IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NOS: 6/99
95/99
In the matter between:
MINISTER OF SAFETY AND SECURITY
First appellant
JUDORA SPANGENBERG
Second appellant
and
IAN GORDON BRYN HAMILTON
Respondent
BEFORE:
Smalberger ADCJ, Nienaber, Marais, Cameron and Navsa JJA
HEARD:
Tuesday 20 February 2001
DELIVERED:
Monday 19 March 2001
An order dismissing an exception to a pleading on the ground that it is inappropriate
to decide the issues by way of exception is not appealable
JUDGMENT

CAMERON JA:
[1]  This case raises, again, the regrettably recurrent issue whether the
dismissal of an exception is appealable.  The respondent (to whom I refer
as “the plaintiff”) has sued the two appellants (“the defendants”) for
damages arising from a shooting incident that rendered him a tetraplegic.
His particulars of claim allege that police officials in the first defendant’s
employ, in breach of a duty owed the public, including himself, acted
negligently in granting his assailant a licence for the firearm she later used
to shoot and injure him.  He alleges that the second defendant, a clinical
psychologist treating his assailant, in similar breach negligently failed to
refer her for psychiatric treatment and possible committal to an institution.
He asserts that he suffered damage in consequence of the defendants’
conduct.
[2] To these averments, which the plaintiff amended and sought leave to
amend yet further, the defendants each excepted.  Hlophe J heard the
exceptions and the plaintiff’s application to amend.  He granted the latter.
The former he dismissed on the ground that it was inappropriate to decide
the issues by way of exception.  However — despite the plaintiff’s

opposition on the ground that the order was not susceptible to appeal —
Hlophe ADJP granted both defendants leave to appeal to this Court.  I
return later to the propriety of his order in doing so.
[3] When the appeal was called, this Court raised the question whether the
order in the form that Hlophe J granted it was appealable;  and reserved
judgment on the matter.
[4] This Court’s jurisdiction to hear appeals is not untrammelled, and the
question which judgments, orders and rulings are appealable to it has
presented persisting complexity.  The Court’s powers in this regard are
sourced in statute, read now in the light of applicable provisions of the
Constitution.  Though section 168(3) of the Constitution provides without
qualification that this Court may decide “appeals in any matter”, this must
obviously be read in the light of the Supreme Court Act, 59 of 1959.
Section 20(1) of that  Act contemplates that an appeal lies from a
“judgment or order” of a provincial or local division, while section 21(1)
confers on this Court jurisdiction to hear and determine an appeal from
“any decision” of a provincial or local division not conferred on it in section

20(1).  The inter-relation between these provisions has been explained in
van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration
1987 (4) SA 569 (A) 584E-F and Moch v Nedtravel (Pty) Ltd t/a
American Express Travel Service 1996 (3) SA 1 (A) 7J-8D.  This Court’s
construction of the provisions in question has recently been summarised
as precluding appeals except where —
“the judicial decisions in question, whether referred to as judgments, orders, rulings or declarations,
had three attributes.  First, they were final in effect and not susceptible of alteration by the court
of first instance.  Secondly, they were definitive of the rights of the parties, for example, because
they granted definite and distinct relief.  Thirdly, they had the effect of disposing of at least a
substantial portion of the relief claimed.”
(Guardian National Insurance Co Ltd v Searle NO 1999 (3) SA 296
(SCA) 301B-D.)
[5]  The disposal of exceptions has presented particular problems in
relation to these criteria.  An exception on the ground that a pleading
discloses no cause of action or defence strikes at the root of the entire
claim or defence, since it charges that “the pleading objected to, taken as
it stands, is legally invalid for its purpose” (per Innes JA in Salzmann v
Holmes 1914 AD 152 at 156).  Such an exception if successful thus

disposes with finality of a claim or defence, and an order upholding it is
therefore appealable (see the observation of de Villiers CJ in Henderson
and Another v Hanekom (1903) 20 SC 586 at 590;  Steytler NO v
Fitzgerald 1911 AD 295;  and Blaauwbosch Diamonds Ltd v Union
Government (Minister of Finance) 1915 AD 599 at 602).
[6] This Court has on a number of occasions in effect held that the
dismissal of an exception does not have the attributes set out in the
Guardian National case.  (See Blaauwbosch Diamonds Ltd v Union
Government (Minister of Finance) (above);  Wellington Court
Shareblock v Johannesburg City Council 1995 (3) SA 827 (A); Kett v
Afro Adventures (Pty) Ltd and Another 1997 (1) SA 62 (A).)
[7]  In a number of other cases, by contrast, this Court has without more
entertained appeals against the dismissal of an exception (instances
include Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700
(A); Sandton Town Council v Erf 89 Sandown Extension 2 (Pty) Ltd
1988 (3) SA 122 (A); Proud Investments (Pty) Ltd v Lanchem
International (Pty) Ltd 1991 (3) SA 738 (A);  Lewis v Oneanate (Pty) Ltd

