Tikly v Johannes NO

Justice Trollip analysed appeal powers and pointed out that the word “appeal” can have three different connotations and stressed that the sense in which “appeal” is used in any particular matter must be determined from its context whether in an Act or perhaps even in a disciplinary code and procedure relating to employment. 

Essence

Appeal powers analysed by the former Supreme Court but still referred to regularly as showing the 3 types of appeal and how they apply in practice.

Decision

[1963] 3 All SA 91 (T) ; 1963(2) SA 588 (T) (28 March 1963)

Order:

“An order is therefore granted declaring that the ruling by the first, second and third respondents in their capacity as members of the revision court, as set out in the affidavit dated the 28th February, 1963, by the first respondent, is correct.
The fourth respondent is ordered to pay the costs of the applicants, excluding those relating to the briefing of one of the junior counsel.”

Judges

Trollip J (as he then was)

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at 211 324 

Reasons

“The word “appeal” can have different connotations. In so far as is relevant to these proceedings it may mean:

  • (i) an appeal in the wide sense, that is, a complete re-hearing of, and fresh determination on the merits of the matter with or without additional evidence or information (Golden Arrow Bus Services v. Central Road Transportation Board, 1948 (3) S.A. 918 (A.D.) at p. 924; S.A. Broadcasting Corporation v. Transvaal Townships Board and Others, 1953 (4) S.A. 169 (T) at pp. 175-6; Goldfields Investment Ltd. v. Johannesburg City Council, 1938 T.P.D. 551 at p. 554);
  • (ii) an appeal in the ordinary strict sense, that is, a re-hearing on the merits but limited to the evidence or information on which the decision under appeal was given, and in which the only determination is whether that decision was right or wrong (e.g. Commercial Staffs (Cape) v. Minister of Labour and Another, 1946 C.P.D. 632 at pp. 638-641);
  • (iii) a review, that is, a limited re-hearing with or without additional evidence or information to determine, not whether the decision under appeal was correct or not, but whether the arbiters had exercised their powers and discretion honestly and properly (e.g. R. v. Keeves, 1926 A.D. 410 at pp. 416-7; Shenker v. The Master, 1936 A.D. 136 at pp. 146-7).”
Quotations from judgment

Note: Footnotes omitted and emphasis added

TROLLIP, J.:

The applicants are the owners of a certain property in Pietersburg. The area within which it is situate was on the 4th March, 1960, declared a group area for White ownership and occupation with the result that the property became affected property within the meaning of sec. 1 of the Group Areas Development Act, 61 of 1955, in as much as it was owned and occupied by persons belonging to the Indian Group. In due course it was placed on the list of affected property compiled under that Act, and the committee of valuators appointed in terms of sec. 19 (2) determined its final basic value at R29,000. Thereupon the applicants lodged an appeal against that determination in terms of sec. 19 (4) (a). The revision court, appointed in terms of the Act, sat at Pietersburg on the 15th October, 1962, to hear the applicants’ and other appeals. The first three respondents are the members of that court. At the hearing the applicants and the fourth respondent, the Group Areas Development Board (to whom I shall refer as “the board”) were represented by counsel.

At the very outset of the hearing a dispute arose between the applicants and the board as to the proper function of the revision court in regard to the “appeal”. That dispute was debated before and heard by the revision court and the parties sought its ruling thereon. The applicants contended that the “appeal” was an appeal in the wide sense of the word, being a complete re-hearing of the issue that had arisen concerning the final basic value of the affected property, and a re-determination by the revision court itself of that value. The board contended that the “appeal” was a review (in the strict sense) of the valuators’ determination in which the revision court’s function was confined to determining merely whether or not the valuators had exercised their powers properly and honestly in determining the final basic value. That was in essence the main dispute between the parties, but in the course of canvassing it before the revision court the parties also raised collateral issues such as the weight that had to be given by the revision court to the valuators’ valuation.

On the 16th October, 1962, the revision court gave its ruling which is recorded in the copy of the proceedings annexed to the petition.
That ruling was fundamental to the nature of the revision court’s proceedings. It applied not only to the applicants’ appeal, but would, of course, have applied too to all the other appeals that were then and are still pending before the revision court. It was consequently agreed between the parties that the question of the correctness of that ruling should be submitted immediately to this Court for its decision. The revision court itself was naturally anxious that that should be done, and adjourned its proceedings for the purpose. Hence the present application in which the applicants claim certain declaratory orders.

Although the revision court has not yet given its final decision on the merits in the applicants’ appeal, I think that this Court can and, in the circumstances, should hear and decide this application now.

