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[1992] ZASCA 197
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Zweni v Minister of Law and Order of the Republic of South Africa (310/91) [1992] ZASCA 197; [1993] 1 All SA 365 (A); 1993 (1) SA 523 (A) (20 November 1992)
Z D ZWENI
Petitioner
and
MINISTER OF LAW AND
ORDER
Respondent
OF THE REPUBLIC OF SOUTH AFRICA
HARMS, AJA:
CASE NO. 310/91 J VD M
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
Z D ZWENI
Petitioner
and
MINISTER
OF LAW AND ORDER
Respondent
OF THE REPUBLIC OF SOUTH AFRICA
CORAM
: HOEXTER, HEFER, F H GROSSKOPF,
NIENABER, JJA et HARMS, AJA
HEARD
: 5 NOVEMBER 1992
DELIVERED
: 20 NOVEMBER 1992
JUDGMENT
HARMS, AJA:
This is an application for leave to appeal from a decision of Goldstein J
reported
sub nom Zweni v
2
Minister of Law and Order (1)
1991 (4) SA 166
(W). The learned judge
refused leave to appeal and that judgment is also reported:
Zweni v Minister
of Law and Order (2)
1991 (4) SA 183
(W) . The petition for leave to appeal,
addressed to the Chief Justice, was, in terms of s 21(3)(c)(iii) of the Supreme
Court Act
59 of 1959 ("the Act"), referred to this Court for argument and
consideration. It was also ordered that argument on the merits of
the proposed
appeal be heard simultaneously.
The late Mr Zweni ("the plaintiff") instituted an action against the Minister
of Law and Order for payment of damages arising from
an alleged assault
perpetrated on him by a member of the police force. The action was defended and
at close of pleadings the Minister's
liability for damages and the nature and
amount of damages allegedly suffered, were in issue. The plaintiff, cm notice of
motion,
thereupon applied, in
3
terms of Rule 33(4), for the issues of liability and quantum to be separately
heard. The Minister agreed to the proposed procedure
and Goldstein J made an
order accordingly.
In the same notice of motion a further order was
prayed for,
namely that the Minister disclose to the
plaintiff an item contained in the
second part of the
first schedule of his discovery affidavit, and to
permit
him to inspect and make copies of it. What had
happened was that
the Minister had claimed that the
contents of the police docket in a case
laconically
identified as "John Vorster Square CR 138/6/89",
were
privileged on the ground that it contained
"witness statements" and notes
obtained and made for the
purpose of (presumably criminal) litigation "and
for
reasons of public policy". The plaintiff's contention
in his founding
affidavit was that no privilege
whatsoever attached to the police docket. In
the court
4
a
quo
(and initially before this Court) it was that
the
privilege claimed had terminated because it can be
assumed that
criminal action was no longer contemplated
since none had come to trial
within the 20 months
between the incident and the application.
The
submission in its final form was that the admitted
privilege attaching
to a police docket lapses either at
the conclusion of criminal proceedings or
even earlier
when it appears unlikely that criminal proceedings
will
materialise, unless the State can show that, on the
facts of the
particular case, public policy
considerations require otherwise. The court
a quo
dismissed this part of the application on the ground
that
police dockets are governed by the rule "once
privileged, always privileged".
It refused leave on
the basis that, in the light of authorities binding
on
it, its decision did not amount to an appealable
judgment or order. At
the same time Goldstein J
5
expressed his personal doubts about the correctness of those
precedents.
The plaintiff has since passed away and the executor dative of
his estate, Mr N M Barling, was substituted as plaintiff and, although
it does
not appear from the title of this case, he is now, in that capacity, the
petitioner and prospective appellant.
The jurisdictional requirements for a civil appeal emanating from a
provincial or local division sitting as a court of first instance
are
twofold:
1.
the decision appealed
against must be a "judgment or order" within the meaning of those words in the
context of s 20(1) of the Act;
and
2.
the
necessary leave to appeal must have been granted, either by the court of first
instance, or, where leave was refused by it, by
this
Court.
