Absa Bank Limited v Peter Jacobus Janse van Rensburg and Gina Mari Janse van Rensburg and Absa Bank Limited v Elizabeth Francina Maree and Stefanus Maree

Absa Bank launched action proceedings against two sets of respondents based on mortgage bonds registered over their immovable properties. The claims were commenced by simple summonses with annexed copies of mortgage bonds and suretyships, but without the underlying credit agreements. When the matters were set down for default judgment, a question arose whether the underlying credit agreements had to be attached to the simple summonses. Due to divergent views in the Western Cape Division, the matters were referred to the full court for clarity. The full court determined that the underlying written agreements must be attached to simple summonses based on rule 17(2)(b) read with Form 9 of the Uniform Rules. The matters were postponed sine die with no order as to costs to afford Absa an opportunity to amend its summonses. Absa appealed with leave of the full court. Subsequently, after lodging the appeal, Absa settled both matters with the respective respondents but persisted with the appeal, arguing the legal question had broader significance.

• Whether the Supreme Court of Appeal should entertain an appeal where the disputes between the parties have been settled and there is no longer a live issue between them
• Whether an order postponing an application for default judgment to afford a plaintiff an opportunity to annex underlying documents to its simple summons is appealable
• Whether section 21A(1) of the Supreme Court Act 59 of 1959 applies where parties have settled their dispute
• Whether a simple summons based on a written agreement must have the underlying agreement annexed to it

The appeal was struck from the roll. No order as to costs was made.

An order postponing an application for default judgment to afford a plaintiff an opportunity to amend its summons by annexing underlying documents is not appealable, as it is merely a procedural direction and not a substantive order that disposes of any issues in the main action or constitutes a dismissal of the action. Furthermore, where parties settle their disputes after leave to appeal has been granted, a court of appeal will ordinarily not entertain the appeal under section 21A(1) of the Supreme Court Act 59 of 1959 (now replaced by the Superior Courts Act 10 of 2013), as the judgment sought will have no practical effect or result. The discretion to hear such appeals should be exercised with caution and is generally limited to cases involving important questions of statutory construction in public law matters where the determination would have significant practical impact, and where there has been full argument from both sides.

Leach JA, in his concurring judgment, expressed the view (obiter) that when parties settle litigation after leave to appeal has been granted, the settlement brings the litigation to an end entirely, removing the disputes from the court's jurisdiction altogether. In such circumstances, there is no longer any 'appeal' that the court has power or discretion to deal with, rather than merely an appeal that has become moot. This reasoning follows the approach in Port Elizabeth Municipality v Smit and the English decision in Sun Life Assurance Company of Canada v Jervis, which require the existence of a 'living issue' or 'matter in actual controversy' as an essential quality of an appeal. Leach JA distinguished cases like Sebola v Standard Bank, Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie, and The Merak S on the basis that in those cases there were still live issues (particularly regarding costs) remaining between the parties despite other aspects having become academic. The majority judgment also noted, obiter, that questions concerning the precise requirements of court rules and procedure are appropriately within the jurisdiction of the Rules Board for Courts of Law, which is statutorily empowered to review and amend rules regulating practice, procedure, and the form and contents of court process. The court also observed that it has repeatedly cautioned against deciding matters without tested argument from both sides, which would be the case in this unopposed appeal.

This case provides important guidance on the limits of appellate jurisdiction in South African law. It clarifies that: (1) courts of appeal will generally not entertain appeals where parties have settled their disputes post-appeal and there is no remaining live issue, particularly in matters of civil procedure rather than public law; (2) the discretion under section 21A(1) to hear moot appeals should be exercised cautiously and is typically reserved for important questions of statutory construction with broad public impact; (3) matters concerning court rules and procedure are appropriately dealt with by the Rules Board for Courts of Law rather than through appellate litigation; (4) postponement orders directing procedural steps (such as requiring additional documents to be filed) are not appealable as they are not substantive orders disposing of the issues in the main action. The decision reinforces the principle that appeals must concern 'living issues' between parties and courts should not issue advisory opinions on hypothetical or academic questions, especially where there is no argument from both sides.