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[2015] ZAWCHC 132
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Cash Crusaders Franchising (Pty) Ltd v Luvhomba Legal Axe CC and Others (1052/2013 , 2970/2013) [2015] ZAWCHC 132 (17 September 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: 1052/2013 ,
2970/2013
DATE: 17 SEPTEMBER 2015
In the matter between:
CASH CRUSADERS FRANCHISING (PTY)
LTD
..............................................................
Applicant
v
LUVHOMBA LEGAL AXE
CC
..................................................................................
First
Respondent
LUVHOMBA LEGAL EDGE
CC
...........................................................................
Second
Respondent
LUVHOMBA LEGAL CARE
CC
............................................................................
Third
Respondent
LUVHOMBA FINANCIAL SERVICES
CC
..........................................................
Fourth
Respondent
GERENDRA
CC
...........................................................................................................
Fifth
Respondent
MATHEWS TUWANI
MULAUDZI
..........................................................................
Sixth
Respondent
Court: Justice J Cloete
Heard: 10 September 2015
Delivered: 17 September 2015
JUDGMENT
CLOETE J:
Introduction
[1] This is an application to set aside
two purported notices of appeal by the respondents to the
Constitutional Court in terms
of rule 30(2) of the High Court Rules,
alternatively as an abuse of the court process. It is opposed by the
respondents.
Background
[2] The sixth respondent (‘Mulaudzi’)
is the sole member of the first to fifth respondents. During 2007 and
2008 the
applicant concluded separate but virtually identical
franchise agreements with each of the first to fifth respondents. In
each
instance Mulaudzi bound himself as surety and co-principal
debtor to the applicant for the obligations of the contracting
respondent.
[3] During 2009 various disputes arose
between the parties in relation to the franchise agreements and the
applicant eventually
instituted arbitration proceedings against the
first to fifth respondents. In addition to the arbitration
proceedings there was
the following litigation:
3.1 The applicant applied to the (then)
South Gauteng High Court (now the Gauteng Local Division) in case no.
43320/2010 for the
appointment of an arbitrator after the respondents
had refused to cooperate. The respondents subsequently consented to
the appointment.
It was agreed that the costs of the application
would be determined in the arbitration;
3.2 The applicant applied to the (then)
South Gauteng High Court in case no. 47666/2010 for an interim order
restraining the respondents
from breaching the franchise agreements
pending finalisation of the arbitration. It was not opposed and the
costs were similarly
ordered to be determined at the arbitration;
3.3 During the course of the
arbitration proceedings the first to fifth respondents repudiated
their franchise agreements. The applicant
accepted the repudiations
and terminated each agreement. The applicant applied to the (then)
North Gauteng High Court (now Gauteng
Division) in case no.
55359/2012 for an order giving effect to certain post-termination
obligations imposed on the respondents
in terms of the franchise
agreements. Three orders were granted in the same application in the
applicant’s favour. Two were
granted by agreement on 29 July
2013, with the respondents being ordered to pay costs on the scale as
between attorney and client
in terms of clause 29.2 of each franchise
agreement. The third order was granted on 6 November 2013 after the
respondents withdrew
their opposition. The same costs order was made
against the respondents although a certain limitation was placed on
counsel’s
fees;
3.4 The respondents failed to comply
with one of the agreed orders and the applicant launched contempt
proceedings in the (then)
North Gauteng High Court in case no.
65272/2013. These proceedings are still pending, but an interlocutory
order was granted on
19 March 2014 directing the respondents to file
their answering affidavit and to pay certain wasted costs.
[4] In the interim and on 11 December
2012 an arbitration award was made in the applicant’s favour.
The respondents were ordered
to pay various amounts which for
convenience will be referred to as ‘capital amounts’. In
addition they were directed
to pay the arbitrator’s fees as
well as costs (including the two reserved costs orders from the South
Gauteng High Court
matters) on the scale as between attorney and own
client.
[5] The respondents refused to comply
with the arbitration award and the applicant applied in this division
in case no. 1052/2013
for the award to be made an order of court. The
respondents opposed the application and also brought their own
application in case
no. 2970/2013 for the review and setting aside of
the award, which was similarly opposed by the applicant. Because the
matters
were so interlinked they were both argued before Le Grange J
who on 2 May 2013 handed down one judgment in which he:
5.1 Made the arbitration award an order
of court and directed the respondents to pay costs on the attorney
and own client scale;
and
5.2 Dismissed the respondents’
application with costs.
