Christelis N.O. and Others v Meyer N.O. and Others (916/12) [2014] ZASCA 53 (16 April 2014)

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[2014] ZASCA 53
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Christelis N.O. and Others v Meyer N.O. and Others (916/12) [2014] ZASCA 53 (16 April 2014)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 916/12
In
the matter between:
NICK
CHRISTELIS
NO
.....................................................................................
First
Appellant
ANNA
CHARALAMBO CHRISTELIS
NO
................................................
Second Appellant
OLGA
LEONARD
NO
.....................................................................................
Third Appellant
and
VICTORIA
LENA MEYER
NO
...................................................................
First
Respondent
ELENA
JOAQUIM
NO
.............................................................................
Second Respondent
EMMANUEL
CHRISTELIS
NO
.................................................................
Third
Respondent
Neutral
citation:
Christelis NO v Meyer NO
(916/12)
[2014] ZASCA 53
(16 April
2014)
Coram:
MTHIYANE DP, MHLANTLA and WALLIS JJA, LEGODI and
MATHOPO AJJA.
Heard
:
7 March 2014
Delivered
:
16 April 2014
Summary:
Claim in terms of lex furtiva –
requirements – proof of existence of assets the subject of the
claim and that they had
been disposed of with knowledge of the
plaintiff’s claim – evidence unsatisfactory.
ORDER
On
appeal from:
South Gauteng High Court,
Johannesburg (Monama J sitting as court of first instance):
1
The appeal is
dismissed with costs, such costs to include those consequent upon the
employment of two counsel, but subject to the
further orders set out
below.
2
The respondents
shall not be entitled to recover their costs of complying with rule
8(9) of the Rules of this Court and 40% of the
costs of perusal of
the record.
3
None of the
legal practitioners, whether representing the appellants or the
respondents, shall be entitled to recover from their
clients any
costs in relation to the preparation and lodging of revised records
or the revised heads of argument.
JUDGMENT
Wallis
JA (Mthiyane DP, Mhlantla JA and Mathopo AJA concurring)
[1]
Peter and Alfred (known as Lef, Left or
Lefty) Christelis were identical twins born on 2[…]. They left
school early to work
in their father’s shop and proved to be
adept businessmen. The principal source of their success was a sweet
factory in Germiston,
but they branched out into other activities,
including property development and money lending. In the result they
became wealthy.
That wealth was shared between them equally, the
relationship being so close that, as Lef said after his brother’s
death,
they did everything together and shared everything so that the
relationship was one of universal partnership. The complete lack
of
separation between their business interests and assets is the source
of the present litigation, which is between their respective

executors and heirs. The first and third appellants are Peter’s
children and the second appellant is his widow. The respondents
are
Lef’s children. The allegation by the appellants is that after
Peter’s death on 9 February 2003 and prior
to his death
on 7 October 2007, Lef removed, concealed and disposed of
jointly owned assets. Their claim to recover the value
of the
allegedly missing assets was dismissed by Monama J, but he gave leave
to appeal to this court.
[2]
The brothers owned the sweet factory and a
number of property owning companies. The sweet factory has been
disposed of and the property
companies divided between the two
families. Apart from these assets it is said that the twins held
their wealth in hard assets
such as diamonds, Kruger Rands and
jewellery, and in negotiable certificates of deposit (NCDs) issued by
banks. These were said
to have existed when Peter died and they have
not been accounted for. Some items of jewellery and a number of
Kruger Rands were
discovered shortly prior to Lef’s death when
a search was made at his house. These have been divided between the
two families,
but they are said to be but a fraction of all the
assets of these types that were owned by the twins. The claim relates
to the
allegedly missing hard assets.
[3]
The twins were secretive by nature and
shared matters only between themselves. They were frugal people,
apart from a shared passion
for gambling at casinos, and did not
display their wealth. They did not share the details of their
businesses with their immediate
families or any advisers. Nor did
they share the details with the income tax authorities. In fact they
took active steps to disguise
the source of their income from them.
Thus, for example, they would purchase winning tickets on the
totalisator at more than their
face value and then cash them with the
totalisator board. This enabled them to claim that gambling winnings
were the source of
some of their assets, even though the evidence is
that they had no interest in betting on horses. It is no surprise
therefore that
there are few documents of any significance that
assist in identifying assets of the type that give rise to the
appellants’
claims. The appellants allege that the value of the
allegedly missing assets is of the order of R40 to R50 million.
[4]
The respondents disavow any knowledge of
the existence of such assets, although it was originally alleged that
they knew of their
existence and were concealing them. However, in
response to a question from the bench in this Court, counsel
disavowed any reliance
on such a case. We are therefore only
concerned with a contention that the assets existed at the time of
Peter’s death; were
in Lef’s possession; and their
present whereabouts are unknown. We are asked to draw the inference
that Lef disposed of them,
knowing that they were jointly owned and
that he was obliged to account to his late brother’s estate for
them.
[5]
Some detail of the assets forming the
subject of the claim is necessary. They are described in para 8 of
the particulars of claim
in the following terms:
‘
(a)
one box full of diamonds separated by and/or packaged in white paper
sheets consisting of 1,500 carats with a value (calculated
at
$5,000.00 per carat)
of $7,5 million
equating
to approximately R57, 375,000;
(b) Negotiable
Certificates of Deposit issued by Nedbank Limited and First National
Bank Limited and/or Mercantile Bank Limited
together with interest at
13% having a value of R19 million;
(c) at least one
thousand Kruger Rands, having a value of R6,5 million;
(d) three gold Rolex
watches, having a total value of R600, 000;
(e) the balance of
items of jewellery referred to by the late Peter Nicholas Christelis
and the late Alfred Nicholas Christelis
as “Eleni’s
jewellery” which the late Alfred Nicholas Christelis valued
(and the which value the Claimants for
the purpose of this claim
accept) at between R3-5 million;
(f)
jewellery, having a value of not less than R3 Million consisting
inter alia
of the following [and here followed a list of 21 items].’
[6]
The conduct of the trial was complicated by
an order, ultimately taken by consent, in terms of which the
quantities of the assets
described in paras (a) to (e) and the value
or valuations of all these assets were to be excluded from
consideration by the trial
court. That was an inappropriate order to
have made, bearing in mind that the relief being sought, after this
order was granted,
was in the form of declaratory orders that at the
date of Peter’s death he and Lef were co-owners of the
described assets
and that, after Peter’s death, Lef stole or
disposed of the assets with knowledge of the claim by Peter’s
estate thereto.
[7]
A declaratory order in regard to the
ownership of property not identified in that order is nonsensical.
Take the claim in relation
to NCDs. The court was asked to make an
order in relation to them with absolutely no means of identification
whatsoever. The order
formulated in the course of the appeal was a
declaration of co-ownership in relation to:
‘
The
negotiable certificates of deposit issued by Nedbank, First National
Bank and Mercantile Bank to which the estate of the late
Peter is
entitled to the share of the proceeds thereof.’
The
order is circular because there is no entitlement to it without proof
that NCDs existed to which the estate of Peter had a claim.
I am
unable to see on what conceivable basis it could be implemented or
made the subject of further proceedings. That is because
one does not
know to what it relates. The similar orders sought in respect of a
box of diamonds or an indeterminate number of Kruger
Rands would also
be meaningless. The claim in respect of the three Rolex watches was
abandoned in the course of argument in this
court, but either there
were three Rolex watches or there were not, and if they existed they
needed to be clearly identified so
that, when the court came to deal
with the next stage of the case, it would know what the subject
matter of the dispute was.
[8]
This
court has repeatedly pointed out that there should only be a
separation of issues when the issues that are separated are both

clearly defined and capable of being determined without reference to
the remaining issues in the case.
[1]
If that is not done the trial proceeds on an unrealistic basis. The
unreality of it in the present case is illustrated by counsel’s

opening address in which he told the judge that they were concerned
with ‘what was there and was it co-owned’. But
the whole
point of the separation order, as he repeatedly pointed out in
argument in this court, was that the trial court was not
concerned
with what was there, because the issue of quantities was excluded
from consideration. The end result is that we are asked
to make an
order in this appeal that will resolve no issue between the parties
and result in further lengthy and, no doubt, expensive
litigation
over the quantities of the assets to which the declaratory order
applies. An enquiry from the bench as to the evidence
available to
prove the quantities of these assets received the cryptic response
that reliance would be placed on statistical evidence.
Without
further clarification, I can only say that it is wholly unclear to me
on what basis it is thought that statistical evidence
can establish
how many diamonds or Kruger Rands (if any) the secretive Christelis
twins jointly owned at the date of Peter’s
death. And if one
cannot prove the quantities there is no point in a declaratory order
that means no more than that at that date
they owned some diamonds or
gold coins jointly. However, in view of the conclusion I have reached
about the fate of the appeal
it is unnecessary to give further
consideration to this.
[9]
Returning
to the pleadings it was alleged that Lef ‘unlawfully and
intentionally committed theft of the assets alternatively
disposed of
them with knowledge of the Plaintiff’s claim’. In
advancing this claim in argument before us reliance was
placed solely
on the
actio
furtiva
as
expounded in
Clifford
v Farinha
[2]
and
Chetty
v Italtile Ceramics Ltd
.
[3]
For that reason, unlike my colleague, I find it unnecessary to deal
with the
actio
ad exhibendum
,
which was briefly referred to in the heads of argument as an
alternative basis for the claim. It is as well to examine the legal

footing for the claim before turning to consider whether the trial
judge was correct in holding that the appellants did not discharge

the onus of proving that claim.
[10]
In para 10 of his judgment in
Chetty
,
Malan JA summarised the law relating to claims based on an alleged
theft (the
condictio furtiva)
in the following terms:
‘
The
condictio furtiva is a remedy the owner of, or someone with an
interest in, a thing has against a thief and his heirs for damages.

