Abarder v Astral Operations Ltd t/a County Fair and Others (A360/06) [2006] ZAWCHC 53; 2007 (2) SA 184 (C) (3 November 2006)

Abarder v Astral Operations Ltd t/a County Fair and Others (A360/06) [2006] ZAWCHC 53; 2007 (2) SA 184 (C) (3 November 2006)

The court held that the appellant, a journalist subpoenaed as a witness, was not a party to any civil suit or proceeding as envisaged by section 83 of the Magistrates' Courts Act. The right of appeal under section 83 is limited to parties to actions or applications initiated by summons or notice of motion. The proceedings arising from the appellant's refusal to testify did not convert him into a party entitled to appeal the magistrate's order. The magistrate's order compelling testimony did not have the effect of a final judgment on the main action. The appellant's remedy, if any, lay in review proceedings before the High Court, not in an appeal. The appeal was accordingly struck off the...

Citation
[2006] ZAWCHC 53
Parties
Appellant: Gasant Abarder; Respondent: Astral Operations Ltd t/a County Fair; Respondent: Grant Twigg; Respondent: Associated Trade Union of South African Workers
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
3 November 2006
Case Number
A360/06
Procedural Posture
Civil Appeal / Appeal Against Magistrate's Order Compelling Witness Testimony
Outcome
Appeal struck off the roll; costs awarded to first respondent, including costs of two counsel.
Judges
Fourie, Dlodlo
Legal Topics
Appealability of Magistrate Orders, Witness Privilege, Subpoena Duces Tecum, Review Vs Appeal, Costs Award
Civil Procedure Appealability of Magistrate Orders Witness Privilege Subpoena Duces Tecum Review Vs Appeal Costs Award

Case Brief

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Parties

Gasant Abarder

Appellant

Astral Operations Ltd t/a County Fair

Respondent

Grant Twigg

Respondent

Associated Trade Union of South African Workers

Respondent

Procedural Posture

Civil Appeal / Appeal Against Magistrate's Order Compelling Witness Testimony

Legal Issues

  1. 1 Whether a witness compelled to testify by subpoena in a civil trial is entitled to appeal a magistrate's order compelling testimony.
  2. 2 Whether the proceedings involving the appellant constitute a 'civil suit or proceeding' under section 83 of the Magistrates' Courts Act, entitling the appellant to appeal.
  3. 3 Whether the magistrate's order has the effect of a final judgment for purposes of appealability.

Ratio Decidendi

The court held that the appellant, a journalist subpoenaed as a witness, was not a party to any civil suit or proceeding as envisaged by section 83 of the Magistrates' Courts Act. The right of appeal under section 83 is limited to parties to actions or applications initiated by summons or notice of motion. The proceedings arising from the appellant's refusal to testify did not convert him into a party entitled to appeal the magistrate's order. The magistrate's order compelling testimony did not have the effect of a final judgment on the main action. The appellant's remedy, if any, lay in review proceedings before the High Court, not in an appeal. The appeal was accordingly struck off the...

Court Disposition

Appeal struck off the roll; costs awarded to first respondent, including costs of two counsel.

Orders

  • The appeal is struck off the roll.
  • Appellant is ordered to pay first respondent's costs, including the costs consequent upon the employment of two counsel.