THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 167/2021

In the matter between:
LUKE M TEMBANI
FIRST APPELLANT
LMT ESTATES (PVT) LTD
SECOND APPELLANT
WYNAND HART
THIRD APPELLANT
QUEENSDALE ENTERPRISES (PVT)
LTD
FOURTH APPELLANT

MADODA ENTERPRISES (PVT) LTD
FIFTH APPELLANT

KLIPDRIFT ENTERPRISES (PVT) LTD
SIXTH APPELLANT

MIKE CAMPBELL (PVT) LTD
SEVENTH APPELLANT

RICHARD THOMAS ETHERIDGE
EIGHTH APPELLANT

ANDREW KOCKOTT
NINTH APPELLANT

TENGWE ESTATES (PVT) LTD
TENTH APPELLANT

CHRISTOPHER MELLISH JARRETT
ELEVENTH APPELLANT

STUNULA RANCHING (PVT) LTD
TWELFTH APPELLANT

LUCHABI RANCH (PVT) LTD
THIRTEENTH APPELLANT

LARRY CUMMING
FOURTEENTH APPELLANT

FRANCE FARM (PVT) LTD
FIFTEENTH APPELLANT

MICHAEL IAN PATRICK ODENDAAL
SIXTEENTH APPELLANT

DEBORAH LOUISE ODENDAAL
SEVENTEENTH APPELLANT

GRASSFLATS FARM (PVT) LTD
EIGHTEENTH APPELLANT

MURIK MARKETING (PVT) LTD
NINETEENTH APPELLANT

GIDEON STEPHANUS THERON
TWENTIETH APPELLANT

EBEN HAESER (PVT) LTD
TWENTY-FIRST APPELLANT

EDEN FARM (PVT) LTD
TWENTY-SECOND APPELLANT

PETER HENNING
TWENTY-THIRD APPELLANT

CHIREDZI RANCHING
(PVT) LTD
TWENTY-FOURTH APPELLANT

BATALEURS PEAK FARM
HOLDINGS (PVT) LTD
TWENTY-FIFTH APPELLANT

and
PRESIDENT OF THE
FIRST RESPONDENT/
REPUBLIC OF SOUTH AFRICA
CROSS-APPELLANT
GOVERNMENT OF THE
SECOND RESPONDENT/
REPUBLIC OF SOUTH AFRICA
CROSS-APPELLANT

Neutral citation:  Luke M Tembani and Others v President of the Republic of
South Africa and Another (Case no 167/2021) [2022] ZASCA
70 (20 May 2022)
Coram:
PONNAN and MOLEMELA JJA and MUSI, MEYER and
PHATSHOANE AJJA
Heard:
5 May 2022

Delivered: 20 May 2022.
Summary: Exception – delictual claim – whether high court correct in upholding
exception based on causation – whether exception proceedings appropriate to
decide the factual and legal issues raised – appealability – dismissal of an
exception not appealable – conclusion that ‘no order is required to be made’ in a
conditional application not an appealable order.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Van Oosten J,
sitting as court of first instance):
(1)
The appeal is upheld, and the cross-appeal is struck from the roll, in each
instance with costs, including those of two counsel.
(2)
The order of the court below is set aside and replaced with the following:
‘The defendants’ exception to the plaintiffs’ second amended particulars
of claim dated 18 March 2020 is dismissed with costs, including those of
two counsel.’
________________________________________________________________

JUDGMENT
________________________________________________________________
Ponnan JA (Molemela JA and Musi, Meyer and Phatshoane AJJA
concurring)
[1] To facilitate what has been described as an ambitious land and agrarian
reform programme, the Constitution of the Republic of Zimbabwe was amended
to provide for land expropriation without compensation, as also, to remove the
jurisdiction of the domestic courts of Zimbabwe over disputes relating to
expropriation without compensation.1 Some farmers, including South African
citizens, who had lost their land in consequence of the implementation of the
programme, turned to the Southern African Development Community (SADC)
Tribunal (the Tribunal). The Tribunal held that the jurisdiction of the
Zimbabwean courts had been ousted ‘from any case related to the acquisition of
agricultural land and that the applicants [in that matter] were therefore unable to

1 Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC
51; 2019 (3) BCLR 329 (CC); 2019 (3) SA 30 (CC) para 10.

institute proceedings under the domestic jurisdiction’.2 It concluded that
Zimbabwe was in breach of certain of its obligations under the SADC Treaty (the
Treaty)3 and, inter alia, ordered it to pay fair compensation. Zimbabwe, however,
failed to comply with the order of the Tribunal.

[2] In September 2009, at a meeting of the Summit (being the supreme
executive body constituted by the Treaty and comprising the Heads of State of
the member states of SADC) held in Kinshasa in the Democratic Republic of
Congo, Zimbabwe’s failure to comply with the decisions of the Tribunal was
raised. It was resolved to ask the Committee of Ministers of Justice and
Attorneys-General (the Committee) to hold a meeting on the legal issues
regarding Zimbabwe and to advise the Summit. The Committee was also asked
to ‘review the roles, responsibilities and terms of reference of the Tribunal’.

