Court name
High Court of eSwatini

Joncon (Pty) Ltd and Another v Barlows Central Finance Corporation and Another () [2000] SZHC 33 (20 March 2000);

Law report citations
Media neutral citation
[2000] SZHC 33
Coram
Masuku, J









IN
THE HIGH COURT OF SWAZILAND


CASE
NO.2491/99


IN
THE MATTER BETWEEN:


JONCON
(PTY) LTD APPLICANT


AND


BARLOWS
CENTRAL FINANCE CORPORATION RESPONDENT


(PTY)
Ltd t/a B.

R.
L.
LEASING


IN
RE:


BARLOWS
CENTRAL FINANCE CORPORATION APPLICANT


(PTY)
LTD t/a B.

R.
L.
LEASING


AND


JONCON
(PTY) LIMITED RESPONDENT


CORAM
MASUKU

J.


FOR
APPLICANT MR B.G. SIMELANE


FOR
RESPONDENT MS M. VAN DER WALT


(Instructed
by Millin & Currie)


JUDGEMENT
ON APPLICATION FOR RESCISSION


20/03/00


On
the 23rd December 1999, in the absence of the Applicant's
representative, I granted an Order in favour of Respondent herein in
the following terms: -


1. That
the Sheriff or his lawful Deputy be and is hereby, pending the
outcome of proceedings tobe instituted for relief set out in
paragraph 2.1 to 2.5, authorised and directed to attach and remove
the vehicles set out in prayer 2.2.1 to 2.2.4, wherever the same may
be found and to hold the same in safe custody under


2


attachment.


2. That
the Applicant (Respondent herein) be and is hereby ordered to
institute such proceedings within thirty (30) days of the grant of
the Order, failing which the attachment shall be discharged.


3. That
costs are reserved for the Court to determine the prayers set out in
2.1 to 2.5 of the Notice of Motion.


Reasons
for this Order were subsequently handed down on the 28th December
1999. The Applicant then moved an urgent application in terms of the
provisions of Rule 42, dated 19th January, 2000, for the grant of the
relief hereunder set out: -


1. That
the normal rules pertaining to applications be heard and disposed off
on an urgent basis.


2. That
the Order granted by the above Honourable Court in favour of the
Respondent on the 23rd December 1999 be rescinded and set aside.


3. The
application of the Respondent be postponed sine die and not to be
enrolled by the Respondents pending the finalisation of the appeal
lodged by the Applicants against the ruling of His Lordship Mr
Justice Masuku on 23rd December, 1999, clothing the above Honourable
Court with jurisdiction to entertain the Respondent's application.


4. To
the extent it is necessary, declaring the Order by the above

Honourable
Court on 23rd December 1999 to be suspended and/or stayed pending
finalisation of the appeal lodged by the Applicants against such
order.


5. To
the extent that it may be necessary that an Order be granted in terms
whereof the Applicant in this application be permitted to retain
possession of the earthmoving equipment leased from the Respondent
pending the finalisation of the appeal lodged by the Applicants and
also finalisation of the Respondent's


3


application
in the event of Applicants not being successful in the appeal so
lodged.


6. That
the costs of this application be paid by the Respondent's attorneys
de bonis propiis on the scale between attorney and own client,
alternatively, that the Respondent pays the costs of this application
on the scale as between attorney and own client.


The
Respondent filed a Notice to Oppose and proceeded to file its
answering affidavits, to which replying affidavits were filed by the
Applicant. I initially declined to hear this application for
rescission for the reason that I granted the Order sought to be
rescinded or set aside. It was fitting in my view to let another
Judge hear the matter, so as to give the matter an independent
consideration as sitting in judgement over your own judgement may
raise suspicions of one or other kind. Counsel on both sides however
managed to persuade me to hear the matter as all that needed to be
determined are points of law, revolving around the question whether
the appeal lodged by the Applicant was properly lodged as no leave
had been obtained from the Court of Appeal. It is for this reason
that I do not propose to recount all the allegations and counter
allegations canvassed in the various sets of Affidavits filed of
record.


