Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Rabie CJ, Jansen JA, Corbett JA, Trengove JA and Hoexter JA
• Judgment Date: 06 March 1986
• Hearing Date: 21 November 1985
• Court: Appellate Division

Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986 (2) SA 555 (A)

1986 (2) SA p555

Citation	1986 (2) SA 555 (A)
Court	Appellate Division
Judge	Rabie CJ, Jansen JA, Corbett JA, Trengove JA and Hoexter JA
Heard	November 21, 1985
Judgment	March 6, 1986

Flynote : Sleutelwoorde

Statute — Interpretation of — Report of judicial commission of enquiry shortly preceding passing of statute — B Court entitled to have regard to such report to ascertain mischief aimed at by statute, provided a clear connection between subject-matter of enquiry and recommendations of report and statutory provisions in question present.

Appeal — Leave to appeal — From Full Bench to Appellate Division — "Special leave" to be granted by Appellate Division in terms of s 20 (4) (a) of the Appeals Amendment Act C 105 of 1982 where matter on appeal before Full Bench does not merit attention of Appellate Division due to nature of questions of law and fact and other considerations involved — Nature of "special leave" — Implies something more than ordinary requirement of reasonable prospects of success on appeal — Appellate Division to determine what these special D circumstances are.

Headnote : Kopnota

Our Courts are entitled, when construing the words of a statute which are not clear and unambiguous, to refer to the report of a judicial commission of enquiry whose investigations shortly preceded the passing of the statute in order to ascertain the E mischief aimed at by such statute, provided that there is a clear connection between, on the one hand, the subject-matter of the enquiry and recommendations of the report and, on the other hand, the statutory provisions in question.

The Court, having had regard to the Third Interim Report of the Hoexter Commission of Enquiry, concluded that it was the intention of the Legislature in enacting the Appeals Amendment Act 105 of 1982, which it did in consequence of the recommendations contained in the Interim Report, to

1986 (2) SA p556

A reduce the workload of the Appellate Division and to place a qualitative limitation on the kind of appeals heard by it, by diverting to the Full Court of a Provincial Division appeals which, because of the "questions of law and of fact and the other considerations involved", do not merit the attention of the Appellate Division (s 20 (2) (a)). It would therefore be contrary to this general intention to permit a further appeal B from the decision of the Full Court to the Appellate Division in terms of s 20 (4) (a) merely on the grounds that there were reasonable prospects of success on appeal. This consideration reinforces the view that the concept of "special leave" required by s 20 (4) (a) imports criteria additional to those inherent in the concept of "leave" in s 20 (4) (b). The Legislature intended to leave it to the Appellate Division to determine what these additional requirements for the grant of "special leave" are. It is neither necessary nor desirable for C the Appellate Division to indicate with precision what these requisites are, but the general principle is that an applicant for "special leave" to appeal must show, in addition to the ordinary requirement of reasonable prospects of success, that there are special circumstances which merit a further appeal to the Appellate Division. Examples of such special circumstances would be (a) where the appeal raises a substantial point of law; (b) where the matter is of very great D importance to the parties or of great public importance or (c) where the prospects of success are so strong that the refusal of leave to appeal would probably result in a manifest denial of justice. These are, however, not exhaustive of the concept of special circumstances and the Appellate Division will be the arbiter as to whether such circumstances exist.

The decision in the Transvaal Provincial Division in Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd reversed. E

Case Information

Appeal from the decision of the Full Bench of the Transvaal Provincial Division (VAN DIJKHORST J, LE GRANGE J and BLISS AJ). The facts appear from the judgment of CORBETT JA.

D Marais, for the appellant, referred to the following F authorities: Christie: The Law of Contract in South Africa; Woods v Walters 1921 AD 303, Cole v Stuart 1940 AD 399; Nathan, Barnett and Brink Uniform Rules of Court; R v Kuzwayo 1949 (3) SA 761; S v Ackerman en 'n Ander 1973 (1) SA 765; Haine v Podlashuc and Nicolson 1933 AD 104; McDonald v City Council of Johannesburg 1934 AD 234; Herbstein and Van Winsen The Civil G Practice of the Superior Courts in South Africa 3rd ed and Video Parktown North v Paramount Pictures Corp 1984 (2) SA 736.

