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[2006] ZAWCHC 53
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Abarder v Astral Operations Ltd t/a County Fair and Others (A360/06) [2006] ZAWCHC 53; 2007 (2) SA 184 (C) (3 November 2006)
JUDGMENT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO
: A360/2006
DATE
: 3 NOVEMBER 2006
In the matter between:
GASANT ABARDER
Appellant
and
ASTRAL OPERATIONS LTD
t/a COUNTY FAIR
First Respondent
GRANT TWIGG
Second Respondent
ASSOCIATED TRADE UNION OF
SOUTH AFRICAN WORKERS
Third Respondent
____
J U D G M E N T
FOURIE, J
:
First respondent is the plaintiff in an action instituted in the Cape
Town Magistrate's Court against second and third respondents,
as
first and second defendants respectively, in which first respondent
claims damages in the sum of R100 000 allegedly suffered when
it was
defamed by second respondent while acting within the course and scope
of his employment with third respondent. For the sake
of
convenience, the three respondents are referred to as in the Court
a
quo
.
In its particulars of claim plaintiff,
inter alia
, alleges
that first defendant made certain defamatory remarks of and
concerning plaintiff to one Gasant Abarder, a professional journalist
and news editor of a newspaper known as "The Daily Voice".
The said Abarder is the appellant in the present appeal.
Plaintiff called appellant as a witness at the trial of the action
to testify in regard to the alleged defamatory remarks made
in his
presence by first defendant. To this end, plaintiff had served a
subpoena
duces tecum
on appellant to appear as a witness, as
provided in section 51 of the Magistratesâ Courts Act, No. 31 of
1944 (âthe Act").
The subpoena required appellant,
inter alia
, to testify on 8
March 2006 in respect of all matters within his knowledge relating
to plaintiff's civil claim against defendants.
When appellant was called to testify he took the oath, but an
attorney appearing on his behalf, Mr Louw, then advised the
magistrate
that appellant refused to answer questions and that he
would lead evidence to justify his refusal. In a nutshell,
appellant refused
to testify on the ground that journalists in a
civil trial enjoy a general immunity from testifying,
qua
journalist, unless they are called as a witness of "last
resort". In this regard evidence was presented to the effect
that when the alleged defamatory statements were made by first
defendant, appellant and approximately 100 other people present
at a
meeting, heard first defendant making the defamatory statements.
Appellant accordingly maintained that as the evidence required
by
plaintiff could reasonably and easily be obtained from the other
witnesses and no attempts to obtain such evidence from the
other
witnesses have been made by plaintiff, appellant was entitled to
refuse to answer questions.
After hearing argument in this regard, the magistrate ruled that
appellant was obliged to answer questions put to him. He
accordingly
rejected the claim of appellant that he should only be
called as a witness of last resort. The trial of the matter was
then postponed
and has not subsequently continued as appellant had
noted an appeal against this order of the magistrate. Appellant in
due course
prosecuted the appeal which is opposed by plaintiff.
There is no appearance for defendants, but first defendant has
indicated
that he wishes the appeal to proceed and that he abides
the decision of the Court.
Heads of argument have been filed on behalf of appellant and
plaintiff and they are respectively represented by
Mr Butler
assisted by Ms
Cowen
, and Mr
Goddard
assisted by Mr
Hinds
.
Upon reading the record of the appeal, my Brother and I considered
it necessary to request counsel to address us at the hearing
of the
appeal on the question whether appellant has the right to appeal the
order made by the magistrate. Our request was prompted
by section
83 of the Act, which provides that a party to any civil suit or
proceeding in a Magistrate's Court may appeal to the
High Court
having jurisdiction to hear the appeal against (a) any judgment of
the nature described in section 48; (b) any rule
or order made in
such suit or proceeding and having the effect of a final judgment,
including any order under Chapter (ix) (which
deals with execution)
and any order as to costs; and (c) in certain circumstances, a
decision over-ruling an exception.
Our concern was whether the requirements for an appeal to the High
Court in terms of section 83 of the Act, were met in this instance.
Mr
Butler
responded by providing us with supplementary heads
of argument in which it is submitted that the requirements of
section 83 of
the Act are met and that appellant has the right to
appeal the order of the magistrate. Mr
Goddard
informed the
Court that although plaintiff believes that in the interests of
justice it would be prudent for the appeal to be heard,
it abides
the decision of the Court on the issue of the appealability of the
magistrate's order.
What has to be determined, firstly, is whether appellant is, or was,
a party to any civil suit or proceeding in the court
a quo
and, if so, whether the order made by the magistrate is a judgment,
order or ruling of the nature set out in sub-sections (a),
(b) or
(c) of section 83 of the Act.
It was held in
Collier v Redler & Another
1923 AD 640
at 651
,
that the word "suit" is synonymous with the word "action".
