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[2002] ZASCA 10
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Municipality of Port Elizabeth v Smit (450/2000) [2002] ZASCA 10; 2002 (4) SA 241 (SCA) (25 March 2002)
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
CASE NO: 450/2000
In the matter between:
MUNICIPALITY OF PORT ELIZABETH
Appellant
and
RHONA SMIT
Respondent
_____________________________________________________________
CORAM:
HOWIE, MARAIS, FARLAM, BRAND et
NUGENT JJA
_____________________________________________________________
Date Heard: 1 March 2002
Delivered: 25 March 2002
All
disputes between parties resolved by agreement prior to hearing of
appeal - Court's power in such circumstances to entertain the
appeal
on its merits, assumed not decided - appeal dismissed under s 21A(1)
of Act 59 of 1959
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
BRAND JA
BRAND JA
[1]
The preliminary question to be decided in
this appeal is whether it should be entertained at all. As appears
from what follows
the factual background against which this question
arises can be stated quite simply.
[2]
The appellant is responsible for over 200 000
manhole covers in the City of Port Elizabeth. The respondent
stepped onto one of
these manhole covers which was situated on a
pavement. The cover tilted crossways and the respondent fell into
the manhole. She
sustained injuries to her leg and suffered a loss.
Her claim for damages in the magistrates' court was upheld and she
was awarded
an amount of R9 000,00. The appellant's appeal against
the magistrate's judgment to the Eastern Cape Division was dismissed
by
Nepgen J with Kroon J concurring. With the leave of the Court
a
quo
the appellant then proceeded with this further appeal.
[3]
From the evidence it appears that the manhole
cover in question consisted of a concrete slab banded in metal, which
rested on a metal
frame set into the pavement. When the cover is
securely placed in its metal frame, it is supported on three sides by
the frame
with the consequence that it is capable of taking weight
without tilting. If, however, the cover is displaced so that it
rests
diagonally across the manhole with more than one of its sides
unsupported by its frame, it can tilt when stepped upon. On the
probabilities
this is what happened to the respondent.
[4]
From the outset the appellant accepted that
it was under a duty to take reasonable measures to ensure that
manhole covers under its
control, including the cover in question, do
not pose a danger to those who might step on them. The only issue
was whether the
appellant had failed to take such reasonable
measures. In this regard evidence was led on behalf of the
appellant that manhole
covers were frequently displaced by members of
the public and that, so it was contended on behalf of appellant,
there were no steps
reasonably available to it to ensure that all
manhole covers were properly and securely in place at all times.
Despite this evidence
the magistrate found that the appellant was
negligent. Nowhere in his judgment did the magistrate indicate,
however, what he considered
that the appellant could reasonably have
done to ensure that the manhole cover stepped on by the respondent
was securely in place.
In the Court
a quo
Nepgen J found the
appellant's negligence to lie in its failure to provide the manhole
covers under its control with hinges. From
his judgment it appears
that this finding was essentially based on three considerations.
First, that the appellant had been aware
of the fact that manhole
covers were frequently displaced and so caused a danger. Secondly,
that if manhole covers were provided
with hinges it would undoubtedly
prevent them from being displaced and thus causing a danger.
Thirdly, that the evidence presented
by the appellant did not
establish that it would place an undue financial burden on it to
insist that hinges were affixed to its
manhole covers. On appeal
the appellant's main objection was aimed at the third consideration.
In support of this objection
the appellant referred to passages in
the record of the evidence at the trial from which it appeared, so
the appellant contended,
that the affixing of hinges to its manhole
covers would be a costly operation which would impose an undue
financial burden on the
appellant bearing in mind its overall
financial commitments.
[5]
After leave to appeal to this Court had been
granted, the parties entered into a written agreement which they
entitled "Agreement
of Settlement". It provides:
'TAKE
NOTICE THAT the parties have reached agreement to settle the above
matter on the following basis:
1. The Respondent hereby withdraws her opposition to the appeal;
2. The Appellant will prosecute the appeal at own risk and expense,
the Respondent recognising that the outcome of the appeal is
of
significance to the Appellant from a principle (sic) point of view;
3. In the event of the Appellant's appeal being upheld, the Appellant
indemnifies the Respondent in respect of both the outcome and
any
costs order which may be made against the Respondent flowing from the
judgment of the above Honourable Court [i e this Court].
