Kett v Afro Ventures (Pty) Ltd. and Another (2/95) [1996] ZASCA 98; 1997 (1) SA 62 (SCA); [1997] 1 All SA 1 (A); (20 September 1996)

Kett v Afro Ventures (Pty) Ltd. and Another (2/95) [1996] ZASCA 98; 1997 (1) SA 62 (SCA); [1997] 1 All SA 1 (A); (20 September 1996)

The Supreme Court of Appeal held that the order dismissing the exception was not appealable, as it was not final and could be reconsidered by the trial court. The appellant, having initiated and prosecuted the appeal, was primarily responsible for the wasted costs. However, the respondents' legal advisers should also have been alert to the jurisdictional issue and advised the court a quo accordingly. Both parties were therefore partially responsible for the abortive proceedings. The court exercised its discretion to apportion costs, ordering the appellant to pay the costs of the application for leave to appeal and two thirds of the respondents' wasted costs of appeal, including the costs...

Citation
[1996] ZASCA 98
Parties
Appellant: Kimberley Jeanne Kett; Respondent: Afro Ventures (Proprietary) Limited; Respondent: Christopher Leigh Kemp
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 September 1996
Case Number
2/95
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Exception to Special Plea; Jurisdictional Challenge
Outcome
Appeal struck off the roll for lack of jurisdiction; costs apportioned.
Judges
Corbett, Eksteen, Nienaber, Marais, Zulman
Legal Topics
Appealability of Orders, Exception Procedure, Waiver and Exemption Clause, Negligence, Costs Discretion
Civil Procedure Delict Appealability of Orders Exception Procedure Waiver and Exemption Clause Negligence Costs Discretion

Case Brief

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Parties

Kimberley Jeanne Kett

Appellant

Afro Ventures (Proprietary) Limited

Respondent

Christopher Leigh Kemp

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Exception to Special Plea; Jurisdictional Challenge

Legal Issues

  1. 1 Is the dismissal of an exception to a special plea based on the interpretation of a contract term an appealable order under section 20 of the Supreme Court Act, 59 of 1959?
  2. 2 Should the costs of the abortive appeal be borne by the appellant, the respondents, or apportioned?

Ratio Decidendi

The Supreme Court of Appeal held that the order dismissing the exception was not appealable, as it was not final and could be reconsidered by the trial court. The appellant, having initiated and prosecuted the appeal, was primarily responsible for the wasted costs. However, the respondents' legal advisers should also have been alert to the jurisdictional issue and advised the court a quo accordingly. Both parties were therefore partially responsible for the abortive proceedings. The court exercised its discretion to apportion costs, ordering the appellant to pay the costs of the application for leave to appeal and two thirds of the respondents' wasted costs of appeal, including the costs...

Court Disposition

Appeal struck off the roll for lack of jurisdiction; costs apportioned.

Orders

  • The order of the court a quo granting the appellant leave to appeal and its order as to costs are set aside.
  • The appellant is ordered to pay the costs of the application for leave to appeal.