About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2023
>>
[2023] ZAECMKHC 38
|
|
Goliath and Another v Chicory SA (Pty) Ltd (3382/2018) [2023] ZAECMKHC 38 (7 February 2023)
FLYNOTES:
CONDUCT OF OFFICER OF THE COURT
PROFESSION
– Conduct – Language and tone – Application for
leave to appeal – Inappropriate language
and astonishing
range and depth of attack on court’s findings –
Responsibility for ensuring proper access to
the court, respect
for its proceedings, and the legitimacy of its findings, rests as
much with counsel as with the Judge
– Such language and
attacks undermine the decorum and dignity of the court and prevent
the upholding of its responsibilities.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE NO. 3382/2018
In
the matter between:
CECIL
GOLIATH First
Applicant
EVERGREEN
EVERFRESH (PTY) LTD
Second
Applicant
and
CHICORY
SA (PTY)
LTD Respondent
JUDGMENT
LAING J
[1]
This an application for leave to appeal in
relation to a claim for damages because of the failure of a chicory
crop. The judgment
deals primarily with the merits of the application
but also canvasses a secondary issue that arose, viz. the language
and tone
used by the applicants in the conduct of the application.
The two aspects are treated separately in the paragraphs that follow.
Background
[2]
It was common cause that a verbal agreement
had been concluded by the parties for the plaintiffs’
production and supply of
chicory to the defendant. Whereas the first
growing season had been a success, the second growing season had been
badly affected
by a drought that had occurred in the Alexandria
district during the period, 2017-2018.
[3]
The court previously dismissed the
applicants’ claim and awarded the counterclaim to the
respondent, with costs. The applicants
now seek leave to appeal
against the whole judgment.
Grounds for appeal
[4]
The grounds for the appeal include the
following: that the court disregarded the pre-trial minutes; that the
court failed to deal
with the applicants’ argument in relation
to the divisibility of performance; that the court erred in its
findings about
the date upon which the verbal agreement for the
production and supply of chicory commenced; that the court erred in
its findings
about liability for the transport costs; and that the
court misdirected itself with regard to the alleged ‘coaching’
of a witness during the course of the trial.
[5]
The applicants built their case, to a large
extent, on the contents of a pre-trial minute where agreement was
reached to the effect
that ‘none of the parties were [sic] to
blame for the 2017 drought’. They argue that the court
disregarded this admission
and ignored the relevant legislation and
case law. Mention was made of section 15 of the Civil Proceedings
Evidence Act 25 of 1965,
which provides as follows:
’
15
Admissions on record
It shall not be necessary
for any party in any civil proceedings to prove nor shall it be
competent for any such party to disprove
any fact admitted on the
record of such proceedings.’
[6]
All that the parties admitted was that
there had been a drought in 2017 and that none of the parties was to
blame. The meaning of
the first clause was clear enough; the meaning
of the second clause was very far from clear. In the circumstances,
it was unnecessary
for any of the parties to have proved that a
drought had occurred, this was never in dispute. However, it was
entirely necessary
for the parties to have led evidence to prove (or
disprove) what exactly was meant by the assertion that no-one was to
blame. If
that meant that no-one was to blame for the consequences or
effects of the drought, then the question arises as to what extent.
Did the parties imply the failure of the entire crop, or just a
reduced yield? Furthermore, what implications did such an admission,
as vague as it was, have for the parties’ respective rights and
duties? Did it imply that the drought had indeed amounted
to a
supervening impossibility and that this had extinguished the
obligations of the first applicant, Mr Cecil Goliath? Did it
imply
something else? The pre-trial minute, on its own, was simply
inadequate to allow any findings to be made without the presentation
of evidence.
