Steytler NO v Fitzgerald

• Jurisdiction: South Africa
• Judge: Coram Lord De Villiers CJ, Innes J, Laurence J (Acting Ordinary Judge of Appeal), CG Maasdorp JP and J De Villiers JP
• Judgment Date: 13 June 1911
• Hearing Date: 06 June 1911
• Court: Appellate Division

Lord De Villiers, C. J.:

This appeal arises out of an action instituted in the Eastern Districts Court by two brothers Fitzgerald against one Green for (1) an order declaring that the bequest made by the defendant's mother in favour of her illegitimate son, the defendant, of the residue of her estate is null and void, and that the said residue is distributable among her legitimate heirs including the plaintiffs; (2) an order declaring that a certain bond for £12,350 in the hands of the defendant made in favour of the defendant's mother by one John Green and not accounted for to the executor belonged to the estate of the testatrix, and (3) an order compelling the defendant to render a full account of the assets of the testatrix which had come into his hands. As an alternative claim the plaintiffs alleged that after the death of the testatrix the defendant undertook to divide her estate equally between all her children including the plaintiffs and the defendant, and the claim was for an order compelling him to carry out this undertaking. The defendant filed a plea in abatement praying that the action might

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be stayed with costs on the ground that the plaintiffs were not entitled to maintain the action by reason that the executor testamentary was not joined as a party to the suit either as plaintiff or defendant. The Court, by its judgment, upheld this plea. In December 1910 the Court, on the application of the plaintiffs, granted them leave to join, and sue Steytler, the executor, who resides in Cape Town, as a co-defendant and made an order attaching the bond for the purpose of founding jurisdiction. Thereafter, the declaration war, amended so as to make Steytler a codefendant, and, as against him the Court was asked to grant an order compelling him to render a final liquidation account and to pay to the plaintiffs the amounts found due upon such account as heirs ab intestato of the testatrix. He excepted to the jurisdiction in the following terms: "For a plea to the jurisdiction and without pleading on the merits, he says that: (1) He is domiciled and resides in Cape Town beyond the jurisdiction of the Eastern Districts Local Division of the Supreme Court of South Africa, (2) He is in no way subject herein to the jurisdiction of, the said Division nor is it competent for the said division to acquire any such jurisdiction by attachment without his consent, (3) He has entered appearance to this action under protest and for the purpose of denying such jurisdiction. Wherefore, he prays that the declaration be quashed in so far as he is concerned with costs." The Court disallowed the exception, and, thereafter, refused to grant leave to the executor to appeal, holding, as it did, that the order on the exception was an interlocutory one, and that the circumstances of the case were not such as to justify the Court in granting leave. It appears, however, that besides applying for leave to appeal, the executor gave due notice of appeal from the decision over-ruling the exception to the jurisdiction, and from the decision refusing to grant him leave to appeal. It is clear that if the decision on the exception was correct, this Court should not interfere with the further decision not to grant leave to appeal, that being a matter left to the discretion of the Court of the first instance under Union Act No. 1 of 1911, as well

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as under section 27 of the Cape Act 35 of 1896. It, therefore, now becomes the duty of this Court to decide whether an appeal lies notwithstanding the refusal of the Court to grant leave to appeal, and, in case that question is answered in the affirmative, whether the exception to the jurisdiction was rightly over-ruled.