[6] The respondents applied for leave
to appeal Le Grange J’s orders and he dismissed their
application with costs on 13 June
2013. The respondents then
petitioned the Supreme Court of Appeal and their petition was
dismissed with costs by that court on
12 September 2013. Although
both of the aforementioned orders reflect only case no. 1052/2013, it
was confirmed during argument
before me by Mr Oosthuizen SC, who
appeared for the applicant, and Mr Mulaudzi, who appeared in person
and on behalf of the first
to fifth respondents, that both of these
orders relate to case no. 1052/2013 as well as case no. 2970/2013.
[7] Bills of cost were subsequently
taxed in respect of the two South Gauteng High Court matters, the
arbitration and the two matters
in this division in case nos.
1052/2013 and 2970/2013, and the North Gauteng High Court matter in
case no. 55359/2012, as follows:
7.1 R96 726.54 (South Gauteng High
Court case no. 43320/2010);
7.2 R66 730.86 (South Gauteng High
Court case no. 47666/2010);
7.3 R1 497 618.17 (the arbitration and
matters in this division in case nos. 1052/2013 and 2970/2013); and
7.4 R491 786.86 (North Gauteng High
Court case no. 55359/2012). According to the applicant this amount is
not yet payable because
the respondents have applied to that court
for leave to appeal the order granted on 6 November 2013, and the
application is still
pending.
[8] The respondents have apparently
settled the capital amounts contained in the arbitration award but
failed to pay the three sets
of taxed costs due. Warrants of
execution were issued against Mulaudzi’s movable property, one
of which resulted in a nulla
bona return of service (in respect of
case nos. 1052/2013 and 2970/2013). The applicant maintains that
Mulaudzi informed the sheriff
that he is the owner of immovable
property (this is borne out by the sheriff’s return) but an
extensive search at the various
Deeds Registries Offices proved this
to be false, although Mulaudzi continues to insist that he indeed
owns immovable property.
It was also established that four motor
vehicles attached by the sheriff in another warrant of execution were
not in fact owned
by Mulaudzi.
[9] The applicant then launched
proceedings in the Gauteng Division in case no. 49047/2015 for the
provisional sequestration of
the joint estate of Mulaudzi and his
wife to whom he is married in community of property. Mulaudzi has
opposed that application
inter alia on the basis that none of the
amounts are due and payable because he has ‘instituted appeal
proceedings in all
these cases’. Mulaudzi’s answering
affidavit in the sequestration application was deposed to on 20 May
2015 and, according
to the applicant, served on the same day.
[10] On 25 May 2015 the respondents
served on the applicant’s attorneys six separate purported
notices of appeal, all of which
are dated 21 May 2015, thus one day
after Mulaudzi deposed to his answering affidavit. Those in the South
Gauteng High Court matters
(under case nos. 43320/2010, although the
case no. is incorrectly reflected as 4330/2010, and 47666/2010) are
styled ‘Notice
of Motion (Appeal)’ and are directed to
the Supreme Court of Appeal. A prayer for condonation for late filing
is included
in each notice which further provides that:
‘TAKE NOTICE FURTHER THAT the
affidavit of TUWANI MULAUDZI to be filed later, will be used in
support of this application.’
[11] In respect of the two matters
dealt with in this division, being case nos. 1052/2013 and 2970/2013,
the notices are styled
‘Notice of Appeal’, are directed
to the Constitutional Court, and whilst a prayer for condonation for
late filing is
included, no reference is made to any affidavit
annexed or ‘to be filed later’. It is these notices which
are the subject
of the application argued before me.
[12] The respondents also served a
notice of appeal in respect of the two agreed orders in the North
Gauteng High Court matter in
case no. 55359/2012, directed to the
Constitutional Court, in which they seek condonation for late filing
and that the ‘order
and judgment’ of each of the Gauteng
Division (which subsequently refused leave to appeal on 2 September
2013) and the Supreme
Court of Appeal (which dismissed a consequent
petition on 29 November 2013) be set aside. Similarly, no mention is
made in the
notice of any affidavit filed in support thereof.
