South Africa: Eastern Cape High Court, Grahamstown

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[2015] ZAECGHC 137
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Osborne and Another v Dairybelle (Pty) Limited and Another (2293/2015) [2015] ZAECGHC 137 (24 November 2015)
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Not Reportable
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – GRAHAMSTOWN
Case No: 2293/2015
Date Heard: 20/11/2015
Date Delivered: 24/11/2015
In the matter between:
DAVID MILES OSBORNE First Plaintiff
WILLIAM EDGAR BROTHERTON Second Plaintiff
and
DAIRYBELLE (PTY) LIMITED First Defendant
PEDRO VIUDEZ Second Defendant
APPLICATION FOR LEAVE TO JUDGMENT
MALUSI, AJ
[1] This is an application for leave to appeal against the judgment of this court dismissing an exception to the plaintiff’s particulars of claim. The application is opposed.
[2] For the sake of convenience, the same tittles as were assigned to the parties in the main action will be used.
[3] It is necessary for a better appreciation of the issues to provide a brief background. Both plaintiffs are businessmen who hold an interest in a commercial entity that is in a partnership with another commercial entity in which the first defendant holds an interest. A dispute arose between the two entities resulting in litigation.
[4] Thereafter the first defendant ran short of funds to pay its creditors. The second defendant, in his capacity as the Chief Executive Officer of first defendant, wrote an electronic mail to the latter’s creditors imputing that the plaintiffs were the cause of the defendant’s financial difficulties. The plaintiffs instituted an action for defamation contending that the averments in the electronic mail were untrue, wrongful and defamatory.
[5] The defendants filed an exception to the particulars of claim contending that they fail to set out a cause of action as the allegations pleaded are not reasonably capable of conveying to a reasonable reader any meaning which defames the plaintiffs.
[6] I dismissed the exception as I held the view that a reasonable reader will be justified to conclude that the electronic mail imputed that the plaintiffs maliciously caused the first defendant’s financial downturn. I concluded that the statements in the article are capable of defamatory meaning.
[7] The defendant filed an application for leave to appeal against the judgment. The grounds on which the application was based were that I had erred in stating the applicable legal principles. It was contended that the error manifested itself in the analysis of the facts resulting in an incorrect conclusion. Due to the view I take in this matter it is not necessary to provide any further detail of the grounds of appeal.
[8] At the hearing I raised the issue of appealability of the order. Mr Smuts, who appeared for the plaintiffs, submitted that the order is not appealable. Mr Cole, who appeared for the defendants, readily conceded the point. The concession was proper and well made.
[9] It has been consistently held over a long period of time that a dismissal of an exception, except in very limited circumstances, is not appealable. The reason is that the order is not final in effect as the aggrieved party may still raise and argue the same issue at the trial. Properly understood the order is merely an interlocutory ruling without the effect of a definitive prouncement. It is now generally accepted that when considering the issue of appealability the court considers the effect of the order or ruling rather than form.[1]
[10] Despite a diligent search I could find no conflicting judgments. Where the Appellate Division had entertained an appeal of a dismissal of an exception the issue of appealability had not been raised and considered. In Wellington Court Shareblocks the Appellate Division held that such cases acted in error (per incuriam). The court concluded that those cases are not authority for the proposition that an appeal against the dismissal of an exception could properly be entertained.[2] The Supreme Court of Appeal in Hamilton declined to overrule the cases cited in paragraph 9 above.[3]
[11] The doctrine of judicial precedent is fundamental in our law and not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution. To deviate from this rule is to invite legal chaos.[4]
[12] The costs should follow the result and there have been no submissions to the contrary.
[13] In the circumstances and for the above reasons, it is ordered that:
12.1 The application is struck from the roll with costs. The defendants are ordered jointly and severally to pay the plaintiff’s costs.
_________________
T MALUSI
Acting Judge of the High Court
Appearances:
Counsel for the plaintiff’s, Adv IJ Smuts SC and Adv De La Harpe instructed by Wheeldon Rushmere & Cole
Counsel for the defendant’s, Adv Cole, instructed by McCallum Attorneys
Date Heard: 20 November 2015
Date Delivered: 24 November 2015
[1] Wellington Share Block v Johannesburg City Council; Agar Properties (Pty) Ltd v Johannesburg City Council 1995 (3) SA 827 (A) at 832 G-H and 834 A-B; Kett v Afro Adventures (Pty) Ltd and Another 1997 (1) SA 62 (A) at 65 G; Minister of Safety and Security and Another v Hamilton 2001 (3) SA 50 (SCA) at para 6 and 8; Maize Board v Tiger Oats Ltd and Others 2002 (5) SA 365 (SCA) at para 14; Gutsche Family Investments (Pty) Ltd v Mettle Equity Group 2007 (5) SA 491 at para 13; Charlton v Parliament of the Republic of South Africa 2012 (1) SA 472 (SCA) at para 15.
[2] Wellington Share Block ibid at 833 G-H.
[3] Hamilton ibid at para 8.
[4] Camps Bay Ratepayers and Residents Association and Another v Harrison and Another 2011 (4) SA 42 (CC) at para 28; True Motives 84 (Pty) Ltd v Maldi [2009] ZASCA 4 para 100.