Sam Lewis & Son v Stone

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
• Judgment Date: 06 October 1942
• Citation: 1943 AD 1
• Hearing Date: 06 October 1942
• Court: Appellate Division

De Wet, C.J.:

This is an application for special leave to appeal to this Division in terms of sec. 2 (b) of the Rhodesian Appeals Act, No. 18 of 1931. The respondent was employed by the defendants on a monthly basis and he was dismissed on the 18th November, 1941. On the 25th November he issued summons claiming damages

De Wet, C.J.

for wrongful dismissal, namely £25 salary for the month of November and £25 in lieu of notice for the month of December. The respondent succeeded in getting new employment at the rate of £35 per month as from the 15th December and at the trial he reduced his claim by £12 10s. The magistrate held that the dismissal was not warranted and gave judgment in favour of the plaintiff for £37 10s. The defendants appealed to the High Court contending that, as plaintiff had actually earned £17 10s for the latter half of December he should have been awarded only £32 10s. They also appealed on the question of the wrongful dismissal, but on both these points the appeal was dismissed. They now apply for leave to appeal to this Court on the question of damages only.

It will he seen that the amount in dispute is the sum of £5. The defendants state that the question of law involved is one of great importance to practitioners and of vital importance to the commercial community.

Now the principles to be followed by the Court in granting leave to appeal in civil cases were set out in a memorandum by the then CHIEF JUSTICE in the case of Haine v Podlashuc and Nicolson (1933 AD 104). I need not quote this memorandum. It was quoted in two recent cases of Delport v Clarence (1940 AD 34) and Olley v Des Fountain (1941 AD 98). In these cases this Court adopted the principles laid down in that memorandum and these principles have also been followed in previous cases. The present case is only distinguishable from Olley's case in the fact that it raises an interesting point of law while in Olley's case the issue was entirely one of fact. As against that the amount in dispute in that case was £20 while in the present case it is £5. But the memorandum specially dealt with the case of a question of law being involved. The learned Judge...