Trade Fairs and Promotions (Pty) Ltd v Thomson and Another
Jurisdiction | South Africa |
Judge | Coetzee J |
Judgment Date | 25 June 1984 |
Citation | 1984 (4) SA 177 (W) |
Hearing Date | 13 June 1984 |
Court | Witwatersrand Local Division |
Coetzee J:
Anton Piller Is a Die-Hard Alright. Even More So Than I Thought in Economic Data Processing (Pty) Ltd and Others v Pentreath 1984 (2) SA 605 (W) at 606. He Has Also the Best of British Luck on His Side. I Had Believed that This Decision Had Contributed a Nail to the Coffin in which He Was Thereafter Finally Laid to Rest by the Full Court of the Transvaal Provincial Division in Cerebos Food Corporation v Diverse Foods SA (Pty) Ltd and Another (25 May 1984 [*]). But Something Happened on the Way to the Funeral. Apparently He Escaped. for If Mr Heher's Argument on Behalf of Applicant upon This Return Day of an Anton Piller Is Correct, He Is Probably Alive and Tolerably Well and Living in Johannesburg. This Return Day Has Been D Extended from Time to Time to Await the Result of the Cerebos Food Case which Was Expected Would be Authoritatively Decisive of This Case. But That, as IT Now Seems, If I Have to Accept Counsel's Argument, Was Not to Be. the Problem Is that the Cerebos Food Case Is a Nullity as IT Was Decided by the Wrong E Court - the Full Court of the Transvaal Provincial Division ("Tpd") Instead of the Full Court of the Witwatersrand Local Division ("Wld").
The respondents' interests are obviously better served if the Cerebos Food case should turn out to be binding in all respects. Yet their counsel, Mr Schutz, has fairly conceded that it is a nullity. Despite that concession it is, in view of F the importance of this problem, imperative to investigate this aspect carefully.
Shortly after I had given a judgment in the Economic Data case, the Cerebos Food application for an Anton Piller (case No 4366/84) came before STEGMANN AJ in the WLD. Faced with conflicting decisions on a question of principle, he referred G the application to a Full Court. I quote his order in full:
"It is ordered:
That the matter is to be dealt with in camera unless and until the Full Court orders otherwise;
that in terms of s 13 (1) (b) of Act 59 of 1959 the matter is referred to a Full Court of this Division;
that the senior available Judge is requested to note that the matter is one of urgency and to exercise his power to constitute a Full Court in terms of s 13 (1) (a) as soon as may be possible;
that counsel is to be appointed by the Court to argue the matter on behalf of potential respondents in applications for Anton Piller orders;
that the Registrar is requested to communicate with the senior Judge in this regard;
that the costs be and are hereby reserved."
An official in the Registrar's office thereupon forwarded the whole file together with the above-quoted order to the Registrar of the TPD in Pretoria to be dealt with there in terms of the order. He obviously
Coetzee J
A made the same mistake that even some practitioners sometimes make by thinking, inaccurately, of the WLD as a part of the TPD and not as a completely separate Division. In Pretoria a Full Court of the TPD (BOSHOFF JP, VAN DIJKHORST J and O'DONOVAN J) was constituted to continue the hearing of the matter. Their judgment (per VAN DIJKHORST J) was delivered on 25 May 1984 as B a judgment of the TPD in case No 4366/84 which was commenced by notice of motion in the WLD on 23 February 1984. The opening paragraphs of the judgment of VAN DIJKHORST J read as follows:
"This application was brought before STEGMANN AJ ex parte and as a matter of urgency for what was called an Anton Piller order to obtain possession of specified documents belonging to C the applicant and alleged by the applicant to be of a highly confidential nature and of great importance to the applicant.
STEGMANN AJ ordered that the application be heard in camera since he was of the view that the facts disclosed in the papers justified a departure from the provisions of s 16 of the Supreme Court Act 59 of 1959, which prescribes that the proceedings be carried on in open Court. Because of conflicting decisions about Anton Piller orders and the fact that he regarded the matter as one of considerable public importance, D he discontinued the hearing of the matter and referred it, under and by virtue of the provisions of s 13 (1) (b) of that Act, to this Court for hearing. He ordered that the matter be dealt with in camera unless and until this Court ordered otherwise.
The facts as they appear from the applicant's founding papers are these."