and Another 1992 (4) SA 811 (A); Minister of Law and Order v Kadir
1995 (1) SA 303 (A)).  In the latter group of cases, the appeal was in
certain instances dismissed; in others it was upheld.  In none was there
allusion to what in the Wellington Court Shareblock case Nienaber JA
called “the spectre of appealability” (at 833H).  This led Nienaber JA to
conclude that this Court in countenancing the appeals in the Sandton
Town Council and Proud Investments cases had acted in error (per
incuriam), and that those decisions could accordingly not serve as
authority for the proposition that an appeal against the dismissal of an
exception could properly be entertained (833G-H).
[8] Counsel for the second defendant invited us to overrule the decisions
in paragraph 6 above.  It is, however, well established that this Court will
depart from a previous decision only when satisfied that  it is clearly wrong,
and then only with great circumspection (Bloemfontein Town Council v
Richter 1938 AD 195 at 231-232; Ellispark Stadion Bpk v Minister van
Justisie 1990 (1) SA 1038 (A) at 1051G-H; Robin Consolidated
Industries Ltd v CIR 1997 (3) SA 654 (SCA) 666F-I).  In determining the
appeal there is in my view no need to revisit the latest decisions of this

Court on the question of the appealability of an order dismissing an
exception.   This is because the plaintiff has from the outset asserted that
he proposes to lead evidence at the trial in support of his assertion that the
defendants owed him a legal duty in regard to the manner in which he was
injured; and Hlophe J upheld his entitlement to do so.  Hlophe J dismissed
the exception on the basis that without hearing all the evidence in the
matter it would be inappropriate for him to determine whether the legal
duty on which the plaintiff relies exists or does not exist.
[9]  In the present matter, the defendants’ complaint is not that Hlophe J
wrongly held that there was a legal duty in the circumstances set out in the
particulars of claim, and hence that he disposed of the issue incorrectly.
Their complaint is in effect that they were wrongly denied the opportunity
of establishing, at this early stage of the proceedings, that there was no
duty at all.  Counsel for the second defendant urged us to determine that
the legal duty on which the plaintiff relies does not exist.  This is neither
feasible nor proper.  The decision of the Court below that the matter had
to go to trial precluded it from deciding the issue that the second
defendant wishes to bring on appeal, namely the merits of the exception’s

challenge to the legal foundation of the claim.  The Court’s ruling deferred
the very determination the excipients sought to obtain, with the result that
there is no “judgment or order” to appeal against.
[10]  Despite some widely-expressed remarks in the judgment of Hlophe
J, to which counsel for the appellants drew our attention, it is evident that
the Judge did not determine the matter on the basis that the legal duty in
question existed or did not exist.  He therefore refrained from considering
and deciding the questions relevant to the exception, including the legal
sufficiency of the claim.  The order in the form he gave it is therefore not
appealable.
[11] This disposes of the matter.  But it is necessary to make some
observations about the proceedings in the Court below after the
defendants’ exceptions were dismissed.  Despite the plaintiff’s opposition
on the grounds set out above, the learned judge granted the first
defendant leave to appeal.  In doing so, he did not deal with the objection
the plaintiff advanced. By that stage, the second defendant had on the
advice of her counsel concluded that the order was in fact not appealable,

and had withdrawn the notice of appeal she initially lodged.  Hlophe J’s
grant of leave to appeal to the first defendant however precipitated a re-
application on her part, which the plaintiff then opposed on the basis that
her right of appeal had become perempted.  In later granting also the
second defendant leave to appeal, Hlophe J for the first time dealt with the
plaintiff’s objection.  He did not discuss or attempt to deal with the
decisions of this Court regarding the appealability of an exception, none
of which provided authority for the order he granted.  He stated merely that
the authorities on which the plaintiff relied did not indicate that leave should
never be granted at all “no matter what the circumstances”.
[12] This was a regrettable approach.  It has never been suggested that
an order deferring consideration of the merits of an exception to trial on
the basis that it would be inappropriate to deal with it earlier is appealable.
This is the basis on which Hlophe J should have dealt with the matter.  Had
he done so, he would have refused leave to appeal, and the costly
elaboration of these proceedings, and the time they have wasted,  would
have been avoided.

