South African Land Arrangements CC and Others v Nedbank Ltd (A28/13) [2013] ZAWCHC 162 (29 October 2013)
The court held that it lacked jurisdiction to entertain the application for leave to appeal. The judgment was passed on 19 September 2013, prior to the commencement of the Superior Courts Act on 23 August 2013, but the application for leave to appeal was only launched after the Act commenced. Section 52 of the Act...
Source-derived case information.
- Citation
- [2013] ZAWCHC 162
- Parties
- Appellant: South African Land Arrangements CC; Appellant: Guido Louis Marc Marien; Appellant: Anne Josepha Louis Delaet; Respondent: Nedbank Limited
- Court
- Western Cape High Court, Cape Town
- Jurisdiction
- South Africa
- Case Number
- A28/13
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal After Dismissal of Appeal
- Outcome
- Application for leave to appeal struck from the roll with costs.
- Judges
- B M Griesel, M I Samela
- Legal Topics
- Leave to Appeal, Jurisdiction of High Court, Superior Courts Act, Retrospective Application of Statute
Source-derived case record
Summary, issues, holding and outcome
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Parties
South African Land Arrangements CC
Appellant
Guido Louis Marc Marien
Appellant
Anne Josepha Louis Delaet
Appellant
Nedbank Limited
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal After Dismissal of Appeal
Legal Issues
- 1 Does the High Court have jurisdiction to hear an application for leave to appeal following the dismissal of an appeal, in light of section 16(1)(b) of the Superior Courts Act?
- 2 Were the proceedings pending at the commencement of the Superior Courts Act, thereby allowing the application to be heard under the previous regime?
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the application for leave to appeal. The judgment was passed on 19 September 2013, prior to the commencement of the Superior Courts Act on 23 August 2013, but the application for leave to appeal was only launched after the Act commenced. Section 52 of the Act did not apply because the proceedings were not pending at the commencement of the Act. Therefore, section 16(1)(b) governed the matter, requiring special leave from the Supreme Court of Appeal. The court further noted that procedural statutes operate both prospectively and retrospectively, reinforcing its conclusion. Even if the court had jurisdiction, it would have dismissed...
Court Disposition
Application for leave to appeal struck from the roll with costs.
Orders
- The application for leave to appeal is struck from the roll with costs.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA(WESTERN CAPE DIVISION, CAPE TOWN)
Case No A28/13
In the matter between:
SOUTH AFRICAN LAND ARRANGEMENTS CC .................First appellant
GUIDO LOUIS MARC MARIEN ..........................................Second appellant
ANNE JOSEPHA LOUIS DELAET .........................................Third appellant
and
NEDBANK LIMITED ..........................................................................Respondent
____________________________________________________________________
JUDGMENT – leave to appealdelivered 29 october 2013
GRIESEL J:
On 19 September 2013 we dismissed the appellants’ appeal against the magistrate’s order granting summary judgment in favour of the respondent herein. The appellants now seek leave to appeal against our order.
The first question that arises, is whether this court has the necessary jurisdiction to deal with the application for leave to appeal in the light of the provisions of s 16(1)(b) of the new Superior Courts Act, 10 of 2013 (‘the Act’), which provides that (subject to certain irrelevant exceptions) ‘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’ (emphasis added).
Section 52(1) of the Act provides (again, subject to an exception which is irrelevant for present purposes) that ‘proceedings pending in any court at the commencement of this Act, must be continued and concluded as if this Act had not been passed’. Section 52(2), in turn, provides:
‘Proceedings must, for the purposes of this section, be deemed to be pending if, at the commencement of this Act, a summons had been issued but judgment had not been passed.’
The Act came into operation on 23 August 2013. The appeal which forms the subject of the present application was concluded when judgment was passed on 19 September 2013. The subsequent proceedings, i.e. the application for leave to appeal against our judgment, were only launched on 3 October 2013 – well after the Act commenced. On a plain reading of s 52, therefore, we are satisfied that the present proceedings were not pending at the commencement of the Act, with the result that they are governed by the provisions of s 16(1)(b). It follows that this court does not have jurisdiction to hear the present application.
This conclusion is also supported by the rule of interpretation that statutes which deal with matters of procedure (as does s 16(1)(b))
are of necessity both prospective and retrospective in operation.1
Even if we were to err in coming to this conclusion, and in the event of the matter going further, we wish to state that we would in any event have dismissed the application for leave to appeal for the reasons stated in the main judgment.
Order:
For the reasons set out above, it is ordered that the present application for leave to appeal is struck from the roll with costs.
B M GRIESELJudge of the High Court
SAMELA J: I agree.
M I SAMELAJudge of the High Court
1GE Devenish Interpretation of Statutes p 192 and the authorities cited therein. See also 25 Lawsa (2 ed) para 341.