As to the first question, distinctions were drawn in the Dutch practice between interlocutory orders which could and those which could not be appealed against. According to some authorities the test as to the right of appeal is, whether the order has or has not the effect of a definitive sentence, and according to others the test is, whether the order is reparable definitely, that is to say, whether the order, if wrong, can be set right by the Court making it, by, its final sentence. Whichever test was applied the authorities with few exceptions, concurred in holding, that the decision of a Court on an exception to its own jurisdiction could be appealed against. In such a case the consent of the Court of first instance was not necessary, but under the third section, sub-section (b), of the Union Act No. I of 1911, and the 27th section of Act 35, of 1896, no interlocutory order is subject to appeal save by leave of the Court or Judge making the order. The object of this enactment appears to me to have been to enable the Court to grant leave to appeal in cases which, in its opinion are of sufficient importance to justify an appeal, although, under the Dutch practice, no appeal would have lain. In the case of Bell v Bell (1908 T.S., p. 887), the Transvaal Supreme Court held, that a purely interlocutory order, that is, one not having the effect of a final decree, may, at any time before final judgment in the suit be varied or set aside by the Judge who made it, or by any other judge sitting in the same Court and exercising the same jurisdiction. In the course of his judgment INNES, C. J. said: - "Neither our Statute Law nor our Rules of Court draw any distinction between the two classes of interlocutory orders. They treat all judgments, decrees or orders as being either interlocutory or final. And it will be convenient in future to follow the same lines and to hold, that the interlocutory orders of our Rules correspond with the simple interlocutory

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orders of the books; while what Dutch lawyers would have styled interlocutory orders having the force of definitive decrees are to be classed with all other definite decisions as final judgments. In that way we shall give full effect to our own terminology, while, at the same time, preserving the principles and spirit of the Roman Dutch procedure." I quite concur in this view, but the difficulty will still remain in each case to say whether a particular order is purely interlocutory or whether it has the force of a definite decree. The difficulty is not wholly removed by holding that only such interlocutory orders as could be appealed against under the Dutch practice have the force of a definitive sentence, because the question would then still remain as to what orders under the Dutch practice were subject to appeal. The test would be simplified and would not be less sound if put in this way: Whether on the particular point in respect of which the order is made the final word has been spoken in the suit, or whether in the ordinary course of the same suit, the final word has still to be spoken. Take the case of a judgment of absolution from the instance. It is classed by Voet (42, 1, 5), among interlocutory sentences, but it has the force of a definitive sentence inasmuch as by our practice the particular suit in which it has been pronounced is ended, and a fresh suit is necessary to enable the plaintiff again to proceed against the same defendant. It has accordingly been frequently held in our Courts that a judgment of absolution from the instance ]nay be appealed against, and such appeals have been brought from the Cape Supreme Court to the Privy Council. It would be different, however, where a Court refuses to grant absolution from the instance on the application of the defendant. Such a refusal is purely interlocutory and has not the effect of a definitive sentence, inasmuch as the final word in that suit has still to be spoken. The Court, having decided that the suit should take its ordinary course and not be put an end to by absolution the questions at issue remain open until final judgment. It was upon analogous principles that the case of Henderson v Hanekom (20 S.C., 586), was decided. The Cape Supreme Court there held that its

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decision over-ruling an exception to a declaration as disclosing no cause of action had not the effect of a definitive sentence. It was admitted in the judgment that if the Court had sustained the exception, the result might have been different, inasmuch as a decision that the declaration discloses no cause of action would practically put an end to that particular suit. But a decision that the declaration does disclose a cause of action still leaves the question at issue to be decided in the ordinary course of that suit. In the present case the substantial question, quite apart from the merits, to be decided on the exception was, whether or not the Eastern Districts Court had jurisdiction to try the case. Whichever way the decision was given it spoke the final, word upon the issue of jurisdiction. If the Court had decided that it had no jurisdiction the plaintiff's suit as against the executor would have come to an end. The Court, however, decided that it had jurisdiction, with the result that whatever the final decision might be, the executor was made amenable against his will to a jurisdiction other than that of his own dwelling-place. Such an order, in my opinion, has also the effect of a definitive sentence. The learned Judge-President himself, cited Damhouder and other authorities in support of the view that such an interlocutory order partakes of the nature of a definitive sentence, but he held that the enactment which makes appeals against interlocutory orders subject to the leave of the Court or Judge granting them, refers to all interlocutory orders, whether simple or having the effect of a definitive sentence. For the reasons already given, I cannot agree with this view, inasmuch as it curtails the common law right of appeal to an extent which could never have been contemplated by the Legislature. I need only add that in the case of Palmer v...