F J Jooste for the respondent: Although s 24 (4) (a) refers to "special leave" and ss (b) then to "leave", no stricter test is to be applied in considering the granting of leave to appeal in H terms of ss (a). Before the amendment of s 21 of the Act, the English text of the previous s 21 (3) (a) referred to "special leave" as opposed to the reference in the Afrikaans text to "verlof". Nathan, Barnett and Brink Uniform Rules of Court 2nd ed at 635. R v Baloi 1949 (1) SA at 524. Having regard to ss 24 (4) (a) and (b) and s 20 (2), it appears that three procedures I are created in terms whereof a case on appeal can be heard by the Full Court of a Division, namely: (a) in terms of s 4 (b) where leave of the Court against whose judgment or order the appeal is to be made has been refused, the Appellate Division thereafter granting leave but directing in terms of s 2 (a) that the appeal be heard by a Full Court; (b) if, in terms of s 2 (a), a Court constituted before a single Judge, the Court against whose judgment or order the appeal is to be made, J directs in terms of this section that the appeal be heard by a Full Court, whereafter an application is

1986 (2) SA p557

made to the Appellate Division to set such direction aside, but A the application is refused and the case is therefore to be heard by a Full Court; (c) leave is granted by a Court constituted before a single Judge, the Court against whose judgment or order the appeal is to be made, in terms of ss 2 (a) and 4 (b), and that Court directs that the appeal be heard by a Full Court, whereafter no application to set aside such B direction is brought in terms of s 2 (b). A test whether a case warrants the attention of the Appellate Division is in terms of s 20 (2) (a) whether the questions of law and of fact and the other considerations involved in the appeal are of such a nature that the appeal does not require the attention of the Appellate Division. See H J Erasmus "Civil Procedure" in 1982 C Annual Survey of South African Law. In the event of special leave to appeal to the Appellate Division in terms of s 4 (a) being sought in any of the two instances (a) and (b) mentioned above, then in granting special leave the Appellate Division should consider only whether reasonable prospects of success exist, the reason being that in both instances the Appellate Division has itself already considered the criteria D laid down in s 2 (a) and formed the opinion that the case did not warrant the attention of the Appellate Division. The instance mentioned in (c) above is more difficult, as the Appellate Division has in the circumstances not pronounced itself on the criteria stipulated in s 2 (a).

In the absence of an application to set aside a direction in E terms of s 2 (b), it is not open to an applicant seeking special leave in terms of s 4 (a) to submit in the application for special leave that regard should be had to the criteria set out in s 2 (a) by the Appellate Division in considering whether special leave should be granted, the reason being that a specific remedy was created by the Act in s 2 (b) and that such F an applicant did not avail himself of the remedy and must therefore be taken to have considered that the appeal did not require the attention of the Appellate Division. In the absence of an application in terms of s 2 (b), it must be concluded and accepted that the Court constituted before a single Judge apprised itself fully of the facts relevant to the criteria stipulated in s 2 (b), properly applied its mind thereto and G that the direction made by such a Court was the correct one, having regard to all the circumstances. This is the more so as the Act specifically grants the power to such a Court to perform this function, which can in the circumstances be of great importance to the parties. In the premises, the Appellate Division should not question the correctness of such a Court's H finding and consequent direction, either by allowing an applicant to submit that the criteria mentioned in s 2 (a) should again be considered in an application for special leave, or by meru moto raising these criteria when considering whether to grant special leave.

Marais in reply. I

Cur adv vult.

Postea (1986 March 6)

Judgment

Corbett, JA.:

In this matter Westinghouse Brake and Equipment (Pty) Ltd, whom I shall call "the appellant", sued respondent, J Bilger Engineering

1986 (2) SA p558

Corbett JA

A (Pty) Ltd, in the Transvaal Provincial Division for damages for breach of contract. The quantum of damages was agreed between the parties in the sum of R15 000. At the conclusion of the trial the trial Judge (MYBURGH AJ) held that appellant had failed to establish the contract sued on and ordered absolution from the instance with costs. Application B was made for leave to appeal. MYBURGH AJ granted the application and directed that the appeal should be heard by the Full Court of the Transvaal Provincial Division.

The decision of the trial Court was based on a finding that the parties failed ever to reach consensus in regard to the C contract they were negotiating. On appeal, the Full Court (per...