South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Trollip JA, Rabie JA, Corbett JA and Miller JA
• Judgment Date: 13 May 1977
• Hearing Date: 22 March 1977
• Court: Appellate Division

Corbett, J.A.:

The applicant in this matter was defendant in an action instituted in the Witwatersrand Local Division by the respondent. On 1 October 1976 the trial Judge gave judgment in favour of the respondent and ordered applicant to pay to respondent the sum of R111 700,50, together with interest and D costs. Thereafter applicant duly noted an appeal to this Court against the whole of the judgment and order of the trial Court. The hearing of this appeal is presently pending.

The noting of the appeal had the effect of suspending execution of the judgment and order of the trial Court (see Reid and Another v Godart and Another, 1938 AD 511 at p. 513). Respondent thereupon made application in the same Division for leave to execute the judgment, subject to the furnishing of E security de restituendo. This application was opposed by the present applicant. The application initially came before a single Judge of the Division (HUMAN, J.). There were, however, two recent judgments in the Transvaal, Sambo v Milns, 1973 (1) SA 451 (T) F , and Swerdlow and Another v Levine, 1976 (2) SA 74 (W), both single Judge decisions, in which conflicting views had been expressed as to the Court's approach to applications for leave to execute a judgment sounding in money only. HUMAN, J., decided that, in view of this conflict, the matter should be referred for hearing to a Full Bench of the Transvaal G Provincial Division. It is clearly to be inferred that, in doing so, the learned Judge acted in terms of sec. 13 (1) (b) of the Supreme Court Act, 59 of 1959, (hereinafter referred to as "the Act"). The application was thereafter heard by a Full H Bench consisting of HIEMSTRA, NICHOLAS and TRENGOVE, JJ. At the conclusion of the argument on the application the Full Bench made an order granting leave to execute, subject to the furnishing of security de restituendo, together with certain ancillary relief, and stated that reasons would be furnished later. This was subsequently done, the reasons being contained in a judgment by NICHOLAS, J., Concurred in by the other two members of the Court (see 1977 (2) SA 64 (T)). The order of the Court contains the following two paragraphs:

"5.

That leave to appeal to the Appellate Division of the Supreme Court against this order be and it is hereby refused.

Corbett JA

6.

That the execution mentioned in para. 1 above, be and it is hereby stayed pending an application to the Honourable Chief Justice for special leave to appeal within the period laid down in sec. 21 (3) (a) of the Supreme Court Act."

A (Para. 1 of the order is that granting leave to execute the judgment of 1 October 1976.)

The record contains no other reference to an application for leave to appeal to this Court against the order of the Full Bench. There is no mention thereof in the judgment of NICHOLAS, J. At the hearing before us, however, we were informed from the Bar that, after the Full Bench had announced its decision granting leave to execute, counsel for applicant (respondent before the Full Bench) made application verbally for leave to B appeal. This was refused (as is recorded in para. 5 of the order above). Thereupon applicant's counsel applied for a stay of execution, pending an application to the Chief Justice for leave to appeal within the period laid down in sec. 21 (3) (a) of the Act. This application was granted (see para. 6 of the C order, quoted above).

The application to this Court, by way of a petition to the Chief Justice, was then made and was referred, in terms of sec. 1 (3) (c) of the Act, to the Full Court for consideration. This is the matter now before us.

It is unfortunately not possible to determine, either from the record or from what counsel were able to tell us from the Bar, upon what basis leave to appeal to this Court was considered D and refused by the Full Bench. The reference in para. 6 of the order to sec. 1 (3) (a) of the Act seems to suggest that the Court dealt with the application as being one falling under sec. 21 (2); but it is clear that sec. 21 (2) has no application to this case. This is evident from the terms of E sec. 21 (2) (a), read together with sec. 21 (1). The latter sub-section empowers the Appellate Division generally to hear and determine an appeal from any decision of the Court of a Provincial or a Local Division. Sec. 21 (2) (a), however, limits this by providing, inter alia, that there shall be no such appeal "on any decision given by any division on appeal to it" except with the leave of the Court of that Division or, failing that, with the leave of the Appellate Division, granted F on application made to it. As the sub-section states, this limitation only relates to decisions of a Provincial Division "on appeal to it". The decision of the Full Bench in this case, granting leave to execute, was not given on appeal to it. Under the procedure provided for by sec. 13 (1) (b) of the Act the Full Bench was functioning as a Court of first instance. Consequently, sec. 1 (2) (a) did not apply and under sec. 21 no G leave to appeal was required.

