Summary of Judgment

Introduction

The proceedings were an appeal to the Supreme Court of South Africa (Appellate Division) arising from interlocutory proceedings in the Witwatersrand Local Division. The appellant, Kimberley Jeanne Kett (the plaintiff in the trial action), sought to challenge an order dismissing her exception to the defendants’ special plea.

The respondents were Afro Ventures (Proprietary) Limited (the first defendant, a tour operator and employer of the driver) and Christopher Leigh Kemp (the second defendant, the driver of the vehicle involved in the accident). The underlying dispute concerned a claim for delictual damages for personal injuries sustained in an accident in Botswana, and the defendants’ reliance on a contractual waiver/exemption from liability clause as a defence.

Procedurally, the plaintiff instituted action against both defendants jointly and severally for damages, alleging negligence on the part of the second defendant. The defendants delivered a special plea relying on the waiver/exemption clause. The plaintiff excepted to that special plea on the basis that, on the contract’s terms, the waiver did not extend to negligent driving. Eloff JP dismissed the exception with costs (including two counsel). Leave to appeal to the Appellate Division was granted, and the plaintiff pursued the appeal.

Shortly before the appeal hearing, the parties were notified that they should be prepared to argue whether the order dismissing the exception was an appealable “judgment or order” for purposes of section 20 of the Supreme Court Act 59 of 1959. At the hearing, the plaintiff conceded non-appealability, the defendants contended similarly, and the appeal was struck off the roll for want of jurisdiction. The court nonetheless reserved judgment on the appropriate costs order resulting from the abortive appeal.

Material Facts

The material facts relevant to the issues decided on appeal were largely procedural and were not substantially disputed.

The plaintiff (a Swiss resident) was injured in Botswana when a Land Rover truck in which she was a passenger overturned during a safari arranged by the first defendant. The second defendant was the driver and was employed by the first defendant at the time. The plaintiff’s husband concluded the contract of conveyance, purportedly both in his personal capacity and on the plaintiff’s behalf; the contract included a comprehensive waiver of rights and exemption from liability clause.

Relying on that clause, the defendants raised a special plea to the plaintiff’s delictual action. The second defendant additionally pleaded that he had accepted the benefit “conferred upon him” under the contract. The plaintiff took an exception to the special plea, contending that, on the face of the contract, the waiver and/or abandonment of rights and/or indemnification did not extend to claims for damages based on the defendants’ negligent driving.

Eloff JP dismissed the exception with costs. Leave to appeal was thereafter granted. The appeal proceeded to the Appellate Division, but the registrar’s notice raised the question of appealability under section 20 of the Supreme Court Act. At the hearing, counsel agreed that the order was not appealable, leading to the appeal being struck off the roll; the remaining controversy concerned the correct allocation of costs.

Legal Issues

The central legal question was whether the order dismissing the exception constituted an appealable judgment or order for purposes of section 20 of the Supreme Court Act 59 of 1959. This was a question of law, specifically whether the challenged order had the requisite finality to confer appellate jurisdiction.

A secondary issue, arising only after the appeal was struck off, was the appropriate costs order in circumstances where an appeal is abortive for lack of jurisdiction, particularly where both parties’ legal representatives failed to raise the appealability point at the stage of leave to appeal.

The dispute on costs involved a discretionary/value-judgment component, in that the court considered what would be just in the circumstances, taking into account the parties’ respective responsibility for the wasted costs.

Court’s Reasoning

On appealability, the court applied the principle that an order is appealable only if it is sufficiently final in effect, in the sense of being “the final word in the suit on that point”. The court reasoned that the dismissal of an exception based on a court’s interpretation of a contractual term is not necessarily final, because the issue is capable of being reconsidered by the trial court in the subsequent course of the proceedings. On that basis, the dismissal of the exception lacked the finality required for appealability under section 20.

Because the order was not appealable, the Appellate Division held that it lacked jurisdiction to consider the merits of the contractual interpretation or the adequacy of the special plea. The appeal was therefore struck off the roll, and the court indicated that it was precluded from expressing any view on the merits.

On costs, the respondents sought the “usual order” that the appellant pay the wasted costs of the appeal, including the costs of two counsel. The appellant contended that there had been no true “battle” on jurisdiction because she conceded the point immediately once it was raised; she submitted that both parties were jointly responsible for the abortive proceedings because neither side raised the appealability defect earlier (particularly at the leave-to-appeal stage), and therefore the wasted costs should be costs in the cause.

