Standard Bank of South Africa Ltd v Master of the High Court and others (535/2005) [2006] ZAECHC 53 (26 October 2006)

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no:

PARTIES

THE STANDARD BANK OF SOUTH APPLICANT

AFRICA LIMITED

AND

THE MASTER OF THE HIGH COURT (EASTERN FIRST RESPONDENT

CAPE DIVISION)

INTRAMED (PTY) LIMITED (IN LIQUIDATION) SECOND RESPONDENT

BASIL BRIAN NEL THIRD RESPONDENT

MICHAEL LEO DE VILLIERS FOURTH RESPONDENT

MACMED HEALTHCARE LIMITED FIFTH RESPONDENT

(IN LIQUIDATION)

Registrar: 535/2005 Magistrate: Supreme Court of Appeal/Constitutional Court

DATE HEARD: 9/10/06

DATE DELIVERED: 26/10/06

JUDGE: Plasket and Liebenberg JJ

LEGAL REPRESENTATIVES-

Appearances:

For the Applicant(s): Adv J.M. Suttner SC

Adv R. Hutton

For the Second Respondent: Avd. F.H. Terblanche SC

Adv M. Van Rooyen

For the Fifth Respondent: Adv J.J. Brett SC

Adv J. Wilson

Instructing attorneys:

Applicant(s): Whitesides Attorneys

Second Respondent(s): Nettletons Attorneys

Fifth Respondent(s): Nettletons Attorneys

CASE INFORMATION-

Nature of proceedings: LEAVE TO APPEAL

Topic:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 535/2005

DATE DELIVERED:26/10/06

In the matter between:

THE STANDARD BANK OF SOUTH APPLICANT

THE MASTER OF THE HIGH COURT (EASTERN FIRST RESPONDENT

INTRAMED (PTY) LIMITED (IN LIQUIDATION) SECOND RESPONDENT

BASIL BRIAN NEL THIRD RESPONDENT

MICHAEL LEO DE VILLIERS FOURTH RESPONDENT

MACMED HEALTHCARE LIMITED FIFTH RESPONDENT

(IN LIQUIDATION)

JUDGMENT

PLASKET J

[A] INTRODUCTION

[1] The second and fifth respondents apply for leave to appeal against our order to the effect that their ‘challenge to the locus standi of the applicant is dismissed with costs (for which they shall be jointly and severally liable), such cost to include the cost of two counsel’.

[2] Our judgment dealt with only four of a larger number of issues, those four issues having been separated from the others in terms of rule 33(4) of the Uniform Rules after the parties had agreed that this would be a convenient way to proceed.

[3] As far as the merits of the application for leave to appeal are concerned, we take the view that the issue is of importance to all of the parties, the matter involves a substantial amount of money – it is said to concern the biggest corporate collapse ever in South Africa – and there are undoubtedly reasonable prospects that another court may reach a conclusion on the applicant’s standing different to our conclusion.

[4] Two other issues anterior to the merits of the application for leave to appeal require our attention. They are first, whether the matter is appealable at this stage as the matter has not been concluded on the merits and, secondly, whether the fifth respondent has a sufficient interest in the appeal.

[B] APPEALABILITY

[5] The legal position in circumstances such as this was set out as follows by Corbett CJ in Marsay v Dilley [1992] ZASCA 114; 1992 (3) SA 944 (A), 962C-E:

‘The law relating to the appealability of decision of a Court of a Provincial or Local Division was re-examined relatively recently by this Court in the case of Van Streepen and Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A). As this judgment shows, this Court has over the years adopted an increasingly flexible approach to the question of appealability. The general principle which, I think, may be extracted from the judgment is the following: where a trial Court has under some competent procedure (such as an application under Rule 33(4)) made an order which has the effect of being a final decision (ie one which cannot be corrected or altered or set aside by the trial Judge at a later stage of the trial) and the decision is definitive of the rights of the parties and has the effect of disposing of a substantial portion of the relief claimed by the plaintiff in the main action, then this order is a judgment (as understood in s 20(1) of the Supreme Court Act 59 of 1959) and is appealable, despite the fact that the main action has not been concluded.’

