Zweni v Minister of Law and Order

• Jurisdiction: South Africa

Zweni v Minister of Law and Order
1993 (1) SA 523 (A)

1993 (1) SA p523

Citation	1993 (1) SA 523 (A)
Court	Appellate Division
Judge	Hoexter JA, Hefer JA, FH Grosskopf JA, Nienaber JA and Harms AJA
Heard	November 5, 1992
Judgment	November 20, 1992

Flynote : Sleutelwoorde

Appeal — In what cases — Non-appealable decision (ruling) one which is not final, nor definitive of rights of parties nor has effect of disposing of at least a substantial portion of relief claimed in main proceedings — Such decision not a 'judgment or order' as intended in s 20(1) of Supreme Court Act 59 of 1959. C

Appeal — In what cases — Interlocutory order — Order refusing to compel disclosure of police docket — Such decision one which was not final, nor definitive of rights of parties nor having effect of disposing of at least a substantial portion of relief claimed in main proceedings — Thus not a D 'judgment or order' as intended in s 20(1) of Supreme Court Act 59 of 1959 and accordingly not appealable.

Headnote : Kopnota

Generally speaking, a non-appealable decision (ruling) is a decision which is not final (because the Court of first instance is entitled to alter it), nor definitive of the rights of the parties nor has the effect of E disposing of at least a substantial portion of the relief claimed in the main proceedings. Such a decision is accordingly not a 'judgment or order' as intended in s 20(1) of the Supreme Court Act 59 of 1959.

The Court accordingly held that the refusal of an application for an order compelling the respondent to disclose the contents of a police docket for the purposes of the applicant's action for damages against the respondent arising out of an alleged assault upon him by a member of the police force was an order which was characterised by all three of the negative integers F set out in the preceding paragraph and was therefore not a 'judgment or order' as intended in s 20(1) of Act 59 of 1959. The refusal of the application was accordingly not appealable and the applicant's application for leave to appeal against such refusal was dismissed.

The order in the Witwatersrand Local Division in Zweni v Minister of Law and Order (1) 1991 (4) SA 166 not appealable.

The order in the Witwatersrand Local Division in Zweni v Minister of Law and Order (2) 1991 (4) SA 183 confirmed. G

Case Information

Application for leave to appeal against a decision in the Witwatersrand Local Division (Goldstein J), reported at 1991 (4) SA 166, and in respect of which leave to appeal was refused by the Witwatersrand Local Division (Goldstein J), also reported at 1991 (4) SA 183. The facts appear from the H judgment of Harms AJA.

A Chaskalson SC (with him A P Bruwer) for the appellant: Section 20 of the Supreme Court Act 59 of 1959, introduced by the Appeals Amendment Act 105 of 1982, empowers the Appellate Division to hear appeals against judgments or orders of a Provincial or Local Division. The distinction which previously existed between interlocutory orders and other orders was I removed by the amendment and all judgments and orders were made appealable only with the leave of the Court against whose judgment or order the appeal is to be made, or with the leave of the Appellate Division. There are special provisions dealing with appeals from a Full Court which are not relevant to this appeal. The distinction between judgments and orders, J on the one hand, and rulings, on the other hand,

