Service Trade Supplies (Pty) Ltd v Dasco & Sons (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Dowling J, Cillié J and Trollip J
• Judgment Date: 25 May 1962
• Court: Transvaal Provincial Division
• Hearing Date: 21 March 1962
• Citation: 1962 (3) SA 424 (T)

Dowling, J.:

This is an appeal from an order of GALGUT, J., dismissing B the application of a creditor for a provisional winding-up order against respondent company.

My Brother CILLIÉ raised a point in limine whether the order in question was appealable. In Gillingham v Transvaalsche Koelkamers Beperkt, 1908 C T.S. 964, it was held that parties to sequestration proceedings were not 'parties to a civil suit or action' in terms of sec. 39 of the Administration of Justice Proclamation, 14 of 1902, with the right of appeal in terms of that section. This case was applied to winding-up proceedings in Collier v Redler and Another, 1923 AD 640, in which the Court held that a winding-up order was not appealable in terms of D sec. 104 of the South Africa Act which conferred a right of appeal in 'civil suits'.

Sec. 3 (c) of Act 1 of 1911, introduced by sec. 106 of Act 46 of 1935, provided

'(c) For the purpose of determining the question whether an appeal does or does not lie from any order or judgment of a Judge or court, the words 'civil case' or 'civil suit' or 'civil action' in any law shall, E subject to the provisions of para, (b) and subject to the provisions of any law which specially limits the right of appeal in any particular matter, be deemed to include any civil proceedings whatsoever'.

This provision considerably enlarged the range of appealable orders.

Sec. 103 and 104 of the South Africa Act and sec. 3 of Act 1 of 1911 F governing appeals in civil matters have been repealed by the Supreme Court Act, 59 of 1959, which maintains the enlargement to which I have referred. Sec. 20 (1) of that Act provides

'An appeal from a judgment or order of the court of a provincial or local division in any civil proceedings may be made - (a) in the case of a judgment or order given or made by a single judge of any division, other than the South West Africa division, on application by way of motion or petition or on summons for provisional sentence or in a trial G case in which the defendant is in default or as to costs only which by law are left to the discretion of the court, to the full court of the division concerned or where that division is a local division to the full court of the provincial division which exercises concurrent jurisdiction in the area of jurisdiction of such local division; and (b) in any other case, including an appeal against a judgment or order given or made on appeal, to the appellate division.'

Sec. 20 (2) provides:

H 'The following provisions shall apply in connection with appeals under subsec. (1), namely - (c) the right of appeal shall be subject to the provisions of any law which specifically limits that right.'

The limitation formerly created by the use of the words 'civil suit or proceedings' and 'civil suit' has disappeared, and the cases which I have quoted above are no longer of application.

Sec. 159 of the Companies Act, 46 of 1926, as amended, provides:

'An appeal from any order or decision made or given for or in the winding-up of a company by the Court under this Act shall lie in the same manner and

Dowling J

subject to the same conditions as an appeal from any order or decision of the Court in cases within its ordinary jurisdiction.'

The question arises whether there is anything in sec. 159 of the Companies Act which 'specifically limits' the right of appeal.

A It might be thought that by an application of the maxim expressio unius est exclusio alterius appeals against

'any order or decision made or given for or in the winding-up of a company' are confined to such orders or decisions.

The order against which it is sought to appeal in the present case is B not an order 'for or in the winding-up of a company' for there has been no winding-up order. The issue under discussion has been the subject of Court decisions. In Mahomed v Kazi's Agencies (Pty.) Ltd. and Others, 1949 (1) SA 1162 (N), the first part of the head-note reads:

'A single Judge had discharged a rule nisi calling upon all interested parties to show cause why a judicial management order should not be C cancelled and the company placed under compulsory liquidation, and had granted an application of another creditor sanctioning a compromise approved of by the majority in value and number of creditors at a meeting called under sec. 103 (1) of Act 46 of 1926.

Held, that an appeal to the Full Bench lay against both orders.'

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