DE BEERS BOTSWANA (PTY) LTD v. DIPHOKO 1993 BLR 237 (CA)

Source:
Botswana Law Reports (1964 to date)/CHRONOLOGICAL LISTING OF CASES 1964 2019 Volume 3/1993/Cases Reported/DE BEERS BOTSWANA (PTY) LTD v.
DIPHOKO 1993 BLR 237 (CA)
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http://jutastat.juta.co.za/nxt/gateway.dll/frbo/2/5166/5171/5210?f=templates$fn=default.htm
DE BEERS BOTSWANA (PTY) LTD v. DIPHOKO 1993 BLR 237 (CA)
Citation 1993 BLR 237 (CA)
Court Court of Appeal, Lobatse
Judge Amissah JP, Schreiner JA, Bizos JA
Judgment July 14, 1993
Counsel B.S. Spilg for the appellant.
L.N. Liebowitz for the respondent.
Annotations
Flynote
Courts Court of Appeal Appeal Order appealed from Refusal of application to dismiss application before respondent has closed its case
Such fundamentally similar to application for absolution from instance No merit in G rendering decision subject to appeal.
Practice and procedure Interlocutory or incidental applications Such to be brought before judge hearing main matter on the merits.
Headnote
The respondent had obtained an interim order against the appellant. The matter was subsequently referred to H oral evidence. At the end of
the respondent's evidence the appellant applied for the discharge of the interim order, without hearing any further evidence. The application
was refused. The appellant brought an application for leave to appeal before a different judge from the one who had heard the evidence, as the
original judge was on leave. Leave to appeal had been granted.
Held: (1) what the appellant had applied for was similar in its
1993 BLR p238
SCHREINER JA
fundamental nature to an application for absolution from the instance. It had not closed its case in the sense that A it had not abandoned the
right which it had to put the deponents to its affidavits and others in respect of whom due notice had been given into the witnessbox.
(2) There was no merit in rendering subject to appeal a decision by a court which, in essence, was merely that the case should take its ordinary
course and be decided when the parties had led all their evidence.
(3) The appeal was accordingly wrongly on the roll and was struck off. B
Per curiam: Once a hearing on the merits has commenced incidental applications should properly be brought before the judge who was in the
process of hearing the merits. From the point when the hearing starts until the point when it ends by a decision on the merits, the judge hearing
the matter should be left with sole responsibility to give any incidental ruling that might be required. It was undesirable to permit a party to
litigation to approach another judge while a matter was in the process of being heard. C
Case Information
Cases referred to:
(1) Diphoko v. Kweneng Land Board (Practice Note) [1991] B.L.R. 192.
(2) Metallurgical and Commercial Consultants (Pty.) Ltd. v. Metal Sales Co. (Pty.) Ltd. 1971 (2) S.A. 388 (W).
(3) Caro v. Tulley 1910 T.P.D. 1026. D
(4) Levco Investments (Pty.) Ltd. v. Standard Bank of South Africa 1983 (4) S.A. 921 (A).
(5) Dickinson and Another v. Fisher's Executors 1914 A.D. 424.
(6) Steytler v. Fitzgerald 1911 A.D. 295.
(7) Heyman v. Yorkshire Insurance Co. Ltd. 1964 (1) S.A. 483 (A). E
(8) Van Streepen and Germs (Pty.) Ltd. v. Transvaal Provincial Administration 1987 (4) S.A. 569 (A).
(9) Bekker NO v. Total South Africa (Pty.) Ltd. 1990 (3) S.A. 159 (T).
(10) Zweni v. Minister of Law and Order 1993 (1) S.A. 523 (A).
Appeal against the dismissal by the High Court of an application to dismiss the main application at the end of the F applicant's case therein. The
facts are fully set out in the judgment of Schreiner J.A.
B.S. Spilg for the appellant.
Judgment
Schreiner J.A. G
© 2018 Juta and Company (Pty) Ltd. Downloaded : Fri Aug 18 2023 09:11:25 GMT+0200 (South Africa Standard Time)
The appellant is often called "Debswana" and in some of the papers before the court "De Beers Botswana Mining Co. (Pty) Limited". I will refer to
it as "Debswana".
