Osborne and Another v Dairybelle (Pty) Limited and Another (2293/2015) [2015] ZAECGHC 137 (24 November 2015)

Osborne and Another v Dairybelle (Pty) Limited and Another (2293/2015) [2015] ZAECGHC 137 (24 November 2015)

The court held that the dismissal of an exception to particulars of claim is not appealable, as the order is interlocutory and lacks final effect. The aggrieved party retains the right to raise the same issue at trial, and established precedent consistently holds that such orders are not subject to appeal. The concession by the defendants' counsel regarding non-appealability was proper and in line with legal authority. The application for leave to appeal was therefore struck from the roll, with costs awarded against the defendants.

Citation
[2015] ZAECGHC 137
Parties
Plaintiff: David Miles Osborne; Plaintiff: William Edgar Brotherton; Defendant: Dairybelle (Pty) Limited; Defendant: Pedro Viudez
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
24 November 2015
Case Number
2293/2015
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Dismissal of Exception
Outcome
Application for leave to appeal struck from the roll with costs.
Judges
T Malusi
Legal Topics
Appealability of Interlocutory Orders, Exception to Particulars of Claim, Defamation Action, Finality of Orders
Civil Procedure Appealability of Interlocutory Orders Exception to Particulars of Claim Defamation Action Finality of Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

David Miles Osborne

Plaintiff

William Edgar Brotherton

Plaintiff

Dairybelle (Pty) Limited

Defendant

Pedro Viudez

Defendant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Dismissal of Exception

Legal Issues

  1. 1 Is the dismissal of an exception to particulars of claim appealable?
  2. 2 Does the order have final effect or is it interlocutory in nature?
  3. 3 Should the application for leave to appeal be entertained?

Ratio Decidendi

The court held that the dismissal of an exception to particulars of claim is not appealable, as the order is interlocutory and lacks final effect. The aggrieved party retains the right to raise the same issue at trial, and established precedent consistently holds that such orders are not subject to appeal. The concession by the defendants' counsel regarding non-appealability was proper and in line with legal authority. The application for leave to appeal was therefore struck from the roll, with costs awarded against the defendants.

Court Disposition

Application for leave to appeal struck from the roll with costs.

Orders

  • The application is struck from the roll with costs.
  • The defendants are ordered jointly and severally to pay the plaintiffs' costs.