About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2003
>>
[2003] ZACC 23
|
|
Municipality of Plettenberg Bay v Van Dyk and Co Inc (CCT42/03) [2003] ZACC 23; 2004 (2) BCLR 113 (CC) (24 November 2003)
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 42/03
THE
MUNICIPALITY OF PLETTENBERG
BAY
Applicant
versus
VAN
DYK & CO
INC
Respondent
Decided
on: 24 November 2003
JUDGMENT
THE COURT:
[1] The applicant applies to this Court for leave to
appeal against a judgment of
the
High Court in Cape Town (‘the High Court’) ordering the
applicant to pay
the
respondent R69 684-74. The applicant failed to comply with rule
18(2)
[1]
before launching its application for leave to
appeal. The respondent opposes the
application
and
relies
amongst
other
contentions
on
the
applicant’s
failure
to
comply
with
rule 18(2). We called for written argument on
this issue and, having considered
the
argument, concluded that the application for leave to appeal should
be
dismissed.
[2] Judgment was given by the High Court on a claim for
services rendered by
the
respondent to the applicant. It is not disputed that the services
were rendered, that the applicant accepted the benefits of
such
services, or that the charges made
were
reasonable.
The
applicant’s
defence
is
that
the
person
who
gave
instructions
to
the respondent
to
render
such
services
did
not
have
authority
to
do
so.
The
High
Court held that such person had ostensible
authority to bind the applicant and, basing itself on the rule in
Turquand
,
[2]
held that the applicant was estopped from denying authority. The High
Court considered it unnecessary to deal with an alternative
defence
based on ratification.
[3]
The
applicant
asserts
that
the
contract
that
its
employee
entered
into
with
the
respondent
was
a
nullity.
It
attaches
weight
in
this
regard
to
section
58(1)
of
the Municipal Ordinance 20 of 1974 (Cape) which
requires a special resolution to be passed
by
the
Council
when
it
delegates
powers
to
employees.
There
was
no
such
resolution authorising the employee’s actions in the present
case and it was
common cause
that the employee concerned lacked actual authority to instruct the
respondent
to render
professional services to the
applicant.
[4]
The
applicant
contends
that
in
these
circumstances,
and
in
the
setting
of
our
Constitution, the doctrine of estoppel has no application, and that
the rule in
Turquand
cannot
be relied upon to render lawful that which in fact is unlawful. It
also contends that the conduct of its employees and councillors
relied on by the respondent did not give rise to an estoppel, or to
ratification of the instructions given to the respondent.
[5]
We express
no opinion on the merits of the dispute
between
the applicant and the respondent.
Although
the issues are of substance, and no doubt of importance to all local
authorities, the applicant has not complied with the
rules of this
Court concerning appeals which were in force at
the time this application was brought.
[3]
[6] Rules 18(2) and 18(6) required the applicant to
apply for a certificate from the High Court as to whether or not the
matter
is one of substance on which a ruling by this
Court
is
desirable,
whether
the
evidence
on
record
is
sufficient
to
enable
this Court
to
dispose
of
the
matter,
and
whether
there
is
a
reasonable
prospect
that
the appeal will succeed. The applicant failed to
apply for a
certificate.
[7]
In
its
application
for
leave
to
appeal
to
this
Court
it
seeks
condonation
of
its
failure to do so. The grounds on which it asks for condonation are
that the High Court had
refused
its
application
for
leave
to
appeal
to
the
Supreme
Court
of
Appeal,
and that
in
the
light
of
such
decision,
it
was
inevitable
that
the
High
Court
would
have
provided a negative certificate. The applicant goes on to aver that
in the circumstances it would be a waste of time and money
to follow
the
procedure prescribed by
rule 18(2) and that its failure to do so should in these
circumstances
be condoned.
[8]
The applicant has not established a case for condonation. It
deliberately chose not to comply with rule 18(2) because it
considered
that the rule served no purpose
in
the
circumstances
of
this
case.
We
are
not
persuaded
that
compliance
with
the
rule
would have served no purpose. One of the matters that has to be
certified by the
High Court
is whether or not the evidence is sufficient to enable this Court to
dispose of
the matter. The
applicant avers that this can be done, but the respondent denies
this.
That is relevant to the
question whether or not leave to appeal should be granted, and is a
matter which would have been dealt with
in a High Court certificate.
Moreover,
the respondent
alleges
in
its
answering
affidavit
that
an
argument
based
on
the Constitution was not addressed in the High
Court. The applicant in its replying affidavit says that “nowadays
one cannot
divorce oneself from the Constitution” and it has
no
doubt
that
the
High
Court
decided
the
matter
“against
the
backdrop
of
the
Constitution, and took into account the spirit, purport and objects
of the Bill of
Rights which
they were obliged to do in terms of section 39(2) of the
Constitution”.
[9]
H
ad
a
certificate
been
applied
for,
the
High
Court
would,
however,
have
been obliged to address this dispute pertinently.
Although there is reference in the judgment of the High Court to
public law and
the changed status of local authorities under our new
constitutional order, it is not apparent from the judgment whether
the arguments
raised
by
the
applicant
in
the
present
application
were
advanced
in
the High Court and this Court does not have the
benefit of the views of the High Court
on
those arguments.
[10]
But
apart
from
this,
and
more
importantly,
there
are
no
good
reasons
why
a
deliberate
non-compliance
with
a
rule
of
court
should
be
condoned.
While
the
rule exists, it is the applicant’s
obligation to comply with its terms, and not to question
its relevance and ignore it as being of no value.
[11]
The applicant has referred to a number of cases in which this Court
has condoned non-compliance with its rules. It is not necessary
to
deal with these cases in this judgment. Each depended upon its own
facts. In none of these cases was leave to appeal
granted
in
circumstances
where
there
had
been
a
conscious
and
deliberate decision not to comply with the
rules.
[12]
This is not a case in which there has been a serious infringement of
a fundamental
right.
We
are
concerned
here
with
a
money
judgment
for
services
that were
admittedly
rendered
and
from
which
the
applicant
benefited.
There
was
no
obstacle
in
the
way
of
the
applicant’s
complying
with
rule
18(2),
nor
any
urgency
which required the applicant to launch its application without doing
so. In the circumstances of this case there is no compelling
reason
for us to condone a deliberate decision by the applicant to ignore
the rules of this Court, and we decline to do
so.
[13] The respondent asks that the applicant be required
to pay the costs of the application on the scale as between attorney
and
client. This is because of the deliberate non-compliance with the
rules. We consider that it is sufficient to deny the application
on
those grounds, and to require the applicant to pay the costs of the
application. There is no reason to penalise the applicant
further
through a special order as to costs. The application is accordingly
dismissed with costs.
Chaskalson CJ, Langa DCJ, Ackermann J, Madala J, Mokgoro
J, Moseneke J, Ngcobo J, O’Regan J; Sachs J and Yacoob J
[1]
Rule 18(2) of the Rules of the Constitutional Court provides:
“
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.”
[2]
Royal British Bank v Turquand
[1856] EngR 470
;
(1856) 119 E.R. 886
which is referred
to with approval in Mine Workers’ Union v J J Prinsloo and
Others
1948 (3) SA 831
(A) 845 and National and Overseas
Distributors Corporation (Pty) Ltd v Potato Board 1958 (2) SA 473
(A) 480.
[3]
Rule 18 has since been amended and with effect from 1 December 2003
a certificate from the High Court will no longer be required.