Carstens NO v Carstens

The judgment

The court's own file

THE SUPREME COURT OF A PPEAL OF SOUTH AFRICA JUDGMENT Case No: 409/11 Not reportable In the matter between: CHRISTIAAN LOUIS CARSTENS NO FIRST APPELLANT ANDRIES JOHANNES DANIEL BESTER NO SECOND APPELLANT ARNO STRYDOM NO THIRD APPELLANT VINCENT CYRIL TEE NO FOURTH APPELLANT CHRISTIAAN LOUIS CARSTENS FIFTH APPELLANT and BRIGID MARY CARSTENS RESPONDENT Neutral citation: Carstens NO v Carstens (409/11) [2012] ZASCA 62 (10 May 2012). Coram: Brand, Cloete and Heher JJA Heard: 10 May 2012 Delivered: 10 May 2012 Summary: 2 ______________________________________________________________ ORDER ______________________________________________________________ On appeal from: Eastern Cape High Court, Port Elizabeth (Dambuza J sitting as court of first instance): The appeal is struck off the roll. The Trust (represented by the first to fourth appellants) and the fifth appellant, are ordered to pay the respondent’s costs of appeal jointly and severally. ______________________________________________________________ JUDGMENT ______________________________________________________________ CLOETE JA (BRAND AND HEHER JJA CONCURRING):

[1]The court a quo dismissed the ‘point in law’ raised by the appellants and granted leave to appeal to this court. But the order amounts to the dismissal of an exception, which is interlocutory and therefore not appealable. There is the specific authority of Maize Board v Tiger Oats Ltd 2002 (5) SA 365 (SCA) and the general authority of Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I-533B.

[2]The appeal must accordingly be struck off the roll.

[3]The following order is made: The appeal is struck off the roll. The Trust (represented by the first to fourth appellants) and the fifth appellant, are ordered to pay the respondent’s costs of appeal jointly and severally. _______________ T D CLOETE JUDGE OF APPEAL 3 APPEARANCES: First to Fourth Appellant: P A van Niekerk SC (with him Ms A Venter) Instructed by: Van Niekerk, Huisamen & Van Wyk, Uitenhage Honey Attorneys, Bloemfontein Fifth Appellant: J D Huisamen SC Instructed by: Kaplan Blumberg Atto rneys, Port Elizabeth Honey Attorneys, Bloemfontein For Respondent: R G Buchanan SC Instructed by: G P van Rhyn Minnaar & Co, Uitenhage Symington & De Kok, Bloemfontein