THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1290/18

In the matter between:
LIBERTY GROUP LIMITED t/a LIBERTY LIFE
APPELLANT

and

K AND D TELEMARKETING
FIRST RESPONDENT
KAREN SHAFER
SECOND RESPONDENT
ERIC BUTOWSKY
THIRD RESPONDENT

Neutral citation:
Liberty Group Ltd v K & D Marketing (Case no 1290/18) [2020]
ZASCA 41 (20 April 2020)
Coram:
NAVSA and VAN DER MERWE JJA and LEDWABA AJA
Heard:
11 March 2020
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
09h45 on 20 April 2020.
Summary: Effect of an order of absolution from the instance at end of trial –
application to reopen a case under same case number on same pleadings in order
to thwart prescription-not permissible.

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ORDER
________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Tuchten J, sitting
as court of first instance): judgment reported sub nom Liberty Group Limited t/a
Liberty Life v K and D Telemarketing CC and Others [2015] ZAGPPHC 1135.

The appeal is dismissed with costs.
________________________________________________________________

JUDGMENT
________________________________________________________________

Ledwaba AJA (Navsa and Van der Merwe JJA concurring)

[1] The central issue in this appeal is whether, after an order of absolution from
the instance at the end of a trial, the appellant, Liberty Group Limited t/a Liberty
Life (Liberty), was entitled to reopen its case, to pursue its original claim on the
same pleadings, in an attempt to thwart a plea of prescription. The Gauteng
Division of the High Court, Pretoria (Tuchten J), dismissed the appellant's
application for leave to reopen its case. The question is whether that conclusion
was correct. The background is set out hereafter.

[2] In about June 2009 the appellant and first respondent, K and D
Telemarketing, entered into a written commission agreement in terms of which the
latter would act as an independent intermediary to canvas insurance contracts on
the appellant's behalf.

[3] In 2010, Liberty issued summons under case no 75525/2010 against the
respondents and claimed R 515 964.95, being the commission paid to the first
respondent on the basis that the insurance policies registered by the first
respondent had lapsed. In terms of the commission agreement the first respondent
was liable to refund the appellant the commission paid. The second and third
respondents, Ms Karen Shafer and Mr Eric Butowsky, were sued as sureties.

[4] The trial was conducted in April 2015 before Louw AJ. Two witnesses
testified in support of Liberty’s case. After their testimony Liberty closed its case.
Thereupon the respondents applied for absolution from the instance. That
application was refused.

[5] The respondents proceeded to lead the evidence of one witness and
thereafter closed their case. Judgment was reserved and delivered on 4
September 2015, absolving the respondents from the instance with costs. The trial
court found that the appellant had not presented sufficient evidence to prove that
its claim was correctly calculated. In short, the court held that quantum was not
proved. In respect of Mr Butowsky, the court found, in addition, that the suretyship
had not been proved. Louw AJ’s judgment was not appealed against. It is
necessary to record that on the day that Louw AJ handed down his judgment
Liberty’s claim if it had to be pursued anew had become prescribed.

[6] Subsequent to the judgment in February 2016 and March 2016, Liberty
delivered a notice of amendment in terms of Rule 28 and a summary of expert
evidence in terms of Rule 36. It sought thereby to rectify the gap in its case, which
led to the order of absolution from the instance. The respondents regarded the
procedure followed by the appellant as irregular and challenged it. The challenge
was upheld. In upholding the objection to the steps sought to be taken by Liberty,
Van der Westhuizen AJ observed that a plaintiff against whom an order for
absolution is made, and who wants to proceed on the same papers, must apply to
court for leave to do so.

[7] Thereafter, Liberty brought an application for leave to reopen the trial. That
application was dismissed by Tuchten J. Liberty, with the leave of the court below,
now appeals against that decision.

[8] The court below noted that there was no doubt that it was competent for a
plaintiff to reopen its case after absolution was granted at the end of the
defendant’s case. It is clear that in such an instance a defendant cannot raise a
plea of res judicata. The court below had regard to the decision of this court in
Colman v Dunbar 1933 AD 141. In that case this court had to consider whether to
hear further evidence on appeal where a judgment of absolution of the instance
had been entered. The court held (at 160-161) that it was empowered both, to hear
further evidence itself or to remit the matter to the trial court for this purpose. The
court below noted that in Colman an appeal had been lodged, which distinguished

it from the facts of this case, because the appellant had never sought to appeal the
order of Louw AJ.

