REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case number:  113/2000
In the matter between:
C J STEENKAMP
Appellant
and
SOUTH AFRICAN BROADCASTING CORPORATION
Respondent
CORAM:
HOWIE, MPATI JJA and FRONEMAN AJA
HEARD:
20 SEPTEMBER 2001
DELIVERED:
28 SEPTEMBER 2001
Subject:  Magistrate’s finding on liability in damages claim not appealable.
___________________________________________________________________
JUDGMENT
__________________________________________________________________
MPATI JA:

[1] The issue in this appeal is whether or not a finding by a magistrate in favour of a
plaintiff on the issue of liability where that issue and the issue of quantum have been
separated in terms of rule 29(4) of the Magistrates’ Courts Rules is appealable.
[2] During the morning of 3 June 1994 the appellant, an insurance broker of
Johannesburg, travelled from home to work in his motor vehicle.  His route, which he had
followed for the past 20 years, took him along Artillery Road, a public road in which the
respondent’s premises are situated.  At some point adjacent to the respondent’s premises
he stopped when he saw, ahead of him, two security men employed by the respondent
assisting another motorist who appeared to have been in some difficulty.  When he tried
to continue on his journey his vehicle did not move forward.  He engaged reverse gear
and when he accelerated the vehicle slid sideways and came to a standstill across the lane
in which he had been travelling, with its rear wheels against the left curb as one travels
from west to east in Artillery Road.  The appellant alighted and walked towards the back
of the vehicle but in the process he slipped on a layer of ice on the tarmac and fell on his

back.  The two security men rushed to his rescue.  As one of them attempted to lift him
up he, too, slipped and fell, landing on the appellant’s chest.  They succeeded in assisting
each other onto their feet. The two security men then pushed the appellant’s vehicle onto
the inner lane where there was no ice.
[3] The appellant allegedly sustained bodily injuries as a result of the incident and
subsequently instituted action for damages in the magistrates’ court, Johannesburg,
against the respondent.  He alleged in his particulars of claim that the water which had
frozen on the road had come from a sprinkler system on the respondent’s premises.  The
respondent denied the appellant’s allegations of negligence and denied that the water had
come from its sprinklers.  The quantum of the appellant’s claim was also put in issue.
[4] At the commencement of the trial the magistrate ordered, at the request of the
parties, that the merits and quantum be separated in terms of rule 29 and that the matter
proceed on the issue of liability only, the question of quantum to stand over for
determination at a later date.

[5] Only the appellant testified at the trial.  After the case for the respondent was
closed without any evidence having been tendered on its behalf, the magistrate found in
favour of the appellant on the merits.  The respondent was, however, successful on
appeal to the Witwatersrand Local Division.  That court set aside the magistrate’s finding
and substituted for it an order of absolution from the instance.  It also ordered the
appellant to pay the respondent’s costs.  The appellant’s application for leave to appeal
was dismissed and he now comes before us with leave of this Court.
[6] Before it dealt with the merits of the appeal the court below mero motu raised the
issue of the appealability of the magistrate’s finding, since it was a finding on the merits
of the case only.  It appears, though, that counsel for the parties were ad idem that the
magistrate’s finding was appealable.  The court a quo (per Kruger AJ, Snyders J
concurring) came to the conclusion that the magistrate’s finding was indeed appealable
and that the matter was thus properly before it.
[7] Counsel who argued the appeal in this Court were requested beforehand to prepare

argument on the question of appealability.  Additional heads of argument were then
delivered and on the day of the appeal counsel were afforded an opportunity also to argue
the merits of the appeal.
[8] Appeals from magistrates’ courts are governed by the provisions of s 83 of the
Magistrates’ Courts Act, 32 of 1944.  Section 83(b) provides that a party to any civil suit
or proceeding in the magistrate’s court may appeal to a provincial or local division of the
High Court having jurisdiction against “any rule or order made in such suit or proceeding
and having the effect of a final judgment …”.  To be appealable then, a magistrate’s
ruling or order must have the effect of a final judgment.
[9] In considering this issue the court a quo was faced with two conflicting decisions,
Santam Bpk v Van Niekerk 1998 (2) SA 342 (C), where Conradie J (Ngcobo J
concurring) held that the magistrate’s finding on liability alone is not appealable, and
Raubex Construction h/a Raumix v Armist Wholesalers (Pty) Ltd 1998 (3) SA 116 (O),
where Van Coppenhagen J (with whom Cillié J concurred) held that such a finding is

