Wellington Court Shareblock v Johannesburg City Council; Agar Properties (Pty) Ltd v Johannesburg City Council

• Jurisdiction: South Africa
• Citation: 1995 (3) SA 827 (A)

Wellington Court Shareblock v Johannesburg City Council;
Agar Properties (Pty) Ltd v Johannesburg City Council
1995 (3) SA 827 (A)

1995 (3) SA p827 F

Citation	1995 (3) SA 827 (A)
Case No	704/93
Court	Appellate Division
Judge	Joubert JA, Botha JA, Nienaber JA, Van den Heever JA and Olivier JA
Heard	May 7, 1995
Judgment	May 31, 1995

Flynote : Sleutelwoorde

G Appeal — In what cases — Against dismissal of exception that respondent's particulars of claim disclosed no cause of action — Appellant alleging that agreement between it and respondent local authority ultra viresin that it did not conform to requirements of relevant by-laws — Court a quo ('Court') having assumed that agreement indeed ultra vires but held that appellant, having received benefits under contract, estopped from raising H ultra vires defence — Exception accordingly dismissed — Whether order an appealable 'judgment or order' for purposes of s 20 of Supreme Court Act 59 of 1959 — In order to be appealable, judgment or order to be final in effect — Court should have decided exception — If it decided, instead of assumed, that point was good, exception would have succeeded and order I would have been appealable — If point were held to have been bad, exception would have been dismissed — However, despite Court's subversion of point taken on exception and certain other procedural innovations, proceedings having remained in form, effect and relief claimed nothing J more than exception that was dismissed — No relief claimed which would

1995 (3) SA p828

A have been definitive of rights of parties if exception failed — Exception having been dismissed, action to continue to trial and final relief following if respondent proves remainder of its case against appellant — Mechanism chosen by parties to have validity of agreements tested as preliminary issue by way of exception suffering from flaw that only B appealable if decision went against respondent — Decision accordingly not appealable.

Headnote : Kopnota

The appellants, each of whom owned immovable property within the respondent's municipal jurisdiction, concluded agreements with the respondent in terms of which the respondent was to supply the properties in question with electricity and water. In its particulars of claim in an C action in a Local Division the respondent alleged that the appellants were liable to it for the payment of certain amounts in respect of such services. The appellants excepted to these particulars on the ground that the agreements were ultra vires the relevant by-laws and could accordingly not support a claim for payment. The Local Division assumed, for the sake of argument, that the agreements were indeed ultra vires, but held, on the authority of a long line of cases, that the appellant, having received benefits under the contract, was estopped from raising the ultra vires D defence. In the result both exceptions were dismissed with costs. The only question on appeal was whether the orders made were appealable judgments or orders for the purposes of s 20 of the Supreme Court Act 59 of 1959. The appellants argued, inter alia, that the Court a quo's reference to estoppel amounted to finding of fact which was res judicata between the parties.

Held, that to be appealable a judgment or order had, in the first place, to be final in effect, that is to say not susceptible to alteration by the Court of first instance. (At 832G/H-H.)

E Zweni v Minister of Law and Order 1993 (1) SA 523 (A) applied.

Held, further, that the appellants' abovementioned argument was untenable: the Court a quo was deciding an exception, and had heard no evidence; consequently it could make no findings, let alone a finding which bound both the parties and the Court itself. The reference to estoppel was no more than an attempt to suggest a juristic rationale or analogy for the F rule which was applied to dispose of the exception. (At 833E/F-F/G.)

Held, further, that there was another consideration that deserved attention, viz that the appellants were anxious to have the point formulated in their exceptions tested in limine, and both the respondent and the Court a quo co-operated by acceding to a procedure which was patently irregular as far as form was concerned in that the exceptions were taken only after a full exchange of pleadings: the Court a quo was G asked to have regard to extraneous material, more particularly the provisions of certain by-laws, which in the ordinary course would require proof; and then the Court short-circuited the whole procedure by assuming the correctness of the point taken on exception but refuting it with an alien one. The product was a hybrid procedure, part exception, part point in limine, part stated case. (At 833J-834A/B and 834B-E.)

