Government Mining Engineer and Others v National Union of Mineworkers and Others

• Jurisdiction: South Africa
• Judge: Goldstein J
• Judgment Date: 23 April 1990
• Court: Witwatersrand Local Division

Goldstein J:

E On 2 February 1990 I referred certain factual disputes in review proceedings to evidence and reserved the question of costs. Respondents in such proceedings have now brought an application for leave to appeal against my decision, which is opposed by the applicants in the matter concerned, and I shall continue in this judgment to refer F to them as the respondents and the applicants respectively.

During the course of my written judgment I dealt with a number of issues. First, I decided that there were disputes of fact which could not be resolved on the papers. Secondly, that, on the facts alleged by them, the applicants had a cause of action; and thirdly, that in the exercise of my discretion I should refer the matter to evidence.

G The crux of the attack of the respondents is against my finding that the applicants made out a good cause of action in their papers for the relief they claimed. I am of the view that there is a reasonable prospect of another Court's differing from the views I expressed in making the finding concerned. The question, however, arises whether my referral of the matter to evidence amounted to a 'judgment or order' as H intended by the applicable statutory provision, s 20 of the Supreme Court Act 59 of 1959 as amended.

My referral to evidence was along the lines of that in Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd 1971 (2) SA 388 (W) at 396G - 397B, and was introduced by the words: 'In the I result I make the following order....'

The phrase 'judgment or order' appeared in s 3 of Act 1 of 1911. This was the section in force in South Africa until its repeal by the Supreme Court Act 59 of 1959 subject to an amendment which is unimportant. It is thus the statutory provision against the backdrop of which much of our J case law must be read and it reads as follows:

Goldstein J

A 'Notwithstanding anything to the contrary in any law contained, the following provisions shall apply to all appeals against the judgment or order of a Superior Court to the Appellate Division of the Supreme Court of South Africa and to all appeals from the judgment or order of a single Judge to any Provincial Division of the said Court in terms of s 103 of the South Africa Act, 1909:

(a)

The right of appeal shall not be limited by reason only of the B value of the matter in dispute or the amount claimed or awarded in the suit.

(b)

No judgment or order made by consent, or as to costs only which by law are left to the discretion of the Court, and no interlocutory order shall be subject to appeal save by leave of the Court or Judge making the order.'

For the sake of completeness I also quote s 103 of the South Africa Act which reads as follows: C

'In every civil case in which, according to the law in force at the establishment of the Union, an appeal might have been made to the Supreme Court of any of the Colonies from a Superior Court in any of the Colonies, the appeal shall be made only to the Appellate Division, except in cases of orders or judgments given by a single Judge, upon applications by way of motion or petition or on summons for provisional sentence or judgments as to costs only, which by law are left to the D discretion of the Court. The appeal from any such orders or judgments... shall be made to the Provincial Division corresponding to the Court which before the establishment of the Union would have had jurisdiction in the matter. There shall be no further appeal against any judgment given on appeal by such Provincial Division except to the Appellate Division, and then only if the Appellate Division shall have given special leave to appeal.' E

(In my discussion of the relevant cases below I shall indicate when the relevant statutory backdrop changes.)

The word 'judgment' means 'order' in its context. See Administrator, Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) at 715A. In Dickinson and Another v Fisher's Executors 1914 AD 424, Innes ACJ (as F he then was) said the following at 427 in regard to the reasons for the Lawmaker having used both words:

'If it were necessary to distinguish between a judgment and an order, the difference would probably be found to be this, that the term judgment is used to describe a decision of a court of law upon relief G claimed in an action, while by an order is understood a similar decision upon relief claimed not by action but by motion, petition or other machinery recognised in practice.'

Counsel who appears for the applicants, in resisting the respondent's application for leave to appeal, contends that my referral to evidence amounts to no more than a ruling which, unlike a judgment or order, is not appealable. Counsel for the respondents contend for the converse.

H In Dickinson's case the applicants applied for an appeal record to be filed late. They had brought an application in the Court below to have an award made during arbitration proceedings an order of Court. The validity of the award had been in issue. The report at 426 - 7 reads as follows in regard to how the hearing had been conducted in the Court a quo:

I 'It was contended by the present applicants that in order to decide upon the validity of the award, the Court should have regard to all the evidence led at the arbitration. The respondents, on the other hand, maintained that only the award itself, and the deed of partnership annexed could be looked to. Upon this preliminary question of evidence, arguments were heard and the Court upheld the respondents' contention, and gave its reasons for so doing. The ordinary course should have been J for the arguments to have proceeded upon the basis indicated,

Goldstein J

A and for the Court to have dealt with the merits of the motion by either confirming or setting aside the award as the case might be. Instead of that the applicant at once applied for special leave to appeal upon the point decided, and the Court stayed its hand and granted the leave asked for. In so doing it purported to act under the provisions of Act 1 of 1911, s 3(b)....'

At 427 Innes ACJ posed the question as to whether the ruling on B evidence amounted to an order or not and he went on at 427 - 8 to say the following:

'But every decision or ruling of a Court during the progress of a suit does not amount to an order. That term implies that there must be a distinct application by one of the parties for definite relief. The relief prayed may be small, as in an application for a discovery order, C or it may be of great importance, but the Court must be duly asked to grant some definite and distinct relief, before its decision upon the matter can properly be called an order. A trial Court is sometimes called upon to decide questions which come up during the progress of a case, but in regard to which its decisions would clearly not be orders. A dispute may arise, for instance, as to the right to begin: the Court decides it, and the hearing proceeds. But that decision, though it may D be of considerable practical importance, is not an order from which an appeal could under any circumstance lie, apart from the final decision on the merits. So also in a case like the present. The parties differed as to what portion of the evidence (which was all in Court) could properly be referred to in support of the applicant's contention that the award was bad. The Court gave its ruling on the point. But that was not an order in the legal sense; it decided no definite application for E relief, for none had been made; it was a mere direction to the parties with regard to the lines upon which their contention upon the merits should proceed.'

In Union Government (Minister of the Interior) and Registrar of Asiatics v Naidoo 1916 AD 50 the principle in Dickinson's case was applied where disputed facts were referred to evidence. The circumstances of the case and the reasoning of the Appellate Division F appears from the following passage in the judgment of Innes CJ at 51 - 2:

'The facts are these: The respondent was arrested under a deportation warrant issued in terms of s 21 of the Immigrants' Regulation Act of 1913. He applied to a Judge in Chambers to set aside the warrant, to interdict his deportation and for other specified relief. His case was G that s 21, which was the sole basis of the warrant, did not apply to him, as he had been born in Natal, and the section in terms exempted from its own operation all persons born in any part of South Africa which now falls within the geographical limits of the Union. The present applicants contested that ground; they denied that the respondent had been born in Natal; and they contended that, in any event, the point had been decided by the immigration officer under his discretionary powers, H and that the Court could not interfere with his decision. The Judge expressed himself in favour of the view that the Court had authority to go into the question, but found himself unable to settle it upon the affidavits before him. He therefore directed that oral testimony should be adduced, and adjourned the inquiry for that purpose. And the applicants are desirous at this stage to prosecute an appeal. As a fact, no order of Court has been made out. Is there under these circumstances I any decree in existence against which we should be justified in granting leave to appeal? In Dickinson's case... a ruling upon evidence was held not to be an order against which leave to appeal could be granted, because it did not constitute a decision upon an application for specific relief. This is a converse case. There has been an application for relief, but no decision upon it. The prayer of the petition falls under nine separate heads, and in regard to none of them has any order J been made. The application had merely been

Goldstein J

A postponed for further evidence. When the enquiry is resumed the Judge may decide...