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[2014] ZAWCHC 44
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Van Der Merwe and Another v Astrapak Limited and Another (11108/2013) [2014] ZAWCHC 44 (28 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: 11108/2013
DATE:
28 MARCH 2014
In the matter
between:
JOHANNES GIDEON
FRANCOIS VAN DER MERWE
...........................
First
Appellant
…
............................................................................................................
(First
Respondent in
…
........................................................................................................................
court
a quo)
LAMPAC CC t/a
PACKAGING WORLD
................................................
Second
Appellant
…
......................................................................................................
(Second
Respondent in
…
.......................................................................................................................
court
a quo)
v
ASTRAPAK
LIMITED
.............................................................................
First
Respondent
…
.............................................................................................................
(First
Applicant in
…
.....................................................................................................................
court
a quo)
ASTRAPAK
MANUFACTURING HOLDINGS (PTY) LTD
t/a KNILAM
SAFLITE
PACKAGING
.................................................
Second
Respondent
…
........................................................................................................
(Second
Applicant in
…
.....................................................................................................................
court
a quo)
Court: Justice
Ndita, Justice Le Grange et Justice Cloete
Heard: 14 March
2014
Delivered: 28
March 2014
JUDGMENT
CLOETE J:
Introduction:
[1] This matter came
before us as an automatic appeal in terms of s 18(4)(ii) of the
Superior Courts Act 10 of 2013 (‘the
new Act’) against an
order granted by Davis J on 4 December 2013 (‘the interim
execution order’), which put into
effect his previous order of
28 October 2013 pending the finalisation of the appeal against the
last-mentioned order. For the sake
of convenience the parties will be
referred to herein as they were in the court a quo.
[2] The background
is as follows. On 12 July 2013 the applicants launched an urgent
application (‘the initial application’)
to interdict and
restrain the first respondent from being employed by the second
respondent, or in any other similar capacity,
in breach of a
restraint of trade agreement for a period of 18 months from 5
December 2012. Similar relief was sought against the
second
respondent which had employed the first respondent.
[3] The initial
application was opposed. On 28 October 2013 Davis J granted the
relief sought by the applicants together with an
order that the first
respondent bear the costs thereof.
[4] On 11 November
2013 the respondents filed a notice of application for leave to
appeal against the order. On 14 November 2013
the applicants launched
an application in terms of rule 49(11) of the uniform rules of court
(‘the counter-application’)
for the interim execution
order.
[5] Both the
application for leave to appeal and counter-application were opposed,
and were argued simultaneously before Davis J
on 4 December 2013. He
granted the respondents leave to appeal, but also granted the interim
execution order. He further ordered
that the costs of both
applications would be costs in the appeal.
[6] On 6 January
2014 the respondents noted an appeal to the full bench of this
division against the interim execution order, purportedly
in terms of
s 18(4)(ii) of the new Act. The aforementioned subsection is a new
provision which did not appear in the previous Supreme
Court Act 59
of 1959 (‘the old Act’).
[7] The subsection
provides that, where a court implements the operation of its order
pending an appeal, the aggrieved party has
an automatic right of
appeal to the next highest court. It was as a consequence of the
aforegoing that the matter came before us.
The issues:
[8] The question
that arises is whether the respondents were entitled to rely upon s
18(4)(ii) in noting and prosecuting the appeal.
Two issues arise from
this question. The first is whether an appeal of this nature can be
brought in proceedings which commenced
on motion as opposed to by way
of action. The second is what is meant by ‘pending proceedings’
in s 52 of the new Act.
Applicability to
appeals in respect of proceedings commenced on motion:
[9] S 52 of the new
Act provides that-
‘52. Pending
proceedings when Act commences
(1) Subject to
section 27, proceedings pending in any court at the commencement of
this Act, must be continued and concluded as
if this Act had not been
passed.
(2) 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.
(3) Subsections (1)
and (2) are also applicable, with the changes required by the
context, in respect of proceedings pending on
the date when a notice
contemplated in section 50(2) comes into operation.’
[S 27 and s 50(2) of
the new Act are not relevant for present purposes.]
[10] The new Act
came into operation on 23 August 2013, that is, after the initial
application had been instituted on 12 July 2013,
but before Davis J
had handed down judgment on 28 October 2013. Although s 52(2) refers
to a ‘summons’ having been
issued, and ‘summons’
is not defined in the new Act, it is my view that for the reasons
that follow, it must have been
the intention of the legislature that
the aforementioned subsection would apply equally to proceedings
instituted by way of motion.
