Maize Board v Tiger Oats Ltd and Others (151/2001) [2002] ZASCA 74; [2002] 3 All SA 593 (A) (31 May 2002)

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[2002] ZASCA 74
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Maize Board v Tiger Oats Ltd and Others (151/2001) [2002] ZASCA 74; [2002] 3 All SA 593 (A); 2002 (5) SA 365 (SCA) (31 May 2002)

THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Reportable
Case
No: 151/2001
In
the matter between:
MAIZE
BOARD
Appellant
and
TIGER
OATS LIMITED
1
st
Respondent
TIGER
FOOD INDUSTRIES LIMITED
2
nd
Respondent
UNIVERSAL
FOODS LIMITED
3
rd
Respondent
Coram
:
Smalberger, ADP, Marais, Streicher, Cameron, JJA and Lewis,
AJA
Heard
:
20 May 2002
Delivered
:
31 May 2002
Condonation – appealability of
dismissal of exception.
J U D G M E N T
STREICHER,
JA/
STREICHER JA
:
[1] The appellant sued the respondents in the Transvaal
Provincial Division (‘the court
a quo’)
for payment of
certain levies imposed in terms of the now repealed Marketing Act 59
of 1968 and the Summer Grain Scheme promulgated
in terms of that Act.
The respondents filed a special plea of prescription to which the
appellant excepted on the ground that the
levies imposed constituted
a tax with the result that the prescriptive period in terms of
s 11
of the
Prescription Act 68 of 1969
was 30 years and not three years
as alleged by the respondents. The court
a quo
held that the
levies did not constitute a tax and dismissed the exception. An
application for condonation of the late filing of an
application for
leave to appeal was subsequently dismissed by the court
a quo
on the ground that the dismissal of the exception was not appealable.
With the leave of the court
a quo
the appellant now appeals
against the dismissal of the application for condonation.
[2] Before its amendment by Act 105 of 1982, s 20(1) of
the Supreme Court Act 59 of 1959 provided for an appeal, in certain
civil
cases, against a ‘judgment or order’ of the court of a
provincial or local division. In some instances leave to appeal was
required
and in others there was an automatic right of appeal.
Section 20(2) provided that the following provision would, amongst
others,
apply in connection with appeals under subsection (1):
‘
no interlocutory order shall be subject to appeal
save with the leave of the court by which the judgment was given or
the order was
made’.
[3] The amended s 20 still provided for an appeal
against a ‘judgment or order’ of a provincial or local division
in civil proceedings
subject, however, to obtaining the leave of the
court against whose judgment or order the appeal was or, depending on
the circumstances,
the leave of the appellate division, but no longer
contained any reference to interlocutory orders. That is still the
position in
terms of the present s 20.
[4] Dealing with the provisions of s 20 as it read after
its amendment by Act 105 of 1982 this court held, per Harms AJA in
Zweni v Minister of Law and Order
1993 (1) SA 523
(A) at
536B-D:
‘
[G]enerally speaking, a non-appealable 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. . . .
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 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.’
[5] In
Trope and Others v South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 269F, F H Grosskopf JA, after having
referred to
Zweni,
said in respect of an order upholding an
exception to particulars of claim on the ground that they were vague
and embarrassing:
‘
The appealability of the order of the Court
a quo
depends,
inter alia
, on whether it has final and definitive
effect.’
[6] The general principle stated in
Zweni,
more
particularly the requirement of finality, was reaffirmed by this
court in a number of subsequent cases (see
Caroluskraal Farms
(Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk; Red Head
Boer Goat (Edms) Bpk v Eerste Nasionale Bank
van Suider-Afrika Bpk;
Sleutelfontein (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika
Bpk
[1994] ZASCA 23
;
1994 (3) SA 407
(A) at 414F-H;
Trakman NO v Livshitz and
Others
1995 (1) SA 282
(A) at 289B-D;
Jones v Krok
[1994] ZASCA 177
;
1995
(1) SA 677
(A) at 684E-685A;
Cronshaw and Another v Coin Security
Group (Pty) Ltd
[1996] ZASCA 38
;
1996 (3) SA 686
(A) at 690D-G;
Knox D’Arcy
Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at
356H-358B;
Shepstone & Wylie and Others v Geyser NO
1998
(3) SA 1036
(SCA) at 1042D-G;
Guardian National Insurance Co Ltd v
Searle NO
1999 (3) SA 296
(SCA) at 301B-D; and
South
African Chemical Workers’ Union and Another v African Commerce
Developing Co (Pty) Ltd t/a Buffalo Tapes
2000 (3) SA 732
(SCA)
at 737I). In
Cronshaw
Schutz JA said in regard to the question
as to when a decision is final (at 690E-G):
‘
The question is intrinsically difficult, and a
decision one way or the other may produce some unsatisfactory
results. There has to
be a rule, however, and that rule was laid down
by not later than the
Pretoria Garrison
case [
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd
1948 (1)
SA 839
(A)]. It is, as stated by Schreiner JA (at 870) that
“
. . . a preparatory or procedural order is a simple
interlocutory order and therefore not appealable unless it is such as
to "dispose
of any issue or any portion of the issue in the main
action or suit", or, which amounts, I think, to the same thing,
unless
it "irreparably anticipates or precludes some of the
relief which would or might be given at the hearing" '.