[7]
The
applicants also contend that the court ignored the applicable case
law, especially the decision in
MEC
for Economic Affairs, Environment and Tourism v Kruizenga
,
[1]
where Cachalia JA held as follows:
‘…
The
issue in this matter is whether the appellant may resile from
agreements made by his attorney, without his knowledge, at a rule
37
conference… The rule was introduced to shorten the length of
trials, to facilitate settlements between the parties, narrow
the
issues and to curb costs. One of the methods the parties use to
achieve these objectives is to make admissions concerning the
number
of issues which the pleadings raise. Admissions of fact at a rule 37
conference, constitute sufficient proof of those facts…
Rule
37 is thus of critical importance in the litigation process. This is
why this court has held that in the absence of any special
circumstances a party is not entitled to resile from an agreement
deliberately reached at a rule 37 conference…’
[8]
This court accepts completely, with
respect, the principles enunciated by the Supreme Court of Appeal.
However, the decision is
of no assistance to the applicants in the
present matter. The only admission of fact arising from the pre-trial
minute is that
there was a drought. The admission that none of the
parties was to blame for the drought, on its own, did not promote the
purposes
of rule 37; it failed to narrow the issues raised by the
applicants in their replication to the effect that the drought had
been
a
vis major
and that this had extinguished the parties’ respective
obligations. If the parties had intended to mean that the respondent
admitted the applicants’ allegations about the nature of the
drought and its legal impact, then this ought to have been spelled
out unequivocally in the pre-trial minute itself or in terms of a
supplementary minute. That such intention had ever existed was
not at
all apparent. The applicants argue for an interpretation of the
pre-trial minute that is simply not evident from the text
and argue
for an approach that would, effectively, have resulted in the court’s
either disregarding entirely or otherwise
attaching minimal weight to
the evidence led in relation to the nature and legal impact of the
drought.
[9]
Ultimately, the court is not at all
persuaded by the argument that it disregarded the pre-trial minute.
The legislation and case
law mentioned do not advance the applicants’
position.
[10]
Closely
tied to the above ground of appeal is the contention that the court
failed to deal with the applicants’ argument regarding
the
divisibility of performance. The application of the principle,
however, could only have been triggered if the court had found
that
the drought had been a supervening impossibility. The court made no
such finding. For Mr Goliath’s obligations in relation
to the
second growing season to have been extinguished (on the premise that
the underlying verbal agreement was indeed divisible),
it was
necessary for the drought to have amounted to an absolute or
objective impossibility. That the drought merely made it difficult
for Mr Goliath to have produced and supplied chicory was insufficient
to have released him from his obligations. See
Unibank
Savings and Loans Ltd (formerly Community Bank) v ABSA Bank Ltd
;
and
Post
Office Retirement Fund v South African Post Office SOC Ltd and
others
.
[2]
[11]
Similarly, the argument about the
foreseeability of the drought and the issues in relation thereto only
become relevant where the
drought is found, when viewed objectively,
to have been a supervening impossibility that prevented Mr Goliath,
absolutely, from
producing and supplying chicory. The evidence
demonstrated otherwise.
[12]
The applicants’ remaining grounds of
appeal pertain to the date of the contract, the transport expense,
and the alleged ‘coaching’
incident. Having considered
the applicants’ arguments in this regard and having listened to
counsel’s submissions,
the court, nevertheless, stands by and
confirms the findings made in the main judgment. Overall, the court
is not of the opinion
that the appeal would have a reasonable
prospect of success, as required under
section 17(1)(c)
of the
Superior Courts Act 10 of 2013
.
Language and tone of
application
[13]
It would be remiss of the court not to deal
at this stage with the language and tone of the applicants’
application for leave
to appeal. Regarding the ground that the court
disregarded the pre-trial minutes, the drafter alleges that:
‘
From
the very outset, the trial court was engaged in obfuscation, and it
clearly did not understand the applicable law or simply
disregarded
it. In rather confused terms, the court allowed evidence on the
common cause issue of drought…’
[14]
The drafter goes on to accuse the court of
making elementary and glaring errors and of evaluating evidence ‘in
a wholly contrived
fashion’. Further accusations are made that
the court ‘failed to ask the right questions’; that ‘the
Learned
Judge, with respect, simply misunderstood the law’;
that ‘the Learned Judge simply did not understand the
application
of [the] principle’; that ‘the Learned
Judge’s findings on the date of the contract suffers [sic] from
serious
shortcomings’. Dealing with the court’s
interpretation of the respondent’s plea, the drafter states as
follows:
‘
Again,
the court finds… that the auxiliary verb “
had
”
suggests that the discussions had already been concluded between the
parties. However, that kind of interpretation is completely
unnatural
and amounts to pure sophistry.’