6
Leave is granted if there are reasonable prospects of success. So much is
trite. But, if the judgment or order sought to be appealed
against does not
dispose of all the issues between the parties the balance of convenience must,
in addition, favour a piecemeal consideration
of the case. In other words, the
test is then "whether the appeal - if leave were given - would lead to a just
and reasonably prompt
resolution of the real issue between the parties" (per
Colman J in
Swartzberq v Barclays National Bank Ltd
1975 (3) SA 515
(W)
518B).
The issue whether a decision is an appealable "judgment or order" is
complicated by a number of factors and has been the subject of
a large number of
judgments over many years. In each instance the court had to consider its
appellate jurisdiction in the light
7
of the then applicable enabling statute, but often general observations
enunciated in other contexts were grafted onto those provisions.
See
e q
the comments of Watermeyer CJ in
Pretoria Garrison Institutes v Danish
Variety Products (Pty) Ltd
1948 (1) SA 839
(A) 848. Furthermore, as
Schreiner JA pointed out at 867, "comment has overcome construction and to-day
it is no longer possible
to interpret the present or any corresponding statutory
provision by a straightforward application of the ordinary meaning of the
words
used". It should also be mentioned that the history of the matter has been
subjected to a detailed analysis in a number of
recent judgments, some of which
by this Court. While any comprehensive re-examination would serve little
purpose, a proper perspective
nevertheless requires a brief exposition and a
critical review of some of the general propositions commonly (and sometimes
loosely)
advanced in the decided cases. I
8
would summarize the matter as follows:
1. For different reasons it was felt down the ages that decisions of a
"preparatory or procedural character" ought not to be appealable
(per Scheiner
JA in the
Pretoria Garrison Institutes
case
supra
at 868). One is
that, as a general rule, piecemeal consideration of cases is discouraged. The
importance of this factor has somewhat
diminished in recent times (
S A Eagle
Versekeringsmaatskapny Bpk v Harford
[1992] ZASCA 42
;
1992 (2) SA 786
(A) 791B-D). The
emphasis is now rather on whether an appeal will necessarily lead to a more
expeditious and cost-effective final
determination of the main dispute between
the parties and, as such, will decisively contribute to its final solution
(
Friday t/a Pride Paving v Rubin
1992 (3) SA 542
(C) 548H-I).
9
2.
In order to achieve this
result, a number of different legislative devices have been employed from time
to time. The requirement of
leave to appeal is one. Another is to prohibit
appeals unless the order appealed against has the effect of a final judgment.
And
the courts have, by way of interpretation, held consistently that rulings
are not appealable decisions.
3.
The
expression "judgment or order" in s 20(1) of the Act has a special, almost
technical, meaning; all decisions given in the course
of the resolution of a
dispute between litigants are not "judgments or orders" (
Constantia Insurance
Co Ltd v Nohamba
1986 (3) SA 27
(A) 35F-G; 42
I).
4. The word "judgment" has (for present
purposes) two
10
meanings, first the reasoning of the
judicial
officer (known to American jurists as his
"opinion"), and second,
"the pronouncement of the
disposition" (Garner,
A Dictionary of Modern
Legal
Usage sv
Judgments, Appellate Court) upon relief
claimed
in a trial action. In the context of s
20(1) we are concerned with the latter
meaning
only. An "order" is said to be a judgment for
relief claimed in
application proceedings
(
Dickinson and Another v Fisher's Executors
1914
AD 424
, 427;
Administrator Cape and Another v
Ntshwaqela
& Others
1990 (1) SA 705
(A) 714I-
715F). I would venture to suggest
that the
distinction between "judgment" and "order" is
formalistic and
outdated; it performs no function
and ought to be discarded.
5. 8 20(1) of the Act no longer draws a distinction
11
between "judgments or orders" on the one hand and interlocutory orders on the
other. The distinction now is between "judgments or
orders" (which are
appealable with leave) and decisions which are not "judgments or orders" (
Van
Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration
1987
(4) SA 569
(A)).
6. Whether so-called "simple interlocutory orders",
i e "all orders pronounced by the Court upon
matters incidental to the main dispute preparatory to or during the progress
of the litigation" and not having a final or definitive
effect, are either
"judgments or orders" or simply "rulings" has not yet been decided by this Court
(
Van Streepen & Germs (Pty) Ltd
case
supra
at 583I-584D).