[9] In terms of chronology the court below recorded that Liberty had instituted
action against the defendants in 2010, had absolution awarded against it in 2015
and did not appeal the order of absolution. It was only in 2017 that Liberty sought
the leave of the court below to reopen its case. This was done because, if it
reinstituted action, Liberty would be met with a special plea of prescription. The
court below stated that there were a number of reasons why the application before
it could not succeed. It stated that a litigant faced with an order of absolution of the
instance always has the right to bring further proceedings to enforce his or her
claim and that he or she may do so by instituting proceedings afresh. For that a
plaintiff does not require the leave of the court.

[10] Tuchten J went on to state that a plaintiff could also pursue his or her claim
by proceeding on the same papers and for that it required a court’s permission.
But whichever route is followed a plaintiff must proceed de novo. In this regard the
court below referred to a decision of this court more than a century ago, namely,
Steytler v Fitzgerald 1911 AD 295 at 304. At para 24 of the judgment of the court
below, Tuchten J said the following:
‘That, to my mind, identifies the most important reason why the main application must fail.
[Liberty] does not ask, and has never asked, that the order of absolution be set aside. The
consequence of that, counsel all agree, was that prescription supervened. No order of a

procedural nature can deprive the [respondents] in this case of the right to invoke that
defence.’

[11] The court below took the view that Liberty had not made out a case for the
development of the common law and that, in any event, the common law could not
be developed because of the provisions of the Prescription Act 68 of 1969.

[12] Steytler is the definitive answer to whether Liberty’s application in the court
below ought to have succeeded. At 304 Lord De Villiers CJ said the following:
‘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 may 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.’

[13] Counsel on behalf of Liberty relied on the decision of this court in African
Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 563
as authority for its submission that it was entitled to reopen its case on the same
papers. In African Farms, Steyn CJ said the following (at 563E-F):

‘As pointed out in Purchase v Purchase 1960 (3) SA 383 (N) at 385, dismissal and refusal
of an application have the same effect, namely a decision in favour of the respondent. The
equivalent of absolution from the instance would be that no order is made, or that leave is
granted to apply again on the same pers.’
That dictum relates to motion proceedings. In motion proceedings, usually in
unopposed matters, an applicant might be given leave to approach a court on the
same papers, supplemented if so advised. That is not an order susceptible to
appeal. It is no authority for the proposition that it is permissible, after an order of
absolution from the instance, to reopen a trial under the same case number on
existing pleadings. The only equivalence is that in either instance a defence of res
judicata could not be raised. This would be so when an action is instituted de novo
or when the application, in terms of leave having been given, is brought on the
same papers, supplemented, if so advised. That is what the dictum in African
Farms was conveying.

[14] The dictum from Steytler cited above makes it clear that it is established
practise that a decision of absolution from the instance in a trial has the effect of a
definitive sentence. Simply put, a decision on the sufficiency of evidence led in that
suit, by way of an order of absolution from the instance, has a definitive effect and
is susceptible to appeal. The court is functus officio and has no power or jurisdiction
to hear any further evidence in relation thereto.1 To hold otherwise, that is, if
Liberty’s contentions were to be upheld, it would have the effect of litigants being

1 Minister of Police and Another v Gasa 1980 (3) SA 387 (N) at 389C-E.

left in a state of uncertainty, in that actions would remain susceptible to
resuscitation indefinitely. This offends against the principle of finality in litigation.

[15] Although Liberty proposed in its heads of argument that the common law as
expressed in Steytler should be developed so as to enable Liberty to reopen its
case, on the basis of the constitutional right of access to courts,2 counsel did not
pursue this with any enthusiasm or vigour. The short answer to that proposition is
that Liberty had its day in court. That it provided insufficient evidence to sustain its
case is entirely its own fault. There is no systemic failure here. In light of the
conclusions reached above, it is not necessary to deal with the submissions by
counsel on the effects of the Prescription Act. It suffices that the 1969 Prescription
Act has been in effect for 5 decades and that, contrary to counsel’s submissions,
the practical effect of the 1943 Act3 on the reinstitution of Liberty’s case would have
been the same.

[16] Finally, there is no justification for the punitive costs order sought by the
respondents. For the reasons set out above it is clear that the appeal must fail.

2 See s 34 of the Constitution.
3 Prescription Act 18 of 1943.

[17] The following order is made:
The appeal is dismissed with costs.

A P Ledwaba
Acting Judge of Appeal

Appearances

For appellant:
A P Joubert SC

C D Roux
Instructed by:
R C Christie Incorporated, Edenvale

Webbers, Bloemfontein

For first, second and third respondents: N D Strathern
Instructed by:
Karen Shafer Attorneys, Glenhazel

C/o E W Serfontein Associates & Inc, Clydesdale, Pretoria