Held, further, that in determining the appealability of a decision the H emphasis had to be on effect rather than on form. (At 834A/B-B.)

Held, further, that the Court a quo should have grasped the nettle and decided the exception: if the Court had decided (instead of assumed) that the point was good, the exceptions would have succeeded and the orders granted would have been appealable; if, on the other hand, the point taken had been held to be bad, the exceptions would have been dismissed on that ground and the decisions would not have been appealable for the reason I that 'an order dismissing an exception is not the final word in the suit on that point'. (At 834E-F and 834H-I.)

The dictum in Blaaubosch Diamonds Ltd v Union Government (Minister of Finance) 1915 AD 599 at 601 applied.

Held, further, that, even though matters did not run this course, and notwithstanding the subversion of the point taken on exception and the other procedural innovations mentioned, the present proceedings remained in form, effect and relief claimed nothing more than exceptions that were dismissed: had they been cast as stated cases in which the parties agreed J that if the appellants' point failed judgment would

1995 (3) SA p829

A be entered in favour of the respondent and if it succeeded the respondent's claim would be dismissed, the ultimate decision, whichever way it went, would have been a 'judgment or order' and as such appealable in principle. (At 834I-835A/B.)

Held, further that, by way of contrast, no relief was claimed in the present case which would be definitive of the rights of the parties if the exceptions were to fail, nor was it the sort of case where it was incontrovertible on the papers that the ultimate relief claimed in the action, or special defence which would be destructive of such relief, B hinged solely on the point taken in the exception: here, the exceptions having been dismissed, the actions were to continue to trial, and final relief would follow only if the respondent proved the remainder of its cases against the two appellants. (At 835A/B-D/E.)

Held, further, that the mechanism chosen by the appellants, and concurred in by the respondent, to have the validity of the agreement tested as a preliminary issue by way of exception suffered from the flaw that it would only have been appealable if the decisions went against the respondent. C (At 835E/F-F.)

The appeals against the dismissal of exceptions in the Witwatersrand Local Division in Johannesburg City Council v Wellington Court Shareblock; Johannesburg City Council v Agar Properties (Pty) Ltd accordingly struck from the roll.

The following cases were cited in the judgment of the Court:

Barnard v Celliers 1929 EDL 106 D Benator NO v Worcester Court (Pty) Ltd 1983 (4) SA 126 (C)

Blaauwbosch Diamonds Ltd v Union Government (Minister of Finance) 1915 AD 599

Bloemhof Village Council v Calder 1924 TPD 7

Caroluskraal Farms (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk; Red Head Boer Goat (Edms) Bpk v Eerste Nasionale Bank van E Suider-Afrika Bpk; Sleutelfontein (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk 1994 (3) SA 407 (A)

Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (E)

Elgin Brown & Hamer (Pty) Ltd v Industrial Machinery Suppliers (Pty) Ltd 1993 (3) SA 424 (A)

Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (2) 1988 (2) SA 360 (W) F Group Five Building Ltd v Government of the Republic of South Africa (Minister of Public Works and Land Affairs) 1993 (2) SA 593 (A)

Jones v Krok 1995 (1) SA 677 (A)

Laing v Caledon Municipality (1909) 19 CTR 599

Makhothi v Minister of Police 1981 (1) SA 69 (A)

Mba v Southern Insurance Association Ltd 1981 (1) SA 122 (Tk)

Morland v Niehaus 1973 (1) SA 240 (C)

Proud Investments (Pty) Ltd v Lanchem International (Pty) Ltd 1991 (3) SA 738 (A) G Raad vir Kuratore vir Warmbad Plase v Bester 1954 (3) SA 71 (T)

SA Hotels Ltd v City of Cape Town 1932 CPD 229

Serobe v Koppies Bantu Community School Board 1958 (2) SA 265 (O)

Sandton Town Council v Erf 89 Sandown Extension 2 (Pty) Ltd 1988 (3) SA 122 (A)

South African Motor Industry Employers' Association v South African Bank of Athens Ltd 1980 (3) SA 91 (A) H South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A)

Trakman NO v Livshitz and Others 1995 (1) SA 282 (A)

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