Held: (1) what the appellant had applied for was similar in its
1993 BLR p238
SCHREINER JA
fundamental nature to an application for absolution from the instance. It had not closed its case in the sense that A it had not abandoned the
right which it had to put the deponents to its affidavits and others in respect of whom due notice had been given into the witnessbox.
(2) There was no merit in rendering subject to appeal a decision by a court which, in essence, was merely that the case should take its ordinary
course and be decided when the parties had led all their evidence.
(3) The appeal was accordingly wrongly on the roll and was struck off. B
Per curiam: Once a hearing on the merits has commenced incidental applications should properly be brought before the judge who was in the
process of hearing the merits. From the point when the hearing starts until the point when it ends by a decision on the merits, the judge hearing
the matter should be left with sole responsibility to give any incidental ruling that might be required. It was undesirable to permit a party to
litigation to approach another judge while a matter was in the process of being heard. C
Case Information
Cases referred to:
(1) Diphoko v. Kweneng Land Board (Practice Note) [1991] B.L.R. 192.
(2) Metallurgical and Commercial Consultants (Pty.) Ltd. v. Metal Sales Co. (Pty.) Ltd. 1971 (2) S.A. 388 (W).
(3) Caro v. Tulley 1910 T.P.D. 1026. D
(4) Levco Investments (Pty.) Ltd. v. Standard Bank of South Africa 1983 (4) S.A. 921 (A).
(5) Dickinson and Another v. Fisher's Executors 1914 A.D. 424.
(6) Steytler v. Fitzgerald 1911 A.D. 295.
(7) Heyman v. Yorkshire Insurance Co. Ltd. 1964 (1) S.A. 483 (A). E
(8) Van Streepen and Germs (Pty.) Ltd. v. Transvaal Provincial Administration 1987 (4) S.A. 569 (A).
(9) Bekker NO v. Total South Africa (Pty.) Ltd. 1990 (3) S.A. 159 (T).
(10) Zweni v. Minister of Law and Order 1993 (1) S.A. 523 (A).
Appeal against the dismissal by the High Court of an application to dismiss the main application at the end of the F applicant's case therein. The
facts are fully set out in the judgment of Schreiner J.A.
B.S. Spilg for the appellant.
Judgment
Schreiner J.A. G
The appellant is often called "Debswana" and in some of the papers before the court "De Beers Botswana Mining Co. (Pty) Limited". I will refer to
it as "Debswana".
Debswana was the third respondent in an application brought by the present respondent (whom I will refer to as "Diphoko") to protect what he
claimed was his present, but not necessarily permanent, right to extract water H from a Debswana pipeline which carries water from what is
termed the Northern Well Field to the mining lease area where the Jwaneng Diamond Mine is situated. Diphoko has a cattle farm on a piece of
land 7300 hectares in extent which abuts no the pipeline.
The founding affidavit of Diphoko alleges that he was obliged to give
1993 BLR p239
SCHREINER JA
notice to the Kweneng Land Board and the Jwaneng authorities before he started drilling for water on his farm. A When he did so, he was told
that, if the pumping of the Jwaneng Mine affected the water level of the boreholes, Debswana would either deepen them or drill new ones. He
drilled six holes. The boreholes started drying up in 1988 and he says that he reported the matter to the Land Board and told it and Debswana
that the drying up was due to the pumping operations at the mine and in the Northern Well Fields. B
Diphoko then says that, when he reported the matter to the board, the secretary told him that Debswana would supply the farm with water
from the pipeline. Debswana then connected the farm to the pipeline in June 1990, but he was told that this was only an interim measure and
that a geophysical examination would be undertaken on the basis of which they would take appropriate action. He said that he himself asked for
a geophysical investigation and it was reported to him that his boreholes were in the Karoo Basin margin in the same C hydrogeological
environment as the Jwaneng production well fields.
On 26 September 1990 he was told that Debswana had closed off his water supply and the resultant dispute came to a head in an urgent
application asking for an interdict and an order that he be reconnected to the pipeline. A rule nisi operating as an interim interdict was also
requested returnable on 25 November 1990. D
On 30 October 1990 Horwitz Ag J. granted an order directing, as an interim measure, the reconnection of the water supply and issued a rule
calling upon Debswana and the other respondents to show cause on 25 November 1990 why Debswana should not be interdicted from
disconnecting or cutting the supply of water from its pipeline to Diphoko's farm and why the instruction by the Kweneng District Council to
Debswana should not E be declared null and void and why costs should not be awarded against any party opposing the grant of the application.