[3] At a meeting of Heads of State and Government, held in Windhoek,
Namibia on 16 and 17 August 2010, further ‘acts of non-compliance by the
Republic of Zimbabwe with regard to the Tribunal’s earlier decisions’ arose for
discussion. The Summit resolved not to re-appoint, for another five-year term,
members of the Tribunal, whose term of office expired in August 2010, pending
the report from the Committee. In May 2011, it was decided, in effect, to suspend
the operations of the Tribunal by neither re-appointing Members of the Tribunal,
whose term of office had expired in 2010, nor replacing those whose term would
expire in 2011.4 In the result, the Tribunal was effectively disabled and unable to
function.

2 See Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe [2008] SADCT 2.
3 See Government of the Republic of Zimbabwe v Fick and Others [2013] ZACC 22; 2013 (10) BCLR 1103 (CC);
2013 (5) SA 325 (CC).
4 Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZAGPPHC
4; [2018] 2 All SA 806 (GP); 2018 (6) BCLR 695 (GP) para 20.

[4] Thereafter, on 18 August 2014 and at Victoria Falls, Zimbabwe, the
Summit adopted a new Protocol (the 2014 Protocol). The 2014 Protocol abolished
access by all private individuals to the Tribunal. Thus, instead of facilitating
enforcement of the Tribunal’s decisions, the Summit chose to disregard the
binding Treaty obligations of member states. It treated the relevant Treaty
provisions and the Tribunal decisions as non-existent and also violated the
undertaking to support and promote the Tribunal, whose decisions are supposed
to bind member states and, by extension, the Summit.

[5] The appellants are all private individuals, who had claims arising, in each
instance, from the dispossession by the Government of Zimbabwe (contrary to
the Treaty and International Law) of farms owned, registered or worked by each
of them. Those claims would have been justiciable before the Tribunal, prior to
the adoption of the 2014 Protocol.

[6] The then South African President’s negotiation and signing of the 2014
Protocol was subsequently challenged in litigation on the grounds that it was
unconstitutional, unlawful and irrational. So too, his decision to make common
cause with his peers to not appoint or re-appoint (as the case may be) Members
or Judges to the Tribunal and to suspend the operations of the latter. The
application was launched by the Law Society of South Africa (the LSSA) on 19
March 2015. Some of the current appellants applied for leave to intervene in the
application. Both the intervention application and the review application
succeeded. A Full Court of the Gauteng Division of the High Court, Pretoria (the
full court), sitting as a court of first instance (by virtue of the importance of the
matter), declared on 1 March 2018 that the President’s participation in suspending
the operations of the SADC Tribunal and his subsequent signing of the 2014
Protocol was unlawful, irrational and thus, unconstitutional. In terms of s

172(2)(a) of the Constitution, the full court referred its order to the Constitutional
Court for confirmation.5

[7] In a judgment delivered on 11 December 2018, the Constitutional Court
confirmed the full court’s declaration of unconstitutionality.6 In arriving at that
conclusion, the Constitutional Court held:
‘[44] . . . every issue that arose for determination is, or is traceable to, an offshoot of a
masterplan that was devised by the Summit at the instance of the Republic of Zimbabwe.
Clearly, Zimbabwe did not want to comply with the unfavourable decisions made against it by
the Tribunal. It then crafted a strategy that would be fatal to the possibility of the Tribunal ever
embarrassing it again.
[45] In all of the above efforts to paralyse the Tribunal, Zimbabwe had a willing ally in South
Africa, as represented by our President. The non-appointment of new Judges and non-renewal
of expired terms was a scheme designed to ensure that the Tribunal would not function because
it would not be quorate. Added to this mix was the decision to impose a moratorium on the
referral of individual disputes to the Tribunal and the signing of the Protocol that seeks to
essentially make this state of affairs permanent.’

[8] Three days after the Constitutional Court handed down its judgment in the
matter, the attorney for the appellants served a notice in terms of s 3(1)(a) of the
Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002
(the Act) on the State Attorney, pursuant to which ten of the appellants gave
notice of their intention to institute claims for damages against the President of
the Republic of South Africa and the Government of the Republic of South Africa

5 Ibid para 72.
6 Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC
51; 2019 (3) BCLR 329 (CC); 2019 (3) SA 30 (CC).

(the respondents).7 The response to the notice from the State Attorney on behalf
of the respondents was:
‘. . . the President does not acknowledge or admit your clients’ claims.
In response to paragraph 5 of the Notice, the president does contend that the Notice has not
been sent within the period prescribed in the act and accordingly intends relying on the failure
to serve the notice timeously.’

[9] On 15 January 2019, the appellants’ attorney served what was described as
a ‘supplementary notice in terms of section 3(1)(a)’ to, as it was put, ‘clarify, and
in certain respects, correct our letter of 14 December 2018’. The supplementary
notice made reference to all 25 of the appellants as well as the various amounts
claimed by each. On 18 January 2019, the State Attorney reiterated that the
appellants’ claims were not admitted and that the notice and supplementary notice
had not been sent within the period prescribed in the Act.

