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[2012] ZASCA 57
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The owners of the MV 'Banglar Mookh' v Transnet Ltd (842/2011) [2012] ZASCA 57; 2012 (4) SA 300 (SCA); [2012] 3 All SA 632 (SCA) (30 March 2012)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
CASE NO: 842/2011
In the matter between:
THE OWNERS OF THE
MV ‘BANGLAR MOOKH'
….................................................................
APPELLANT
and
TRANSNET LTD
…...........................................................................
RESPONDENT
Neutral citation:
The owners of the MV
‘Banglar Mookh’ v Transnet Ltd
(842/11)
[2012] ZASCA
57
(30 March 2012)
Coram:
Farlam,
Cachalia, Tshiqi, Wallis JJA et Plasket AJA
Heard:
21
February 2012
Delivered:
30
March 2012
Summary:
Vessel
colliding with harbour wall while entering harbour – alleged
negligence of the pilot – approach to evidence –
unsafe
to rely unduly on demeanour instead of the inherent probabilities –
expert evidence reconstructing the incident only
reliable where the
underlying facts on which it is based are established –
negligence not shown – negligent failure
to retain records –
does not warrant striking out defence.
_____________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Western Cape High Court, Cape
Town (Binns-Ward J, sitting as court of first instance):
‘
The appeal is dismissed with
costs.’
_____________________________________________________________
_
JUDGMENT
________________________________
____________________________
FARLAM ET WALLIS JJA
(
CACHALIA, TSHIQI JJA ET PLASKET AJA
CONCURRING
)
Introduction
[1] The appellant in this matter, the owners of the
Banglar Mookh
, the Bangladesh Shipping Corporation, instituted
an action in the Western Cape High Court, Cape Town, exercising its
admiralty
jurisdiction, against the respondent, Transnet Ltd, and the
National Ports Authority of South Africa. They claimed payment of the
damages suffered on 5 September 2005 when their vessel, the MV
‘Banglar Mookh’, which was at the time being piloted
by
Mr Tadeusz Jan Grelecki, an employee of the respondent, collided with
the knuckle at the ‘A’ berth at the entrance
to Duncan
Dock in the Cape Town harbour. (It was subsequently agreed between
the parties that the respondent was the party which
would be
responsible if the appellant were to establish a basis for liability
for the damages sustained as a result of the collision
and the
National Ports Authority of South Africa, which had been cited as
second defendant, took no part in the proceedings and
no relief was
sought against it.)
[2] In its particulars of claim the appellant alleged
that the cause of the collision was the gross negligence of Mr
Grelecki (whom
we shall call in what follows ‘the pilot’).
When the appeal was called in this court the appellant was granted
leave
to amend its particulars of claim to allege recklessness.
[3] The appellant accordingly sought to prove that the
collision between the appellant’s vessel and the knuckle had
been caused
by the recklessness or gross negligence of the pilot. It
did this in an attempt to circumvent the exemption from liability
enjoyed
by the respondent in terms of item 10(7) of Schedule 1 to the
Legal Succession to the South African Transport Services Act 9 of
1989, which reads as follows:
‘
The
Company [i.e., the respondent] and the pilot shall be exempt from
liability for loss or damage caused by a negligent act or
omission on
the part of the pilot.’
[4] In two High Court judgments,
Yung
Chun Fishery Co Ltd v Transnet Limited t/a Portnet
,
an unreported judgment of the Western Cape High Court delivered on 1
September 2000 in case AC 30/97, and
Owners of
the MV Stella Tingas v MV Atlantica & another (Transnet Ltd t/a
Portnet & another, Third Parties)
2002
(1) SA 647
(D), SCOSA A 46(D), it was held that the exemption does
not apply if the pilot’s acts or omissions were grossly
negligent
or reckless. When the
Stella Tingas
case came before this court
1
it assumed, without deciding, that ‘the exemption
would not apply if the pilot were found to have been grossly
negligent’
(see para 7 of the judgment at 480 B–C).
[5] The appellant relied on the two High Court decisions
to which we have referred and submitted that the pilot in this case
was
reckless or grossly negligent and accordingly that the exemption
did not apply.
[6] The case came before Binns-Ward J in
the court
a quo.
2
Although the learned judge had, as he put it, ‘some
reservations’ whether item 10(7) had been properly construed in
the two cases mentioned earlier, the issue did not arise because he
held that the appellant had not succeeded in proving that the
pilot
had been guilty of gross negligence. Having found that gross
negligence on the part of the pilot had not been proved, he
held that
the exemption contained in item 10(7) applied and consequently
dismissed the appellant’s action, but gave the appellant
leave
to appeal to this court against his judgment.
[7] There were, as will appear more fully later, two
conflicting versions of the events which led to the collision, one in
the evidence
of Captain Shahidul Islam, the master of the vessel, the
other in the evidence of the pilot. The judge rejected the pilot’s
version and accepted that of Captain Islam. He held that the pilot
had been negligent but not grossly negligent, hence the dismissal
of
the action.
[8] Mr MacWilliam
SC,
who appeared for the appellant, submitted, as was to be expected,
that the judge had correctly accepted Captain Islam’s
version
of the events leading up to the collision, but had erred in not
holding that the pilot was reckless or grossly negligent.
He
contended that the onus to establish that the pilot had not been
grossly negligent was on the respondent, with the result that
the
judge’s finding, ‘that he was not persuaded that it had
been established that the pilot was grossly negligent’,
amounted to a finding of absolution. This he submitted meant that the
principle that where a defendant fails to establish its defence,
judgment must be given in favour of the defendant, should have been
applied:
cf
Arter v
Burt
1922 AD 303
at 306. He also argued that
the judge had erred in failing to uphold a contention advanced at the
end of the trial that, because
the respondent had, despite giving an
undertaking to do so, failed to preserve the vessel tracking service
(VTS) records (which
would have provided an objective and reliable
record of what had led up to the collision), the court should strike
out the respondent’s
defence and give judgment in favour of the
appellant, effectively as if by default.
[9] Mr Wragge
SC, who
appeared for the respondent, submitted that the judge had correctly
rejected the contention that the respondent’s
defence should be
struck out because of its failure to preserve the VTS records. He
also submitted that the
onus
of
proving that the exemption contained in item 10(7) did not apply was
on the appellant: consequently the principle that absolution
from the
instance is not an appropriate order in a case where the
onus
is on the defendant does not apply.
[10] Mr Wragge devoted the main part of his
argument, however, to the submission that the judge had erred in
preferring Captain
Islam’s version of the events to that of the
pilot and that on the pilot’s version he had not been negligent
at all,
much less grossly negligent or reckless. He contended further
that the judge had misdirected himself on a number of material points
and had adopted an incorrect approach to the resolution of the
factual disputes before him. He argued further that in the
circumstances
this court is at large to decide the matter afresh on
the record and that it should dismiss the appeal on the basis that
the pilot
had not been negligent.
The evidence
[11] In order to facilitate an
understanding of the evidence the judge gave a helpful summary in his
judgment of what he called
‘the physical interrelationship of
some of the salient features around the harbour basin outside the
entrance to Duncan Dock’
3
.