[13] The last notice of appeal pertains
to the interlocutory order granted in the pending contempt
proceedings in the Gauteng Division
in case no. 65272/2013 where the
respondents were ordered to file their answering affidavit and pay
certain wasted costs. It too
is directed to the Constitutional Court
and makes no mention of any supporting affidavit.
[14] Each of the notices of appeal in
respect of the matters dealt with in this division by Le Grange J and
subsequently by the
Supreme Court of Appeal merely contain the
following:
‘BE PLEASED TO TAKE NOTICE that
the Applicants herein intend to apply on a date to be arranged with
the Registrar of the above
Court for an order in the following terms:
1. That the extension of the period of
the filing of the Applicants’ application for leave to appeal
[sic];
2. That the delay in the filing of the
Applicants’ application for leave to appeal be and is hereby
condoned;
3. That the order and judgment of the
Western Cape Division is hereby appealed and/or set aside;
4. Costs of this application;
5. Further and alternative relief.’
[15] In response to the purported
notices of appeal the applicant served notices in terms of rule 30(2)
of the High Court Rules
on 4 June 2015 in which it set out its
grounds of complaint and afforded the respondents the requisite ten
days to remove them.
One of the grounds was that the notices had not
been filed with the registrar of the Constitutional Court in terms of
its rule
19(2) nor the registrar of the Supreme Court of Appeal in
terms of its rule 6(1), as the case might be.
[16] The respondents did not react to
the rule 30(2) notices and the applicant launched the present
application on 25 June 2015.
Similar applications are pending in the
Gauteng Division and Gauteng Local Division. For obvious reasons I
will hereinafter only
refer to the application which served before
me.
[17] In response to the applicant’s
complaint that the notices of appeal had not been filed with the
registrar of the Constitutional
Court, the respondents annexed what
they claimed to be proof that this had been done.
[18] However copies of the notices
produced by the respondents reflect only: (a) the stamp of the
registrar of this court (i.e.
the Western Cape Division) of 26 June
2015; and (b) the stamp of the sheriff, Pretoria South East of 25 May
2015. Mr Alex Tarr,
a candidate attorney employed by the firm
representing the applicant, deposed to an affidavit on 2 September
2015 in which he confirmed
that according to Mr Delano Louw, senior
registrar’s clerk at the Constitutional Court, no such notices
had been filed in
that court. Annexed to Mr Tarr’s affidavit is
an email from Mr Louw of the same date in which he stated that:
‘[t]his
matter is not before this court’. During argument
Mr Mulaudzi maintained that, not only had the notices of appeal in
fact
been filed in the Constitutional Court, but the respondents had
also filed affidavits supporting their prayer for condonation. Mr
Oosthuizen informed me that no such affidavits had been served on the
applicant. Mr Mulaudzi was thus given the opportunity over
the lunch
adjournment to contact his office in Pretoria (where he said they
would be found) and to provide them to the applicant’s
attorney
and the court at the commencement of the afternoon session.
[19] On resumption Mr Mulaudzi stated
that his delegated staff member could not locate these documents and
suggested that the matter
be postponed for this purpose. Instead,
given that Mr Mulaudzi was returning to Pretoria that evening, he was
afforded a further
opportunity to provide the documents by fax or in
electronic form to both the applicant’s attorney and the court
by close
of business the following day, 11 September 2015.
[20] On 11 September 2015 at
approximately 16h18 Mulaudzi emailed both the applicant’s
attorneys and my registrar further
copies of the notices of appeal,
but now bearing the stamp of the registrar of the Constitutional
Court of the same day. He also
emailed a copy of an affidavit
ostensibly deposed to by him on 21 May 2015 but similarly only filed
in the Constitutional Court
on 11 September 2015. In that affidavit
Mulaudzi sought to deal with the ‘appeals’ against all of
the matters which
have already served or are still pending in the
Gauteng Division, Gauteng Local Division, Supreme Court of Appeal and
this division
‘in a consolidated manner as they are related’.
