In the recent case of
Hulisani Viccel Sithangu v Capricorn District Municipality (593/2022)  ZASCA 151 (14 November 2023) the Supreme Court of Appeal (SCA) was invited to decide on an application for special leave to appeal against the judgment of the full bench of the Limpopo Division High Court.
In this case, a taxi driver suffered multiple fractures when his minibus taxi collided with a cow on a road between Polokwane and Mankweng. The appellant (Hulisani Sithangu) initially instituted a delictual claim of ZAR 2 800 000 against the respondent (Capricorn District Municipality) at the Limpopo High Court for suffering a fracture of his right heel which was allegedly caused by the respondent's firefighters when they accidentally cut his fat pad in the process of extricating him from the accident wreckage.
The respondent filed a special plea of misjoinder in terms of rule 33(4) of the Uniform Rules of Court. It alleged that the place where the accident occurred fell within the authority of Polokwane Local Municipality and thus it was the wrong party before the proceedings. Before the trial commenced, the parties agreed that the special plea should be adjudicated first before the merits of the claim. The trial court made no formal ruling to that effect but instead reserved its ruling on the special plea to the end of the trial on the merits. At the end of the trial, the trial court dismissed the respondent’s special plea and the appellant’s claim. It ordered each party to pay its own costs. It reasoned that "…[I]t was not crystally pleaded in the special plea that the defendant is constrained by a statutory provision and that the basis of the facts upon which it would be entitled to invoke the particular legislative measure as a defense was not set forth."
The appellant was not satisfied with the order granted by the trial court and therefore sought leave to appeal from the court a quo. The trial court dismissed his application with costs. Thereafter, the appellant successfully petitioned the SCA. The appellant was granted leave to appeal to the full bench of the Limpopo High Court on a limited basis, to "whether the plaintiff proved on a balance of probabilities that an employee/s of the defendant negligently cut into or removed his right heel fat pad." The respondent did not obtain leave to cross-appeal against the order of the trial court dismissing the special plea of misjoinder.
The appeal came before the full court where a debate regarding the interpretation of the SCA order granting the special leave to appeal arose. The appellant submitted that the leave to appeal was limited to the issues identified in the SCA order and that on a proper construction of the order, the full court did not have the authority to go beyond the issues in respect of which leave to appeal was granted. The full court rejected the applicant’s construction of the order by arguing that had it been the full intention of the SCA to only limit the appeal to the determination of negligence, the order of that court would have reflected that the appeal is limited to the negligence of the defendant only.
Having rejected the applicant’s construction of the SCA order, the full bench proceeded to consider the merits of the appeal. It consequently held that the appellant failed to prove the identity of the firefighters at the scene and to prove that the person who committed the delict was an employee of the respondent. Aggrieved by the dismissal of his appeal by the full court, the appellant approached the SCA for a special leave to appeal against the judgment and order of the full bench.
The SCA was seized with the question of considering whether the special leave of appeal should be granted, if the appeal should succeed and if the High Court misconstrued the order it gave, granting the appellant special leave to appeal to the full bench of the court a quo. The SCA held that the matter was mired by two procedural missteps. The first one occurred in the trial court during the adjudication of the special plea when it reserved its ruling and proceeded to hear the evidence and arguments on the merits. Thereafter, the court a quo dismissed the special plea, and yet at the same time, relied on the facts sustaining the special plea in order to dismiss the action. The SCA found that the trial court had become
functus officio as its authority over the subject matter had ceased.
The SCA held that court orders are required to be clear and unambiguous. The court found that two orders from the trial court were mutually exclusive and conflicting and that it was not open to the trial court to non-suit the applicant based on a point which it had earlier found in his favour. The court relied on
Thobejane and Others v Premier of the Limpopo Province and Another  1 All SA 365 (A), where a similar factual enquiry arose and the court held that it was not open for the high court to revisit the point it had dismissed earlier, as in relation thereto, it had become functus officio and that its second order undermined the principle of finality of litigation.
The second procedural misstep occurred during the appeal before the full bench when it rejected the applicant’s construction of the order of the SCA granting leave to appeal. The SCA held that the basic principle applicable to construing documents also applied to the construction of a court's judgment or order. It highlighted that the judgment and the court's reasons for giving it must be read holistically to ascertain its intention. This means that when interpreting a document including a court order, the point of departure should be the language in question, read in context while also having regard to the purpose of its provisions and the background. Therefore, the context in which the SCA granted the leave to appeal on a limited basis was prompted by the fact that the special plea disputing the respondent as the correct defendant had been dismissed by the trial court, and all that remained was to determine whether it was the conduct of the respondent's employees that caused the applicant's injury.
Accordingly, the SCA held that the construction of the order provided was misconstrued by the full bench. The full bench not only failed to read the language of the court order contextually, but it also failed to have regard to its purpose and misdirected itself in approaching the appeal in the manner it did. In relation to the question of considering whether the special leave of appeal should be granted, and if the appeal should succeed, the SCA considered the grounds on which the appellant and respondent relied on their contention.
The SCA held that when an appellant seeks special leave to appeal, the test is more stringent considering the judgment of
Cook v Morrison and Another  3 All SA 673 (SCA) where it was held that:
"the existence of reasonable prospects of success is a necessary but insufficient precondition for the granting of special leave. Something more, by way of special circumstances, is needed. This may include that the appeal raises the substantial point of law; or that the prospects of success are so strong that a refusal of leave would result in a manifest denial of justice; or that the matter is of very great importance to the parties or to the public. This is not a closed list…"
Subsequently, the SCA held that the appellant failed to discharge the onus to prove that the injury to his right heel fat pad was caused by the respondent’s firefighters, and not by the accident. It reasoned that the J88 medico-legal report indicated that the applicant sustained multiple fractures on the lower part of his body involving both knees, left and right tibia and fibula, both ankles and an open fracture of the right heel fat pad. And, because of that, it was not unreasonable to assume that all the injuries sustained by the applicant were because of the accident.
Ultimately, the appellant's appeal was dismissed with no order as to costs. The court rejected that the costs liability in the matter should be decided based on the
Biowatch principle. The court held that it was only fair that no order as to costs should be made against the parties because it was not the appellant's nor the respondent's fault for misconceiving the order of the SCA.
This judgment will certainly go a long way in guiding lower courts on the interpretation of court orders. The SCA reaffirmed the importance of court orders being clear and free of any ambiguity. This remains a critical function of the courts in dispensing justice.