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[2003] ZACC 6
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Wallach v High Court of South Africa (Witwatersrand Local Division) and Others (CCT2/03) [2003] ZACC 6; 2003 (5) SA 273 (CC) (4 April 2003)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 2/03
PETER SIEGWART WALLACH Applicant
versus
THE HIGH COURT OF SOUTH
AFRICA First Respondent
(Witwatersrand Local Division)
THE REGISTRAR
OF DEEDS (Pretoria) Second Respondent
THE MINISTER OF JUSTICE Third
Respondent
AND CONSTITUTIONAL DEVELOPMENT
Decided on : 04 April
2003
SUMMARY JUDGMENT
THE COURT:
[1]
This application is for
direct access under Rule 17
[1]
of the
rules of this Court. It is brought by Mr Peter Siegwart Wallach (the
applicant), litigating on his own behalf. He also applies
for condonation for
the late filing of this application. None of the respondents oppose either
application. The application for
condonation sets out the reasons for the delay
in making this application. We consider it appropriate to condone the late
filing
of the application although the reasons for the delay are not wholly
satisfactory. It is not in the interests of justice to be overly
technical in
this case, more particularly because the applicant is not represented. In
addition, as will appear from the order in
relation to the application, no one
is prejudiced by this application.
[2]
Briefly, the facts are as
follows. The estate of the applicant was sequestrated on 5 October 1990. Ten
years later, on 5 October
2000, he was rehabilitated by the effluxion of time in
terms of section 127A
[2]
of the
Insolvency Act 24 of 1936 (the
Insolvency Act). Prior
to the sequestration of
his estate, the applicant was the registered owner of certain immovable
property, a farm on which he now
resides. Upon his rehabilitation, the
immovable property remained unrealised and was still registered in his name. No
caveat had
been noted against it. Subsequently, however, the Master of the High
Court and the former trustees of the insolvent estate caused
a caveat to be
noted by the Registrar of Deeds against the property, in terms of the provisions
of
section 18B
of the
Insolvency Act. In
May 2002, the applicant initiated
motion proceedings before Claasen J in the Witwatersrand Local Division of the
High Court, in which
he demanded that the caveat noted against his immovable
property be removed. Claasen J dismissed his application with
costs.
[3]
[3]
After considering the
application, we formed a clear view that it was not in the interests of justice
for the application to be granted
and that it should therefore be dealt with
summarily in terms of
Rule 17(5)
[4]
of
the rules of this Court. Taking into account that applicant is litigating on
his own behalf, we consider it appropriate to briefly
set out the reasons for
our decision.
[4]
The application proceeds on
the basis that the order of the High Court dismissing the application
effectively violates the applicant’s
right to property under section 25(1)
of the Constitution and unlawfully exposes him to the application of the
Insolvency Act, thereby
violating his right to the equal protection of the law
in terms of section 9(1) of the Constitution.
[5]
In his notice of motion,
citing the High Court as a respondent, the applicant applies for an order
“[d]eclaring the judgment
made by the ... High Court ... unconstitutional
and invalid” thereby seeking to nullify that judgment. The application is
misconceived. When the correctness of a judgment is challenged, the remedy is
to lodge an appeal and not to apply to declare the
judgment a nullity. The
appeal must then be pursued through the normal process of an application to the
High Court for leave to
appeal.
[5]
As
appears from his affidavit, the applicant apparently had lodged such an
application in the High Court, but suspended it when
he launched this
application for direct access. It is our view that it was inappropriate to have
launched an application for direct
access at this
stage.
[6]
Even if we were to deal with
this application as an application for leave to appeal directly to this Court
against the order of the
High Court under Rule 18 of the rules of this
Court,
[6]
the application is
defective: the applicant has not applied for a Rule 18 certificate as required
and there is no explanation for
that failure. Whereas in the High Court
proceedings, the trustees of the insolvent estate and the Master of the High
Court who opposed
his application had been cited as respondents, applicant fails
to join them as respondents in these proceedings. As appears from
the notice of
motion, papers had been served on the attorneys of the trustees of the insolvent
estate and on the Master of the High
Court. But that does not make them parties
to these proceedings. They have a direct and substantial interest in the relief
sought
by the applicant and in the outcome of this matter. It is therefore
required that they be properly cited as respondents in the
application.
[7]
Moreover, the issue before
this Court concerns the proper interpretation and application of provisions of
the
Insolvency Act,
[7
]
a matter which
should be considered in the first instance by the Supreme Court of Appeal. Even
if the applicant had followed the
correct procedure to bring this application,
the issues concerned do not make it an appropriate matter for a direct appeal to
this
Court.
