Appealability – section 14 Court of Appeal Act

CASE NO.2491/99

IN THE MATTER BETWEEN:

JONCON (PTY) LTD APPLICANT

AND

BARLOWS CENTRAL FINANCE CORPORATION RESPONDENT

(PTY) Ltd t/a B.R.L. LEASING

IN RE:

BARLOWS CENTRAL FINANCE CORPORATION APPLICANT

(PTY) LTD t/a B.R.L. LEASING

AND

JONCON (PTY) LIMITED RESPONDENT

CORAM : MASUKU J.

FOR APPLICANT : MR B.G. SIMELANE

FOR RESPONDENT : MS M. VAN DER WALT (Instructed by

Millin & Currie)

JUDGEMENT ON APPLICATION FOR RESCISSION

20/03/00

On the 23rd December 1999, in the absence of the Applicant’s representative, I granted an Order in favour of Respondent herein in the following terms: -

1. That the Sheriff or his lawful Deputy be and is hereby, pending the outcome of

proceedings to be instituted for relief set out in paragraph 2.1 to 2.5, authorised and directed to attach and remove the vehicles set out in prayer 2.2.1 to 2.2.4,

wherever the same may be found and to hold the same in safe custody under

attachment.

such proceedings within thirty (30) days of the grant of the Order, failing which

the attachment shall be discharged.

2.5 of the Notice of Motion.

Reasons for this Order were subsequently handed down on the 28th December 1999. The Applicant then moved an urgent application in terms of the provisions of Rule 42, dated 19th January, 2000, for the grant of the relief hereunder set out: -

urgent basis.

Respondent on the 23rd December 1999 be rescinded and set aside.

by the Respondents pending the finalisation of the appeal lodged by the Applicants against the ruling of His Lordship Mr Justice Masuku on 23rd December, 1999, clothing the above Honourable Court with jurisdiction to entertain the Respondent’s application.

the Applicant in this application be permitted to retain possession of the earthmoving equipment leased from the Respondent pending the finalisation of the appeal lodged by the Applicants and also finalisation of the Respondent’s application in the event of Applicants not being successful in the appeal so lodged.

propiis on the scale between attorney and own client, alternatively, that the Respondent pays the costs of this application on the scale as between attorney and own client.

The Respondent filed a Notice to Oppose and proceeded to file its answering affidavits, to which replying affidavits were filed by the Applicant. I initially declined to hear this application for rescission for the reason that I granted the Order sought to be rescinded or set aside. It was fitting in my view to let another Judge hear the matter, so as to give the matter an independent consideration as sitting in judgement over your own judgement may raise suspicions of one or other kind. Counsel on both sides however managed to persuade me to hear the matter as all that needed to be determined are points of law, revolving around the question whether the appeal lodged by the Applicant was properly lodged as no leave had been obtained from the Court of Appeal. It is for this reason that I do not propose to recount all the allegations and counter allegations canvassed in the various sets of Affidavits filed of record.

At the commencement of the hearing Ms van der Walt made a concession that the appeal against the Order of the 17th December, 1999 was indeed lodged by the Applicant on the 20th December, 1999, which had been initially controverted by the Respondent. The questions of law raised by the Respondent and which form the basis of this judgement are as follows: -

had jurisdiction to hear the application, notwithstanding the presence of a foreign jurisdiction clause was not a final judgement in that it did not grant definite and distinct relief, and/or did not have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.

terms of Section 14 (1) (b) of the Court of Appeal Act, No.74 of 1954, shall lie

only by leave of the Court of Appeal being granted to the Respondent.

disposed of the matter and the judgement would have been final, and thus appealable by the Applicant without leave in terms of Section 14(1)(a) of the said Act.

circumstances, the lodging of an appeal by the Applicant was an irregular step, the notice of appeal filed is of no legal force or effect, and same did not stay or otherwise affect the proceedings a quo;

sought to be rescinded and set aside by the Applicant.

In response to the above points raised by the Respondent, the Applicant stated as follows:-

the matter is a final decision. It was its view therefore that it did not require leave of the Court of appeal before filing its notice of appeal, as required by the provisions of Section 14(1) (b) of the Court of Appeal Act No 74 of 1954 (hereinafter referred to as “the Act”).

Section 14, which bears the heading “Right of Appeal in civil cases” reads as follows:-

The Order or judgement issued on the 17th December 1999, was made in respect of an issue which came before this Court in exercise of its original jurisdiction. It is common cause therefore that an appeal against that Order or judgement falls within the ambit of the provisions of Section 14 (1). The question for determination is whether the said order or judgement was a final judgement, in which case it would fall within the provisions of Section 14 (1) (a), thereby dispensing with the need to apply for and be granted leave by the Court of Appeal. On the other hand, if it falls within the purview of Section 14 (1) (b) then it means that obtaining leave of the Court of Appeal was a condictio sine qua non for lodging an appeal against the said judgement or order.

