Carter v Haworth

• Jurisdiction: South Africa

Carter v Haworth
2009 (5) SA 446 (SCA)

2009 (5) SA p446

Citation	2009 (5) SA 446 (SCA)
Case No	177/2008
Court	Supreme Court of Appeal
Judge	Mthiyane JA, Maya JA, Snyders JA, Leach AJA and Bosielo AJA
Heard	February 16, 2009
Judgment	March 20, 2009
Counsel	D Stephens for the appellant.; PA Corbett for the respondent.

Flynote : Sleutelwoorde G

H Practice — Judgment and orders — Whether judgment final and appealable — High Court 'allowing damages' and other relief, and determining that certain factual findings to be referred to actuary to facilitate calculation of item of damage, thereafter to be referred back to court — Court not having finally disposed of issues and not having made order — Judgment not I appealable.

Headnote : Kopnota

In an action in the High Court for damages for bodily injuries, the court granted 'judgment' in which it 'allowed' damages and other relief, and referred certain findings of fact to an actuary to facilitate the calculation of an item of damage, which was thereafter to be referred back to the judge if the J matter was not settled. No order was made directing the appellant to

2009 (5) SA p447

compensate the respondent in the amounts 'allowed'. The appellant A appealed against the trial court's 'judgment' to the Supreme Court of Appeal.

Held, that, until the actuaries had made their calculations and the parties had reverted to the trial court for it to determine the amount to be allowed in respect of loss of earnings, the trial court would neither be able to assess the total amount of the respondent's damages nor issue an order holding the B appellant liable to the respondent in that sum. The judgment of the trial court had not finally disposed of the issues and the judgment was accordingly not final and therefore appealable. (Paragraphs [8] - [9] at 449E - H.)

Held, further, that the weakest link in the judgment lay in the absence of an order. C There was no part of a judgment that provided a stronger indication of finality than an order at the end. If the order were removed or omitted, the judgment was rendered ineffective and so, too, its element of finality. (Paragraph [12] at 450D.)

Held, further, that, given the uncertainty regarding the fate of the actuarial calculations and the absence of an order, the conclusion was unavoidable that the judgment of the court below was not appealable. For those reasons, D the matter fell to be struck from the roll. (Paragraph [13] at 450G.)

Cases Considered

Annotations

Reported cases

Administrator, Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705 (A): dictum at 715D applied E

Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and Another 2002 (6) SA 256 (C) ([2002] 1 All SA 517): referred to

Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and Another 2005 (6) SA 1 (SCA) ([2004] 1 All SA 1): referred to

Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and Another (2) 2005 (6) SA 23 (C): referred to F

D'Ambrosi v Bane and Others 2006 (5) SA 121 (C): referred to

Guardian National Insurance Co Ltd v Searle NO 1999 (3) SA 296 (SCA): referred to

Ndlovu v Santam Ltd 2006 (2) SA 239 (SCA): referred to

SA Eagle Versekeringsmaatskappy Bpk v Harford 1992 (2) SA 786 (A): dictum at 792C - D applied G

Zweni v Minister of Law and Order 1993 (1) SA 523 (A): referred to.

Case Information

Appeal from a decision in the Cape Provincial Division (NC Erasmus J). The facts appear from the judgment of Mthiyane JA.

D Stephens for the appellant.

PA Corbett for the respondent. H

Cur adv vult.

Postea (March 20).

Judgment

Mthiyane JA: I

[1] This appeal is concerned with the question whether the 'judgment' of the trial court in which damages and other relief were 'allowed' and certain findings of fact were referred to an actuary to facilitate the calculation of an item of damage, which was to be thereafter referred back to the judge if the matter was not settled, is appealable. J

2009 (5) SA p448

Mthiyane JA

A [2] The appeal, with leave of this court, is from the decision of the Cape High Court (NC Erasmus J) in which the court 'allowed' damages and other relief and made certain factual findings in favour of the respondent, as plaintiff. The respondent claimed damages against the appellant arising out of bodily injuries she sustained in a motor collision...