Port Elizabeth Municipality v Smit

• Jurisdiction: South Africa
• Judge: Howie JA, Marais JA, Farlam JA, Brand JA and Nugent JA
• Judgment Date: 25 March 2002
• Citation: 2002 (4) SA 241 (SCA)
• Docket Number: 450/2000
• Hearing Date: 01 March 2002
• Counsel: No appearance for the respondent.
• Court: Supreme Court of Appeal

Port Elizabeth Municipality v Smit
2002 (4) SA 241 (SCA)

2002 (4) SA p241

Citation	2002 (4) SA 241 (SCA)
Case No	450/2000
Court	Supreme Court of Appeal
Judge	Howie JA, Marais JA, Farlam JA, Brand JA and Nugent JA
Heard	March 1, 2002
Judgment	March 25, 2002
Counsel	No appearance for the respondent.

Flynote : Sleutelwoorde H

Appeal — Generally — Power of Court of appeal — Power in terms of s 21A of Supreme Court Act 59 of 1959 to dismiss appeal where judgment or order sought having no practical effect or result — Parties having concluded agreement of settlement prior to hearing of appeal in terms I of which respondent withdrawing opposition to appeal and appellant agreeing to prosecute at its own risk in order to obtain outcome on issue of principle — Respondent having no remaining interest in matter — Total lack of interest on part of respondent in outcome of appeal and absence of any remaining dispute between parties weighing heavily against Court exercising its J

2002 (4) SA p242

discretion in favour of entertaining appeal on its merits — Appellant arguing that necessary for A appeal to be heard to overturn Court a quo's decision as it created an insurmountable obstacle for appellant in future litigation — Decision of Court a quo not definitive of appellant's general legal duty and authority of decision confined to proposition that, in circumstances disclosed by evidence in case, B appellant under legal duty which it failed to perform — Decision of Court a quo not binding on any other court, including magistrate's court within jurisdiction of Court a quo, except in case where facts found to be similar in all material respects — Decision on merits of Court on appeal in instant matter would be based only on argument from one side — Judgment of Court should in present circumstances be product of thorough consideration of argument C from both sides on questions that necessary for decision of case — In exercise of Court's discretion under s 21A, appeal dismissed.

Appeal — Generally — Power of Court of appeal — Power in terms of s 21A of Supreme Court Act 59 of 1959 to dismiss appeal where judgment or order sought having no practical effect or result — Quaere: Whether Court has in such circumstances power nevertheless to entertain D appeal where issue one involving a public authority as to a question of public law — Whether distinction between public law and private law justifiable in answering question whether appeal should be entertained.

Headnote : Kopnota

The appellant municipality bore the responsibility of maintaining the manhole covers in the city of Port Elizabeth. The respondent E had stepped on one of these covers which had tilted sideways, causing the respondent to fall into the manhole and sustain injuries. The respondent's successful claim for damages in the magistrate's court was upheld by the High Court on appeal. The appellant accordingly appealed to the Supreme Court of Appeal. The appellant argued that affixing hinges to its manhole covers, a step regarded as necessary by F the Court a quo to prevent a repeat of the accident leading to the proceedings in the instant matter, would be a costly operation, which would impose an undue financial burden on the appellant. After leave to appeal had been granted but before the matter was heard by the Supreme Court of Appeal, the parties concluded an agreement of G settlement wherein they agreed that the respondent would withdraw her opposition to the appeal while the appellant would prosecute the appeal at its own risk in order to obtain an outcome on the issue of principle, ie the provision of hinges for the manhole covers. The practical result of the settlement agreement was that the parties appeared to have resolved all their differences. There was therefore no dispute or lis between them. Whatever the outcome of the H appeal, it would have no effect on the respondent or the parties inter se. The question requiring consideration by the Court was therefore whether the appeal, in view of the provisions of s 21A(1) of the Supreme Court Act 59 of 1959, should be entertained at all. The appellant contended that the appeal should be entertained as it had been launched as a matter of principle with the purpose of causing the precedent established by the judgment of the Court a quo to be set aside. Were the precedent allowed to stand, the I appellant argued, the appellant and other local authorities would in terms thereof be obliged to fit hinges to all manhole covers under their control, an exercise which was totally unaffordable.

Held, that s 21A(1) provided that, when 'the issues' in an appeal were of such a nature that the judgment or order would have no practical effect or result, the appeal could be dismissed on that ground alone. The section was J

2002 (4) SA p243

premised upon the existence of an issue between the parties which required decision. When A there was no longer any issue, because it had been resolved by agreement, there was no 'appeal' that the Court had the discretion or power to deal with. For the purposes of the matter it was, however, assumed, without deciding, that the Court did have the discretion to deal with the instant appeal under s 21A. (Paragraphs [6] and [7] at 246I - 247A and 247A/B - B.) B

Held, further, assuming, without deciding, that the Court had a discretion to entertain the appeal, that the respondent had no remaining interest in the matter. Whether the appeal was successful or not made no difference to her: she had effectively abandoned the judgment in her favour. This total lack of interest on the part of the respondent in the outcome of the appeal and the absence of any remaining dispute between the parties weighed heavily against the Court C exercising its discretion in favour of entertaining the appeal on its merits. (Paragraphs [7] and [8] at 247H/I - I and 248B - C.)

Held, further, that the decision of the Court a quo was not definitive of the appellant's general legal duty. The authority of the decision was confined to the proposition that, in the circumstances disclosed by the evidence in the case, the appellant was under a legal duty which it had failed to perform. The decision was not D binding on any other court, including a magistrate's court within the jurisdiction of the Court a quo, except in a case where the facts were found to be similar in all material respects. (Paragraph [10] at 248E - F/G.)

Held, further, that from a practical point of view, the Court a quo's finding of fact was not of a kind that would, by its very nature, create an insurmountable obstacle for the appellant in future litigation. What the finding amounted to was that E on the evidence presented at the trial, the appellant had failed to establish that the fixing of hinges to its manhole covers would impose an unreasonable financial burden on it. The question of whether the Court a quo's finding was borne out by the evidence led at the trial would be of no consequence in any future case. If the appellant should in a future case produce specific and properly motivated evidence to the effect that affixing hinges to its manhole covers would indeed impose an unreasonable financial burden on it, the F result may very well be different. (Paragraph [10] at 248F/G - H/I.)

Held, further, that as to future litigation against other local authorities, the possible adverse influence of the Court a quo's findings of fact were even more remote. Whether it was reasonable to require a particular authority to...