On 9 April 1991 the same learned judge in Aiphoko v. Kwemens Land Board (Practice Note) [1991] B.L.R. 192 made an interim order in favour of
Diphoko continuing the interdict and referring the disputed issues to a hearing F with oral evidence. The order was in the form formulated by
Colman J. in Metallurgical and Commercial Consultants (Pty.) Ltd. v. Metal Sales Co. (Pty.) Ltd. 1971 (2) S.A. 388 (W). Attached to the
judgment is a document headed "issues", which contains five matters for determination. Issue (a) raises the question of whether Diphoko's
boreholes were affected by the pumping of water at the Northern Well Fields and issue (b) whether the pumping of water from the SK7 mine pit
on the mine property affected Diphoko's boreholes. The last G issue, (f), was whether Debswana promised Diphoko a supply of water on an
interim basis pending a geophysical survey to be conducted by the former.
On 1 June 1992 the matter came to the hearing of oral evidence and a Mr.Larkin was called on behalf of Diphoko. He expressed the view that,
though the Northern Well Fields would not affect Diphoko's boreholes, the H pumping of water from Jwaneng mine pit probably would, merely on
the basis that there was a downhill flow from the farm toward the mine pit.
The secretary of the Kweneng Land Board gave evidence concerning a conversation with a Mr. Lubinda of Debswana which resulted in the
appellant offering, as an interim measure, to connect the farm with the
The founding affidavit of Diphoko alleges that he was obliged to give
1993 BLR p239
SCHREINER JA
notice to the Kweneng Land Board and the Jwaneng authorities before he started drilling for water on his farm. A When he did so, he was told
that, if the pumping of the Jwaneng Mine affected the water level of the boreholes, Debswana would either deepen them or drill new ones. He
drilled six holes. The boreholes started drying up in 1988 and he says that he reported the matter to the Land Board and told it and Debswana
that the drying up was due to the pumping operations at the mine and in the Northern Well Fields. B
Diphoko then says that, when he reported the matter to the board, the secretary told him that Debswana would supply the farm with water
from the pipeline. Debswana then connected the farm to the pipeline in June 1990, but he was told that this was only an interim measure and
that a geophysical examination would be undertaken on the basis of which they would take appropriate action. He said that he himself asked for
a geophysical investigation and it was reported to him that his boreholes were in the Karoo Basin margin in the same C hydrogeological
environment as the Jwaneng production well fields.
On 26 September 1990 he was told that Debswana had closed off his water supply and the resultant dispute came to a head in an urgent
application asking for an interdict and an order that he be reconnected to the pipeline. A rule nisi operating as an interim interdict was also
requested returnable on 25 November 1990. D
On 30 October 1990 Horwitz Ag J. granted an order directing, as an interim measure, the reconnection of the water supply and issued a rule
calling upon Debswana and the other respondents to show cause on 25 November 1990 why Debswana should not be interdicted from
disconnecting or cutting the supply of water from its pipeline to Diphoko's farm and why the instruction by the Kweneng District Council to
Debswana should not E be declared null and void and why costs should not be awarded against any party opposing the grant of the application.
On 9 April 1991 the same learned judge in Aiphoko v. Kwemens Land Board (Practice Note) [1991] B.L.R. 192 made an interim order in favour of
Diphoko continuing the interdict and referring the disputed issues to a hearing F with oral evidence. The order was in the form formulated by
Colman J. in Metallurgical and Commercial Consultants (Pty.) Ltd. v. Metal Sales Co. (Pty.) Ltd. 1971 (2) S.A. 388 (W). Attached to the
judgment is a document headed "issues", which contains five matters for determination. Issue (a) raises the question of whether Diphoko's
boreholes were affected by the pumping of water at the Northern Well Fields and issue (b) whether the pumping of water from the SK7 mine pit
on the mine property affected Diphoko's boreholes. The last G issue, (f), was whether Debswana promised Diphoko a supply of water on an
interim basis pending a geophysical survey to be conducted by the former.
On 1 June 1992 the matter came to the hearing of oral evidence and a Mr.Larkin was called on behalf of Diphoko. He expressed the view that,
though the Northern Well Fields would not affect Diphoko's boreholes, the H pumping of water from Jwaneng mine pit probably would, merely on
the basis that there was a downhill flow from the farm toward the mine pit.
