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[2014] ZAWCHC 143
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Mattcon Contruction CC v E K and Another (A 565/2013; A 351/2014) [2014] ZAWCHC 143 (16 September 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No’s: A 565/2013 & A 351/2014
DATE:
16 SEPTEMBER 2014
In the matter
between:
MATTCON
CONSTRUCTION CC
.....................................
Appellant
And
E
K
.........................................................................
First
Respondent
J
K
.....................................................................
Second
Respondent
Court: Griesel
et Cloete JJ
Heard: Friday,
12 September 2014
Delivered:
Tuesday, 16 September 2014
JUDGMENT
CLOETE J:
Introduction
[1] The issues in
this appeal are the following. First, whether the order of the
magistrate dismissing the appellant’s application
in terms of
rule 24(7) of the magistrate’s court rules (‘the first
order’) is appealable. Second, if the first
order is
appealable, whether the noting of an appeal against the first order
automatically suspended the further proceedings in
the court a quo
pending determination of the appeal. Third, if the noting of the
appeal did not automatically suspend the further
proceedings, whether
the trial court correctly refused the appellant’s subsequent
application for a postponement of the trial
(‘the second
order’). Fourth, whether the magistrate’s court was
competent to hear and dismiss the respondents’
application to
set aside the notices of appeal filed by the appellant in respect of
the first and/or second orders (‘the
third order’).
Fifth, whether the appellant’s appeal against the third order
is properly before us.
Background
[2] The parties have
been embroiled in this litigation since January 2012 when the
appellant, which is a building business, issued
summons against the
respondents for payment of R39 429.63, being monies allegedly owing
contractually for renovations and alterations
to their home in
Durbanville. The respondents defended the action, contending that the
appellant had failed to conduct the building
work correctly, and
filed a counterclaim for damages allegedly suffered as a result in
the sum of R160 078. Each of the parties
appointed an expert. The
report of the respondents’ expert, Mr Mitchell, was annexed to
their claim in reconvention filed
on 16 October 2012. It is a
comprehensive report detailing the apparent defects in the building
work as well as the cost of remedying
the defects in accordance with
a calculation made by a quantity surveyor. Although that portion of
the report which contains the
quantity surveyor’s calculations
is not included in the appeal record, it is not disputed by the
appellant that such calculations
were before the court a quo when the
first order was made, nor is it disputed that the relevant expert
notice and summary (which
are also absent from the record) had been
filed timeously by the respondents.
[3] The appellant’s
notice and summary of its expert, Mr Nolan, was filed on
approximately 19 March 2013. The summary reflects
that on 26 February
2013 Mr Nolan had inspected the building work and had also had
recourse to the report of Mr Mitchell. It contains
Mr Nolan’s
opinions and records that he calculated the cost of the remedial work
to be in a total sum of R5000, excluding
however minor repairs in the
form of replacing some tiles, repairs to a few steps, and completion
of work to a corner of the wall
in the main bedroom. Mr Nolan’s
calculation of the cost of the last mentioned remedial work is not
reflected in his expert
summary.
[4] The trial was
initially set down for hearing by agreement on 18, 19 and 20 June
2013. The magistrate was ill and unable to hear
the matter and it was
thus postponed by agreement to 17 and 18 September 2013. On 16 July
2013 the appellant’s attorney telephonically
requested the
respondents’ attorney to obtain permission from his clients to
conduct a further inspection of the building
work. This request was
refused by the respondents on 23 July 2013 on the basis that the
premises where the building work had been
conducted had already been
made available to the appellant in February 2013 for this purpose,
and that no reasons had been provided
for the need for a further
inspection.
[5] On 1 August 2013
the appellant served a notice on the respondents in terms of rule
24(6) of the magistrate’s court rules,
formally requiring them
to again make the building work available for inspection. The reason
provided in the notice was that a
quantity surveyor had been
appointed by the appellant to calculate the extent and cost of the
work conducted by the appellant itself.