12
7.
In determining the nature
and effect of a judicial pronouncement, "not merely the form of the order must
be considered but also, and
predominantly, its effect" (
South African Motor
Industry Employers' Association v South African Bank of Athens Ltd
1980 (3)
SA 91
(A) 96H).
8.
A "judgment or order" is a
decision which, as a general principle, has three attributes, first, the
decision must be final in effect
and not susceptible of alteration by the court
of first instance; second, it must be definitive of the rights of the parties;
and,
third, it must have the effect of disposing of at least a substantial
portion of the relief claimed in the main proceedings (
Van streepen &
Germs (Pty) Ltd
case
supra
at 586I-587B;
Marsay v Dilley
[1992] ZASCA 114
;
1992
(3) SA 944
(A) 962C-F) . The second is the same as
the
13
oft-stated requirement that a decision, in order to qualify as a judgment or
order, must grant definite and distinct relief (
Willis Faber Enthoven (Pty)
Ltd v Receiver of Revenue & Another
[1991] ZASCA 163
;
1992 (4) SA 202
(A) 214D-G).
9. The fact that a decision may cause a party an inconvenience or place him
at a disadvantage in the litigation which nothing but
an appeal can correct, is
not taken into account in determining its appealability (
South Cape
Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd
1977 (3)
SA 534
(A) 550D-H). To illustrate: the exclusion of certain evidence may hamper
a party in proving his case. That party may notionally be
able to prove it by
adducing other evidence. In that event an incorrect exclusion would not
necessarily have an effect on the final
14
result. In deciding upon the admissibility of evidence a court
is not called upon to speculate upon or divine (with or without the
assistance
of the parties) the ultimate effect of its decision on the course of the
litigation. Should it appear at the conclusion
of the matter that an incorrect
ruling amounted to an irregularity which may have had a material effect on its
outcome, the court
of appeal may, in adjudicating the "merits", set aside the
final judgment on that ground and in an appropriate case, remit it back
to the
trial court (
Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Fur
Schädlingsbekämpfunq MBH
1976 (3) SA 352
(A);
Caxton Ltd and
Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990 (3) SA 547
(A) 566C-D).
In
South African Druggists Ltd v Beecham Group plc
15
1987 (4) SA 876
(T) 880B-C the full bench held that unless an interlocutory
order has a final and definitive effect on the main action it is not,
for the
purposes of s 20(1) of the Act, a "judgment or order". Stated differently, it
held that simple interlocutory orders are no
longer appealable. And in
Sistag
Maschinenfabriek Sidler Stalder AG & Another v Insamcor (Pty) Ltd
1989
(1) SA 406
(T) 408D-F the same court equated rulings with simple interlocutory
orders. So also
Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (2)
1988 (2) SA 360
(W);
Petz Products (Pty) Ltd v Commercial Electrical
Contractors (Pty) Ltd
1990 (4) SA 196
(C) 211G-212E. On the other hand, and
as indicated above, Goldstein J expressed his personal reservations about the
correctness of
this approach and the non-appealability of his decision. He had
enunciated his reasons earlier in
Government Mining Engineer and Others v
National Union of Mineworkers and Others
1990
16
(4) SA 692
(W) 704G-705G. Similar views have since
been stated by Conradie J in
Friday t/a Pride Paving
v
Rubin supra
and in a thought-provoking article by Prof
H J
Erasmus,
Leave to Appeal against 'Judgments or
Orders' in terms of
section 20 of the Supreme Court Act
1959
,
(1992) 109 SALJ 496.