As stated in
Myers v Benoni Municipality
1913 TPD 632
at 635,
a civil suit or action is a dispute between two litigants which is
initiated by an ordinary summons in which the one litigant
cites the
other before a Magistrate's Court or other court.
It is clear that appellant is not, and has never been, a party to a
civil suit or action in the court
a quo
. The pending action
is between plaintiff and defendants and appellant has no interest in
the subject matter of that dispute.
The question therefore is whether appellant is or was a party to
"any civil proceedings" in the court
a quo
. The
phrase "any civil proceedings" has been judicially
interpreted, in particular in regard to the use thereof in section
20 of the Supreme Court Act No. 59 of 1959. The accepted view seems
to be that the phrase bears a wide meaning and that it refers
to any
civil proceedings whatsoever. (See
Prokureursorde Oranje Vrystaat
v Louw
1989(1) SA 310 (O), approved in
Middelberg v
Prokureursorde, Transvaal
2001(2) SA 865 (SCA). See also
Erasmus:
Superior Court Practice
at A1-46).
Mr
Butler
submitted that the enquiry which followed upon
appellant's refusal to answer questions and which resulted in the
order of the magistrate
that appellant is obliged to answer
questions, constituted a civil proceeding within the meaning of
section 83 of the Act. In
this regard he pointed to the fact that
evidence was led on appellant's behalf, at the conclusion of which
both the attorney for
appellant and counsel for plaintiff addressed
the Court, and this was followed by the magistrate's reasons and
order. He further
submitted that appellant was a party to these
proceedings, as he was the party subpoenaed; it was at his behest
that the proceedings
under section 51 of the Act were conducted and
he is the party who is directly affected by the order granted by the
magistrate.
In my view, these submissions of Mr
Butler
do not take proper
account of the purpose of section 83 of the Act and the nature of
civil proceedings which may be instituted
in the Magistrate's Court.
I am of the opinion that on a proper construction of section 83 of
the Act, the judgment or order which
a party wishes to appeal
against in a civil suit or proceeding, has to be a judgment
delivered or order made in a civil suit or
proceeding for which
provision is made in the Act.
The Magistrate's Court is a creature of statute and there are only
two ways in which a prospective litigant can institute civil
proceedings (in the wide sense of the word) against another party in
the Magistrate's Court. That is by the issuing of a summons
or by
bringing an application on notice of motion. In regard to
applications, it should be borne in mind
that procedure by way of application in the Magistrate's Court is
limited to those cases specifically laid down in the Act. (See
Jones
& Buckle:
The Civil Practice of the Magistrates' Courts of
South Africa
(9th ed.) Vol. 2 at 55-2)
It follows, in my view, that the phrase "any civil suit or
proceeding" in section 83 of the Act should be interpreted
to
mean a civil action instituted by the issuing of a summons or a
civil proceeding instituted by utilising application procedure
by
means of a notice of motion and, if necessary, supporting
affidavits. It also follows, in my view, that it is only a party
to
such an action or application which has the right to appeal an order
made in such proceedings.
It is common cause, as I have already mentioned, that appellant is
not a party to any action or application instituted in the Court
a
quo
. His attendance as a witness was secured by means of a
subpoena. The fact that a dispute had arisen as to whether he is
legally
obliged to answer questions or not, does not, in my view,
convert that dispute or the manner in which it is resolved by the
magistrate,
into a civil suit or proceeding which entitles appellant
to appeal the order of the magistrate.
I do find support for this view in the same work of Jones &
Buckle, Volume 1, page 344 where the learned authors comment as
follows on the meaning of the phrase "to any civil suit or
proceeding" in section 83 of the Act:
"A civil suit or proceeding can be initiated in the
Magistrate's Court in one of two ways; by way of summons or by way
of application on notice of motion. Only orders given in such
proceedings are appealable in terms of this section".
The learned authors also refer to the case of
E Castignani (Pty)
Ltd v Claude Neon Lights Ltd
1969(4) SA 462 (O) in which
Smuts,
J
, with whom
Klopper, J
concurred, said the following in
regard to section 83 of the Act:
"Dit blyk hieruit dat dit slegs 'n vonnis in 'n âsiviele
gedingâ of âsiviele verrigtingâ is waarteen geappelleer
kan
word. Dit is vanselfsprekend dat dit ân siviele geding of siviele
verrigting, waarvoor voorsiening gemaak is in Wet 32 van
1944, moet
wees. Dit is deel van die
onus
wat op die appellant rus om te
toon dat die bevel waarteen hy wil appelleer 'n bevel is wat gemaak
is in so 'n siviele geding of
siviele verrigting. Daar is net twee
maniere waarop prospektiewe litigante siviele gedinge of verrigtinge
in die Landdroshof
kan instel teen hulle teenpartye; die een is by
wyse van 'n dagvaarding en die ander is by wyse van 'n aansoek met
kennis aan die
partye teen wie regshulp gevra wordâ
I respectfully agree with this interpretation of section 83 of the
Act. (See also
Myers v Benoni Municipality
1913 TPD 632
at
635)
I further hold the view that logic and practical considerations
dictate that section 83 of the Act should not cover the proceedings
(in the wide sense) in which appellant was involved in the court
a
quo
. The issue which appellant wishes to have adjudicated by
this Court is the alleged infringement of his constitutional right
to
freedom of expression which has nothing at all to do with the
issues to be decided in the action between plaintiff and defendants.
