Minister of Safety and Security and Another v Hamilton

• Jurisdiction: South Africa

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

2001 (3) SA p50

Citation	2001 (3) SA 50 (SCA)
Case No	6/99 and 95/99
Court	Supreme Court of Appeal
Judge	Smalberger ADCJ, Nienaber JA, Marais JA, Cameron JA and Navsa JA
Heard	February 20, 2001
Judgment	March 19, 2001
Counsel	J A le Roux SC (with him R T Williams) for the first appellant.; L A Rose Innes SC for the second appellant.; J R Whitehead for the respondent.

Flynote : Sleutelwoorde B

Appeal — In what cases — Order dismissing exception to pleading on ground that it was inappropriate to decide issues on exception — Court's ruling deferring very determination excipients sought to obtain — Therefore no 'judgment or order' to appeal against — Order not appealable. C

Headnote : Kopnota

The respondent, as plaintiff, had instituted an action for damages in a Provincial Division against the appellants, as defendants. The appellants had excepted to the respondent's particulars of claim as amended. The Court dismissed the exceptions on the ground that it was inappropriate to decide the issues raised by the exceptions by way of D exception; that without hearing all the evidence in the matter it would be inappropriate for the Court to determine whether the legal duty on which the respondent relied existed or not. The Provincial Division, however, granted leave to appeal against the dismissal of the exceptions. When the appeal was called, the Court raised the question whether the order was appealable.

Held (per Cameron JA, Marais JA and Navsa JA concurring), that the decision of the Court a quo that the E matter had to go to trial precluded it from deciding the issue that the appellants wished to bring on appeal, namely the merits of the exception's challenge to the legal foundation of the claim. The Court's ruling deferred the very determination the excipients sought to obtain, with the result that there was no 'judgment or order' to appeal against. (Paragraph [9] of Cameron JA's judgment at 53H - I.)

Held, further, that the Court a quo had refrained F from considering and deciding the questions relevant to the exception, including the legal sufficiency of the claim and the order in the form it had been given was therefore not appealable. (Paragraph [10] of Cameron JA's judgment at 53J - 54A/B.) Appeal struck from the roll. (Nienaber JA, Smalberger ADCJ concurring, in a separate judgment, concurred in the order of the majority.) G

Cases Considered

Annotations

Reported cases

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

Bloemfontein Town Council v Richter 1938 AD 195: dictum at 231 - 2 applied H

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

Ellispark Stadion Bpk v Minister van Justisie 1990 (1) SA 1038 (A): dictum at 1051G - H applied

Guardian National Insurance Co Ltd v Searle NO 1999 (3) SA 296 (SCA): dictum at 301B - D applied I

Henderson and Another v Hanekom (1903) 20 SC 586: referred to

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

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

Minister of Law and Order v Kadir 1995 (1) SA 303 (A): referred to

Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A): referred to J

2001 (3) SA p51

Proud Investments (Pty) Ltd v Lanchem International (Pty) Ltd 1991 (3) SA 738 (A): referred to A

Robin Consolidated Industries Ltd v Commissioner for Inland Revenue 1997 (3) SA 654 (SCA): dictum at 666F - I applied

Salzmann v Holmes 1914 AD 152: referred to

Sandton Town Council v Erf 89 Sandown Extension 2 (Pty) Ltd 1988 (3) SA 122 (A): referred to B

Steytler NO v Fitzgerald 1911 AD 295: referred to

Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A): referred to

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

Case Information

Appeal from a decision in the Cape Provincial Division dismissing an exception (Hlophe J). The facts appear from the C judgments of Cameron JA and Nienaber JA.

J A le Roux SC (with him R T Williams) for the first appellant.

L A Rose Innes SC for the second appellant.

J R Whitehead for the respondent. D

In addition to the authorities cited in the judgments of the Court, counsel referred to the following:

Beinash v Wixley 1997 (3) SA 721 (SCA) at 730B - E

Marsay v Dilley 1992 (3) SA 944 (A) at 962C - F

Shacklock v Shacklock 1949 (1) SA 91 (A) at 97 - 8 E

Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532J.

Cur adv vult.

Postea (March 19).

Judgment

Cameron JA: F

[1] This case raises, again, the regrettably recurrent issue whether the dismissal of an exception is appealable. The respondent (to whom I refer as 'the plaintiff') has sued the two appellants ('the defendants') for damages arising from a shooting incident that rendered him a tetraplegic. His particulars of claim allege that police G officials in the first defendant's employ, in breach of a duty owed the public including himself, acted negligently in granting his assailant a licence for the firearm she later used to shoot and injure him. He alleges that the second defendant, a clinical psychologist treating his assailant, in similar breach negligently failed to refer H her for psychiatric treatment and possible committal to an institution. He asserts that he has suffered damage in consequence of the defendants' conduct.

[2] To these averments, which the plaintiff amended and sought leave to amend yet further, the defendants each excepted. Hlophe J heard the I exceptions and the plaintiff's application to amend. He granted the latter. The former he dismissed on the ground that it was inappropriate to decide the issues by way of exception. However - despite the plaintiff's opposition on the ground that the order was not susceptible to appeal - Hlophe ADJP granted both defendants leave to appeal to this Court. I return later to the propriety of his order in doing so. J

2001 (3) SA p52

Cameron JA

[3] When the appeal was called, this Court raised the question whether the order in the form that Hlophe J granted it was appealable A and reserved judgment on the matter.

[4] This Court's jurisdiction to hear appeals is not untrammelled and the question which judgments, orders and rulings are appealable to it has presented persisting complexity. The Court's powers in this B regard are sourced in statute, read now in the light of applicable provisions of the Constitution. Though s 168(3) of the Constitution provides without qualification that this Court may decide 'appeals in any matter', this must obviously be read in the light of the Supreme Court...