Conversely, in the event of the Appellant's appeal being dismissed,
the Respondent waives her right to recover the capital and
costs
awarded in the Court
a quo
, the costs of the present appeal
and the appeal to the Eastern Cape Division of the High Court of
South Africa against the order
of the Court
a quo.
4. The Appellant and Respondent shall each bear their own costs
incurred in the original action and subsequent appeals.'
[6]
The practical result of the Settlement
Agreement appears to be that the parties have effectively resolved
all their differences.
There is no longer any dispute or
lis
between them. Although the agreement is formulated in a way that
makes the indemnity and the waiver by the parties, respectively,
conditional upon the outcome of this appeal, it is clear that a
businesslike approach to the terms of the settlement leads to one
conclusion only, namely that whatever the outcome of the appeal, it
will have no effect whatsoever on the respondent or on the position
of the parties
inter se
. It is in these circumstances that
the question arises, whether the appeal should be entertained on its
merits by this Court at
all. Relevant to this question are the
provisions of s 21A(1) of the Supreme Court Act 59 of 1959 ('s 21A').
This section lays
down that when 'the issues' in an appeal are of
such a nature that the judgment or order sought will have no
practical effect or
result, the appeal may be dismissed on that
ground alone.
[7]
It can be argued, I think, that s 21A is
premised upon the existence of an
issue
subsisting between the
parties to the litigation which requires to be decided. According
to this argument s 21A would only afford
this Court a discretion not
to entertain an appeal when there is still a subsisting
issue
or
lis
between the parties the resolution of which, for some or
other reason, has become academic or hypothetical. When there is no
longer
any
issue
between the parties, for instance because all
issues that formerly existed were resolved by agreement, there is no
'appeal' that
this Court has any discretion or power to deal with.
This argument appears to be supported by what Viscount Simon said in
Sun Life Assurance Company of Canada v Jervis
1944 AC 111(HL)
114
when he said, with reference to facts very similar to those under
present consideration:
'... I think it is an essential quality of an appeal fit to be
disposed of by this House that there should exist between the parties
a matter in actual controversy which the House undertakes to decide
as a living issue.'
Consequently, he found that in a matter where there was
no existing
lis
between the parties, the appeal should be
dismissed on that ground alone (at 115). (See also
Ainsbury v
Millington
[1987] WLR 379
(HL) 381). More recently, however, it
was said by Lord Slynn of Hadley in
R v Secretary of State for the
Home Department, Ex parte Salem
[1999] UKHL 8
;
[1999] 2 WLR 483
(HL) 487 H that:
'... I accept ... that in
a cause where there is an issue involving a public authority as to a
question of public law, your Lordships
have a discretion to hear the
appeal, even if by the time the appeal reaches the House there is no
longer a lis to be decided which
will directly affect the rights and
obligations of the parties inter se'.
It is true that Lord Slynn immediately proceeded to
confine this discretion to entertain an appeal, where there is no
longer a
lis
between the parties, to the area of public law
and added that the decisions in the
Sun Life
case and
Ainsbury v Millington
must accordingly be read as limited to
disputes concerning private law rights between the parties to the
case (487 H - 488 A). In
my respectful view it seems, however, that
this distinction between public law and private law is founded on
considerations of expedience
rather than on principle. If, as a
matter of principle, a court has no power and therefore no discretion
to consider an appeal
where there is no
lis
, in the sense of a
matter in actual controversy
inter se,
I can see no reason why
this principle should not apply to matters of public law as well.
Conversely, if a court has the discretion
to entertain an appeal
despite the absence of a
lis
, in the above sense there seems
to be no reason in principle why this discretion should not also
extend to litigation between two
private individuals as well.