At
the commencement of the hearing Ms van der Walt made a concession
that the appeal against the Order of the 17th December, 1999 was
indeed lodged by the Applicant on the 20th December, 1999, which had
been initially controverted by the Respondent. The questions of law
raised by the Respondent and which form the basis of this judgement
are as follows: -


(a) That
the ruling made on the 17th December, 1999, to the effect that this
Court had jurisdiction to hear the application, notwithstanding the
presence of a foreign jurisdiction clause was not a final judgement
in that it did not grant definite and distinct relief, and/or did not
have the effect of disposing of at least a substantial portion of the
relief claimed in the main proceedings.


(b) The
judgement in issue was therefore an interlocutory judgement which, in
terms of Section 14 (1) (b) of the Court of Appeal Act, No.74 of
1954, shall lie


4



only
by leave of the Court of Appeal being granted to the Respondent.


(c) Had
the judgement been that the Court did not have jurisdiction, it would
have disposed of the matter and the judgement would have been final,
and thus appealable by the Applicant without leave in terms of
Section 14(l)(a) of the said Act.


(d) No
application for leave to appeal was filed by the Applicant, and in
the circumstances, the lodging of an appeal by the Applicant was an
irregular step, the notice of appeal filed is of no legal force or
effect, and same did not stay or otherwise affect the proceedings a
quo;


(e) In
the premises, the Court a quo was competent to grant the interim
order now sought to be rescinded and set aside by the Applicant.


In
response to the above points raised by the Respondent, the Applicant
stated as follows:-


(1) That
the judgement of this Court to the effect that it has jurisdiction to
entertain the matter is a final decision. It was its view therefore
that it did not require leave of the Court of appeal before filing
its notice of appeal, as required by the provisions of Section 14(1)
(b) of the Court of Appeal Act No 74 of 1954 (hereinafter referred to
as "the Act").


Section
14, which bears the heading "Right of Appeal in civil cases"
reads as follows:-


(1) An
appeal shall lie to the Court of Appeal-


(a) from
all final judgements of the High Court; and


(b) by
leave of the Court of Appeal from an interlocutory order, an order
made ex

parte
or an order as to costs only.


(2) The
rights of appeal given by sub-section (1) shall apply only to
judgements given in the exercise of the original jurisdiction of the
High Court.


5


The
Order or judgement issued on the 17th December 1999, was made in
respect of an issue which came before this Court in exercise of its
original jurisdiction. It is common cause therefore that an appeal
against that Order or judgement falls within the ambit of the
provisions of Section 14 (1). The question for determination is
whether the said order or judgement was a final judgement, in which
case it would fall within the provisions of Section 14 (1) (a),
thereby dispensing with the need to apply for and be granted leave by
the Court of Appeal. On the other hand, if it falls within the
purview of Section 14 (1) (b) then it means that obtaining leave of
the Court of Appeal was a condictio sine qua non for lodging an
appeal against the said judgement or order.


The
key to the question to be decided in resolving the issue appears to
lie in the definition of what a final judgement is, on the one hand,
and what an interlocutory order is on the other.


Before
I deal with the issue of whether the order or judgement issued was a
final judgement or an interlocutory order, there is an argument
raised by Ms van der Walt, which merits attention. Ms van der Walt
argued that no proper order was issued on the 17th December, 1999,
because the issue of jurisdiction raised in the present Applicant's
Answering Affidavit in the main application was not raised by way of
special plea or exception but as a point in limine in the pleadings.
It was argued on the Respondent's behalf that because there was no
distinct relief sought by the Applicant, following the attack of the
Court's jurisdiction, the pleadings remained unaltered.


It
was argued that before an "order" in applications and a
"judgement" in actions can issue, there must have been a
distinct application for definitive relief. In this regard, the Court
was referred to a number of authorities, which include DICKENSON &
ANOTHER v FISHER'S EXECUTOR 1914 AD 424; NXABA v NXABA 1926 AD 392 at
394; VAN STREEPEN & GERMS v TRANSVAAL PROVINCIAL ADMINISTRATION
1987 (4) 569 (A) AND ERASMUS "SUPERIOR COURT PRACTICE" at
A1 - 42.


In
DICKENSON & ANOTHER v FISHER'S EXECUTOR (supra) at page 427 - 8,
Innes A.

C.
J.
had this to say.


"But
every decision or ruling of a Court during the process of a suit does
not


6

amount
to an order. That term implies that there must be a distinct
application by one of the parties for definitive relief The relief
prayed for may be small, as in ' an application for a discovery
order, or it may be of great importance, but the Court must be duly
asked to grant some definite and distinct relief, before its decision
upon the matter can properly be called an order...

so
also in a case like the present... The Court gave its ruling on the
point. But that was not an order in in the legal sense; it decided no
definite application for relief for none had been made; it was a mere
direction to the parties with regard to the lines upon which their
contention upon the merits should proceed. "


Innes
A.

