Collett v Priest

• Jurisdiction: South Africa

Collett Appellant v Priest Respondent
1931 AD 290

1931 AD p290

Citation	1931 AD 290
Court	Appellate Division
Judge	De Villiers CJ, Wessels JA, Curlewis JA, Stratford JA and Roos JA
Heard	March 13, 1931; March 16, 1931; March 17, 1931
Judgment	April 29, 1931

Flynote : Sleutelwoorde

Appeal — In what cases — "Civil suit or action" — Sequestration proceedings — Act 35 of 1896 (C), section 24 — Appellate Division — Inherent jurisdiction.

Headnote : Kopnota

The essential feature of a "suit or action" under section 50 of the Charter of Justice or under section 39 of Transvaal Proclamation 14 of 1902, or of a "suit" under section 24 of Cape Act 35 of 1896, is that it is a proceeding in which one party sues for or claims something from another, and no proceeding which lacks this feature, such as sequestration proceedings or an application for the winding up of a company, can be properly described as a "suit or action" or as a "suit" under any of these sections.

Where, therefore, the Cape Provincial Division had allowed an appeal from a decision of a judge of the Eastern Districts Local Division placing the estate of a debtor under sequestration.

Held, that the Provincial Division had no jurisdiction under section 24 of Act 35 of 1896 (C.) to entertain the appeal.

Held, further, that the Appellate Division had an inherent right to set aside an order of the Provincial Division which the latter Division had no jurisdiction to give.

The case of Roberts v Cape of Good Hope Bank (5 S.C. 134), overruled. The decision of the Cape Provincial Division in Priest v Collett, reversed.

1931 AD p291

Case Information

Appeal from a decision of the Cape Provincial Division (GARDINER, J.P.; VAN ZYL, J and SUTTON, J).

The facts appear from the judgment of DE VILLIERS, C.J.

C. A. Beck, K.C., for the appellant: The Cape Provincial Division had no jurisdiction to entertain an appeal from a final order of sequestration pronounced by the Eastern Districts Local Division. The right of the former Division to hear appeals from the latter is conferred by sec. 24 of Act 35 of 1896 (C) and the sole question is whether an order in sequestration proceedings is an order in a civil suit. The meaning of civil suit has been determined in Collier v Redler (1923 AD at pp. 642-3); The Master v van Aardt (1926 AD 25); Bulawayo Municipality v Roberts (1927 AD 411) and de Beer v Isaacson (1929 AD 95). These cases approved Gillingham v Transvaalsche Koelkamers (1908, T.S. 964), in which it was held that a civil suit does not include sequestration proceedings. In the result the expression "civil suit" must receive the same interpretation in every statute in which it occurs unless the context plainly shows that the Legislature intended some other signification. The interpretation given by this Division was not merely obiter dictum, but a binding ruling within the meaning of Horwitz v Hendricks (1928 AD 391). The Appellate Division decisions were followed in S.A. Mines v Dreyer (1929 CPD 35).

The fact that the Cape Provincial Division did entertain an appeal in sequestration proceedings in In re Provincial Trading Co. (1921 CPD 781) cannot affect the position because first the question whether an appeal lay was not governed by sec. 24 of Act 35 of 1896 and secondly the case was heard before the earliest decision of this Division on the point.

Mere practice cannot confer upon any Court a jurisdiction beyond that established by its charter of incorporation. See Steytler N.O. v Fitzgerald (1911 AD at p. 306). Roberts v Cape of Good Hope Bank (5 C.S.C. 134) was decided on the repealed provisions of sec. 11 of Act 5 of 1879 (C). In so far as it is irreconcilable with the decisions of this Division it must be taken to have been overruled.

