Phillips v Minister of Rural Development and Land Reform and Another (LCC76/2010) [2013] ZALCC 13 (30 July 2013)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

Case No.: LCC76/2010

Before Meer AJP on 30 July

In the matter between:

IVOR LEROY PHILLIPS .................................................................................Appellant

and

THE MINISTER OF RURAL DEVELOPMENT

AND LAND REFORM ...........................................................................First Respondent

THE REGIONAL LAND CLAIMS COMMISSIONER

EASTERN CAPE ................................................................................Second Respondent

JUDGMENT

MEER AJP

[1] The applicant applies to the Supreme Court of Appeal for leave to appeal against the whole of my judgment and order handed down on 9 May 2013. The respondent challenges the appealability of the order and calls for it to be struck from the roll with costs. The respondent also submits that the application should fail on its merits if this Court should find that the order is appealable.

The appealability of the order

[2] The plaintiff lodged a claim for restitution of rights in land as provided for at Section 2 of the Restitution of Land Rights Act No 22 of 1994 (“the

Restitution Act”). The judgment and order pertained to the determination only of the first threshold enquiry for a restitution claim, namely whether the plaintiff was dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices as contemplated at Section 2 (1) of the Restitution Act. It was agreed prior to the commencement of the trial that this first threshold requirement would be determined as a separate question of law and fact under Rule 57 of the Land Claims Court Rules. Thereafter should the plaintiff succeed on the first threshold requirement the Court would determine the second threshold requirement namely whether just and equitable compensation had been paid at the time of dispossession, as contemplated at Section 2 (2) of the Restitution

Act. Rule 57 (2) provides that when the Court decides a separated issue it may make an order thereon and if the order does not dispose of the case the Court must determine inter alia how any remaining issues will be dealt with.

[3] Mr Havenga for the respondent in this application (plaintiff and claimant in the restitution claim, and hereinafter referred to as “the claimant”) with reference to the oft quoted case on the subject of appealability of orders, Zweni v Minister of Law and Order 1993 (1) SA 523 (A) stated that the order, whilst final, was not appealable as it was not definitive of the rights of the plaintiff or the defendants, nor did it dispose of any portion of the relief claimed by the plaintiff. It merely gave him locus standi to proceed to the next stage of the enquiry, namely whether he is entitled to any relief at all.

[4] In Zweni supra Harms AJA (as he then was) was concerned with the appealability of an order as opposed to a judgment. At 536 A - C after conducting a comprehensive examination of the case law concerning the appealability of judgments and orders, he said: “In the light of these tests and in view of the fact that a ruling is the antithesis of a judgment or order, it appears to me that, generally speaking, a non-appealable decision (ruling) is a decision which is not final (because the Court of first instance is entitled to alter it), nor definitive of the rights of the parties nor has the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. . .

[5] In Van Niekerk and Another v Van Niekerk and Another 2008 (1) SA 76 (SCA) at paragraph 7 Van Heerden JA stated:

“Generally speaking, the balance of convenience more often than not requires that the case as a whole be brought to conclusion at the first level and the whole case then be appealed. ”

[6] I note that both these dicta are qualified by the words “generally speaking” thereby leaving the way open for differing specific instances where appeals can be entertained.

[7] The present case in my view is such an instance. Applying the 3 attributes set out in Zweni, firstly and importantly the decision in the instant case is undoubtedly final in effect and not capable of alteration by the Court of first instance. With regard to the second attribute referred to in Zweni the decision is definitive of the rights of the parties to the extent that it grants the claimant both the locus standi and the right to proceed to a determination of the second threshold requirement namely the determination as to whether just and equitable compensation was granted at the time of dispossession. Appropo the third requirement, even though the ruling does not dispose of the relief claimed, the finding in favour of the claimant that there was a dispossession is crucial to a substantial part of the relief claimed.

