Aobakwe Louw Properties (Pty) Ltd v Thaw Trading And Investments 005 CC (HC CIV APP 2/2014, 2/2014) [2015] ZANWHC 28 (26 June 2015)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: HC CIV APP 2/2014

In the matter between:-

AOBAKWE LOUW PROPERTIES (PTY) LTD Applicant

and

THAW TRADING AND INVESTMENTS 005 CC

Respondent

DATE OF HEARING

: 19 JUNE 2015

DATE OF JUDGMENT

: 19 JUNE 2015

REASONS FOR JUDGMENT

: 26 JUNE 2015

COUNSEL FOR THE APPLICANTS : ADV PISTOR SC

COUNSEL FOR RESPONDENTS : MR. ESTERHUYSE

REASONS FOR JUDGMENT

HENDRICKS J

Introduction:-

[1] On the 19th June 2015 this Court granted an order in the following terms:-

i. The present application for reinstatement of the appeal is struck from the roll.

ii. The Applicant is ordered to pay the wasted costs.

iii. Reasons will follow.

Here follow the reasons for the aforementioned order.

[2] This is an application (the second application) for the reinstatement of this appeal. On 17 October 2014 this Court, as a Full Bench Appeal Court, dismissed an application for the reinstatement of the appeal which had lapsed. Reasons for the order dismissing the application for the reinstatement of the appeal were handed down on 13 November 2014. An application for the reinstatement of the appeal has now again been made. This application is opposed on the basis that the Court lacks jurisdiction to entertain the application in view of the fact that it is functus officio and that the matter is res judicata.

[3] Adv. Pistor SC, acting on behalf of the Applicant, referred to the case of Boland Konstruksie Maatskappy (Edms) Bpk v Petlen Properties (Edms) Bpk (2) 1974 (4) SA 980 (K). (“the Boland matter”) as authority for this Court to reconsider [albeit for the second time] an application to reinstate this appeal. It was contended on behalf of the Applicant that in the Boland matter the facts were very similar to those of the present matter. They are summarised in the headnote of the law report as follows:

“The applicant, after summary judgment had been granted against it, had noted an appeal and at its hearing objection was taken to the appeal proceedings on the ground that the requirements of the Rules of Court had not been complied with. An application was then made by the applicant for Condonation of non-compliance with the Rules. Because it was not a proper application, but merely an informal application without the necessary supporting affidavits, it was refused, and the appeal was struck off the roll, but it was clear that the Court had not been in possession of the necessary facts to enable it to consider the application. A proper application with the necessary allegations of fact was now before the Court and the question was whether the earlier informal application now prevent consideration of the subsequent formal and proper application.”

[4] Burger J in the Boland matter refused permission to rely on a plea of res judicata and found that:-

“Uit die uitspraak van die Hof op die vorige aansoek is dit duidelik dat dit geweier was omrede dat daar nie ‘n behoorlike aansoek was nie, maar bloot ‘n informele aansoek sonder die nodige stawende verklarings..”

Burger J furthermore remarked as follows:

“Omrede die aansoek vir kondonasie in die onderhawige geval nie behoorlik voor die Hof geplaas was nie, en die nodige stawende getuienis nie voorgelê was nie, is die aansoek van die hand gewys; daar was egter geen beslissing van enige geskil nie. Na my mening het die Hof toe dit die aansoek “van die handgewys het” bedoel om ‘n bevel te maak wat neerkom op absolusie of wat ‘n soortgelyke strekking het. Nie alleen dui die uitspraak daarop nie, maar ek kan ook nie aanvaar nie dat dit die bedoeling van die Hof was om onder diè omstandighede wat met die voorige aansoek gegeld het die applicant finaal uit te sluit. Dit sou klaarblyklik onbillik wees. Die beswaar op grond van res judicata kan dus nie gehandhaaf word nie.”

[5] Burger J referred to the following passage in the work of Spencer-Bower and Tumer, Res Judicata, 2de uitgawe bl. 51:

“When an action, or motion, or application, is dismissed by a judicial tribunal after a trial or hearing, it is often a question whether anything can be said to have been decided, so as to conclude the parties, beyond the actual fact of the dismissal. The answer to this enquiry depends upon whether, on reference to the record and such other materials as may properly be resorted to, the dismissal itself is seen to have necessarily involved a determination of any particular issue or question of fact or law, in which case there is an adjudication on that question or issue; if otherwise, the dismissal decides nothing, except that in fact the party has been refused the relief which he sought.”