C.
J.'s
view was concurred in by Solomon J.A. in the same case at page 429 in
the following language: -


"The
term "order" is a technical one, which is in common use in
courts of law and which is well understood, though it may not be easy
to give precise definition of it. One thing, however is clear, and
that is that no order can be made except upon an Application which
usually takes the form of a motion or petition, and the decision of
the Court upon such motion or petition is the order, which is
embodied by the Registrar in a formal document. I do not say that
there can be no order of Court except upon a formal motion or
petition, but what is essential is that there should be an
application to the Court for some relief. "


The
above case was cited with approval by Corbett J.A. in VAN STREEPEN &
GERMS v TRANSVAAL PROVINCIAL ADMINISTRATION 1987 (4) SA 569 (AD) at
page 581 D -, the learned Judge stated as follows:-


"As
has been explained in several cases, judgement' in the context
relates to a decision given upon relief claimed in a action, while
'order' refers to a decision given upon relief claimed in an
application on notice of motion or petition or an summons for
provisional sentence (see DESAI v ENGAR AND ENGAR 1966 (4) SA 647 (A)
at 653 A

-
B
and the cases there cited). But not every decision made by the Court
in the course of judicial proceedings constitutes a judgement or
order. Some may amount to what is termed 'a ruling' against which
there is no appeal".


7


This
appears to be a well settled legal position and although Mr Simelane,
during argument referred to some judgements which he stated altered
the legal propositions stated above, I have not found any that
supports a contrary position amongst those referred to in the
Applicant's heads of argument. It is abundantly clear that in casu,
there was no relief prayed for by the Respondent in the main
application. All that the Respondent did was to raise points in
limine without moving the Court to grant any specified relief
thereon. This, in view of the authorities above referred to would not
amount to an "order" or "judgement" to which an
appeal should lie and I so hold. It appears to me that the Court gave
a mere 'ruling' on the question of jurisdiction.


Should
I be wrong in the view to which I have come, I find it necessary to
proceed to deal with the issue of whether the 'ruling' given amounted
to a 'judgement' or 'order' that was appealable. I shall then for
this purpose proceed on the basis that the 'ruling' was an 'order' or
'judgement'.


A
cursory look at the provisions of Section 14 (1) states that matters
in respect of which an appeal lies to the Court of Appeal are (a) all
final judgements of the High Court; and (b) by leave of the Court of
Appeal from an interlocutory order, an order made ex parte or an
order as to costs only. The question to be decided in this case will
then be whether that ruling was appealable as of right or with the
leave of the Court of Appeal. If it is appealable as of right, then
it must be classified as a final judgement, whereas if it is
appealable by leave of the Court of Appeal it must be an
interlocutory order, an order made ex parte or an order as to costs
only.


Section
2 of the Court of Appeal Act, dealing with interpretation states as
follows, regarding the definition of judgement",:-


"In
this act, unless the context otherwise requires "judgement"
includes, decree, order, conviction, sentence and decision. "


Section
14, looked at in its proper context makes a clear distinction between
"final judgements" and interlocutory orders, orders made ex
parte and orders as to costs only. It is abundantly clear that for
the purposes of properly construing Section 14, the word judgement
does not assume the generic definition ascribed to it by the
provision of Section


8


2. The
manner in which the word judgement is used in section 14 is such as
to draw a clear line of demarcation between "judgements"
and "orders".


Having
made this important initial observation, I shall now proceed to state
the arguments advanced by Counsel on both sides. Miss van der Walt,
in her usual brief but thought -provoking submission argued that the
ruling issued by the Court on the question of jurisdiction was not a
final judgement and was therefore appealable only with leave of the
Court of Appeal, which the Applicant did not seek. In her argument,
Ms van der Walt referred the Court to the case of ZWENI v MINISTER OF
LAW AND ORDER 1993 (1) SA 523 (A) at 532 J- 533 B, which case defines
the attributes of a final judgement. I shall revert to this case
shortly.