The court rejected the contention that costs should simply be costs in the cause. It reasoned that, even on the appellant’s approach, she should at least bear the costs of the application for leave to appeal. The court further reasoned that if costs were left to be costs in the cause and the appellant ultimately succeeded in the main action, the respondents would effectively be burdened with all the costs of the abortive appeal, despite the appellant being the dominus litis and therefore primarily responsible for initiating and prosecuting the appeal.

The court distinguished authority where costs were made costs in the cause on the basis that, in that instance, the plaintiff had agreed to the incorrect procedure. In the present matter, no such agreement existed.

The court also considered authorities where no order as to costs was made in comparable circumstances, but explained that those were cases where both parties had, to some degree, co-operated or acquiesced in pursuing an incorrect procedure. While the appellant here did not require the respondents’ cooperation to seek leave to appeal, the court accepted that the respondents’ legal advisers were not free from blame. The court emphasised that, where leave to appeal is sought from the court a quo, it is incumbent on counsel for both sides to advise the court if there is reason to doubt its competence to grant the order sought. Both sides’ counsel were criticised for failing to appreciate and draw attention to the futility of granting leave to appeal in these circumstances.

Balancing these considerations, the court exercised its discretion by allocating the wasted appeal costs in a manner reflecting both the appellant’s primary responsibility as dominus litis and the respondents’ partial responsibility for not raising the appealability objection earlier. The court assessed the respondents’ share of their own wasted costs as one third, and ordered the appellant to pay the remaining two thirds.

Outcome and Relief

The appeal was struck off the roll because the order dismissing the exception was not an appealable “judgment or order” under section 20 of the Supreme Court Act 59 of 1959, with the result that the court lacked jurisdiction to entertain the merits.

The court made supplementary orders dealing with the procedural consequences and costs. It set aside the court a quo’s order granting leave to appeal and its associated costs order. The appellant was ordered to pay the costs of the application for leave to appeal. The appellant was further ordered to pay two thirds of the respondents’ wasted costs of appeal, including the costs of two counsel.

Cases Cited

Blaauwbosch Diamonds Ltd v Union Government (Minister of Finance) 1915 AD 599.

Wellington Court Shareblock v Johannesburg City Council 1995 (3) SA 827 (A).

Nxaba v Nxaba 1926 AD 392.

Stevenson v MacIver 1922 AD 413.

Western 1948 (3) SA 353 (A).

Charugo Development Co (Pty) Ltd v Maree NO 1973 (3) SA 759 (A).

South Africa Motor 1980 (3) SA 91 (A).

Levco Investments (Pty) Ltd v Standard Bank of SA Ltd 1983 (4) SA 921 (A).

Klerksdorp & District Muslim Merchants Assocition v Mahomed and Another 1948 (4) SA 731 (T).

Union Government (Minister of the Interior) and Registrar of Asiatics v Nadoo 1916 AD 50.

Tropical (Commercial and Industrial) Ltd v Plywood Products Ltd 1956 (1) SA 339 (A).

Sekretaris van Binnlandse Sake en 'n Ander v Olieslagter en 'n Ander 1966 (4) SA 641 (A).

Desai v Engar and Engar 1966 (4) SA 647 (A).

Legislation Cited

Supreme Court Act 59 of 1959, section 20.

Rules of Court Cited

No rules of court were cited.

Held

The court held that the dismissal of an exception, grounded in a contractual interpretation capable of later reconsideration by the trial court, lacked the finality required for an appealable order under section 20 of the Supreme Court Act 59 of 1959. The Appellate Division therefore lacked jurisdiction and struck the appeal off the roll, without reaching the merits.

On costs, the court held that fairness required an apportionment reflecting that the appellant, as dominus litis, primarily caused the wasted costs by initiating the appeal, but that the respondents’ advisers also bore some responsibility for failing to raise non-appealability earlier. The appellant was ordered to bear the costs of the leave application and two thirds of the wasted appeal costs.

LEGAL PRINCIPLES

An order is appealable under section 20 of the Supreme Court Act 59 of 1959 only if it is sufficiently final in effect, meaning it constitutes the “final word in the suit on that point”. A dismissal of an exception based on interpretation of a contractual term may be non-final where the point is capable of reconsideration during the trial proceedings.

Where an appeal is struck off for want of jurisdiction due to non-appealability, the appellate court is precluded from pronouncing on the merits of the underlying dispute.

Costs in abortive appellate proceedings remain within the court’s discretion. In exercising that discretion, relevant considerations include the appellant’s role as dominus litis in initiating the proceedings, the parties’ conduct once the jurisdictional defect is raised (including whether the defect is promptly conceded), and whether counsel for either or both sides failed to alert the court a quo to a serious doubt about its competence to grant leave to appeal, thereby contributing to wasted costs.