With regard to the latter passage from the said work, Judge Burger remarked as follows:

“Die benadering van die geleerde skrywers is na my beskeie mening regtens juis want aan die een kant moet die Hof belet dat dieselfde geskil by herhaling voor die Hof kom; aan die ander kant, waar die wenslike geskil nog nie deur die Hof beslis is nie moet niks gedoen word wat dit belet nie. ”

[6] It was submitted by Adv. Pistor SC on behalf of the Applicant, that this Court did not intend to consider the facts relating to a reinstatement of the appeal but that this Court dismissed the application for reinstatement because no proper application was made. Reliance for this submission was placed on the contents of paragraph [4] of the Reasons For Judgment handed down on 13 November 2014 which states:-

“In the alternative it was submitted by Adv. Pistor SC that in the event that it is deemed that the appeal has lapsed, then an application was made from the bar for the reinstatement of the appeal. Reliance for this submission was placed on the affidavit in support of the application for condonation deposed to by Ms Petunia Sepeesa, a correspondent Attorney for the Appellant. Upon careful scrutiny of the said affidavit it is quite apparent that it does not at all deal with or address the issue of the reinstatement of the appeal that has lapsed. This affidavit deals in the main with the application for condonation for the late supply of the record and late prosecution of the appeal. The fact that the application for condonation was not opposed does not rescue the situation at all. When an appeal has lapsed, a substantive application for the reinstatement thereof must be made. Based upon good cause shown, a court may reinstate the appeal in terms of Rule 49 (6) (b). Such good cause is lacking in the instant matter.”

[7] This paragraph should however not be read in isolation but must be read in conjunction with paragraph [7] thereof which states:-

“Having been alerted to the fact that the appeal has lapsed at the inception of hearing of argument in this matter, it would have perhaps been prudent for the Appellant at that juncture to tender the wasted costs and accept its fate. It would not have meant the end of the road for the Appellant. A substantive application supported by affidavit(s) for the reinstatement of the appeal could subsequently have been made. Instead, the Appellant proceeded to make an application from the bar without the support of the requisite evidence in the form of affidavits. In the absence of supporting evidence there was nothing to convince us to order the reinstatement of the appeal. In my view the Appellant could not show good cause why the appeal should be reinstated. ”

The contents of this paragraph is indeed clear and unambiguous.

[8] The affidavit of Ms Petunia Sepeesa on which reliance was placed for the reinstatement of the appeal in the first application was indeed considered. Because no good cause for the reinstatement of the appeal was found to be present, the application was dismissed (not struck off the roll).

[9] It was contended by Adv. Pistor SC that the merits of the appeal was not considered in the first application for reinstatement of the appeal. Therefore, so it was further submitted, it cannot be said that the application for reinstatement was properly considered by this Court.

Reliance for this submission was placed on the matter of Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another 2014 (5) SA 297 (SCA) that:-

“a plea of issue estoppel could only be permitted though if it would not cause unfairness in the later proceedings”.

See: Paragraphs [23] and [26] at 305 A-C and 305H – 306A

and also Hyprop Investments Ltd and Others v NCS Carriers and Forwarding CC and Others 2014 (5) SA 406 (SCA) in which it was held:-

“This court in Prinsloo decided that where relaxation of the three requirements of res judicata would lead to inequity, issue estoppel

should not preclude a later claim that arises from the same issues. Brand JA concluded that the high court in that matter had erred in allowing issue estoppel to preclude Goldex’s action for damages. He did warn, however, that each case is fact-specific:

‘(I)ts application cannot be governed by fixed principles or even by guidelines.’ Thus issue estoppel ‘should be considered on a case-by-case basis’ and that ‘deviation from the threefold requirements of res iudicata should not be allowed when it is likely to give rise to potentially unfair consequences in the subsequent proceedings.”

See : Paragraph [20]

[10] Mr Esterhuyse, now appearing on behalf of the Respondent, submitted that the contention that because the merits were not considered by this Court the Applicant can bring another application for the reinstatement of the appeal, does not hold any water. The appeal had lapsed. An application was made from the bar for the reinstatement of the appeal, which was considered by this Court and which was dismissed. I am in full agreement with this contention. Adv. Pistor SC conceded that it was his (as counsel’s) mistake to apply informally at that juncture, for the reinstatement of the appeal. This concession was indeed well made. The Applicant should not be allowed to have the proverbial second bite at the cherry.

[11] The Boland matter was decided before the enactment of the Superior Court Act 10 of 2013(“the Act”) which was assented to on 12 August 2013. Section 16 (1) (6) of the Act provides that:-

“an appeal against any decision of a Division on appeal to it, lies to the Supreme Court of Appeal upon special leave having been granted by the Supreme Court of Appeal;”

In my view, the facts of the two aforementioned cases are quite distinguishable from the facts of the present matter. Each case must be decided on its own merits. In my view, special leave should now be applied for from the Supreme Court of Appeal (SCA).

See: Potgieter v S (20109/2014) [2015] ZASCA 15 (17 March 2015) .

[12] We concluded therefore that this Court has no jurisdiction to entertain this second application for reinstatement of the appeal and the application was accordingly struck from the roll. The Applicant was ordered to pay the wasted costs. It was for the aforementioned

reasons that the order as set out in paragraph [1], supra was granted on 19th June 2015.

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

SAMKELO GURA

I agree

A M KGOELE