This summary reads as follows:
‘
What
the parties referred to as “the basin” is defined on its
seaward aspect by the breakwater on the north western
side and by the
North Wall, which is part of the seaward wall of the Ben Schoeman
Dock, to the south east. The breakwater runs
out from the land at an
angle in a north easterly direction, while the North Wall runs
outward from the seaward boundary of the
Ben Schoeman Dock in a north
westerly direction, pointing towards the end of the breakwater wall
on the opposite side of the mouth
of the basin. A vessel sailing in
an easterly direction so as to pass the breakwater from the west, as
did the
Banglar
Mookh
,
would ordinarily turn to starboard at an obtuse angle to cross the
basin following the leading line into Duncan Dock. The North
Wall and
the entrance to the Ben Schoeman Dock would be on the vessel’s
port side as it crossed the basin; and the North
Spur on its
starboard side. The part of the basin immediately outside the
entrance to Duncan Dock is characterized by the North
Spur, which is
a wall running out in a north easterly direction from the seaward
side of the A Berth wall of Duncan Dock and, on
the southern aspect,
by the South Spur, being a wall running out in a generally north
westerly direction from the end of the quay
that comprises the
boundary between the southern edge of the Ben Schoeman Dock and what
is known as the Eastern Mole of Duncan
Dock. The walls of the North
Spur and the South Spur define, in effect, an inner basin immediately
outside the entrance to Duncan
Dock. As mentioned, the entrance to
Duncan Dock is between the knuckle of the A Berth wall and the
knuckle of the Eastern Mole.’
[12] The judge also set out in his judgment measurements
of the distance between the salient points furnished by the
appellant’s
expert witness, Captain McAllister, which were,
with rare exceptions the same as or a little bit longer than those
derived from
the charts. The judge used these measurements because,
he said, the longer distances favour the respondent. These
measurements
were as follows:
‘
(a)
from the end of the A Berth knuckle to the end of the breakwater
1071,5m
from the end of the breakwater
to the end of the North Wall 722m
from the end of the breakwater
to the end of the North Spur 851m
from the end of the North Wall
to the end of the North Spur 509m
from the end of the North Spur
to the end of the A Berth knuckle 230m
from the end of the North Wall
to the end of the A Berth knuckle 676,3m
from the No. 4 buoy to the end
of the A Berth knuckle 1180m.’
[13] As a further guide to the understanding of the
evidence the judge also gave three examples, taken from a table
produced in
evidence, illustrating the distance a vessel will cover
travelling at various speeds. The examples were:
‘
at a
constant speed of 5 knots a ship covers 154 m a minute; at 7 knots,
216m a minute and at 9 knots, 278m a minute.’
[14] The judge gave the following summary of the two
conflicting versions of how the collision occurred:
‘
On the
plaintiff’s version, which is founded on the evidence of the
master of the vessel, the pilot found himself obliged,
during the
crossing of the basin that lies inside the breakwater but outside the
entrances to the Ben Schoeman and Duncan Docks,
to order the
execution of a turn hard to starboard because the vessel was
approaching too close to one of the outer structures
of the harbour,
identified on the charts as the “North Wall”. According
to the master, the effect of the turn hard
to starboard was to then
place the vessel on a course, within the relatively narrow confines
of the basin, which required a subsequent
corrective hard to port
manoeuvre if the vessel was to avoid another hard structure, known as
the “North Spur”, on
the opposite side of the basin.
Captain Islam’s evidence had it that while the turn hard to
port resulted in a successful
clearance by the vessel of the North
Spur the vessel was, however, thereby put on the course that resulted
in the glancing blow
of the starboard bow against the A berth knuckle
when the ship passed into the Duncan Dock.
…
The defendant’s version,
established principally through the evidence of Pilot Grelecki, also
had the vessel turning sharply
to starboard when it entered the basin
after passing the breakwater. On the defendant’s version, this
occurred involuntarily,
due to the effect of prevailing conditions,
and was corrected by putting the vessel hard to port and back on the
leading line through
the entrance to Duncan Dock. Grelecki’s
evidence is that because the vessel was to be berthed alongside the
Eastern Mole
(also known as “landing wall 1”), which
would be to the portside as the vessel entered the Duncan Dock, he
gave the
helmsman orders to move the wheel gradually to port as the
ship approached the entrance to the dock. According to Grelecki, he
noticed, however, that the bow of the vessel instead started to veer
to starboard. He shouted orders of ‘hard to port’
to
correct this. He simultaneously rushed over to the wheel from the
position at which he had been standing, on the port side of
the
bridge, only to find that the helmsman had swung it hard to
starboard. Grelecki testified that he had then pushed the helmsman
aside and himself swung the wheel hard to port, but too late to avoid
the glancing collision with the A-berth knuckle.’
[15] Although the VTS records were not
retained and were thus not available at the trial, a record of radio
transmissions between
the pilot, the masters of the two tugboats
involved and port control was available and a transcription was
handed in at the trial.
It was accepted by the parties that the times
reflected on this record were not accurate. They were adjusted by Mr
Kieron Cox,
an expert who testified on behalf of the appellant. Mr
Cox’s adjustments were predicated on the assumption that the
collision
occurred at precisely 11h20, an assumption which was not
necessarily correct, although the collision did occur at
approximately
that time and the approximation was a close one. The
adjusted times, though not precisely accurate, are, as the judge put
it, ‘a
true reflection of the relative times in abstract
vis-à-vis each other’.
[16] The material portions of this transcript from the
time when the pilot spoke to Mr Le Blond on the aft tug until the
forward
tug was finally fast about seven minutes after the collision,
with the adjusted times inserted and, in brackets, the sound byte
length of some conversations, read as follows:
‘
11:08
(01:06)
Aft Tug: Pilot Grelecki,
Enseleni, good morning?
Grelecki: Good morning Enseleni
and good morning Pierre [Le Blond] is the forward tug?
Aft Tug: Ah no, I will be on the
stern.
Grelecki: Thank you very much.
Right astern, right astern, Eastern mole 1, Eastern Mole 1, port side
to.
Aft Tug: Righto, all received
Forward Tug: How far is the
…Pinotage forward tug?
Grelecki: Good morning Pinotage,
good morning Henk [Turkstra]. Centre Lead forward, centre lead
forward, landing wall 1, port side
to, please
Forward tug: I think I must
check, but Port Control when they call on, they call say landing wall
1
Grelecki: Landing wall 1,
landing wall 1
Forward tug: Aye, Landing wall 1
Grelecki: Landing wall 1,
landing wall 1, port side to, Centre Lead forward, please
Forward tug: Aye, aye.
11:18 to
11:19:32
(01:31)
Grelecki: Forward tug are you
fast?
Forward Tug: Our messenger line
going up Pilot
[inaudible]
[Period of silence
in the recording. No transmissions]
4
Person: Harry Harry – copy
Grelecki: Forward tug, Pull
back, Pull back – forward tug bow to port (28 seconds after
start of communication)
Forward Tug: Messenger line is
still going up Pilot
Grelecki: OK.
[Period of silence in the
recording. No transmissions]
Grelecki: Pull, pull, pull,
pull! Forward tug bow to port
Forward Tug: I haven’t got
the line up yet pilot
[Period of silence in the
recording. No transmissions]
Grelecki: Pull. Pull to port,
pull! Make full to port (1:04 after start)
Person: Harry
11:20 (Point of
collision)
(00:20)
Grelecki: Bow full to port
Forward Tug: The line is only
going up now Pilot (6 second for whole transmission)
11:21
(00:55)
Grelecki: Pull the bow to
starboard now (Eh!) (an exclamation)
Forward tug: Guys gone. Ran away
from the bow. My wire isn’t up yet Pilot. There’s nobody
up there.
