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[2020] ZASCA 41
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Liberty Group Limited t/a Liberty Life v K & D Telemarketing and Others (1290/18) [2020] ZASCA 41 (20 April 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 1290/18
In
the matter between:
LIBERTY
GROUP LIMITED t/a LIBERTY
LIFE
APPELLANT
and
K
AND D TELEMARKETING
FIRST RESPONDENT
KAREN
SHAFER
SECOND RESPONDENT
ERIC
BUTOWSKY
THIRD RESPONDENT
Neutral
citation:
Liberty Group Ltd v K &
D Marketing
(Case no 1290/18)
[2020]
ZASCA 41
(20 April 2020)
Coram:
NAVSA and VAN DER MERWE JJA and LEDWABA AJA
Heard
:
11 March 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties' legal representatives by email, publication on the
Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on 20 April 2020.
Summary:
Effect of an order of absolution from
the instance at end of trial – application to reopen a case
under same case number on
same pleadings in order to thwart
prescription-not permissible.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Tuchten J, sitting as court of first instance):
judgment reported
sub nom
Liberty Group Limited t/a Liberty Life v
K and D Telemarketing CC and Others
[2015] ZAGPPHC 1135.
The
appeal is dismissed with costs.
JUDGMENT
Ledwaba
AJA (Navsa and Van der Merwe JJA concurring)
[1]
The central issue in this appeal is whether, after an order of
absolution from the instance at the end of a trial, the appellant,
Liberty Group Limited t/a Liberty Life (Liberty), was entitled to
reopen its case, to pursue its original claim on the same pleadings,
in an attempt to thwart a plea of prescription. The Gauteng Division
of the High Court, Pretoria (Tuchten J), dismissed the appellant's
application for leave to reopen its case. The question is whether
that conclusion was correct. The background is set out hereafter.
[2]
In about June 2009 the appellant and first respondent, K and D
Telemarketing, entered into a written commission agreement in
terms
of which
the latter
would act as an
independent intermediary to canvas insurance contracts on the
appellant's behalf.
[3]
In 2010, Liberty issued summons under case no 75525/2010 against the
respondents and claimed R 515 964.95, being the commission
paid
to the first respondent on the basis that the insurance policies
registered by the first respondent had lapsed. In terms of
the
commission agreement the first respondent was liable to refund the
appellant the commission paid. The second and third respondents,
Ms
Karen Shafer and Mr Eric Butowsky, were sued as sureties.
[4]
The trial was conducted in April 2015 before Louw AJ. Two witnesses
testified in support of Liberty’s case. After their
testimony
Liberty closed its case. Thereupon the respondents applied for
absolution from the instance. That application was refused.
[5]
The respondents proceeded to lead the evidence of one witness and
thereafter closed their case. Judgment was reserved and delivered
on
4 September 2015, absolving the respondents from the instance with
costs. The trial court found that the appellant had not presented
sufficient evidence to prove that its claim was correctly calculated.
In short, the court held that quantum was not proved. In
respect of
Mr Butowsky, the court found, in addition, that the suretyship had
not been proved. Louw AJ’s judgment was not
appealed against.
It is necessary to record that on the day that Louw AJ handed down
his judgment Liberty’s claim if it had
to be pursued anew had
become prescribed.
[6]
Subsequent to the judgment in February 2016 and March 2016, Liberty
delivered a notice of amendment in terms of Rule 28 and
a summary of
expert evidence in terms of Rule 36. It sought thereby to rectify the
gap in its case, which led to the order of absolution
from the
instance. The respondents regarded the procedure followed by the
appellant as irregular and challenged it. The challenge
was upheld.
In upholding the objection to the steps sought to be taken by
Liberty, Van der Westhuizen AJ observed that a plaintiff
against whom
an order for absolution is made, and who wants to proceed on the same
papers, must apply to court for leave to do
so.
[7]
Thereafter, Liberty brought an application for leave to reopen the
trial. That application was dismissed by Tuchten J. Liberty,
with the
leave of the court below, now appeals against that decision.
[8]
The court below noted that there was no doubt that it was competent
for a plaintiff to reopen its case after absolution was
granted at
the end of the defendant’s case. It is clear that in such an
instance a defendant cannot raise a plea of
res
judicata
. The court below had regard to
the decision of this court in
Colman v
Dunbar
1933 AD 141.
In that case this
court had to consider whether to hear further evidence on appeal
where a judgment of absolution of the instance
had been entered. The
court held (at 160-161) that it was empowered both, to hear further
evidence itself or to remit the matter
to the trial court for this
purpose. The court below noted that in
Colman
an appeal had been lodged, which
distinguished it from the facts of this case, because the appellant
had never sought to appeal
the order of Louw AJ.
[9]
In terms of chronology the court below recorded that Liberty had
instituted action against the defendants in 2010, had absolution
awarded against it in 2015 and did not appeal the order of
absolution. It was only in 2017 that Liberty sought the leave of the
court below to reopen its case. This was done because, if it
reinstituted action, Liberty would be met with a special plea of
prescription. The court below stated that there were a number of
reasons why the application before it could not succeed. It stated
that a litigant faced with an order of absolution of the instance
always has the right to bring further proceedings to enforce
his or
her claim and that he or she may do so by instituting proceedings
afresh. For that a plaintiff does not require the leave
of the court.