[6] In Perkins v Danford 1996 (2) SA 128 (C), the question of the appealability of the dismissal of a point in limine that the respondent – the plaintiff in the court below – did not have standing, was dealt with. With reference to the Van Streepen and Germs matter, supra, Josman AJ held that Corbett JA, in that matter, ‘was referring to matters affecting not only the relief claimed by the plaintiff but also issues having a bearing on the defence, including such issues as a challenge to the locus standi of the plaintiff to bring the action. A finding in the defendant’s favour in this respect would bring the litigation to an end unless the plaintiff is allowed to amend the pleadings’ (at 131D-E). Then, having referred to Marsay v Dilley supra and Zweni v Minister of Law and Order 1993 (1) SA 523 (A) -- in which the court had held that an order dismissing an interlocutory application to compel the respondent to disclose the contents of a police docket was not a final order -- Josman AJ concluded as follows (at 131J-132A):

‘Unlike the situation in Zweni, the issue of locus standi in this case does satisfy all three requirements. The magistrate is not entitled to alter the ruling, the issue is certainly definitive of the rights of the parties and it disposes of a substantial portion of the defence raised by the defendant. Had the magistrate ruled that the plaintiff had no locus standi this would unquestionably have disposed of the relief she was claiming.’

[7] We take the view that the standing point is appealable for precisely the same reasons stated in Perkins v Danford cited above, and that it is ripe for hearing on appeal despite the fact that the matter has not yet been concluded in this court.

[8] Apart from the fact that, on the authorities cited above, the matter is appealable now, we also take the view (to the extent that this may be necessary) that convenience favours the piece-meal disposal of the matter. There are a plethora of disputes of fact on the papers which may have the result that the matter has to be referred for oral evidence. This would mean a postponement and a trial that would probably be protracted. Even if the matter was not referred to oral evidence it is likely that it would take two or three days to hear it: the record runs to over 3000 pages without counting the many pages of heads of argument and bundles of authorities filed by the various parties. On the other hand, the standing point is a single point that, if successful on appeal, will put an end to the matter. It is possible, it seems to us, to construct a record for purposes of the appeal that will be relatively short and self-contained. The grounds upon which the applicant’s standing was attacked are themselves limited.

[C] DOES THE FIFTH RESPONDENT STILL HAVE AN INTEREST IN THE APPEAL?

[9] We turn now to the second issue raise by the applicant namely, whether the fifth respondent, having been successful in respect of all its points of dispute with the applicant, except for the issue of standing, has a sufficient interest in the appeal. The only interest that it does have, it was argued, was in the costs order, and leave should ordinarily not be granted to appeal when the only issue is costs.

[10] It would have been different if the fifth respondent had been the only party seeking leave to appeal. The second respondent, who still has a dispute with the applicant in respect of the issues that have not been dealt with yet, has also applied for leave to appeal.

[11] If the second respondent alone had been granted leave to appeal and it succeeded on appeal, that success would bring in its train the reversal of the costs order that we made against the second respondent, but not in respect of the fifth respondent, in respect of the standing issue. We say this because the costs order simply followed the result (as it also did in respect of the remaining issues dealt with by us in the judgment.) An anomaly would thus be created. The potential for that anomaly leading to an injustice can be avoided by granting the fifth respondent leave to appeal. In these circumstances we take the view that the fifth respondent has a sufficient interest in the appeal and should be granted leave to appeal, along with the second respondent.

[D] THE ORDER

[12] The following order is made:

The second and fifth respondents are granted leave to appeal to the Supreme Court of Appeal on the grounds specified in their notices of application for leave to appeal.

The costs of this application shall be costs in the appeal.

________________________

C. PLASKET

JUDGE OF THE HIGH COURT

I agree.

_____________________

H. J. LIEBENBERG