IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)

(1)	REPORTABLE: YES/NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED

         ……………………..		………………………...
                   DATE			        SIGNATURE

Case number: 23534/2013

In the matter between:
D & A CALENDARS CC							First Applicant
DARRYL ALBERT BANNISTER						Second Applicant 

and

BANNISTER’S PRINT (PTY) LTD					Respondent

SUMMARY:  Application for leave to appeal – issue whether order is interlocutory – order had set aside as null and void ab initio a document purporting to be a settlement agreement – effect was to reinstate the main action – no findings on any of the issues in the main action –analogous to rescission of a default judgment which rescission is not subject to appeal.
                        Application for leave to appeal -  defendant’s attorney  (unknown to client) forged both agreement of settlement and signature of defendants – presented document to plaintiff’s legal representative  to be made an order of court -  this court found attorney had neither purported to have authority to negotiate or conclude terms of any settlement nor sign any agreement of settlement and had not held himself out clothed with such authority (contra facts in MEC v Kruizenga 2010 (4) 122 SCA – attorney was no more than messenger or conduit – deed of settlement was null and void. 

JUDGMENT

SATCHWELL J:

1.	Litigating parties had, supposedly, ended their litigation by concluding an agreement of settlement.   On 28th November 2013 this court determined that such deed of settlement was, by reason of fraud, null and void (“the November order)”.   Accordingly, this court set aside an earlier order  (“the February order”) which had made the document an order of court.  Plaintiff now seeks leave to appeal the decision that the document is null and void.  Defendant has submitted that the November order of this court is not susceptible to appeal by reason that it is interlocutory.   This judgment must determine the status (interlocutory or final) of the November order made by myself.

2.	Defendants’ attorney had (unknown to his clients) inexplicably forged both an agreement of settlement and the signature of defendants thereto and presented it to plaintiff’s legal representatives  to be made an order of court disposing of all issues in the main action and terminating the litigation between the parties.   These bizarre facts led this court to find that the attorney had neither purported to have the authority to negotiate terms of any settlement nor agree to the terms of any settlement nor sign any settlement agreement.  This court found that the attorney (on this occasion)    held himself out to be and was no more than a messenger  or conduit delivering the  document  purporting to have been signed by one party to the litigation.   Accordingly, this court found that the fraud and forgery of the attorney vitiated the document and any agreement thought to emanate therefrom was null and void. 

3.	It is trite that “interlocutory” orders are not appealable.    As a result  the question whether or not a judgment is  “interlocutory”  or  “final”   has,   as was said by Schutz JA,   “vexed the minds of eminent lawyers for many centuries and the answer has not always been the same. The question is intrinsically difficult and a decision one way or the other may produce some unsatisfactory results”.

4.	Succinctly stated, interlocutory orders are those which pronounce upon matters which are “incidental to the main dispute” or “preparatory to or during the course of the litigation”.   Such orders can be divided either into “those which have a final and definitive effect on the main action” and those which are considered “simple (or purely) interlocutory orders” .

5.	Firstly, the November order was certainly not a “simple” or “purely interlocutory” order as would be an order for discovery or further and better discovery or security or further particulars.      

6.	Secondly,   this November order does not have a final and definitive effect on the main action.  Paragraph 7 of the deed of settlement provided that “plaintiff will withdraw its claims against the defendants.   That deed purported to bring the main action to an end because of settlement and then withdrawal of the claims thereof.  There was then a ‘final and definitive effect’ upon the main action.  However, this court found the deed of settlement to have been fraudulently created and null and void ab initio.  This court accordingly set aside the February order making the deed of settlement an order of court.   Therefore,   this court   did no more than reinstate   the trial action.   This court made no comment on or finding on any of the issues which were and are the subject of the trial action.  The order did not define any of the rights of the parties asserted in the pleadings in the main action or dispose of any of the relief claimed.  Indeed they never featured in any way in the application before myself and in the reasons for judgment in the November order. 

7.	The order returns the parties to the positions in which they were prior to the presentation of the fraudulent document which was made an order of court (in the February order).  The plaintiff remains the plaintiff and has instituted action for certain relief against the defendants.  There is no impact upon them or their rights. 

8.	Most illustrative are a series of cases dealing with default judgments.     The judgment debtor may bring an application for rescission.   If the rescission application is successful,   the default judgment is set aside and the parties remain as they were with the litigation in the main action before them.     As was stated by Nugent J ,   had “the court rescinded the orders, the proceedings would then have proceeded to their ordinary completion by a final judgment”.   

9.	However, where the rescission application is unsuccessful, the judgment debtor may appeal against the order of the court refusing the application for rescission of the default judgment. There are numerous judgments dealing with appeals against refusals to grant rescission.   Again, as was stated by Nugent JA, had   “the court… refused to rescind its orders. that would  have clearly have been appealable because it would have brought the proceedings to completion  in the court of first instance.”.

10.	The present case is somewhat similar in nature because the November judgment of this court was tantamount to rescission the earlier settlement judgment of February (i.e the default or unopposed judgment). The deed of settlement ending the litigation and the February order were set aside and therefore the parties are reinstated in their litigation.  

11.	In Ranchod v Lalloo 1942 TPD 211    the court commented that this was the first opportunity to determine whether or not a rescission or setting aside of an earlier judgment was appealable (although such appeals had been previously been allowed).  The court found that the judgment which set aside the earlier order meant that “The plaintiff’s claim remains intact. Nothing has been decided about it. All that has happened is that the defendant has been given the opportunity of answering it; and the setting aside of the default judgment for that purpose is reparable in the final stage.”. 

12.	In De Vos v Cooper & Ferreira 1999 (4) SA 1290 (SCA), the question   whether or not an order rescinding an earlier order can be appealed was pertinently raised for the first time in the Supreme Court of Appeal.  The parties accepted that such an order was not appealable, the court commenting “So ‘n bevel het immers nie enige finale of beslissende uitwerking op die geskilpunte in die hoofgeding  nie”.

13.	In November 2013 this court set aside the deed of settlement and the resulting court order.   The effect is that the main action is reinstated.  The parties may proceed exactly as if there had never been fraudulent presentation of a forged document.  

14.	Accordingly, I find that the decision of this court in November 2013 is not appealable.

15.	In any event, if I am wrong on this point, I cannot see that there is a reasonable prospect of success on appeal.    This is not a question of an attorney relying upon the authority with which he was expressly or impliedly cloaked to negotiate, prepare and conclude an agreement of settlement.  For the reasons set out in the judgment, I take the view that reliance   upon MEC v Kruizenga 2010 (4) 122 SCA   is misplaced and that this matter does not raise the issue of the authorisation of an attorney.   

16.	I have already commented that I do not believe that this was an application justifying the costs of two counsel and accordingly costs only of one junior counsel are allowed in this application for leave to appeal.

An order is made as follows:

a.	The application for leave to appeal is refused with costs (of one junior counsel only). 

DATED AT JOHANNESBURG ON THIS DAY THE   25th FEBRUARY 2014

_______________
K. SATCHWELL

Counsel for Applicants (Respondents in application for leave to appeal):  Adv. G. I. Hoffman  S.C. with him Adv. J.L. Kaplan
Counsel for  Respondents (Applicants in application for leave to appeal): Adv. M.M. Segal
Attorneys for Applicants: Ian Levitt Attorneys 
Attorneys for Respondents: Schoonees, Belling & Georgiev Attorneys
Date of hearing: 18th February 2014
Date of judgment: 25th February 2014