THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable

Case No: 592/18

In the matter between:

CROCKERY GLADSTONE FARM
APPELLANT

and

RAINBOW FARMS (PTY) LTD
RESPONDENT

Neutral Citation:
Crockery Gladstone Farm v Rainbow Farms (Pty) Ltd
(592/18) [2019] ZASCA 61 (20 May 2019)
Coram:
Tshiqi, Mbha and Mathopo JJA and Davis and Weiner
AJJA
Heard:
20 May 2019
Delivered:
20 May 2019
Summary:
Civil procedure – the grant of an application for rescission
of judgment is not appealable – order of the Full court granting rescission order
upheld.

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ORDER
______________________________________________________________

On appeal from: The Limpopo Division of the High Court, Polokwane
(Makgoba JP with Kganyago JA and Sikhwari AJA) sitting as court of appeal):
The appeal is dismissed with costs.

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JUDGMENT
______________________________________________________________

Mathopo JA (Tshiqi and Mbha JJA and Davis and Weiner AJJA
concurring):

[1] In this appeal counsel were, at the outset of the hearing, asked to
address the court on the preliminary question whether the order of the Full
Court, Limpopo Division of the High Court, Polokwane (Makgoba JP with
Kganyago J and Sikhwari AJ concurring) is appealable or not.

[2] The issue arises against the backdrop of a default judgment granted by
Phatudi J on 2 August 2016. The common cause facts are that on the date the
default judgment was granted, the appellant and respondent were engaged in
settlement negotiations. The respondent had served and filed its notice to
oppose but held back the filing of the answering affidavit pending settlement
negotiations. A day before the hearing the respondent’s attorneys were advised
by the appellant’s attorneys that they were still awaiting their client’s
instructions. Regarding the appearance the next day, they were assured that

they should not worry, as this ‘would be sorted out’. The appellant’s attorneys
did not revert to the respondent’s attorneys. On 2 August 2016, the
respondent’s attorneys tried to contact the appellant’s attorneys telephonically
on several occasions and out of caution the respondent’s attorneys briefed
counsel to ask for a postponement as they were still awaiting the appellant’s
client’s instructions on the offer. When the matter came before Phatudi J, he
was not advised of the settlement discussions and he refused the application
for a postponement and granted default judgment against the respondent.
Counsel for respondent nonetheless informed the court that he had been
informed that by agreement between the parties’ respective attorneys, the
matter was to be postponed. A subsequent application for rescission of the
judgment before Muller J was dismissed with costs on the erroneous basis that
Phatudi J’s judgment was not a default judgment.

[3] On appeal to the Full Court, the order of Muller J was set aside and the
respondent was given an opportunity to file the answering affidavit. In its well-
reasoned judgment the Full Court correctly held that had the settlement
negotiations been disclosed to the court of first instance (Phatudi J), he would
not have granted the default judgment. In my view, once the Full Court made a
finding that the material facts were not disclosed, then it follows that the
judgment had been erroneously sought or granted. As counsel for the
respondent submitted, it is not so much whether the agreement was purportedly
terminated or not. That issue is still to be determined once the parties have filed
the necessary papers.

[4] I now turn to the question whether the order of the Full Court is
appealable or not. On the test articulated by this Court in Zweni v The Minister
of Law and Order 1993 (1) SA 523 (A), 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 See also SA
Informal Traders Forum v City of Johannesburg 2014 (4) SA 971 (CC).

[5] In this matter the appellant’s claim remained intact. Nothing has been
decided about it. All that has happened, is that the respondent has been
afforded an opportunity of answering it. 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.

[6] It remains to consider 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. Courts should and ought not to decide issues of
academic interest only. That much is trite. In Radio Pretoria v Chairman,
Independent Communications Authority of SA 2005 (1) SA 47 (SCA) [also
reported at [2004] 4 All SA 19 (SCA) – Ed], this Court expressed its disquiet
about the proliferation of appeals that had no prospect of being heard on the

merits, as the order sought would have no practical effect. Section 16(2)(a)(i)
provides that ‘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. The simple
answer to this argument is that, in the light of the failure by the appellant’s
attorneys to revert to the respondent’s attorneys, it was necessary for the
respondent’s attorneys to brief counsel to appear before Phatudi J and ask for
a postponement. The respondent’s attorney had to safeguard his client’s
interests. I find it astonishing that the appellant’s attorneys failed to bring to their
counsel’s attention and the court, that the parties were still engaged in
settlement negotiations and that the respondent’s attorneys had enquired
repeatedly whether they had received instructions or not.

[7] In my view, if counsel for the appellant had been appraised of the
developments as an officer of court, I have my reservations that 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

properly. Absent any misdirection this Court cannot interfere with the proper
exercise of that discretion. It follows that the costs order was correctly made.

[8] In the circumstances the following order is made:
The appeal is dismissed with costs.

________________________
R S Mathopo
Judge of Appeal

APPEARANCES:

For appellant:
M E Manala

Instructed by:

Mahowa Incorporated, Polokwane

Phatshoane Henney Attorneys, Bloemfontein

For respondent:
M B Pitman

Instructed by:

Eversheds Sutherland, Durban

Honey Chambers, Bloemfontein