[10] On 9 April 2019, the appellants issued and served: (i) a conditional
condonation application, seeking, to the extent necessary, that any non-
compliance on their part with the provisions of s 3 of the Act, be condoned; and
(ii) a summons and particulars of claim. The respondents chose to meet the
particulars of claim by raising multiple exceptions. Although the particulars of
claim was subsequently amended, the respondents filed yet a further notice of
exception and also opposed the appellants’ conditional condonation application,
in the main, on the basis that the claims had prescribed. Consequently, the
exceptions and conditional condonation application were enrolled for hearing on

7 Section 3 of the Legal Proceedings Against Certain Organs of State Act provides:
‘(1) No legal proceedings for the recovery of a debt may be instituted against an organ of state unless-
(a) the creditor has given the organ of state in question notice in writing of his or her or its intention to
institute the legal proceedings in question; or
(b) the organ of state in question has consented in writing to the institution of that legal proceedings-
(i) without such notice; or

(ii) upon receipt of a notice which does not comply with all the requirements set out in subsection (2).’

the same day before Van Oosten J in the Gauteng Division of the High Court,
Pretoria (the high court)

[11] On 18 December 2020 the high court issued the following order:
‘1. Exception 1 (the factual causation exception) is upheld.
2. Exception 1 (the legal causation exception) is upheld in respect of the 1st, 2nd, 4th, 5th, 6th,
7th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 18th, 19th, 21st, 22nd, 24th, and 25th plaintiffs’ claims.
3. Exception 2 (the legal duty exception), exception 4 (the domestic remedies exception) and
exception 5 (the pain and suffering exception) are dismissed.
4. No order is made on exception 3 (the second plaintiff’s claim exception).
5. No order is made as to the costs of the condonation application and the exception.
6. Leave is granted to the plaintiffs to amend their particulars of claim by Notice of Amendment
to be delivered on or before 29 January 2021.’

[12] The appellants applied for leave to appeal against paragraphs 1, 2 and 5 of
the order of Van Oosten J. The respondents sought leave: (a) ‘only to the extent
that the court failed to grant an order dismissing the [appellants’] condonation
application and paragraph 5 of the order only in respect of the costs of the
[appellants’] condonation application; and (b) conditionally against paragraph 3
of the order ‘only in respect of the dismissal of Exception 2 (the legal duty
exception) in the event that the [appellants’] are granted leave to appeal against
paragraphs 1 and/or 2 of the order’.

[13] The high court granted leave to appeal to this Court in the following terms:
‘1. The plaintiffs are granted leave to appeal to the Supreme Court of Appeal against paragraphs
1 and 2 of the order delivered by the Honourable Mr Justice Van Oosten on 18 December 2020
(the order);
2. The defendants are granted leave to appeal to the Supreme Court of Appeal against paragraph
3 of the order, only in respect of the dismissal of Exception 2 (the legal duty exception);

3. The defendants are given leave to appeal to the Supreme Court of Appeal against the order
to the extent that the Court did not grant an order dismissing the plaintiffs’ condonation
application.
4. Subject to the right of either party to seek leave to appeal from the Constitutional Court
against a judgment by the Supreme Court of Appeal, the defendants accept that the
determination of the condonation application by the Supreme Court of Appeal will finally
determine the issue of whether the plaintiffs’ claims have prescribed.
5. The plaintiffs and the defendants are granted leave to appeal to the Supreme Court of Appeal
against paragraph 5 of the order.
6. The costs of the plaintiffs’ and defendants’ applications for leave to appeal shall be costs in
the appeal.’

[14] Whilst exceptions provide a useful mechanism ‘to weed out cases without
legal merit’, it is nonetheless necessary that they be dealt with sensibly.8 It is
where pleadings are so vague that it is impossible to determine the nature of the
claim or where pleadings are bad in law in that their contents do not support a
discernible and legally recognised cause of action, that an exception is
competent.9 The burden rests on an excipient, who must establish that on every
interpretation that can reasonably be attached to it, the pleading is excipiable.10
The test is whether on all possible readings of the facts no cause of action may be
made out; it being for the excipient to satisfy the court that the conclusion of law
for which the plaintiff contends cannot be supported on every interpretation that
can be put upon the facts.11

[15] In H v Fetal Assessment Centre, the Constitutional Court recognised that
there may be occasions when ‘the question of the development of the common

8 Telematrix (Pty) Ltd v Advertising Standards Authority SA [2005] ZASCA 73; 2006 (1) SA 461 (SCA) para 3.
9 Cilliers et al Herbstein & Van Winsen The Practice of the High Courts of South Africa 5ed Vol 1 at 631; Jowell
v Bramwell-Jones and Others 1998 (1) SA 836 (W) at 899E-F.
10 Ocean Echo Properties 327 CC and Another v Old Mutual Life Insurance Company (South Africa) Ltd [2018]
ZASCA 9; 2018 (3) SA 405 (SCA) para 9.
11 Trustees for the Time Being of the Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and
Others [2012] ZASCA 182; 2013 (2) SA 213 (SCA); 2013 (3) BCLR 279 (SCA); [2013] 1 All SA 648 (SCA)
para 36 (Children’s Resource Centre Trust).

