Maize Board v Tiger Oats Ltd and Others

• Jurisdiction: South Africa
• Judge: Smalberger Adp, Marais JA, Streicher JA, Cameron JA and Lewis AJA
• Judgment Date: 31 May 2002
• Citation: 2002 (5) SA 365 (SCA)
• Docket Number: 151/2001
• Hearing Date: 20 May 2002
• Counsel: D A Gordon SC (with S Joubert) for the appellant. A Subel SC (with M T Glaeser) for the respondents.
• Court: Supreme Court of Appeal

Streicher JA:

[1] The appellant sued the respondents in the Transvaal Provincial Division (the Court a quo) for payment of certain C levies imposed in terms of the now repealed Marketing Act 59 of 1968 and the Summer Grain Scheme promulgated in terms of that Act.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 D 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 E 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 the Appeals Amendment 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 F 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 apply in connection with, amongst others, appeals under ss (1):

'(N)o interlocutory order shall be subject to appeal save with the leave of the court by which the judgment was given or the order was G 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 H 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: I

'(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 J

Streicher JA

Act by the Appeals Amendment Act 105 of 1982 are no longer appealable at all. It was the intention of the Legislature in effecting A 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 (3) SA 264 (A) at 269F F H Grosskopf JA, after having B 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.' C

[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 (3) SA 407 (A) at 414F - H; Trakman NO v Livshitz D and Others 1995 (1) SA 282 (A) at 289B - D; Jones v Krok 1995 (1) SA 677 (A) at 684E - 685A; Cronshaw and Another v Coin Security Group (Pty) Ltd 1996 (3) SA 686 (A) at 690D - G; Knox D'Arcy Ltd and Others v Jamieson and Others 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 E 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): F

'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 [...