It is generally characterised as a delictual action. It is, of
course, required that the object involved be stolen before the
condictio can find application. The law requires for the crime of
theft —
“
not
only that the thing should have been taken without belief that the
owner … had consented or would have consented to the
taking,
but also that the taker should have intended to terminate the owner's
enjoyment of his rights or, in other words, to deprive
him of the
whole benefit of his ownership”.
However,
at common law “theft” has a wider meaning and includes
furtum usus, or the appropriation of the use of another's
thing.
Theft of the use of another person's thing is no longer a crime. The
condictio furtiva lies in all cases of theft —
“whether
the theft wreaked was one of proprietorship or of use or possession …
makes no difference to the possibility
of the action being
available”.  In
Clifford v Farinha
it was stated
with regard to the condictio furtiva:
“
(T)he
benemer — to use the term of De Groot 3.37.3 — does
something which he is not permitted by law to do, namely,
to arrogate
to himself the power to deal with another's property. Thereby he
incurs an obligation of the thief immediately to undo
what he has
done. Whether the obligation of the thief immediately to restore what
he has stolen is classified as part of the mora
doctrine … or
as simply arising from the delict … the thief is …
regarded as being in default … and
the obligation to restore —
is perpetuated …”
The
intention to appropriate the thing permanently, as in the case of
criminal theft, is not a requirement of the condictio where
furtum
usus is concerned. The condictio furtiva will be available where, for
example, the defendant withdraws the thing from the
possession of
another, or “takes” it, and uses it while intending to
restore possession after use. The condictio entitles
the owner to the
highest value of the thing between the time it was stolen and litis
contestatio. The rei vindicatio and the condictio
furtiva are
alternative remedies. Where the thing stolen was lost or destroyed
the condictio is the owner's only remedy.’(Footnotes
omitted.)
[11]
Clifford v Farinha
dealt
with theft in the form of
furtum usus
and held that, although it is no longer
a crime, it is still a basis for a claim based on the
condictio
furtiva.
It was held that once a thief
has withdrawn possession of property from the owner or party entitled
to the possession thereof, and
is in default of restoring the
property to that person, the risk of accidental loss rests on the
thief. The appellants’ case
was therefore that Lef, knowing
that he and Peter jointly owned the items specified in the
particulars of claim, withdrew them
or withheld them from the
possession of Peter’s estate and its executors and was
therefore guilty of at least
furtum
usus
. What he did with them thereafter
is so they say irrelevant. If he disposed of them then that is simply
theft in relation to the
half interest of Peter’s estate in
such assets. If he has lost them or they have been stolen whilst in
his possession then
he bore the risk of their loss and his estate is
liable to compensate Peter’s estate for the loss occasioned
thereby. These
legal principles were not challenged before us and for
present purposes I accept them.
[12]
That left two main factual issues at the
trial. They were whether the alleged assets existed at the time of
Peter’s death
and whether Lef removed them in circumstances
amounting at least to
furtum usus
.
It is therefore of critical importance to ascertain what the factual
position was at the time of Peter’s death. In order
to do this
it is necessary to trace some of the events after he died.
[13]
Peter died on 9 February 2003. His son,
Nick Christelis (Nick), the first appellant, an attorney and
businessman, is one of his
executors. The others are his widow, the
second appellant, who one infers is elderly, and his daughter, the
third appellant, who
lives in Greece. In the result Nick has played
the principal role on behalf of the appellants in the events since
that date. He
is clearly the moving spirit behind the present
litigation. Immediately after his father’s death he sought to
take control
of his affairs. Under the latter’s will a trust
was constituted, of which Lef was to be the trustee and principal
beneficiary,
in respect of Peter’s interest in a close
corporation, Christelis Promotions CC. As to the balance of the
estate it was bequeathed
in equal shares to Nick, his mother and his
sister. However that was subject to restrictions. Insofar as it
consisted of shares
in private companies or members’ interests
in close corporations and claims on loan account against such
companies and corporations,
the executors were not entitled without
Lef’s consent to sell, alienate, pledge or otherwise to dispose
of them to any one
other than a beneficiary of Peter’s. Nor
could they demand repayment of the loan accounts, subject to an
exception in relation
to an amount of R100 000. Lef’s will
was executed at the same time and contained mirror provisions in
favour of Peter.
[14]
Christelis Promotions CC owned what was
probably the most valuable property in the property portfolio owned
by the Christelis twins.
It was also the one that generated the most
income. Accordingly, under Peter’s will, Lef would have the
entire benefit from
this property until his death. In addition the
provisions in regard to the other companies and close corporations
meant that until
Lef’s death it would be difficult for Peter’s
estate to unlock any value from them. Nick was unhappy with this and
said he was concerned that it did not provide adequately for his
mother and would not enable her to purchase a flat in Cape Town
and
move there where she could be close to her sister and brother.
[15]
These concerns led to Nick discussing
matters with Lef, who it is common cause was in a state of great
distress at the time, and
with a Mr Wasserman, who had been the
auditor of the various companies for many years. On 25 February 2003,
a mere 16 days after
Peter died and, apparently before his funeral
had taken place, Nick and Mr Wasserman met with Lef at the latter’s
office.
They discussed the continued conduct of the sweet factory;
the administration of the properties and the provisions of Peter’s

will. At the end of that meeting Lef signed a document that Nick had
prepared in advance of the meeting. It recorded that Lef declined
to
adiate in terms of Peter’s will.
[16]
The signature of this document precipitated
a series of bitter disputes between Lef and his nephew that lasted
for the rest of Lef’s
life. Within a couple of days Lef
contacted Mr Wasserman and expressed outrage at the document and
complained that he had been
taken advantage of and tricked into
signing it. He said that he had been in a state of shock at the time
having so recently lost
the person to whom he had been closest in all
the world. His eyesight had degenerated and he was virtually blind.
He said he was
in no state to make such an important decision, that
undermined the intentions of Peter and himself that, once one of them
died,
the other would continue to control their businesses without
interference from members of their families. Whatever the merits of

these contentions it is unfortunate that Nick did not accept that Lef
no longer wished to adhere to the refusal to adiate and seek
to
resolve his concerns in some other way. His rigid insistence that the
refusal to adiate was binding led to acrimonious disputes
and
litigation between uncle and nephew.
[17]
It is unnecessary to trawl through the
history of all this. By June 2003 both sides had engaged the services
of attorneys. On 9 June
2003 the attorneys representing Lef
wrote to Nick’s attorneys saying that an action would be
instituted by Lef to invalidate
the refusal to adiate. The letter
proposed that Lef continue to administer all the companies while
paying a regular amount to his
sister-in-law and niece for their
maintenance. The amount proffered infuriated Nick and on 10 July
2003, Mr Brasg, an attorney
acting for Peter’s estate on Nick’s
instructions, advised that in view of its contents the appellants had
decided to
‘terminate their association with your client with
immediate effect’. They demanded a full accounting of the
business
of the partnership both prior to and subsequent to Peter’s
death. The letter added:
‘
Such
accounting will have to include full details of all movable assets
and in particular, cash, jewellery and bearer instruments
in the
nature of cash deposit receipts, fixed deposit receipts and share
certificates in negotiable form. As many of these movable
assets are
kept in a safe-deposit box and also under the direct personal control
of your client, we require your client’s
undertaking that he
will not access this deposit box without a representative of our
clients being present, nor will he disgorge
or conceal those assets
under his personal control.’
[18]
Receipt of this letter led to the crucial
events in this case. They are dealt with in the evidence of Mr Costa
Livanos, a long-standing
acquaintance of the Christelis twins. I
recite his version of events, subject to the caveat that the trial
judge held him to be
an unreliable witness and on the basis that I
will need in due course to address the question of his credibility.
Mr Livanos said
that he was approached by Lef, in some desperation,
and told that he was having enormous problems with his nephew, Nick,
who he
thought was trying to steal his money and his share of the
wealth he had built up over the years with Peter. He was furnished
with
balance sheets from which he prepared a schedule of the
different companies and close corporations and their assets and
liabilities.
The accuracy of this schedule was not disputed and it
apparently formed the basis upon which the property interests were
divided
between the two estates.
[19]
In regard to the demand in respect of
movable assets Mr Livanos said that he took Lef to see his own
attorney, a Mr Melamed. Although
he insisted that there was only one
meeting on 29 August 2003, there must have been at least two meetings
with Mr Melamed, because
on 7 August 2003 the latter had written to
Mr Brasg, an attorney, representing Nick and the executors in Peter’s
estate,
in response to the letter referred to in para 19 above. That
meeting must have occurred some time after 21 July 2003, because
until
that date another attorney was representing Lef. Be that as it
may, on 29 August 2003 a meeting took place at the chambers
of
Mr Slomowitz SC, who had been retained by Mr Melamed on behalf of
Lef. Others at the meeting were Mr Melamed, Mr Livanos as
his
representative, Mr Limberis, an advocate, and Mr Brasg. According to
Mr Livanos, Lef was too distressed to make a contribution,
so he
conducted the negotiations on his behalf. Discussion revolved around
the contents of a security box or boxes. He said that
it was accepted
that the contents belonged to the universal partnership and it was
agreed that they should go and do an inventory
of these items.
[20]
It does not appear that Mr Livanos’
recollection in regard to this agreement is accurate because it flies
in the face of the
probabilities. In a letter written on 16 October
2003, Mr Brasg said they were told at the meeting of 29 August
that an inventory
had been prepared in respect of the movable assets.
This is inconsistent with him agreeing at the meeting that Mr Livanos
would
prepare an inventory. It is also unlikely that Mr Brasg would
have agreed to an inventory being prepared without him, or someone

