at the hearing of
an appeal the issues are
of such a nature that the decision sought will have no practical
effect or result, the appeal may be dismissed
on this ground alone’.
The argument advanced by the appellant is that the judgment of the
Full Court is predicated on wrong
facts and legal principles, with
the result that it exercised its discretion wrongly. The simple
answer to this argument is that,
in the light of the failure by the
appellant’s attorneys to revert to the respondent’s
attorneys, it was necessary
for the respondent’s attorneys to
brief counsel to appear before Phatudi J and ask for a postponement.
The respondent’s
attorney had to safeguard his client’s
interests. I find it astonishing that the appellant’s attorneys
failed to bring
to their counsel’s attention and the court,
that the parties were still engaged in settlement negotiations and
that the respondent’s
attorneys had enquired repeatedly whether
they had received instructions or not.
[7]
In my view, if counsel for the appellant had been appraised of the
developments as an officer of court, I have my reservations
that he
would have proceeded with the matter on an unopposed basis and
obtained default judgment against the respondent. If Phatudi
J had
been informed of the pending settlement negotiations, he would not
have insisted on a substantive application for a postponement
and
granted default judgment. The respondent’s attorneys were thus
fully justified to approach Muller J to seek rescission
of the
judgment. The failure by the appellant’s attorneys to furnish
counsel with proper instructions must be deprecated.
The Full Court
exercised its discretion properly. Absent any misdirection this Court
cannot interfere with the proper exercise
of that discretion. It
follows that the costs order was correctly made.
[8] In the circumstances
the following order is made:
The appeal is dismissed
with costs.
________________________
R S Mathopo
Judge
of Appeal
APPEARANCES:
For
appellant: M E Manala
Instructed
by:
Mahowa
Incorporated, Polokwane
Phatshoane
Henney Attorneys, Bloemfontein
For
respondent: M B Pitman
Instructed
by:
Eversheds
Sutherland, Durban
Honey
Chambers, Bloemfontein