Schweizer Tyres v Engelbrecht

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Hendricks JP, Djaje DJP and Petersen J
• Judgment Date: 14 April 2023
• Docket Number: CIV APP FB 21/2020
• Hearing Date: 17 February 2023
• Court: North West High Court, Mafikeng

Hendricks JP:

Introduction:

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[1]

This is an appeal against the judgment and order granted by Mahlangu AJ on 15 June 2022, in which the following order was made:

"(i)

The special plea is separated from the merits of this matter.

(ii)

The special plea is dismissed with costs.

(iii)

Each party to pay its costs of 26 July 2020."

This appeal centres around a question of law, as contended by counsel. Central to the appeal the following questions arise:

(i)

whether there is an appeal before this Court, and if so, whether the appeal is properly before this Court;

and

(ii)

whether on the merits, the court a quo was correct in finding that the common law principle with regard to jurisdiction needed to be adapted or developed to cater for the situation in which the respondent (as plaintiff) found herself, where her claim was instituted in this Court under the pretext that it has jurisdiction, when in fact the contrary was said to be the position.

[2]

A brief synopsis of the salient facts is to the effect that the respondent (as plaintiff) was in the employ of the appellant (defendant), when she sustained an injury on the 29 June 2010. A period of two (2) years and eleven (11) months later, on 04 June 2013 just before her claim could prescribe, an action was instituted by the respondent claiming delictual

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damages. A special plea of lack of jurisdiction was raised. It was contended on behalf of the appellant (as defendant) that at the time of instituting the action (claim), the magisterial district of Schweizer – Reneke did not fall within the jurisdiction of this Court, but within the jurisdiction of the Gauteng Division of the High Court, more particularly North Gauteng, Pretoria. No application to transfer the matter to the Gauteng Division of the High Court, Pretoria was made.

[3]

The Court a quo found that there was a need to adapt or develop the common law principle insofar as jurisdiction is concerned, otherwise (so it was reasoned) the respondent (as plaintiff) would be left without a court. Due to the intervention by the Legislature, so it was furthermore contended on behalf of the respondent, she was left without a court to approach for the relief she claimed.

The appeal has lapsed:

[4]

To deal with the first issue, the question arises as to whether there is an appeal before this Court. The contention on behalf of the respondent was initially that the appeal has lapsed and cannot be considered by this Court. Therefore, the appeal should be struck from the roll. This was due to the fact that security was not put up before an application was made to the Registrar of this Court for a date of hearing, hence the contention that the appeal is not properly before this Court. Reliance was placed on Rule 49 (13) (a) of the Rules of Court, which states:

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"(13) (a)

Unless the respondent waives his or her right to security or the court in granting leave to appeal or subsequently on application to it, has released the appellant wholly or partially from that obligation, the appellant shall, before lodging copies of the record on appeal with the registrar, enter into good and sufficient security for the respondent's costs of appeal.

(b)

In the event of failure by the parties to agree on the amount of security, the registrar shall fix the amount and the appellant shall enter into security in the amount so fixed or such percentage thereof as the court has determined, as the case may be. "

The contention is that in terms of Rule 49 (6) (a) and (b) that within the prescribed period, the appellant shall apply for a date of the appeal and if the appellant fails to do so, the appeal shall be deemed to have lapsed. The court hearing the appeal may upon good cause shown, reinstate the appeal deemed to have lapsed. It was further submitted that at the same time as the application for a date of hearing of an appeal is made, the appellant shall file with the Registrar and with the respondent, the required number of copies of the record. The lodging of the record and the application to the Registrar for a date of hearing of the appeal, must therefore take place at the same time but before that, the appellant must provide security for the respondent's costs of appeal.

[5]

The contention furthermore on behalf of the respondent is that Rule 49 (13) (a) is peremptory. It reads that the appellant shall before lodging copies of the record, put up security for costs. The word before in the pretext used means that the putting up of security for costs is a pre-condition

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to a valid application for a date of hearing of the appeal from the Registrar. Reliance for this proposition was placed on the case of Dr. Maureen Allem Inc v Baard 2022 (3) SA 207 (GJ).

[6]

It is common cause that there was a dispute between the two different sets of attorneys of record representing the different parties as to the amount of security for costs that should be put up by the respondent for the appeal. There was correspondence (communique) exchanged between the two sets of attorneys representing the respective parties. Without going into much detail as to what the communique entails, the net effect was that there was initially no consensus on the exact amount that needed to be put up as security for costs by the appellant. In fact, the fact that such security needed to be put up by the appellant was also contested.

[7]

This ended up in the respondent resorting to illicit the assistance of the Registrar of this Court. A letter to request intervention in the stalemate was addressed to the Registrar by the attorneys of record of the appellant. This was done in terms of Rule 49 (13) (b). This request was met with absolute silence from the side of the Registrar, who did not even have the courtesy of responding to the said letter. This omission on the part of the Office of the Registrar of this Court, is indeed regrettable.

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[8]

To add to this, the respondent knew that security for costs of the appeal was not put up by the appellant. Thus notwithstanding, the respondent did not file a notice in terms of Rule 30, as she should have done, and neither was there an application made for a declaratory order that the appeal has lapsed. These remedies were available to the respondent.

[9]

However, it did not end there. When the appellant realised that its efforts to put up security for costs are being frustrated, the attorneys of record addressed a letter to the respondent's attorneys of record in order to inform them that it is prepared to put up security for costs in the amount of R150 000.00 as requested by the respondent. A receipt as proof of payment of the requisite amount of R150 000.00 as security for costs into the appellant's attorneys trust account, was provided. Thus notwithstanding, there was still the persistence that there was non-compliance with Rule 49 (13) (a).

[10]

Adv. Pistor SC on behalf of the respondent contended that it is not sufficient to merely write a letter with this content. This does not mean that security for costs was indeed put up. No warranty or guarantee was presented. Neither was the amount of security for costs deposited into the trust account of the respondent's attorneys of record. Therefore, the contention that no security for costs was put up. Reliance for this proposition was placed in Rule 49 (6) of the Uniform Rules of Court.

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[11]

Sight should not be lost of the fact that there was an impasse with regard to the amount of security for costs requested, and that the Registrar did nothing to resolve the dispute. There was also no application made to court for an order that security be put up in the aforesaid requested amount by the respondent. But in order to avoid a situation where the appeal could not proceed because of security for costs not being put up, the appellant opted to tender the requisite amount of security for costs. I am of the view that the tender to put up the requisite security for costs, coupled with the receipt as proof of the amount of security for costs being paid, is sufficient substantial compliance with the Rules. Form should not trump substance and neither is the Court made for the Rules but vice versa.

[12]

Emphasis was furthermore placed by Adv. Pistor SC on the fact that before the application for a trial date was made, security for costs had to be put up. The contention was that time is of the essence. I am respectfully in disagreement. The fact that the security was not put up before an application for a date of hearing of the appeal was made, is in my view not crucial, especially because of the dispute about the amount of security that existed.

[13]

The Full Court of this Division has criticised the bringing of technical objections by way of oral address to the court at the date of the hearing of the appeal itself. In Quantibuild (Proprietary) Limited v Ngaka Modiri Molema District Municipality (Case No.: CIV APP

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FB12/2019, 8 December 2022), this Court per Hendricks JP (with Petersen J and Mongale AJ concurring) inter alia held:

"Of importance to note is that there is no application before this Court by the respondent seeking a declaratory order that the appeal has lapsed. This is...