Pretoria Garrison Institutes v Danish Variety Products (Pty), Limited

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Centlivres JA, Greenberg JA and Schreiner JA
• Judgment Date: 11 December 1947
• Citation: 1948 (1) SA 839 (A)
• Hearing Date: 26 September 1947
• Court: Appellate Division

Watermeyer, C.J.:

The appellant sued the respondent in the magistrate's court of Johannesburg for the sum of £62 7s. 6d., being the value of a number of tins of a substance called 'Pollocks Mayonnaise.'

The allegations made in the summons to support the claim were that 'Pollocks Mayonnaise' was a product normally sold by the respondent, that appellant had been in possession of a quantity of it which was found to be unfit for human consumption, that appellant had handed it over to respondent who accepted it and promised to pay its value, viz., £62 7s. 6d., alternatively the respondent had issued a credit note for the amount of £62 7s. 6d. to appellant, subject to the condition that appellant would buy from the respondent other goods for the purpose of its business, or alternatively goods of a like description to mayonnaise for the sum of £62 7s. 6d., that respondent was not able to supply such goods and consequently was liable to pay the sum of £62 7s. 6d. The respondent applied to appellant, under Rule 18 (1) of the Magistrates' Courts Act (No. 32 of 1944), for certain information to enable it to plead. Among other matters it asked for:

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(a)

the exact dates prior to May, 1945, on which appellant was in possession of the mayonnaise;

(b)

how the appellant came into possession of the mayonnaise;

(c)

complete details of why the mayonnaise was unfit for human consumption.

The appellant gave some of the information asked for but refused to answer questions (a) and (b) on the ground that the information was not material to enable respondent to plead and (c) on the ground that it was a matter for evidence. Respondent thereupon applied to the magistrate for an order compelling appellant to answer the questions and the magistrate ordered appellant to answer questions (a) and (b) on the ground that the respondent might wish to plead prescription, or that the mayonnaise might have been guaranteed only for a certain period, or that appellant might have received the mayonnaise as a gift from a third party. He also ordered the appellant to pay the costs of the application.

From that decision an appeal was taken to the Transvaal Provincial Division but that Court held that the order directing appellant to give particulars was not appealable, and that though the order for costs was appealable the appeal against it would be dismissed.

Against those decisions the present appeal has been brought.

Since the two questions which arose, viz., whether such an order is appealable and, if it is not, what principles must be applied in deciding the appeal as to costs have been the subject of several decisions and dicta in the Courts of the Union and since those decisions and dicta are in some respects irreconcilable with one another and consequently a lamentable amount of uncertainty exists on these subjects I propose to examine these questions, at first without reference to the authority of decided cases, and afterwards to examine the cases and, so far as necessary, the common law. In order to do so it is necessary to appreciate the two problems which the case presents.

As to the first we are not concerned with general questions such as whether interlocutory orders are appealable under Roman-Dutch law or questions as to the meaning of the words 'interlocutory order', when used in statutes or rules of Court limiting the right of appeal with regard to such interlocutory orders. We are primarily concerned with the construction of the words of sec. 83 of Act 32 of 1944 which provides as follows:

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'Subject to the provisions of section 82, a party to any civil suit or proceeding in a court may appeal to the Provincial Division of the Supreme Court having local jurisdiction or within those districts of the Province of the Cape of Good Hope for which the Griqualand West Local Division is established, to that Division also, against -

(a)

any judgment of the nature described in section 48;

(b)

any rule or order made in such suit or proceeding and having the effect of a final judgment, including any order under Chapter IX and any order as to costs;

(c)

any decision overruling any exception, when the parties concerned consent to such an appeal before proceeding further in an action or when it is appealed from in conjunction with the principal case, or when it includes an order as to costs.'

The judgments referred to in head (a) as those described in sec. 48 are final judgments in trial actions, including absolution from the instance and orders as to the costs of such actions and orders suspending execution of such final judgments.