The secretary of the Kweneng Land Board gave evidence concerning a conversation with a Mr. Lubinda of Debswana which resulted in the
1993 BLR p240
SCHREINER JA
pipeline before doing a geophysical analysis. Diphoko also gave evidence. A
When the evidence on behalf of Diphoko had been given Debswana applied for what Horwitz Ag J. described as "absolution from the instance"
which was in the form of an application for a discharge of the rule nisi and the interim interdict at the end of the oral evidence for Diphoko. The
exact nature of the relief sought will be dealt with later in this judgment. I will assume, without deciding, that this procedural step was
competent, notwithstanding B that, unlike absolution from the instance in trial matters, there is no mention of the possibility of such a
procedure in the rules governing the conduct of applications.
Counsel for Debswana argued that, because Larkin had expressed the view that the Northern Well Fields had not affected the boreholes on the
farm and that, on the evidence, any agreement for the supply of water had been conditional upon the Northern Well Fields being the cause of
the drying of Diphoko's boreholes, Debswana C had no case to meet.
In his judgment on the matter Horwitz Ag J. expressed the view that the pumping out of the mine pits could have affected the boreholes and
said "I am not prepared to decide this case without hearing Mr. Harrison or other witnesses on behalf of the third respondent [Debswana] and
their replies in crossexamination". He refused to discharge the rule at that stage and extended it to 6 November "for mention". Costs of the
application for D absolution were awarded to Diphoko.
It is to be noted that Debswana did not say that it was closing its case nor did it do so later. It is therefore not necessary to decide whether a
party may finally close its case in these circumstances without tendering its witnesses for crossexamination as apparently required by the
previous order of court. E
On 6 October 1992 a "notice of motion for leave to appeal" was filed. The decision appealed against was the refusal to lift the interim interdict
and to discharge the rule as set out above. Attached to the notice of motion for leave to appeal was an affidavit by the secretary of the
appellant, Mr. Matome, in which he confined the evidence on any agreement there might have been to one relating to the Northern Well Fields
only and so, with the F evidence of Larkin to the effect that this source did not affect the boreholes on the farm, he made out a case for the
grant of the socalled "application for absolution". The secretary also put forward a case for the convenience of granting leave to appeal at a
stage when the evidence had not necessarily been concluded and ended his affidavit with the following: G
"10.1 The resumed hearing of this matter can only take place during the course of the next year. The Court of Appeal I am advised and verily
believe sits at the end of November to early December this year. It is respectfully submitted that this application ought to be disposed of one way or
another in good time prior to the end of October 1992 so that the matter may be placed before the Court of Appeal during this year's session. H
10.2 I am advised that it is unnecessary for the Judge a quo to hear this matter and that he in fact will only be returning to the High Court on 1
November 1992."
Horwitz Ag J. had left on leave on the day after he delivered the decision above referred to.
1993 BLR p241
SCHREINER JA
On 20 October 1992 the application for leave to appeal came before Mr. Acting Justice L.A. Maine and leave to A appeal to this court was
granted. We were told that the other parties were notified of the date of the hearing of the application but did not appear to oppose.
Before arguing the merits of the dispute, counsel for Debswana was asked to deal with two preliminary matters. The first was whether, even
with leave of the High Court, the decision of Horwitz Ag J. refusing the application to B have the rule discharged and the interim order for the
supply of water set aside, was appealable and the second, whether, if it was, it was competent for a judge who was not seised of the main
dispute to hear the application for leave to appeal.
At the conclusion of argument the court decided that the matter was not properly before it and ordered that it be struck off the roll with costs.
Reasons were to be given later. These follow. C
Section 10 of the Court of Appeal Act (Cap 04:01) provides for an appeal from the High Court to the Court of Appeal as of right in certain
circumstances. One category of matter which may be so appealed against is any "final decision of the High Court sitting at first instance". The
others are not relevant. Section 11 provides that, subject to s. 10, an appeal will lie from any "decision" of the High Court to the Court of
Appeal with the leave of D the High Court or, if such leave has been refused, with the leave of the Court of Appeal, in five cases. One of these
1993 BLR p240
SCHREINER JA
pipeline before doing a geophysical analysis. Diphoko also gave evidence. A
When the evidence on behalf of Diphoko had been given Debswana applied for what Horwitz Ag J. described as "absolution from the instance"
which was in the form of an application for a discharge of the rule nisi and the interim interdict at the end of the oral evidence for Diphoko. The
exact nature of the relief sought will be dealt with later in this judgment. I will assume, without deciding, that this procedural step was
competent, notwithstanding B that, unlike absolution from the instance in trial matters, there is no mention of the possibility of such a
procedure in the rules governing the conduct of applications.