No mention was made of any
need to check and/or quantify the remedial work detailed in the
report of the respondents’ expert,
Mr Mitchell. The respondents
again refused, contending that the appellant was in possession of its
own building plans and quotations,
that its expert had in any event
already inspected and assessed the cost of the remedial work
required, and that accordingly the
quantity surveyor appointed by the
appellant already had all of the necessary information and
documentation at his disposal in
order to compile a report.
[6] On 20 August
2013 the appellant launched an application in terms of rule 24(7)(b)
of the magistrate’s court rules to compel
the respondents to
again afford it access to the building work. The application was in
the form of a notice unaccompanied by any
supporting or other
affidavit. Again, the purpose of the inspection was described as
being to enable the appellant’s quantity
surveyor to furnish a
report on the extent and cost of the appellant’s work only. The
respondents filed a lengthy affidavit
in opposition thereto. The
application was ultimately heard on 30 August 2013 and was dismissed
with costs. This is the first order.
[7] On 3 September
2013 the appellant noted an appeal against the first order. On 17
September 2013, being the first day of trial,
the appellant applied
for the postponement of the trial on the ground that an appeal
against the first order was pending. The respondents
opposed the
application, contending that the first order, being of an
interlocutory nature only, was not appealable. The trial
court agreed
with the respondents and on 18 September 2013 dismissed the
appellant’s application for a postponement with
costs. This is
the second order. The appellant’s attorney thereupon withdrew.
The trial proceeded in the appellant’s
absence. The magistrate
granted absolution against the appellant and granted default judgment
in favour of the respondents for
the amount claimed in their claim in
reconvention, together with costs (‘the order on the merits’).
The appellant has
not appealed the order on the merits.
[8] On 19 September
2013 the appellant noted an appeal against the second order. This was
substituted by an amended notice of appeal
dated 7 October 2013. Two
grounds are advanced in such notice, namely that: (a) the trial court
erred in finding that the first
order, not being appealable, did not
automatically suspend the further proceedings in the court a quo; and
(b) the trial court
erred in finding that the appellant had failed to
advance sufficient grounds for a postponement of the trial. However
in reality
the two grounds are essentially one ground, namely that
the trial court should have refused to allow the trial to proceed in
light
of the appeal which had been noted against the first order.
This much is apparent from the two attacks levelled in the amended
notice of appeal itself, which are that: (a) the first order was
final in effect and thus appealable; and (b) it is accepted practice
(so it was contended) that the noting of an appeal automatically
suspends further proceedings, and that for this reason the trial
should have been postponed.
[9] On 16 October
2013 the respondents filed a notice of objection to the amended
notice of appeal in the magistrate’s court,
contending that it
constituted an irregular step in terms of rule 60A(1) of those rules.
The objection was essentially that the
second order was premised on
the first order, which was not in itself appealable. The appellant
did not withdraw its amended notice
of appeal and the respondents
launched an application in the magistrate’s court for the
setting aside of the notice, together
with the setting aside of the
two precursors to that notice, namely the notices of appeal dated 3
September 2013 and 19 September
2013 respectively. The application
was opposed by the appellant and the magistrate, after hearing
argument, granted an order in
favour of the respondents on 22 May
2014. This is the third order. On 12 June 2014 the appellant noted an
appeal against the third
order. The record of proceedings in respect
of the third order (bearing a separate appeal case number) has been
placed before us
by the appellant, apparently for hearing
simultaneously with the appeal against the second order.
Whether the first
order was appealable
[10] There have been
a number of decisions over the years dealing with the difficult issue
of whether an order, whether or not its
technical term is
‘interlocutory’, is appealable. For the sake of brevity,
I will only refer to certain judgments of
the Supreme Court of
Appeal.
[11] In Zweni v
Minister of Law and Order
1993 (1) SA 523
(A) at 532H-533C the court,
referring to various authorities, held that it is the effect of the
order which is the predominant
consideration. In general, an order
will only be appealable if: (a) it has final effect and cannot later
be altered or amended
by the court of first instance; (b) it finally
determines the parties’ rights; and (c) it disposes of at least
a substantial
portion of the relief in the main proceedings. The
court held further that:
‘The fact that
a decision may cause a party an inconvenience or place him at a
disadvantage in the litigation which nothing
but an appeal can
correct, is not taken into account in determining its appealability
(South Cape Corporation (Pty) Ltd v Engineering
Management Services
(Pty) Ltd
1977 (3) SA 534
(A) at 550D-H). To illustrate: the
exclusion of certain evidence may hamper a party in proving his case.