Grelecki: Nobody up there, what
must I do? (19 seconds into transmission)
11:22
(00:47)
…
Grelecki: Are you fast? (17
seconds into transmission)
Forward tug: I’m not fast
yet Pilot.
Grelecki: Not fast yet
Aft tug: I’m fast aft (25
seconds into transmission)
Grelecki: OK. Can you heave up
the bow? Bow to starboard? Sorry stern to starboard
Aft tug: I know.
11:24
(00:27)
Grelecki: The problem was that I
gave the command “hard to port” and the helmsman was
keeping hard to starboard and
I miss the point. Back to the tugs I
presume?
11:24
(00:27)
Grelecki: The forward tug was
not fast yet. They didn’t get the heaving line. I was alone.
Forward tug: Aye. It’s
going up again. They all ran away and then it got looped behind the
fender. OK it’s going up
again.
Grelecki: OK
11:27
(00:17)
Grelecki: After tug stop please.
Aft tug: Stop aft.
11:27
(00:30)
…
Grelecki: Forward tug, forward
tug stern to starboard please. The after tug, after tug, stern to
starboard.
Aft tug: Stern to starboard
11:27
(00:32)
Grelecki: Forward tug are you
fast?
Forward tug: It’s up
there, but we are waiting and they keep on telling us to wait. I
don’t know what they’ve
got, what’s happening up
there.
Forward tug: OK, we are finally
fast.’
(The transcript has been slightly amended after
listening to the recording.)
[17] Two days after the collision Captain Islam
completed a ‘casualty/accident report’ in terms of
section 259 of the
Merchant Shipping Act 57 of 1957, as amended. The
report he completed reads as follows:
‘
While
under pilotage on entering the port of Cape Town, vsl came into
contact with concrete wall section A Berth knuckle vessel
damaged at
starboard side shell plating in way of fore peak tank and no. 1 tween
deck along length of approximately 18M. All damage
above waterline.’
[18] On the same day he had an interview with Mr F
Hartzenberg, the attending surveyor, as part of an investigation into
the collision
conducted by the South African Maritime Safety
Authority (SAMSA). The surveyor recorded the following:
‘
The
vessel made its way into port at 10:54. A wind of force 6 prevailed
at the time. The vessel was moving at 9 knots on entering
the port.
The harbour tugs were not connected to the vessel at this time. The
vessel collided with the knuckle at A-Berth at 11:18.
All this information was
verbally furnished to the undersigned by the master of the
Banglar
Mookh
. This interview was held on 07 September 2005 at
approximately 15:00. This event occurred on 05 September 2005 at
11:18. If this
office had been advised or notified earlier a more
valuable comment may have been possible.’
The result of the SAMSA investigation was that no
further action was required.
[19] On the day of the collision written reports were made by the
pilot, the master and chief engineer of the forward tug, which
was
trying to make fast on the bow of the vessel (Messrs Turkstra and
Stein), and the master of the aft tug which was trying to
make fast
on the stern of the vessel (Mr Le Blond).
[20] Messrs Stein and Le Blond testified for the
respondent, Mr Turkstra having died before the trial.
The trial court’s approach
[
21] The judge summarised and discussed the
evidence of Captain Islam and the pilot at some length. It would
unduly protract this
judgment were we simply to quote what he said in
its entirety. The following is a synopsis that we trust does him
justice. We start
with Captain Islam whose ‘description of the
vessel’s approach to the port and the collision was not marked
by any
noticeable confabulation and was not upset in
cross-examination.’
[22] The judgment said the following about Captain
Islam’s evidence. Captain Islam said that he met the pilot when
he came
on board and handed him a pilot card dealing with the
vessel’s specifications and performance. That reflected the sea
speeds
of the vessel in knots when fully loaded as:
‘
Full ahead 9.0
Half ahead 7.5
Slow ahead 6.5
Dead slow ahead 4.5’
He also said that he told the pilot that if
the vessel was travelling at a speed higher than 3 to 4 knots it was
impossible to alter
the engine movements from ahead to astern without
first stopping the engine. The pilot said that he was not given the
pilot card,
but that Captain Islam told him that the vessel’s
slow ahead speed was 7.5 knots,
5
which he did not accept. The judge discussed the
evidence of the pilot in this regard and found it to be inconsistent
and improbable.
He concluded from this that his evidence
6
that he took the vessel up the channel at 6 to 7 knots
could not be accepted and said that he was left with the impression
that
the pilot was in no position to state the speed of the vessel in
the approach channel with any degree of reliability.
[23] The judge continued with Captain Islam’s
description of the vessel’s journey up the approach channel. He
said in
his evidence that the vessel proceeded up the channel at half
ahead and that the wind from the east tended to drive the vessel to
the eastern side of the channel, which the pilot controlled by small
changes in speed and the helm. Captain Islam said, on the
basis of
what is contained in the bridge log, that the vessel passed the
breakwater at 11h16. It was unclear what was meant by
this: whether
it meant that the bow passed the breakwater or that the bridge came
abreast of it or that the entire vessel had passed
this point. The
judge recognised that this would affect the calculations of the
experts, but concluded that, as the vessel’s
length was only
159 metres, it was unnecessary to resolve this. The captain said that
the hard to starboard manoeuvre, mentioned
in the judge’s
summary of the conflicting versions, was occasioned by a need to
avoid a collision on the portside of the
vessel with the North Wall.
He did not suggest that the vessel was proceeding too fast at this
stage, but claimed to have become
anxious about its speed shortly
before the collision, when he says that he noticed it was reflected
on the ship’s instruments
as 9 knots. He was at all times aware
of the danger of a collision with the harbour walls.
[24] There was a difference between the master and the
pilot over the former’s involvement during the passage up the
channel.
Captain Islam said that he was with the pilot and engaged
with him about the navigation of the vessel, while the pilot said he
showed no interest and was in conversation with another crew member
on the bridge. What is clear is that the master did not intervene
at
any stage, but claimed that when a collision was imminent it was too
late for him to do so. The judge did not resolve this dispute
but
noted that, after the collision, the pilot ‘acted expeditiously
and appropriately to avoid the stern of the vessel also
coming into
collision with the harbour structure’. Lastly the judge noted
the master’s evidence that the helmsman and
duty officer were
punctilious in complying with the pilot’s orders. He
specifically denied that the helmsman had put the
helm to starboard
contrary to the pilot’s order and that the pilot had intervened
and taken the helm himself to remedy that
by turning the vessel hard
to port. He did however accept that the pilot had complained about
the helmsman both before and after
the collision.
[25] Turning to the pilot the judge
summarised and discussed his evidence as follows. He started with the
passage down the channel,
which he said took place at a speed of
about 6 to 7 knots. He maintained a steady course with minor
movements of the wheel. When
the vessel passed the breakwater it was
in the middle of the channel. At that stage he gave the order ‘full
ahead’
in order to counteract the swell effect at the end of
the breakwater, which tends to push the vessel to starboard. He said
that
in his experience vessels of this type steered more easily at
speed and that the purpose of this order was to improve the handling
of the vessel. Just past the breakwater he linked up with the two
tugs, which ordinarily wait for incoming vessels at a point inside
the breakwater. The tugs could not be made fast while crossing the
basin, which he said was due to the incompetence of the crew
of the
Banglar Mookh
, but
this did not concern him as in eight cases out of ten, with vessels
this size, they only made fast inside the dock. The judge
found this
strange as it left unexplained why the tugs should then wait inside
the breakwater and why they had attempted to make
fast while the
vessel was crossing the basin. He preferred the view of Captain
Woodend that it was preferable for the tugs to make
fast while
crossing the basin.