[3]
[15]
The court is then accused of having
‘hurtled towards an illogical conclusion’. Later, in
relation to the ‘coaching’
incident, the drafter accuses
the court of a ‘remarkable degree of arbitrariness and
favourable bias [sic] towards the Defendant’s
witness’
and asserts that ‘the court’s finding was simply based on
conjecture’.
[16]
Similar language and tone characterise the
heads of argument. Presumably these were prepared by the same
drafter.
[17]
The range and depth of the attack on the
court’s findings are, quite simply, astonishing. In another
context, the language
and tone of the documents might evoke a smile
and a shrug, but this is not another context. The work of a court and
of all who
appear before it is a serious business. The words that are
spoken, the words that are written, and the decisions that are made,
have far-reaching consequences for the litigants. Responsibility for
ensuring proper access to the court, respect for its proceedings,
and
the legitimacy of its findings, rests as much with counsel as with
the judge.
[18]
Whereas a court is to be mindful of the
need to approach an application for leave to appeal objectively,
dispassionately, and without
being unduly sensitive to the criticism
levelled against it, a court must also, on occasion, draw a line and
indicate, unequivocally,
when counsel’s conduct falls below the
standard required of an officer of the court. The language and tone
used in the present
application and heads of argument are
unacceptable. They undermine the decorum and dignity of the court and
prevent the upholding
of the responsibilities described in the
preceding paragraph. To aggravate matters, the applicants’ lead
counsel failed to
appear on the day of the hearing, provided no
apology or excuse for his absence, and left his junior (who was
clearly unprepared)
to face the court’s discontentment. This,
too, is unacceptable.
[19]
Counsel for the respondent suggested in
argument that the circumstances may warrant a costs order
de
bonis propriis
. The court consequently
invited written submissions from the parties’ legal
representatives on why such an order should not
be made. These were
submitted and have been of considerable assistance.
[20]
The
court’s attention was drawn by counsel for the respondent to a
recent article by Seegobin J, titled ‘Restoring dignity
to our
courts: the duties of legal practitioners’. The learned judge
observes therein that there has been a growing tendency
for legal
practitioners to use ‘insulting, inappropriate, vulgar, and
disparaging language’ towards judicial officers,
staff, and
fellow practitioners. This conflicted with their duty to conduct
themselves with the highest degree of integrity and
to ensure that
the dignity and decorum of the court was maintained.
[4]
[21]
Reference
was also made to
S
v Khathutshelo
,
[5]
where the court remarked as follows:
‘
[t]he
words used by counsel were both unnecessary and unfortunate. They
demonstrated acute lack of respect for the court and its
role in the
administration of justice. Judges and magistrates alike have been
entrusted with the most difficult job: to find the
truth and
administer justice between man and man. They are fallible like all
others and, in recognition of this weakness, there
is a hierarchy of
courts so that mistakes can be corrected on appeal or review…
…
The
ethics of the legal profession says an advocate is an officer of the
court. As an officer of the court he is required to assist
the court
in the administration of justice. In as much as counsel has a duty to
advance his/her client’s case with zeal,
vigour and
determination, he should always remember that his primary duty is to
the court. His role in court is not only to push
his or her client’s
interests in the adversarial process…
…
He
should always maintain the decorum of the court and protect its
legitimacy in the eyes of the public so that its confidence is
not
eroded in their eyes.’