law would be better served after hearing all the evidence’.12 Whilst there is no
general rule that issues relating to the development of the common law cannot be
decided on exception, however, where the ‘factual situation is complex and the
legal position uncertain’, it will normally be better not to do so.13 In this regard
reference was made to the Australian case of Harriton v Stephens, where Kirby J
(in dissent) observed:
‘Especially in novel claims asserting new legal obligations, the applicable common law tends
to grow out of a full understanding of the facts. To decide the present appeal on abbreviated
agreed facts risks inflicting an injustice on the appellant because the colour and content of the
obligations relied on may not be proved with sufficient force because of the brevity of the
factual premises upon which the claim must be built. Where the law is grappling with a new
problem, or is in a state of transition, the facts will often “help to throw light on the existence
of a legal cause of action – specifically a duty of care14 owed by the defendant to the plaintiff”.
Facts may present wrongs. Wrongs often cry out for a remedy. To their cry the common law
may not be indifferent.’15

[16] This approach ensures compliance with s 39(2) of the Constitution, which
requires courts to develop the common law by promoting the spirit, purport and
objects of the Bill of Rights, inasmuch as it places a court in a position to make a
final decision ‘after hearing all the evidence, and the decision can be given in the

12 H v Fetal Assessment Centre [2014] ZACC 34; 2015 (2) BCLR 127 (CC); 2015 (2) SA 193 (CC) para 11 (H v
Fetal Assessment Centre).
13 In Carmichele v Minister of Safety and Security [2001] ZACC 22; 2001 (4) SA 938(CC); 2001 (1) BCLR 995
(CC) para 80 the Constitutional Court held, as with some cases on exception, it was also better not to decide issues
about the development of the common law by an order granting absolution from the instance at the end of a
plaintiff’s case in a trial. It stated:
‘There may be cases where there is clearly no merit in the submission that the common law should be developed
to provide relief to the plaintiff. In such circumstances absolution should be granted. But where the factual
situation is complex and the legal position uncertain, the interests of justice will often better be served by the
exercise of the discretion that the trial Judge has to refuse absolution. If this is done, the facts on which the decision
has to be made can be determined after hearing all the evidence, and the decision can be given in the light of all
the circumstances of the case, with due regard to all relevant factors.’
14 It bears mention, as was pointed out in Home Talk Developments (Pty) Ltd and Others v Ekurhuleni
Metropolitan Municipality ZASCA 77; [2017] 3 All SA 382 (SCA); 2018 (1) SA 391 (SCA) para 25, that:
‘. . . in English law ‘‘duty of care’’ is used to denote both what in South African law would be the second leg of
the inquiry into negligence and legal duty in the context of wrongfulness. As Brand JA observed in Trustees, Two
Oceans Aquarium Trust at 144F, ‘‘duty of care’’ in English law ‘‘straddles both elements of wrongfulness and
negligence’’. Accordingly, the phrase ‘‘duty of care’’ in our legal setting is inherently misleading.’ (Footnotes
Omitted.)
15 Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52; (2006) 226 ALR 391 para 35.

light of all the circumstances of the case, with due regard to all relevant factors’.16
It is thus only if the court can conclude that it is impossible to recognize the claim,
irrespective of the facts as they might emerge at the trial, that the exception can
and should be upheld.17 Hence, courts must assess the various arguments for and
against the recognition of what may be perceived as a novel claim and in doing
so the normative matrix of the Constitution and the Bill of Rights must be applied
for the purposes of determining whether the claim may be recognised in law.18

[17] Indeed, as accepted in H v Fetal Assessment Centre:
‘Even if the conclusion is reached that the limits of our law of delict will be stretched beyond
recognition for harm of this kind to be recognised within its niche, our Constitution gives our
courts the liberty to develop motivated exceptions to common law rules or even recognise new
remedies for infringement of rights.’19
On this basis, the Constitutional Court held that the novel claim under
consideration in that case ‘is not necessarily inconceivable under our law’.20

[18] In Pretorius and Another v Transport Pension Fund and Another,21 the
Constitutional Court reiterated that exception proceedings are inappropriate to
decide the complex factual and legal issues raised by the objections advanced
there. As was the case with H v Fetal Assessment Centre, the Pretorius matter
involved a ‘factual situation [that] is complex and the legal position uncertain’.22
Pretorius held that ‘to decide the possible unconscionableness of state conduct,
it will be better to get the full story thrashed out at a trial’,23 and there is more

16 H v Fetal Assessment Centre fn 12 above para 14, with reference to Carmichele v Minister of Safety and Security
(fn 13 above) para 21.
17 H v Fetal Assessment Centre para 26.
18 H v Fetal Assessment Centre para 42.
19 H v Fetal Assessment Centre para 66.
20 Ibid.
21 Pretorius and Another v Transport Pension Fund and Another [2018] ZACC 10; [2018] 7 BLLR 633 (CC);
2018 (7) BCLR 838 (CC); (2018) 39 ILJ 1937 (CC); 2019 (2) SA 37 (CC) para 42 (Pretorius).
22 Pretorius para 53. See also Fetal Assessment Centre fn 12 above paras 11-2, relying on Carmichele v Minister
of Safety and Security [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (1) BCLR 995 (CC).
23 Pretorius para 44.

than enough legal uncertainty to send the claim to trial.24 The Constitutional Court
accordingly concluded that the high court should have dismissed the exception.

