Safintra South Africa (Pty) Ltd v Prince (CA 15/2020) [2021] ZAECGHC 17 (22 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION - GRAHAMSTOWN)

Case No: CA 15/2020

Date heard: 22 February 2021

Date delivered:22 February 2021

In the matter between:

SAFINTRA SOUTH AFRICA (PTY) LTD

Appellant

and

MARK PRINCE

Respondent

JUDGMENT

MALUSI J:

[1] This is an appeal against a decision made by the learned acting judge in the court a quo on 23 June 2019 which granted the respondent leave to again amend his particulars of claim. The appeal is not opposed by the

respondent. Leave to appeal to the full court was granted by Mbenenge JP invoking the authority in sec 17(2)(a) of the Superior Courts Act 10 of 2013 (the Act) for any judge of this division to grant leave in circumstances where the learned acting judge was not readily available.

[2] The factual background of the appeal is simple and not disputed. The legal issues arising are crisp and far removed from the merits of the dispute between the parties. A synopsis of the factual background will be provided solely for a better appreciation of the legal issues arising. The citation accorded the parties in the main action will be used in this judgment.

[3] On 10 November 2016 the plaintiff launched action for damages against the defendant which was his former employer for horrific injuries he had sustained whilst on duty. The defendant raised an exception to the particulars of claim contending it lacked the necessary averments to sustain the action (first exception). After a hearing the first exception was upheld and the plaintiff was granted leave to amend the particulars of claim.

[4] On 1 August 2017 the plaintiff filed amended particulars of claim which he must have deemed cured the defect. Alas, the defendant persisted with the same complaint raised in the first exception. On 22 February 2018 the court a quo issued the following order after hearing argument:

“1. That the exception is upheld;

2. That the plaintiff’s claim is dismissed;

3. That the ordinary cost including costs of exception and action.” (sic)

[5] On 8 March 2018 the plaintiff requested reasons for the order. On 23 June 2019 the learned acting judge provided a reasoned decision, which term I use advisedly as it will become clear later in this judgment.

Regrettably, the decision was a material volte-face on the order granted in the second exception when it provided as follows:

“In the circumstances the exception is upheld. Plaintiff is ordered to suitably amend its particulars and remove the cause of complaint within fifteen (15) days of receipt of this order. Costs are to be costs in the cause.”

[6] The papers before us reveal that after a protracted process, the Judge President intervened and heard the application for leave to appeal by the defendant against the decision of the learned acting judge. In a promptly issued, reasoned judgment he granted the defendant leave to appeal the decision ‘in so far as it grants the respondent [plaintiff] leave to amend the amended particulars of claim and directs that costs be in the

cause.’ He further reserved the costs of the application for determination by this court.

[7] The main ground of appeal advanced in the notice of appeal and by Mr Dyke SC who appeared for the defendant is that the court a quo was functus officio after handing down the order on 22 February 2018. It is asserted that the learned acting judge had no power to materially

amend the order and acted ultra vires.

[8] In his judgment Mbenenge JP, succinctly and correctly in my view, makes the following point:

“11] It is trite law that once a court has duly pronounced a final judgment or order, the matter is res judicata, and it has itself no authority to correct, alter or supplement it. The reason is that it is functus officio; its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.” (Footnotes omitted).

[9] The Judge President importantly places reliance in the main on the pronouncement of the Constitutional Court in Zondi when that court stated:

“Under common law the general rule is that a judge has no authority to amend his or her own final order. The rational for this principle is two-fold. In the first place a judge who has given a final order is functus officio. Once a judge has fully exercised his or her jurisdiction, his or her authority over the subject matter ceases. The other equally important consideration is the public interest in bringing litigation to finality. The parties must be assured that once an order of court has been made, it is final and they can arrange their affairs in accordance with that order. (Footnotes omitted)[1]

[10] The plaintiff was entitled to seek reasons for the ex tempore order handed by the learned acting judge as provided in Uniform Rules 49(1)(c). However, the power of the learned acting judge was circumscribed to reasons only in support of the order he had already issued. It has been held that ‘If the meaning of an order is clear and unambiguous, it is decisive, and cannot be restricted or extended by anything else stated in the judgment.’[2]

[11] In my view the provisions of Rule 49(1)(c) do not empower a judge to reconsider an ex tempore order and provide a judgment contrary to the order already issued. Judgment is envisaged here in the wide sense to include both reasons for the judgment and the order.[3] I do not intend to resuscitate the formerly long running but currently stale debate about the difference between an order and a judgment. In my view that has now been settled in sec 16(1)(a) of the Act which speaks of ‘any decision’ instead ‘of a judgment or order’ of its predecessor, sec 26(1) of the Supreme Court Act 59 of 1959.

[12] A judge, similarly to other institutions of State and public officials, is authorised to act only to the extent of his or her powers as conferred by law. This is in accordance with the principle of legality an incidence of the rule of law which is a foundational value of the Constitution.[4] In my view the learned acting judge, with respect, acted beyond his powers when he issued the judgment contradicting the ex tempore order he had delivered. The consequence of a judge acting beyond his powers is that such an act is null and void.

[13] This raises a point which emerges from the facts but has not been addressed by the defendant before us. I think it is an issue which this court is obliged to address. It has been held that it is undesirable that a case be determined without considering a point of law which emerges from the undisputed facts before the court.[5]

[14] The general rule in our law is that a judgment and an order of courts stands as valid and effective until it is set aside or rescinded. The rule is based on public policy to provide certainty and finality in legal proceedings.

[15] An exception to the general rule is that when a judgment and order is a nullity, invalid and is of no effect it may be disregarded. A pronouncement to that effect or setting aside by a court is unnecessary as it is not binding on the parties. The convening of this full court in these circumstances was superfluous as the decision of the learned acting judge has no standing in law.[6]

[16] In the result and for the above reasons, the following order will issue:

16.1 The appeal is struck off roll with no order as to costs including the reserved costs of the application for leave to appeal.

_______________________

T MALUSI

JUDGE OF THE HIGH COURT

I agree and it is so ordered:

_____________________

M S JOLWANA

I agree:

P ZILWA

Appearances:

For the Appellant: Advocate Dyke SC instructed by

Brown Braude & Vlok Inc

317 Cape Road

Newton Park

PORT ELIZABETH

For the Respondent: No Appearance

[1] Zondi v Member of Executive Council for Traditional and Local Government Affairs & Others [2005] ZACC 18; 2006 (3) SA 1(CC); 2006 (3) BCLR 423 (CC) at para 27.

[2] Administrator, Cape, & Another v Ntshwaqela & Others [1989] ZASCA 167, [1990] All SA 34 (A); 1990 (1) a 705 AT 71G-H.

[3] Ntshwaqela ibid at 715F.

[4] Gerber v MEC of the Gauteng Provincial Government, Development Planning & Local Government [2002] 4 All SA 518; 2003 (2) SA 244 (SCA) at para 35.

[5] Minister of Justice & Constitutional Development & Others v Southern Africa Litigation Centre & Others 2016 (3) SA 317 (SCA) at para 24.

[6] Master of the High Court Northern Gauteng High Court, Pretoria v Motala NO & Others [2011] ZASCA 238; 2012 (3) SA 325 (SCA) at paras 11-15 and the authorities cited therein.