Miss
van der Walt also took the Court on a "conducted tour" of
South African legislation with regard to the question of appeal. She
submitted, correctly in my view that in South Africa, the position
was first imported into statute by wording based on the English
Charter of Justice, Act 21 of 1864, which provided that an appeal
shall lie against " any final judgement, decree or sentence, or
against any rule or order having the effect of a final and definitive
sentence.


I
interpose to state that the wording suggests that appeal lay firstly
in respect of any final judgement decrees or sentences and secondly,
in respect of any rule order having the effect of a final and
definitive sentence. This is apparent from the wording.


It
was her further submission that the position in South Africa was
subsequently changed by statute to provide in addition to the usual
appealability of ordinary judgements or orders, the appealability,
with leave of the Court a quo of interlocutory orders, which are
those which are final and definitive in effect.


Further
amendments have resulted in a general position where all judgements
or orders in South Africa are now appealable with leave and that such
judgements must have the attributes set out in the Zweni case, to
which I will refer later.


Miss
van der Walt finally argued that the position in Swaziland differs
materially from the South African position in that Section 14 (1) (a)
circumscribes judgements appealable


9


without
leave to those that are final, period. There is not an addition, as
was the case in the Charter of Justice of order or rules having a
final and definitive effect.


She
further argued that a finding to the effect that the Court has
jurisdiction is not a final order because it does not have the effect
of disposing of at least a substantial portion of the relief claimed.
It is therefore appealable only in terms of Section 14 (1) (b) with
the leave of the Court of Appeal.


In
contra, Mr Simelane argued that Section 2 of the Act defines
"judgement" as including a decree, order, conviction
sentence and decision. Therefore, even an order made must be regarded
as a judgement and be dealt with in terms of the provisions of
Section 14 (1) (a) if that order is final and definitive in effect.


It
was further argued on the Applicant's behalf that the question of
jurisdiction was dealt with and adjudicated upon separately and that
it constituted a final judgement falling within the ambit of the
provisions of Section 14 (1) (a) of the Act. In support of this
submission, the Court was referred to the celebrated case of STEYTLER
N.O. v FITZGERALD 1911 A.D. 295 AT 313, where Innes C.J. propounded
the law as follows:-


"The
order dismissing the plea was one of the greatest consequence, it
settled a definite portion of the dispute and had a direct bearing
upon the ultimate issue. It is difficult to see how such a decision
could properly be called a simple interlocutory one".


It
was further submitted by Mr Simelane that question of this Court's
jurisdiction went to the heart of the proceedings and raised a
fundamental issue which was potentially decisive of the entire
application and it was therefore final in form, nature and effect. It
is thus appealable, I will add, as of right.


It
was further argued that the order dismissing the legal point of
jurisdiction cannot be described as an interlocutory order. Mr
Simelane also made a lot of play on the fact that the 'order' or
'ruling' was headed 'Judgement', which he argued was indicative of
how the Court regarded it and how it should be now properly regarded.


10


The
Court was also referred to the case of MOCH v NEDTRAVEL (PTY) LTD t/a
AMERICAN EXPRESS TRAVEL SERVICE 1996 (3) S.A. 1 (AD), which dealt
with the question whether the refusal of an Acting Judge of the
Witwatersrand Local Division to recuse himself was appealable. Hefer
J.A. was of the view that it was appealable as the refusal of the
application for recusation went to the core of the proceedings and if
incorrectly made vitiates them.


Having
considered submissions, by Counsel on both sides, I agree with Ms van
der Walt's submissions for reasons that follow herein below. Firstly
it is very important to consider South African cases in proper
perspective taking into account that as the wording of the
legislation differs materially from that which obtains in Swaziland.


As
earlier mentioned decisions appealable as of right in Swaziland are
"final judgements" only. This is contained in Section 14
(1) (a). Unlike the position which previously obtained in South
Africa before, there is no provision in Section 14 (1) (a) for the
appealability of rules or orders having a final and definitive
effect. The cases cited by the Applicant in this regard, which
include the Steytler case, the Moch case, to mention a few, do not
recognise this fundamental difference.


That
an order made is of the greatest consequence or has the effect of a
definitive sentence on the issue or that it is final in form, nature
and effect does not per se bring it within the ambit of the
provisions of Section 14(1) (a). If it must fall within the ambit of
Section 14 (1) (a), it must be a "final judgement". All
orders, whether interlocutory, ex parte or in respect of costs only
are appealable with leave of the Court of Appeal. In my view, this is
so even if in effect they pass a definitive sentence on the issue and
are final in form, nature and effect. As long as they are orders,
they fall to be dealt with according to Section 14(1) (b).