Generally the Court will not entertain review proceedings of the present kind until the inferior tribunal has pronounced its final decision upon the merits. The main reason for that rule is probably that the final decision might correct the irregularity in the proceedings complained of, or might cure any prejudice that the aggrieved person has thereby sustained. But, as appears from the authorities cited by Mr. Oshry for the applicants, this Court is entitled to intervene at any stage to correct the pending proceedings before the inferior tribunal if, in the particular circumstances, that is necessary or convenient for the purpose of doing justice between the parties (Eliovson v. Magid, 1908 T.S. 558 at pp. 561, 566; Rascher v. Minister of Justice, 1930 T.P.D. 810 at p. 820; Wessels v. General Court Martial, 1954 (1) S.A. 220 (E) at pp. 221H-222 C). That requirement is manifestly complied with in the present case.

“The revision court’s ruling was ambiguous. Indeed, the applicants asserted in the present proceedings before this Court that the revision court had ruled against their contentions and they accordingly claimed appropriate declaratory orders; whereas the board maintained before me that the ruling was in the applicants’ favour and against it, and as such it was erroneous.

With the consent of the parties, the chairman of the revision court, the first respondent, was prevailed upon to clarify the ruling by affidavit. He explained that the ruling meant:

  • (a) that all parties concerned had the fullest right to adduce evidence in respect of the basic value which was the subject of the appeal;
  • b) that the revision court could have regard to the fact that the valuators had determined the basic value at a particular figure, and that it was a valuation to which the revision court could have regard if there was no other evidence placed before it contradicting it;
  • (c) that after hearing evidence the revision court had to make its own determination of the basic value on all the evidence adduced before it.
  •  

It then appeared that the ruling as amplified had in regard to (a) and (c) been in favour of the applicants and against the board on their main contentions, and in favour of the board and against the applicants in regard to (b).

The crux of the dispute is the correct construction of sec. 19 (5), as amended by sec. 15 of Act 81 of 1959. It reads:

“An appeal lodged in terms of sub-sec. (4) shall be heard by a revision court consisting of a magistrate or retired magistrate and two assessors appointed by the Minister which shall determine the basic value of the affected property, and its determination shall be final.”

The word “appeal” can have different connotations. In so far as is relevant to these proceedings it may mean:

  • (i) an appeal in the wide sense, that is, a complete re-hearing of, and fresh determination on the merits of the matter with or without additional evidence or information (Golden Arrow Bus Services v. Central Road Transportation Board, 1948 (3) S.A. 918 (A.D.) at p. 924; S.A. Broadcasting Corporation v. Transvaal Townships Board and Others, 1953 (4) S.A. 169 (T) at pp. 175-6; Goldfields Investment Ltd. v. Johannesburg City Council, 1938 T.P.D. 551 at p. 554);
  • (ii) an appeal in the ordinary strict sense, that is, a re-hearing on the merits but limited to the evidence or information on which the decision under appeal was given, and in which the only determination is whether that decision was right or wrong (e.g. Commercial Staffs (Cape) v. Minister of Labour and Another, 1946 C.P.D. 632 at pp. 638-641);
  • (iii) a review, that is, a limited re-hearing with or without additional evidence or information to determine, not whether the decision under appeal was correct or not, but whether the arbiters had exercised their powers and discretion honestly and properly (e.g. R. v. Keeves, 1926 A.D. 410 at pp. 416-7; Shenker v. The Master, 1936 A.D. 136 at pp. 146-7).

Mr. Oshry contended that the “appeal” under sec. 19 (5) meant the procedure in (i), whilst Mr. Trengove, for the Board, maintained that it was (iii) or alternatively (ii).

The sense in which “appeal” was used in the section must be determined from its context in the Act.

The Act provides that the board must compile a list of all affected properties in any duly proclaimed area, recording therein, inter alia, “the basic value” of the land and buildings thereon in respect of each property (sec. 15 (1) as amended). The “basic value” means the market value of the land immediately prior to the “basic date” (i.e. the date of the proclamation) and the value of the buildings thereon, as determined under the provisions of the Act.

The determination of the basic value is of considerable importance to the owner and the board. If the property is subsequently sold, expropriated, or removed from the list with the board’s consent for a consideration exceeding the basic value, the owner is obliged to pay or to account to the board for an “appreciation contribution”, whereas if the consideration is less than the basic value the owner generally becomes entitled to a “depreciation contribution” from the board, the contribution in each case being regulated on the difference between the consideration and the basic value (secs. 20 (5), 21, 23, 24; Down v. Malan, N.O. en Andere, 1960 (2) S.A. 734 (A.D.) at p. 740 G-H).

Consequently, elaborate provision is made in sec. 19 (as substituted by sec. 15 of Act 81 of 1959) and the regulations for determining the basic value. The Act provides that this value is

  • first determined provisionally by a valuator or valuators appointed by the Minister.
  • They then notify the board, owner and mortgagee thereof, and call for written objections.
  • If no objections are lodged, the provisional basic value becomes final.
  • If objections are duly lodged, the valuators after considering them must then make a final determination.
  • Any final determination made after considering objections is subject to appeal which has to be lodged with the Minister, otherwise it remains final.
  • Then there is sec. 19 (5), quoted above, which relates to the hearing of the appeal.