[26] Once the vessel crossed the breakwater
and entered the basin it was committed to entering the Duncan Dock.
7
The pilot said that the vessel regained the leading line
into the dock, having corrected for the veer to starboard caused by
the
swell at the end of the breakwater. It then proceeded smoothly
across the basin towards the entrance to the dock, maintaining its
line by minor course changes of no more than five to ten degrees
either to port or starboard. When approaching the entrance he
gave an
instruction for the vessel to commence a general and gradual turn to
port in order to enter the dock and berth at the Eastern
Mole on the
port side of the dock entrance. He was disconcerted to realise that,
notwithstanding his order, the bow was turning
to starboard. He
rushed to the wheel and saw that the helm was to starboard. He then
grabbed the helm and turned hard to port.
Whilst the vessel started
to correct itself it was too slow to avoid a glancing collision with
the knuckle of A berth. He then
turned the helm hard to port and
thereby brought the stern of the vessel round and prevented the stern
from colliding with the
knuckle of A berth.
8
[27] At this point in the judgment the judge evaluated
the evidence of the pilot in regard to the incident with the helmsman
to
which the pilot ascribed the collision. He started with his
demeanour and said the following:
‘
[41] I
have to say that I perceived that Grelecki was noticeably discomfited
in the witness box during his evidence in chief when
describing the
vessel’s approach across the basin to the point of collision.
He became more so under cross-examination. I
also found his
description of events markedly vague. It is clear that the collision
was a traumatic event in Mr Grelecki’s
life. He showed every
sign of still finding difficulty working through the experience
nearly five years after the event.
[42] His professed inability,
during his evidence in chief, to recall whether the vessel had been
turned hard to starboard was perplexing
and appeared to be
inconsistent with the answers counsel expected to elicit. As a matter
of inherent probability the detail of
the cause of the incident would
be deeply engrained in the witness’s mind. On Grelecki’s
version it was the alleged
putting of the wheel to starboard, instead
of steering to port, that was the fundamental cause of the collision.
If Grelecki had
indeed seen the wheel swung hard to starboard, I
consider it most improbable that he would have forgotten the fact.
Grelecki’s
written report to the port authority made on the day
of the collision or the day thereafter, describes the wheel having
been swung
hard to starboard.’
[28] The judge found it hard to credit that, after 20
minutes in which the vessel had traversed the channel without any
misunderstanding
between the helmsman and the pilot, there would at
this crucial point be a mistake by the helmsman. He recognised that
in the period
immediately after the collision this was what the pilot
said on more than one occasion. However he discounted this because he
thought
it inconsistent with his evidence that the order to turn hard
to starboard was given ‘only in reaction to the bow having
already noticeably veered to starboard’ in other words ‘after
the helmsman had already steered the vessel in the wrong
direction.
He concluded by saying:
‘
All in
all Mr Grelecki’s evidence in respect of the alleged error by
the helmsman was vague and inconsistent. As a result
it falls to be
rejected as unsatisfactory and unconvincing.’
[29] The judge then dealt with the pilot’s
evidence of the speed of the vessel across the basin. He found his
answers on the
information he had received from the master
inconsistent and regarded his estimate of the speed of the vessel
across the ground
inconsistent with the information in the pilot card
and that of Captain McAllister. He concluded that the vessel must
have been
travelling faster than 7.5 knots while crossing the basin
and may have been going faster. He then criticised the pilot for not
taking up the conning position where he could see various instruments
that would have provided some assistance in keeping him informed
of
the vessel’s movements. Lastly he said that he found his
evidence of the course that the vessel took while crossing the
basin
unconvincing. He did so on the basis of matters such as the pilot’s
unwillingness to concede that the vessel must have
crossed to the
westward side of the approach line,
9
and his difficulty in explaining certain manoeuvres
undertaken by the vessel in the course of its approach. He thought
that the
description of the vessel’s position at the time of
the ‘emergency caused by the helmsman’s aberration’
was incompatible with the distance the vessel ‘must have
covered’ during the final two and a half minutes prior to
the
collision. Lastly he thought that the pilot’s insistence that
the vessel was not on the side of the channel furthest
from the
breakwater as it entered the basin was inconsistent with his telling
Captain Woodend that the vessel came down the channel
steering a
course to put the number 4 buoy
10
‘
fine on the port bow’.
[30] The judge then
briefly discussed and summarised the evidence of Mr Le Blond, (which
he said ‘contributed nothing material
to assist in the
determination of liability in this case’) and Mr Stein (about
which he said that he did not consider it
necessary to say much).
Whether this was a correct approach will be dealt with later in this
judgment.
[31] He then proceeded
to discuss the evidence of the two experts, Captain McAllister, who
testified on behalf of the appellant,
and Captain Woodend, who
testified on behalf of the respondent. ‘The essence of Captain
McAllister’s evidence’,
said the judge ‘was that it
is important that a pilot should not bring a vessel into port at
excessive speed.’ He continued:
‘
Captain
McAllister pointed out that while proceeding at a relatively high
speed might give rise to good steerage, it reduces the
pilot’s
ability to control the vessel within the dangers presented by the
confines of a harbour. The pre-eminent duty of
a pilot, so testified
Captain McAllister, is to keep the vessel under full control and to
manage its progress in a pro-active,
rather than a re-active,
manner.’
[32] The judge’s
summary of Captain McAllister’s evidence is set out in
para [58] of his judgment, which reads
as follows:
‘
On
the basis of the prevailing weather conditions, the description
provided by Captain Islam and the cross-checking control afforded
by
the voice recordings, Captain McAllister opined that the vessel had
been brought up the easterly (seaward) side of the approach
channel
with the use of a combination of speed and steering to starboard to
counter the easterly drift. In the witness’s
opinion the high
speed of approach, coupled with the positioning of the vessel to the
eastern side of the approach channel as it
arrived at the position at
which a turn to starboard was required to line up with the leading
lights of the approach into the Duncan
Dock, resulted in a loss of
control manifested in the vessel’s drift towards the North Wall
on the eastern side of the basin,
which necessitated reactive steps
by the pilot in the form of an increase of speed to improve steerage
and a hard turn to starboard.
The limitations imposed by the physical
confines of the basin required the last-mentioned manoeuvre to be
followed by a hard turn
to port to avoid the vessel coming into
collision with the North Spur on the south western side of the
basin.’
[33] During the course
of his evidence Captain McAllister submitted a series of calculations
that suggested that the average speed
of the vessel from the time
when the pilot boarded her to the moment of the collision was in
excess of seven knots. Though the
witness accepted that his
calculations were not definitive he suggested that they provided a
useful guide, which corroborated his
opinion that the pilot had
brought the vessel in at an excessive speed. He was not however
willing to commit himself definitively
to a particular speed as being
a ‘safe’ speed to approach the port. The witness also
expressed the view that the failure
of the tugs to make fast and be
in a position ‘to render timely assistance’ was due to
the fact that the pilot had
brought the vessel to the point of
collision at an excessive speed.
[34] The judge
concluded his summary of Captain McAllister’s evidence as
follows:
‘
Captain
McAllister impressed as an articulate and self-confident witness, who
succeeded in providing a rational and easily comprehensible
foundation for the opinions which he ventured. He candidly conceded
that his approach was reconstructive in nature – that
he had
worked backwards from the given fact of the collision to determine
why it had happened. In assessing the witness’s
opinion I have
been astute to caution myself against the danger of being led by it
into judging the conduct of the pilot too stringently
with the
benefit of wisdom after the event.’