[11] The relevant
provisions of s 1 of the new Act are as follows:
1. Definitions
In this Act, unless
the context otherwise indicates---
“appeal”
in Chapter 5, does not include an appeal in a matter regulated in
terms of the Criminal Procedure Act, 1977
(Act No. 51 of 1977), or in
terms of any other criminal procedural law…
“plaintiff”
includes any applicant or other party who seeks relief in civil
proceedings;’
[12] A “plaintiff”
thus includes ‘any applicant who seeks relief in civil
proceedings’. An applicant is
a person or entity instituting
proceedings by way of motion. Further, “appeal” is
defined for purposes of chapter 5
of the new Act (which includes s
18) as excluding appeals governed by Act 51 of 1977 or any other
criminal procedural law. It is
uncertain how criminal appeals
previously governed by the old Act are to be dealt with, given the
repeal of the old Act in its
entirety. This however is not relevant
to the issues before us. The effect is that all other appeals are
subject to s 18, and thus
included are appeals which had their origin
in motion proceedings.
[13] This
interpretation is consistent with two of the established presumptions
relating to the interpretation of statutes. The
first is that
statutes should be construed so as not to sanction discrimination and
inequality. The second is that where more than
one interpretation of
a provision is possible, the most just and equitable interpretation
should be preferred: see LAWSA 2nd ed
vol 25 part I at 321 para 334.
In addition, and as held by the Supreme Court of Appeal in Hoban v
Absa Bank Ltd t/a United Bank
and Others
1999 (2) SA 1036
(SCA) at
para [20]:
‘ “Context”
includes the entire enactment in which the word or words in
contention appear…
As remarked by E
Cameron in Joubert (ed) The Law of South Africa vol 27 at 207 para
229,
“…
context does no more than reflect legislative meaning which in turn
is capable of being expressed only through words
in context”.’
Meaning of ‘pending
proceedings’:
[14] The phrase
‘pending proceedings’ is accorded a particular meaning in
s 52 of the new Act. This is that in all cases
where proceedings had
been instituted but judgment had not yet been passed on the date of
commencement of the new Act, such proceedings
are deemed to be
pending proceedings which must be continued and concluded in
accordance with the old Act.
[15] The
counter-application resulting in the interim execution order of 4
December 2013 followed from ‘pending proceedings’
as
defined in terms of s 52(2). It is self-evident that the
counter-application was only launched because of the respondent’s
application for leave to appeal the order of 28 October 2013. If no
such application for leave to appeal had been brought, the
order of
28 October 2013 would not automatically have been suspended.
[16] The respondents
contend that the application for leave to appeal and
counter-application constituted new proceedings which
were thus not
‘pending’ when the new Act came into effect. They rely on
various authorities in support of their contention
that s 18 of the
new Act is thus applicable to this appeal. In my view, all are
distinguishable from the present matter.
[17] The first
authority relied upon is Vermaak and Others v Minister of Water and
Environmental Affairs of the Republic of South
Africa and Others 2013
JDR 2088 (ECP). In that case the court was dealing with an
application for leave to appeal launched on the
date of commencement
of the new Act, where the judgments which were sought to be appealed
against had been delivered on 19 March
2013 and 1 August 2013
respectively, i.e. before the commencement thereof. There were thus
no proceedings pending within the meaning
of s 52 when the new Act
came into operation, and the court was entitled to deal with the
application for leave to appeal under
the new Act.
[18] The second
authority relied upon is South African Land Arrangements CC and
Others v Nedbank Ltd (A28/13)
[2013] ZAWCHC 162
(29 October 2013). In
that case leave to appeal was sought against an order of a full bench
sitting as a court of appeal from a
decision in the magistrate’s
court handed down prior to the commencement of the new Act. The full
bench handed down judgment
on 19 September 2013. The court found, in
accordance with s 16(1)(b) thereof, that it had no jurisdiction to
entertain an application
for leave to appeal its order.
[19] The third
authority relied upon is Absa Bank Ltd v Mkhize and Another; Absa
Bank Ltd v Chetty; Absa Bank Ltd v Mlipha (716/12)
[2013] ZASCA 139.