I think that those provisions of the Act indicate clearly that “appeal” in that context is used in its wide sense as described in (i) above, that is, a complete re-hearing and re-determination by the revision court of the basic value.

The reasons for that conclusion are as follows:

1. According to sec. 19 (4) the appeal is “against such determination” by the valuators; and on that appeal sec. 19 (5) requires that the revision court “shall determine the basic value of the affected property”. That language is clear and unambiguous. In other words, the appellant by his appeal submits that the valuators’ determination is incorrect, and in consequence, the revision court has itself to determine the correct value, and not merely to ascertain whether the valuators exercised their powers of discretion honestly and properly. That effectively eliminates the appeal being a review in the sense set out in (iii) above. (See, for example, Golden Arrow Bus Services’ case, supra at p. 924; Dickinson v. Valuation Court, Vereeniging and Others, 1944 T.P.D. 83 at p. 92).

2. Although the valuators are obliged to receive and consider written objections, their duties and functions are in essence those of a valuation and not of a judicial or semi-judicial proceeding (cf. Down’s case at p. 743 A-F). In particular, sec. 19 does not oblige them to hear evidence, to hear any party orally, to give any reasons for their determination or to keep any record of their proceedings. Those functions alone militate completely against the “appeal” being an appeal in the strict sense as described in (ii) above (see Johannesburg Consolidated Investment Co. Ltd. v. Johannesburg Town Council, 1903 T.S. 111 at p. 119; Shenker’s case, supra at p. 147; S.A. Broadcasting Corporation’s case, supra at p. 175E-H; Lambert v. Director of Census, 1956 (3) S.A. 452 (T) at p. 458 A-C).

3. As there is no record of the valuators’ proceedings, the revision court must itself receive all relevant information or evidence tendered in respect of the basic value. That such a procedure was envisaged is also borne out by the reference to the tribunal as a court, the appointment of a magistrate or ex-magistrate as chairman, and the duty imposed on the court to “hear” the appeal, and having heard it to determine the basic value itself. That shows that the appeal is a complete re-hearing in the sense described in (i) above. (See S.A. Broadcasting Corporation’s case at pp. 174-5; Pretoria-Noord Dorpsraad v. Bolter, 1950 (3) S.A. 453 (T) at pp. 456-7; Pietermaritzburg Corporation v. S.A. Breweries Ltd., 1911 A.D. 501 at p. 513; and generally the Goldfields Investment case, supra).

The regulations enacted under sec. 36 by the Minister support this conclusion. That section empowers the Minister to make regulations as to the powers, functions and duties of valuators, the procedure relating to the determination of the basic value, and the procedure governing hearings and determinations by the revision court (sub-secs. (1) (c), (g) and (i)). The regulations so enacted do not constitute the valuators as a court of record, and do not indicate that their duties and functions are anything other than a mere valuation.

It is true that reg. 6 (e) empowers them to take evidence on oath where they think that that is necessary, but in the absence of any duty to record that evidence, it would appear that the object of that regulation is merely to induce the person being questioned to speak the truth where they suspect he might otherwise lie, and not to impress the valuators’ proceedings with a semi-judicial character.

On the other hand the regulations do confirm decisively that the appeal to the revision court is an appeal in the widest sense described in para. (i) above.

For example, reg. 20 provides that the parties may appear by counsel or attorneys; that

“unless otherwise agreed . . . the appellant shall first adduce evidence and thereafter the other parties to the appeal may adduce evidence”, and that addresses to the court shall also be in that order; that with the revision court’s leave further evidence can be adduced at any time before the appeal is determined; and that generally
“the law of procedure in civil proceedings in a magistrate’s court shall mutatis mutandis apply in respect of all proceedings of a revision court”.

That elaborate procedure for a trial hearing of an essentially judicial character could not have been designed merely for an appeal or review stricto sensu.

Moreover, reg. 22 provides that the basic value, as determined by the revision court, would be recorded in the list of affected properties. That confirms that the revision court’s duty is to determine the basic value itself.

My view, therefore, is that the appeal under sec. 19 (5) is a complete re-hearing of the matter as described in (i) above. It follows that the ruling of the revision court set out in (a) and (c) above is correct. I shall deal with (b) presently.
Mr. Trengove contended that because under the original sec. 19 the valuators’ decision was final subject only to the Common Law review by the Court, the intention of the Legislature under the amended section was merely to endow the revision court with an expeditious and summary power of review that the Court had previously exercised.