else representing Nick, being present. He had written in July
demanding that Lef not access the safe deposit box without a
representative
of Peter’s estate being present and there was no
reason for him to alter that stance. It would have been contrary to
his
instructions to do so. Mr Livanos was not a neutral party, but
Lef’s representative. Finally, if there had been such an
agreement,
Mr Brasg would soon after the meeting have demanded that
the inventory be produced. It is more probable that Messrs Slomowitz
and
Melamed decided that an inventory should be prepared and told Mr
Livanos to attend to it. In what follows I proceed on that basis.
[21]
According to Mr Livanos, on 6 September
2003 he and Captain Fourie from the SAPS, accompanied Lef to the
premises of Mercantile
Bank in Germiston in order to prepare an
inventory. He explained the presence of Captain Fourie on the basis
that ‘when people
see you going to banks and things like that
then maybe there was going to be a robbery or somebody will attack us
thinking that
I have got money’. That was an absurd
explanation. They were not going to withdraw money or valuables but
to undertake an
inventory of the contents of a safe deposit box.
Furthermore they went to the bank by car, so the risk of a robbery
was small.
He added later that it was necessary to have someone to
verify and ‘in that letter they had stipulated that we must not
go
on our own’. Presumably that was a reference to Mr Brasg’s
letter of 10 July 2003, but the letter demanded that the
safe deposit
box not be opened unless a representative of both Nick and Peter’s
estate was present. Captain Fourie’s
presence cannot be
explained on that basis.
[22]
At a later stage in his evidence Mr Livanos
proffered another explanation for Captain Fourie’s presence. He
said that he had
told him (inaccurately) that ‘there was a big
court case going on’. It was to protect him (Livanos) against
any allegations
that he had stolen something and to verify that
everything Mr Livanos did was ‘correct’ so that ‘nobody
could
point any fingers at me’. Why that should have been a
concern was not explained.
[23]
Mr Livanos testified that Lef had with him
a black pilot’s bag, similar to those used by lawyers to carry
files. The purpose
of the bag became apparent after a bank official
had admitted him and Lef and Captain Fourie to the strong room
containing the
safe deposit boxes. The bank official and Lef each had
keys to two boxes and, once these had been unlocked, they were left
alone
in the strong room. The first box, identified as A8, was taken
out and placed on a counter. According to him the pilot bag was
placed next to it and Lef started to take things from the safe
deposit box and put them into the pilot bag. He said that he started

to write down the items. His first note read:
‘
NCD
Gold
Coin
Cash
Rings
Diamond.’
He
then drew a cross through this list because, so he said, Lef told him
not to write yet and to wait.
[24]
At this stage in Mr Livanos’
recitation of the events in the strong room, he was asked to tell the
judge ‘in particular’
what Lef removed from the box.
There followed a blatantly leading question: ‘Did he take any
container out of there?’
It is no surprise that the answer was:
‘He took a lot of stuff out. He took, he took, he took …
there was a box of
diamonds he took out, he …’ Counsel
intervened, confirmed that Lef had taken a box of diamonds out, and
asked some
questions about the size of the box. He was told that it
was about the size of half a shoe box. Having produced an example of
what
was said to be a similarly sized box, counsel again asked a
leading question: ‘Now you are taking the lid off, did he do
that?’ Mr Livanos confirmed that he had and explained that the
box contained white packets and cellophane packets and that
Lef
opened about three packets and there were ‘about ten diamonds
in the packets’. He said that Lef felt the diamonds
in the palm
of his hand and estimated the size of most of them as being larger
than his wife’s diamond ring, which was 1.6
carats. After this
Lef folded up the packages, closed the box and placed it in the pilot
bag.
[25]
Continuing Mr Livanos’ narrative, he
said that the next item removed from the safe deposit box was a
similarly sized box about
half to a third full of gold coins. After
some prompting from counsel by way of another leading question, he
identified these as
Kruger Rands. He said Lef removed these from the
box in handfuls and put them in the pilot bag. His estimate was that
he did this
about 20 times removing 20 to 25 coins on each occasion.
As before, according to Mr Livanos, Lef did this while he and Captain
Fourie watched and said nothing.
[26]
I interpose at this point to say that
whilst not impossible it is difficult to imagine a man suffering from
the physical disabilities
of Lef doing this. He was old, nearly blind
and severely arthritic. Scooping coins out of a box in handfuls as
described seems
improbable bearing in mind the size and weight of the
coins in question. A Kruger Rand is slightly larger than the R5 coin
currently
in circulation in South Africa and weighs nearly 33 grams.
Each handful would have weighed nearly half a kilogram, even if one
allows for some of the coins being half Kruger Rands. The pilot’s
bag would, at the end of this, have weighed something of
the order of
12 to 15 kgs. That would be a heavy load for Lef to carry even if, as
Mr Livanos said, he was strong.
[27]
After the Kruger Rands, so the tale
continued, Lef removed ‘a whole lot of diamond rings’ and
three Rolex watches from
the box and put them in the bag. After some
questions about the watches he was asked:
‘
[W]hat
else did he remove? Was there anything else in that box, any papers?’
This
further blatantly leading question prompted the answer that there was
a bundle of documents that ‘turned out to be NCDs’.
Mr
Livanos did not say how he knew this other than to say that Lef spoke
to Captain Fourie and asked him for some information about
what these
were and values, before putting them in the pilot’s bag.
[28]
At this stage, so Mr Livanos said, he was
permitted by Lef to make an inventory of what remained in the safe
deposit box. His evidence
on the point started with counsel referring
to the item of cash. That had not at that stage been mentioned and
the judge pointed
this out. Once the exchange between the judge and
counsel concluded it is no great surprise that Mr Livanos then added
that Lef
had removed a number of bundles of notes of various
denominations from the safe deposit box and put them in the bag,
leaving behind
only 5 or 10% of the total cash in the box.
[29]
Mr Livanos then made a handwritten list of
the items remaining in safe deposit box A8. The list as written
included 6 gold rings
and diamonds; 3 gold hand bracelets; 1 gold
antique watch; 2 gold pendants, 2 gold chains; R18 850 in notes;
18 large and
13 small Kruger Rands; 55 gld rings and diamond inserts;
gold bracelets of different sizes; 1 gold chain; 5 gold bangles; 9
gold
bracelets; 5 pendants; 1 silver bracelet and a diamond insert.
The items after the Kruger Rands appeared under a heading ‘Family

inheritance’. While Mr Livanos was making this list he said Lef
turned his attentions, together with Captain Fourie, to the
second
safe deposit box, A10. He was unable to see what they did with its
contents as he was busy writing his list of the remaining
contents of
A8. When he had finished that task he then wrote a separate list of
the contents of A10. That list included 4 pearl
necklaces; 3 gold
rings; 3 gold watches; 6 gold chains/Kruger Rand; 1 necklace/Kruger
Rand; 3 pairs gold earrings; 2 gold necklaces;
6 assorted brooches
and 18 assorted gold/silver/diamond bracelets.
[30]
At
this stage the three men left the bank and went to Lef’s home,
with Lef carrying the pilot’s bag. According to Mr
Livanos,
when they got to the house Lef placed the bag on the table, reached
in and removed R10 000 and gave it to Captain
Fourie.
[4]
He then said to Mr Livanos that he must not tell anyone of what they
had done as he would deal with it. Mr Livanos responded that
this
placed him in a terrible situation. Not only did half of everything
belong to Peter, but he had to report back to the advocates
and
attorneys on the contents of the inventory. He claimed that he was
very unhappy and that Lef treated him like a little boy.
He described
in some detail how Lef insisted that he would keep some of the items
at the house and some at the factory. He then
left the house angry
and concerned at what had occurred.
[31]
To sum up at this point, the three men had
gone to the bank for the purpose of preparing an inventory of the
contents of the two
safe deposit boxes. Instead Lef had removed
diamonds, Kruger Rands, diamond rings, Rolex watches, cash and NCDs
from the one box
and possibly some items from the other. The
inventory prepared by Mr Livanos was severely attenuated and after
they had returned
to the house Lef was adamant, over Mr Livanos’
protests, that he would keep what he had removed, even though this
placed
Mr Livanos in an impossible situation in the light of the
mandate he understood he had received from the lawyers.
[32]
One might have expected Mr Livanos to seek
advice from at least Mr Melamed as to the course he should now
follow. But that is not
what he did. Instead he went home and had his
wife type up two inventories, one for each box, from his written
notes. He then corrected
her typing in manuscript and wrote in a
heading and conclusion. The document then read as follows:
‘
INVENTORY
PROPERTY
OF A N CHRISTELIS
INVENTORY
in the presence of: DATE:- 2003 09 06
1.
Mr A N Christelis
2.
Mr C Livanos
3.
Captain L Fourie
This
document serves to confirm that an inspection was conducted at the
premises of Mercantile Bank Germiston in the presence of
the above
mentioned parties.
The
Schedule hereby reflects a true and accurate Inventory of the goods
contained in the aforementioned Box.
[The
document then set out in tabular form the items reflected in Mr
Livanos’ note.]
I
LOUIS FREDERICK FOURIE (Detective Captain S. A. P. Services
Germiston) declare that the above is a correct and true recording.’
Provision
was made below this last statement for Captain Fourie to sign the
inventories.
[33]
A few days later according to Mr Livanos,
Lef approached him asking for the inventories. When he demurred he
said that Lef offered
to give him a large diamond ring for his wife
if he would only sign the inventories, but he responded that this was
an insult.
Lef then wept and asked him to sign the documents and get
Captain Fourie to sign them, but Mr Livanos refused and became, in
his
own words, ‘cold to him’ and told him to leave.
[34]
The last act in this drama according to Mr
Livanos was that he arranged for Lef’s elder daughter, Vicky,
the first respondent,
and his son, Mano, the third respondent, to
come and visit him. He claimed that he told them word for word what
had happened and
that he was no longer prepared to act for their
father. They begged him to change his mind, but he was adamant.
According to him
Vicky then said that Nick should take control of
everything because he would make sure that everything would be
shared. Mr Livanos
said that was up to them but he would have nothing
more to do with the matter. He then left. As a coda to the whole
affair a while
later (in fact a little less than a year later), Lef
approached him and said that there had been a robbery at the
Mercantile Bank
and again asked him for the inventory in order to
enable him to make a claim against his insurance. He promised to let
Mr Livanos
have 20% of the insurance proceeds in return for his
assistance, but this was turned down as an insult. Mr Livanos then
had nothing
more to do with the matter until after Lef’s death,
when he was approached by Nick seeking information about assets in
his
late father’s estate.
[35]
The
appellants’ case rested entirely on the truthfulness and
reliability of Mr Livanos. The trial court held him to be an

