John Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (In Liquidation) and Another

• Jurisdiction: South Africa
• Citation: 2018 (4) SA 433 (SCA)

John Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (In Liquidation) and Another
2018 (4) SA 433 (SCA)

2018 (4) SA p433

Citation	2018 (4) SA 433 (SCA)
Case No	245/2017; [2018] ZASCA 12
Court	Supreme Court of Appeal
Judge	Shongwe ADP, Willis JA, Mocumie JA, Mothle AJA and Rogers AJA
Heard	March 8, 2018
Judgment	March 8, 2018
Counsel	JP Broster for the applicant.; GME Lotz SC for the first respondent.

Flynote : Sleutelwoorde

Appeal — Power of court on appeal — Power to dismiss appeal where judgment or order sought would have no practical effect or result — To be determined C without reference to costs, save under exceptional circumstances — Costs meaning costs in court a quo, not appellate court — Superior Courts Act 10 of 2013, s 16(2)(a).

Appeal — Leave to appeal — Application — Costs — Proposed appeal becoming moot during pendency of application in Supreme Court of Appeal — Liability D for costs in application — Time when matter became moot relevant — Duty of litigants to make reasonable proposals inter se on costs — Prospects on merits and conduct of parties.

Costs — Application for leave to appeal — Proposed appeal becoming moot during pendency of application in Supreme Court of Appeal — Liability for E costs in application — Time when matter became moot relevant — Duty of litigants to make reasonable proposals inter se on costs — Prospects on merits and conduct of parties.

Headnote : Kopnota

The first respondent (CAT) obtained an order in the KwaZulu-Natal High Court, Pietermaritzburg, evicting the applicant business (JWP) from shop premises F in a mall on the ground of unlawful occupation. JWP's defence was that it had a lease with the second respondent (ICT). The High Court granted the eviction order and refused leave to appeal. On 15 March 2017 JWP applied for leave to appeal in the Supreme Court of Appeal. JWP's lease expired at the end of September 2017. After the filing of answering and replying papers, the SCA heard the application on 23 February 2018. Given the G termination of JWP's lease, questions of mootness and liability for costs arose. Counsel for JWP conceded that the only practical effect which an appeal order would have was in relation to costs.

Section 16(2)(a) of the Superior Courts Act 10 of 2013 provides that an appeal should be dismissed if it would have no practical effect or result, which must — save in exceptional circumstances — be determined without reference H to costs. [*] Counsel for JWP conceded before the SCA that the only practical effect an appeal order would have was in relation to costs.

2018 (4) SA p434

Held A

It was clear that a decision on appeal would have no practical result: at best for JWP, an appeal court could find that it was entitled to occupy the premises until the end of September 2017, a matter that had become academic (see [7]). The costs referred to in s 16(2)(a)(ii) were the costs in the court below, and, if these were substantial, it might constitute an exceptional B circumstance leading to the conclusion that a reversal of that court's decision would have practical effect (see [8]). Since there were no exceptional circumstances which required reassessment of the costs order in the court a quo, leave to appeal had to be refused (see [9]).

The remaining question was what to do about the costs of the application in the C Supreme Court of Appeal. This would generally depend on when the matter became moot. If it was already moot when leave to appeal was first sought, it would generally be appropriate to order the appellant to pay costs, since the proposed appeal was stillborn from the outset. Different considerations applied where mootness supervened at a later stage. Parties to D proceedings that became moot during the pendency of appellate proceedings had a duty to make sensible proposals inter se to avoid the need for intervention by the appellate court. Proposals had to be informed by a realistic view on prospects of success, and take into account the costs already incurred; additional costs that would be incurred if the appellate proceedings were not promptly terminated; the size of the appeal record; and how long it might take an appellate court to form a view on the merits E of the moot appeal. (See [10].)

Costs in the present application were already substantial by the time the matter became moot. The record was short and it was not difficult to form a view on the merits, which favoured CAT. Given JWP's bleak prospects on the merits and its failure to pay rent while pursuing an unmeritorious application, F it should be ordered to pay the costs of the application (see [11] – [16]). Application accordingly dismissed with costs (see [17]).

Cases cited

Airports Company South Africa Ltd v Airport Bookshops (Pty) Ltd t/a Exclusive Books 2017 (3) SA 128 (SCA) ([2016] ZASCA 129): dictum in para [24] G applied

Chetty v Naidoo 1974 (3) SA 13 (A): dictum at 20A – E applied

Ellerine Brothers (Pty) Ltd v McCarthy Ltd 2014 (4) SA 22 (SCA) ([2014] ZASCA 46): dictum in para [5] applied

Ntai and Others v Vereeniging Town Council and Another 1953 (4) SA 579 (A): H dictum at 589A – D applied

Oudebaaskraal (Edms) Bpk en Andere v Jansen van Vuuren en Andere 2001 (2) SA 806 (SCA): dictum at 812D – E applied.

Legislation cited

Statutes

The Superior Courts Act 10 of 2013, s 16(2)(a): see Juta's Statutes of South Africa I 2016/17 vol 1 at 2-265.

Case Information

JP Broster for the applicant.

GME Lotz SC for the first respondent.

An application for leave to appeal. It...