If a witness were to be afforded a right of appeal in such
circumstances, it would mean that the trial in which he or she is to
testify, has to be suspended pending the preparation of an appeal
record and the hearing of the appeal, which could take a year
or
more to be heard.
Why should the parties to the action now be put to this disadvantage
to enable an appeal to be heard on an issue which is in effect
a
personal claim by an outsider, i.e. the appellant, that he should
only be called as a witness of "last resort". It
is, in
my view, obvious that the correct procedure to be followed by a
witness in the position of appellant is to approach the
High Court
for an order reviewing and setting aside the order made by the
magistrate and/or seeking a
mandamus
or a declarator on the
ground that his constitutional rights have been infringed by the
magistrate. If necessary, such an application
can be brought as a
matter of urgency to ensure that there is a minimum of delay in
finalising the trial of the action in the Magistrate's
Court.
In Herbstein & Van Winsen:
The Civil Practice of the Supreme
Court of South Africa
(4th ed.) page 934, the following is said
in this regard:
"Where the course of the proceedings is affected by matters
not germane to the issue between the parties, as when a witness
of
his own motion claims privilege, the matter is one for review and
not appeal".
The learned authors refer to the case of
Le Roux v Montgomery
1918 TPD 447
in support of their view. I respectfully associate
myself with this view of the learned authors.
I therefore conclude that appellant is not, and has never been, a
party to any civil suit or proceeding in the court
a quo
as
envisaged in section 83 of the Act, which would entitle him to
appeal this order of the magistrate. In view of this finding,
it is
not necessary for me to deal with the second requirement of section
83 which, in the instant matter, is whether the magistrate's
order
has the effect of a final judgment. It would suffice to say that it
appears to me that the magistrate's order does not have
the
character of a final judgment as it does not have a final and
definitive effect on an issue in the main action between plaintiff
and defendants.
I wish to stress that my finding that the order of the magistrate is
not appealable, does not leave the appellant without a remedy.
As I
have already stated, his obvious and speedy remedy would have been
an application for review and/or for a
mandamus
or a
declarator, in which he could have asked this Court to set aside the
magistrate's order and for an order directing that he
is not obliged
to answer questions.
It follows, in my view, that the interpretation which I have given
to section 83 of the Act, does not violate appellant's
constitutional
rights as suggested by Mr
Butler
, as he has
always had, and still has, the right to approach this Court for an
order protecting him against an infringement of his
constitutional
rights.
It follows from what I have said, that the appeal cannot be
entertained. In regard to costs, Mr
Butler
submitted that as
plaintiff has consented to the appeal being heard, it should not be
regarded as a successful party in the event
of the Court finding
that the magistrate's order is not appealable. I do not agree. The
fact of the matter is that appellant
noted an appeal which is
opposed by plaintiff. A decision that the order of the magistrate
is not appealable means that plaintiff
is successful. The fact that
plaintiff may have been amenable to having the appeal heard on its
merits, cannot, in my opinion,
be described as blameworthy conduct
justifying the Court to deprive plaintiff of its costs. I am further
of the view that this
matter justified the employment of two
counsel.
In the result, the following order is made:
1. The appeal is struck off the roll.
2. Appellant is ordered to pay first respondent's
costs, including the costs consequent upon the
employment of two counsel.
______________________
FOURIE, J
DLODLO, J
: I agree.
______________________
DLODLO, J
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO
: A360/2006
DATE
: 3 NOVEMBER 2006
In the matter between:
GASANT ABARDER
Appellant
and
ASTRAL OPERATIONS LTD
t/a COUNTY FAIR
First Respondent
GRANT TWIGG
Second Respondent
ASSOCIATED TRADE UNION OF
SOUTH AFRICAN WORKERS
Third Respondent
____
Advocate for Appellant : Adv.John C Butler
: Adv. S Cowen
Advocate for Respondents : Adv. S C Goddard
Adv. C R Hinds
Attorney for Appellant : Mr. JF Louw of Lionel Murray
Schwormstedt & Louw
Attorney for Respondents : Hofmeyr Herbstein & Gihwala
Inc.
Date of hearing : 3 November 2006
Date of Judgment : 3 November 2006
03-11-06/sp / ....