That party may notionally
be able to prove it by adducing other
evidence. In that event an incorrect exclusion would not necessarily
have an effect on the
final result. In deciding upon the
admissibility of evidence a court is not called upon to speculate
upon or divine (with or without
the assistance of the parties) the
ultimate effect of its decision on the course of the litigation.
Should it appear at the conclusion
of the matter that an incorrect
ruling amounted to an irregularity which may have had a material
effect on its outcome, the Court
of appeal may, in adjudicating the
“merits”, set aside the final judgment on that ground
and, in an appropriate case,
remit it back to the trial Court
(Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für
Schädlingsbekämpfung
MBH
1976 (3) SA 352
(A); Caxton Ltd
and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990 (3) SA 547
(A)
at 566C-D).’
[12] In Health
Professions Council of South Africa and Another v Emergency Medical
Supplies and Training CC t/a EMS
2010 (6) SA 469
(SCA) at para [15]
the court, referring to Zweni, remarked that:
‘There have
been many glosses on the principle since. In Moch v Nedtravel (Pty)
Ltd t/a American Express Travel Service
[1996 (3) SA 1
(A) 10F-11C]
Hefer JA said that the three attributes were not cast in stone nor
exhaustive. And in Jacobs and Others v Baumann
NO and Others
[2009
(5) SA 432
(SCA) para 9] this court reiterated the principle laid
down in Zweni, that in considering whether an order is final one must
have
regard to its effect. But the court also stated that even if an
order does not have all three attributes, it may be appealable if
it
disposes of any issue or part of an issue. Conversely, however, even
if an order does have all three attributes it may not be
appealable,
because the determination of an issue in isolation from others in
dispute may be undesirable and lead to a costly and
inefficient
proliferation of hearings.’
[13] In Government
of the Republic of South Africa and Others v Von Abo
2011 (5) SA 262
(SCA) it was held at paras [17] – [18] that:
‘[17]…
It is fair to say that there is no checklist of requirements. Several
considerations need to be weighed up,
including whether the relief
granted was final in its effect, definitive of the rights of the
parties, disposed of a substantial
portion of the relief claimed,
aspects of convenience, the time at which the issue is considered,
delay, expedience, prejudice,
the avoidance of piecemeal appeals and
the attainment of justice. The appealability of the order was not
argued in this court,
hence I am reluctant to decide the peremption
point on that basis alone.
[18] However, it
matters not whether the first order was appealable or whether the
appeal had been perempted. As a matter of logic
the second order
arose from the first order and has no independent existence separate
from the first order. As the second order
was given in consequence of
the first order, and would not nor could have been given if it were
not for the first order, it follows
that if the first order is wrong
in law, the second order is legally untenable. Whether the appellants
were ill-advised not to
appeal against the first order, but rather to
try and comply with it, should not have the unacceptable result that
this court is
held to a mistake of law by one of the parties. I can
put it no better than Jansen JA in Paddock Motors (Pty) Ltd v Igesund
1976 (3) SA 16
(A) at 23F:
“(I)t would
create an intolerable position if a Court were to be precluded from
giving the right decision on accepted facts,
merely because a party
failed to raise a legal point, as a result of an error of law on his
part…” ’
[See also Phillips v
South African Reserve Bank and Others
2012 (7) BCLR 732
(SCA) at
paras [24] – [27].]
[14] The appellant’s
argument is that the first order was final in effect because it was
severely prejudiced thereby. The
prejudice claimed is that the order
precluded it from adducing expert evidence which it considered to be
important to its case.
If it had proceeded with the trial without
leading that evidence, it could not have been seen to complain if at
a later stage it
was unsuccessful on the merits. It was therefore
effectively denied the right to a fair trial.
