Zweni v Minister of Law and Order

• Jurisdiction: South Africa
• Judge: Hoexter JA, Hefer JA, FH Grosskopf JA, Nienaber JA and Harms AJA
• Judgment Date: 20 November 1992
• Citation: 1993 (1) SA 523 (A)
• Hearing Date: 05 November 1992
• Court: Appellate Division

C Harms, AJA.:

This is an application for leave to appeal from a decision of Goldstein J reported sub nom Zweni v Minister of Law and Order (1) 1991 (4) SA 166 (W). The learned Judge refused leave to appeal and that judgment is also reported: Zweni v Minister of Law and Order (2) 1991 (4) SA 183 (W). The petition for leave to appeal, addressed to the Chief D Justice, was, in terms of s 21(3)(c)(iii) of the Supreme Court Act 59 of 1959 ('the Act'), referred to this Court for argument and consideration. It was also ordered that argument on the merits of the proposed appeal be heard simultaneously.

The late Mr Zweni ('the plaintiff') instituted an action against the Minister of Law and Order for payment of damages arising from an alleged E assault perpetrated on him by a member of the police force. The action was defended and at close of pleadings the Minister's liability for damages and the nature and amount of damages allegedly suffered were in issue. The plaintiff, on notice of motion, thereupon applied, in terms of Rule 33(4), for the issues of liability and quantum to be separately heard. The F Minister agreed to the proposed procedure and Goldstein J made an order accordingly.

In the same notice of motion a further order was prayed for, namely that the Minister disclose to the plaintiff an item contained in the second part of the first schedule of his discovery affidavit, and to permit him G to inspect and make copies of it. What had happened was that the Minister had claimed that the contents of the police docket in a case laconically identified as 'John Vorster Square CR 138/6/89', were privileged on the ground that it contained 'witness statements' and notes obtained and made for the purpose of (presumably criminal) litigation 'and for reasons of public policy'. The plaintiff's contention in his founding affidavit was H that no privilege whatsoever attached to the police docket. In the Court a quo (and initially before this Court) it was contended that the privilege claimed had terminated because it can be assumed that criminal action was no longer contemplated since none had come to trial within the 20 months between the incident and the application. The submission in its final form was that the admitted privilege attaching to a police docket lapses either I at the conclusion of criminal proceedings or even earlier when it appears unlikely that criminal proceedings will materialise, unless the State can show that, on the facts of the particular case, public policy considerations require otherwise. The Court a quo dismissed this part of the application on the ground that police dockets are governed by the rule 'once privileged, always privileged'. It refused leave on the basis that, J in the

Harms AJA

A light of authorities binding on it, its decision did not amount to an appealable judgment or order. At the same time Goldstein J expressed his personal doubts about the correctness of those precedents.

The plaintiff has since passed away and the executor dative of his estate, Mr N M Barling, was substituted as plaintiff and, although it does not appear from the title of this case, he is now, in that capacity, the B petitioner and prospective appellant.

The jurisdictional requirements for a civil appeal emanating from a Provincial or Local Division sitting as a Court of first instance are twofold:

(1)

the decision appealed against must be a 'judgment or order' within the meaning of those words in the context of s 20(1) of the Act; and

(2)

C the necessary leave to appeal must have been granted, either by the Court of first instance, or, where leave was refused by it, by this Court. Leave is granted if there are reasonable prospects of success. So much is trite. But, if the judgment or order sought to be appealed against does not dispose of all the issues between the parties the D balance of convenience must, in addition, favour a piecemeal consideration of the case. In other words, the test is then

'whether the appeal - if leave were given - would lead to a just and reasonably prompt resolution of the real issue between the parties'

(per Colman J in Swartzberg v Barclays National Bank Ltd 1975 (3) SA 515 (W) at 518B). E

The issue whether a decision is an appealable 'judgment or order' is complicated by a number of factors and has been the subject of a large number of judgments over many years. In each instance the Court had to consider its appellate jurisdiction in the light of the then applicable enabling statute, but often general observations enunciated in other F contexts were grafted onto those provisions. See, for example, the comments of Watermeyer CJ in Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A) at 848. Furthermore, as Schreiner JA pointed out at 867,

'comment has overcome construction and today it is no longer possible to G interpret the present or any corresponding statutory provision by a straightforward application of the ordinary meaning of the words used'.

It should also be mentioned that the history of the matter has been subjected to a detailed analysis in a number of recent judgments, some of H which by this Court. While any comprehensive re-examination would serve little purpose, a proper perspective nevertheless requires a brief exposition and a critical review of some of the general propositions commonly (and sometimes loosely) advanced in the decided cases. I would summarise the matter as follows:

1.

For different reasons it was felt down the ages that decisions of a I 'preparatory or procedural character' ought not to be appealable (per Schreiner JA in the Pretoria Garrison Institutes case supra at 868). One is that, as a general rule, piecemeal consideration of cases is discouraged. The importance of this factor has somewhat diminished in recent times (SA Eagle Versekeringsmaatskappy Bpk v Harford 1992 (2) SA 786 (A) at 791B-D). The emphasis is now rather on whether an J appeal will necessarily lead to a more

Harms AJA

A expeditious and cost-effective final determination of the main dispute between the parties and, as such, will decisively contribute to its final solution (Priday t/a Pride Paving v Rubin...