The key to the question to be decided in resolving the issue appears to lie in the definition of what a final judgement is, on the one hand, and what an interlocutory order is on the other.

Before I deal with the issue of whether the order or judgement issued was a final judgement or an interlocutory order, there is an argument raised by Ms van der Walt, which merits attention. Ms van der Walt argued that no proper order was issued on the 17th December, 1999, because the issue of jurisdiction raised in the present Applicant’s Answering Affidavit in the main application was not raised by way of special plea or exception but as a point in limine in the pleadings. It was argued on the Respondent’s behalf that because there was no distinct relief sought by the Applicant, following the attack of the Court’s jurisdiction, the pleadings remained unaltered.

It was argued that before an “order” in applications and a “judgement” in actions can issue, there must have been a distinct application for definitive relief. In this regard, the Court was referred to a number of authorities, which include DICKENSON & ANOTHER v FISHER’S EXECUTOR 1914 AD 424; NXABA v NXABA 1926 AD 392 at 394; VAN STREEPEN & GERMS v TRANSVAAL PROVINCIAL ADMINISTRATION 1987 (4) 569 (A) AND ERASMUS “SUPERIOR COURT PRACTICE” at A1 – 42.

In DICKENSON & ANOTHER v FISHER’S EXECUTOR (supra) at page 427 – 8, Innes A.C.J. had this to say.

“But every decision or ruling of a Court during the process of a suit does not

amount to an order. That term implies that there must be a distinct application

by one of the parties for definitive relief. The relief prayed for may be small, as in an application for a discovery order, or it may be of great importance, but the Court must be duly asked to grant some definite and distinct relief, before its decision upon the matter can properly be called an order...so also in a case like the

present... The Court gave its ruling on the point. But that was not an order in

in the legal sense; it decided no definite application for relief, for none had been

made; it was a mere direction to the parties with regard to the lines upon which their contention upon the merits should proceed.”

Innes A.C.J.’s view was concurred in by Solomon J.A. in the same case at page 429 in the following language:-

“The term “order” is a technical one, which is in common use in courts of law and

which is well understood, though it may not be easy to give precise definition of it.

One thing, however is clear, and that is that no order can be made except upon an

Application which usually takes the form of a motion or petition, and the decision of the Court upon such motion or petition is the order, which is embodied by the Registrar in a formal document. I do not say that there can be no order of Court except upon a formal motion or petition, but what is essential is that there should be an application to the Court for some relief.”

The above case was cited with approval by Corbett J.A. in VAN STREEPEN & GERMS v TRANSVAAL PROVINCIAL ADMINISTRATION 1987 (4) SA 569 (AD) at page 581 D - , the learned Judge stated as follows:-

“As has been explained in several cases, ‘judgement’ in the context relates to a decision given upon relief claimed in a action, while ‘order’ refers to a decision given upon relief claimed in an application on notice of motion or petition or an summons for provisional sentence (see DESAI v ENGAR AND ENGAR 1966 (4) SA 647 (A) at 653 A – B and the cases there cited). But not every decision made by

the Court in the course of judicial proceedings constitutes a judgement or order.

Some may amount to what is termed ‘a ruling’ against which there is no appeal”.

This appears to be a well settled legal position and although Mr Simelane, during argument referred to some judgements which he stated altered the legal propositions stated above, I have not found any that supports a contrary position amongst those referred to in the Applicant’s heads of argument. It is abundantly clear that in casu, there was no relief prayed for by the Respondent in the main application. All that the Respondent did was to raise points in limine without moving the Court to grant any specified relief thereon. This, in view of the authorities above referred to would not amount to an “order” or “judgement” to which an appeal should lie and I so hold. It appears to me that the Court gave a mere ‘ruling’ on the question of jurisdiction.

Should I be wrong in the view to which I have come, I find it necessary to proceed to deal with the issue of whether the ‘ruling’ given amounted to a ‘judgement’ or ‘order’ that was appealable. I shall then for this purpose proceed on the basis that the ‘ruling’ was an ‘order’ or ‘judgement’.

A cursory look at the provisions of Section 14 (1) states that matters in respect of which an appeal lies to the Court of Appeal are (a) all final judgements of the High Court; and (b) by leave of the Court of Appeal from an interlocutory order, an order made ex parte or an order as to costs only. The question to be decided in this case will then be whether that ruling was appealable as of right or with the leave of the Court of Appeal. If it is appealable as of right, then it must be classified as a final judgement, whereas if it is appealable by leave of the Court of Appeal it must be an interlocutory order, an order made ex parte or an order as to costs only.