[35] The judge was
less impressed by the evidence of the respondent’s expert,
Captain Woodend. He listed what he called ‘a
number of
indications of a tendency by Captain Woodend to tailor his opinion to
support [the pilot’s] evidence’. The
judge also commented
that he ‘seemed extremely reluctant, when pressed, to question
the reliability of what he had been told
by [the pilot]; even in the
context of the difficulties posed for [the pilot’s] version by
the objectively established considerations
of time and distance’.
[36] The judge summed
up his assessment of Captain Woodend’s evidence in the
following sentence:
‘
In
my judgment the effect of Captain Woodend’s evidence was
undermined by an
a
priori
and
generally inflexible presumption in favour of the factual correctness
of [the pilot’s] version of events.’
What is important to
note about this conclusion is that its validity as a criticism of
Captain Woodend was entirely dependent upon
the pilot’s version
being rejected. If it should have been accepted then it is no
criticism of Captain Woodend that he relied
on it. Captain Woodend
had ‘fairly conceded’, as the judge put it, ‘that
his opinion would have been different
in certain respects were it to
have been premised on the acceptance of Captain Islam’s
evidence’.
[37]
The
judge largely accepted the evidence of Captain Islam and Captain
McAllister and rejected that of the pilot and Captain Woodend.
For
the reasons already canvassed above he rejected the pilot’s
evidence that the helmsman created a situation of sudden
emergency by
disregarding his order to turn to port and instead turned to
starboard. He also rejected his evidence concerning the
vessel’s
position in the approach channel as it passed the breakwater. For
that reason he rejected the evidence of both the
pilot and Captain
Woodend regarding the swell effect on passing the breakwater creating
a veer to starboard and accepted the evidence
of Captain Islam and
Captain McAllister that this was necessitated by the risk of
collision with the North Wall and the fact that
the effect of a near
gale force wind and the swell was to set the vessel towards the
eastern side of the channel. That he said
set it on a collision
course with the North Spur on the western side of the channel and,
because of the speed at which the vessel
was travelling, (which he
assessed as being at least 7 knots), the distance between the various
harbour structures was too little
to slow the vessel’s approach
or avoid a collision. He held that the order ‘hard to port’
was given in order
to avoid a collision with the North Spur, but said
that it would not affect matters if it was given to avoid a collision
with the
A berth knuckle and that the pilot was aware at least three
minutes prior to the collision that there was a problem, as evidenced
by his conversations with the tug masters. His conclusion was that
the pilot lost control over the vessel as a result of having
approached at an excessive speed. This he linked to the failure of
the tugs to make fast before the collision and their resultant
inability to assist in preventing the collision.
Discussion
[38]
As can be seen from this summary and the quoted extracts from his
judgment set out above the judge was strongly influenced
in the
conclusions to which he came by (i) his impressions as to the
demeanour in the witness box of Captain Islam and the pilot
and (ii)
the opinions of Captain McAllister and in particular his estimates as
to the speed at which the vessel was travelling
at various points of
its approach to the point of collision from the time it passed the
breakwater. Before we say anything further
about his reliance on his
demeanour findings and the appellant’s expert’s
reconstruction of what happened, it is necessary
to say something
about items of evidence which the judge did not mention, either
because he overlooked them or did not consider
them to be important.
[39]
The first item of evidence to which we refer is the fact that unlike
the pilot, who shortly after the collision – less
than five
minutes according to the transcript – said over the radio that
he had given the command ‘hard to port’
but that the
helmsman was keeping hard to starboard, From the outset the pilot
accordingly blamed the helmsman for the accident.
Captain Islam in
the reports he made two days after the incident did not say anything
about the collision being caused by the pilot.
In the statement he
made in the casualty/accident report (quoted in para 17 above) the
account he gave was under a printed heading
‘Brief account of
cause of casualty/accident and any other relevant information …’
In a box on the page above
the space for the account of the cause of
the incident where information was sought as to ‘the locality
of ship where casualty/accident
occurred’ he had placed a tick
above the word ‘accident’. When it was put to him in
cross-examination that he
had not stated that it was the fault of the
pilot he said:
‘
Ja
no casualty happened, that’s why no – there’s no
need here to description the reason. There was no casualty
(indistinct) on board the ship.’
11
[40]
When pressed further on the point, when it was put to him that he was
asked to provide the cause of the accident and had not
said it was
the fault of the pilot, he said, ‘no this is not necessary that
it should be put there.’ He proceeded,
‘This (indistinct)
describe this the cause of the collide with the A-berth knuckle, this
was the cause. This is a collision
with the A-berth knuckle that was
the collision of this accident – this is the cause of the
accident.’ As Mr Wragge
submitted this was a disingenuous
answer.
[41]
When the SAMSA report was put to Captain Islam he stated that he gave
information to the surveyor but could not remember what
he had said.
This left unexplained his failure to attribute blame to
the pilot in a statement made shortly after the collision to the
functionary
charged with investigating the collision. If the position
had truly been that the vessel was travelling too fast and narrowly
avoided
colliding with both the North Wall and the North Spur it is
remarkable that he did not think to mention that.
[42]
In our view the answer Captain Islam gave regarding the
casualty/accident report form and the fact that it appears that he
made no allegation to the SAMSA surveyor that the pilot was to blame
for the collision were important facts which were of relevance
in
deciding whether his version should have been preferred to that of
the pilot. However the judge did not mention them in his
assessment
of Captain Islam’s evidence.
[43]
It will be recalled that the judge said that he did not consider it
necessary to say much about the evidence of Mr Stein, the
engineer of
the forward tug, the
Pinotage
.
There were in our view at least two aspects of Mr Stein’s
evidence which were important and which the judge did not mention.
The first was his evidence that if the vessel had been doing 9 knots
he and Captain Turkstra would have noticed it and would have
informed
the pilot that he was going too fast. As appears from the transcript
no-one at any stage told the pilot that he was going
too fast
and
Captain Islam’s evidence was that until a late stage of
proceedings he was not concerned about the speed of the vessel.
The second item of evidence to which we wish to refer in this regard
is Mr Stein’s description of the difficulties experienced
in
the attempts to make the
Pinotage
fast to the
Banglar
Mookh
.
He said in this regard that after the crew of the
Banglar
Mookh
dropped the leading line down the crew of the
Pinotage
made it fast to the messenger and ‘then it was very, very slow
in going up and at times it was not moving at all and by the
time the
vessel went over to starboard it was too late to do anything, we had
to get out of the way.’ This was consistent
with Captain Le
Blond’s observation and assessment of the quality of the crew
on the stern of the vessel.
[44]
Mr Stein never suggested, nor was it put to him, that the reason his
tug could not be made fast to the appellant’s vessel
was, as
the judge suggested in para [84] of his judgement, that this was
caused in part by the fact that ‘the speed and course
taken by
the vessel hindered rather than assisted the process.’ Had
there been a problem in either tug making fast, occasioned
either by
the speed of the vessel or any unusual manoeuvres in the course of
its passage, the probability is that this would have
been reflected
in the radio conversations between the pilot and the tug masters.