In that case judgment in the court a quo was delivered on 6 July
2012. The appeal to the Supreme Court of Appeal was heard on 22
August 2013, the day before the new Act came into operation. The
majority of the court did not specifically deal with this aspect,
but
the minority held in para [23] at fn [15] that it was bound by the
provisions of the old Act, as the appeal proceedings were
pending at
the time that the new Act came into operation. From this it may be
gleaned that it was the view of the minority that
proceedings, for
purposes of s 52 of the new Act, are deemed to be pending until
finalised or concluded on appeal.
[20] In Minister of
Health and Others v Treatment Action Campaign and Others (No.1)
[2002] ZACC 16
;
2002
(5) SA 703
(CC) the Constitutional Court dealt with an application
for leave to appeal against an interim execution order pending an
appeal.
At para [11] the court held that:
‘Moreover, as
has been indicated above, an order to execute pending an appeal is an
interlocutory order. As such, it is an
order which may be varied by
the court which granted it in the light of changed circumstances. To
the extent, therefore, that a
litigant considers that new
circumstances have arisen which would impact upon the court’s
decision to order execution pending
appeal, the litigant may approach
that court once again to seek a variation or, where appropriate,
clarification of the order.’
[21] In the
Treatment Action Campaign case the court was obviously not dealing
with the new Act, and in particular, s 18 as read
with s 52 thereof.
However, the quoted portion of the judgment highlights the nature of
an order to execute pending appeal, namely
that it is an
interlocutory order, albeit that it is not one pending judgment of a
court of first instance but rather one pending
an appeal.
[22] Herbstein and
Van Winsen: The Civil Practice of the High Courts of South Africa 5th
ed vol 2 at 1204 define an interlocutory
order as:
‘an order
granted by a court at an intermediate stage in the course of
litigation, settling or giving directions with regard
to some
preliminary or procedural question that has arisen in the dispute
between the parties.’
[23] In Pretoria
City Council v Meerlust Investments (Pty) Ltd
1962 (1) SA 321
(AD)
the court was called upon to interpret the meaning of the words ‘to
proceed to the final end and determination thereof’
contained
in a resolution authorising an attorney to represent one of the
parties. The court held at 326E-G that the attorney had
been
authorised to note an appeal but that a further mandate was required
for the appeal to be prosecuted in the higher court.
It must
immediately be pointed out however that the court was dealing with
the position which previously pertained, namely when
attorneys could
only institute and finalise actions or applications on behalf of
their clients when the client had provided a power
of attorney to
that effect, and it was in that context that the court held as it
did.
[24] In F. O.
Kollberg (Pty) Ltd v Atkinson’s Motors Ltd
1970 (1) SA 660
(CPD) the court, in considering the meaning of a ‘final
judgment’ for purposes of rule 8(11) of the uniform rules of
court held at 662F-H that:
‘I do not
think that the expression “final judgment” by itself
excludes the possibility of rescission or variation.
Judgments which
might appropriately be called final in a particular context may
nevertheless be subject to appeal, review or rescission
under the
common law or under the Rules of Court. In my view the exact effect
of the adjective “final” when applied
to a judgment must
in all cases be determined in its context in accordance with ordinary
principles of construction before any
conclusion could be reached as
to the applicability of a provision such as Rule of Court 27.’
[25] A further
indication that proceedings are not necessarily concluded upon the
handing down of a judgment by a court of first
instance is to be
found in Els v Weideman
2011 (2) SA 126
(SCA) at para [34] where the
court held that:
‘[34] I do not
agree that, because contempt proceedings are a continuation of an
already instituted proceeding or “no
more than a step in the
execution of a judgment” (James v Lunden), the judgment must be
enforced in the court which granted
the original order. When a party
leaves a High Court with an order in his favour (not obtained ex
parte) those proceedings have
been effectually completed (subject to
appeal or, in the case of an interim order, its confirmation).’
(my emphasis)
[26] Having regard
to these authorities as well as the definition of ‘pending
proceedings’ in s 52, I am compelled to
conclude that the
interim execution order formed a continuation of proceedings pending
for purposes of the applicability or otherwise
of the new Act. As
such any appeal proceedings arising therefrom fell to be concluded
‘as if [the new] Act had not been passed’.
Conclusion:
[27] It is for these
reasons that I am of the view that the respondents’ appeal is
not properly before this court.
[28] In the result
the following order is made:
The appeal is struck
from the roll with costs.
J I CLOETE
Judge of the High
Court
We concur.
T C NDITA
Judge of the High
Court
A LE GRANGE
Judge of the High
Court