[21] In respect of the matters dealt
with by Le Grange J in this division and subsequently dismissed on
petition by the Supreme
Court of Appeal, all that is stated is the
following:
‘43. In the Western Cape
Division, the Petitioners brought an application for leave to appeal.
Same was dismissed with costs.
I attach hereto the order, marked TM2,
to which I respectfully refer the above honourable court. The
Petitioners then petitioned
the Supreme Court of Appeal. The
application for leave to appeal was dismissed with costs on 12
September 2013. I attach hereto
an order, marked TM3, to which I
respectfully refer the above honourable court. I then instructed my
attorneys of record at the
time to file leave to appeal to the above
honourable court. It transpired later that this was not done…
46. That the court a quo, in the
instance of the SCA erred in confirming the judgment of the Western
Cape Division and refusing
to set aside order [sic] confirming the
arbitration award and related costs as this infringes on the
appellants’ rights as
enshrined in the Constitution of the
Republic of South Africa.’
Whether this court has jurisdiction
[22] The first question that arises is
whether this court has jurisdiction to determine the rule 30(2)
application, given the orders
of Le Grange J and the dismissal of the
respondents’ subsequent petition by the Supreme Court of
Appeal.
[23] Mr Oosthuizen relied on various
authorities in support of his submission that this court has
jurisdiction, and pointed out
that those authorities draw a
distinction between the noting of an appeal on the one hand and the
prosecution of an appeal on the
other. Given that the earlier
authorities were cited with approval in the later judgment of South
African Druggists Ltd v Beecham
Group plc
1987 (4) SA 876
(TPD), a
decision of the Full Bench of the former Transvaal Provincial
Division, I will focus only on the facts and findings in
the Beecham
judgment.
[24] There a Full Bench had dismissed
an appeal by South African Druggists Ltd (SAD) against an order of
the Court of the Commissioner
of Patents. SAD noted an appeal against
the decision of the Full Bench to the (then) Appellate Division, and
that appeal was pending
when Beecham brought a rule 49(11)
application to the Full Bench to put its order into operation pending
the decision of the Appellate
Division. SAD opposed the rule 49(11)
application but it was granted. SAD then delivered an application for
leave to appeal against
the rule 49(11) order and it simultaneously
filed a notice of appeal in respect thereof to the Appellate
Division.
[25] Beecham in turn brought two
applications. The first, which is the one relevant to the instant
matter, was to set aside the
notice of appeal to the Appellate
Division in terms of rule 30 on the ground that the rule 49(11) order
was not appealable; alternatively
that it was not appealable without
leave.
[26] It is helpful to quote the
findings of the Full Bench at some length from 880H – 881H:
‘The answer presented on behalf
of SAD was that this Court has no jurisdiction to deal with Beecham’s
motion under Rule
30(1) since SAD not only filed the notice of appeal
but, prior to the service of Beecham’s motion, lodged a power
of attorney
to prosecute the appeal with the Registrar of the
Appellate Division in terms of Appellate Division Rule 5(3)bis. The
result—submits
Mr Plewman—is that only the Appellate
Division has jurisdiction to consider the validity of the notice of
appeal. Reliance
was placed on the decision in Campbell and Others v
Monto and Another
1952 (3) SA 82
(T) where Murray J held that only
the appellate tribunal has jurisdiction to set aside a notice of
appeal on the grounds that it
is embarrassing and bad in law. The
learned Judge concluded as follows (at 84H):
“Even though the noting of the
appeal may be a matter which is not so intimately connected with the
prosecution, once the
appeal has been noted and the case has been set
down for hearing in this Court it seems to me that no jurisdiction is
vested in
the Judge in Chambers to deal with the propriety or
otherwise thereof.”
It will be seen from the judgment that
it is based on an overall conspectus of the Rules of Court then
applicable (at 83 in fine—84).
It has the distinguishing
features that the ground of attack on the notice of appeal related to
its content, which the learned
Judge thought should appropriately be
dealt with by the quorum of Judges required for the appeal (at
84G-H); and the appeal itself
was due to be heard within a few days
(at 83B-C).
