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[2013] ZAWCHC 162
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South African Land Arrangements CC and Others v Nedbank Ltd (A28/13) [2013] ZAWCHC 162 (29 October 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
No
A28
/13
In the matter between:
SOUTH AFRICAN
LAND ARRANGEMENTS CC
.................
First
appellant
GUIDO LOUIS MARC
MARIEN
..........................................
Second
appellant
ANNE JOSEPHA
LOUIS DELAET
.........................................
Third
appellant
and
NEDBANK
LIMITED
..........................................................................
Respondent
____________________________________________________________________
JUDGMENT – leave to
appeal
delivered 29 october 2013
____________________________________________________________________
GRIESEL J:
On
19 September 2013 we dismissed the appellants’ appeal against
the magistrate’s order granting summary judgment
in favour of
the respondent herein. The appellants now seek leave to appeal
against our order.
The first question that arises,
is whether this court has the necessary jurisdiction to deal with
the application for leave to
appeal in the light of the provisions
of s 16(1)(b) of the new Superior Courts Act, 10 of 2013 (‘the
Act’),
which provides that (subject to certain irrelevant
exceptions) ‘an appeal against any decision of a Division on
appeal
to it, lies to the Supreme Court of Appeal
upon special
leave having been granted by the Supreme Court of Appeal
’
(emphasis added).
Section
52(1) of the Act provides (again, subject to an exception which is
irrelevant for present purposes) that ‘proceedings
pending in
any court at the commencement of this Act, must be continued and
concluded as if this Act had not been passed’.
Section 52(2),
in turn, provides:
‘
Proceedings
must, for the purposes of this section, be deemed to be pending if,
at the commencement of this Act, a summons had been
issued but
judgment had not been passed.’
The
Act came into operation on 23 August 2013. The appeal which forms
the subject of the present application was concluded when
judgment
was passed on 19 September 2013. The subsequent proceedings,
i.e. the application for leave to appeal against our
judgment,
were only launched on 3 October 2013 – well after the Act
commenced. On a plain reading of s 52, therefore,
we are
satisfied that the present proceedings were not pending at the
commencement of the Act, with the result that they are
governed by
the provisions of s 16(1)(b). It follows that this court does
not have jurisdiction to hear the present application.
This
conclusion is also supported by the rule of interpretation that
statutes which deal with matters of procedure (as does s 16(1)(b))
are of necessity both prospective
and
retrospective in
operation.
1
Even
if we were to err in coming to this conclusion, and in the event of
the matter going further, we wish to state that we would
in any
event have dismissed the application for leave to appeal for the
reasons stated in the main judgment.
Order
:
For
the reasons set out above, it is ordered that the present
application for leave to appeal is struck from the roll with costs.
B M GRIESEL
Judge of
the High Court
SAMELA J: I
agree.
M I SAMELA
Judge of the
High Court
1
GE
Devenish
Interpretation of Statutes
p 192 and the authorities
cited therein. See also 25
Lawsa
(2 ed) para 341.