However, in the view that I hold regarding the outcome of this
matter, it is unnecessary to resolve
these questions. I will
assume in favour of the appellant, without deciding, that this Court
has a discretion to entertain the
instant appeal under s 21A.
[8]
The appellant found authority for its
contention, that this appeal should be considered on its merits, in
Cape Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA)
which was, according to the appellant, entertained and decided by
this Court on facts similar to those under present consideration.
I
do not agree that the facts of the two matters are similar. The
vital distinction is that in the
Bakkerud
case the respondent
abided the decision of this Court (see 1054 A-C of the report). If
the appeal was unsuccessful she would therefore
be entitled to
payment of the judgment debt. If it was successful she would not.
Consequently, she had a real and substantial
interest in the outcome
of this Court's decision even though she elected not actively to
participate in the appeal. In this matter
the respondent has no
such remaining interest. Whether the appeal is successful or not
will make no difference to her whatsoever.
She has effectively
abandoned the judgment in her favour. It is this total lack of
interest on the part of respondent in the
outcome of the appeal and
the absence of any remaining dispute between the parties that weighs
heavily against this Court exercising
its discretion in favour of
entertaining the appeal on its merits.
[9]
The appellant's contention as to why the
Court should, despite these
weighty considerations, entertain the appeal, was that
it was launched as a matter of principle with the purpose of causing
the precedent
established by the judgment of the Court
a quo
to be set aside. Should the appellant allow this precedent to
stand, so the argument went, the appellant and other local
authorities
would be obliged to fit hinges to all manhole covers
under their control, which they simply cannot afford.
[10]
The short answer to this contention is, in
my view, that it is largely unfounded. The decision by the Court
a
quo
which forms the subject of the appellant's complaint is not
definitive of the appellant's general legal duty. The authority of
the decision is confined to the proposition that in the circumstances
disclosed by the evidence in the case, the appellant was under
a
legal duty which it had failed to perform. The decision is not
binding on any other court, including a magistrate's court within
the
area of jurisdiction of the Court
a quo
, except in a case
where the facts are found to be the similar in all material respects.
From a practical point of view, the Court
a quo's
finding of
fact is not of a kind will, by its very nature, create an
insurmountable obstacle for the appellant in future litigation.
What the finding of the Court
a quo
amounted to was that on
the evidence presented at the trial the appellant had failed to
establish that the fixing of hinges to its
manhole covers would
impose an unreasonable financial burden upon it. The appellant's
contention on appeal is, in essence, that
the Court
a quo's
finding is not borne out by the evidence led at the trial. However,
the question whether this contention is supported by an analysis
of
the evidence on record will be of no consequence in any future case.
If the appellant should in a future case produce specific
and
properly motivated evidence to the effect that the affixing of hinges
to its manhole covers will indeed impose an unreasonable
financial
burden upon it, the result may very well be different. As to future
litigation against other local authorities, the possible
adverse
influence of the Court
a quo's
findings of fact seems to be
even more remote. Whether it is reasonable to require a particular
local authority fix hinges to its
manhole covers, must surely be
decided with reference to all the facts and circumstances pertaining
to that local authority.
[11]
In my view, a further reason for this Court
to refuse to embark on a consideration and a decision of the appeal
on its merits, assuming
that there is a point of any importance in
the case, is that any such decision will be based on argument heard
only from one side.
As was pointed out in
Western Cape Education
Department and Another v George
1998 (3) SA 77
(SCA) 84 E (also a
case where a point of principle was sought to be argued):
'...[I]t is desirable that any judgment of this Court be the product
of thorough consideration of,
inter alia
, forensically tested
argument from both sides on questions that are necessary for the
decision of the case.'
[12]
For these reasons and in the exercise of
this Court's discretion under
s 21 A of the Supreme Court Act the appeal is dismissed
with costs.
________________________
FDJ BRAND
JUDGE OF APPEAL
CONCURRED
:
HOWIE
JA
MARAIS
JA
FARLAM
JA
NUGENT
JA