[19] H v Fetal Assessment Centre also confirmed the judgment of this Court in
Children’s Resource Centre Trust that if a novel or unprecedented claim is
‘legally plausible’ then it ‘must be determined in the course of the action’.25
Children’s Resource Centre Trust was concerned with a delictual claim based on
a novel legal duty not to act negligently. As was explained ‘the existence of such
a duty depends on the facts of the case and a range of policy issues’, which
required the Court to be ‘fully informed in regard to the policy elements’ and
therefore ‘the enquiry militates against that decision being taken without
evidence’. This, so it was held, renders it impossible to arrive at a conclusion
except upon a consideration of all the circumstances of the case and every other
relevant factor.26

[20] Accordingly, a court must be satisfied that a novel claim is necessarily
inconceivable under our law as potentially developed under s 39(2) of the
Constitution before it can uphold an exception premised on the alleged non-
disclosure of a cause of action. Citing H v Fetal Assessment Centre, the
Constitutional Court held in Pretorius that the dismissal of an exception does not
deprive the respondents of the opportunity of raising the same defences as
substantive defences in their respective pleas and for their merits to be determined
after the leading of evidence at the trial, which is probably, in any event, a better
way to determine the potentially complex factual and legal issues involved.27 This

24 Pretorius para 53.
25 Children’s Resource Centre Trust para 37.
26 Ibid; Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at 318 E-I; Axiam Holdings Ltd v Deloitte &
Touche 2006 (1) SA 237; [2005] 4 All SA 157 (SCA) para 25.
27 Pretorius fn 21 above para 22.

case indeed involves, as was expressly conceded on behalf of the respondents,
‘an unprecedented and novel delictual claim’.

[21] The high court appears to have construed a single exception, explicitly
premised on an alleged failure to plead that the defendants are the ‘cause’ of the
plaintiffs’ losses, as forming two separate exceptions. One strand relates to what
was explicitly described in the judgment as ‘factual causation’ and the other as
‘legal causation’. In that, the high court appeared to have confused the enquiry.
A contention regarding the cause (as opposed to the ‘remoteness’) of loss relates
to factual - as opposed to legal - causation. The exception invoked only the
former. It was accordingly not open to the high court to enter into the question of
legal causation. As this Court has confirmed, ‘[a]n excipient is obliged to confine
his complaint to the stated grounds of his exception.’28

[22]  The high court did not properly analyse any of the seven multitier issues
raised in the exception. It referred only to three, but without conducting a
thorough analysis of any or even considering whether the criticisms, such as they
were, indeed satisfied the applicable legal test for exceptions. In that regard, the
high court reasoned:
‘[34] The complaint raised by the defendants is multitiered. First, that the plaintiffs do not
allege that the President’s signature of the 2014 Protocol brought it into force, nor so it was
argued, could they, as the 2014 Protocol only would have become binding and come into force
on signature of the requisite number of member states (two thirds of the Summit members) and
the further requirement of ratification by those states, which, as was accepted by the
Constitutional Court in Law Society, none of the states had complied with. Second, the
Constitutional Court in Law Society ordered the President to withdraw his signature from the
2014 Protocol (which his successor complied with). Third, it is alleged that the President
himself suspended the SADC Tribunal, he indeed participated in a decision by the SADC

28 Feldman NO v EMI Music SA (Pty) Ltd/ EMI Music Publishing SA (Pty) Ltd [2009] ZASCA 75; 2010 (1) SA
1 (SCA); [2009] 4 All SA 307 (SCA) para 7.

Summit, consisting of all the heads of state of the SADC countries, to suspend the Tribunal.
Fourth, it is not alleged that the SADC Summit is precluded from lifting the suspension of the
SADC Tribunal, and sixth, the plaintiffs do not allege that they have claims against the
defendants, but ‘‘claims justiciable by the SADC Tribunal’’ against ‘‘the Government of
Zimbabwe’’, and that ‘‘such claims aris[e] in each instance from the dispossession by the
Government of Zimbabwe’’, and the alleged conduct of its agents and officials.’