unreliable witness. That finding is not one that is easily disturbed
on appeal, particularly where it is based in whole or part
upon the
impression the witness made in giving evidence. It is easier to do so
where the finding is based on the proper inferences
to be drawn from
undisputed facts and the overall probabilities.
[5]
The analysis involves a careful weighing of the credibility and
reliability of the witness in the light of the overall
probabilities.
[6]
It must also
be borne in mind that Lef is dead and unable to contradict Mr
Livanos. It is necessary to heed the warning sounded
by Fagan JA in
Borcherds
v Estate Naidoo
[7]
that:
‘
If
the facts in issue are particularly within the knowledge of only one
of the parties to a suit, that is a circumstance which the
Court must
take into consideration in weighing the probative effect of the
evidence adduced. Here the one party to the alleged
transaction of
repayment is dead. The Court must therefore scrutinise with caution
the evidence given by, and led on behalf of,
the surviving party.’
[36]
There are a number of extremely curious
features in Mr Livanos’ evidence. Chief amongst these are the
following. First, there
is his lack of enquiry about the purpose of
Lef bringing the pilot bag to the bank. One would have expected him
to ask because
they were going to make an inventory, not to remove
items. Second is the failure by both him and Captain Fourie to
protest at Lef’s
conduct in the strong room in removing items
and packing them in the pilot’s bag. That self-evidently was
directed at defeating
the aim of taking an inventory. It seems
inconceivable that they would not have demanded an explanation.
Third, is the feebleness
of his explanation that he thought Lef
intended to count them at his home and prepare the inventory there.
The obvious safe place
for them to do that was in the strong room.
That it might have taken some time is neither here nor there.
[37]
Fourth, is the curious sequence in which he
wrote the note that was crossed out. It started with NCD and this was
followed by gold
coin, cash and ‘rings diamond’. But this
was not the order in which he described the items being removed from
the box
and it didn’t mention the box of diamonds. Yet,
according to him, that was the first thing removed from the safe
deposit
box. If that were true, why was it not the first thing that
he wrote down? Even stranger is the fact that he did not make a note

of it at all. Fifth is the oddity of his differing explanations for
Captain Fourie’s presence. Neither made any sense and
the
obvious explanation of his being an impartial witness was not what he
said. There is the further oddity that he testified that,
when the
NCDs were removed from the safety deposit box, Lef asked Captain
Fourie what these were and their values. That seems improbable

bearing in mind that Lef was a successful businessman, accustomed to
invest in NCDs, and Captain Fourie had no apparent expertise
in this
area.
[38]
Sixth, it must have been apparent from the
events at Lef’s home that he had no intention of permitting a
proper inventory
to be prepared. He claimed to have challenged him
over this and left angry. Yet, notwithstanding this, he prepared
typed inventories
that he knew were inaccurate and made provision for
them to be signed by Captain Fourie as an accurate reflection of the
contents
of the boxes. Seventh, these inventories stated that they
covered the property of A N Christelis, not ‘A N Christelis and

Late P N Christelis’, which is how he had headed the inventory
of companies and close corporations. Eighth, he did not report
the
outcome of this expedition to Mr Melamed and counsel, who had
mandated him to undertake it. Lastly, he remained silent and
thereby
concealed Lef’s conduct until after the latter’s death,
when he suddenly became willing to reveal what had
occurred. His
suggestion that he did this out of respect for Lef does not hold
water. It is inconsistent with his story that he
told Lef’s
children exactly what had happened. They would be the ones most
disappointed by dishonourable conduct on the part
of their father in
trying to cheat his late brother and their cousins out of what was
rightfully theirs.
[39]
Mr Livanos did not fare well under cross-examination on these issues.
He tried to picture himself as subordinate to Lef, but
that was
inconsistent with his earlier portrait of Lef as an old, tired and
distressed man who had invoked his assistance in resisting
the
attempts by his nephew, Nick, to deprive him of his assets. There
were other problems with his evidence. Lef’s briefcase
was
produced and it did not match the description of the pilot bag. The
evidence was that after Lef’s death a search was
undertaken and
it did not reveal the existence of such a bag. In addition, if his
evidence concerning the meeting with Vicky and
Mano were correct, it
is strange that Vicky did not approach Nick for assistance at that
stage, as she trusted him. The extent
of Lef’s fortune was not
known to his children and one would have expected them to be
delighted to know that their father
had all these additional assets
and concerned to ensure that he did not hide or lose them.
[40]
Furthermore, as the assets have not been
discovered since Lef’s death, one is constrained to ask what
happened to them, if
he in fact removed them? There is no evidence to
suggest that he was in a position to dispose of them, nor any
evidence that after
a lifetime of frugal living he squandered them.
Had they been stolen there is no reason to believe that he would not
have claimed
against his insurers to recover any loss. The safety
deposit box at Nedbank, was opened and it contained 185 Kruger Rands,
which
were shared between the families. There was a curious incident
when Lef took Vicky to Mercantile Bank in July 2003 and opened a
safe
deposit box in her name for which he retained the key. But that was
before any suggestion that an inventory should be prepared
and in any
event there is no evidence that anything was ever placed in the box.
Certainly Lef made no claim in that regard when
there was a break-in
at the bank and enquiries at the bank revealed that they had no such
box. None of these features assist the
appellants’ case.
[41]
There seems to be little doubt that Mr
Livanos accompanied Lef to the bank, together with Captain Fourie
(who was available but
not called by either side as a witness), to
undertake an inventory. He also prepared the inventories. At some
stage he clearly
had a falling out with Lef. He also had a meeting
with Vicky and Mano. At that meeting he gave them the property
inventory, but
not the inventory of what remained in the safe deposit
box, although he accepted that he might have had that with him. He
was unable
to explain why, if he had given them a complete
explanation of what occurred in the strong room and at Lef’s
home, he did
not show them the inventories.
[42]
The strongest factor in support of Mr
Livanos’ evidence is an affidavit signed by Lef on 27 July 2004
after a break-in at
the Mercantile Bank, in the course of which the
contents of the two safety deposit boxes were stolen. As counsel
relied strongly
on this affidavit it is best to set out its terms in
full. It reads:
‘
At
the time of forced entry the inventory in my lockers were to the best
of my knowledge as stated below
1
16 or 19 Diamond
rings half carat each
2
Numerous small
items of jewellery which I cannot verify.
3
Cash amount of
forty to sixty thousand rand.
Bulk
of which was in the two lockers were withdrawn prior to the forced
entry on the 2
nd
June 2004.
Due
to the fact that I have had no response from Captain Fourie and Costa
Livanos in connection with the inventory I am therefore
obliged to
submit to the best of my ability the contents of the safety boxes
during the time of the burglary.’
[43]
Counsel seized on the sentence ‘Bulk
of which was in the two lockers were withdrawn’ and the
reference to the inability
to obtain the inventory from Captain
Fourie and Mr Livanos. But that is to read the word ‘which’
as ‘what’
and to correct the tense of ‘were’
to read ‘was’. However, that statement appears
immediately after the
reference to an estimate of the cash amount
remaining in the safety deposit boxes and would more naturally relate
to money than
the overall contents of the boxes. Certainly if the
word ‘which’ is replaced by ‘the cash’ it
makes perfect
sense. The reference to the inventory is a two-edged
sword. If Lef had removed the bulk of the contents of the boxes then
the two
people he identified knew that and, if approached by
assessors acting for the bank or its insurers, might feel obliged to
explain
what had happened on 6 September to the potential
embarrassment of Lef. It was particularly dangerous for him to do so
when
he had already approached Mr Livanos asking for the inventories
and had been turned away. He was at that stage engaged in litigation

with Nick and the inventory had been prepared in the light of his
having been advised that he was obliged to account to Peter’s

estate for jointly owned assets.
[44]
Counsel
urged upon us that there was no apparent motive for Mr Livanos to
fabricate his story. But he had undoubtedly fallen out
with Lef and
his family in 2003. When Vicky and Mano told their father that they
had been to see Mr Livanos his response was: ‘What
right have
you got to go and see that crook?’ Clearly the breach between
them was deep. In those circumstances to speculate
about his possible
motives after Lef’s death to fabricate a story is dangerous.
[8]
[45]
But the evidence of Mr Livanos cannot be
dealt with in isolation. Lef is not here to give his side of the
story. But one must nonetheless
try and weigh the likelihood of this
story being true against what one knows about Lef. If Mr Livanos is
telling the truth then,
very shortly after his brother’s death
and knowing that his nephew was trying to find and lay his hands on
Peter’s
assets, he deliberately removed and secreted a large
number of those assets. What could have been his purpose in doing
this? It
could not have been because he needed money or resources.
Those he had aplenty. Nor was it to benefit his own children and
prejudice
those of his late brother. This was a man who had
throughout a long life shared everything with his brother. Their
income and assets
were but ‘one pocket’. They had made
mirror wills that provided for the survivor to control the assets
until his death
and then for them to be divided equally between the
families. There is no evidence of animosity between the families.
Indeed the
evidence points to their constituting a close-knit clan.
The suggestion that Lef should suddenly try to cheat his brother’s

