Luke M Tembani and Others v President of the Republic of South Africa and Another

The appellants were private individuals who owned or worked farms in Zimbabwe that were dispossessed by the Zimbabwean government. They previously had justiciable claims before the SADC Tribunal. Following constitutional amendments in Zimbabwe that removed domestic court jurisdiction over land expropriations, some farmers turned to the SADC Tribunal, which ruled Zimbabwe was in breach of the SADC Treaty and ordered fair compensation. Zimbabwe failed to comply. At meetings of SADC Summit members (Heads of State), Zimbabwe's non-compliance was discussed. The Summit suspended the Tribunal's operations by not re-appointing judges from 2010, and in 2014 adopted a new Protocol abolishing private individual access to the Tribunal. The South African President participated in suspending the Tribunal and signed the 2014 Protocol. This was successfully challenged as unconstitutional in the Constitutional Court in Law Society of South Africa v President (2018). The appellants then issued notices under the Institution of Legal Proceedings Against Certain Organs of State Act and instituted delictual claims against the President and Government for damages arising from loss of access to the Tribunal. The respondents raised multiple exceptions to the particulars of claim. The high court upheld exceptions based on factual and legal causation for various appellants' claims but dismissed other exceptions. Both parties sought leave to appeal, which was granted.

• Whether the high court was correct in upholding the exception based on causation (both factual and legal)
• Whether exception proceedings were appropriate to decide the factual and legal issues raised in this novel delictual claim
• Whether the dismissal of an exception is appealable
• Whether the conclusion that 'no order is required to be made' in a conditional condonation application constitutes an appealable order
• Whether the respondents' cross-appeal was competent

The appeal was upheld and the cross-appeal was struck from the roll, each with costs including those of two counsel. The order of the high court was set aside and replaced with an order dismissing the defendants' exception to the plaintiffs' second amended particulars of claim dated 18 March 2020, with costs including those of two counsel.

A court must be satisfied that a novel claim is necessarily inconceivable under South African law as potentially developed under s 39(2) of the Constitution before it can uphold an exception premised on non-disclosure of a cause of action. Where a factual situation is complex and the legal position uncertain, particularly in novel or unprecedented delictual claims, exception proceedings are inappropriate - the interests of justice are better served by determining the issues after hearing all evidence at trial with due regard to all relevant factors and circumstances. An excipient must establish that on every reasonable interpretation of the pleading, it is excipiable; if a novel claim is legally plausible, it must be determined in the course of the action. The dismissal of an exception (save an exception to jurisdiction) does not finally dispose of the issue and is not appealable.

The Court noted that while there is no general rule that issues relating to development of the common law cannot be decided on exception, where the factual situation is complex and legal position uncertain, it will normally be better not to do so. The Court observed that the Constitutional Court's order in the earlier Law Society case for the President to withdraw his signature from the 2014 Protocol (which was complied with) was relevant background but did not determine causation issues. The Court commented that issues of prescription should ordinarily be raised by special plea rather than in opposition to a condonation application, and could thereafter be dealt with under Rule 33(4). The Court observed that the conditional condonation application neither lent itself to adjudication nor final determination on the papers as they stood, and the high court would have been better advised not to enter into it at that stage of proceedings. The Court emphasized that exception proceedings provide a useful mechanism to 'weed out cases without legal merit' but must be dealt with sensibly.

This case is significant for clarifying the proper approach to exceptions in South African civil procedure, particularly in cases involving novel delictual claims. It reinforces that: (1) Exception proceedings are inappropriate for deciding complex factual and legal issues, especially where the law is uncertain or novel; (2) Courts must give novel claims the opportunity to proceed to trial unless they are necessarily inconceivable under South African law as potentially developed under the Constitution; (3) The dismissal of an exception (save jurisdictional exceptions) is not appealable; (4) Conclusions that 'no order is required' do not constitute appealable orders; (5) The constitutional imperative to develop the common law under s 39(2) requires courts to allow novel claims to be tested on full evidence rather than being struck out prematurely on exception. The case demonstrates judicial restraint in using the exception procedure and emphasizes that where claims involve potential development of the common law, they should proceed to trial where facts can be fully established and policy considerations properly weighed.