Counsel for Debswana argued that, because Larkin had expressed the view that the Northern Well Fields had not affected the boreholes on the
farm and that, on the evidence, any agreement for the supply of water had been conditional upon the Northern Well Fields being the cause of
the drying of Diphoko's boreholes, Debswana C had no case to meet.
In his judgment on the matter Horwitz Ag J. expressed the view that the pumping out of the mine pits could have affected the boreholes and
said "I am not prepared to decide this case without hearing Mr. Harrison or other witnesses on behalf of the third respondent [Debswana] and
their replies in crossexamination". He refused to discharge the rule at that stage and extended it to 6 November "for mention". Costs of the
application for D absolution were awarded to Diphoko.
It is to be noted that Debswana did not say that it was closing its case nor did it do so later. It is therefore not necessary to decide whether a
party may finally close its case in these circumstances without tendering its witnesses for crossexamination as apparently required by the
previous order of court. E
On 6 October 1992 a "notice of motion for leave to appeal" was filed. The decision appealed against was the refusal to lift the interim interdict
and to discharge the rule as set out above. Attached to the notice of motion for leave to appeal was an affidavit by the secretary of the
appellant, Mr. Matome, in which he confined the evidence on any agreement there might have been to one relating to the Northern Well Fields
only and so, with the F evidence of Larkin to the effect that this source did not affect the boreholes on the farm, he made out a case for the
grant of the socalled "application for absolution". The secretary also put forward a case for the convenience of granting leave to appeal at a
stage when the evidence had not necessarily been concluded and ended his affidavit with the following: G
"10.1 The resumed hearing of this matter can only take place during the course of the next year. The Court of Appeal I am advised and verily
believe sits at the end of November to early December this year. It is respectfully submitted that this application ought to be disposed of one way or
another in good time prior to the end of October 1992 so that the matter may be placed before the Court of Appeal during this year's session. H
10.2 I am advised that it is unnecessary for the Judge a quo to hear this matter and that he in fact will only be returning to the High Court on 1
November 1992."
1993 BLR p241
SCHREINER JA
is an appeal "from any interlocutory order" (subpara. (a)). There is no definition of "the High Court" in the Act. The first issue raised involves an
examination of the meaning of the words "decision" and "any interlocutory order" and the second the meaning of the phrase "the High Court" in
s. 11. E
If one approaches the first issue from a purely grammatical point of view it would seem that there was indeed "a decision" of the High Court in
the present case, but no "order" interlocutory or not interlocutory. Horwitz Ag. J. was asked by Debswana to make a decision as to whether or
not to dismiss the application without hearing further oral evidence. His decision was that he would not do so. But did he make an order? Unless
the order was F constituted by his statement that no order should be made, he did not (see Caro v. Tulley 1910 T.P.D. 1026 at p. 1027). All
that the learned judge said was that he was not prepared to decide the case without hearing Harrison or other witnesses on behalf of
Debswana and for this reason he refused to discharge the rule at that stage. G
Counsel for Debswana argued strenuously that this was not a case where an application for absolution from the instance at the end of the
plaintiff's case had been made, because such a procedure was appropriate only to trial proceedings (see Ord. 45, r. 7 of the High Court Rules).
He quoted authority for the proposition that the mere fact that an application based on affidavit evidence had been referred to evidence on
specified issues did not convert the application into a trial. It remained an application. This may well be so, but what has to be decided H here
is whether the application which Debswana made at the end of oral evidence on behalf of Diphoko in the present case could be regarded as
similar in its fundamental nature to an application for absolution in terms of Ord. 45, r. 7. It seems to me that it is. Debswana was asking the
court, at a stage when the evidence had not been completed, to
1993 BLR p242
SCHREINER JA
refuse to grant any of the relief sought. It had not closed its case in the sense that it had not abandoned the right A which it had to put the
deponents to its affidavits and others in respect of whom due notice had been given into the witnessbox. It was therefore, in my view, the
equivalent of an application for absolution from the instance at the end of the plaintiff's case in a trial action.
