Blaauwbosch Diamonds Ltd v Union Government (Minister of Finance)

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, Juta AJA, and AFS Maasdorp Acting AJA
• Judgment Date: 04 November 1915
• Citation: 1915 AD 599
• Court: Appellate Division

Innes, C.J.:

An exception was taken to the declaration in this case on the ground that it disclosed no cause of action. The order made by the Transvaal Provincial Division was one dismissing the exception. And the question at once suggests itself whether that was an interlocutory order; because if it was then we have no jurisdiction to entertain these proceedings. The words of the statute (Act 1, 1911, par. 3 b) are quite clear; the leave of the Court making an interlocutory order is a condition precedent to that order being subject to appeal. The question must, therefore, be settled at once. Mr. Feetham practically admits that the decision before us is interlocutory; Mr. Tindall makes no admission, but addresses no argument to us on the subject. It was decided in Steytler v Fitzgerald (1911 A.D., p. 295) that the expression interlocutory order, as used in the statute referred to, means a purely interlocutory order, not one which though given during the progress of the case has the effect of a final or definitive sentence. The characteristics of purely interlocutory orders were fully considered in that case, 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 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.

Innes, C.J.

The point was practically decided in Henderson v Hanekom (20 S.C., p. 586). There the Cape Supreme Court had dismissed an exception to the declaration, and application was made for leave to appeal to the Privy Council. But it was refused on the ground that the order of the Court had not the effect of a final or definitive sentence, but was interlocutory only. That decision was definitely approved of by LORD DE VILLIERS in Steytler v Fitzgerald, where, he remarked in regard to Henderson v Hanekom as follows: "The Cape Supreme Court there held that its decision overruling an exception to a declaration as disclosing no cause of action had not the effect of a definitive sentence. It was admitted in the judgment that, if the Court had sustained the exception the result might have been different, inasmuch as a decision that the declaration discloses no cause of action would practically put an end to that particular suit. But a decision that the declaration does disclose a cause of action still leaves the question at issue to be decided in the ordinary course of that suit." Henderson v Hanekom was also expressly approved by DE VILLIERS, J.P., and was referred to with apparent approval by LAURENCE A.J.A.; so that it had the support of the majority of the Bench of this Court which sat in Steytler v Fitzgerald.

The point also arose in Natal. There an application was made for leave to appeal to the Privy Council from a decision dismissing an exception to the declaration. Leave was granted by a majority of the Court, one judge dissenting on the ground that the order was a purely interlocutory one. The matter went forward to the Privy Council, which expressed the opinion that the question whether the order appealed against had the effect of a definite sentence "was certainly open to doubt." But as the matters in controversy were important, the Judicial Committee itself gave special leave to appeal (a power which in the present instance we do not possess), and dealt-with the case on that basis (Salisbury Gold Co. v Hathorne, 1897, A.C., p. 268).

The view which one would take at first sight, therefore, is supported by authority; and one comes to the conclusion that the order now sought to be appealed against is interlocutory merely and not final. It may well be that had the exception been upheld, the, order would have been final, because in that event it would have put an end to the proceedings as they then stood. That point does,

Innes, C.J.

not call for decision; but if it were so held that would not affect the nature of the order now before us. The rules of our law on this subject are not the same as those which have been adopted by English Courts.

We are asked, however, to hear the arguments in this appeal, subject to leave of the Provincial Division being obtained, and to hold over our judgments pending the grant of such leave. But the legal position is that we have at present no jurisdiction over the matter we are asked to consider. No doubt it is highly probable that the Trial Court will grant leave; but it is not bound to do so. It has a discretion in the matter which will be difficult to exercise if we hear the appeal in anticipation. It has been brought to our notice that on a former occasion an appeal from an order dismissing an exception was entertained by this Division without the special leave of the Court below. The point was apparently overlooked, and the matter dealt with per incuriam; but that is no reason for now disregarding what was then unnoticed.

One regrets the position which has arisen. But there are the plain provisions of the law, with...