heirs is implausible.
[46]
The dispute between Lef and Nick was not
over the principle that the twins had owned everything jointly. It
was occasioned by the
signature of the refusal to adiate and Lef’s
feelings that this was a device being used by Nick to cheat him. One
can understand
him trying to protect his own interests in that
situation, but it is far less easy to find a motive for him
appropriating assets
that he knew his brother’s estate had an
interest in and none was suggested. Then there is the question of
what happened
to these assets. For different reasons both sides in
this dispute have searched for them. Lef’s children searched in
an endeavour
to discover assets the existence of which could only
benefit them. Nick obtained a court order against Lef before his
death and
the sheriff and an attorney, whose report is part of the
record, searched his house, the factory and attended at both Nedbank
and
Mercantile Bank. At the commencement of the search Lef handed
over what he said was Eleni’s jewellery. It is not suggested

that this was not her jewellery, only that it was not all of her
jewellery. Some further jewellery was discovered in a safe. The

inventory prepared by the sheriff shows that this consisted of rings,
gold chains, pendants, earrings, brooches, bracelets and
watches. All
of this jewellery has been divided between the two families, whether
it came from Eleni or from other sources. During
this search some old
valuation certificates for diamonds were found as well as some stale
NCDs and cheques. Some amounts in cash
were found and presumably this
has also been divided.
[47]
In regard to the NCDs the evidence showed
that Lef continued for the remainder of his life to deal with them as
he had before, namely,
to roll them over as they matured, sometimes
withdrawing the interest. He did this from 2003 until 2007. That is
inconsistent with
him having been trying to steal these assets. It is
also inconsistent with there being other NCDs beyond those identified
by Mercantile
Bank.
[48]
If Mr Livanos is not telling the truth then
all this is explicable. The diamonds and Kruger Rands and vast
quantities of jewellery
are a figment of his imagination. Lef may
have taken a few items from the safety deposit boxes at Mercantile
Bank, but they were
either stored elsewhere at Nedbank or in his safe
at home. One can understand that he might have wished to keep his
mother’s
jewellery close to hand in view of his closeness to
her. It must also be remembered that his brother had entrusted these
items
to his care and he may have seen it as his obligation to
continue to care for them. The documents discovered in the course of
the
search appear to have been out of date – the type of old
document stored at one stage and never thrown away that is frequently

found when clearing out the home of an elderly person. All this is
more plausible than the suggestion that he set out to cheat
his late
brother and his closest relatives including his own children.
[49]
In those circumstances I am unable to fault
the trial judge in his assessment of Mr Livanos as a witness. He was
a poor witness
and his version of events is shot through with
improbabilities. Accordingly his evidence fails to establish on the
requisite balance
of probabilities that on 6 September 2003 Lef
removed diamonds, Kruger Rands, jewellery, Rolex watches and NCDs
from two safe
deposit boxes at Mercantile Bank.
[50]
It remains necessary to deal with three
further aspects relating to the items left in the safe deposit box
that were stolen when
Mercantile Bank was broken into; the claim in
respect of NCDs and that in respect of Eleni’s jewellery, which
may in some
respects not depend on Mr Livanos’ evidence. In the
latter regard the contention was that Eleni, the twins’ mother
had been a flamboyant character who loved to wear a great deal of
valuable jewellery provided to her by Peter and Lef, to whom she
was
particularly close. However, photographs of Eleni taken on various
occasions, including formal dinners where one would expect
her to
wear her best jewellery, do not support this suggestion. They show a
modestly dressed lady of mature years at various functions
and in a
domestic situation. She is usually wearing a watch and two or three
bracelets and on occasions a string of pearls or necklace
or a
brooch. On this evidence there is no basis for thinking that any
significant items of jewellery owned by the late Eleni Christelis
was
in Lef’s possession and has not been produced.
[51]
The claim was not based on physical
evidence but on a settlement agreement concluded between Nick and Lef
to resolve all the litigation
between them. That agreement had a
clause in which both parties acknowledged that Eleni’s
jewellery belonged to Peter’s
estate and Lef in equal shares
and added in manuscript:
‘
It
is recorded that Eleni’s jewellery is that as referred to in
clauses 18 to 20 inclusive of the founding affidavit in case
no
2005/5536.’
However, reference
to these paragraphs of that affidavit, which was deposed to by Nick,
shows that they contain no description of
the jewellery in question.
The nearest it comes to a description is a sentence that reads:
‘
To
the best of our recollection, Eleni’s jewellery consisted of at
least twenty diamond rings and at least six gold and diamond
brooches
with a reputed value (at that time) of between R3 and R5 million.’
That
unclear recollection must be read in the light of the further
paragraph saying that only Lef had details of what constituted
the
jewellery. When he produced it, after Nick had obtained a court order
and Lef’s house was searched by the sheriff and
an attorney, it
proved far less fabulous than that description suggested. What was
sued for was the balance, which was entirely
indefinite and nothing
in the evidence identified it with any greater clarity. On that
ground alone the claim had to fail.
[52]
As regards NCDs Mr Livanos made a note that
these existed when he was at the bank. However, there is no evidence
that they were
current NCDs. When Lef’s house was searched a
number of stale NCDs were discovered. They were part of a series that
had been
rolled over every three months. When the matter came to
trial a sub-poena was served on Mercantile Bank and this resulted in
the
production of what was virtually the full series of NCDs. As a
schedule prepared by the respondents showed, three series of NCDs
had
run from 2001 to 2007. When they matured in January 2007 they were
reinvested in two NCDs and in April 2007 one of those was
given to
Nick on behalf of Peter’s estate and the other was held,
reinvested and the proceeds divided among Lef’s children.
It
was suggested in argument that the schedule revealed an obligation
for Lef’s estate to account to Peter’s estate
for an
amount of some R600 000 but that is a matter of accounting in
the two estates. It is not the claim that was pursued
in the action
and can be resolved by way of a claim against the estate of Lef. The
pleaded claim was one in respect of NCDs that
fell within the
actio
furitva
.  However, that could only
relate to NCDs removed by Lef from the strong room of the bank. Not
only does that claim depend
on the evidence of Mr Livanos but his
evidence, even if accepted, did not suffice to show the existence of
NCDs that were current
at the time and have not subsequently been
accounted for.
[53]
Lastly there are the items stolen from the
safety deposit boxes at Mercantile Bank and reflected in the two
inventories prepared
by Mr Livanos. In regard to them Lef had during
Peter’s lifetime been entrusted with the task of storing and
securing them.
He did so by placing them in the bank’s care in
safety deposit boxes. They were not appropriated by him, but were in
the
care and custody of the bank when they were stolen. In those
circumstances the requirements for the
actio
furtiva
are not satisfied in respect of
these items.
[54]
For those reasons the appeal must be
dismissed. Ordinarily that would carry with it an order that the
appellants pay the costs of
the appeal including the costs of two
counsel. However, that order must be qualified in two respects. First
the record consisted
of 14 volumes and 2659 pages. A large part of
this was due to the respondents’ attorneys insisting on the
inclusion of documents
that were unnecessary for the conduct of the
appeal. Their costs in regard to compliance with rule 8(9) of the
Rules of this Court
and in regard to the perusal of the unnecessary
portion of the record, which I estimate at 1000 pages out of 2500 or
40% of the
record, should be disallowed.
[55]
The fault in this regard extended from the
attorneys to the advocates in relation to the preparation of the
heads of argument and
in complying with the requirements of the
practice directive. We were told by both sets of counsel that we
needed to read the entire
record. That was manifestly wrong because
most of the record was not referred to in the heads of argument and
there were portions
that related to claims abandoned in the course of
the trial and the issue of quantum that had been separated. In
addition we were
told that it was impossible to prepare a core
bundle. Again that was incorrect. This was pointed out to the parties
in a letter
from the registrar of this court in which the following
was said:
‘
[A]
superficial examination of the record reveals [that] neither party
has made any reference to Volumes 11 and 12 and there are but
a
handful of references to Volumes 2, 8, 9 and 10. In Volume 14 it
appears only to be necessary to consider the judgment of the
trial
court. A large part of the pleadings and the interlocutory
applications in Volume 1 are also irrelevant.
In
addition both sets of counsel say that it is not possible to extract
a core bundle from the documents forming part of the record,
albeit
that they both only refer to a handful of documents. This is likewise
incorrect and constitutes non-compliance with the
requirements of the
rule.’
There
followed a directive to the parties to file a proper practice note
and a core bundle.
[56]
This directive was ignored and instead two
revised records were delivered, the one of some 1100 pages and the
other of some 1450
pages. There was also a flurry of correspondence
of an acrimonious nature about the reasons for the parties not being
able to agree
on what was relevant. The parties had been warned that
there would be consequences flowing from their failure to comply with
the
rules of this court. In the result there was a tender in the
course of argument, made jointly by counsel on behalf of all the
legal
practitioners involved that they would not raise fees or charge
their clients any costs in relation to the preparation and lodging
of
revised records or the revised heads of argument. An order will be
made to this effect.
[57]
The following order is made:
1
The appeal is dismissed with costs, such
costs to include those consequent upon the employment of two counsel,
but subject to the
further orders set out below.
2
The respondents shall not be entitled to
recover their costs of complying with rule 8(9) of the Rules of this
Court and 40% of the
costs of perusal of the record.
3
None of the legal practitioners, whether
representing the appellants or the respondents, shall be entitled to
recover from their
clients any costs in relation to the preparation
and lodging of revised records or the revised heads of argument.
M
J D WALLIS
JUDGE
OF APPEAL
Legodi
AJA (dissenting)
[58]
I have had the opportunity to read the judgment of Wallis JA.
Unfortunately for the reasons that will follow, I am unable to
agree
therewith.  I do not find it necessary to repeat the facts of
the case except insofar as it might be necessary.
I prefer to
refer to the twin brothers as Peter and Alfred.
[59]
The separation of issues referred to in the majority judgment was
intended to deal first with co-ownership, existence or possession
and
disposal or theft by Alfred of the assets set out in para 8 of the
particulars of claim. Quantum, that is, the quantities and
values of
such assets, was to be dealt with at a later stage, except for the
quantities of the assets set in sub-para 8(f) of the
particulars of
claim.
[60]
The description of the assets in para 8 of the particulars of claim
is set out in para 5 of the main judgment and is based
on the
evidence of Livanos and settlement agreement relating to Eleni’s
jewellery. The declaratory order sought is in respect
of the assets
identified and described in para 8 of the particulars of claim.
Therefore co-ownership and the existence of these
assets as at the
death of Peter on the 9 February 2003, as well as the possession and
disposal thereof by Alfred are capable of
being separated from the
quantum issue, that is, from the issue of what the quantities and
values of the assets listed in para
8 of the particulars of claim
were. Once the issue relating to co-ownership, possession and
disposal of the assets in question
is disposed of in favour of the
appellants, there will be no need to go into any issue other than
that relating to the quantities
and values of such assets.  I am
therefore unable to agree that the trial court proceeded on an
unrealistic basis.
[61]
At the start of the trial, the parties elected not to lead evidence
on the quantities and values of the assets except for quantities
of
assets set out in sub-para 8(f) of the particulars of claim.  It
would therefore be premature to come to the conclusion
that the
appellants would not be able to establish the quantities and values
of the assets set out in para 8 of the particulars
of claim during
the second stage of the trial.
[62]
The court below having heard evidence dismissed the appellants’
action on the limited issues placed before it. It rejected
Livanos’
evidence and stated that it lacked credibility and corroboration.
The appellants appeal against these findings.
[63]
The appellants’ cause of action is based on the principle of
actio
ad exhibendum
and
actio
furtiva
.
The appellants are relying on
actio
ad exhibendum
as an alternative to
actio
furtiva
principle. The action
ad
exhibendum
is a delictual action which is instituted as an alternative to
rei
vindicatio.
It enables a plaintiff to claim damages from an erstwhile possessor
of the plaintiff’s property.
[9]
[64]
In an
ad exhibendum
action, the plaintiff must allege and
prove that:
(a)
the plaintiff is or was the owner of the property concernedwhen such
property was alienated by the defendant;
[10]
(b)
the defendant had been in possession of the property;
[11]
(c)
the defendant’s loss of possession was
mala
fide
. This will
be
the case if, at the time of the loss of possession or destruction,
the defendant had knowledge of the plaintiff’s ownership
or
claim to ownership of the property.
[12]
A defendant who disposes of a plaintiff’s property after the
institution of an action in which the plaintiff relies on alleged