This being so, it seems that the reasoning in Levco Investments (Pty.) Ltd. v. Standard Bank of South Africa B 1983 (4) S.A. 921 (A) applied.
The Appellate Division of South Africa held that the dismissal of an application for absolution from the instance at the end of the plaintiff's case
was not appealable in terms of s. 20(2)(b) of the Supreme Court Act 59 of 1959. The relevant part of the section provides, inter alia, that:
"(b) . . . no interlocutory order shall be subject to appeal save with the leave of the court by which the judgment was given or the order was
made." C
The Appellate Division drew attention to the distinction which had been drawn in Dickinson and Another v. Fisher's Executors 1914 A.D. 424
between a "decision or ruling of a court during the progress of a suit" and an D order which is appealable and also to the remarks of Lord De
Villiers in Steytler v. Fitzgerald 1911 A.D. 295 where he states that there is a difference between the appealability of a decision to grant
absolution from the instance and a decision to refuse it. The latter is "purely interlocutory", i.e. "it does not have the effect of a definitive
sentence as the final word in that suit has still to be spoken". E
1993 BLR p241
SCHREINER JA
is an appeal "from any interlocutory order" (subpara. (a)). There is no definition of "the High Court" in the Act. The first issue raised involves an
examination of the meaning of the words "decision" and "any interlocutory order" and the second the meaning of the phrase "the High Court" in
s. 11. E
If one approaches the first issue from a purely grammatical point of view it would seem that there was indeed "a decision" of the High Court in
the present case, but no "order" interlocutory or not interlocutory. Horwitz Ag. J. was asked by Debswana to make a decision as to whether or
not to dismiss the application without hearing further oral evidence. His decision was that he would not do so. But did he make an order? Unless
the order was F constituted by his statement that no order should be made, he did not (see Caro v. Tulley 1910 T.P.D. 1026 at p. 1027). All
that the learned judge said was that he was not prepared to decide the case without hearing Harrison or other witnesses on behalf of
Debswana and for this reason he refused to discharge the rule at that stage. G
Counsel for Debswana argued strenuously that this was not a case where an application for absolution from the instance at the end of the
plaintiff's case had been made, because such a procedure was appropriate only to trial proceedings (see Ord. 45, r. 7 of the High Court Rules).
He quoted authority for the proposition that the mere fact that an application based on affidavit evidence had been referred to evidence on
specified issues did not convert the application into a trial. It remained an application. This may well be so, but what has to be decided H here
is whether the application which Debswana made at the end of oral evidence on behalf of Diphoko in the present case could be regarded as
similar in its fundamental nature to an application for absolution in terms of Ord. 45, r. 7. It seems to me that it is. Debswana was asking the
1993 BLR p242
SCHREINER JA
made." C
The judgment in the Levco case supra also contains a reference to Heyman v. Yorkshire Insurance Co. Ltd. 1964 (1) S.A. 487 (A) and the
desirability of not opening the door to fractional disposal of actions and other proceedings and the piecemeal hearing of appeals on each part of
the action or other proceedings disposed of by the court of first instance.
On behalf of the appellant it was argued that the cases such as Van Streepen and Germs (Pty) Ltd. v. F Transvaal Provincial Administration
1987 (4) S.A. 569 (A) and Bekker NO v. Total South Africa (Pty.) Ltd. 1990 (3) S.A. 159 (T) have indicated a recent change in approach in
South Africa in favour of a more liberal attitude to the right of appeal. At the outset it must be said that, since the decision in the Levco case,
there have been no doubts expressed as to its correctness and that in Bekker's case supra it was distinguished as being a case G "where a
litigant in medias res seeks relief on appeal against truly interlocutory orders made in the course of a trial". In the Van Streepen's case,
although the court refers to a more "flexible and relaxed approach" (p. 585I), it does not question the distinction which has always been drawn
between a judgment or order and a mere "ruling" or a simply interlocutory order which does not "dispose of any issue or any portion of the main
action or suit" (p. H 583E F).