. . . it is one of the attributes of a 'judgment or
order' . . . that it be final in effect and not susceptible of
alteration by the
Court of first instance:
Zweni v Minister of Law
and Order
1993 (1) SA 523
(A) at 532I-J.’
In
Guardian National Insurance Co Ltd
Howie
JA, before restating the three attributes mentioned in
Zweni,
said (301B-C):
‘
As previous decisions of this Court indicate, there
are still sound grounds for a basic approach which avoids the
piecemeal appellate
disposal of the issues in litigation. It is
unnecessarily expensive and generally it is desirable, for obvious
reasons, that such
issues be resolved by the same Court and at one
and the same time. Where this approach has been relaxed it has been
because the judicial
decisions in question, whether referred to as
judgments, orders, rulings or declarations, had three attributes.’
[7] However, in
Moch v Nedtravel (Pty) Ltd t/a
American Express Travel Service
1996 (3) SA 1
(A) this court
recognized an exception to the general principle enunciated in
Zweni.
Hefer JA said in respect of the above quoted passage in
Zweni
(at 10F)
:
‘
However, the passage in question does not purport to
be exhaustive or to cast the relevant principles in stone.’
He held that the dismissal of an application to an
acting judge to recuse himself was appealable because the decision,
although not
actually defining the parties’ rights or disposing of
any of the relief claimed in respect thereof had a very definite
bearing
on these matters. It reflected on the competence of the
presiding judge to define the parties’ rights and to grant or
refuse the
relief claimed. The dismissal of an application to a judge
to recuse himself is clearly a very special case. As was said by
Hefer
JA (at 10D):
‘
A decision dismissing an application for recusal. . .
goes to the core of the proceedings and, if incorrectly made,
vitiates them
entirely.’
[8] In
Blaauwbosch Diamonds Ltd v Union Government
(Minister of Finance)
1915 AD 599
at 601 Innes CJ said in respect
of the question whether an order dismissing an exception was final:
‘
The characteristics of purely interlocutory orders
were fully considered in that case,
1
and most of the South African decisions were discussed. It was then
laid down that a convenient test was to inquire whether the final
word in the suit had been spoken on the point; or, as put in another
way, whether the order made was reparable at the final stage.
And
regarding this matter from that standpoint, one would say that an
order dismissing an exception is not the final word in the
suit on
that point [in] that it may always be repaired at the final stage.
All the Court does is to refuse to set aside the declaration;
the
case proceeds; there is nothing to prevent the same law points being
re-argued at the trial; and though the Court is hardly likely
to
change its mind there is no legal obstacle to its doing so upon a
consideration of fresh argument and further authority.’
[9] However, in
Du Toit v Ackerman
1962 (2) SA
581
(A) at 587D-E this court held that the dismissal of an exception
on the ground that the court does not have jurisdiction to hear
the
matter constituted a final judgment and as such an exception to the
general principle that the dismissal of an exception is not
final.
The court relied on the authority of
Steytler NO v Fitzgerald
1911
AD 295
in which De Villiers CJ said (at 305):
‘
The Court . . . decided that it had jurisdiction,
with the result that whatever the final decision might be, the
executor was made
amenable against his will to a jurisdiction other
than that of his own dwelling-place. Such an order, in my opinion,
has also the
effect of a definitive sentence.’
De Villiers CJ said that he was dealing with an
exception but he was in fact dealing with a special plea (see pp 298,
302 and 310
of the report). The dismissal of an exception on the
ground that the court does not have jurisdiction is nevertheless
similar to
that of a refusal by a judge to recuse himself since the
result in both cases is that the matter has to proceed before a judge
who
should not be hearing the matter.
[10] This court has since the amendment of s 20 in 1982
dealt with a number of appeals against orders dismissing exceptions.
Some
of these cases are mentioned in
Minister of Safety and
Security and Another v Hamilton
2001 (3) SA 50
(SCA) at 53A. To
those mentioned can be added
Argus Printing and Publishing Co Ltd
and Others v Esselen’s Estate
1994 (2) SA 1
(A). In none of
the judgments in these cases was the question of the appealability of
the decision to dismiss an exception addressed.
It can in my view
fairly be assumed that the question was not raised in argument
either. However, in three recent cases in this court
the court was
confronted squarely with that question. They are
Wellington Court
Shareblock v Johannesburg City Council; Agar Properties (Pty) Ltd v
Johannesburg City Council
1995 (3) SA 827
(A);
Kett v Afro
Adventures (Pty) Ltd and Another
1997 (1) SA 62
(A); and
Minister
of Safety and Security and Another v Hamilton supra
. In
Wellington
it was held that the dismissal of an exception to
particulars of claim on the ground that they did not disclose a cause
of action
was not appealable. In
Kett
it was held that the
dismissal of
an exception to a special plea on the ground that
it lacked averments necessary to sustain the proposed defence was not
appealable.
