Maize Board v Tiger Oats Ltd and Others

• Jurisdiction: South Africa

Maize Board v Tiger Oats Ltd and Others
2002 (5) SA 365 (SCA)

2002 (5) SA p365

Citation	2002 (5) SA 365 (SCA)
Case No	151/2001
Court	Supreme Court of Appeal
Judge	Smalberger Adp, Marais JA, Streicher JA, Cameron JA and Lewis AJA
Heard	May 20, 2002
Judgment	May 31, 2002
Counsel	D A Gordon SC (with S Joubert) for the appellant.; A Subel SC (with M T Glaeser) for the respondents.

Flynote : Sleutelwoorde B

Appeal — In what cases — Order dismissing exception to special plea of prescription — Except in cases of exception to jurisdiction of Court, dismissed exception not appealable.

Headnote : Kopnota

The appellant had sued the respondents in the Court a quo for payment of certain levies imposed in terms of a subsequently repealed Act and schemes provided for in terms of that C Act.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 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 D the exception. An application for condonation of the late filing of an application for leave to appeal was subsequently dismissed by the Court a quo on the ground that the dismissal of the exception was not appealable. The appellant appealed against the dismissal of the application for condonation.

The appellant submitted that the present case was one which was in form E presented as an exception but in substance was a stated case. This was the case, it was argued, as the issue to be decided was a point of law and no relevant evidence could be led in respect thereof. The respondents, however, had not agreed that the matter be dealt with as if it was a stated case. The respondents contended in the Court a quo and on appeal that evidence was required to decide whether the levies in question constituted a tax or not and stated that F they intended adducing such evidence at the trial of the matter.

Held, that s 20(1) of the Supreme Court Act 59 of 1959 had provided for an appeal, in certain civil cases, against the 'judgment or order' of the Court of a Provincial or Local Division. Section 20(2) provided that no interlocutory order would be subject to appeal save with the leave of the Court by which the judgment was given or the G order made, and that this provision would apply in connection with appeals under s 20(1). After s 20 was amended by the Appeals Amendment Act 105 of 1982, it 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 against whose judgment or order the appeal was or, depending on the H circumstances, the leave of the Appellate Division. The section no longer contained any reference to interlocutory orders.(Paragraphs [2] and [3] at 369E/F - H/I.)

Held, further, that, generally speaking, a non-appealable decision was one which was not final, because the Court of first instance was entitled to alter it, nor definitive of the rights of the parties nor had the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. This principle I was not, however, exhaustive nor cast in stone. (Paragraphs [4] and [7] at 369H/I - I/J and 371A/B.)

Held, further, that the mere fact that the issue to be decided in an exception was purely a matter of law did not convert an exception into a stated case. When it had to be decided whether a declaration or particulars of claim disclosed J

2002 (5) SA p366

a cause of action or whether a plea disclosed a defence, the issue often was whether in law A that was the case. A decision on that point of law was not final. The point could be re-argued at the trial in the event of the exception being dismissed. The position would have been different if the Court a quo had, at the request of the parties or of its own accord, made an order in terms of Rule 33(4) of the Uniform Rules of Court directing that the issue raised by the exception be finally disposed of. (Paragraph [12] at 373B - D.) B

Held, further, that it had to be accepted that a dismissal of an exception, save an exception to the jurisdiction of the Court, presented and argued as nothing other than an exception, did not finally dispose of the issue raised by the exception and was not appealable. The Court a quo had accordingly correctly dismissed the application for condonation. (Paragraphs [14] and [15] at 373I - I/J and 374B/C.) C

The decision in the Transvaal Provincial Division in Maize Board v Tiger Oats Ltd and Others confirmed.

Cases Considered

Annotations

Reported cases

Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A): referred to D

Blaauwbosch Diamonds Ltd v Union Government (Minister of Finance) 1915 AD 599: dictum at 601 applied

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): referred to E

Cronshaw and Another v Coin Security Group (Pty) Ltd 1996 (3) SA 686 (A): dictum at 690E - G applied

Du Toit v Ackerman 1962 (2) SA 581 (A): dictum at 587D - E applied

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

Jones v Krok 1995 (1) SA 677 (A): referred to

Kett v Afro Adventures (Pty) Ltd and Another 1997 (1) SA 62 (A): dictum at 65H applied

Knox D'Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A): referred to G

Makhothi v Minister of Police 1981 (1) SA 69 (A): distinguished

Minister of Safety and Security and Another v Hamilton 2001 (3) SA 50 (SCA): considered

Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A): dicta at 10D and F applied

Shepstone & Wylie and Others v Geyser NO 1998 (3) SA 1036 (SCA): referred to H

South African Chemical Workers' Union and Another v African Commerce Developing Co (Pty) Ltd t/a Buffalo Tapes 2000 (3) SA 732 (SCA): referred to

Steytler NO v Fitzgerald 1911 AD 295: discussed

Trakman NO v Livshitz and Others 1995 (1) SA 282 (A): referred to

Trope and Others v South African Reserve Bank 1993 (3) SA 264 (A): dictum at 269F applied I

Wellington Court Shareblock v Johannesburg City Council; Agar Properties (Pty) Ltd v Johannesburg City Council 1995 (3) SA 827 (A): dictum at 835D applied

Zweni v Minister of Law and Order 1993 (1) SA 523 (A): dictum at 536B - D applied. J

2002 (5) SA p367

Statutes Considered

Statutes

The Appeals Amendment Act 105 of 1982: see Juta's Statutes of South Africa 2001 vol 1 at 1-107 A

The Supreme Court Act 59 of 1959, s 20: see The Supreme Court Act 59 of 1959 and the Magistrates' Courts Act 32 of 1944 Juta (2001) Part A at 8-9.

Rules Considered

Rules of Court B

The Uniform Rules of Court, Rule 33(4): see The Supreme Court Act 59 of 1959 and the Magistrates' Courts Act 32 of 1944 Juta (2001) Part A at 48.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Spoel- stra J). The facts appear from the judgment of Streicher JA.

D A Gordon SC (with S Joubert) for the appellant. C

A Subel SC (with M T Glaeser) for the respondents.

In addition to the authorities referred to in the judgment of the Court, counsel for the parties referred to the following:

Agar Properties (Pty) Ltd v Johannesburg City Council 1995 (3) SA 827 (A) D

Alberts v Roodepoort-Maraisburg Municipality 1921 TPD 133 at 136

Alpha Bank Bpk v Registrateur van Banke en Andere 1996 (1) SA 330 (A) at 339C - D

Amalgamated Footwear and Leather Industries v Jordan and Co Ltd 1948 (2) SA 891 (C) E

Auby and Pastellides (Pty) Ltd v Glen Anil Investments (Pty) Ltd 1960 (4) SA 865 (A) at 869H - 870A

Beinash v Wixley 1997 (3) SA 721 (SCA) at 730C

Beira v Raphaely-Weiner and Others 1997 (4) SA 332 (SCA) at 337D - E

Bernstein v Bester and Others NNO 1996 (2) SA 621 (CC) at paras [59], [60] F

Birch v Klein-Karoo Agricultural Co-operative Ltd 1993 (3) SA 403 (A) at 411E - H

Cairns' Executors v Gaarn 1912 AD 181 at 186

Callender-Easby v Grahamstown Municipality 1981 (2) SA 810 (C)

Carlson Investments Share Block v Commissioner, South African Revenue Service 2001 (3) SA 210 (W) at 231A - C G

City Treasurer and Rates Collector, Newcastle Town Council v Shaikjee and Others 1983 (1) SA 506 (N) at 507D - F

Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (A) at 42H

Cowbell AG v ICS Holdings Ltd 2001 (3) SA 941 (SCA) at 946E - F H

Darries v Sheriff, Magistrate's Court, Wynberg and Another 1998 (3) SA 34 (SCA) at 40I

Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A)

Dickinson and Another v Fisher's Executors 1914 AD 424 at 427

Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (2) 1988 (2) SA 360 (W) at 364F - G I

Federated Employers Fire & General Insurance Co Ltd and Another v McKenzie 1969 (3) SA 360 (A) at 362F - H

Fedsure v Greater Johannesburg Metropolitan Council 1999 (1) SA 374 (CC) at paras [44], [45], [56] - [58]

Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281C - 282A J

2002 (5) SA p368

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) A

Hudson v Hudson 1927 AD 259 at 269

Kethel v Kethel's Estate 1949 (3) SA 598 (A) at 605

Kotsopoulos v Bilardi 1970 (2) SA 391 (C)

Kruger v Heiman & Sacks Ltd and Another 1963 (3) SA 372 (T) at 374H - 375A B

Labuschagne v Labuschagne; Labuschagne v Minister van Justisie 1967 (2) SA 575 (A)

Leake v Commissioner of Taxation (State) (1934) 36 WALR 66 at 67

Lewis v Oneanate (Pty) Ltd and Another 1992 (4) SA 811 (A)

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