Instead Captain Le Blond said that it was a ‘normal
day at the
office’ until the collision occurred and Mr Stein’s
evidence was that the only peculiarity was the behaviour
of the crew
in assisting the
Pinotage
to make fast. This evidence was disregarded by the judge. So was
Captain Le Blond’s evidence that when the
Banglar
Mookh
came
down the channel towards where the tugs were waiting there was
nothing untoward because: ‘This is just a normal ship
coming
down the channel.’ He stressed that there was nothing unusual
about its speed or its movements, which was inconsistent
with Captain
Islam’s evidence that it was on the easterly side of the
channel and at risk of colliding with the North Wall.
[45]
The judge referred in his summary of Captain Islam’s evidence
to the fact that Captain Islam said that the pilot had
complained
about the helmsman in connection with the collision, both shortly
before and after the collision. He recognised that
the radio
transcript confirms a complaint after the collision, but then
commented that the nature of any complaints made before
the collision
was not explored. Of greater importance and not considered in the
judgment was that
the transcript clearly showed that on
three occasions in the immediate aftermath of the collision the pilot
said that the helmsman
disregarded his commands and turned the helm
to starboard and not to port. Apart from the passage already quoted
23 minutes after
the collision he said to port control: ‘‘I
told the wheelsman hard to port. We were heading nicely, he repeated
hard
to port, but he was keeping all the time hard to starboard, so I
immediately stopped.’ Immediately after this he told the
two
tug masters that he had kept saying ‘hard to port, hard to
port’ and then noticed that the helmsman was steering
hard to
starboard.’
[46]
In our view this evidence went a considerable way to undermine any
suggestion that the pilot’s version was a contrivance
and this
should have been taken into account before the conclusion was arrived
at that the pilot’s version was to be rejected.
The
statements were made at a time when the pilot had not had an
opportunity to fabricate a version or collude with the two tug
masters. If untrue the master, helmsman and other crew of the
Banglar
Mookh
were available to refute them. In
addition the pilot was not to know that the VTS records, which might
reveal a different picture,
would become unavailable. Contemporaneous
statements of this character cannot simply be disregarded, but the
judge did so without
any consideration of the improbability of the
pilot being able to invent this story on the spur of the moment. He
rejected his
evidence of this incident on three bases. First, he
thought the pilot was ‘visibly discomfited’ in giving
this evidence.
Second, he placed great store on the pilot’s
inability to remember whether the helmsman had placed the helm hard
to starboard
and an impression he formed that this was not what
counsel expected. Third, he found the pilot’s description of
this incident
in the course of his evidence confusing.
[47]
We will deal with the question of demeanour below. The judge’s
emphasis on the pilot’s inability to remember that
the helm was
put over hard to starboard, was, as Mr Wragge correctly submitted,
misplaced. The pilot was consistent in his evidence
that contrary to
his instruction the helmsman had put the wheel over to starboard.
What he could not remember when in the witness
box four and a half
years after the incident was whether the helmsman had put the wheel
over
hard
to
starboard. I
n his conversation with
the tug masters he had mentioned that the wheel was hard to starboard
and this was accepted. His unwillingness
at the trial to say
definitely that this was what he observed redounds rather to his
credit as a witness. The judge found it improbable
that he would be
unable to recall this detail. That suggests that it would be obvious
visually. However, as the photographs show,
the wheel was little
larger that a conventional steering wheel in a motor car with six
spokes protruding from the outer rim and
no markings of the helm
position. That could only be read off the ship’s instruments
and in a situation of emergency there
was little time to observe
those. When that is borne in mind the perceived improbability
disappears.
[48]
We have already referred to the extent to which the judge relied on
his demeanour findings in coming to his conclusion on the
facts. This
court has on a number of occasions in the past warned about the risks
inherent in relying on demeanour: see in particular
the judgment of
Harms JA in
Body
Corporate of Dumbarton Oaks v Faiga
[1998] ZASCA 101
;
1999
(1) SA 975
(SCA) at 979 C–I, where some of the decisions on the
point are referred to.
12
What
is always important is to decide the case in the light of what Harms
JA called (at 979 I of the
Dumbarton
Oaks
case)
‘the wider probabilities’. This required that Captain
Islam’s evidence be subjected to the same close scrutiny
as
that of the pilot. Had that occurred no doubt the judge would have
taken account of his repeated statements that he could not
remember
pertinent detail; his inconsistencies on certain aspects, such as
between his description of the way his crew performed
and that of the
tug masters; his unfamiliarity with the layout and conditions at a
port he was visiting for the first time and
his lack of knowledge of
the proper way to con a vessel into the Duncan Dock.
[49]
In assessing the wider probabilities a most important factor was the
failure of Captain Islam shortly after the incident to
cast any blame
on the pilot. The judge’s failure to have regard to this factor
is a clear and in our view serious misdirection.
His
failure to give proper weight to the pilot’s complaints
immediately after the collision that the helmsman had disregarded
his
orders and steered hard to starboard is likewise a serious
misdirection. So too was his failure to give adequate weight to
the
handicaps of language and the elapse of time in assessing the pilot’s
demeanour.
[50]
We referred earlier to the fact that the judge had relied to a
considerable extent on the expert opinion of Captain McAllister
and
in particular his reconstruction of the speed of the vessel at
various stages. This court has recently had occasion to consider
how
reconstructions by experts, in particular in motor collision cases,
should be approached: see
Biddlecombe
v Road Accident Fund
[2011]
ZASCA 225
(30 November 2011). In para 9 the court pointed out that in
some cases expert evidence may provide ‘a definitive factual
background against which to weigh the merits of the eyewitness
accounts of what occurred.’ An example of this will be where
physical evidence, such as skid marks, location of debris, etc, is
viewed in the light of established scientific data. But as is
pointed
out in para 10 of the judgment ‘(t)he expert tasked with
reconstructing what occurred is often dependent for the
reconstruction not simply on the application of scientific principle
to accurate data but on calculations based on imperfect human
observation. The fact that the reconstruction rests on a potentially
imperfect foundation is the reason for caution in determining
its
evidential value’.
[51]
We do not think that Captain McAllister’s reconstruction can be
regarded as having been based on accurate data –
on the
contrary we think that it rested on ‘a potentially imperfect
foundation’. A number of aspects are not clear.
The deck and
engine logs did not coincide and the assumption that the engine log
could be taken as reliable was not based on any
factual foundation.
Accordingly there was no clarity on the engine speeds at different
stages. To take but one example, the deck
log said that the order
‘full ahead’ was given after passing the breakwater,
whilst the engine log showed it as having
been given before passing
the breakwater. The difference between the two is one minute and that
would materially affect the calculations.
What was meant by ‘past
the breakwater’? If that point was taken only once the vessel’s
superstructure was past
the end of the breakwater it reduced the
distance to be covered to the point of collision by around 10 per
cent and the speed by
between one and two knots, from the 9 knots
calculated by Captain McAllister to a little over seven knots, which
no-one described
as too fast. The position of the vessel at the
various stages was not clear. What effect did the heading of the
vessel have on
the calculation? Captain McAllister agreed that it was
not possible to assess the speed of the vessel as it passed the
breakwater.
