Olley v Des Fountain

• Jurisdiction: South Africa
• Judge: De Wet CJ, Tindall JA and Centlivres JA
• Judgment Date: 20 November 1940
• Citation: 1941 AD 98
• Hearing Date: 20 November 1940
• Court: Appellate Division

De Wet, C.J.:

Applicant was sued by respondent in the magistrate's court at Salisbury for the sum of £20 being cash lent and advanced.

The magistrate gave judgment against the applicant for the sum claimed and costs. On appeal to the High Court of Southern Rhodesia this judgment was sustained. Applicant now in terms of sec. 2 (b) of the Rhodesia Appeals Act, 18 of 1931, applies for special leave to appeal to this Division. Applicant, who appears in person, has addressed considerable argument to us on the merits of the case. Though we have before us the judgment of the magistrate and of the learned Judge in the court below, we have not the full record of the evidence and I prefer not to say anything on the merits of the case except that the judgments of the magistrate and the learned Judge proceeded on the preponderance of probabilities. The only question to determine is whether leave to appeal should be granted.

The principles to be followed by this Court in granting leave to appeal in cases from a magistrate's court which had already been dealt with by a higher Court were discussed in the case of Haine v Podlashuc and Nichols (1933 AD 104). In a memorandum to that case issued by the then CHIEF JUSTICE, presumably with the concurrence of the other members of the Court, the principles to be followed in future cases were laid down and in the course of it he stated (at p. 112): -

"A larger experience on the part of this Court has shown that in granting leave the Court ought not to encourage appeals where the amount in dispute is trivial merely to settle some disputed point of law or matter important to the public or to a particular class, for it is most undesirable that such questions should be settled at the expense of one or other litigant. In granting leave the predominant consideration ought to be whether the matter is of substantial importance to one or both of the parties concerned. It is unfair and inadvisable to force a litigant who has obtained a decision of a superior Court in his favour to...