[6]
[22]
In their submissions, the applicants’
legal representatives apologised at the outset. They went on,
nonetheless, to inform
the court that they had sought advice from two
senior counsel (unnamed) and had been advised that the application
for leave to
appeal did not border on a personal attack or a
gratuitous insult. Instead, they were advised, so they say, that the
court ought
to be ‘thick-skinned’.
[23]
This appears to have missed the point
somewhat. The submissions made by the applicants’ legal
representatives served to exacerbate
rather than ameliorate the
problems already discussed.
[24]
The
applicant’s legal representatives cited the decision in
Multi-Links
Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd
.
[7]
The court in that matter pointed out that the policy consideration
underlying a court’s reluctance to order costs against
legal
representatives personally was that attorneys and counsel were
expected to pursue their client’s rights fearlessly,
without
undue regard for personal convenience. They ought not to be
intimidated by their opponent or even by the court. Examples
of where
such an order would not be inappropriate were dishonesty, obstruction
of the interests of justice, irresponsible and grossly
negligent
conduct, litigating in a reckless manner, misleading the court, and
gross incompetence and a lack of care.
[8]
[25]
The
purpose of a costs order
de
bonis propriis
is to indemnify a party against an account for the legal costs of his
or her own representative.
[9]
The
case law is clear that it should only be awarded in exceptional
circumstances.
[10]
[26]
This court respectively considers itself
bound by the above principles. At the same time, it is necessary to
add that a litigant
ought not to be punished for the conduct of his
or her legal representatives.
Relief and order
[27]
Ultimately, this matter concerns the
applicants’ application for leave to appeal. The court has
already expressed its opinion
that an appeal would not have a
reasonable prospect of success. The court has also expressed its
views regarding the language and
tone of the drafting. Nothing
further needs to be said.
[28]
In the circumstances, the following order
is made:
(a)
the application for leave to appeal is
dismissed; and
(b)
the applicants are directed to pay the
respondent’s costs on a party-and-party scale.
JGA LAING
JUDGE OF THE HIGH
COURT
APPEARANCE
For the applicants: Adv
Nguta with Adv Mzamo, instructed by Mgangatho Attorneys, Makhanda.
For the respondent: Adv
Brown, instructed by De Jager & Lordan Attorneys, Makhanda.
Date of hearing: 09
November 2022.
Date
of delivery of judgment: 07 February 2023.
[1]
[2010]
4 All SA 23
(SCA), at paragraph [6].
[2]
2000
(4) SA 191
, at 198B-D
;
and
[2022] 2 All SA 71
(SCA), at paragraph [80]. See, too, Harms
LTC, ‘Obligations’, in
LAWSA
(Vol 31, 3ed, LexisNexis, 2022), at 250.
[3]
The
term, ‘sophistry’, means ‘specious or oversubtle
reasoning, the use of intentionally deceptive arguments;
casuistry;
the use or practice of specious reasoning as an art or dialectic
exercise.’ Another meaning attributed to the
term is ‘cunning,
trickery, craft’. WR Trumble (
et
al
),
Shorter
Oxford English Dictionary
(OUP, 5ed, 2002, vol 2), at 2924.
[4]
https://www.groundup.org.za/article/restoring-dignity-to-our-courts-the
duties-legal-practitioners/
accessed
on 1 February 2023.
[5]
2019
(1) SACR 480 (LT).
[6]
At
paragraphs [20], [21] and [23].
[7]
[2013]
4 All SA 346 (GNP).
[8]
At
paragraphs [34] and [35].
[9]
Pieter
Bezuidenhout-Larochelle Boerdery (Edms) Bpk v Wetorius Boerdery
(Edms) Bpk
1983
(2) SA 233
(O), at 236;
Kenton-on-Sea
Ratepayers Association v Ndlambe Local Municipality
2017 (2) SA 86
(ECG), at 118F.
[10]
Stainbank
v South African Apartheid Museum at Freedom Park
2011
(10) BCLR 1058
(CC), at paragraph [52].