[13] Notwithstanding the events in the Court below, counsel for both
appellants accepted that the proper order in the event of this conclusion
is that the matter should be struck from the roll with costs, the defendants
being ordered jointly and severally to pay the plaintiff’s costs.
[14] The appeal is struck from the roll with costs.  The appellants are
ordered jointly and severally to pay the respondent’s costs.
E CAMERON
JUDGE OF APPEAL
MARAIS JA
)
) CONCUR
NAVSA JA
)

NIENABER JA :
[1] I have read the judgment of Cameron JA.  I agree with its result, with the
observations he made in paras 11 and 12 thereof  and with his proposed order.  My
reasons for doing so can be stated briefly.
[2] Hlophe J dismissed the exception taken by the second defendant on the
strength of a dictum of Hefer JA in Minister of Law and Order v Kadir 1995 (1)
SA 303 (A) at 318E-H:
“As the judgments in the cases referred to earlier demonstrate,
conclusions as to the existence of a legal duty in cases for which there
is no precedent entail policy decisions and value judgments which
‘shape and, at times, refashion the common law [and] must reflect the
wishes, often unspoken, and the perceptions, often dimly discerned,
of the people’ (per M M Corbett in a lecture reported  sub nom
‘Aspects of the Role of Policy in the Evolution of the Common Law’
in (1987) SALJ 104 at 67).  What is in effect required is that, not
merely the interests of the parties inter se, but also the conflicting
interests of the community, be carefully weighed and that a balance be
struck in accordance with what the Court conceives to be society’s
notions of what justice demands.  (Corbett (op cit  at 68);  J C van der
Walt ‘Duty of care:  Tendense in die Suid-Afrikaanse en Engelse
regspraak’ 1993 (56) THRHR at 563-4.)  Decisions like these can
seldom be taken on a mere handful of allegations in a pleading which
only reflects the facts on which one of the contending parties relies.
In the passage cited earlier Fleming rightly stressed the interplay of
many factors which have to be considered.  It is impossible to arrive
at a conclusion except upon a consideration of all the circumstances
of the case and of every other relevant factor.  This would seem to
indicate that the present matter should rather go to trial and not be
disposed of on exception.”

Hlophe J posed a number of  rhetorical questions relating to circumstances which
he considered may well have a bearing on the existence of the duty alleged, stating:
“Surely these are all questions which cannot properly be decided on
exception without the benefit of oral evidence at the trial.
These are all issues to be fully ventilated at the trial to enable the
judge steeped in the atmosphere of the trial to make a proper value
judgment on the question whether the second defendant’s omission
was indeed wrongful.”
[3] The ground on which the first defendant’s exception was dismissed is less
clearly expressed but would appear to be that the Court was not able to conclude
that such a duty may not have existed “particularly in the Stellenbosch area where
she happened to find herself”.  Hlophe J concluded generally as follows:
“In all the circumstances of the case I am satisfied that the issues
raised on the papers are such that it would be inconvenient or
improper to decide them on exception.”
[4] The rule is that the dismissal of an exception is not appealable to this Court,
save perhaps in that rare category of case (of which this case, on any reading, is not

one) where the issue in question is presented in form as an exception but the
procedure in substance and effect is a stated case.   It is worthwhile, I think, to
remind oneself once again of what Innes CJ said in Blaauwbosch Diamonds, Ltd
v Union Government (Minister of Finance), 1915 AD 599 at 601:
“... one would say that an order dismissing an exception is not the
final word in the suit on that point that it may always be repaired at the
final stage.   All the Court does is to refuse to set aside the
declaration;  the case proceeds;  there is nothing to prevent the same
law points being re-argued at the trial;  and though the Court is hardly
likely to change its mind there is no legal obstacle to its doing so upon
a consideration of fresh argument and further authority.”
[5] The existence of the duties alleged depended, on Hlophe J’s approach, on
the facts.  All the facts were not before him at the stage when the exceptions were
considered.  The order he made was to dismiss the first defendant’s exception and
to dismiss paras 1 and 4 of the second defendant’s exception.  His decision to do
so, whatever his motivation may have been, was reparable at the end of the hearing
of the case.   It was not final, conclusive or dispositive of a discrete chapter of the

case.  It was thus not appealable.
...........................
P M NIENABER
Concur :
SMALBERGER ADCJ