WHETHER SECTION 18(1) OF THE SUPERIOR COURTS ACT 10 OF 2013 SUSPENDS THE ENFORCEMENT OF COURT ORDER WHEN SUCH ORDER IS BEING RESCINDED,REVIEWED.ETC
Prior to its repeal on 22 May 2015, rule 49(11) of the Uniform Rules of Court provided as follows:
“Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs.”
In United Reflective Converters (Pty) Ltd v Levine[1] at 463J-464B, Roux J held that there is no substantive rule of law that an application to vary or rescind an order or judgment automatically suspends its operation and that insofar as rule 49(11) purports to create a substantive rule to such effect, the rule is invalid. But in Khoza v Body Corporate of Ella Court[2] at 117H-I, Notshe AJ held that at common law there is a substantive rule suspending the operation of an order or judgment upon the noting of an application for rescission. Khoza was followed by Vally J in Peniel Development [Pty] Ltd and another v Pieterson and others[3], Notshe AJ in Khoza at paras 26-28 further held that even if there were no substantive common-law rule which suspends the operation of an order or judgment upon an application for rescission the common law would be severely lacking in that regard and the court should develop the substantive rule. In this regard Notshe AJ at para said:
“An applicant for a rescission of an order would be irreparably prejudiced if the order were allowed to operate despite the application. This is no different from a situation where a notice of application for leave to appeal is delivered. In the circumstances, the rule that applies to the noting of appeals would be extended to noting of the rescission application as well.”
Similarly, Vally J in Peniel at para 12 said the following:
“There is no reason why this rule developed in the common law should not be extended to applications for rescission of judgments. And, if I am wrong in my judgment that the Chief Justice had not exceeded his powers by so doing – as the Court in United Reflective Converters found – then there was nothing in law that prevented that court from extending the common-law rule to applications for the rescission of a judgment and order. In my judgment, given the power of this court to develop the common law, it is imperative that the court does so, if the need arises. After all, the rule relating to appeals is only part of the common law because Voet pronounced it to be. There is no reason why the Court in United Reflective Converters should not have pronounced its extension in relation to rescission applications.”
The conclusion reached by Vally J in Peniel was influenced by the protection which rule 49(11) prior to its repeal afforded a party in whose favour the judgment or order was given. In this regard Vally J said the following at para 15:
“Of course, the party in whose favour the judgment has been given is entitled to seek an order allowing it to execute the judgment, given that there is a pending rescission application. This is allowed in terms of rule 49(11), and the circumstances under which it would be allowed to do so have been spelled out in South Cape Corporation [South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545C-546H]. In fact, in the present case, such an application is before court in the form of a counter application.”
I must admit that I find the comment of the learned authors of Erasmus Superior Court Practice at B1-369 that the correctness of the Khoza judgment ‘is not beyond doubt’, at least on the face of it, valid. Neither Khoza nor Peniel refers to any authority in support of a substantive rule of law that an application to vary or rescind an order or judgment automatically suspends its operation. Furthermore, the provisions of rule 45A of the Uniform Rules of Court, which provide that ‘the court may suspend the execution of any order for such period as it may deem fit’, were not considered.
The view I take of the matter, and particularly on the interpretation of section 18 of the Superior Courts Act, however, makes it unnecessary for me to reconsider the correctness of the decision in United Reflective Converters or to consider the correctness of the decisions in Khoza and in Peniel. Section 18(1) of the Superior Courts Act provides that:
“subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.”
Subsection (2) deals with the suspension of an interlocutory order not having the effect of a final judgment pending the decision of an application for leave to appeal or an appeal. Subsection (3) provides that:
“a court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.”
Subsection (4) affords the aggrieved party an automatic right of an urgent appeal to the next highest court in cases where a court ordered otherwise as contemplated in subsection (1). The provisions of section 18 of the Superior Courts Act must be interpreted in accordance with the established principles of interpretation[4]
I am of the view that had it been the intention of the legislature for the operation and execution of a decision which is the subject of an application for rescission also to be automatically suspended, then such decision would have been expressly included in section 18(1).The legislature would have expressed its intention to include such decision in clear and unambiguous language. The contrary interpretation would result in the absurdity that the filing of any unmeritorious application for rescission could foil the operation and execution of a decision which is the subject of such application. Moreover, it would result in the absurdity that the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal may by order of court as contemplated in section 18 be carried into effect, but not a decision which is the subject of an application for rescission. But a person against whom the decision which is the subject of an application for rescission was given can always approach a court under rule 45A to suspend its execution pending the finalisation of an application for rescission. I see no reason in principle or in logic why an applicant for rescission should be placed in a better position than an applicant for leave to appeal or an appellant as far as the operation and execution of court orders is concerned. The glaring absurdities that could result in hardship to the party in whose favour a decision that forms the subject of an application for rescission was given could never have been contemplated by the Legislature.
The Superior Courts Act commenced on 23 August 2013. Its section 18 only provides for the automatic suspension of the operation and execution of a decision pending an application for leave to appeal or an appeal. No other provision of the Superior Courts Act provides for the automatic suspension of the operation and execution of a decision which is the subject of an application to rescind, correct, review or vary an order of court. There is also nothing which indicates an intention on the part of the legislature to broaden the automatic suspension of the operation and execution of decisions beyond those included in section 18. A court can always be approached under rule 45A to suspend the operation and execution of orders not included in section 18. But their operation and execution are not automatically suspended.
Compiled by Shonisani Muridili ON THE 14 JUNE 2017.
See footnotes below:
[1] 1988 (4) SA 460 (W).
[2] 2014 (2) SA 112 (GSJ).
[3] 2014 (2) SA 503 (GJ).
[4] Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18; Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) para 12.