appealable.  The court a quo aligned itself with the decision in the Raubex Construction
case.
[10] Two more judgments on the issue have since appeared.  In Keet v De Klerk 2000
(1) SA 927 (T), Southwood J (Kruger J concurring) came to the same conclusion as
Conradie J in the Santam case, while in Hendrikus Erasmus Cloete v Mbale Cladwin
Botha, an as yet unreported judgment of the Orange Free State Division (appeal no
137/2000 delivered on 29 March 2001), the Full Court effectively overruled the decision
in Raubex Construction.
[11] Both Southwood J in Keet v De Klerk and Malherbe JP in Cloete v Botha referred
in their respective judgments to Durban Water Wonderland (Pty) Ltd v Botha and
Another 1999 (1) SA 982 (A), a decision of this Court of which the court a quo and
counsel who appeared before it were obviously unaware.  In that case the following was
said (at 992G-I):
“In terms of s 83(b) of the Magistrates’ Courts Act 32 of 1944 any ‘rule’

or ‘order’, to be appealable, has to have ‘the effect of a final judgment’.
The difficulty that arises in relation to the kind of order considered in the
Santam and Raubex Construction cases is that it does not finally dispose of
any portion of the relief claimed (cf Van Streepen & Germs (Pty) Ltd v
Transvaal Provincial Administration 1987 (4) SA 569 (A) at 585 F-G);
nor can an order of this kind be regarded as a declaratory order since a
magistrate has no jurisdiction to make such an order.  (Compare S A Eagle
Versekeringsmaatskappy Bpk v Harford 1992 (2) SA 786 (A) at 792H).”
[12] Counsel for the respondent contended that what was said in the Durban Water
Wonderland case about the appealability of the magistrate’s finding was obiter and that
Raubex Construction was correctly decided.  Counsel conceded that the magistrate’s
finding in favour of the plaintiff on the issue of liability only cannot be a declaratory order
since a magistrate has no competence to issue a declaratory order.  He argued accordingly
that the emphasis should be on the effect of such an order and because the order is final
in its effect, in the sense that it cannot be altered by the magistrate, it is appealable.   It
is true that what was said in Durban Water Wonderland  concerning the appealability of
a magistrate’s order on the issue of liability only is obiter dictum, but this Court will not

lightly depart from a view previously expressed by it, particularly by five of its members
sitting together, even if expressed obiter.  As will appear below I am not persuaded that
this Court should depart from that view.
[13] In the course of his judgment in the Raubex Construction case Van Coppenhagen
J refers to a number of decisions of this Court which deal with the appealability of orders
or rulings of the High Court in terms of s 20(1) of the Supreme Court Act 59 of 1959.
A comprehensive re-examination of those decisions will serve no purpose.  But one of
them is Zweni v Minister of Law and Order 1993 (1) SA 523 (A), where the following
was said (at 532J-533A):
“8.   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
of alteration by the Court of first instance;  second, it must be definitive of
the rights of the 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 586I-587B;  Marsay v
Dilley 1992 (3) SA 944 (A) at 962C-F).”
Van Coppenhagen J then says (in Raubex Construction, at 123G-124B):

“Dit kom vir my as logies voor dat die woorde ‘order’ en ‘judgment’ soos
dit in art 83(b) van die Wet op Landdroshowe 32 van 1944 voorkom,
dieselfde betekenis het as dié deur Harms AR in die Zweni saak supra aan
die woorde in art 20(1) van die Hooggeregshofwet 59 van 1959 toegeskryf.
Daar is moontlik ‘n enkele verskil en wel in dermate dat art 1 van die Wet
op Landdroshowe ‘n ‘bevel’ of ‘order’ gelyk stel aan ‘n vonnis.
Die bevinding wat deur die landdros geboekstaaf is ten opsigte van die
geskilpunt wat vir beregting gedien het is in effek finaal en nie onderhewig
aan verandering deur die landdros nie.  Die bevinding het ook die effek dat
finale uitsluitsel gegee is ten aansien van die applikant se aanspreeklikheid
om skadevoergoeding, sonder om die bedrag daarvan te kwantifiseer, te
betaal.  Dat die bevinding ook ‘n substansiële deel van die aansprake van
die eiser – in die sin dat die eiser aanspreeklikheid van verweerder as deel
van sy skuldgrond moes bewys het – in die aksie afgehandel het, spreek
feitlik vanself.  Die bevinding van die landdros, alhoewel nie elegant
geformuleer nie, behoort myns insiens as ‘n bevel wat die effek van ‘n
finale vonnis het, soos bedoel in art 83(b) van die Wet op Landdroshowe
32 van 1944 aangemerk te word.  As sulks kan teen die bevel van die
landdros geappelleer word.”
This reasoning was followed by the court a quo in the present matter.
[14] The fundamental flaw in the reasoning of Van Coppenhagen J in the Raubex
Construction case is this.  This Court did not hold in Zweni that a finding by a Superior

