Minister of Safety and Security and Another v Ian Gordon Bryn Hamilton

The plaintiff (respondent) sued two defendants (appellants) for damages arising from a shooting incident that rendered him tetraplegic. He alleged that: (1) the first defendant's (Minister of Safety and Security) police officials negligently granted his assailant a firearm licence which she later used to shoot him, in breach of a duty owed to the public; and (2) the second defendant (Judora Spangenberg), a clinical psychologist treating his assailant, negligently failed to refer the assailant for psychiatric treatment and possible committal to an institution. Both defendants excepted to the plaintiff's particulars of claim. Hlophe J dismissed the exceptions on the ground that it was inappropriate to decide the issues by way of exception without hearing all the evidence. He also granted the plaintiff leave to amend his pleadings. Despite the plaintiff's opposition on the ground that the order was not appealable, Hlophe ADJP granted both defendants leave to appeal to the Supreme Court of Appeal.

• Whether an order dismissing an exception on the ground that it is inappropriate to decide the issues by way of exception is appealable to the Supreme Court of Appeal
• Whether the Supreme Court of Appeal has jurisdiction to hear appeals from orders dismissing exceptions
• What attributes must a judicial decision have to be appealable under sections 20(1) and 21(1) of the Supreme Court Act 59 of 1959
• Whether the court below erred in granting leave to appeal against a non-appealable order

The appeal was struck from the roll with costs. The appellants were ordered jointly and severally to pay the respondent's costs.

An order dismissing an exception on the ground that it is inappropriate to decide the issues by way of exception, and which defers determination of the merits to trial, is not appealable to the Supreme Court of Appeal. Such an order does not satisfy the three requirements for appealability: (1) it is not final in effect as it can be revisited at trial; (2) it is not definitive of the parties' rights as it does not determine the legal issues raised; and (3) it does not dispose of any substantial portion of the relief claimed but merely allows the proceedings to continue. Where a court refrains from considering and deciding the legal sufficiency of a claim on exception and instead defers the matter to trial, there is no 'judgment or order' capable of being appealed.

Cameron JA made critical observations about the conduct of Hlophe J in granting leave to appeal despite the plaintiff's objection and without properly engaging with established authorities on the appealability of dismissed exceptions. The Court noted this was a 'regrettable approach' that wasted time and resulted in costly elaboration of the proceedings. The Court stated that had Hlophe J properly considered the matter, he would have refused leave to appeal. The judgment also noted (without deciding the issue) that counsel for the second defendant had invited the Court to overrule previous decisions regarding the non-appealability of dismissed exceptions, but the Court observed it would only depart from previous decisions when satisfied they are clearly wrong and only with great circumspection. Cameron JA also acknowledged that in some previous cases, the Court had entertained appeals against dismissed exceptions without addressing the 'spectre of appealability', which Nienaber JA in Wellington Court Shareblock had concluded were decided per incuriam.

This case reaffirms and clarifies the important procedural principle in South African law that orders dismissing exceptions are generally not appealable to the Supreme Court of Appeal (now the Supreme Court of Appeal under the current constitutional dispensation). It reinforces the distinction between upholding and dismissing an exception: while the former is final and appealable, the latter merely allows proceedings to continue and can be revisited at trial. The judgment serves as a reminder to courts not to grant leave to appeal in cases where established authority clearly indicates an order is not appealable, thereby avoiding wasteful and costly litigation. It also clarifies the application of the three-part test for appealability established in Guardian National Insurance and reinforces the principle from Blaauwbosch Diamonds that a dismissed exception can be re-argued at trial and is therefore not final.