Section 2 of the Court of Appeal Act, dealing with interpretation states as follows, regarding the definition of judgement”, :-

“In this act, unless the context otherwise requires “judgement” includes, decree,

order, conviction, sentence and decision.”

Section 14, looked at in its proper context makes a clear distinction between “final judgements” and interlocutory orders, orders made ex parte and orders as to costs only. It is abundantly clear that for the purposes of properly construing Section 14, the word judgement does not assume the generic definition ascribed to it by the provision of Section 2. The manner in which the word judgement is used in section 14 is such as to draw a clear line of demarcation between “judgements” and “orders”.

Having made this important initial observation, I shall now proceed to state the arguments advanced by Counsel on both sides. Miss van der Walt, in her usual brief but thought – provoking submission argued that the ruling issued by the Court on the question of jurisdiction was not a final judgement and was therefore appealable only with leave of the Court of Appeal, which the Applicant did not seek. In her argument, Ms van der Walt referred the Court to the case of ZWENI v MINISTER OF LAW AND ORDER 1993 (1) SA 523 (A) at 532 J- 533 B, which case defines the attributes of a final judgement. I shall revert to this case shortly.

Miss van der Walt also took the Court on a “conducted tour” of South African legislation with regard to the question of appeal. She submitted, correctly in my view that in South Africa, the position was first imported into statute by wording based on the English Charter of Justice, Act 21 of 1864, which provided that an appeal shall lie against “ any final judgement, decree or sentence, or against any rule or order having the effect of a final and definitive sentence.

I interpose to state that the wording suggests that appeal lay firstly in respect of any final judgement decrees or sentences and secondly, in respect of any rule order having the effect of a final and definitive sentence. This is apparent from the wording.

It was her further submission that the position in South Africa was subsequently changed by statute to provide in addition to the usual appealability of ordinary judgements or orders, the appealability, with leave of the Court a quo of interlocutory orders, which are those which are final and definitive in effect. Further amendments have resulted in a general position where all judgements or orders in South Africa are now appealable with leave and that such judgements must have the attributes set out in the Zweni case, to which I will refer later.

Miss van der Walt finally argued that the position in Swaziland differs materially from the South African position in that Section 14 (1) (a) circumscribes judgements appealable without leave to those that are final, period. There is not an addition, as was the case in the Charter of Justice of order or rules having a final and definitive effect.

She further argued that a finding to the effect that the Court has jurisdiction is not a final order because it does not have the effect of disposing of at least a substantial portion of the relief claimed. It is therefore appealable only in terms of Section 14 (1) (b) with the leave of the Court of Appeal.

In contra, Mr Simelane argued that Section 2 of the Act defines “judgement” as including a decree, order, conviction sentence and decision. Therefore, even an order made must be regarded as a judgement and be dealt with in terms of the provisions of Section 14 (1) (a) if that order is final and definitive in effect.

It was further argued on the Applicant’s behalf that the question of jurisdiction was dealt with and adjudicated upon separately and that it constituted a final judgement falling within the ambit of the provisions of Section 14 (1) (a) of the Act. In support of this submission, the Court was referred to the celebrated case of STEYTLER N.O. v FITZGERALD 1911 A.D. 295 AT 313, where Innes C.J. propounded the law as follows:-

“The order dismissing the plea was one of the greatest consequence, it settled a

definite portion of the dispute and had a direct bearing upon the ultimate issue.

It is difficult to see how such a decision could properly be called a simple

interlocutory one”.

It was further submitted by Mr Simelane that question of this Court’s jurisdiction went to the heart of the proceedings and raised a fundamental issue which was potentially decisive of the entire application and it was therefore final in form, nature and effect. It is thus appealable, I will add, as of right.

It was further argued that the order dismissing the legal point of jurisdiction cannot be described as an interlocutory order. Mr Simelane also made a lot of play on the fact that the ‘order’ or ‘ruling’ was headed ‘Judgement’, which he argued was indicative of how the Court regarded it and how it should be now properly regarded.

The Court was also referred to the case of MOCH v NEDTRAVEL (PTY) LTD t/a AMERICAN EXPRESS TRAVEL SERVICE 1996 (3) S.A. 1 (AD), which dealt with the question whether the refusal of an Acting Judge of the Witwatersrand Local Division to recuse himself was appealable. Hefer J.A. was of the view that it was appealable as the refusal of the application for recusation went to the core of the proceedings and if incorrectly made vitiates them.

Having considered submissions, by Counsel on both sides, I agree with Ms van der Walt’s submissions for reasons that follow herein below. Firstly it is very important to consider South African cases in proper perspective taking into account that as the wording of the legislation differs materially from that which obtains in Swaziland.

