Carter v Haworth (177/2008) [2009] ZASCA 19; 2009 (5) SA 446 (SCA) ; [2009] 3 All SA 197 (SCA) (20 March 2009)

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[2009] ZASCA 19
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Carter v Haworth (177/2008) [2009] ZASCA 19; 2009 (5) SA 446 (SCA) ; [2009] 3 All SA 197 (SCA) (20 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 177/2008
JOHN WILLIAM CARTER
Appellant
and
KATHLEEN SHIRLEY HAWORTH
Respondent
Neutral citation:
Carter
v Haworth
(177/2008)
[2009]
ZASCA 19
(20 March 2008)
Coram:
Mthiyane,
Maya, Snyders JJA, Leach and Bosielo AJJA
Heard:
16
February 2009
Delivered:
20
March 2009
Summary: Whether a ‘judgment’
of a trial court ‘allowing damages’ and other relief, and
determining certain factual findings
to be referred to an actuary to
facilitate the calculation of an item of damage, which was to be
thereafter referred back to the
judge, is appealable.
___________________________________________________________
ORDER
On appeal from:
Cape
of Good Hope Provincial
Division (Erasmus J
sitting as court of first instance).
‘
The appeal is struck from the
roll.’
JUDGMENT
MTHIYANE JA (MAYA, SNYDERS JJA,
LEACH and BOSIELO AJJA concurring):
[1] This appeal is concerned with
the question whether the ‘judgment’ of the trial court in which
damages and other relief were
‘allowed’ and certain findings of
fact were referred to an actuary to facilitate the calculation of an
item of damage, which
was to be thereafter referred back to the judge
if the matter is not settled, is appealable.
[2] The appeal, with leave of
this Court, is from the decision of the Cape High Court (NC Erasmus
J) in which the court ‘allowed’
damages and other relief and made
certain factual findings in favour of the respondent, as plaintiff.
The respondent claimed damages
against the appellant arising out of
bodily injuries she sustained in a motor collision on 30 April 2001,
while she was on a visit
to South Africa. The claim was advanced
under different heads which included general damages, future medical
expenses and future
loss of earnings. The appellant conceded
liability in respect of the merits of the claim, leaving only the
quantum of the respondent’s
damages to be determined by the trial
court. By agreement between the parties the learned judge was asked
to determine only questions
relating to the quantum of the
respondent’s damages. In addition the court was asked to make
certain ‘factual assumptions’
which would then be furnished to an
actuary for the purpose of the calculation of the claims for past and
future loss of earnings.
[3] In respect of the claim for
future medical expenses the court found that the amount of R100 500
was ‘reasonable and should
be allowed’. As to general damages it
found that the amount of R100 000 ‘would constitute a fair and
reasonable’ compensation.
No order was however made directing the
appellant to compensate the respondent in either of these amounts.
[4] As regards the claim for past
loss of earnings the court indicated that the parties had accepted a
contingency deduction of
five per cent as reasonable. The judge then
went on to deal with the ‘factual assumptions’ he made for
submission to an actuary
to facilitate the calculation of the
respondent’s claim for future loss of earnings.
[5] Ultimately the respondent was
‘awarded costs on a party and party scale, either as taxed or
agreed. . .’. But the costs
of the postponement of the matter on 13
April 2005, were allowed ‘to stand over for later determination’.
[6] Because the question of
appealability was raised from the bench at the commencement of the
appeal and counsel were caught somewhat
unawares, we afforded them
the opportunity to file supplementary heads of argument on this
question in due course.
[7] It is convenient to deal
first with the question of appealability, because if it should
prevail a decision on the merits of
the appeal would be premature.
During argument both counsel contended that the judgment is
appealable. Counsel for the respondent
in particular submitted that,
in the Cape of Good Hope Provincial Division, matters are routinely
disposed of as the trial court
had done. I have not been able to find
any authority to support this contention. I have found at least two
cases which suggest
the contrary. These cases indicate that where a
judge is required to determine certain issues, be they legal or
factual, he or
she will in conclusion at the very least make an
order. See
Consol Ltd
t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd
;
D’Ambrosi v Bane
.
1
Where, for example, a litigant claims compensation on the basis of
negligence which is admitted by the wrongdoer ─ as the respondent

has done in the present matter ─ it is difficult to see how an
assertion to the effect that a particular amount should be ‘allowed’

or is ‘fair, equitable or reasonable’ ─ without such finding
culminating in an order ─ would be of any assistance to a