[23] The high court proceeded to hold:
‘[41] Delict requires that the wrongful action be the factual and legal cause of the harm suffered
in order to ground an action for damages. In determining factual causation, the ‘‘but for’’ test
applies: but for the occurrence of the wrongful conduct, what would have happened? Once
factual causation is established, and inquiry into legal causation follows. Here the question is
whether the defendant’s conduct is sufficiently closely linked to, or the proximate cause of the
harm suffered for legal liability to ensue, or whether the harm is too remote. This inquiry is
flexible and assessed in the light of what legal policy, reasonability, fairness and justice require.
The test for legal causation is ‘‘a flexible one in which factors such as reasonable foreseeability,
directness, the absence or presence of a novus actus interveniens, legal policy, reasonability,
fairness and justice all play their part’’. . . .
[42] Applying these principles, I am of the view that the facts pleaded, as I have outlined above,
for the reasons stated, do not contain sufficient averments to establish a causal or proximate
cause between the President’s conduct and the plaintiffs’ alleged damages suffered. The notion
that may be inferred from the pleaded facts, that had the President acted constitutionally, he
may have been able to prevent the suspension of the Tribunal by blocking consensus, is a non-
sequitur. The SADC Treaty, as I have pointed out, allows for the dissolution of the Tribunal by
way of majority vote. Therefore, the Presidents opposition or absence of his signature to the
2014 Protocol, would not have made any difference as the Tribunal could still have been
dissolved, by a vote by three-quarters of the other heads of State. As correctly pointed out by
counsel for the defendants, whatever effect the former President’s signature of the 2014
Protocol (absent ratification) may be said to have, even on the basis of a joint-wrongdoer as
contended for by counsel for the plaintiffs, the Constitutional Court’s order that the President
must withdraw that signature, which did in fact occur, thwarted the ‘‘conspiracy’’ to curtail the
jurisdiction of the Tribunal. Formal ratification of the decision, moreover, in any event, never
occurred. Finally, I am unable to find any allegations pleaded, demonstrating that the action or

inaction by only the President of South Africa, being only one member of a body made up of
all SADC’s heads of state, can be said to be the cause of the suspension of the Tribunal.’

[24] The high court’s treatment of the causation exception reveals a conflation
of factual and legal causation. Although purporting to deal with factual causation,
the analysis, in truth, centres on ‘proximate cause’ and ‘remoteness’, ‘legal
policy’, ‘reasonability’, ‘fairness’, and case law on legal causation. In the single
paragraph comprising the high court’s analysis and conclusion on the pleaded
issue, the judgment purports to apply ‘these’ principles, namely those applicable
to legal causation. That paragraph then records the ‘view’ that ‘the facts pleaded
… do not contain sufficient averments to establish a causal or proximate cause’.
Proximate cause relates to legal causation, whilst a causal nexus (to complete the
inchoate concept in the quotation) relates to factual causation. The high court’s
discussion of principles applicable to legal causation (and its fragmented
reference to factual causation) reveals, with respect, a confused analysis. The
upshot of the analysis is the conclusion that the high court was ‘unable to find
any allegations pleaded, demonstrating that the action or inaction by only the
President of South Africa … can be said to be the cause of the suspension of the
Tribunal’. In that, the high court appears, as well, to have misconceived the test.29

[25] Thus, even on this rather perfunctory analysis, it must follow that, in
upholding the factual causation exception, the judgment of the high court cannot
be supported. And, as I have sought to show, legal causation did not even arise.
Yet, it was entertained. This renders it unnecessary to consider the other points
urged upon us in the appeal. As these are proceedings on exception, those, I
daresay, are better left to the trial court.

29 Minister of Finance and Others v Gore NO [2006] ZASCA 98; [2007] 1 All SA 309 (SCA); 2007 (1) SA 111
(SCA) para 33; Lee v Minister of Correctional Services [2012] ZACC 30; 2013 (2) BCLR 129 (CC); 2013 (2) SA
144 (CC); 2013 (1) SACR 213 (CC) paras 47, 55 and 60.

[26] It follows that the appeal against the upholding of the causation exception
must succeed. Consequently, paragraphs 1 and 2 of the order of the high court
fall to be set aside.

[27] Turning to the respondents’ cross-appeal. In Maize Board v Tiger Oats Ltd
this Court held:
‘ . . . it now has to be accepted that a dismissal of an exception (save an exception to the
jurisdiction of the court), presented and argued as nothing other than an exception, does not
finally dispose of the issue raised by the exception and is not appealable. Such acceptance
would on the present state of the law and the jurisprudence of this court create certainty and
accordingly be in the best interests of litigating parties. If litigating parties wish to obtain a
final decision, whichever way the decision of the court goes on an issue raised by an exception,
they should make use of the procedure designed for that purpose namely the procedure
provided for in Rule 33 and either agree on a special case in terms of that rule or request the
court to direct that the issue be finally disposed of in an appropriate manner. If that is done any
misunderstanding on the part of any of the parties and any resulting prejudice should be
avoided.’30
Maize Board has been consistently followed by this Court31 and it is well-
established that this Court will not readily depart from its previous decisions. It
follows that the dismissal by the high court of the legal duty exception is not
appealable.

[28] That leaves the conditional condonation application: Insofar as that
application is concerned, the high court held:
‘[25] . . . I conclude that the [appellants] were correct in their stance that no condonation was
required on the premise that their cause of action was only complete after delivery of the
Constitutional Court’s judgment . . . The launching of the application for condonation on
condition that this finding would not be made, was a wise precautionary decision, which,
understandably so, was not criticised.

30 Maize Board v Tiger Oats Ltd and Others [2002] ZASCA 74; [2002] 3 All SA 593 (A) para 14 (Maize Board).
31 See Itzikowitz v Absa Bank Ltd [2016] ZASCA 43 para 22 and the cases there cited.

