THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 1060/16

In the matter between:

V N MGWENYA NO

FIRST APPELLANT
S P SMIT NO

SECOND APPELLANT
G J AUGUST NO

THIRD APPELLANT
AFM CHURCH OF SOUTH AFRICA

FOURTH APPELLANT

and

VERNON XAVIER KRUGER

FIRST RESPONDENT
GOVERNING BODY OF THE DANVILLE
ASSEMBLY OF THE AFM OF SA

SECOND RESPONDENT

Neutral Citation:
Mgwenya v Kruger (1060/16) [2017] ZASCA102 (6 September
2017).
Coram:
Shongwe AP, Bosielo and Majiedt JJA and Mokgohloa and
Fourie AJJA
Heard:

24 August 2017
Delivered:

6 September 2017

Summary: Section 16(2)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 –
judgment or order sought on appeal would have no practical effect or result – no
exceptional circumstances justifying a consideration of the matter with reference to
the issue of costs – appeal dismissed.

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ORDER
___________________________________________________________________

On appeal from: North West Division of the High Court, Mahikeng (Gura and
Kgoele JJ, Hendricks J dissenting, sitting as court of appeal):
The appeal is dismissed with costs.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Fourie AJA (Shongwe AP, Bosielo and Majiedt JJA and Mokgohloa AJA
concurring):

[1] In this appeal counsel were, at the outset of the hearing on 24 August 2017,
required to address argument on the preliminary question whether the appeal and
any order made thereon would, within the meaning of s 16(2)(a)(i) of the Superior
Courts Act 10 of 2013 (the SC Act), have any practical effect or result. After hearing
argument on this issue, the appeal was dismissed with costs and it was indicated
that reasons for the order would follow. The following are those reasons.

[2] In order to understand the context in which the order was made, it is
necessary to briefly summarise the history of the litigation between the parties: The
first respondent, Vernon Xavier Kruger, was previously a duly ordained pastor in the
service of the fourth appellant, the Apostolic Faith Mission Church of South Africa
(the church) at its Danville Assembly, Mahikeng. However, during 2012, the church
instituted disciplinary proceedings against the first respondent and found him guilty
of misconduct on four charges, resulting in the termination of his pastoral status with
immediate effect from 23 January 2013. The first respondent then launched an
application in the North West Division of the High Court, Mahikeng (the NWHC) for
the review and setting aside of the ruling of the disciplinary committee of the church.

[3] On 11 June 2015, Gutta J dismissed the application with costs, but the first
respondent was granted leave to appeal to the full court of the NWHC (the Full
Court). On 9 June 2016, the full court upheld the first respondent’s appeal and
reviewed and set aside the ruling of the disciplinary committee. The church and the
three members of the disciplinary committee (the latter being the first to the third
appellants), with the special leave of this court, then noted the current appeal.

[4] However, on 27 January 2017 before the hearing of the appeal, the first
respondent passed away. This resulted in the parties being requested on 21 June
2017, to file supplementary heads of argument on the preliminary question referred
to in paragraph one above. The parties duly filed supplementary heads of argument
and, for completeness, I should add that, at the commencement of the hearing of the
appeal, an application was granted pursuant to Uniform Rule 15(2), in terms of which
the first respondent’s son, Warren Vernon Kruger in his official capacity as the
executor of his late father’s estate, was substituted for the first respondent in this
appeal.

[5] Turning to the preliminary question as to whether this appeal will have any
practical effect or result, the starting point is s 16(2)(a)(i) of the SC Act, which reads
as follows:
’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.’

[6] Counsel for the appellants were constrained to concede that the appeal and
any order made thereon would have no practical effect or result. This concession
was rightly made as, in view of the demise of the first respondent, there are simply
no live issues remaining between the parties. Therefore a decision on appeal will
have no practical effect or result as between the parties to the appeal. On this basis
alone the appeal ought to be dismissed.