successful party. This is not to say that a court may not be required
by the litigants to determine certain factual or legal issues
to
enable them to thereafter either settle or move onto the next stage
of their dispute based on the finding of the court. The
three
Consol
cases referred to
above illustrate the point. In each one of them the issues referred
to the judge for decision were dealt with,
answered and an order
subsequently made.
[8] This is unfortunately not
what happened in the present matter. I have already indicated how the
respective claims for future
medical expenses and general damages
were dealt with. As to the ‘factual assumptions’ made by the
judge in respect of the past
and future loss of earnings which were
to be referred to the actuary for the calculation of the loss of
earnings, there is no indication
in the judgment as to what was to
happen after the actuary had completed the calculation. Would the
calculations be referred back
to the judge for finalisation? Or was
the judge still engaged in what Howie JA referred to as ‘merely
steps along the way towards
the final conclusion and consequent
order’. (See
Guardian
National Insurance Co Ltd v Searle NO
.
2
)
During argument, counsel expressed the hope that the matter would
settle once the actuaries of the respective sides had made their

calculations, but conceded that if settlement was not reached it
would be necessary to revert to the trial court for it to determine

the amount to be allowed in respect of loss of earnings. Until that
stage, the trial court would neither to able to assess the
total
amount of the respondent’s damages nor issue an order holding the
appellant liable to the respondent in that sum. The proceedings
in
the trial court in respect of the issue of damages have therefore
clearly not finally concluded, and an appeal to this court
is
premature.
[9] There is yet a further
conundrum in the judgment. The wasted costs of the postponement on 13
April 2005 were reserved by the
judge for later determination. Again,
was the matter to be referred back to the judge for finalisation?
These factors militate
against the judgment of the court below having
finally disposed of the issues and against the judgment being final
and therefore
appealable.
[10] An appealable ‘judgment or
order’ as intended by s 20(1) of the Supreme Court Act 59 of 1959
has three attributes. First,
it must be final in effect and not
susceptible to alteration by the court of first instance. Second, it
must be definitive of the
rights of the parties in the sense that the
person seeking relief has, for example, been granted definite and
distinct relief.
Third, the ‘judgment or order’ must have the
effect of disposing of at least a substantial portion of the relief
claimed. (See
Zweni v
Minister of Law and Order
;
Ndlovu v Santam Ltd
.
3
)
[11] But this litmus test only
finds application when the court concerned has pronounced
conclusively on the issues submitted to
it for determination. The
difficulty with the judgment of the court below is that we do not
even get to the application of test
in
Zweni
because upon a proper
reading of the judgment the issues in the case do not appear to have
been brought to final conclusion. I have
already alluded to the
absence of any indication as to what was to happen after the
calculation of loss of future earnings by the
actuary.
[12] In my view the weakest link
in the judgment lies in the absence of an order. I do not think there
is a part of a judgment that
provides a stronger indication of
finality than an order at the end. If the order is removed or omitted
the judgment is rendered
ineffective and so, too, its element of
finality. It is incapable of execution by the Sheriff or Messenger of
the court in the
case of proceedings in the magistrate’s court. I
cannot emphasize the importance of the order more than was done by
this court
in
SA Eagle
Versekeringsmaatskappy Bpk v Harford
4
where it was said an order is the operative part of the judgment. It
is what a losing party appeals against. The court also stressed
that
a duty rests on a court to formulate a clear order and for the
registrars to ensure that the order so issued is clear and

corresponds with the judgment. On the same theme this court in
Administrator, Cape,
and Another v Ntshwaqela and Others
5
declared that there
can be an appeal only against a substantive order made by a court,
not against the reasons for judgment.
[13] Given the uncertainty
regarding the fate of the actuarial calculations and the absence of
an order, the conclusion is unavoidable
that the judgment of the
court below is not appealable. Having come to this conclusion it
would be inappropriate to express any
views on the merits of the
appeal. For the above reasons the matter falls to be struck from the
roll.
[14] I turn to the question of
costs. To the extent that both parties failed to appreciate the
appealability point ─ and indeed
persisted in arguing that the
‘matter’ was appealable ─ it seems fair that each should
shoulder responsibility for its own
costs.
[15] In the result the following
order is made:
‘
The appeal is struck from the
roll.’
____________________________
KK MTHIYANE
JUDGE
OF APPEAL
Appearances:
For Appellant: D Stephens
Instructed by:
Michael Ward Attorney Cape
Town
Honey Attorneys Bloemfontein
For Respondent: PA Corbett
Instructed by:
Malcolm Lyons & Brivik Inc
Cape Town
Matsepes Inc Bloemfontein
1
2002 (6) SA 256
(C) paras 58 and
59;
2005 (6) SA 1
(SCA) para 62;
2005 (6) SA 23
(C) para 63;
2006
(5) SA 121
(C) para 46.
2
1999 (3) SA 296
(SCA) at 301G.
3
1993 (1) SA
523
(A) at 532I-533B;
2006 (2) SA 239
(SCA) para 9.
4
[1992] ZASCA 42
;
1992 (2) SA 786
(A) at 792C-D.
5
1990 (1) SA
705
(A) at 715D.