[26] It follows that no order is required to be made in the application for condonation save for
the costs thereof, to which I shall revert.’

[29] First, not having made an order, it is unclear why the high court thereafter
saw fit to grant leave to the respondents to appeal to this Court against what it
described as ‘the order to the extent that the Court did not grant an order
dismissing the plaintiffs’ condonation application’. On any reckoning no
appealable order issued. Hence, no appeal can lie.

[30] Second, as paragraph 4 of the order granting leave to appeal to this Court
appears to illustrate, the motivation for the grant of leave, as I discern it, pertains
to what may have been said en passant by the high court in arriving at the
conclusion that ‘no order is required to be made’. Paragraph 4, in part, provides
‘that the determination of the condonation application by [this Court] will finally
determine the issue of whether the plaintiffs’ claims have prescribed’. The fallacy
in the approach, however, is to assume, wrongly so, that an appeal lies against the
reasoning of the court below. It does not. An appeal lies against the substantive
order of a court.32

[31] Third, whilst it is indeed so that condonation cannot be granted if the debt
has already been extinguished by prescription,33 a special defence such as
prescription should ordinarily be raised by way of a special plea. In which event,
it would be open to a plaintiff to file a replication to the effect that the claim had
not prescribed, inter alia, because in terms of s 12 of the Prescription Act,34 the
debt only became due on a date less than three years prior to the date of service
of the summons or because prescription had been interrupted in terms of s 15 or

32 Western Johannesburg Rent Board & another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A) at 355.
33 Legal Aid Board and Others v Singh [2008] ZAKZHC 66; 2009 (1) SA 184 (N).
34 Prescription Act 68 of 1969.

because the completion of prescription had been delayed in terms of s 13.35 The
issue could thereafter be dealt with, if so advised, under rule 33, especially rule
33(4).36

[32] Fourth (and this is linked to the third), whilst the determination of a
condonation application is usually a necessary precursor to the consideration of
the main application or action, here the application was both in substance and
form, as it was styled, a conditional one. The high court appeared to appreciate
as much when it stated:
‘[15] The reason for the condonation application being conditional, the plaintiffs contend, is
that condonation on a correct understanding of the legal position, does not arise. The
condonation application accordingly, was instituted under the Act, merely as a precaution in
an attempt to remove, what was referred to as a non-issue, from the arena.’
And yet, it dealt with it, as it were, as if an anterior application that required
adjudication up-front. What is more, as I have endeavoured to show, the issue
raised therein, namely prescription, neither lent itself to adjudication, nor final
determination, on the papers as they stood. In that regard, the appellants made
plain in their replying affidavit:
‘[55] To the extent that the respondents might attempt to persist in their special plea of
prescription (in respect of which, as mentioned, they bear the onus) at the trial, this will be met
(to the extent that any prima facie case is established) with viva voce evidence at the appropriate
stage.’
It thus seems to me that the high court would have been better advised not to have
entered into the conditional condonation application at this stage of the
proceedings.

[33] It follows that as both the dismissal by the high court of the legal duty
exception and the conclusion that ‘no order is required to be made in the

35 Butler v Swain 1960 (1) SA 527 (N); Yusaf v Bailey 1964 (4) SA 117 (W); Maize Board fn 30 above para 13.
36 De Polo v Dreyer and Others 1989 (4) SA 1059 (W).

application for condonation’ are not appealable, the cross-appeal falls to be struck
from the roll.

[34] In the result:
(1)
The appeal is upheld, and the cross-appeal is struck from the roll, in each
instance with costs, including those of two counsel.
(2)
The order of the court below is set aside and replaced with the following:
‘The defendants’ exception to the plaintiffs’ second amended particulars
of claim dated 18 March 2020 is dismissed with costs, including those of
two counsel.’

_________________
V M Ponnan
Judge of Appeal

APPEARANCES

For the appellants:

J J Gauntlett QC SC (with F B Pelser)

Instructed by:

Hurter Spies Inc, Pretoria

Hendre Conradie Inc, Bloemfontein

For the respondents:

G Marcus SC (with A Coutsoudis)

Instructed by:

State Attorney, Pretoria

State Attorney, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

20 May 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Luke M Tembani and Others v President of the Republic of South Africa and Another (167/2021) [2022]
ZASCA 70 (20 May 2022)
Today the Supreme Court of Appeal (SCA) handed down a judgment in which it upheld an appeal and
struck a cross-appeal from the roll, in each instance with costs, against a judgment of the Gauteng
Division of the High Court, Pretoria (the high court).

The litigation has its genesis in Zimbabwe’s ambitious land and agrarian reform programme. Some
farmers, including South African citizens, who had lost their land due to the implementation of the
programme, turned to the Southern African Development Community (SADC) Tribunal (the Tribunal),
which concluded that Zimbabwe breached certain obligations under the SADC Treaty (the Treaty) and
ordered it to pay fair compensation. Zimbabwe, however, failed to comply with the order of the Tribunal.