Was the vessel on the easterly side of the channel as it
passed the breakwater? Captain Islam said it was and the judge
accepted
this evidence and found that this was a result of an
easterly set caused by the wind and swell. But in coming to this
conclusion
he ignored the unchallenged evidence of the respondent’s
expert, Captain Woodend, who had extensive experience in piloting
vessels entering the port of Cape Town,
13
that
the effect of wind and tide at the point is to set the vessel to the
west as described by the pilot and not to the east, which
is what
mariners unfamiliar with the port would expect. While the judge was
correct in criticising his evidence because he was
unwilling to
reject the pilot’s version on certain issues, that criticism
does not apply to his evidence on this point. Here
he was in any
event not testifying as an expert but on his experience as a pilot
which was that there is no easterly set in the
entrance to Table Bay
if the wind and swell are coming from the west (as they were on the
day of the collision). If there was no
easterly set and the vessel
was more or less on the leading line, subject only to minor course
corrections as described by the
pilot, then it was also travelling
significantly slower than Captain McAllister’s calculations
suggested. The fact that the
pilot came down the channel, well before
reaching the breakwater, with the number four buoy ‘fine on the
port bow’
(ie at an angle of up to 45 degrees from the port bow
looking ahead), lends no support to Captain Islam’s evidence
that the
vessel was on the easterly side of the channel.
14
[52]
One last aspect of the judge’s conclusions must be addressed.
He found (and counsel supported this in argument) that
the order by
the pilot to go hard to port was an endeavour to avoid a collision
with the North Spur and not an endeavour to avoid
colliding with the
knuckle of A berth. An examination of the chart of the entrance to
Duncan Dock demonstrates that this is highly
improbable. These two
points are only 230 metres apart. They are so situated in relation to
one another that a vessel the size
of the
Banglar
Mookh
(159
metres long) that successfully took evasive action to miss the North
Spur by going hard to port, would then be on a heading
that would
take its bows clear of the knuckle of A berth. Once its stern cleared
the North Spur its bow would be only about 70
metres from the
entrance to the dock and heading across the face of the entrance. It
would be more likely to collide port side
on with the entrance to the
Duncan Dock adjacent to Pier 1 than with the knuckle of A berth. Yet
the collision was with the latter
and involved a glancing blow with
the starboard bow of the vessel. That makes it probable that the
action of going hard to port
was directed, as the pilot claimed, at
avoiding the drift down on to the knuckle that started before passing
the North Spur, as
a result of the vessel going to starboard from a
position near the leading line. That in turn is consistent with what
both tug
masters said in their reports after the collision.
15
Far
from that being irrelevant as the judge suggested it was strongly
supportive of the pilot’s evidence. In all the circumstances
we
are satisfied that the judge erred in holding that Captain Islam’s
version was to be preferred to that of the pilot.
[53]
As we have endeavoured to indicate the judge misdirected himself in a
number of respects in his approach to the evidence, with
the result
that this court is at large and obliged to decide the matter afresh
on the record. In our view if the evidence is approached
correctly,
without misdirection, it is clear that the pilot’s version,
despite his weaknesses in giving evidence, was supported
by most of
the probabilities and should not have been rejected. Accordingly,
unless the point taken by the appellant as a result
of the
respondent’s failure to retain the VTS data and records is a
good one, the appeal must be dismissed on the simple
ground that no
negligence on the part of the pilot was proved.
The unfair
trial point
[54]
We do not think that Mr MacWilliam’s contention that the
respondent’s defence should have been struck out, because
it
breached the undertaking to preserve the VTS records for production
at the appropriate time should litigation ensue, should
be upheld.
[55]
In response to a notice by the appellant in terms of Rule 35(3), (6)
and (10), in which the appellant sought production, inter
alia, of
the VTS records, the respondent filed an affidavit dated 9 December
2009 and deposed to by Ms Lerato Maboea, the legal
manager for the
National Ports Authority, Cape Town, in which she dealt with the VTS
records as follows:
‘
Regrettably,
the recordings in question (to the extent that they existed) were
lost when the Port of Cape Town upgraded and replaced
its vessel
tracking system (“VTS”) in the first quarter of 2006. In
any event, I am advised that the data recording
system previously in
operation had malfunctioned which would have prevented any copy of
the data being made and stored. In addition,
I am further advised
that the hard drive of the data recording system previously in
operation would override and update itself
every 3 to 5 days.’
[56]
The appellant did not seek to cross-examine Ms Maboea on the contents
of her affidavit, nor did it apply at the outset of the
trial to have
the respondent’s defence struck out. Instead it participated
fully in the trial and only raised the contention
presently under
discussion in its argument at the end. At no stage did it put the
respondent on notice that it proposed to contend
that Ms Maboea’s
affidavit should not be accepted or that the records had been
deliberately destroyed by the respondent or
the port authority. In
the circumstances we think that this aspect of the case must be
approached on the basis that what she said
was correct and that the
failure to preserve the records was inadvertent or accidental.
[57]
Mr MacWilliam’s
main
argument was based on the contention that the court should follow the
decision of the English Court of Appeal in
Arrow
Nominees Inc v Blackledge
[2000]
EWCA Civ 200
(22 June 2000)
[2000] EWCA Civ 200
; ;
[2000] 2 BCLC 167
CA
[2000] EWCA Civ 200
; ;
[2001] BCC 591
(CA). In that case the Court of Appeal, reversing the decision of the
court
a
quo
,
held that the judge should have struck out a petition for relief
against unfair conduct by the majority shareholder of Arrow Nominees
Inc and two of its directors. The ground for doing so was that the
petitioner, through its representative, had forged documents
in the
course of discovery thereby preventing a fair trial of the petition.
[58]
In para 54 of his judgment Chadwick LJ (with whom Ward LJ, who also
gave a separate concurring judgment, and Roch LJ agreed)
adopted an
observation of Millet J in
Logicrose
Ltd v Southend United Football Club Ltd
(1998)
Times, 5
March, that:
‘…
the
object of the rules as to discovery is to secure the fair trial of
the action in accordance with the due process of the Court;
and that,
accordingly, a party is not to be deprived of his right to a proper
trial as a penalty for disobedience of those rules
- even if such
disobedience amounts to contempt for or defiance of the court - if
that object is ultimately secured, by (for example)
the late
production of a document which has been withheld.’
Chadwick LJ then went
on:
‘
But
where a litigant's conduct puts the fairness of the trial in
jeopardy, where it is such that any judgment in favour of the
litigant would have to be regarded as unsafe, or where it amounts to
such an abuse of the process of the court as to render further
proceedings unsatisfactory and to prevent the court from doing
justice, the court is entitled - indeed, I would hold bound - to
refuse to allow that litigant to take further part in the proceedings
and (where appropriate) to determine the proceedings against
him. The
reason, as it seems to me, is that it is no part of the court's
function to proceed to trial if to do so would give rise
to a
substantial risk of injustice. The function of the court is to do
justice between the parties; not to allow its process to
be used as a
means of achieving injustice. A litigant who has demonstrated that he
is determined to pursue proceedings with the
object of preventing a
fair trial has forfeited his right to take part in a trial. His
object is inimical to the process which
he purports to invoke.
Further, in this context, a fair
trial is a trial which is conducted without an undue expenditure of
time and money; and with a
proper regard to the demands of other
litigants upon the finite resources of the court. The court does not
do justice to the other
parties to the proceedings in question if it
allows its process to be abused so that the real point in issue
becomes subordinated
to an investigation into the effect which the
admittedly fraudulent conduct of one party in connection with process
of litigation
has had on the fairness of the trial itself. That, as
it seems to me is what happened in the present case. The trial was
“hijacked”
by the need to investigate which documents
were false and what documents had been destroyed.’
[59]
The
Arrow
Nominees
case
was subsequently considered by the Court of Appeal in two decisions,
both reported in [2010] 1 All ER, viz.