In both cases the court relied on the decision in
Blaauwbosch
to the effect that the order made was capable of
being reconsidered by the trial court and as such not ‘the final
word in the suit
on the point’.
2
[11]
Hamilton
was also a case in which an
exception to particulars of claim on the ground that they did not
disclose a cause of action was dismissed.
On appeal the majority of
the members of the court thought that there was no need to revisit
the latest decisions on the question
of the appealability of an order
dismissing an exception. They were of the view that the order granted
by the court below
was not an order dismissing an exception on
the merits of the exception’s challenge to the legal foundation of
the claim and that
it was for that reason not a ‘judgment or order’
which could be appealed against.
3
The other members of the court were of the view that the order
constituted a dismissal of an exception and said, per Nienaber JA:
4
‘
The rule is that the dismissal of an exception is not
appealable to this Court, save perhaps in that rare category of case
(of which
this case, on any reading, is not one) where the issue in
question is presented in form as an exception but the procedure in
substance
and effect is a stated case. It is worthwhile, I think, to
remind oneself once again of what Innes CJ said in
Blaauwbosch
Diamonds Ltd v Union Government (Minister of Finance)
1915 AD 599
at 601: . . .’
[12] The appellant submitted that the present case is a
case which in form was presented as an exception but in substance was
a stated
case. It argued that that was the case as the issue that had
to be decided was a law point and that no relevant evidence could be
led in respect thereof. However, it is clear that the respondents
would not have agreed that the matter be dealt with as if it was
a
stated case and that they did in fact not deal with it as such. They
contended in the court
a quo,
as well as before us, that
evidence was required to decide whether the levies in question
constituted a tax or not and stated that
they intended adducing such
evidence at the trial of the matter. It is not necessary to decide at
this stage whether evidence would
be admissible in respect of the
issue whether the levies constituted a tax or not. I shall assume in
favour of the appellant that
such evidence would not be admissible.
The mere fact that the issue to be decided in an exception is purely
a matter of law does,
however, not convert an exception into a stated
case. When it has to be decided whether a declaration or particulars
of claim disclose
a cause of action or whether a plea discloses a
defence the issue often is whether in law that is the case.
A
decision on that point of law is not final.
Blaauwbosch
is
clear authority to that effect. The point may be re-argued at the
trial in the event of the exception being dismissed. The position
would have been different if the court
a quo
had, at the
request of the parties or of its own accord made an order in terms of
Rule 33(4) of the Uniform Rules directing that
the issue raised by
the exception be finally disposed of.
[13] In
Makhothi v Minister of Police
1981 (1) SA
69
(A) it was held that an exception to a special plea was
appealable. The exception had been taken to a special plea which
claimed
that the plaintiff’s action was barred because the notice
required by s 32(1) of the Police Act 7 of 1958 had not been
timeously
given. However, all the relevant facts were common cause on
the pleadings and if timeous notice had not been given in terms of
the
section that was the end of the matter. It is in those
circumstances that this court decided that by dismissing the
exception to
the special plea the court below had spoken ‘the final
word in the suit’. In the present case the position is quite
different.
A dismissal of the exception could not and still cannot be
regarded as the final word in the suit. The appellant could still
contend
that, even if the prescriptive period was three years, the
claim had not prescribed because, in terms of
s 12
of the
Prescription Act, the
debt only became due on a date less than three
years prior to the date of service of the summons, or because
prescription had been
interrupted in terms of
s 15
of the
Prescription Act, or
because the completion of prescription had been
delayed in terms of
s 13
of the
Prescription Act. In
the event the
appellant did, after the dismissal of its exception, file a
replication in which it alleged that, in terms of
s 12
of the
Prescription Act prescription
commenced running only less than three
years before summons was served on the respondents.
[14] In the light of this court’s interpretation of
s
20
, the decisions in
Blaauwbosch,
Wellington
and
Kett,
and the well established principle that this court will not readily
depart from its previous decisions, it now has to be accepted
that a
dismissal of an exception (save an exception to the jurisdiction of
the court), presented and argued as nothing other than
an exception,
does not finally dispose of the issue raised by the exception and is
not appealable. Such acceptance would on the present
state of the law
and the jurisprudence of this court create certainty and accordingly
be in the best interests of litigating parties.
If litigating parties
wish to obtain a final decision, whichever way the decision of the
court goes on an issue raised by an exception,
they should make use
of the procedure designed for that purpose namely the procedure
provided for in
Rule 33
and either agree on a special case in terms
of that rule or request the court to direct that the issue be finally
disposed of in
an appropriate manner. If that is done any
misunderstanding on the part of any of the parties and any resulting
prejudice should
be avoided.
[15] For these reasons I am of the view that the court
a
quo
correctly dismissed the application for condonation.
[16] The appeal is dismissed with costs including the
costs of two counsel.
______________
P
E STREICHER
Judge of Appeal
Smalberger, ADP)
Marais,
JA)
Cameron,
JA)
Lewis,
AJA) concur
1
Steytler v Fitzgerald
1911 AD 295.
2
Wellington
at 835D; and
Kett
at 65H.
3
At 53 para 9.
4
At 55G para 4.