[10] Tuchten J went on to
state that a plaintiff could also pursue his or her claim by
proceeding on the same papers and for that
it required a court’s
permission. But whichever route is followed a plaintiff must proceed
de novo
. In this regard the court below referred to a decision
of this court more than a century ago, namely,
Steytler v
Fitzgerald
1911 AD 295
at 304. At para 24 of the judgment of the
court below, Tuchten J said the following:
‘
That,
to my mind, identifies the most important reason why the main
application must fail. [Liberty] does not ask, and has never
asked,
that the order of absolution be set aside. The consequence of that,
counsel all agree, was that prescription supervened.
No order of a
procedural nature can deprive the [respondents] in this case of the
right to invoke that defence.’
[11]
The court below took the view that Liberty had not made out a case
for the development of the common law and that, in any event,
the
common law could not be developed because of the provisions of the
Prescription Act 68 of 1969
.
[12]
Steytler
is
the definitive answer to whether Liberty’s application in the
court below ought to have succeeded. At 304 Lord De Villiers
CJ said
the following:
‘
Take
the case of a judgment of absolution from the instance. It is classed
by
Voet
(42.1.5),
among interlocutory sentences, but it has the force of a definitive
sentence inasmuch as by our practice the particular
suit in which it
has been pronounced is ended, and a fresh suit is necessary to enable
the plaintiff again to proceed against the
same defendant. It has
accordingly been frequently held in our Courts that a judgment of
absolution from the instance may be appealed
against, and such
appeals have been brought from the Cape Supreme Court to the Privy
Council. It would be different, however, where
a Court refuses to
grant absolution from the instance on the application of the
defendant. Such a refusal is purely interlocutory
and has not the
effect of a definitive sentence, inasmuch as the final word in that
suit has still to be spoken.’
[13] Counsel on behalf of
Liberty relied on the decision of this court in
African Farms and
Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 563
as authority for its submission that it was entitled to reopen its
case on the same papers. In
African Farms
, Steyn CJ said the
following (at 563E-F):
‘
As
pointed out in
Purchase v Purchase
1960 (3) SA 383
(N) at 385, dismissal and refusal of an application
have the same effect, namely a decision in favour of the respondent.
The equivalent
of absolution from the instance would be that no order
is made, or that leave is granted to apply again on the same pers.
’
That
dictum relates to motion proceedings. In motion proceedings, usually
in unopposed matters, an applicant might be given leave
to approach a
court on the same papers, supplemented if so advised. That is not an
order susceptible to appeal. It is no authority
for the proposition
that it is permissible, after an order of absolution from the
instance, to reopen a trial under the same case
number on existing
pleadings. The only equivalence is that in either instance a defence
of
res judicata
could
not be raised. This would be so when an action is instituted
de
novo
or when the application, in terms
of leave having been given, is brought on the same papers,
supplemented, if so advised. That
is what the dictum in African Farms
was conveying.
[14]
The dictum from
Steytler
cited above makes it clear that it is established practise that a
decision of absolution from the instance in a trial has the effect
of
a definitive sentence. Simply put, a decision on the sufficiency of
evidence led in that suit, by way of an order of absolution
from the
instance, has a definitive effect and is susceptible to appeal. The
court is
functus
officio
and has no power or jurisdiction to hear any further evidence in
relation thereto.
[1]
To hold
otherwise, that is, if Liberty’s contentions were to be upheld,
it would have the effect of litigants being left
in a state of
uncertainty, in that actions would remain susceptible to
resuscitation indefinitely. This offends against the principle
of
finality in litigation.
[15]
Although Liberty proposed in its heads of argument that the common
law as expressed in
Steytler
should be developed so as to enable Liberty to reopen its case, on
the basis of the constitutional right of access to courts,
[2]
counsel did not pursue this with any enthusiasm or vigour. The short
answer to that proposition is that Liberty had its day in
court. That
it provided insufficient evidence to sustain its case is entirely its
own fault. There is no systemic failure here.
In light of the
conclusions reached above, it is not necessary to deal with the
submissions by counsel on the effects of the
Prescription Act. It
suffices that the 1969
Prescription Act has
been in effect for 5
decades and that, contrary to counsel’s submissions, the
practical effect of the 1943 Act
[3]
on the reinstitution of Liberty’s case would have been the
same.
[16]
Finally, there is no justification for the punitive costs order
sought by the respondents. For the reasons set out above it
is clear
that the appeal must fail.
[17] The following order
is made:
The appeal is dismissed
with costs.
A P Ledwaba
Acting
Judge of Appeal
Appearances
For
appellant: A P Joubert SC
C
D Roux
Instructed
by: R C Christie Incorporated, Edenvale
Webbers,
Bloemfontein
For
first, second and third respondents: N D Strathern
Instructed
by: Karen Shafer Attorneys, Glenhazel
C/o
E W Serfontein Associates & Inc, Clydesdale, Pretoria
[1]
Minister
of Police and Another v Gasa
1980 (3) SA 387
(N) at 389C-E.
[2]
See s 34 of the Constitution.
[3]
Prescription Act 18 of 1943.