The Appellate Division of South Africa has recently in Zweni v. Minister of Law and Order 1993 (1) S.A. 523 (A) dealt with the distinction
between a "ruling" and a "judgment and order" which may be appealed against with the leave of the court hearing the matter or, if this is
refused, where leave is
1993 BLR p243
SCHREINER JA
granted pursuant to a petition to the Chief Justice (see s. 21 of the Supreme Court Act 59 of 1959 as amended). A The judgment was given in
respect of a different section with a different legislative history and is cited only because certain parts of it are applicable to the provision of
the Botswana Statute now under consideration. At p. 532 Harms A.J.A. says:
"'A judgment or order is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible
to alteration by the Court of first instance; second, it must be definitive of the rights of the B parties; and, third, it must have the effect of disposing
of at least a substantial portion of the relief claimed in the main proceedings (Van Streepen & Germs (Pty.) Ltd. case supra at 586I587B; Marsay v.
Dilley 1992 (3) S.A. 944 (A) 962CF). The second is the same as the oftstated requirement that a decision, in order to qualify as a judgment or order,
must C grant definite and distinct relief (Willis Faber Enthoven (Pty.) Ltd. v. Receiver of Revenue and Another 1992 (4) S.A. 202)."
The learned judge summarises the nature of a nonappealable decision at first instance at p. 536 as follows: D
"In the light of these tests and in view of the fact that a ruling is the antithesis of a judgment or order, it appears to me that, generally speaking, a
nonappealable decision (ruling) is a decision which is not final (because the Court of first instance is entitled to alter it), nor definitive of the rights of
the parties nor has the effect of disposing of at least a substantial portion of E the relief claimed in the main proceedingsh.
This conclusion is not in conflict with the suggestion of Corbett JA in the Van Streepen and Germs case supra at 587E (and echoed in later cases)
that his decision might have the effect of enlarging the meaning of 'judgment or order'. That dictum of the learned Judge of Appeal must be read in its
context. He was dealing with the question whether a decision F which does not dispose of all the issues in a case can be said to be a 'judgment or
1993 BLR p242
SCHREINER JA
made." C
The judgment in the Levco case supra also contains a reference to Heyman v. Yorkshire Insurance Co. Ltd. 1964 (1) S.A. 487 (A) and the
desirability of not opening the door to fractional disposal of actions and other proceedings and the piecemeal hearing of appeals on each part of
the action or other proceedings disposed of by the court of first instance.
On behalf of the appellant it was argued that the cases such as Van Streepen and Germs (Pty) Ltd. v. F Transvaal Provincial Administration
1987 (4) S.A. 569 (A) and Bekker NO v. Total South Africa (Pty.) Ltd. 1990 (3) S.A. 159 (T) have indicated a recent change in approach in
South Africa in favour of a more liberal attitude to the right of appeal. At the outset it must be said that, since the decision in the Levco case,
there have been no doubts expressed as to its correctness and that in Bekker's case supra it was distinguished as being a case G "where a
litigant in medias res seeks relief on appeal against truly interlocutory orders made in the course of a trial". In the Van Streepen's case,
although the court refers to a more "flexible and relaxed approach" (p. 585I), it does not question the distinction which has always been drawn
between a judgment or order and a mere "ruling" or a simply interlocutory order which does not "dispose of any issue or any portion of the main
action or suit" (p. H 583E F).
The Appellate Division of South Africa has recently in Zweni v. Minister of Law and Order 1993 (1) S.A. 523 (A) dealt with the distinction
between a "ruling" and a "judgment and order" which may be appealed against with the leave of the court hearing the matter or, if this is
1993 BLR p243
SCHREINER JA
order'. He held that it could if, consistent with principle, it was final (see 587DH) and had the other attributes of a 'judgment or order' (see 586IJ)
referred to earlier."
There may be merit, in order to secure a balance between the various considerations which have to be taken G into account in securing, as far
as possible, a fair, expeditious and inexpensive hearing of issues raised in proceedings before a court, to adopt a more flexible and relaxed
approach in certain departments of the law relating to appealability. In the present case, however, I can see no merit in rendering subject to
appeal with leave a decision by the court which, in essence, is merely that the case should take its ordinary course and be H decided when the
parties have led all their evidence.