[8] In Moch v Nedbank Travel (Pty) Ltd t/a American Express Travel Service 1996 (3)SA 1 (A) where at 10 E it was acknowledged that the passage from Zweni quoted above:

“………..does not purport to be exhaustive or to cast the relevant principles in stone. It does not

deal with a situation where the decision, without actually defining the parties' rights or disposing of any of the relief claimed in respect thereof, yet has a very definite bearing on these matters.”

That is precisely the effect of the judgment which this application pertains to, and these words are particularly apposite. See also Director of Public Prosecutions v King 2010 (2) SACR 146 SCA at 166e -167c paragraphs 50-51 and paragraph 46; Motolegi and Another v Mokwalase [2010] 4 All SA 258 (SCA), paragraphs 10 and 11; Beinash v Wixley [1997] ZASCA 32; 1997 (3) SA 721 SCA, Philips v SA Reserve Bank & Others [2012]2 All SA 532 SCA at 539.

[9] In Van Streepen and Germs v Transvaal Provincial Administration 1987 (4) SA 569 A at 585F to H, Corbett JA (as he then was) said, in the context of separated issues, that where a decision relates to a question of law or fact, which if decided in a particular way would be decisive of the case as a whole or of a substantial portion of the relief claimed, in that event the advantages of expense and convenience may favour a final determination of the question on appeal even though the proceedings in the court a quo may not have been concluded.

[10] Similarly in Swartzberg v Barclays National Bank Limited 1975 (3) SA 515 (W) at 518 B Colman J stated :

“If the judgment or order sought to be appealed against does not dispose of all of the issues between the parties the balance of convenience must, in addition, favour a piece-meal consideration of the case ”

The test he stated:

"Was whether the appeal - if leave were given - would lead to a just and reasonably prompt resolution of the real issue between the parties

[11] The dicta in these cases are also apposite to the present application. For, if the claimant were to appeal and succeed there

would be a just and prompt resolution of the issue between the parties namely whether the plaintiff was entitled to restitution. A successful appeal would also obviate the need to proceed with the costly enquiry on the second threshold enquiry of just and equitable compensation. Considerations of convenience in my view would therefore make the order and judgment in respect of the separate enquiry into dispossession appealable.

[12] I note moreover that the wording of Rule 57 (2) of the Land Claims Court Rules, whilst mandating the Court to determine how any remaining issues must be dealt with, does not exclude an appeal or the staying of further proceedings which in effect would result if the claimant were to appeal.

[13] This being so I arn of the view that the judgment and order pertaining to the issue of dispossession is appealable.

The Merits

[14] I now turn to consider the merits. The grounds upon which leave to appeal is sought traverse issues in respect of which reasoned

findings are made in the judgment. It would therefor serve little purpose for me to reconsider these here. I have carefully considered

the submissions of both counsel and come to the view that in the light of precedent and the clear provisions of the requisite legislation, all of which are referred to in the judgment, another Court would not come to a finding different to mine.

[15] Paragraph 19 of the application for leave to appeal correctly takes issue with my awarding costs to Mr Pienaar on the basis that he was an expert witness. This was a patent error as contemplated at Land Claims Court Rule 64(1) which I am entitled in terms of that rule to vary of my own accord so as to rectify the error. Paragraph 2.2 of my order is accordingly varied as follows:

“2.2 The necessary and reasonable travelling and accommodation costs of witness Mr Pienaar”.

[16] As I have found that another Court would not come to a finding different to mine on the merits, I am of the view that there are no reasonable prospects of success on appeal, A special cost order has been sought. I am of the view that such an order is not justified in this application. I accordingly grant the following order:

1. The application for leave to appeal is dismissed with costs such costs to include that of two counsel.

Y S MEER

Acting Judge President

Land Claims Court

APPEARANCES:

For Applicant: Advocate V Notshe SC,

Advocate T Seneke

Instructed by Mr Mlola, State Attorney Umtata.

For Respondent: Advocate H Havenga SC,

Advocate O Ronaasen

Intructed by Roelofse Meyer Incorporated, Port Elizabeth