Because of this counsel were asked, before the hearing, to be prepared to deal with the question as to whether the application to this Court for leave to appeal was necessary at all. At the hearing, however, respondent's counsel raised, by H way of a point in limine, an entirely new aspect of the matter. He submitted that the order made by the Full Bench, granting leave to execute, was an interlocutory one against which there was, in terms of sec. 20 (2) (b) of the Act, no right of appeal, save with the leave of the Court which made the order; that the leave of this Court, viz. the Full Bench, had been sought and refused; that under these circumstances it was clear (from the decision of this Court in Miller v Zinman,

Corbett JA

1957 (1) SA 44 (AD)) that the Appellate Division did not have any jurisdiction to entertain an application for leave to appeal; and that that was the end of the matter. Respondent's counsel conceded that this submission was entirely dependent on the argument that the order was an A interlocutory one and that should it fail the position was that no leave to appeal was necessary, i.e., the applicant had an unconditional right of appeal. In that event, counsel for both parties were agreed that this Court should deal with the application as if it were a properly noted appeal against the judgment of the Full Bench. In the circumstances, the Court proceeded to hear argument both on the point in B limine and on the merits of the application for leave to execute.

The crucial issue raised by the point in limine is thus whether the order given by the Full Bench granting leave to execute the judgment of 1 October 1976. subject to the furnishing of security de restituendo, was an interlocutory one or not. Before dealing with this, however, I propose to make some general observations in regard to applications for C leave to execute and the approach of the Court in regard thereto. Conflicting decisions have created some uncertainty in this field: this aspect of the matter was fully argued before us; it is a procedural question, and in all the circumstances we deem it necessary for us to deal with it.

A large number of decisions relating to the applications for leave to execute judgments pending appeal were cited to us from the Bar. Most of these were referred to in the judgment of the D Court a quo. I do not propose to consider and discuss these and other relevant authorities in detail. It is sufficient for the purposes of this judgment to note certain broad trends which they reveal and to E state, in brief, the principles which are properly to be deduced therefrom.

At the outset it should be stressed that the Act repealed various Union and pre-Union statutes which made provision for the granting of leave to execute a Superior Court judgment pending an appeal and did not, itself, substitute any similar provision. Two consequences flow from this. Firstly, since there is now no statutory provision relating, inter alia, to applications for leave to execute a Superior Court judgment pending an appeal to the Appellate Division, the common law F would apply thereto. Here I might interpolate the fact that counsel seemed to accept that Rule 49 (11) of the Uniform Rules of Court did not apply to appeals to the Appellate Division. Despite the title to the Rule, there are indications that sub-rule (11) may possibly be G applicable to such appeals but it is not necessary to decide this point. In any event. Rule 49 (11) does not appear to add to, or detract from, the common law position. I shall, accordingly, proceed on the assumption that it does not apply. Secondly, since many of the cases cited to us were decided when these repealed statutes were still in H operation, one of the problems which arises is whether the decisions in those cases were influenced by the relevant statutory provisions; and, if so, to what extent they can still be regarded as authoritative. I shall return to this problem later.

Whatever the true position may have been in the Dutch Courts, and more particularly the Court of Holland (as to which see Ruby's Cash Store (Pty.) Ltd. v Estate Marks and Another, 1961 (2) SA 118 (T) at pp. 120 - 3), it is today the accepted common law rule of practice in our

Corbett JA

Courts that generally the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with the leave of the Court which granted the judgment. To obtain such leave the party in whose favour the judgment was given must make A special application. (See generally Olifants Tin "B" Syndicate v De Jager, 1912 AD 377 at p. 481; Reid and Another v Godart and Another, 1938 AD 511 at p. 513; Gentiruco A.G...