The rules and orders referred to in head (b) are any other rules or orders made in any civil suit or proceeding. The distinction drawn between judgments on the one hand and rules or orders on the other is a very old one in Superior Courts in South Africa. It comes from English law (see the case of Onslow v Inland Revenue Commissioners (25 Q.B.D. 465) and several cases mentioned in Stroud's Judicial Dictionary s.v. Final Judgment, Final Order). It made its first appearance in our legislation in the Cape Charter of Justice sec. 50.

The word 'rule' was the English technical legal term for an order made on motion in the King's Bench Division of the High Court (see Sweet's Law Dictionary s.v. rule). In our practice it is synonymous with order. The question therefore for determination in this case is whether the order made by the magistrate was an order which had the effect of a final judgment.

Now what is meant by the words 'the effect of a final judgment'? Putting the same problem in other words what is a final judgment and what is its effect?

Clearly the words final judgment are not used in the sense of an unappealable judgment but in the sense of the last or ultimate judgment, i.e. the decision which has the quality of conclusiveness or finality upon the points decided in the Court pronouncing the judgment. The characteristic quality of a final judgment is its conclusiveness or definitiveness so far as the Court pronouncing it is concerned. By that I mean that the Court pronounces its

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ultimate decision upon the point decided by the judgment and that the same point will not in the course of the case again be open for consideration. Its effect is to determine the rights of the parties as regards the point dealt with and in the absence of an appeal the decision becomes res judicata between the parties and they are then entitled to adopt whatever procedure the law lays down for the purpose of enforcing those rights. The expression 'a rule or order having the effect of a final judgment' is somewhat elliptical, but in my opinion it means a rule or order which has a similar effect upon the legal rights of the parties affected by such rule or order as a final judgment would have upon the rights of the parties affected by such final judgment.

This interpretation of sec. 83 (b) is, I think, supported by the provisions of sec. 36 (d) which gives a magistrate's court power to rescind or vary any judgment in respect of which no appeal lies. This section is complementary to sec. 83 and the result of the two together seems to be that every judgment (which in civil cases means every decree, rule or order, see sec. 1 of the Act) is either appealable to a higher Court or variable or revocable by the Court granting it. There can therefore be no order made by a magistrate's court which is unassailable either by way of an appeal or by way of an application to rescind or vary. I have avoided the use of the word interlocutory because it is not used in the legislative provision to be construed and it is a word of uncertain signification which has been used in several varying senses in other legislative enactments and in judgments in South Africa and the meaning of the equivalent expression in Roman law and in Roman-Dutch law has also varied from time to time. It should however be observed that orders made by a magistrate may relate to matters of procedure or they may relate to what I may call the substantive rights of parties as distinguished from the procedural rights. It would not have been surprising if a distinction had been drawn, so far as the right of appeal is concerned, between orders relating to substantive rights and orders relating to procedural rights, but no such distinction appears to have been made in the Act.

If I now apply what I have said to the present case, it would appear that if the magistrate's order compelling the plaintiff to furnish the particulars demanded was one which was intended to be final and would not in the ordinary course come up again for

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reconsideration in the further proceedings in the case then it had the effect of a final judgment.

I shall now proceed to consider whether that view is supported by or is at variance with any authority which is binding on this Court. A very cursory glance at the decisions of South African Courts on the subject of the appealability of orders, other than final judgments, will reveal a great diversity of views and an irreconcilable conflict of decisions. It becomes therefore necessary to examine some of the more important decisions to see how far they affect the views which I have expressed. The Transvaal Provincial Division in arriving at the conclusion that the order was not appealable followed certain previous decisions which it regarded as decisive of the point in that Division. The principal decisions upon which reliance was placed were Erasmus v Daly & Co. (1912 TPD 465), Lombard v Lombardy Hotel Co. (1911 TPD 866), Ranchod v Lalloo (1942 TPD 211). Before I deal with those cases I wish to make two general observations. The first is that in several cases Courts seem to have given little weight to the specific provisions of the relevant statutes conferring a right of appeal and seem to have been content to apply certain...