In
the ZWENI case (supra), Harms A.

J.
A.
stated as follows at page 532 I to 533.


"A
'judgement or order' is a decision which, as a general principle has
three attributes first, the decision must be final in effect and not
susceptible of alteration by the Court of first instance; second, it
must be definitive of the rights of the parties; and third, it must
have the effect of disposing of at least a


11


substantial
portion of the relief claimed in the main proceedings,... The second
is the same as the oft - stated requirement that a decision, in order
to qualify as a judgement or order, must grant definite and distinct
relief... ".


Before
analysing the nature of the decision on the question of jurisdiction,
it is apposite to state that Harms A. J. A. earlier on in the
judgement stated in terms of Section 20 (1) of the Supreme Court Act
59 of 1959, there is no distinction any longer between 'judgements or
orders'. The same cannot be said of the Act, particularly the wording
of Section 14 (1) (a) and (b), which in my view draws a distinction.


Adopting
the three - pronged test suggested by Harms A.

J.
A.,
it is clear that at the least, the decision on jurisdiction did not
meet the third requirement, namely, it did not have the effect of
disposing of at least a substantial portion of the relief claimed in
the main proceedings. All the issues awaiting determination in the
main proceedings remained unaffected by the decision made by the
Court. This therefore disqualifies the decision from falling within
the ambit of Section 14 (1) (a).


A
final judgement is one that finally disposes of the rights of the
parties on a specific question - See COLONIAL GOVT. v DUNDEE COAL CO.
26 NLR 346; INGLIS v DURBAN NAVIGATION COLLIERIES, 27 NLR 747 (these
are quoted in "The South African Judicial Dictionary",
compiled by J.

J.
L.
SISSON, Q.C., Dutterworths, 1960". Henry Campbell Black, in his
dictionary, "Black's Law Dictionary", fifth edition, West
Publishing Company, 1979, at page 756 defines a final judgement as:


"One
which puts an end to an action at law by declaring that the plaintiff
either has or has not entitled himself to recover the remedy he sues
for. So distinguished from interlocutory judgements. A judgement
which disposes of the subject matter of the controversy or determines
the litigation as to all parties on the merits. A judgement which
terminates all litigation on the same right."


The
decision on jurisdiction clearly did not have this effect. The said
decision was a preliminary decision on a point of law, which does not
amount to a final judgement within the meaning of Section 14 (1) (a)
of the Act - See NXABA v NXABA 1926 AD 392, where Innes C.J. stated
as follows at page 394:-


12


"Upon
the face of it, it was a mere ruling on a preliminary point of law,
important no doubt, but not a rule or order upon the relief asked for
in the action. "


One
thing that needs to be mentioned however, and which was submitted by
Ms van der Walt was that had the decision on jurisdiction been in the
present Applicant's favour, then it would have amounted to a final
judgement appealable in terms of Section 14 (1) (a), for it would
have finally disposed of the rights of the parties. In the words of
Harms A. J. A. in the Zweni case (supra), it would have effectively
disposed of at least a substantial portion of the relief claimed in
the main proceedings.


The
issue raised was potentially decisive of the entire application, as
correctly argued by the Applicant's Attorneys. But whether it was
actually, and not potentially decisive of the entire application,
hinged on whether the Court found it had jurisdiction or not. Since
it held that it did have jurisdiction, then that decision was not
decisive of the entire application.


As
an aside, I should mention that having read the authorities to which
I was referred by Counsel in the matter, it is clear that the Court
was guilty of what Sir Winston Churchill referred to as
"terminological in exactitude" in referring to the order of
the 17th December, 1999, as a "judgement" as it is clearly
a "ruling" and should have been so captioned.


In
the circumstances, it is my finding that the decision falls within
the ambit of Section 14 (1) (b) and was therefor appealable only by
leave of the Court of Appeal which was clearly not sought. I find for
that reason that no proper notice of appeal was issued and filed and
consequently that stay of execution due to the repeal of Rule 40 of
the Court of Appeal Rules does not affect execution in this matter
and it is so ordered.


The
casts will follow the event.


T.S.
MASUKU


JUDGE