Carstens NO and Others v Carstens (409/11) [2012] ZASCA 62 (10 May 2012)
- Citation
- [2012] ZASCA 62
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Supreme Court of Appeal
- Panel
- Brand, Cloete, Heher
- Case number
- 409/11
More details
- Court
- Supreme Court of Appeal
- Panel
- Brand, Cloete, Heher
- Case number
- 409/11
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Supreme Court of Appeal held that the order of the court a quo amounted to the dismissal of an exception, which is interlocutory in nature and therefore not appealable. The court relied on the authority of Maize Board v Tiger Oats Ltd and Zweni v Minister of Law and Order, which establish that only final orders are appealable. As the order in question did not dispose of any issue finally and could be revisited by the court of first instance, the appeal was not properly before the court and had to be struck off the roll.
Court disposition
Appeal struck off the roll; costs awarded against the appellants.
Orders
- The appeal is struck off the roll.
- The Trust (represented by the first to fourth appellants) and the fifth appellant are ordered to pay the respondent’s costs of appeal jointly and severally.
02
Material facts
Parties
Christiaan Louis Carstens NO
Appellant Counsel: P A van Niekerk SCAndries Johannes Daniel Bester NO
Appellant Counsel: P A van Niekerk SCArno Strydom NO
Appellant Counsel: P A van Niekerk SCVincent Cyril Tee NO
Appellant Counsel: P A van Niekerk SCChristiaan Louis Carstens
Appellant Counsel: J D Huisamen SCBrigid Mary Carstens
Respondent Counsel: R G Buchanan SC03
Procedural history
Posture
Civil Appeal / Appeal Struck Off the Roll
04
Questions and positions
Legal issues
- 01
Whether the order dismissing the exception is appealable.
- 02
Whether the appeal should be entertained or struck off the roll.
Party arguments
- Applicant
- The appellants argued that the court a quo erred in dismissing the point in law and that leave to appeal was properly granted. They contended that the order was final and thus appealable.
- Respondent
- The respondent argued that the order was interlocutory, as it merely dismissed an exception, and therefore not appealable. The respondent relied on established case law to support this position.
05
Court’s reasoning
Legal principles
- 01
Maize Board v Tiger Oats Ltd 2002 (5) SA 365 (SCA)
An order dismissing an exception is interlocutory and not appealable.
- 02
Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I-533B
For an order to be appealable, it must be final in effect and not susceptible to alteration by the court of first instance.
06
Ratio, limits and disposition
Ratio decidendi
The Supreme Court of Appeal held that the order of the court a quo amounted to the dismissal of an exception, which is interlocutory in nature and therefore not appealable. The court relied on the authority of Maize Board v Tiger Oats Ltd and Zweni v Minister of Law and Order, which establish that only final orders are appealable. As the order in question did not dispose of any issue finally and could be revisited by the court of first instance, the appeal was not properly before the court and had to be struck off the roll.
Obiter and limits
- The court emphasized the importance of distinguishing between interlocutory and final orders for the purposes of appealability.
- The court noted that granting leave to appeal does not render an interlocutory order appealable if it does not meet the criteria established in case law.
Court disposition
Appeal struck off the roll; costs awarded against the appellants.
- The appeal is struck off the roll.
- The Trust (represented by the first to fourth appellants) and the fifth appellant are ordered to pay the respondent’s costs of appeal jointly and severally.
Source and reliance status
Supreme Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of Appeal
Judgment
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 409/11
Not reportable
In the matter between:
CHRISTIAAN LOUIS CARSTENS NO …...................................FIRST
APPELLANT
ANDRIES JOHANNES DANIEL BESTER NO …..................SECOND
APPELLANT
ARNO
STRYDOM NO …............................................................THIRD
APPELLANT
VINCENT
CYRIL TEE NO …..................................................FOURTH
APPELLANT
CHRISTIAAN LOUIS CARSTENS …..........................................FIFTH
APPELLANT
and
BRIGID
MARY CARSTENS …............................................................RESPONDENT
Neutral citation: Carstens NO v Carstens (409/11) [2012] ZASCA 62
(10 May 2012).
Coram: Brand, Cloete and Heher JJA
Heard: 10 May 2012
Delivered: 10 May 2012
Summary:
______________
ORDER
On appeal from: Eastern Cape High Court, Port Elizabeth (Dambuza J
sitting as court of first instance):
The appeal is struck off the roll. The Trust (represented by the first to fourth appellants) and the fifth appellant, are ordered to pay the respondent’s costs of appeal jointly and severally.
CLOETE JA (BRAND AND HEHER JJA CONCURRING):
[1] The court a quo dismissed the ‘point in law’ raised by the appellants and granted leave to appeal to this court.
But the order amounts to the dismissal of an exception, which is interlocutory and therefore not appealable. There is the specific
authority of Maize Board v Tiger Oats Ltd 2002 (5) SA 365 (SCA) and the general authority of Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I-533B.
[2] The appeal must accordingly be struck off the roll.
[3] The following order is made:
___
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
First to Fourth Appellant: P A van Niekerk SC (with him Ms A Venter)
Instructed by:
Van Niekerk, Huisamen & Van Wyk, Uitenhage
Honey Attorneys, Bloemfontein
Fifth Appellant: J D Huisamen SC
Kaplan Blumberg Attorneys, Port Elizabeth
For Respondent: R G Buchanan SC
G P van Rhyn Minnaar & Co, Uitenhage
Symington & De Kok, Bloemfontein
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