Songo v Minister of Police and Others

On 19 November 2009, the appellant, Mr Simon Songo, was convicted on two counts of murder by the North-West Division of the High Court and sentenced to 18 years' imprisonment. On 15 October 2015, he successfully appealed against his conviction to the Full Bench of the High Court and was immediately released. The appellant then instituted an action for damages against the Minister of Police, the National Director of Public Prosecutions and the Minister of Justice and Correctional Services in the Gauteng Division of the High Court, Pretoria. The respondents raised six special pleas, of which the first two were abandoned. The remaining pleas concerned: (i) non-compliance with Act 40 of 2002 (third plea); (ii) no cause of action against the first and second respondents (fourth and fifth pleas); and (iii) misjoinder of the third respondent (sixth plea). The court a quo (Sardiwalla J) determined the third special plea in favor of the appellant, finding no prescription, but failed to determine the fourth and fifth special pleas, stating these should be "adjudicated separately" as they raised important constitutional issues requiring possible law development and insufficient evidence. The court a quo upheld the sixth special plea of misjoinder and granted leave to appeal to the Supreme Court of Appeal.

• Whether the court a quo was correct in declining to determine the fourth and fifth special pleas of no cause of action and ordering that they be adjudicated separately
• Whether the court a quo properly discharged its primary function of determining disputes properly before it
• Whether the court a quo erred in upholding the sixth special plea of misjoinder at this preliminary stage
• Whether the Supreme Court of Appeal could determine issues that the high court declined to determine as a court of first instance or whether the matter should be remitted
• Whether an appellant has a cause of action for damages arising from wrongful conviction and imprisonment when conviction was subsequently overturned on appeal

The appeal was upheld with costs. Paragraphs 3 and 4 of the order of the court a quo were set aside and replaced with: "The Sixth special plea is dismissed with costs." The matter was remitted to the high court for the determination of the fourth and fifth special pleas.

A court of first instance has a primary and fundamental duty to determine all disputes properly before it and to bring finality to those disputes. Where a high court fails to determine issues that were argued before it and effectively postpones their determination by ordering that they be "adjudicated separately," it fails to discharge its judicial function and such an order is not a final, definitive judgment disposing of the issues. The Supreme Court of Appeal, as an appellate court, has jurisdiction only to review decisions actually made by the court below; it cannot act as a court of first instance to determine matters that the high court declined to adjudicate. An appealable judgment must possess three essential attributes: (1) it must be final in effect and not susceptible of alteration by the court of first instance; (2) it must be definitive of the rights of the parties; and (3) it must dispose of at least a substantial portion of the relief claimed in the main proceedings. Leave to appeal cannot properly be granted by a high court in respect of undetermined and pending proceedings. Where complex claims involving potential state liability for wrongful conviction raise issues about the existence of a cause of action and possible common law development, it may be premature to determine misjoinder of parties at the special plea stage before the substantive issues are determined.

The court made several non-binding observations: (1) The real issue in this matter is whether the appellant had a cause of action for damages arising from his conviction and incarceration when he was innocent of the charges, and if not, whether the common law should be developed to accord him such a cause of action. (2) The nature of the appellant's claim is such that it may be contrary to the dictates of justice to decide at special plea level that the third respondent (Minister of Justice and Correctional Services) was wrongly cited. (3) The court expressed its reluctance to deal with one and the same matter on a piecemeal basis, though it found it necessary to address both the remittal of the fourth and fifth pleas and the determination of the sixth plea. (4) The court noted that it is not yet known how a trial court will decide the substantive issue of whether a cause of action exists or should be developed. (5) The court implicitly recognized that the issues raised by the appellant involve important constitutional considerations that warrant proper determination by a court of first instance with full evidence and argument.

This case is significant in South African civil procedure law for several reasons: (1) It emphasizes the fundamental duty of a court to determine all disputes properly before it and not to postpone or avoid determination of difficult issues, even those raising potential constitutional issues or requiring law development. (2) It clarifies the distinction between appealable and non-appealable orders, reaffirming that the Supreme Court of Appeal cannot act as a court of first instance for undetermined matters. (3) It reinforces the principle that courts must bring finality to disputes through clear, definitive orders that are capable of enforcement. (4) It addresses the premature determination of misjoinder pleas in complex claims involving potential state liability. (5) The case also signals the potential development of common law regarding claims for damages arising from wrongful conviction and imprisonment, though this substantive issue was remitted for initial determination by the high court. (6) It demonstrates the appellate court's reluctance to deal with matters on a piecemeal basis while recognizing when such an approach may be necessary in the interests of justice.