THE HIGH COURT OF SWAZILAND
Case No. 887/91
the matter between:
Industries (Pty) Limited Plaintiff
Timber Products Limited 1st Defendant
Ramkolowan 2nd Defendant
Minett 3rd Defendant
Lindsay Sabatta 4th Defendant
Anthony Zammit 5th Defendant
Edward Alexander 6th Defendant
PLAINTIFF Mr. Burman S.C.
DEFENDANTS Mr. Sapire S.C.
15th June 1994 I gave judgment for the plaintiff ("Hartwood")
against the first defendant ("Swazi Timber Products") on
various heads of claim and also against the second and third
defendants, Mr. Ramkolowan and Mr. Minett, on certain heads of claim.
defendants have each noted an appeal against that judgment. By this
present application, they have asked for a stay of execution of the
judgment pending the outcome of the appeal.
the application came on for hearing last Friday, however, Mr. Sapire
raised initially an interesting and disconcerting point of law. He
submitted that rule 40 of the Court of Appeal Rules 1971 is ultra
vires. That rule, according to its tenor, provides that the nothing
of an appeal shall not operate as a stay of execution unless the High
or the Court of Appeal, on application, orders otherwise. The
position at common law in South Africa is different. There, the
noting of an appeal suspends execution automatically unless and until
the successful party at first instance obtains leave to levy
execution while the appeal is still pending.
Sapire's submission was disconcerting because, only a day or two
previously, I had had occasion to refer to this apparent difference
between the two jurisdictions in another case, in which I expressed a
preference for the Swazi approach.
basis for the submission is short and straightforward. The rules of
the Court of Appeal were made by the Judge President under powers
conferred on him under section 112 of the Constitution. But, so the
argument runs, the rule-making power in that section is limited to
matters of practice and procedure. The rule at common law in South
Africa, that the noting of an appeal automatically suspends
execution, is a substantive rule of law. In other words it is not a
rule of practice or of procedure, and as the common law of South
Africa applies in Swaziland, it follows that rule 40 is ultra vires.
the proposition that the common law rule in the Republic is a rule of
substantive law, Mr. Sapire cited the judgment of Mr. Justice Roux in
united Reflective Converters (Pty) Ltd v. Levine 1988 4 SA 460.
relevant passage in the judgment is at paragraph F on page 463 where
the learned judge says:
is a substantive rule of law that the noting of an appeal
automatically suspends the operation of the order in question. I need
only refer to De Lange v. Bonini 1906 TH 25 and South Cape
Corporation (Pty) Ltd v. Engineering Management Services (Pty) Ltd
1977 (3) SA 534 (A) at 542 E, 544 - GH and 545 A."
section 112 of the Constitution certainly empowers the Judge
President to make rules governing practice and procedure. It does so
explicitly. The question is therefore whether or not rule 40 is a
rule of practice or procedure. If it is, then it is undoubtedly ultra
great respect, I do not think that Mr. Justice Roux in Levine
characterised correctly the South African common law rule as a
substantive rule if (as he did, for in a slightly different context
the same issue arose in that case) he thereby distinguished it from a
rule of practice or procedure. Neither of the two cases which he
cited supports his conclusion. In De Lange, the court did not seek to
characterise the nature of the rule. In South Cape, Corbett J.A. (as
he then was) expressly referred to the South Africa rule as an
established "common law rule of practice": see page 544 at
was contended by Mr. Sapire that the learned justice of appeal was
not in the context using the expression "rule of practice"
as a term of art. My own view is that the rule in point is clearly
one of procedure. That appears to be a view shared by Mr. Justice
Jansen in Ruby's Cash Store (Pty) Ltd v. Estate Marks and Another
1961(2) SA 118. If it were anything more than a rule of procedure or
of practice, it seems to me in the first place that it would detract,
necessarily, from the status of a judgment at first instance. It
would reduce it to a decision of a provisional nature. I do not think
that can be correct. Judgments of the superior courts at first
instance are final judgments, whether or not a right of appeal
exists. I am inclined to think, too, that the fact that in South
Africa, the court retains a discretion, on the application of the
successful party at first instance, to allow execution to proceed in
the meantime, itself indicates the procedural nature of the rule.
Mr. Sapire is right in suggesting that Corbett J.A. did not intend to
use the expression "rule of practice" as one of legal art,
then at the most I think he was simply using it as an abbreviation
for that generic category of rules that are frequently classified
together as rules of "practice and procedure". However I am
not at all persuaded that he was not using it as a precise
description. As I have indicated, it does appear to me that it is a
procedural rule, but it may well that the correct view is that it is
a rule of practice.
any event, I have no doubt that it is a rule either of practice or
procedure and that rule 40 of the Court of Appeal Rules 1971 is intra
The preliminary point, whereby the defendants effectively seek a
declaration that their own application to stay execution is
unnecessary, therefore fails.
Swaziland it appears to me that the general rule being that execution
should follow judgment, the onus rests on the unsuccessful party to
show why it should be stayed; in my view the reasoning of Jansen J in
Ruby's Cash Store at pages 127 and 128 is apposite.
is a matter of discretion. I do not myself consider that the appeal
has any real prospects of success at all. Except in relation to the
issue of the overdraft there is no question about that at all, and
even in respect of the overdraft, I do not think that it has any
merit. The defendants have shown no special circumstances at all. As
Mr. Burman pointed out, the fact (if true) that the first defendant's
underlying problem is one of cash liquidity is not properly to be
regarded as a special circumstance.
competing factor for the first defendant, as it seems to me, is that
if it is obliged to sell assets to meet the liability under the
judgment in the meantime, but in the event its appeal is successful,
then its position as a going concern will have been irrevocably
damaged. That is really the only thing that, in my view, can be said
for the defendants - or, more precisely, the first defendant. As
against that, the plaintiff itself may suffer irreparable loss if in
the meantime the first defendant becomes insolvent, and the prospects
of success on the appeal have to be taken into account in weighing
balance in my view is clearly in favour of the plaintiff.
application by the defendants is accordingly refused with costs,
including an order in terms of Rule 68 (2) of the High Court Rules
that the taxing master be authorised to tax a higher amount for
counsel that provided for by the rule.
will also make the order, as sought by the plaintiff, that an interim
attachment order issue to it to attach the Hartwood fixed assets
pending the outcome of the appeal.
HULL CHIEF JUSTICE