I think, however, that it is far more probable that the Legislature, realising the drastic consequences of the finality of the valuators’ valuation, decided, in view of the importance to the owner, mortgagee and board of the basic value, to afford them an opportunity of a re-hearing and re-determination of the basic value through a judicial hearing if they felt aggrieved by the valuators’ determination.

The language of the amended section proclaims that such was the intention of the Legislature.

Mr. Trengove further relied on the word “revision” in relation to “court” to show that the purpose of the appeal was to revise the valuators’ judgment and that the procedure was therefore a review.

That argument is untenable. The revision court’s functions on the appeal is to “revise” the valuators’ determination, but only in the sense of having to determine itself the basic value, and not merely to ascertain whether the valuators have acted honestly and properly.
Mr. Trengove relied heavily on Shenker’s case, supra, for the contention that the “appeal” was merely a review. Sec. 34 (2) of the Administration of Estates Act empowers the Master to appoint “such person as he deems fit and proper to be executor dative”; and sec. 107 provides that, inter alia, every appointment by the Master was subject to “appeal to or review by” the Court which could confirm, set aside or vary it.

In Shenker’s case the Appellate Division held that in relation to an appointment under sec. 34 (2) “appeal” means in effect merely a review of the Master’s appointment because sec. 34 (2) committed that appointment so entirely to the Master’s discretion that it could never have been contemplated by the Legislature that the Court could and should under sec. 107 re-try the merits of the appointment and substitute its own appointment for that of the Master (pp. 146-7).

That decision, therefore, turned on the particular wording of the Administration of Estates Act. In the present case, in my view, for the reasons given above, sec. 19 and the regulations clearly enact that the revision court on appeal must rehear the matter on the merits and substitute its own determination for that of the valuators. Shenker’s case is therefore obviously distinguishable.

One of the main reasons for the dispute was the uncertainty of the weight that the revision court should give to the valuators’ valuation. The applicants prayed for a declaratory order that in determining the basic value the revision court was not entitled to have any regard to the determination made by the valuators unless evidence of such determination was duly adduced before them (prayer A (2)). The attitude of the revision court is set out in para. (b) of its above-mentioned ruling.

The fact and the amount of the valuators’ valuation, of course, need not be formally proved because the valuation would be in evidence before the court by reason of the appeal. The weight to be attached to that valuation by the revision court in its determination of the basic value in terms of sec. 19 (5) is, in my view, for the revision court itself to decide. But it may be of some guidance to the revision court if it bears the following observations in mind.

As already stated, the valuators do not record their proceedings or the reasons for their valuation. Consequently, the only information that would ordinarily be before the revision court would be the amount of the valuation. If either the appellant or any other party, or the revision court, itself, wished to rely upon that valuation, he or it would generally have to call the valuators, or one of them, to testify in support of that valuation.

For that purpose, they or he could be sub-poenaed or ordered by the revision court to submit to examination in terms of reg. 20 (2) (c) and (3). They or he could then give the facts and reasons for their valuation and could be cross-examined thereon. The revision court would then be in a position to decide what weight to give to that valuation. Without the valuators or one of them testifying in support of their valuation the revision court would ordinarily not be able to give any weight to that valuation.

That would be the general approach. But occasionally it might happen that the appellant failed to appear to prosecute his appeal, or if he appeared, he might not adduce any evidence, or evidence worthy of any consideration, contradicting the valuators’ valuation.

In those cases, because the valuation appealed against would not be in effect seriously challenged, the revision court could accept, on the principle omnia praesumuntur rite esse acta, that the valuators had regularly and correctly determined the basic value, and it could then itself determine the basic value at that amount.

Support for that approach is to be found in Dickinson v. Vereeniging Valuation Court, supra, especially at pp. 91-93, which was quoted by Mr. Trengove.

It follows that in my view the revision court’s ruling in (b) was also correct. It remains to consider how I should give effect to my conclusions.

Substantially the applicants would have been entitled to declaratory orders in terms of prayers A (1) and (3) but not (2). In view, however, of the fact that after the amplified ruling of the revision court was handed in, the proceedings were then directed solely towards determining the correctness or otherwise of that ruling, I think that the best course would be to give an order declaring that that ruling is correct.

As the applicants have substantially succeeded, I think that they are entitled to the costs, but I agree with Mr. Trengove that the costs in respect of one of the junior counsel briefed by the applicants should be disallowed as only senior and one junior counsel were warranted.

An order is therefore granted declaring that the ruling by the first, second and third respondents in their capacity as members of the revision court, as set out in the affidavit dated the 28th February, 1963, by the first respondent, is correct.
The fourth respondent is ordered to pay the costs of the applicants, excluding those relating to the briefing of one of the junior counsel.”

Court summary

Group areas – Development Board – Valuation – Appeal – Nature of proceedings before revision court – Determination of basic value by revision court – Appeal