[8]
For the reasons stated here,
it is not in the interests of justice for the application to be
granted.
[9]
The following order is
made:
(i)
The application for condonation is
granted;
(ii)
The application for direct
access, alternatively for leave to appeal, is
dismissed.
(iii)
There is no order as to
costs.
By the Court: Chaskalson CJ, Langa DCJ, Ackerman J, Goldstone J, Madala J,
Mokgoro J, Moseneke J, Ngcobo J, O’Regan J, and Yacoob
J.
[1]
Rule 17
of the Rules of the
Constitutional Court provides:
“Direct access in the interests
of justice
(1) An application for direct access as contemplated in section 167(6)(a) of
the Constitution shall be brought on notice of motion
which shall be supported
by an affidavit which shall set forth the facts upon which the applicant relies
for relief.
(2) An application in terms of subrule (1) shall be lodged with
the registrar and served on all parties with a direct or substantial
interest in
the relief claimed and shall set out –
(a) the grounds on which it is contended that it is in the interests of
justice that an order for direct access be granted;
(b) the nature of the relief sought and the grounds upon which such relief is
based;
(c) whether the matter can be dealt with by the Court without the hearing of
oral evidence and, if it cannot,
(d) how such evidence should be adduced and conflicts of fact resolved.
(3) Any person or party wishing to oppose the
application shall, within 10 days after the lodging of such application, notify
the
applicant and the registrar in writing of his or her intention to
oppose.
(4) After such notice of intention to oppose has been received
by the registrar or where the time for the lodging of such a notice
has expired,
the matter shall be disposed of in accordance with directions given by the
President, which may include -
(a) a direction calling upon the respondents to make written submissions to
the Court within a specified time as to whether or not
direct access should be
granted; or
(b) a direction indicating that no written submissions or affidavits need be
filed.
(5) Applications for direct access may be dealt
with summarily, without hearing oral or written argument other than that
contained
in the application itself: Provided that where the respondent has
indicated his or her intention to oppose in terms of subrule (3),
an application
for direct access shall be granted only after the provisions of subrule (4)(a)
have been complied with.”
[2]
Section 127A provides as
follows:
“(1) Any insolvent not rehabilitated by the court within a period of ten
years from the date of sequestration of his estate,
shall be deemed to be
rehabilitated after the expiry of that period unless a court upon application by
an interested person after
notice to the insolvent orders otherwise prior to the
expiration of the said period of ten years.
(2) If a court issues an order contemplated in subsection (1), the registrar
shall transmit a copy of the order to every officer
charged with the
registration of title to any immovable property in the Republic.
(3) Upon receipt of the order by such officer he shall enter a caveat against
the transfer of all immovable property or the cancellation
or cession of any
bond registered in the name of or belonging to the
insolvent.
(4) The caveat shall remain in force until the
date upon which the insolvent is rehabilitated.”
[3]
Wallach v Registrar of
Deeds, Pretoria and Others
unreported judgment of the WLD, case no 8855/02,
at page 12 lines 10-15
[4]
See note 1
above.
[5]
Section 20(1) of the
Supreme Court Act 59 of 1959 provides:
“(1) An appeal from a judgment or order of the court of a provincial or
local division in any civil proceedings or against
any judgment or order of such
a court given on appeal shall be heard by the appellate division or a full
court, as the case may be.”
Appeals in terms of this
section must be pursued in terms of the provisions of Rule 49 and 49A of the
Uniform Rules of Court promulgated
in terms of section 43 of the Supreme Court
Act.
[6]
The relevant provisions of Rule
18 of the Constitutional Court Rules provide as follows:
“
Appeals
from courts other than the Supreme Court of Appeal
(1) The procedure set out in this rule shall be followed in an application for
leave to appeal directly to the Constitutional Court
where a decision on a
constitutional matter, other than an order of constitutional invalidity under
section 172(2)(a) of the Constitution,
has been given by any court other than
the Supreme Court of appeal irrespective of whether the Chief Justice has
refused leave or
special leave to appeal.
(2) A litigant who is aggrieved by the decision of a court and who wishes to
appeal against it directly to the Court shall, within
15 days of the order
against which the appeal is sought to be brought and after giving notice to the
other party or parties concerned,
apply to the court which gave the decision to
certify that it is in the interests of justice for the matter to be brought
directly
to the Constitutional Court and that there is reason to believe that
the Court may give leave to the appellant to note an appeal
against the decision
on such matter.
[7]
24
of 1936.