In my view the jurisdiction of this
Court to entertain the application flows from the provisions of Rule
30(1) which gives “any
party to a cause in which an irregular
or improper step has been taken by any party” the right to
apply to this Court to
set it aside. The filing of a notice of appeal
is a step in the cause in this Court (cf Afrikaanse Handelaars en
Agente (Edms)
Bpk v Van Niekerk
1944 TPD 62
at 63; D and D H Fraser
Ltd v Waller
1916 AD 494
at 498), and this Court may deal with it.
Different considerations may arise if the appeal is prosecuted (I do
not consider the
lodging of a power of attorney by SAD with the
Registrar of the Appellate Division to constitute a prosecution of
the appeal),
but until it is prosecuted the following dictum by
Colman J in D & H (Pty) Ltd v Sinclaire
1971 (2) SA 157
(W) at
158E-G, with which I respectfully agree, applies:
“In the present case the appeal
has not yet been prosecuted, still less set down for hearing, and
that, to my mind, is a distinguishing
feature. The notice of appeal
has of course been filed in this Court, and no other Court has as yet
become seized with the matter.
In view of the fact that the noting of
an appeal stays execution, it will sometimes be a matter of
importance to the party who
has been successful at first instance
that he be able to approach some tribunal urgently with an
application to set aside the notice
of appeal if it is defective. It
seems to me that, pending prosecution of the appeal, the only
tribunal which can entertain such
an application is the Court in
which the notice of appeal was filed.”
I consider that the motion under
discussion should succeed.’
[27] What is important about Beecham
for purposes of the present matter is that it broadened the scope of
‘an irregular step
in the cause’ to include, not only a
notice of appeal lodged with the court which made the order by which
the litigant concerned
is aggrieved, but also a notice of appeal
lodged to a higher court against such order. I am (of course) bound
by that decision
unless I am convinced that it is wrong, which I am
not.
[28] Furthermore, in the earlier
decision of Participation Bond Nominees v Mouton and Others (3)
1978
(4) SA 508
at 515C-E it was held that:
‘The second point taken is
procedural and arises from the wording of Rule 30(1) under which the
present application is brought.
The argument is that this Rule is
available only to “any party to any cause” (the opening
words of the Rule) and that,
on a finding that the proceedings
between all the parties have come to an end, there can no longer be
“any cause” in
existence. Mr McCall countered this
argument by submitting that the “cause” which was set in
motion by the respondent
is still in existence, albeit for limited
purposes such as for issuing a writ of execution thereon, and
possibly for claiming costs
against respondent. In my view the words
“any cause” are used in the widest possible sense and
refer to any judicial
proceeding of whatsoever nature (see Stytler NO
v Fitzgerald
1911 AD 295
at 331). I agree with Mr McCall’s
submissions on this point. In my view the Rule is wide enough to
cover the eventuality
that has arisen in this matter and I therefore
find against the respondent on the second point as well.’
[cited with approval in Olgar v
Minister of Safety and Security and Another
2012 (2) SA 127
ECG at
133I-134B]
[29] The court in Participation Bond
Nominees proceeded to set aside as an irregular step a notice of bar
served on a third party
by a defendant in provisional sentence
proceedings after the provisional judgment became a final judgment in
terms of rule 8(11)
of the High Court Rules.
[30] In the instant matter, although
the purported notices of appeal were directed to the Constitutional
Court, the fact of the
matter is that the only court in which they
had in fact been filed by the respondents when the matter was argued
before me was
this court, as is borne out by the stamps of the
registrar of this division dated 26 June 2015.
[31] Accordingly, as was held in
Beecham the only tribunal capable of considering the validity of the
respondents’ notice
of appeal was a court of this division.
Mulaudzi clearly misled this court when he maintained during argument
that the notices
had already been filed in the Constitutional Court,
and the filing of the notices by the respondents a day after the
matter was
argued before me does not assist them, given that no steps
were taken in respect of the notices already filed in this division.
It should be mentioned that in his covering email to my registrar of
11 September 2015 Mulaudzi claimed that he was ‘directed’
by this court during argument to file the notices of appeal in the
Constitutional Court, which is of course patently false and
similarly
misleading.
[32] It thus follows that this court
has jurisdiction to determine the rule 30(2) application.