[15] However when
regard is had to Zweni, the appellant’s argument cannot be
sustained. Its very complaint has been found
by the Supreme Court of
Appeal to have no bearing on whether or not an order is appealable.
Although Zweni was decided before the
advent of our Constitution,
none of the post Constitution decisions to which I have referred have
taken issue with this long-established
principle. It thus still
stands.
[16] Furthermore,
the appellant cannot have it both ways. When confronted in the
magistrate’s court by its failure to support
its rule 24(7)
application on affidavit, its response was that this was not required
because it was nothing more than a simple
interlocutory application
which did not fall within the purview of rule 55(1) of the
magistrate's court rules. So simple was it
apparently that the
appellant did not even deem it necessary to have complied with rule
55(4)(a) which stipulates that:
‘Interlocutory
and other applications incidental to pending proceedings must be
brought on notice, supported by affidavits
if facts need to be placed
before the court, and set down with appropriate notice.’
[17] The appellant
adopted this stance in the knowledge that the application would be
opposed by the respondents; that its own claim
was one based on
contract for payment of an agreed amount; and that the purpose of its
application, as set forth in both the notice
of motion as well as the
notice which preceded it, was to have the building work inspected
again in order to quantify the value
of its own work. On its own
version, the value of its work had been contractually agreed in a
specific sum. In addition, the appellant
already had an expert in the
form of Mr Nolan who had quantified the cost of remedial work, save
for minor work which Mr Nolan
himself had deemed unnecessary to cost.
In these circumstances, the issue of prejudice does not arise in the
consideration of whether
the first order was appealable. This is the
only argument advanced on behalf of the appellant in relation to the
first order.
[18] What is in any
event clear is that the first order was not final in effect. It was
nothing more than an interlocutory order
which could have been
revisited on application by the appellant before, or even during, the
trial if the request for a further
inspection in terms of rule 24(7)
had been properly motivated. That the appellant chose not to do so
cannot be laid at the door
of the respondents. It also cannot be said
that the first order disposed of a substantial portion of the relief
claimed. The appellant
could nonetheless have proceeded with the
trial and relied on the expert evidence of Mr Nolan who, on its own
version, had both
inspected the building work and had insight into
the report of Mr Mitchell prior to conducting his inspection as far
back as February
2013. Put differently, the magistrate’s
dismissal of the rule 24(7) application was nothing more than an
interim order based
on certain specific grounds which it was open to
the appellant to have amended or amplified between the date of the
first order,
being 30 August 2013, and the first day of the trial,
being 17 September 2013.
[19] Given my
finding that the first order is not appealable, it is not necessary
to consider whether the noting of the appeal against
that order
automatically suspended the further proceedings in the court a quo
pending determination of the appeal.
Whether the
second order was correctly granted
[20] It is also not
necessary to dwell on the merits of the appeal against the second
order, given that, as I have said, the real
ground of appeal is that
the trial court should have granted the postponement because of the
appeal which had been noted against
the first order. The first order
was not appealable, and accordingly whether or not an appeal had been
noted was irrelevant. On
the appellant’s own version therefore
no grounds had been advanced which would have justified the granting
of the postponement.
Whether the
magistrate’s court was competent to determine the rule 60A(1)
application
[21] Rule 51(3) of
the magistrate's court rules provides that:
‘An appeal may
be noted within 20 days after the date of a judgment appealed against
or within 20 days after the registrar
or clerk of the court has
supplied a copy of the judgment in writing to the party applying
therefor, whichever period shall be
the longer.’
[22] Rule 51(3) must
be read together with rule 60(5) of the magistrate's court rules,
which stipulates that:
‘Any time
limit prescribed by these rules, except the period prescribed in rule
51(3) and (6), may at any time, whether before
or after the expiry of
the period limited, be extended –
(a) by the written
consent of the opposite party; and
(b) if such consent
is refused, then by the court on application and on such terms as to
costs and otherwise as it may deem fit.’
[Emphasis supplied.