1993 (1) SA p524

A was not affected by the amendment. Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Division 1987 (4) SA 569 (A) at 580E. In the present case the appellant sought definite and distinct relief in the Witwatersrand Local Division in proceedings which were commenced by notice of motion. An order of Court was made consequent upon the application. The B issue which now exists concerns that part of the appellant's claim in which an order for discovery against the respondent was sought. The Court a quo ordered that the claim be dismissed. The appeal which the appellant wishes to pursue is in substance and in form an appeal against an order of Court. Dickinson and Another v Fisher's Executors 1914 AD 424 at 427-8; Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (A) at 43A-G. Prima C facie the order made by the Court a quo falls within the language of s 20(1) of the Supreme Court Act and is appealable subject to the leave of the Court or the Appellate Division. In South African Druggists Ltd v Beecham Group plc 1987 (4) SA 876 (T), however, it was held that the words 'judgment or order' in s 20(1) of the Act had been given a 'special, D technical and rather restrictive meaning' by the Courts, and that an interlocutory order qualifies as an order for the purposes of s 20(1) of the Supreme Court Act only if it has 'a final and definitive effect on the main action'. In the present case the Judge in the Court a quo was of the opinion that the order dismissing the claim for discovery did not have 'a final and definitive effect on the main action', and that as he was bound E by the Beecham case, he was obliged to refuse leave to appeal. Van Streepen and Germs (Pty) Ltd v Transvaal Provincial Administration (supra), which was decided 11 days after the judgment in the Beecham case had been delivered, offered support for the view that 'simple interlocutory orders' - ie those which do not have a final and definitive F effect on the main action - would be appealable if they were not mere rulings (at 583H-584C). The matter was, however, left open, and remains open. Total SA (Pty) Ltd v Bekker NO 1992 (1) SA 617 (A) at 622E-F. The judgment in the Beecham case had regard (wrongly) to judgments concerned with appeals from the magistrates' courts under 83(b) of the Magistrates G Court Act 32 of 1944 which permitted an appeal only against 'any rule or order . . . having the effect of a final judgment'. The distinction between interlocutory orders which have 'a final and definitive effect on the main action' and those which do not is relevant to this requirement. It is not, however, an appropriate test for distinguishing between 'orders' and 'rulings', which is the distinction relevant to the H provisions of s 20(1) of the Supreme Court Act. Dickinson and Another v Fisher's Executors (supra at 433-8); Van Streepen's case supra at 580D-H, 583H. The apparent reason for giving a restricted meaning to the words 'judgment' and 'order' in s 20(1) of the Act, and its predecessors, was to avoid the delay and inconvenience resulting from piecemeal decisions of cases. Van Streepen's case supra at 585E. This is a reason for classifying I decisions on procedural matters and admissibility of evidence as 'rulings', particularly if they arise during the trial. Van Streepen's case supra at 585F. In such circumstances there are obviously compelling reasons for holding that such rulings can best be made the subject of an appeal after the trial has been concluded. On the other hand issues can arise in interlocutory proceedings prior to a trial which are not J necessarily 'final and definitive'

1993 (1) SA p525

A and where considerations of convenience in fact require the decision to be made the subject of an appeal prior to the trial. In such circumstances a failure to permit an appeal could lead to greater delay and inconvenience than would be the case if a final decision were to be given on appeal. The Court is empowered by s 20 of the Supreme Court Act to control appeals B through the power to grant or refuse leave to appeal. There is no reason, therefore, to give the section a narrow meaning which would deny all appeals against interlocutory orders made prior to the trial. This is required neither by the language of the section nor by any clear authority of the Appellate Division. The distinction between orders made on substantive applications and rulings made in the course of proceedings is sufficient to meet the concerns raised in the cases. Where it is C inconvenient or inappropriate that an appeal against an interlocutory order made on a substantive application should be prosecuted prior to the conclusion of the trial, leave can be refused; where there are good reasons to permit an appeal, leave can be granted. The issue in the present case raises a substantive issue of law which has a material D bearing on the case. In particular: (a) If the decision is wrong, it could result in a mistrial and the expense and inconvenience of a retrial; (b) discovery of the police docket could have a material bearing on the settlement of the case, with consequent reduction in Court time and costs; (c) the withholding of the police docket increases the risk of the E litigation as far as the appellant is concerned and, apart from the bearing this will have on the conduct of the trial, could lead to the appellant being at a disadvantage in settlement discussions. The issue of discovery was raised timeously, made the subject of a substantive application prior to a trial date having been allocated and resulted in an order being made by the Court which heard the application. Having regard F to the procedure adopted, the substance of the issue and the importance of the decision, leave to appeal should be granted.

A W Mostert SC (with him J P Coetzee) for the respondent (the heads of argument having been prepared by J N S du Plessis SC (with him J P Coetzee)): Daar bestaan botsende opvattings oor die vraag of 'n eenvoudige G tussentydse bevel ('simple interlocutory order') wat uitgereik word in 'n Provinsiale of Plaaslike Afdeling altyd (of in bepaalde omstandighede) by die frase 'uitspraak of bevel' soos in art 20 van die Wet op die Hooggeregshof 59 van 1959 ('die Wet') inbegrepe is en dit derhalwe appelleerbaar is; trouens hierdie vraag is by die opstel hiervan nog nie deur hierdie Hof beslis nie. Total SA (Pty) Ltd v...