Whether the notices of appeal
constitute an irregular step(s) for purposes of rule 30
[33] During argument Mr Mulaudzi made
it clear that the respondents do not seek direct access to the
Constitutional Court in terms
of rule 18 of its rules, but instead
rely on the procedure contained in rule 19 of such rules, or, as Mr
Mulaudzi put it during
argument, as part of the ‘natural
progression’ in the appeals process against the order of the
Supreme Court of Appeal
refusing leave in both case nos. 1052/2013
and 2970/2013.
[34] Rules 19(2) and (3) of the
Constitutional Court Rules provide as follows:
‘(2) A litigant who is aggrieved
by the decision of a court and who wishes to appeal against it
directly to the Court on a
constitutional matter 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,
lodge with the Registrar an application for leave to appeal: Provided
that where the President
has refused leave to appeal the period
prescribed in this rule shall run from the date of the order refusing
leave.
(3) An application referred to in
subrule (2) shall be signed by the applicant or his or her legal
representative and shall contain—
(a) the decision against which the
appeal is brought and the grounds upon which such decision is
disputed;
(b) a statement setting out clearly and
succinctly the constitutional matter raised in the decision; and any
other issues including
issues that are alleged to be connected with a
decision on the constitutional matter;
(c) such supplementary information or
argument as the applicant considers necessary to bring to the
attention of the Court; and
(d) a statement indicating whether the
applicant has applied or intends to apply for leave or special leave
to appeal to any other
court, and if so—
(i) which court;
(ii) whether such application is
conditional upon the application to the Court being refused; and
(iii) the outcome of such application,
if known at the time of the application to the Court.’
[35] It is the applicant’s case
that the notices of appeal constitute irregular steps in that:
35.1 They were not filed with the
registrar of the Constitutional Court (rule 19(2)), at least at the
time when the matter was argued
before me;
35.2 They are hopelessly out of time
beyond the stipulated 15 day period (given the dismissal of the
petition by the Supreme Court
of Appeal on 12 September 2013) but no
explanation is furnished for the inordinate delay (rule 19(2));
35.3 They do not set out the grounds of
appeal which is a peremptory requirement (rule 19(3)(a)); and
35.4 They do not contain ‘clearly
and succinctly the constitutional matter raised in the decision and
any other issues including
issues that are alleged to be connected
with a decision on the constitutional matter’ (rule 19(3)(b)).
[36] The applicant also submits that
the respondents have in any event complied with the orders against
which they now seek to appeal
by having settled the capital amounts
contained in the arbitration award which was made an order of court
by Le Grange J. To my
mind however questions of peremption and
whether the respondents effectively only wish to appeal the costs
orders in case nos.
1052/2013 and 2970/2013 are not issues which this
court should consider within the context of this application. It
could be tantamount
to entering into the domain of the Constitutional
Court in the event that the respondents again approach that court in
due course.
As such, it would be inappropriate for me to do so. For
the same reason I shall steer clear of the condonation issue in
respect
of the late filing and confine my findings to the actual
procedural deficiencies contained in the notices themselves, although
I will also, for the benefit of the respondents, refer to the
relevant passage in Mulaudzi’s affidavit produced only on 11
September 2015.
[37] The notices are silent on the
grounds of appeal and merely seek an order that ‘the order and
judgment of the Western
Cape Division is hereby appealed and/or set
aside’. No mention is even made in the notices of the Supreme
Court of Appeal’s
subsequent refusal of the petition for leave
to appeal against those orders. In the separate affidavit produced by
Mulaudzi the
only so-called ground advanced, with reference to the
specific notices before me, is that contained in paragraph [46] in
which
it is contended (assuming this is what the respondents meant)
that Le Grange J as well as the Supreme Court of Appeal erred ‘in
confirming the arbitration award and related costs as this infringes
on [the respondents’] rights as enshrined in the Constitution
of the Republic of South Africa’.
[38] Nowhere do the respondents seek
condonation for their failure to comply with the peremptory
provisions of rule 19(3)(a) or
(b), nor is it apparent from either
the notices or Mulaudzi’s affidavit why these peremptory
provisions have simply been
ignored.
[39] During argument I was informed by
Mr Oosthuizen, and this was not disputed by Mr Mulaudzi, that in the
proceedings before Le
Grange J the respondents raised no
constitutional issues at all. Le Grange J’s judgment makes no
mention of any constitutional
issue that he was asked to consider and
determine. No mention is made of any notice having been delivered by
the respondents as
required by rule 16A of the High Court Rules.