In
essence the argument is
that a decision such as the present is a
simple
interlocutory order; such an order was appealable with
leave under
s 20(2) (b) of the Act prior to its amendment
by the Appeals Amendment Act
105 of 1982; the meaning
of the words "judgment or order" in s 20(1) has
not
been changed by that amendment; they encompassed simple
interlocutory
orders; therefore they still do. The
argument is attractive and finds
apparent support in a
dictum in the
Van Streepen and Germs (Pty) Ltd
case
supra
at 584C-D to the effect that, as a result of
the
amendment, "the importance of the distinction between
simple
interlocutory orders and [interlocutory] orders
17
having a final definitive effect has been diminished". With respect, I am of
the view that this statement does not carry the import
ascribed to it by
Goldstein J. The distinction referred to has "diminished" inasmuch it is of
little consequence - the practical
implication of s 20(1) is that the real
distinction is between a "judgment or order" on the one hand and a decision
(conveniently
called a "ruling") which is not. It is no longer necessary or
conducive to clear thinking to consider, in this context, whether a
decision is
a simple interlocutory order. As for the remainder of the argument, I can also
not agree with it. As I read the case
law, it classified an interlocutory order
with a final and definitive effect as a "judgment or order" because that is the
attribute
that typifies all "judgments and orders". The fact that there was a
right of appeal (with leave) in respect of simple interlocutory
orders by virtue
of a special provision in
18
the old s 20(2)(b) which, in an indirect manner, created this class of
appealable decisions, does not mean that those decisions were
deemed to be true
"judgments or orders".
Counsel for the appellant, in an endeavour to
distinguish between "judgments or orders" and rulings, submitted that the answer
is
to be found in two quotations from the
Dickinson and Another
case,
supra
. That case held that a decision on a point of evidence is a ruling
and not an order and also, at least by implication, not a simple
interlocutory
order. Innes CJ stated at 427:
"But every decision or ruling of a court during the progress of a suit does
not amount to an order. That term implies that there must
be a distinct
application by one of the parties for definite relief. The relief prayed for may
be small, as in an application for
a discovery order, or it may be of great
importance, but the Court must be duly asked to grant some definite and distinct
relief,
before its decision upon
19
the matter can properly be called an order. A trial Court is sometimes called
upon to decide questions which come up during the progress
of a case, but in
regard to which its decisions would clearly not be orders. A dispute may arise,
for instance, as to the right to
begin: the Court decides it, and the hearing
proceeds. But that decision, though it may be of considerable practical
importance,
is not an order from which an appeal could under any circumstance
lie, apart from the final decision on the merits."
Solomon JA expressed similar views at 429, namely:
"The term 'order' is a technical one, which is in common use in courts of law
and which is well understood, though it may not be easy
to give a precise
definition of it. One thing, however, is clear, and that is that no order can be
made except upon an application
to the Court for relief. Such an application
usually takes the form of a motion or petition, and the decision of the Court
upon such
motion or petition is the order, which is embodied by the Registrar in
a formal document. I do not say that there can be no order
of Court except upon
a formal motion or petition, but what is essential is that there should be
an
20
application to the Court for some relief."
According to the argument these statements support three propositions, first,
that a decision consequent upon a formal prayer for
relief is, necessarily, a
"judgment or order"; second, that a decision made once the trial judge is seized
with the matter (
i e
once it begins) is a ruling, whereas one made before
that critical moment is a "judgment or order"; and third, that discovery orders
are not rulings.
As far as the first of these submissions is concerned, all that was stated
was that a formal request is
usually
a prerequisite for an order. The
converse
does not follow i e that once there is a formal
request, the consequent decision is necessarily a "judgment or order". The
second submission is also without merit. Although reference
was made to rulings
given "during the progress of a suit", the learned Judge
21
did not define those words. They can refer with equal force to any stage
subsequent to the inception of litigation. But even if one
could read into the
words used the first two propositions of counsel, it is surprising that in the
nearly 80 years since the
Dickinson and Another
case no court has done
so. On the contrary, a number of decisions were held to be rulings in spite of
the fact that they were the
result of formal requests for relief prior to the
beginning of the trial.