Shah
v Ul-Haq
[2009]
EWCA Civ 542
;
[2010] 1 All ER 73
(CA) and
Zahoor
& others v Masood & others
[2009]
EWCA Civ 650
;
[2010] 1 All ER 888
(CA). The
Shah
case
concerned a motorist, involved in an accident and entitled to recover
damages for his injuries, conspiring with a third party
to bring a
fraudulent claim against the defendant on the basis that the third
party was a passenger in the car at the time of the
accident, which
she was not. In holding that this conduct did not deprive him of his
right to recover his own damages Smith LJ
said (para 28):
‘
Everything
that was said in the
Arrow
Nominees
case
related to the situation which arose in the course of the trial, once
it had become apparent that the petitioner’s dishonesty
was
such that a fair trial had become impossible.’
Similar
views were expressed in the
Zahoor
case. There
both parties in complex civil litigation were guilty of forgery and
fraud in the presentation of their respective cases.
This emerged in
the course of a twenty day trial. It was then argued, as it has been
here, that the claim should have been dismissed
on the grounds of the
claimant’s misconduct, but the trial judge declined to do so.
On
appeal Mummery LJ said, in giving the judgment of the court:
‘
We
accept that, in theory, it would have been open to the judge, even at
the conclusion of the hearing, to find that Mr Masood had
forged
documents and given fraudulent evidence, to hold that he had thereby
forfeited the right to have the claims determined and
to refuse to
adjudicate upon them. We say "in theory" because it must be
a very rare case where, at the end of a trial,
it would be
appropriate for a judge to strike out a case rather than dismiss it
in a judgment on the merits in the usual way.
One
of the objects to be achieved by striking out a claim is to
stop
the
proceedings and
prevent
the
further waste of precious resources on proceedings which the claimant
has forfeited the right to have determined. Once the proceedings
have
run their course, it is too late to further that important objective.
Once that stage has been achieved, it is difficult see
what purpose
is served by the judge striking out the claim (with reasons) rather
than making findings and determining the issues
in the usual way …
In a complex case (such as the present) which requires a good deal of
evidence before the fraud can be
established to the requisite
standard of proof, it may be difficult to avoid a full trial.’
[60]
Four points emerge from these cases. First, the power is only
exercised in the case of fraud or dishonesty. Second, none of
them go
so far as to say that the power to strike out on these grounds is
available against a defendant, thereby affording the
plaintiff a
victory by default, although it is possible, without the need to
decide whether it is permissible, to conceive of an
extreme case
where that might be done. Third, only in an extreme case will it be
exercised when the trial has run its course. Fourth,
it is only if a
fair trial was prevented that, as Mr MacWilliam correctly conceded,
the point can be taken. Therefore, if the court
concludes that the
absence of the VTS records did not prevent a fair trial, the point
must fail.
[61]
In our view it cannot be said that the trial was unfair. The
appellant was able to lead Captain Islam and its expert Captain
McAllister. The radio transcripts were available as were the ship’s
logs. The pilot gave evidence and was cross-examined,
as did the
master of the aft tug and the chief engineer of the forward tug.
Apart from this a large amount of other relevant data
was available
including the reports made by the master, the pilot, and those on the
tugs, as well as a detailed hydrographic chart
of the locality where
the collision occurred. The missing records might have added greater
certainty to the underlying facts on
which the experts based their
evidence, but they would not necessarily have shown that the
plaintiff should have succeeded. In
addition the loss of the records
was at most due to negligence and not due to any dishonesty or
reprehensible conduct on the part
of the defendant. In this
situation, the position is no different from that in any case where a
document is lost or an important
witness dies or disappears without
any means of recovering their evidence. The parties must then make do
with what is left to advance
their respective cases. The absence of
the evidence does not make the trial unfair.
[62]
For these reasons it is clear that the judge correctly dismissed this
point.
Conclusion
[63] In the
circumstances we are satisfied that the appeal must be dismissed with
costs. The following order is made:
The
appeal is dismissed with costs.
I G FARLAM
JUDGE OF APPEAL
M J D WALLIS
JUDGE OF APPEAL
APPEARANCES
APPELLANT: R W F MACWILLIAM SC
Instructed by Edward Nathan Sonnenbergs,
Cape Town;
Webbers Attorneys, Bloemfontein.
RESPONDENT: M WRAGGE SC
Instructed by Webber Wentzel Attorneys,
Cape Town
McIntyre & Van der Post, Bloemfontein.
1
Stella
Tingas, MV: Transnet Ltd t/a Portnet v Owners of the MV Stella
Tingas
2003 (2) SA 473
(A); SCOSA A 59 (SCA).
2
The
Owners of the MV ‘Banglar Mookh’ v Transnet Ltd
[2010] ZAWCHC 485
(12 October 2010).
3
A
reduced copy of a chart depicting the area concerned, which was
handed in at the trial, is reproduced in the annexure to this
judgment. The A Berth knuckle is marked F. G. on the chart and is
adjacent to A cargo shed.
4
The
transcript might otherwise suggest that this is a continuous
conversation and convey a rising concern on the part of the pilot.
That would be unfair to him as after each order and the response
that the line is not yet up, there is an interval suggesting
that he
was expecting the line to go up before he repeated the order. His
tone of voice remains consistent throughout.
5
This
was an error on his part. The pilot said that in his experience with
this type of vessel he suspected that the slow ahead
speed would be
4½ knots but that the master told him that it was between 6
and 7 knots.
6
Characterised
by the judge as an assertion.
7
Both
experts agreed that this was so.
8
In
effect what he described was the vessel pivoting around the point of
the knuckle of A berth. The bow collided with the knuckle
but as the
vessel then turned ‘into’ the point of collision by
turning hard to port the stern moved away from the
point of
collision and further damage was avoided.
9
Presumably
he meant the leading line being the central line in the channel that
is used by pilots as a guide for vessels to follow
when entering the
Duncan Dock.
10
The
buoy on the opposite side of the channel to the breakwater.
11
It
is clear that Captain Islam, like the pilot, was not speaking in his
home language and that explains the slight incoherence
of his
answers. He was giving as his explanation for not blaming the pilot
that this was an accident and did not amount to a
casualty, which
can have a technical meaning in maritime parlance. However that does
not explain why he did not say that the
pilot was responsible for
the accident.
12
See
further H C Nicholas, ‘Credibility of Witnesses’
(1985)
102
SALJ
32
at 36 – 37, M M Corbett, ‘Writing a
Judgment’
(1998) 115
SALJ
116
at 124 and Lord Bingham
of Cornhill ‘The Judicial Determination of Factual Issues’
Current Legal Problems
, Vol 58, 1 – 29, reprinted in
his book
The Business of Judging
at 8 – 11, esp at 9
where he said, ‘the current tendency is (I think) on the whole
to distrust the demeanour of a
witness as a reliable guide to his
honesty.’
13
He
was not only an experienced pilot but was formerly the port captain
in Cape Town. Neither Captain McAllister nor Captain Islam
had
similar experience of local conditions as a pilot. Captain
McAllister had been the master on board container vessels that
docked in the Ben Schoeman Dock not Duncan Dock.
14
On
any basis when the vessel came close to passing and passed the buoy
it must have been broad on the port beam. When the transition
from
‘fine’ to ‘broad’ occurred would depend on
the vessel’s position in the channel.
15
Captain
Turkstra said ‘the ship started to veer to starboard’
and Captain Le Blond said ’it took a sheer to
starboard’.
It is significant that both mentioned this in their reports without
either of them indicating that there had
been sudden or unusual
movements by the vessel prior to this point.