It is evident from the aforegoing that, per incuriam, it was accepted by the learned Judges that the matter had been E referred to the Full Court of the TPD ("to this Court") for hearing. STEGMANN AJ, sitting in the WLD, had actually referred it "to a Full Court of this Division", which is clearly the WLD. There is indeed no provision in the Supreme Court Act 59 of 1959 for the reference of any proceedings to the Full Court F of another Division. Only on the application of a party thereto may the whole of the proceedings be removed from one Division to another. But that is not what happened here. This is clear ex facie the judgment. And the Full Court of the WLD is not the Full Court of the TPD. A brief history of these two Divisions is, under the circumstances, not inapposite.
The genesis of the two Supreme Courts in the Transvaal in the G post Zuid-Afrikaansche Republiek era, is the Administration of Justice Proclamation promulgated on 10 April 1902 by the Governor of the new colony. There was then created the High Court of the Transvaal to be held in Pretoria (ss 1 and 22). For the Witwatersrand area a Supreme Court called "The H Witwatersrand District Court" or simply "District Court" was established (s 24). In terms of s 25 of this proclamation, the District Court
"shall be holden at Johannesburg before the Judge-President or any one of the Judges of the High Court of the Transvaal, and for the despatch of business it may sit in more than one Division at the same time, each such division to be constituted of a single member. Every sitting of a Division so constituted shall in law be considered to be and shall have all the I consequences of an ordinary sitting of the said District Court".
An appeal lay from the District Court to the High Court of the Transvaal which had to be heard "before not less than three members thereof" (s 38).
Shortly after promulgation of the Governor's proclamation, the newly established Legislative Council enacted the Supreme Court Establishment
Coetzee J
Ordinance 2 of 1902 on 4 July 1902. The Administration of A Justice Proclamation was re-enacted as part of this ordinance with a few changes of mostly cosmetic nature. The "High Court of the Transvaal" became "Supreme Court of the Transvaal" or "Supreme Court". The "Witwatersrand District Court" became "Witwatersrand High Court" or "High Court". Wherever "Judge-President" occurred in the proclamation, "Chief Justice" B was substituted (s 3). Section 2 provided that the Witwatersrand High Court "shall be constituted of a single Judge of the Supreme Court".
In terms of ss 98 and 99 of the South Africa Act 1909, these two Divisions became the Transvaal Provincial Division of the Supreme Court of South Africa and the Witwatersrand Local C Division of the Supreme Court of South Africa respectively, within their respective areas of jurisdiction as they existed at the establishment of the Union. The Chief Justice of the Transvaal Supreme Court became the JudgePresident of the Transvaal Provincial Division. Otherwise the proclamation and Ord 2 of 1902 continued to apply until their repeal in 1959 by the Supreme Court Act. A few D observations relevant to the present issue may be made about this period of 1902 to 1959:
The WLD does not have a Judge-President.
The Judge-President of the TPD or any one of the Judges of the TPD may hold Court sitting singly, at the seat of this Division. Its seat is Johannesburg. E There is thus no Full Court in this Division and when the Judge-President sits in Johannesburg he is not there as Judge-President of the WLD.
The WLD is not part of the TPD. These are two separate Divisions of the Supreme Court of South Africa established in 1910.
The Supreme Court Act 1959 in s 2 constituted the Supreme Court of South Africa consisting of the several Divisions mentioned F in the First Schedule in which their names, their seats (see also s 4 (1)) and their areas of jurisdiction are specified. The TPD and the WLD thus continue as two separate Divisions, with the WLD having concurrent jurisdiction in the Witwatersrand area. The TPD consists of a JudgePresident and G other Judges (s 3 (2)) whereas the WLD still has no Judge-President. Section 3 (4) simply provides that any Court of the WLD shall be presided over by "a Judge" of the TPD. When the Judge-President therefore sits in Johannesburg he sits as a Judge of the TPD and not qua Judge-President. It is strange that the opportunity was not taken to provide that the Judge-President of the Transvaal Provincial Division is also H the Judge-President of the WLD and so give the de facto position which had already endured for 57 years, also de jure status for the future. So that the position is still that when the Judge-President is not in Johannesburg he does not legally fulfil any function in Johannesburg qua Judge-President. And that in a Division which, from the aspect of volume of work, is I the biggest in South Africa.
An important departure, however, from the previous legislative regime is that the provision that only a single Judge can sit in the WLD was not retained. On the contrary a Full Court could now be constituted. Section 1 (v) defines "Full Court" as "a Court of two or more
Coetzee J
A Judges" and a "Division" simply as a Division of the Supreme Court. The important sections relating to the constitution of the Courts are ss (1) (a) and (b) of s 13, which in the original Act read as follows:
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