ownership is
mala
fide
;
[13]
(d)
the defendant intentionally disposed of the property or caused its
destruction intentionally or negligently.
[14]
[65]
The appellants sufficiently pleaded
actio
ad exhibendum
but also pleaded theft to bring in
actio
furtiva
as a further cause of action. In paragraph 13.1.1 read with paragraph
13.1 of their prayers they asked for an order declaring that
they
have a valid claim against the estate of the late Alfred in the
amount of R44 737 500 together with interest thereon
at the
prescribed rate. The relief sought in the court
a
quo
is not for the return of the assets, but rather the value thereof.
The very basis of liability in the
actio
ad exhibendum
is bad faith or knowledge of tainted title.
[15]
It runs counter to common sense and the
actio
ad exhibendum
principle
to hold that it is a sufficient cause of action for the plaintiff to
allege that he or she is the owner of an article
and that the
defendant was at one time in possession of it, although he is no
longer in possession of it because he has disposed
of it or it has
been destroyed.
[16]
It would
seem to follow that bad faith on the part of the defendant in such
cases is a necessary ingredient of the owner’s
cause of action
for recovery of the value of the property and must be alleged and
proved by him.
[17]
The general
principle to be applied when an owner sues a defendant in an
actio
ad exhibendum
for the payment of the value of the owner’s property which was
formerly in the defendant’s possession, but which he
is unable
to restore because of his having ceased to possess the property, is
that the onus is on the plaintiff to allege and prove
that, at least
at the time of the defendant’s loss of possession, he had
knowledge of the plaintiff’s ownership or
of his claim to
ownership of the property.
[18]
[66]
In the case of
Alderson
cited
above, Botha J as he then was, extensively referred to the work of
Voet
using
Gane’s translation. Fraudulent possession and loss thereof was
considered. In section 6.1.32
Voet
stated that a defendant who has ceased to possess by fraud is liable
to make good the value of the thing to the owner.
[19]
Similarly,
Voet
indicated in section 6.1.33 of his work that ‘the value of the
property must be restored by a possessor in bad faith who
has ceased
to possess through negligence before joinder of issue, but that a
possessor in good faith is only liable in the event
of a negligent
loss of possession after joinder of issue since,
by
such joinder, he has been placed in a position of bad faith.
’
In 6.1.34 he goes on: ‘[
H
]
e
who indeed possesses in bad faith
,
but is not a robber, ought only to make good the loss of the thing
in
the case where it would not have perished in the same way in the
hands of the plaintiff, as when perchance he shows that he would
have
sold it off’
.
[20]
(Emphasis added.) It was argued on behalf of the plaintiff in that
case that by virtue of the reference therein, to
litis
contestatio,
the
actio
ad exhibendum
was intended to apply only to cases
where
there had been a formal demand
,
or a summons for delivery of possession before the property was
destroyed.
[67]
Coming back to the rejection of Livanos’ evidence by the trial
court, it found that: he waited for a period in excess
of four years
before he related the incident of 6 September 2003 to the first
plaintiff, that he failed to offer an explanation
for the delay and
that the effect of his silence was to deny the late Alfred an
opportunity to defend himself in respect of his
alleged conduct at
Mercantile Bank. It also found that Livanos contradicted himself with
regard to the Rolex watches taken by the
late Alfred and that he did
not explain how it was possible to observe the conduct of the late
Alfred at the bank. The trial court
concluded that Livanos was not a
credible witness and that it would be dangerous to rely on his
testimony without any corroboration.
[68]
Perhaps some comment is appropriate regarding the required approach
to evidence. The correct approach to evaluating evidence
is to weigh
up all relevant facts which point towards probabilities and
improbabilities on both sides and, having done so, determine
on whose
side the balance of probabilities weigh heavily. This requires
consideration of inherent strengths and weaknesses in the
evidence of
each witness. The trial court, in rejecting Livanos's evidence, found
that his evidence was beset with some unexplained
difficulties.
[69]
Generally, the trial court has advantages which the court of appeal
does not have in observing and hearing the witnesses and
in being
steeped in the atmosphere of the trial. Not only does it have the
opportunity of observing their demeanour, but also their
appearance
and their personalities. Consequently the appeal court is very
reluctant to upset factual findings of the trial court.
[21]
[70]
It should be borne in mind that it is the duty of the court of appeal
to overrule a conclusion of a court of first instance
on a question
of fact when, notwithstanding the disadvantages from which it suffers
as compared with the court of first instance,
it is convinced that
the conclusion to which the latter court has come is wrong.
[22]
The truthfulness or untruthfulness of a witness can rarely be
determined by demeanour alone, without regard to other factors
including,
especially, the probabilities. A finding based on
demeanour involves interpreting the behaviour or conduct of the
witness while
testifying. A further and closely related danger is the
implicit assumption, in referring to the trier of facts findings on
demeanour,
that all triers of fact have the ability to interpret
correctly the behaviour of a witness, notwithstanding that the
witness may
be of a different culture, class, race or gender and
someone whose life experience differs fundamentally from that of
trier of
fact.
[23]
[71]
It is apposite at this stage to consider Livanos’ evidence in
order to determine whether it was corroborated or not.
I propose to
commence with the conduct of the late Alfred at the bank. In this
regard the evidence of Livanos does not stand alone.
[72]
Subsequent to the burglary at Mercantile Bank on 2 June 2004, Alfred
was requested by the Bank to provide the contents of the
safety
deposit boxes A8 and A10 as at 2 June 2004. He deposed to an
affidavit which is quoted in para 42 of the main judgment and
I do
not find it necessary to repeat the quotation. I comment later in
para 90 on what is stated in para 42 of the main judgment.
It
suffices for now to state that an affidavit deposed to by Alfred
corroborates Livanos’ evidence in two respects. First,
the
existence of an inventory or expectation of an inventory from
Livanos. Second, the removal of the bulk of the assets from the
two
safety deposit boxes. This is a very material corroboration. Alfred,
in the affidavit, can only be referring to the events
of 6 September
2003. The conduct of the late Alfred on that day was further
confirmed by the first respondent. Under cross-examination
she
indicated that Captain Fourie had confirmed to her that ‘stuff’
was removed from the safety deposit boxes on 6
September 2003.
[74]
In so far as Livanos’ ability to observe the late Alfred's
conduct at the bank is concerned, in my view, this should
be seen in
the context of the corroboration already outlined in the preceding
paragraphs. But even more importantly the evidence
suggests that when
the items were removed from the safety deposit box A8 and put in a
bag, Livanos was there. He was able to observe
everything that
happened. His evidence with regards to what the late Alfred did is
not contradicted. His contemporaneous written
notes also corroborate
his evidence. He was stopped when he started writing down the list of
the assets in the safety deposit box
A8. At that stage, he had
already written as follows:
‘
NCD
gold
coins
cash
rings
diamond.’
He
then put a line across the inscription and waited until the late
Alfred had finished removing items from the safety deposit box
A8.
The next inscription on the same page is a list of items that Livanos
said remained in the safety deposit box A8. In this regard
he stated
during his oral evidence that he had already started writing ‘NCD,
gold coins, cash, rings, diamond’ when
he was stopped. By gold
coins he was referring to the Kruger Rands, some of which were
removed from the safety deposit box A8 and
were contained in a half
size shoe box.
[75]
Livanos’ testimony was further corroborated by the discovery of
the Kruger Rands and jewellery at the home of the late
Alfred. The
negotiable certificates of deposit were also cashed after the
events of 6 September 2003 and thus confirm the
existence and removal
thereof from the safety deposit box A8. Therefore, the contention by
counsel for the respondents in surpport
of the trial court’s
ruling that there was no corroboration of Livanos’ evidence
cannot be sustained. The trial court
erred in its conclusion.
[76]
It is also not correct that Livanos offered no explanation for
waiting until after the death of the late Alfred before he could
tell
the first appellant about the events of 6 September 2003. Livanos was
approached by the first appellant for information. Livanos
explained
the reasons for the delay as follows:
‘
Immediately
after we left his house I started to think about this and the penny
started to drop what was going on here. Because
I know that that was
not my mandate and my attorney and Mr Slomowitz were waiting, Mr
Limberis, they were all waiting for me, they
trusted me to go and
give an inventory and how do I do it? How do I go and, there was no
ways I was going to be part and parcel
of this whole thing, and that
is why when I finally withdrew from the matter it was the easiest way
out for me just to rather say
I am not acting in this matter, cut me
out, I am not involved, he must now discuss work with Mr Christelis,
I was not prepared,
I never gave the inventory to Mr Melamed, I never
said anything, I just withdrew because it was not my because in the
first place
it was out of confidence that Mr Christelis, whatever he
did rightly or wrongly, I did, and I was not going to disclose that
to
anybody else. The only person I told about it, I never gave
anybody these documents, is that I, finally when I met with the two