When Zimbabwe’s failure to comply, was raised before a meeting of the Summit (being the supreme
executive body constituted by the Treaty and comprising the Heads of State of the member states of
SADC) it came ultimately to be decided, in effect, to suspend the operations of the Tribunal by neither
re-appointing Members of the Tribunal whose term of office had expired in 2010 nor replacing those
whose term would expire in 2011. As a result, the Tribunal was effectively disabled and unable to
function.

On 18 August 2014, the Summit adopted a new Protocol (the 2014 Protocol) which abolished access
by all private individuals to the Tribunal. Thus, instead of facilitating enforcement of the Tribunal’s
decisions, the Summit chose to disregard the binding Treaty obligations of member states. It treated
the relevant Treaty provisions and the Tribunal decisions as non-existent and also violated the
undertaking to support and promote the Tribunal, whose decisions are supposed to bind member states
and, by extension, the Summit.

The appellants are all private individuals, who had claims arising, in each instance, from the
dispossession by the Government of Zimbabwe (contrary to the Treaty and International Law) of farms
owned, registered or worked by each of them. Those claims would have been justiciable before the
Tribunal prior to the 2014 Protocol abolishing its jurisdiction.

The then South African President’s negotiation and signing of the 2014 Protocol was subsequently
challenged in litigation by the Law Society of South Africa. So too, his decision to make common cause
with his peers to not appoint or re-appoint Members or Judges to the Tribunal, thereby suspending its
operations. Some of the current appellants applied for leave to intervene in those proceedings. On 1
March 2018, a Full Court of the Gauteng Division declared that the President’s participation in
suspending the operations of the SADC Tribunal and his subsequent signing of the 2014 Protocol was
unlawful, irrational and thus, unconstitutional. On 11 December 2018, the Constitutional Court
confirmed the full court’s declaration of unconstitutionality.

Following the Constitutional Court’s judgment, the attorney for the appellants served a notice in terms
of s 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the
Act) on the State Attorney, pursuant to which ten of the appellants gave notice of their intention to
institute claims for damages against the President and the Government of the Republic of South Africa,
the respondents in this matter. On 15 January 2019, the appellants’ attorney served a ‘supplementary
notice in terms of section 3(1)(a)’ to ‘clarify, and in certain respects, correct our letter of 14 December
2018’. The supplementary notice made reference to all 25 of the appellants as well as the various
amounts claimed by each. The State Attorney responded that the appellants’ claims were not admitted
and that the notice and supplementary notice had not been sent within the period prescribed in the Act.

On 9 April 2019, the appellants served a conditional condonation application, summons and particulars
of claim. The respondents chose to meet the particulars of claim by raising multiple exceptions.
Although the particulars of claim were subsequently amended, the respondents filed a further notice of
exception. Before the high court, the respondents pressed each of their exceptions and also opposed
the appellants’ conditional condonation application on the basis that the claims had prescribed. The
high court took the view that no order was required to be made in respect of the condonation application.
It upheld only one of the exceptions raised by the respondents, namely what was described as the
causation exception. The high court thereafter granted leave to the (1) appellant's to appeal against the
upholding of the ‘causation exception’; and (2) the respondents to cross appeal against - (2.1) the
dismissal of what was described as the ‘legal duty exception’ and (2.2) ‘the order to the extent that the
Court did not grant an order dismissing the plaintiffs’ condonation application’.

The SCA held that, whilst exceptions provide a useful mechanism ‘to weed out cases without legal
merit’, it was nonetheless necessary that they be dealt with sensibly. It is where pleadings were so
vague that it is impossible to determine the nature of the claim or where pleadings are bad in law in that
their contents do not support a discernible and legally recognised cause of action, that an exception
was competent. Thus, the burden rests on an excipient, who must establish that on every interpretation
that could reasonably be attached to it, the particulars of claim are excipiable. The test was whether,
on all possible readings of the facts, no cause of action might be made out; it being for the excipient to
satisfy the court that the conclusion of law for which the plaintiff contended cannot be supported on
every interpretation that could be put upon the facts.

In addition, the SCA held that a court must be satisfied that a novel claim was necessarily inconceivable
under our law as potentially developed under s 39(2) of the Constitution before it could uphold an
exception premised on the alleged non-disclosure of a cause of action. Moreover, the SCA found that,
this case indeed involves, as was expressly conceded on behalf of the respondents, ‘an unprecedented
and novel delictual claim’. According to the SCA, the high court appeared to have construed a single
exception explicitly premised on an alleged failure to plead that the defendants are the ‘cause’ of the
plaintiff’s losses, as forming two separate exceptions (factual causation and legal causation).

Furthermore, the SCA held that the high court did not properly analyse any of the seven multitier issues
raised in the exception. It referred only to three, but without conducting a thorough analysis of any or
even considering whether the criticisms satisfied the applicable legal test for exceptions. According to
the SCA, the high court appeared to have misconceived the test. The SCA accordingly upheld the
appeal and substituted the order of the high court with one dismissing the causation exception.

In dealing with the respondents’ cross-appeal: The SCA held that the dismissal by the high court of the
legal duty exception was not appealable. Insofar as the conditional condonation application was
concerned, the SCA held that the high court’s order on that score was likewise not appealable. As a
result, the cross-appeal fell to be struck from the roll.
~~~~ends~~~~