A. Shacksnovis, for the respondent: The question whether a sequestration proceeding is a civil suit is not the whole question. The point at issue is whether a sequestration proceeding before a single Judge of the Eastern Diistticts Local Division is a civil suit within the meaning of sec. 24 of Act 35 of 1896 (C) as read with

1931 AD p292

sec. 24 of Act 25 of 1896 (C) as read with sec. 2 of Act 35 of 1904 (C), sec. 4 of Act 9 of 1905 (C) and sec. 103 of the South Africa Act, under which the Cape Provincial Division has jurisdiction to hear appeals from the Eastern Districts Local Division. See Roberts v C.G.H. Bank (supra, at pp. 136, 138) which has never been overruled; it was not quoted in Gillingham's case or Collier v Redler (supra). See also Spence v Union Bank (4 Juta 318); Alderson v Kerr N.O. (I Buch. A.C. 355); R v Sigcau (5 C.T.R at p. 292) where the emphasis was laid on the distinction between civil and criminal.

The expression "civil suit" does not appear to carry a fixed connotation for every statute or at all; it may have a wider or a narrower sense. See Collier v Redler (supra, at p. 647), sec. 20 of Act 35 of 1896 (C) where causa appears to be used synonymously with "suit"; and see sec. 22 where "action" is used as synonym of "suit"; and see sec. 116 of the South Africa Act which uses "suit" to mean any legal proceeding before a Court. Sec 33 of the Transvaal Proclamation 14 of 1902 uses the words "civil suit and proceeding" and this has always been held to cover sequestration proceedings. It was under sec. 39 of that Proclamation that Gillingham's case (supra) was decided because there was a money limit; but that does not apply to sec. 33 which must be taken to be the same as sec. 24 of Act 35 of 1896 (C). See Connolly v Ferguson (1909, T.S at p. 197) on the interpretation of "suit or action" in sec. 26 of Proclamation 21 of 1902 (T). If it had been the intention of the Legislature to limit appeals in sec. 24 of Act 35 of 1896 (C) it would have made the language clearer.

The statutes under consideration were drafted on the lines of English statutes when the Judicature Act of 1873 was still in force and sec. 100 defined "suit" as including "action." It must therefore mean more than action. A suit is any legal proceeding. See English Annual Practice for 1925 (p. 2102).

Foley v Hogg's Trustee (1907 T.S. 791) defines "sequestration" under the heading of "execution." But the argument in Gillingham's case (supra) that a sequestration proceeding followed a suit or action already completed was rejected in Collier v Redler (supra, at p. 646). Gillingham's case purported to follow as binding in re Abrahams (2 Moore P.C.N.S. 241). But see de Beer v Isaacson (supra, at pp. 98-9). Sequestration is more than a form of execution; it is a mode of recovering a debt. See Estate Logie v Priest (1926 AD 312 at pp. 319-20). It is in the highest

1931 AD p293

degree penal in consequences and amounts to a loss of civil status and carries with it grave disqualifications. For further discussion of Gillingham's case see Connolly v Ferguson (supra) and, Fabricius v Golomb and Cohen (1909. T.S. 207). The form of the proceeding is immaterial; the question is whether there is a dispute about the title for some civil right.

The test of a lis was applied in Enyati Collieries v Allison (1922 AD at p. 29) and in Collier v Redler (supra) and apparently in Hansen v Hansen's, Executors (1929 CPD 500), and in Maske and Gilbert v Aberdeen Licensing Court (1930 AD 30).

The Master v van Aardt (supra) is not in point, as the Court acted in an administrative capacity in that case, whereas in sequestration proceedings it acts in a judicial capacity.

Appeals against sequestration orders were heard in Garlick's Wholesale v Davis (1928 AD 157) and In re Provincial Trading Co. (supra), though I admit the question of jurisdiction was not raised or argued.

Horwitz v Hendricks (supra, at pp. 395, 397) does not support appellant's case.

A sequestration proceeding survives all the tests applied to "suit" in determining appealability because it creates a lis; the argument of inconvenience no longer applies; it is more than mere execution; the rights of third parties are involved. See dicta in Connolly v Ferguson (supra).

In Roman-Dutch practice sequestration proceedings do not seem to have been excluded from appeal. See Wessels' History of Roman-Dutch Law (Chapter...