Afgri Grain Marketing (Pty) Ltd v Trustees for the time being of Copenship Bulkers A/S (in liquidation) and Others

The appeal arose from an order granted by the Gauteng Division of the High Court, Johannesburg, on 14 March 2018 confirming an order for the arrest of funds standing to the credit of the appellant in two bank accounts. Leave to appeal against that order was sought and at the same time a dispute arose between the parties regarding the effect of the grant of leave to appeal on the funds subject to the arrest order. To resolve that dispute, Copenship brought an application in terms of s 18(3) of the Superior Courts Act 10 of 2013 seeking to give effect to the arrest order notwithstanding the grant of leave to appeal. The two applications were dealt with together by Weiner J who granted leave to appeal and directed that certain funds should remain under arrest and be supplemented by deposit of further security. The appellant's notice of appeal noted an appeal against the whole of the judgment and order of 14 March 2018 but did not appeal against paragraphs 3, 4 and 5 of the order of 18 June 2018, which dealt with the s 18(3) application. Although the appellant had an automatic right of appeal under s 18(4)(ii), there was nothing in the record indicating any steps taken to exercise that right.

• Whether the Supreme Court of Appeal was seized with jurisdiction to alter the high court's decision regarding costs of the s 18(3) application when no appeal had been noted against that specific order
• Whether a costs order relating to an application that was not the subject of the appeal should be varied
• Whether a portion of a costs order granted in error can be amended on application

Paragraph 2(b) of the order granted in the main appeal was amended by the deletion of the words 'and the costs of the application in terms of s 18(3) of the Superior Courts Act 10 of 2013'. No order for costs was made in relation to the amendment application.

An appellate court cannot make orders varying or setting aside portions of a lower court's order that were not the subject of the appeal before it. Where a court has not been seized with jurisdiction over a particular aspect of a lower court's order (because no appeal was noted against that portion of the order and no statutory right of appeal was exercised), any costs order made by the appellate court in relation to that aspect is made without jurisdiction and in error. Such an erroneous order can and should be corrected by amendment.

The court noted that although the record filed in the Supreme Court of Appeal included all the papers in the s 18(3) application, that material was not admissible for the purpose of considering whether the arrest order should have been confirmed, as it had been disregarded in the main judgment (para 16). The court also noted that one member of the original bench (Schippers JA) was absent from the court, and therefore the application was determined by the decision of the remaining members of the bench in terms of s 13(3)(a) of the Superior Courts Act.

This judgment reinforces the principle that an appellate court can only deal with matters properly before it on appeal. It demonstrates that a court has the power to correct its own errors, particularly where a costs order was granted in circumstances where the court lacked jurisdiction to interfere with the high court's order. The case illustrates the importance of clearly defining the scope of an appeal through the notice of appeal and the consequences of failing to exercise statutory rights of appeal (such as the automatic right under s 18(4)(ii) of the Superior Courts Act). It also demonstrates the court's willingness to use its powers under s 19(a) of the Superior Courts Act to dispose of matters without a hearing where appropriate.