Heyman v Yorkshire Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Steyn CJ, Rumpff JA, Botha JA, Holmes JA and Williamson JA
• Judgment Date: 18 November 1963
• Hearing Date: 01 November 1963
• Court: Appellate Division

Steyn, C.J.:

In the Court below the respondent brought an action against D the appellant and two others for the recovery of an amount of R7,283 which it had allegedly paid to the Railway Administration under a contract described as a deed of suretyship. By the said deed the respondent had bound itself in the said amount for the due and faithful performance by one Dippenaar (the first defendant in the action) of all E the duties and obligations imposed upon him in terms of a building contract entered into between him and the Railway Administration. According to the declaration Dippenaar had defaulted in his obligations under the building contract and the respondent had been called upon to pay and had paid the said amount by way of damages sustained by the F Railway Administration as a result of the default. The respondent relied upon an undertaking by the appellant to indemnify the respondent against all loss, cost and expense which it might incur in terms of the deed of suretyship. By her plea the appellant put the respondent to the proof of the allegation that it had bound itself as alleged or signed the said deed. In the alternative she pleaded that the deed was of no G force or effect by reason of the provisions of the Insurance Act, 27 of 1943, in particular sec. 20 (2) (b) thereof. She further put the respondent to the proof of the building contract between Dippenaar and the Railway Administration, and in regard to the alleged default and its consequences, she pleaded as follows:

'The defendant has no knowledge of the allegations contained in para. 8 H of the plaintiffs declaration, and in particular does not know whether or not the first defendant defaulted in his obligations as alleged, whether the plaintiff was lawfully called upon to pay or paid the alleged amount, whether the South African Railways and Harbours suffered damages as alleged or were entitled to claim the alleged amount, or whether the plaintiff was obliged to pay the alleged sum in terms of the deed of suretyship or at all, but does not admit these allegations and puts the plaintiff to the proof thereof.'

Before the trial, the parties agreed that the issue raised by the alternative plea, that the deed of suretyship was of no force or effect, was to be determined as a separate issue, that the other matters in dispute

Steyn CJ

were not to be tried until judgment had been delivered on that issue, and that, if the judgment went against the appellant, she would have the right to take it on appeal. The appellant, moreover, reserved the right, A in the event of a judgment in favour of the respondents, to persist in her defence on the remaining issues joined between the parties and to have the matter reinstated on the roll for the trial of those issues. At the trial evidence was led on the issue of the invalidity of the deed of suretyship and the parties closed their cases on that issue. The trial B Judge dealt with it as a separate issue and decided it in favour of the respondent. The appeal is against that decision.

When the appeal was called, counsel on both sides, in pursuance of a prior intimation that the Court would desire to hear argument on the question whether or not the matter was appealable, argued that this Court has jurisdiction to hear the appeal. The appeal was struck off the C roll and by consent no order was made as to costs. I proceed to state the reasons.

The right of appeal to this Court in a civil matter is governed by secs. 20 and 21 of the Supreme Court Act, 59 of 1959. Sec. 20 confers that right in respect of 'a judgment or order given or made' by a Court of a D Provincial or Local...