Campbell N.O and Another v Fourie and Others (879/2019) [2021] ZAFSHC 283 (25 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 879/2019

In the matter between:

MALCOLM NEIL CAMPBELL N.O. 1st Plaintiff

VRYSTAAT MUNISIPALE

PENSIOENFONDS 2nd Plaintiff

and

FRITZ

FOURIE 1st Defendant

ELANA

STEENKAMP 2nd Defendant

EURIKA

POOLMAN 3rd Defendant

HEARD ON: 19 NOVEMBER 2021

JUDGMENT BY:

LOUBSER, J

DELIVERED ON: 25 NOVEMBER 2021

[1] The 1st Defendant makes application for leave to appeal against the judgement of an Acting Judge of this Division dismissing his special plea of no locus standi filed in respect of the 1st Plaintiff. The Acting Judge is no longer available to hear this application, and consequently it was brought before this Court in terms of the provisions of Section 17(2)(a) of the Superior Courts Act[1].

[2] In the main action, the 1st Plaintiff claims an amount of R707 000.00 plus interest from the Defendants jointly and severally. It is alleged in the summons that the 1st Defendant had unlawfully paid, or caused to be paid, such an amount out of the funds of the 2nd Plaintiff to the 2nd and 3rd Defendants, who are his daughters. The 1st Defendant did this as the former Chief Executive Officer of the 2nd Plaintiff, it is alleged. It is further alleged in the summons that the Plaintiff is acting in his capacity as the curator of the 2nd Plaintiff, having been so appointed in terms of the Financial Institutions (Protection of Funds) Act.[2]

[3] In his plea, the 1st Defendant challenged the locus standi of the 1st Plaintiff in the action. He inter alia denied the Plaintiffs’ averments relating to the 1st Plaintiff’s appointment as curator of the 2nd Plaintiff on the basis that it was not done procedurally correct in terms of the Financial Institution (Protection of Funds) Act or in terms of the rules of the 2nd Plaintiff. This challenge by the 1st Defendant essentially amounted to a special plea attacking the 1st Plaintiff’s locus standi. Subsequently the 1st Defendant successfully applied for a separation of the issues, and the special plea of no locus standi was heard by the Acting Judge as a preliminary step in the adjudication of the action itself. As mentioned at the outset, this special plea was dismissed with costs.

[4] On behalf of the 1st Defendant no less than 28 grounds of appeal were advanced in support of the application for leave. The application as a whole, however, must be approached with the provisions of Section 17 of the Superior Courts Act[3] in mind. That section provides that leave to appeal may only be given where the appeal would have a reasonable prospect of success, where there is some other compelling reason why the appeal should be heard, where the decision sought on appeal does not fall within the ambit of Section 16(2)(a), and where the appeal would lead to a just and prompt resolution of the real issues between the parties in a case where the decision sought to be appealed does not dispose of all the issues in the case.

[5] Section 16(2)(a) provides as follows: “When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.” In the present context the question is then whether a successful appeal, or to put it differently, the removal of the 1st Plaintiff as a party to the main action, would have any practical effect or result as far as the main action is concerned. This question can only be answered by referring to the pleadings in the main action.

[6] In the Particulars of Claim, it is stated that the 1st Plaintiff is acting in his nominal capacity as curator for the 2nd Plaintiff, and that his conditions of appointment include the authority to institute or prosecute any legal proceedings on behalf of the 2nd Plaintiff. The 2nd Plaintiff is referred to as a private self-administering pension fund established and registered as such in terms of Section 4(7) of the Pension Funds Act.[4] In terms of the rules of the 2nd Plaintiff, which were attached to the Particulars of Claim, the Executive Committee of the 2nd Plaintiff has the power, inter alia, to institute or defend any legal action in respect of any matter pertaining to the Fund in any court.[5]

[7] In his plea, the 1st Defendant specifically pleaded that the appointment of the 1st Plaintiff as curator is void ab initio on the grounds mentioned earlier herein. At the same time, the locus standi of the 2nd Plaintiff is not attacked on any ground in the plea. Nor is it pleaded that the 2nd Plaintiff would have no locus standi once the 1st Plaintiff is found to have no locus standi.

[8] On a proper interpretation of the pleadings before me, the removal of the 1st Plaintiff as a party to the action in a successful appeal, will have no practical effect or result as far as the main action is concerned. On the basis of the undisputed locus standi of the 2nd Plaintiff, the 2nd Plaintiff will be able to proceed with the action against the 1st Defendant notwithstanding the absence of the 1st Plaintiff as a party to the action. The cause of action will remain the same.

[9] The decision sought on appeal will therefore have no practical effect or result on the main action. In terms of the provisions of Section 16(2)(a) alluded to above, there is therefore no reasonable prospect that another court would uphold the appeal. The following order is made:

1. The application for leave to appeal is dismissed with costs, including the costs of two counsel.

P. J. LOUBSER, J

For the 1st Defendant/Applicant:

Adv. N. Snellenburg SC, with him

Adv. S. van Rensburg

Instructed by: Sadler Inc.

C/O EG Coopers Majiedt Inc.

Bloemfontein

For the Plaintiff/Respondent:

Adv. C. Joubert SC, with him

Adv. N Mauritz

Instructed by: Werkmans Attorneys

C/O Symington & De Kok

/roosthuizen

[1] Act no. 10 of 2013

[2] Act no. 28 of 2001

[3] Supra

[4] Act no. 24 of 1956

[5] Rule 23(1)(h)