As earlier mentioned decisions appealable as of right in Swaziland are “final judgements” only. This is contained in Section 14 (1) (a). Unlike the position which previously obtained in South Africa before, there is no provision in Section 14 (1) (a) for the appealability of rules or orders having a final and definitive effect. The cases cited by the Applicant in this regard, which include the Steytler case, the Moch case, to mention a few, do not recognise this fundamental difference.

That an order made is of the greatest consequence or has the effect of a definitive sentence on the issue or that it is final in form, nature and effect does not per se bring it within the ambit of the provisions of Section 14 (1) (a). If it must fall within the ambit of Section 14 (1) (a), it must be a “final judgement”. All orders, whether interlocutory, ex parte or in respect of costs only are appealable with leave of the Court of Appeal. In my view, this is so even if in effect they pass a definitive sentence on the issue and are final in form, nature and effect. As long as they are orders, they fall to be dealt with according to Section 14 (1) (b).

In the ZWENI case (supra), Harms A.J.A. stated as follows at page 532 I to 533.

“A ‘judgement or order’ is a decision which, as a general principle has three

attributes first, the decision must be final in effect and not susceptible of

alteration by the Court of first instance; second, it must be definitive of the

rights of the parties; and third, it must have the effect of disposing of at least a

substantial portion of the relief claimed in the main proceedings.... The second

is the same as the oft – stated requirement that a decision, in order to qualify

as a judgement or order, must grant definite and distinct relief...”.

Before analysing the nature of the decision on the question of jurisdiction, it is apposite to state that Harms A.J.A. earlier on in the judgement stated in terms of Section 20 (1) of the Supreme Court Act 59 of 1959, there is no distinction any longer between ‘judgements or orders’. The same cannot be said of the Act, particularly the wording of Section 14 (1) (a) and (b), which in my view draws a distinction.

Adopting the three – pronged test suggested by Harms A.J.A., it is clear that at the least, the decision on jurisdiction did not meet the third requirement, namely, it did not have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. All the issues awaiting determination in the main proceedings remained unaffected by the decision made by the Court. This therefore disqualifies the decision from falling within the ambit of Section 14 (1) (a).

A final judgement is one that finally disposes of the rights of the parties on a specific question – See COLONIAL GOVT. v DUNDEE COAL CO. 26 NLR 346; INGLIS v DURBAN NAVIGATION COLLIERIES, 27 NLR 747 (these are quoted in “The South African Judicial Dictionary”, compiled by J.J.L. SISSON, Q.C., Dutterworths, 1960”. Henry Campbell Black, in his dictionary, “Black’s Law Dictionary”, fifth edition, West Publishing Company, 1979, at page 756 defines a final judgement as:

“One which puts an end to an action at law by declaring that the plaintiff either has

or has not entitled himself to recover the remedy he sues for. So distinguished from

interlocutory judgements. A judgement which disposes of the subject matter of the

controversy or determines the litigation as to all parties on the merits. A judgement

which terminates all litigation on the same right.”

The decision on jurisdiction clearly did not have this effect. The said decision was a preliminary decision on a point of law, which does not amount to a final judgement within the meaning of Section 14 (1) (a) of the Act – See NXABA v NXABA 1926 AD 392, where Innes C.J. stated as follows at page 394:-

“Upon the face of it, it was a mere ruling on a preliminary point of law, important

no doubt, but not a rule or order upon the relief asked for in the action.”

One thing that needs to be mentioned however, and which was submitted by Ms van der Walt was that had the decision on jurisdiction been in the present Applicant’s favour, then it would have amounted to a final judgement appealable in terms of Section 14 (1) (a), for it would have finally disposed of the rights of the parties. In the words of Harms A.J.A. in the Zweni case (supra), it would have effectively disposed of at least a substantial portion of the relief claimed in the main proceedings. The issue raised was potentially decisive of the entire application, as correctly argued by the Applicant’s Attorneys. But whether it was actually, and not potentially decisive of the entire application, hinged on whether the Court found it had jurisdiction or not. Since it held that it did have jurisdiction, then that decision was not decisive of the entire application.

As an aside, I should mention that having read the authorities to which I was referred by Counsel in the matter, it is clear that the Court was guilty of what Sir Winston Churchill referred to as “terminological in exactitude” in referring to the order of the 17th December, 1999, as a “judgement” as it is clearly a “ruling” and should have been so captioned.

In the circumstances, it is my finding that the decision falls within the ambit of Section 14 (1) (b) and was therefor appealable only by leave of the Court of Appeal which was clearly not sought. I find for that reason that no proper notice of appeal was issued and filed and consequently that stay of execution due to the repeal of Rule 40 of the Court of Appeal Rules does not affect execution in this matter and it is so ordered.

The costs will follow the event.

T.S. MASUKU

JUDGE

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