Court in favour of a plaintiff on the question of liability, where the merits and quantum
were separated, is a “judgment or order” as envisaged by s 20(1) of the Supreme Court
Act.  Quite to the contrary, this Court held in SA Eagle Versekeringsmaatskappy Bpk
vHarford 1992 (2) SA 986 (A) at 792H, that such a finding “in wese ‘n verklarende bevel
is en dat dit ‘n appelleerbare uitspraak of bevel daarstel omdat die bevinding ‘n finale en
beslissende effek op die geding tussen die partye gehad het”.  What makes the finding
appealable is not merely the fact that it is final and definitive of the issue of liability, but
also because it is in essence a declaratory order.  At 791 D-E of the Harford judgment
the following was said:
“Die Verhoorhof het bevind dat die appellant aanspreeklik was, en, hoewel
die skade nog nie bepaal was nie, ‘gave judgment for plaintiff with costs’.
Wat vermoedelik gebeur het, is dat ‘n bevel met die effek van ‘n
verklarende bevel dat die appellant aanspreeklik was, gemaak is.  Immers,
‘n bevel wat vir eksekusie vatbaar was, kon dit, in die afwesigheid van ‘n
bepaling van die skade, nie wees nie.”
And (at 792C-D):

“Die stelling dat die eiser se eis op die meriete toegestaan is, maak nie sin
nie aangesien daar nie ‘n eis ten aansien van die meriete was nie, maar ‘n
eis ter betaling van skadevergoeding. …  Die bevel is die operatiewe deel
van die uitspraak;  dit is waarteen geappelleer kan word en dit is waarop
eksekusie gehef word.”
[15] The third attribute of a decision, for it to be a “judgment or order” as envisaged
in s 20(1) of the Supreme Court Act, is that “it must have the effect of disposing of at
least a substantial portion of the relief claimed in the main proceedings” (Zweni supra at
532J-533A).  (My underlining.)  The relief claimed in the main action in casu is for
payment of damages in the sum of R56 751.15 and interest thereon, with costs (compare
the Harford case supra at 792 C-D).  No substantial portion of that relief has been
disposed of.  The appellant cannot execute on the magistrate’s finding.  Consequently,
such finding cannot be said to be “’n bevel wat die effek van ‘n finale vonnis het”.  And,
as was said in the Santam and Durban Water Wonderland cases, a magistrate’s order in
favour of a plaintiff in respect of the issue of liability cannot be viewed as a declaratory
order since the magistrate has no jurisdiction to issue a declaratory order.

[16] It follows that the Raubex Construction case (and consequently the present matter
in the court a quo) was wrongly decided.  A magistrate’s order in favour of a plaintiff on
the issue of liability where that issue and the issue of quantum have been separated in
terms of rule 29(4) of the Magistrates’ Courts Rules is not appealable.
[17] Strictly speaking that should be the end of the matter since the effect of this finding
is that the court a quo had no jurisdiction to entertain the appeal and that the magistrate’s
order is thus still in force.  But since counsel were afforded an opportunity to argue the
merits of the appeal, it may be appropriate merely to say this.  Counsel for the respondent
contended that it was not proved that the water from which the ice had formed and on
which the appellant slipped came from the respondent’s sprinkler system.  That argument
has no substance.  It is common cause between the parties that no rain fell in
Johannesburg during the night preceding the incident, nor during the morning of the
incident.  It is also common cause that cold weather conditions caused the water on the
road to freeze.  Photographs which were placed before the magistrate by the appellant

show sprinklers on the respondent’s premises, close to the boundary of the said premises
adjacent to Artillery Road.  Ice on the metal bars in the boundary wall of the respondent’s
premises can also be seen on the photographs.  The most plausible inference to be drawn
from these facts is that the water indeed came from the respondent’s sprinklers, which
were either faulty or had operated at a wrong time, with the result that they deposited
water where, and at a time when they should not have done so.
[18] There was no evidence on behalf of the respondent to show that the respondent
did not know or could not reasonably have known that its sprinklers deposited water on
Artillery Road.  That such water could freeze due to weather conditions in Johannesburg
and cause harm to a road user was, in my view, reasonably foreseeable.  The respondent,
through its employees negligently failed to guard against such an eventuality, with the
result that it incurred liability for such bodily injury and consequent damages as the
appellant sustained.  Brief mention may also be made of the fact that two employees of
the respondent, who appear to have been on duty, were on the scene and had seen at

least one motorist whose vehicle skidded on the ice.  They therefore had knowledge of
the hazardous condition of the road but failed to warn the appellant of it.  They were in
my view negligent, thereby making the respondent vicariously liable in a second respect.
The magistrate’s ruling on liability therefore seems fully justified.
[19] The question of costs remains.  The appellant, who had a finding in his favour, and
could not abandon it, was obliged to oppose the purported appeal in the court a quo.
Upon the purported appeal succeeding, he now had an order against him and was then
obliged to seek relief in this Court.  There seems to me to be no reason why he should
not be entitled to the costs that he incurred in both the court a quo and in this Court.
[20] I make the following order:
1.
The appeal is upheld with costs.
2.
The order of the court a quo is set aside and for it is substituted the
following:
“Geen bevel word ten opsigte van hierdie verrigtinge gemaak nie
behalwe dat die appellant die koste daarvan moet betaal.”

L MPATI
JUDGE OF APPEAL
CONCUR:
HOWIE JA)
FRONEMAN AJA)