IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number :   6/99
95/99

In the matter between :

THE MINISTER OF SAFETY AND SECURITY		First Appellant
JUDORA SPANNENBERG					Second Appellant

and	

IAN GORDON BRYN HAMILTON				Respondent

CORAM :			SMALBERGER ADCJ, NIENABER, MARAIS, CAMERON and NAVSA JJA

HEARD :			20 FEBRUARY 2001

DELIVERED :		19 MARCH 2001

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JUDGMENT
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NIENABER  JA/

NIENABER JA :
[1]	I have read the judgment of Cameron JA.  I agree with its result, with the observations he made in paras 11 and 12 thereof  and with his proposed order.  My reasons for doing so can be stated briefly.
[2]	Hlophe J dismissed the exception taken by the second defendant on the strength of a dictum of Hefer JA in Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at 318E-H:
“As the judgments in the cases referred to earlier demonstrate, conclusions as to the existence of a legal duty in cases for which there is no precedent entail policy decisions and value judgments which ‘shape and, at times, refashion the common law [and] must reflect the wishes, often unspoken, and the perceptions, often dimly discerned, of the people’ (per M M Corbett in a lecture reported  sub nom ‘Aspects of the Role of Policy in the Evolution of the Common Law’ in (1987) SALJ 104 at 67).  What is in effect required is that, not merely the interests of the parties inter se, but also the conflicting interests of the community, be carefully weighed and that a balance be struck in accordance with what the Court conceives to be society’s notions of what justice demands.  (Corbett (op cit  at 68);  J C van der Walt ‘Duty of care:  Tendense in die Suid-Afrikaanse en Engelse regspraak’ 1993 (56) THRHR at 563-4.)  Decisions like these can seldom be taken on a mere handful of allegations in a pleading which only reflects the facts on which one of the contending parties relies.  In the passage cited earlier Fleming rightly stressed the interplay of many factors which have to be considered.  It is impossible to arrive at a conclusion except upon a consideration of all the circumstances  of the case and of every other relevant factor.  This would seem to indicate that the present matter should rather go to trial and not be disposed of on exception.”

Hlophe J posed a number of  rhetorical questions relating to circumstances which he considered may well have a bearing on the existence of the duty alleged, stating:
“Surely these are all questions which cannot properly be decided on exception without the benefit of oral evidence at the trial.
	These are all issues to be fully ventilated at the trial to enable the judge steeped in the atmosphere of the trial to make a proper value judgment on the question whether the second defendant’s omission was indeed wrongful.”

[3]	The ground on which the first defendant’s exception was dismissed is less clearly expressed but would appear to be that the Court was not able to conclude that such a duty may not have existed “particularly in the Stellenbosch area where she happened to find herself”.  Hlophe J concluded generally as follows:
“In all the circumstances of the case I am satisfied that the issues raised on the papers are such that it would be inconvenient or improper to decide them on exception.”

[4]	The rule is that the dismissal of an exception is not appealable to this Court, save perhaps in that rare category of case (of which this case, on any reading, is not one) where the issue in question is presented in form as an exception but the procedure in substance and effect is a stated case.   It is worthwhile, I think, to remind oneself once again of what Innes CJ said in Blaauwbosch Diamonds, Ltd v Union Government (Minister of Finance), 1915 AD 599 at 601:
“... one would say that an order dismissing an exception is not the final word in the suit on that point that it may always be repaired at the final stage.   All the Court does is to refuse to set aside the declaration;  the case proceeds;  there is nothing to prevent the same law points being re-argued at the trial;  and though the Court is hardly likely to change its mind there is no legal obstacle to its doing so upon a consideration of fresh argument and further authority.”

[5]	The existence of the duties alleged depended, on Hlophe J’s approach, on the facts.  All the facts were not before him at the stage when the exceptions were considered.  The order he made was to dismiss the first defendant’s exception and to dismiss paras 1 and 4 of the second defendant’s exception.  His decision to do so, whatever his motivation may have been, was reparable at the end of the hearing of the case.   It was not final, conclusive or dispositive of a discrete chapter of the case.  It was thus not appealable.

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P M NIENABER

Concur :

SMALBERGER ADCJ