Examples are
Nxaba v Nxaba
1926 AD 392
;
Pfizer Inc v South African
Druggists Ltd
1987 (1) SA 259
(T);
Government Mining Engineer and
Others
case
supra
701G-I;
Friday t/a Pride Paving v Rubin supra
. As to the last submission that
the
Dickinson & Another
case is authority for the proposition that a
discovery order is not a ruling, that was said albeit
obiter
. If regard
is had to the fact that at that stage of our legislative history simple
interlocutory orders (of which discovery
22
orders are examples) were appealable with leave, undue weight cannot be
attributed to it. (This explains why appeals on discovery
orders were heard in
United Tobacco Companies (South) Ltd v International Tobacco Co of SA Ltd
1953 (1) SA 66
(T);
Lenz Township Co (Pty) Ltd v Munnick & Others
1959 (4) SA 567
(T);
Rellams (Pty) Ltd v James Brown & Hamer Ltd
1983
(1) SA 556
(N).) How then have our courts determined whether a given decision
amounts to a ruling? A few criteria have crystallized over the
years. The first
is the lack of finality: unless a decision is
res judicata
between the
parties and the court of first instance is thus not entitled to reconsider it,
it is a ruling. It was immaterial that
it was unlikely that that court would
ever change its view or its decision, provided that it was open to it to do so
(see
Union Government (Minister of the Interior) and Registrar of Asiatics v
Naidoo
1916 AD 50
;
Hutton & Pearson NNO v Hitzeroth & Others
1967
23
(1) SA 111 (E) 114D-115B;
Pfizer Inc v South African Druggists Ltd
supra
at 263;
Constantia Insurance Co Ltd v Nohamba supra
at 36H-F;
Government Mining Engineer and Another
case
supra
at
698A-701E).
Another relevant consideration was whether the
appeal might
turn out to be of no practical consequence
because the court could, in the
final result, find in
favour of the would-be appellant. See
Dickinson
and
Another
case
supra
at 428
in fine
;
Klep
Valves (Pty)
Ltd v Saunders Valve Co Ltd
1987 (2) SA 1
(A)
41.
Stated somewhat differently, a decision is a ruling if
it does not
affect the relief sought in the main action
-
Nxaba v Nxaba supra
;
Heyman v Yorkshire Insurance Co
Ltd
1964 (1) SA 487
(A)
490H-491C;
Holland v Deysel
1970
(1) SA 90
(A) 93A-C - or because no
relief was granted
on that claim (
Union Government (Minister of
the
Interior) and Registrar of Asiatics supra
at 50-51).
See
also
Levco Investments (Pty) Ltd v Standard Bank of
24
SA Ltd
1983 (4) SA 921
(A) 928.
In the light of these tests and in
view of the fact that a ruling is the antithesis of a judgment or order, it
appears to me that,
generally speaking, a nonappealable decision (ruling) is a
decision which is not final (because the court of first instance is entitled
to
alter it), nor definitive of the rights of the parties nor has the effect of
disposing of at least a substantial portion of the
relief claimed in the main
proceedings. It is not in dispute that the decision of Goldstein J is
characterized by all three these
negative integers.
I am aware that the consequence of this conclusion is that a number of
decisions which were appealable with leave prior to the amendment
of s 20 of the
Act by the Appeals Amendment Act 105 of 1982, are no longer appealable at all.
It was the intention of the legislature
in effecting that amendment to reduce
the
25
number of appeals and, so it appears to me, to bring the appealability of
decisions from provincial and local divisions of the Supreme
Court more or less
in line with that from a magistrate's court. See s 83
Magistrates' Courts Act 32
of 1944
. This conclusion is not in conflict with the suggestion of Corbett JA in
the
Van Streepen and Germs
case
supra
at 587E (and echoed in later
cases) that his decision might have the effect of enlarging the meaning of
"judgment or order". That
dictum of the learned Judge of Appeal must be read in
its context. He was dealing with the question whether a decision which does
not
dispose of all the issues in a case can be said to be a "judgment or order". He
held that it could if, consistent with principle,
it was final (see 587D-H) and
had the other attributes of a "judgment or order" (see 586I-J) referred to
earlier.
In the result leave to appeal cannot be granted. That being so, this Court is
not empowered to consider,
26
at this stage of the litigation between the parties, the | issue of the
privilege attaching to a police docket.
The application for leave to appeal
is dismissed with costs, including the costs consequent upon the employment of
two counsel.
L T C HARMS
ACTING JUDGE OF APPEAL
HOEXTER, JA ) HEFER, JA ) CONCUR F H GROSSKOPF, JA) NIENABER, JA )