Bekker No v Total South Africa (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Kriegler J, Stafford J and Roos AJ
• Judgment Date: 03 April 1990
• Court: Transvaal Provincial Division
• Hearing Date: 07 February 1990

Kriegler J:

This is an appeal with the leave of the Court a quo against a judgment and order dismissing with costs an application for a temporary stay of a writ of execution pending an action. C Contemporaneously and concomitantly the Court a quo granted a counter-application for a provisional order of sequestration against the applicant, one Johannes Petrus Jansen van Vuuren (hereinafter referred to as 'Van Vuuren'). The latter order is still extant, it having been extended from time to time pending the resolution of this appeal, and the appellant now before Court is the provisional trustee of Van D Vuuren's insolvent estate.

Although the appeal utlimately turns on the interpretation of a single clause in a particular contract there is a good deal of procedural, legal and factual overburden to be removed before coming to grips with the substance of the case, which, even then, I fear, may prove of little ultimate benefit to the parties. The nature of the relief which was E sought by Van Vuuren in the Court a quo and which was, ultimately, urged on appellant's behalf on appeal, in conjunction with certain shortcomings in the prosecution and presentation of the appeal, together with the circumstance that Van Vuuren is under provisional sequestration, have resulted in the case being rendered not only unnecessarily complex but also largely futile.

F Before turning to the merits of the appeal a number of procedural issues should be got out of the way. First it should be recorded that, at the commencement of the hearing, an order was granted condoning the late service and filing of the record of appeal, the appellant to pay the costs occasioned by the application. There was no opposition, the delay was four days only and there was no prejudice. Nevertheless the G condonation was not granted with alacrity, the reason being the state of the appeal record. The members of the Court were presented with relatively flimsy ring-backed files crammed with close on 300 pages. Not only does this constitute non-compliance with the requirements of the Uniform Rules of Court (see eg Rule 49(8)(a) and Rule 62(4)) but it is a nuisance in the preparation for and the hearing of an appeal. In H addition the pagination is slovenly and many of the exhibits have been so badly marked that easy identification for reference purposes is impossible. In the result a special order precluding appellant's attorney from recovering any costs for the preparation of the record was seriously considered. The fact that such an order was, in the event, not I made is not to be misconstrued as approval of slovenly practice.

A second condonation order was granted at the outset. It related to an amendment to the notice of appeal whereby additional grounds of attack were introduced. Inasmuch as timeous notice had been given and the wasted costs were tendered an order was made accordingly in the absence J of opposition. In the course of argument Mr Wulfsohn, on behalf of the

Kriegler J

A appellant, mooted, but subsequently withdrew, two proposed amendments to the notice of motion. As he ultimately rested with the prayers as originally formulated no more need be said about them save to mention that they were precipitated by the turn of events at the hearing of the appeal, to which reference will be made shortly.

B Yet another procedural issue should be mentioned. As indicated earlier a provisional order of sequestration was granted by the Judge a quo as a corollary to the refusal of Van Vuuren's application. That order is not on appeal although the two applications were argued in the Court below as alternates to one another, it being agreed that if the application failed the counter-application would be granted. It is undesirable that C the provisional sequestration order should be left lurking in the wings notwithstanding the fact that the refusal of Van Vuuren's application, in a sense its progenitor, was being challenged. However, as no argument was addressed to us on the point and as the procedure adopted seems to preclude any alternative, the question of the provisional sequestration order will have to be left in abeyance. D

As the heads of argument prepared on behalf of both sides appeared to have been drafted on the hypothesis that what had been in issue in the Court below and was to be debated on appeal was final relief whereas one of the prayers in the notice of motion had sought