Counsel for the appellant tried to urge that in the present case a decision having the effect of disposing of the case should clearly have been
given by the trial court and that there was no case at all made out at the conclusion of the viva voce evidence for Diphoko. To decide this, it
would be necessary to go into the facts and merits of the appeal itself which at this stage cannot be
1993 BLR p244
SCHREINER JA
done. I am therefore of the view that the appeal was wrongly on the roll and for this reason it was struck off. A
In the light of my conclusion on the first issue raised by the court it is not necessary to come to a final decision as to whether Maine Ag.J. had
jurisdiction to entertain the application for leave to appeal in the absence of Horwitz Ag. J. who was on leave. The remarks which follow are
intended merely to indicate what, in the view of this court, is the desirable position and best designed to achieve the purposes of justice. B
Order 12, r. 12 provides that notwithstanding the foregoing rules, "interlocutory and other applications incidental to pending proceedings may be
brought on notice supported by such affidavits as the case may require and set down at a time assigned by the Registrar or as directed by the
judge." "Pending proceedings" in this context means proceedings which have been initiated but have not yet come to a hearing. Once the
hearing on the C merits has commenced, incidental applications should properly be brought before the judge who is in the process of hearing
the merits.
At the stage of proceedings when a judge has been assigned the task of deciding the merits of a dispute, he should be in control and, subject
to the Rules of Court, entitled to preside over all the steps which are taken during the hearing. A party to the proceedings should not be
allowed to involve another judge in interlocutory D steps. The trial of the merits of a matter is given to a particular judge and, from the point
when the hearing starts until the point when it ends by a decision on the merits, he should be left with sole responsibility to give any incidental
rulings that might be required. Before that stage is reached, the various procedural steps may be handled by other judges who happen to be
allocated to deal with them. After judgment, matters such as the stay E of execution pending appeal and disputes concerning the taxation of
costs may be handled by any judge allotted to the work. But between the commencement of the hearing and the judgment it is the presiding
judge who should control all the steps because it is he who has to decide the case. F
Debswana brought the application for leave to appeal before a court consisting of a judge who had had nothing to do with the matter. The
1993 BLR p243
SCHREINER JA
order'. He held that it could if, consistent with principle, it was final (see 587DH) and had the other attributes of a 'judgment or order' (see 586IJ)
referred to earlier."
There may be merit, in order to secure a balance between the various considerations which have to be taken G into account in securing, as far
as possible, a fair, expeditious and inexpensive hearing of issues raised in proceedings before a court, to adopt a more flexible and relaxed
approach in certain departments of the law relating to appealability. In the present case, however, I can see no merit in rendering subject to
appeal with leave a decision by the court which, in essence, is merely that the case should take its ordinary course and be H decided when the
parties have led all their evidence.
Counsel for the appellant tried to urge that in the present case a decision having the effect of disposing of the case should clearly have been
given by the trial court and that there was no case at all made out at the conclusion of the viva voce evidence for Diphoko. To decide this, it
1993 BLR p244
SCHREINER JA
the merits.
grounds for doing so were that the trial judge was not available for some weeks, that the Appeal Court was sitting in the relatively near future
and that it would be in the interests of justice that any appeal should be disposed of without delay so that, one way or another, the conclusion
of the case could be G expedited. There is substance in these arguments, but they are outweighed by the undesirability of permitting a party to
litigation to approach another judge while a matter is in process of being heard, thus interfering with the control of the hearing judge.
The order in this matter has already been made, namely that the appeal is struck off the roll with costs. H
Amissah J.P. I agree.
Bizos J.A. I agree.
Appeal struck off the noll.
1993 BLR p245
1993 BLR p244
SCHREINER JA
the merits.
grounds for doing so were that the trial judge was not available for some weeks, that the Appeal Court was sitting in the relatively near future
and that it would be in the interests of justice that any appeal should be disposed of without delay so that, one way or another, the conclusion
of the case could be G expedited. There is substance in these arguments, but they are outweighed by the undesirability of permitting a party to
litigation to approach another judge while a matter is in process of being heard, thus interfering with the control of the hearing judge.
The order in this matter has already been made, namely that the appeal is struck off the roll with costs. H
Amissah J.P. I agree.
Bizos J.A. I agree.
1993 BLR p245
1993 BLR p245

DE BEERS BOTSWANA (PTY) LTD v. DIPHOKO 1993 BLR 237 (CA)

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DE BEERS BOTSWANA (PTY) LTD v. DIPHOKO 1993 BLR 237 (CA)

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