Crockery gladstone farm v. Rainbow farms (pty) ltd

South Africa

20.05.2019

Civil

Appeal may be dismissed when issues are of such a nature that, decision sought will have no practical effect or result

In present appeal, counsel were at the outset of the hearing, asked to address the Court on the preliminary question whether the Full Court’s order mulcting the Appellant with the costs of the rescission application and the costs of appeal before it, is appealable. The issue arises against the backdrop of a default judgment granted by Phatudi J on 2 August 2016.

On the test articulated by this Court in Zweni v The Minister of Law and Order, the order is not appealable if it has the following attributes (a) not final in effect and is open to alteration by the court below; (b) not definitive of the rights of the parties; and (c) does not have the effect of disposing of a substantial portion of the relief claimed.

The Full Court’s order is interlocutory and does not cause the Appellants any irreparable harm or preclude it from obtaining some relief in the future. It has no direct effect on the final issue relating to the purported termination of the agreement and neither does it dispose of any portion of the appellant’s claim. It is accordingly not appealable and the appeal must be dismissed on this ground alone. When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone’.

The argument advanced by the Appellant is that, the judgment of the Full Court is predicated on wrong facts and legal principles, with the result that it exercised its discretion wrongly. If counsel for the Appellant had been appraised of the developments as an officer of court, he would have proceeded with the matter on an unopposed basis and obtained default judgment against the respondent. If Phatudi J had been informed of the pending settlement negotiations, he would not have insisted on a substantive application for a postponement and granted default judgment. The respondent’s attorneys were thus fully justified to approach Muller J to seek rescission of the judgment.

The failure by the Appellant’s attorneys to furnish counsel with proper instructions must be deprecated. The Full Court exercised its discretion 6 properly. Absent any misdirection this Court cannot interfere with the proper exercise of that discretion. It follows that the costs order was correctly made. Appeal is dismissed.

Tags : Rescission order Grant Legality

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