children I told them everything what had happened and that is when I
said to them, I am telling you please, I am saying please
you better
do something, you better, you better go in and try and do something
about this because this, and I told them what had
happened with their
father.’
[77]
I find nothing wrong with this explanation. But even more
importantly, further during his evidence when he was asked why he
did
not report the incident of 6 September 2003 whilst Alfred was still
alive he stated:
‘…
I did not feel at
that stage I had to keep, because I mean, I had a, obviously I could
not do it to anybody else while Lefty was
alive because he trusted me
and that, but when Lefty had passed away then I (indistinct) told him
what happened. All the documents
I had I gave to Nicky.’
The
explanation that he did not want to expose the late Alfred whilst he
was still alive brings to an end the speculation why Livanos
decided
to hand over the inventory to the first appellant after the death of
Alfred. What would he gain from falsely implicating
the late Alfred?
I cannot think of any. Therefore the imputation that he wanted to hit
back at the late Alfred is not based on
any facts. If indeed he
wanted to, he would surely have disclosed these events to the first
appellant whilst Alfred was still alive.
[78]
The court below also took the view that the delay in disclosing the
events of 6 September 2003 was suspicious. I do not think
that the
criticism is justified. A week after the events of 6 September 2003,
Livanos told the children of the late Alfred about
the existence of
the jewellery in the safety deposit boxes, as well as the existence
of an inventory regarding the jewellery, but
refused to show them. He
told them about the removal of the assets from the safety deposit
box. Although the latter fact is denied
by the respondents, it must
be seen in context. The respondents are not neutral to the dispute.
Finding against the appellants
will benefit the respondents because
there will be no claim against their father’s estate. Livanos
told the respondents of
the events of 6 September 2003 because they
are Alfred’s children. The chances of exposing Alfred through
his children were
minimal if not zero. Livanos confided in them on
this basis. It makes sense why Alfred was angry when told that the
children had
spoken to Livanos. He was a very secretive person who
shared nothing with his family about his business activities. In my
view,
no adverse inference should have been drawn against Livanos as
a witness in this regard.
[79]
The evidence of Livanos is very material to the existence of the
assets listed in para 8 of the plaintiffs' particulars of
claim. The
list of jewellery in para8(f) is based on Livanos’ evidence as
to the assets which remained in the safety deposit
boxes A8 and A10
on 6 September 2003. The assets listed in sub-paras 8(a) to (d) are
the assets Livanos says were removed from
safety deposit box A8 on 6
September 2003. Eleni's jewellery in sub-para 8(e) of the particulars
of claim refers to the assets
that the late Alfred confirmed to have
had in his possession and undertook to hand over for sharing with the
appellants.
[80]
The critical question before us is the co-ownership and existence or
possession of the late Alfred's assets listed in para
8 of the
particulars of claim as at 9 February 2003. The trial court correctly
found that a partnership existed between the twins.
The evidence in
my view is also overwhelming that the twins during their lifetime
co-owned diamonds, Kruger Rands and negotiable
certificates of
deposit (NCDs), all or part of which were sometimes referred to as
‘hard assets’. This is also supported
by the evidence of
Mr Van Vuuren and Mr Tzouras. It is clear from the undisputed
evidence of Mr Tzouras that he introduced the
twins to the trade of
diamonds in 1976. He sold ‘top quality diamonds’ to the
twins. Mr van Vuuren on the other hand
was employed by the twins for
many years until 1984. He also confirmed that the twins bought Kruger
Rands. The cash that was accumulated
from the sweet and confectionary
factory was kept either in the safe or strong room. The diamonds and
Kruger Rands were purchased
out of the cash kept in the strong room.
[81]
The next question that has to be answered is: could the late Alfred
have acquired 'the hard assets' which were in the two safety
deposit
boxes on 6 September 2003 after the death of his twin brother? The
probabilities negate this. The first appellant was not
happy with the
will. On 23 February 2003 the late Alfred signed the refusal to
adiate. The following morning he reneged from it.
He branded the
first plaintiff a crook who was trying to rob him of his share in the
partnership assets. From there the relationship
was terribly
strained. There is no evidence that he purchased any of 'the hard
assets' between 9 February 2003 and 6 September
2003. Therefore the
assets that are listed in para 8 of the particulars of claim should
have been in existence and co-owned as
at 9 February 2003. This
should include the negotiable certificates of deposit which Livanos
had seen on 6 September 2003. Mr van
Vuuren also confirmed the
existence of the negotiable certificates of deposit. He became aware
of their existence when he was still
working for the twins. From time
to time, on maturity dates, renewals were activated. The late Alfred
had cashed some of the instruments
after the death of the late Peter.
He is the only one who had keys to the safety deposit boxes.
Therefore the contention that there
was no evidence that he possessed
the assets listed in para 8 of the particulars of claim after the 9
February 2003 ought to be
rejected.
[82]
I am therefore satisfied that the assets referred to in sub-paras
8(a), (b) and (c) of the particulars of claim were co-owned
and the
late Alfred was in possession of or in control of such assets as at 9
February 2003. The quantities and values of the assets
listed in
sub-paras 8(a), (b) and (c) of para 8, is not an issue before us and
ought to be the subject of further hearing in the
court a quo.
[83]
The assets in sub-para 8(d) are three Rolex watches. During argument
it was conceded that the appellants have not proved that
they were
co-owned. The concession should dispose of the issue relating to the
Rolex watches. The contradictions, if any, regarding
the Rolex
watches, is in my view, not so material as to reject the whole of
Livanos’ evidence which is materialy corroborated
by other
independent evidence.
[84]
As regards Eleni's jewellery listed in sub-para 8(e) of the
particulars of claim, on 14 April 2005, the late Alfred and the
first
appellant entered into a settlement agreement which was made an order
of the court. Of relevance, the parties acknowledged
and recorded
that Eleni’s jewellery belonged to the estate of the late Peter
N Christelis and Alfred Christelis in equal
share. It was further
recorded that the parties shall take all such steps and do all things
necessary in order to procure the equitable
separation and division
of the jewellery as to 50% to the estate of the late Peter and 50% to
the late Alfred. The existence of
these assets as at 9 February 2003
was never an issue. Eleni’s jewellery as agreed consisted of 20
diamond rings and at least
six gold and diamond brooches with a
reputed value at the time of between three and five million rands.
These were acquired and
co-owned long before the death of Peter.
After the death of Peter, the late Alfred before his death confirmed
on a number of occasions
the existence of Eleni’s jewellery to
be in his possession. He, however, failed to hand them over for
distribution or disclose
their whereabouts. Despite court orders
obtained against him, the late Alfred still failed to produce Eleni’s
jewellery for
distribution. It was only after the execution of the
court order that very few items of jewellery forming part of Eleni’s

jewellery were found. The suggestion made by the respondents’
counsel that there was no sufficient evidence that such assets
were
co-owned cannot be correct. I therefore see no basis to decline to
make an order as proposed regarding Eleni’s jewellery.
[85]
The quantity of the assets listed in sub-para 8(f) is an issue before
us. The inventory of what was kept in the safety boxes
A8 and A10
also contained the quantities of items so listed. Livanos prepared
the list contemporaneously. His evidence with regards
to the
quantities was not materially challenged, neither was there any
evidence to refute the list and the quantity. I therefore
have no
difficulty in finding that the quantities of the assets are as set
out in the inventory. The value of the assets is not
an issue before
us.
[86]
Regarding the disposal of the assets with the knowledge of the
appellants’ claims, the conduct of the late Alfred falls

