6 May 2020 by , and Dispute Resolution Alert

Is this really the end? Reopening a case after an order of absolution from the instance

An order of absolution from the instance signals a release from a particular case. In South African law, such an order amounts to a dismissal of the plaintiff’s case where such plaintiff did not lead sufficient evidence to support the different elements of their claim. In the recent case of Liberty Group Ltd v K & D Marketing & Others (1290/18) [2020] ZASCA 41, the Supreme Court of Appeal (SCA) considered whether, after an order of absolution from the instance, the plaintiff was entitled to reopen its case and to pursue its original claim on the same pleadings, in an attempt to thwart a plea of prescription.

In June 2009, the appellant (Liberty) and the first respondent, K and D Telemarketing (K & D), entered into an agreement in terms of which K & D would act as an independent intermediary of its insurance contracts. In 2010, Liberty served summons on K & D and its sureties for the repayment of advanced commission of R515,964.95, because the registered insurance policies had lapsed.

In April 2015, at the trial, K & D applied for absolution from the instance following Liberty’s evidence. The test for absolution is set out in Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) (SCA), being “whether there is evidence upon which a court applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff”. K & D’s application was refused and it proceeded to lead its evidence. Judgment was handed down in September 2015, absolving K & D from the instance as the court found that Liberty had not presented sufficient evidence to prove its claim.

Liberty had the right to enforce its claim by instituting proceedings afresh, however, in early 2016 Liberty attempted to rather supplement the lacuna in its case by delivering a notice of amendment and a summary of expert evidence in terms of Rules 28 and 36 of the Uniform Rules of Court, respectively. This was vehemently challenged by K & D as an irregular step. The court subsequently confirmed this, holding that an application for leave to proceed on the same papers was required to have the matter considered. By 2017, Liberty’s claim, if instituted afresh, had prescribed. Due to this, Liberty brought an application for leave to reopen the trial, which the court subsequently dismissed.

The matter proceeded to the SCA where counsel on behalf of Liberty relied on the decision in African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A), as authority for its submission that it was entitled to reopen its case on the same papers. In the cited case, it was held that an order dismissing an application in motion proceedings does not amount to an order of absolution from the instance. Liberty’s submission in this regard was summarily dismissed by the SCA as it held that the dictum in the African Farms case related to motion proceedings and that it was not authority for the proposition that it is permissible after an order of absolution from the instance, to reopen a trial under the same case number on the same pleadings.

In settling the matter, the SCA concurred with the court a quo finding that the decision in Steytler v Fitzgerald 1911 AD 295 was the definitive answer as to whether Liberty’s application should succeed. In Steytler, it was held that although a judgment of absolution from the instance is classified as an interlocutory sentence, it had the effect of being a definitive sentence, resulting in that particular matter being finalised. It was further held that the court had no power or jurisdiction to hear any further evidence in relation thereto unless the order was subject to an appeal. To do so would allow actions to “remain susceptible to resuscitation indefinitely”. The SCA dismissed the appeal with costs and upheld the decision of the High Court.

This judgment confirms that orders of absolution from the instance in trial proceedings not capable of being successfully appealed and/or instituted de novo, will result in the conclusion of the matter.

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