The reference to ‘the court’ is clearly a reference to
the magistrate’s court.]
[23] The respondents
delivered their notice in terms of rule 60A(1) on 16 October 2013.
The application itself was launched on 13
November 2013. Rule
60A(2)(c) stipulates that an application of this nature must be
brought within 15 days of delivery of the notice.
The 15 day period
expired on 6 November 2013, and, as I have said, the application was
only launched on 13 November 2013.
[24] Although the
respondents sought condonation for their non-compliance with the time
limits prescribed by the magistrate's court
rules in respect of the
appellant’s notices of appeal dated 3 September 2013 and 19
September 2013, they did not seek condonation
in respect of their
failure to timeously launch the application to set aside the
appellant’s amended notice of appeal dated
7 October 2013.
[25] It is clear
from a reading of rule 51(3) together with rule 60(5) that the
magistrate’s court has no power to extend
the time limit for
the noting of an appeal. The question which thus arises is whether
the magistrate’s court has the power
to set aside a notice in
which an appeal has been timeously (but erroneously) noted.
[26] Section 84 of
the Magistrate’s Court Act 32 of 1944 (as amended) provides
that:
‘Every party
so appealing shall do so within the period and in the manner
prescribed by the rules; but the court of appeal
may in any case
extend such period.’
[Emphasis supplied.]
[27] In Cloete Bros
(Pty) Ltd v Harding
1954 (3) SA 565
(O) at 566G the court, referring
to Parker, Wood & Co v Bradman
1925 TPD 640
, held that the word
‘appealing’ in s 84 refers not only to the noting of an
appeal, but also to the prosecution thereof.
A ‘court of
appeal’ is defined in s 1 of the Magistrate’s Court Act
as meaning the High Court to which an appeal
lies from the
magistrate’s court.
[28] Accordingly,
any steps taken in respect of the prosecution of an appeal after it
has been noted in the magistrate’s court
are governed, not by
the magistrate’s court which is a creature of statute, but by
the High Court.
[29] Section 173 of
the Constitution provides inter alia that the Constitutional Court,
Supreme Court of Appeal and High Courts
have the inherent power to
protect and regulate their own process. The magistrate’s court
is not included in s 173.
[30] Having regard
to the aforegoing, one is compelled to conclude that, once an appeal
has been noted in the magistrate’s
court, all further
proceedings relating to that appeal fall within the exclusive
jurisdiction of the High Court as the court of
appeal. Indeed, it
would be anomalous if a magistrate’s court, having no power to
extend the period for the noting of an
appeal against its own order,
nonetheless retains the power to set aside the selfsame notice (of
appeal) as an irregular step.
In addition, the magistrate’s
court has no power to determine whether or not an appeal may be noted
against any of its orders.
The noting of an appeal in the
magistrate’s court is an automatic right afforded to a litigant
if an order of that court
is indeed appealable.
[31] It thus follows
that the magistrate’s court was not competent to have
entertained the respondents’ application
in terms of rule
60A(1), and the third order would thus fall to be set aside.
Therefore, apart from the issue of whether the first
order was
appealable (which I have found it was not), as a court of appeal we
indeed have jurisdiction to have entertained the
appeal against the
second order. It also follows that the appellant’s appeal
against the third order was unnecessary and
it is therefore simply
struck from the roll.
[32] It is common
cause that the appeal against the first order was not prosecuted
timeously. The appellant’s belated application
for condonation
for the late prosecution of its appeal against the first order is so
vague and unsatisfactory that it is not capable
of being determined
on any merits, and thus falls to be dismissed.
Costs
[33] The respondents
have sought a punitive costs order against the appellant and his
attorney. In the exercise of my discretion
I am of the view that
punitive costs are not warranted.
Conclusion
[34] In the result I
propose the following order:
‘1. The appeal
under case number A 565/2013 is dismissed with costs, including the
costs attendant upon the appellant’s
abortive application for
condonation.
2. The appeal under
case number A 351/2014 is struck from the roll.’
J I CLOETE
GRIESEL J
I agree.
B M GRIESEL