squarely within the principles of the
actio ad exhibendum
. On
receipt of a letter of demand dated 10 July 2003, he caused his
daughter under very strange circumstances to rent in her name
a
safety deposit at Mercantile Bank. He introduced her to the bank
officials as the person who would assist him. He however did
not give
the key to his daughter and thus placed himself in control of the
safety deposit box. On 6 September 2003 he removed the
diamonds and
Kruger Rands. He also stopped Livanos from making a full list of
items in the safety deposit box A8. He paid Captain
Fourie R10 000,
apparently for his silence. He instructed Livanos and Fourie not to
tell anyone about what they had witnessed.
Two weeks thereafter, he
offered Livanos a diamond, apparently in exchange for the incomplete
inventory. Efforts to retrieve the
jewellery, including Eleni's
jewellery, was a challenge. Despite court orders he failed to account
for these assets. When the sheriff
executed, very few items were
found. For example, Livanos spoke about more than 500 Kruger Rands
and only 185 were recovered. Mr
van Vuuren, who worked for the twins
for many years, spoke about 1 000 Kruger Rands. Livanos spoke
about diamonds in a box
half the size of a shoe box, which was full
to the brim, but far less was recovered.
[87]
There can be no doubt that he removed the diamonds, other jewellery
and Kruger Rands from the safety deposit boxes so that
they cannot be
shared as part of the partnership’s assets. He was fully aware
of the appellants’ claims thereto.
[88]
He cashed the negotiable certificates of deposit. He was fully aware
of the plaintiff's claims thereto yet he did not offer
to share the
proceeds thereof with the appellants. He should therefore be found to
have disposed of the negotiable certificates
of deposit, the balance
of the Kruger Rands, Elini’s jewellery and the diamonds, with
the knowledge of the claims thereto
by the appellants.
[89]
As regards the assets listed in para 8(f) of the particulars of
claim, they were left in the two safety deposit boxes
on 6 September
2003. On 2 June 2003 a burglary occurred at the bank. The items were
stolen. Theft and or disposal thereof cannot
be attributed to the
late Alfred nor can it be said he took the risk by keeping the said
assets in the safety deposit boxes. Therefore
the declarator sought
based on theft or disposal with the knowledge of the appellants’
claims with regards to assets listed
in sub-para 8(f) of the
particulars of claim cannot succeed. Alfred was a very unreliable
person. His daughter said so. The fact
that he removed the assets
from the safety box or boxes is proof that he was capable of
disposing the assets in question like he
did with the negotiable
certificates of deposit which he cashed. I find it unnecessary to
deal with the appellants’ cause
of action based on the
actio
furtiva
principle. It suffices to mention that the conduct of
Alfred with regards to the other assets removed from the safety
deposit boxes
satisfies the requirements for a claim based on the
actio furtiva
principle
[90]
I cannot agree that the statement quoted in para 42 of the majority
judgment refers only to the ‘cash amount’ being
item 3 in
the statement.  At the end of item 3, there is a full stop.
The ‘bulk of which was in the two lockers
were withdrawn prior
to the forced entry on the 2
nd
June 2004’ is a
sentence on its own starting on a separate paragraph below item 3.
The  subject concord ‘was’
in the statement should
be understood to be referring to the ‘bulk’ of assets in
the two lockers which were withdrawn
or removed prior to the forced
entry.  There is no evidence that there was cash in the other
locker or the safety deposit
box A10.  Livanos spoke of cash in
the safety deposit box A8, some of which was removed.
Therefore, ‘…
were withdrawn…’ in the
statement can only be referring to other assets of kinds of assets
listed in items 1, 2 and
3 of the statement.  The statement
should be read and understood in the light of the other evidence. For
example, Fourie confirmed
to the first respondent that ‘stuff’
was removed from the safety deposit boxes on the 6 September 2003.
This corroborative
evidence regarding the removal of assets from the
safety deposit boxes on 6 September 2003 cannot be ignored.
[91]
Livanos testified for the appellants. They came to court on the basis
that there was a meeting on 9 August 2003. Therefore
the discussion
regarding the meeting of 9 August 2003 referred to in para 20 of the
main judgment should be accepted as alluded
to by Livanos. In all
probability the parties trusted Livanos. In fact Livanos says so, as
stated in the quotation in para 76.
It was therefore not necessary
for the appellants to insist on another person to accompany Livanos
and Alfred to the Bank. The
presence of Fourie at the Bank on 6
September 2003 was confirmed by Fourie himself to the first
respondent.  Why he was there,
one can only rely on the evidence
of Livanos.
[92]
There was no evidence that the physical disability of Alfred was such
that he could not have taken scoops of Kruger Rands and
carried the
pilot bag as explained by Livanos. The exact or approximate weight of
the bag, in my view, is not based on any reliable
evidence and will
amount to drawing conclusions without evidence to find Livanos
unreliable in this regard.
[93]
Livanos did not intervene or question Alfred at the Bank. He did not,
because, whilst puzzled, he also thought the full inventory
would be
done at home. When that did not happen, he decided to distance
himself from Alfred’s conduct. Alfred was a co-owner
of the
assets. To suggest that Livanos and Fourie should have stopped him,
would be to place an enormous and difficult task on
them. Alfred was
not an easy person to deal with. His daughter said so. Secondly,
failure to question Alfred about the need to
carry the pilot bag is
not relevant or material to justify the rejection of Livanos’s
evidence. What is however relevant
is that items were removed from
the safety deposit box and put inside the pilot bag. There is no
evidence to refute this assertion.
The fact that the pilot bag
could not be found should infact be seen as corroboration of the
disposal or concealment of the
assets in question.
[94]
Concerning his declaration that the list of assets or inventory
‘reflects a true and accurate inventory of the goods
contained
in the … box’, he explained that that was with reference
to what actually remained in the safety deposit
boxes after Alfred
had removed some of the assets.  He refused to hand over the
inventory to Alfred, because he knew that
it was not complete.
Livanos is not a legally trained person. To draw conclusions against
evidence that is not reliably contradicted
will amount to a wrong
approach to evaluating evidence. I do not think that any adverse
inference  drawn against Livanos on
the basis of his declaration
is justified.
[
95] As regards Livanos’failure to report to the legal
representatives, it was Alfred who was obliged to account for the

assets in the safety deposit boxes and not Livanos.  So, if
Alfred was unable to get an inventory from Livanos or Fourie,
it was
incumbent on him to report to the lawyers and not Livanos. Remember,
Livanos got himself involved because he wanted to help
Alfred.
If Alfred by his conduct made it impossible or diffcult for Livanos
to assist, he was entitled to distance himself
as he did.
Alfred in any event had access to the safety deposit boxes and he
could have compiled another inventory if he
wanted to.
[96]
In the result, on a conspectus of evidence, the court a quo erred in
dismissing the appellants’ claim. It should have
considered the
corroborating evidence and concluded that the appellants had proved
some of their claims. The appellants in my view
have achieved
substantial success on appeal. Accordingly, costs should follow the
result.
[97]
I turn now to consider the issue relating to the reserved costs of 10
May 2006. This relates to an application to separate
the issues,
postponement of the trial and an application to obtain the evidence
of Tzouras on commission. Subsequent to the order
to obtain evidence
on commission, the evidence of Mr Tzouras was taken before
Commissioner George Mavrikis in Athens, Greece on
17 May 2010. Both
parties attended and participated in the proceedings.
[98]
The evidence of Tzouras, in my view, was indeed relevant as it dealt
with the possible existence of the diamonds. Secondly,
it sought to
dispel the suggestion that what Livanos said were diamonds could have
been fake diamonds contained in some lucky packets.
The appellants
are therefore entitled to the reserved costs of the application in
terms of rule 38(3) of the Uniform Rules of Court
and the costs
occasioned by the postponement of the trial in the court a
quo.
[99]
I have considered order 2 and 3 of the majority judgment. I agree
with the displeasure expressed by Wallis JA and the order
made. Rule
8 is not meant only for the convenience of the Court, but most
importantly, to ensure the proper running of the proceedings
and
expeditious finalisation of appeals especially where the record is
voluminous like in this case. A properly prepared bundle
saves time.
One does not have to read everything. The content of the core bundle
is to be focused, dealing mostly with evidence
and documents which
are relevant to the issues only.
[100]
I would have made an order upholding the appeal.
M
F LEGODI
ACTING
JUDGE OF APPEAL
Appearances
For appellant: C M
Eloff SC (with him S Stein)
Instructed by:
Fluxmans
Inc, Johannesburg;
Lovius
Block, Bloemfontein.
For respondent: P L
Carstensen (with him G Davids and A Schluep)
Instructed by:
Geo Isserow & T
L Friedman, Johannesburg;
McIntyre
& Van der Post, Bloemfontein.
[1]
Denel
(Edms) Bpk v Vorster
2004 (4) SA 481
(SCA) para 3;
Adlem
and Another v Arlow
2013
(3) SA 1
(SCA) para 5.
[2]
Clifford
v Farinha
1988
(4) SA 315 (W).
[3]
Chetty
v Italtile Ceramics Ltd
2013
(3) SA 374 (SCA).
[4]
Mr Livanos said that he learned the amount subsequently from Captain
Fourie.
[5]
Union
Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd and Another
2002
(4) SA 408
(SCA) para 24.
[6]
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et Cie and Other
2003 (1) SA 11
(SCA) para 5.
[7]
Borcherds
v Estate Naidoo
1955
(3) SA 78
(A) at 79A–B. See also
Moyce
v Estate Taylor
1948 (3) SA 822
(A) at 827.
[8]
In the same way as it is dangerous to speculate on why a witness in
a criminal trial might be lying.
Maseti
v S
[2014]
1 All SA 420
(SCA) para 25.
[9]
Frankel
Pollak Vinderine Inc v Stanton NO
2000
(1) SA 425 (W).
[10]
RMS
Tranport v Psicon Holdings (Pty) Ltd
1996
(2) SA 176
(T) at181.
[11]
Frankel
Pollak Vinderine Inc. v Stanton NO, supra.
[12]
Vulcan
Rubber Works (Pty) Ltd v
south
African Railways & Harbours
1958
(3) 285 (A).
[13]
Philip
Robison Motors (Pty) Ltd v NM Dada (Pty) Ltd
1975
(2) SA 420 (A).
[14]
Ibid.
[15]
See
Morobane
v Bateman
1918
AD 460
at 466.
[16]
See
Alderson
& Flitton (Tzaneen) (Pty) Ltd v E G Duffeys Spares (Pty) Ltd
1975
(3) SA 41
(T).
[17]
Ibid
at
46 C-D
.
[18]
Ibid
at
48 G-H.
[19]
Ibid
at
50 H.
[20]
Ibid
at
51 B-C.
[21]
R
v Dhlumayo
and
Another
1948
(2) SA 677
(A) at 705-706.
[22]
Mine
Workers’ Union v Brodrick
1948 (4) SA 959
(A) at 970.
[23]
See
President
of the Republic of South Africa and Others v South African Rugby
Football Union & others
2000
(1) SA 1
(CC) at 43
;
see
also
Allie
v Foodworld Stores Distribution (Pty) Ltd and Others
2004
(2) SA 433
(SCA).