'(d) dat die eksekusielasbrief wat teen die applikant uitgereik is.. E opgeskort word hangende 'n aksie vir 'n verklarende bevel...',

the Court mero motu raised the question whether the learned Judge a quo had adopted the correct approach to interlocutory relief and, in any event, whether the matter was appealable having regard to the provisions of s 20(4)(b) of the Supreme Court Act 59 of 1959. Predictably the F ensuing debate concentrated on the question of appealability, Mr Wulfsohn arguing for an affirmative answer and his opponent, Mr Zulman, arguing with equal vigour to the contrary. It was in the course of that debate that Mr Wulfsohn moved one of the amendments to the notice of motion, this particular one envisaging the substitution of a prayer setting aside the writ of execution for the interim relief originally G sought. As the underlying reason for the proposed amendment subsequently fell away, it is not necessary to dwell on the grounds of opposition thereto or for the refusal thereof. Suffice it to say that there was substance in Mr Zulman's objection to so fundamental and belated a change. Having heard counsel on the issue of appealability, a ruling was H made that the matter was properly before the Court, it being appealable and the requisite leave having been granted. At the same time it was intimated that reasons for the decision would be furnished in due course. Such reasons follow.

Although they were taken unaware by the point in question, counsel managed during a short adjournment to garner an impressive panoply of authority stretching as far back as Carlis v Hertz's Trustee 1904 TS 584 I and including the recent Full Bench decision in this Court in Sistag Maschinenfabriek Sidler Stalder AG and Another v Insamcor (Pty) Ltd 1989 (1) SA 406 (T). Mr Wulfsohn, taking as a starting point Carlis' case and a passage in Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 710, which cites it with approval in a J footnote, and ultimately relying on the Full Bench decision in Ritch and

Kriegler J

Another v Orthopaedic Buildings (Pty) Ltd 1979 (4) SA 19 (T), especially at 23H and 25H, submitted that the refusal of an interdict pendente lite, such as the one in issue in this case, is appealable as it puts a final and definitive end to the relief sought. He contrasted such an order and its effect with orders refusing a stay of execution pending an action for rescission of the relevant judgment (Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd 1977 (4) SA 363 (T)) or pending appeal (South B Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A)) and with purely interlocutory rulings made in the course of Court proceedings (Pfizer Inc v South African Druggists Ltd 1987 (1) SA 259 (T)) and emphasised that we were not here concerned with a step in litigation but with a substantive and, by virtue of the C refusal of the relief sought, final conclusion to an application which envisaged relief differing fundamentally from that which would have been sought in the action, namely an order declaring the writ of execution invalid. Moreover, so Mr Wulfsohn pointed out, an order in such terms at the conclusion of the trial would be academic as the very purpose of the D writ had been to sell up Van Vuuren's movables and to disseminate them among the various purchasers. Indeed, so Mr Wulfsohn argued, this case was on all fours with Ritch and Another v Orthopaedic Buildings (Pty) Ltd (supra), where the applicants had sought an urgent order restoring them to possession of premises from which they had been ejected under a writ of execution when the applicant had been late in delivering the E record in an appeal that had been noted against the judgment on which the writ had been based. In the passages cited by Mr Wulfsohn the learned Judge who delivered the judgment of the Court, Coetzee J, first held that the order sought had not been interlocutory at all and then, in the second passage mentioned, concluded, A

F 'even if the application is regarded as a simple application for an interdict pending the conclusion of the appeal, its refusal would still be appealable'.

Those observations, so Mr Wulfsohn argued, were of equal force in the present case.

Mr Zulman founded his contrary argument on two basic grounds, the one legal and the other pragmatic. As far as the law was concerned, the G argument was that, upon an analysis of the authorities, more especially the South Cape Corporation case supra, read in the knowledge that, since it had been delivered, s 20(2)(b) of the Supreme Court Act had been amended by s 7 of the Appeals Amendment Act 105 of 1982, thus doing away with appeals against interlocutory orders even with leave, the order in H issue in this case was not appealable. He sought in aid a number of recent cases, inter alia the Sistag Machinenfabriek case supra; South African Druggists Ltd v Beecham Group plc 1987 (4) SA 876 (T); Elida Gibbs (Pty) Ltd v Colgate-Palmolive (Pty) Ltd (2) 1988 (2) SA 360 (W); and Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A). Such analysis and the cases cited, so the argument ran, supported the conclusion that, as the Supreme Court Act now stands, I the order sought to be challenged in this appeal was not appealable as a matter of law. In any event, according to Mr Zulman, as a matter of practical common sense, the appeal had been rendered...