[7] Counsel for the appellants, however, had a second string to their bow. They
submitted that, if the appeal were not to be heard on its merits, the church would be
saddled with the costs orders made in favour of the first respondent and this would
be most ‘unfair’ to the church. In this regard counsel for the appellants stressed that

the costs incurred to date were substantial. However, in so arguing, the appellants
were confronted with a significant obstacle in the form of s 16(2)(a)(ii) of the SC Act
which reads as follows:
‘Save under exceptional circumstances, the question whether the decision would have no
practical effect or result is to be determined without reference to any consideration of costs.’
It follows that it is incumbent upon the appellants to show that exceptional
circumstances exist justifying this court, in deciding whether its judgment or order
would have a practical effect or result, to have regard only to considerations of costs.

[8] In MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas & another
2002 (6) SA 150 (C), Thring J conducted a comprehensive inquiry as to the meaning
of ‘exceptional circumstances’ in our case law. The conclusion reached at 156H-J,
with which I am in agreement, is that ‘[w]hat is ordinarily contemplated by the words
“exceptional circumstances” is something out of the ordinary and of an unusual
nature; something which is excepted in the sense that the general rule does not
apply to it; something uncommon, rare or different . . .’. Further, the approach to the
construction of the phrase ‘exceptional circumstances’ in legislation was stated as
follows by this court in Norwich Union Life Insurance Society v Dobbs 1912 AD 395
at 399:
‘Moreover, when a statute directs that a fixed rule shall only be departed from under
exceptional circumstances, the Court, one would think, will best give effect to the intention of
the Legislature by taking a strict rather than a liberal view of applications for exemption, and
by carefully examining any special circumstances relied upon.’

[9] In essence the submissions made on behalf of the appellants in this regard
constituted a plea ad misericordiam. The appellants also sought to rely on the
judgment in Oudebaaskraal (Edms) Bpk en andere v Jansen van Vuuren en andere
2001 (2) SA 806 (SCA). In my view, Oudebaaskraal is clearly distinguishable. In that
matter the appeal became academic as a result of the repeal of the Water Act 54 of
1956 at the time when the appeal was ripe for hearing. By that stage a trial of seven
days in the Water Court had taken place rendering a record of 2 379 pages. This
included the evidence of several expert witnesses. The appeal record consisted of
35 volumes. This court held that these circumstances were exceptional, justifying the
conclusion that in the event of a successful appeal, the judgment or order of the

court would have had a practical effect or result. I should mention that
Oudebaaskraal was decided in terms of s 21A(3) of the Supreme Court Act 59 of
1959 which, for all practical purposes, is similarly worded to s 16(2)(a)(ii) of the SC
Act. See also Radio Pretoria v Chairman, Independent Communications Authority of
South Africa & another 2005 (1) SA 47 (SCA) at 55G-56F.

[10] In the present matter the appeal related to an order granted in Motion Court
which was set aside by the full court. No viva voce evidence was tendered and the
appeal record constituted only three volumes running to 437 pages. Oudebaaskraal
and the present appeal are simply not comparable. It follows that, although the
appeal was rendered moot by the death of the first respondent, the circumstances
relied upon by the appellants cannot, for purposes of s 16(2)(a)(ii) of the SC Act, by
any stretch of the imagination be regarded as exceptional in the sense of something
out of the ordinary, or of an unusual nature, uncommon, rare or different to the extent
that the general rule as embodied in s 16(2)(a)(i) should not apply.

[11] In the result the appeal fell to be dismissed. With regard to the costs of
appeal, there is no reason why the appellants, as the unsuccessful parties, should
not bear those costs. In this regard, the appellants were the authors of their own
misfortune. As recorded above, they were notified as early as 21 June 2017 of this
court’s concern that the hearing of the appeal may not render a judgment or order
which would have any practical effect or result. Notwithstanding this, they persisted
with the appeal, resulting in the estate of the first respondent incurring costs in
opposing same.

[12] These were the considerations on which the dismissal of the appeal with
costs was based.

____________
P B FOURIE
ACTING JUDGE OF APPEAL

APPEARANCES:

For the Appellant:

M C Erasmus SC; L W De Beer
Instructed by:
Meintjies Petzer Attorneys, Mahikeng
c/o Symington De Kok, Bloemfontein

For the Respondent:

J H F Pistor SC
Instructed by:
Herman Scholtz Attorneys, Mahikeng
c/o Rossouws Attorneys, Bloemfontein