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Baumann NO and Others v Jacobs and Others (845/2008) [2008] ZAWCHC 149 (27 February 2008)

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IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISIONS)

CASE NO: 845/2005

DATE: 27 FEBRUARY 2008

In the matter between:

HERRN SEBASTIAN BAUMANN N.O 1^st Applicant

SAMUEL SPYCHER 2^nd Applicant

JOHANNES SPYCHER 3^rd Application

RACHEL SPYCHER 4^th Applicant

THERESE SPYCHER 5^th Applicant

DAVID SPYCHER 6^th Applicant

And

TABEA JACOBS 1^st Respondent

CLIFFORD JACOBS 2^nd Respondent

TABEA INVESTMENT HOLDINGS CC 3^rd Respondent

JUDGMENT

(Application for Leave to Appeal)

BOZALEK, J:

[1] On 14 December 2007 I ruled that the plaintiffs in this matter could substitute one Swiss executor for another in this action and join a further plaintiff. Defendants, respondents in the opposed application, now wish to appeal my ruling either to the Full Bench of this Court or the Supreme Court of Appeal.

[2] Two questions initially arise, namely whether the order is appealable and secondly, the prospects of success of any such appeal. At the risk of putting the cart before the horse I shall deal firstly with the second question.

[3] I do not propose to traverse again the merits of the opposing arguments on the issue of whether the substitution is competent or not. Mr Binns-Ward argued that it is not competent, simply put, because the action is one on behalf of a deceased estate and since the first Swiss administrator's appointment was set aside as unlawful, the summons which commenced the action in his name as first plaintiff was a nullity. The effect of substituting the executor or administrator subsequently appointed was, he argues, to purport to cure that nullity, impermissibly so.

[4] This conclusion depends not only on the facts in this matter but on the relevant case law. The facts in the application, although not always easy to divine, can be interpreted as supporting this conclusion. Secondly, there is authority which supports the approach contended for by the respondents, most notably the case of Van Heerden v Du Plessis 1969(3) SA at 298 (O). In my view, there is thus a reasonable prospect of another Court arriving at conclusion different to this Court's conclusion.

[5] As regards the appealability of the judgment, the position is, in my view, somewhat less clear because here we are deafing with an interlocutory application. The question is then is whether the judgment or order made has a final and definitive effect on the main action. Furthermore, the Court must also take into account in this situation that the proper approach is a more flexible one where the Court will have regard to whether an appeal against the interlocutory decision will lead to a more expeditious and cost-effective decision-making process.

[6] I have said that there are reasonable prospects that another Court may find that the summons was a nullity from the outset. Certainly, in the light of my order it is not open to the trial Court to find in the main trial that Baumann is not, for the purposes of the action, the administrator of the estate and thus, probably, that the summons was regular. If, however, the summons is a nullity it may well spell the end of this particular action, if not the end of the claim itself.

[7] In the circumstances, on balance, I consider that although the issues of the merits of the appeal and the order's appealability are interlinked, this Court's judgment is appealable or at least there are reasonable prospects that another Court will find that it is appealable.

[8] I am, therefore, inclined to grant leave to appeal. As far as the forum for the appeal is concerned, Mr Binns-Ward submits that leave should be granted to the Supreme Court of Appeal. There Is not inconsiderable authority on the general point of the substitution of a plaintiff in similar circumstances but there is, in my view, no authority directly on point. Existing authority appears also to reveal to some extent at least that the conflicting tugs of what can be termed a technical approach as opposed to one which places greater emphasis on substance rather than form.

[9] The facts of this case are, moreover, unusual and less than straightforward. The point at issue has considerable importance for the parties and the future of