[40] In the respondents’
subsequent petition to the Supreme Court of Appeal the grounds of
appeal were set out as follows:
‘
GROUNDS OF APPEAL
16. It is respectfully submitted that
the Honourable Court a quo erred in finding that the Arbitrator duly
and properly considered
the issue of the manner in which the
Franchise Agreements were brought to an end, and the effect thereof
on the continued operation
of the Arbitration Agreement.
17. It is submitted that, as a matter
of law, the effects of the lawful termination of an agreement upon an
arbitration clause are
not necessarily the same as those which would
follow upon the non-consensual cancellation of such an agreement.
18. Accordingly, it is submitted that
the facts of Atteridgeville Town Council v Livanos
[1991] ZASCA 139
;
1992 (1) SA 296
(AD) are distinguishable from those of the present matter in that the
above matter dealt with a situation where both parties claimed
that
the other had repudiated the agreement, and that the Honourable Court
a quo therefore erred in holding that the legal principles
enunciated
therein were applicable to the present matter.
19. The crucial issue remains whether
the lawful termination of a contract (as contended for by Applicants)
must necessarily be
construed as a form of non-consensual
cancellation, or whether the legal effects thereof could possibly be
the same as those which
would follow upon a consensual termination of
same.
20. It is respectfully submitted that
the Honourable Court a quo erred in finding that the Arbitrator was
correct in holding that
the arbitration agreement between the parties
did not perish when the franchise agreements terminated despite the
Arbitrator’s
failure to investigate and pronounce upon the
issue of the manner in which the Franchise Agreements were brought to
an end, and
it is the Applicants’ contention that another Court
might reasonably come to a different conclusion in this regard.’
[41] It is clear from the aforegoing
that not even when the matters served before the Supreme Court of
Appeal did the respondents
consider that their disputes with the
applicant related to any constitutional issue, or indeed, one that
raised an arguable point
of law of general public importance which
ought to be considered by the Constitutional Court (it being noted
that the Constitution
Seventeenth Amendment Act came into operation
on 3 August 2013).
[42] Having regard to the aforegoing I
am persuaded that the notices are defective and that they constitute
an irregular step(s)
as contemplated in rule 30(1) of the High Court
Rules. It follows that it is not necessary to consider the
applicant’s alternative
argument, namely that the notices
should be set aside because they constitute an abuse of the court
process.
Discretion
[43] It does not automatically follow
that the notices should be set aside, given the discretion conferred
on this court in terms
of rule 30(3). However I am satisfied that the
notices should be set aside because of the substantial prejudice to
the applicant
if they are allowed to stand.
[44] The prejudice lies in the
following. The respondents have exhibited a flagrant disregard for
the peremptory provisions of subrules
19(3)(a) and (b) of the
Constitutional Court Rules. This has the consequence that, as matters
stand at present, the applicant has
no idea of: (a) whether the whole
or part of any order, be it those of Le Grange J or the Supreme Court
of Appeal, are sought to
be appealed against; (b) the grounds upon
which the respondents seek to appeal; and (c) the nature of any
alleged constitutional
issue or arguable point of law of general
public importance which ought to be considered by the Constitutional
Court, particularly
given that right up until the conclusion of the
proceedings before the Supreme Court of Appeal more than two years
ago, the applicant
was of the view that this was a private commercial
dispute which should be dealt with by the courts as such.
[45] In short, the applicant is left
entirely in the dark as to what case it has to meet. There is thus no
question of any minor
technical irregularity which could be cured by
a simple amendment. The deficiencies in the notices are fundamental
and the consequent
prejudice to the applicant is material. The
notices must thus be set aside.
Conclusion
[46] In the result the following order
is made:
1. The respondents’ two purported
notices of appeal directed to the Constitutional Court in case
numbers 1052/2013 and 2970/2013
in this division are hereby set aside
as irregular steps in terms of rule 30 of the High Court Rules; and
2. The respondents shall pay the costs
of this application, jointly and severally on the scale as sought by
the applicant between
party and party, including any reserved costs
orders.
J I CLOETE