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[2017] ZASCA 56
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Saamwerk Southwerke (Pty) Ltd v Minister of Mineral Resources and Another (1098/2015, 206/2016) [2017] ZASCA 56 (19 May 2017)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1098/2015 & 206/2016
In
the matter between:
SAAMWERK
SOUTWERKE (PTY)
LTD
APPELLANT
and
MINISTER
OF MINERAL RESOURCES
FIRST RESPONDENT
SA
SOUTWERKE (PTY) LTD
SECOND RESPONDENT
Neutral
citation:
Saamwerk
Soutwerke (Pty) Ltd v Minister of Mineral Resources
(1098/2015 & 206/2016)
[2017]
ZASCA 56
(19 May 2017)
Coram:
Leach,
Theron and Van der Merwe JJA and Fourie and
Nicholls
AJJA
Heard:
14
March 2017
Delivered:
19
May 2017
Summary:
Delict: claim for
damages consisting of pure economic loss: claim against first
respondent based on negligent administrative omissions:
omissions not
wrongful: claim correctly dismissed: claim against second respondent
based on fraud: circumstances justified overturning
of trial court’s
findings of credibility: fraud established on balance of
probabilities: second respondent declared liable.
Practice:
test for receiving further evidence on appeal: no reasonably
sufficient explanation for failure to present evidence in
trial
court: proposed evidence disputed on substantial grounds and not
weighty or material.
Prescription:
previous proceedings not a step in the enforcement of payment of the
same debt: part of claim for payment of damages
arising from
continuous wrong prescribed.
ORDER
On
appeal from
Northern
Cape Division of the High Court, Kimberley (Lever
AJ sitting as court of
first instance):
1
The application to receive further evidence is dismissed with costs,
including the costs of two counsel.
2
The appeal in respect of the claim against the first respondent is
dismissed with costs, including the costs of two counsel.
3
The appeal in respect of the claim against the second respondent is
upheld with costs, including the costs of two counsel.
4
The order of the court a quo is set aside and replaced with the
following:
‘
(i)
The claim against the first defendant is dismissed with costs,
including the costs
of two counsel.
(ii)
It is declared that the second defendant is liable to the plaintiff
for payment of
such damages as the plaintiff may prove that it
suffered as a result of being unable to mine salt at Vrysoutpan
during the period
6 September 2008 to 25 June 2011.
(iii)
The second defendant is directed to pay the plaintiff’s costs
in respect of the
claim against it, including the costs of two
counsel.’
JUDGMENT
Van
der Merwe JA (Leach and Theron JJA and Fourie and Nicholls AJJA
concurring):
[1]
‘
Salt
is the only rock directly consumed by man. It corrodes but preserves,
desiccates but is wrested from the water. It has fascinated
man for
thousands of years not only as a substance he prized and was willing
to labour to obtain, but also as a generator of poetic
and mythic
meaning. The contradictions it embodies only intensify its power and
its links with experience of the sacred
’
–
(M
Visser:
Much
Depends on Dinner: The Extraordinary History and Mythology, Allure
and Obsessions, Perils and Taboos, of an Ordinary Meal
(1986), New York). The desire to obtain salt is illustrated by this
appeal, which concerns the right to mine salt on the property
known
as Portion 146, a portion of Portion 58 of the farm Kalahari-Wes no
251 (Vrysoutpan).
[2]
During April 2004, the power to grant this right vested in the
regional director of the then Department of Minerals and Energy
in
Kimberley (the regional director), in terms of s 9(1) of the
Minerals Act 50 of 1991 (the Minerals Act). The Minerals Act
was
repealed by the Mineral and Petroleum Resources Development Act 28 of
2002 (the MPRDA), with effect from 1 May 2004. In terms
of s 23(1)
of the MPRDA the power to grant this right vested in the first
respondent, the Minister of Mineral Resources, previously
the
Minister of Minerals and Energy (the Minister). Over the years the
department responsible for the administration of the Minerals
Act and
the MPRDA had various names. For convenience I refer to it as the
Department.
[3]
On 7 June 2011, the Minister notarially executed a mining right in
terms of s 23(1) of the MPRDA in favour of the appellant,
Saamwerk Soutwerke (Pty) Ltd (Saamwerk), to mine salt on Vrysoutpan.
On that date, however, the second respondent, SA Soutwerke
(Pty) Ltd
(SA Soutwerke), had been in possession of Vrysoutpan for many years.
SA Soutwerke vacated Vrysoutpan on 25 June 2011.
Saamwerk maintained
that it had been prevented from mining salt on Vrysoutpan for the
period of 1 January 2007 to 25 June 2011
by the unlawful conduct of
the Department and SA Soutwerke. It consequently sued the Minister
and SA Soutwerke in delict for damages
consisting of alleged loss of
profit suffered over the said period. The court a quo (Lever AJ in
the Northern Cape Division of
the High Court, Kimberley) ordered that
the issues in respect of the quantum of damages stand over for later
determination. At
the conclusion of the trial, it dismissed
Saamwerk’s claims. It granted leave to Saamwerk to appeal to
this court against
the dismissal of the claim against the Minister.
This court subsequently granted leave to Saamwerk to appeal against
the dismissal
of the claim against SA Soutwerke.
[4]
Saamwerk’s case was that it had been prevented from mining at
Vrysoutpan by SA Soutwerke’s reliance on a forged
mining
permit. In respect of the Minister, it relied on the refusal or
failure of the Department to issue its mining right by December
2006
and to prevent SA Soutwerke from mining at Vrysoutpan. The central
issues in the appeal are whether Saamwerk proved fraud
on the part of
SA Soutwerke and wrongfulness on the part of the Department. The
issues must be considered in light of the following
background.
Background
[5]
SA Soutwerke extracted salt from Vrysoutpan for many years. Despite
the fact that its authority to do so had lapsed on 27 October
1992,
it was only on 3 November 2000 that SA Soutwerke applied to the
Department for a mining permit in respect of Vrysoutpan in
terms of
s 9(1) of the Minerals Act. Since the State was the owner of
Vrysoutpan and the holder of the mineral rights in respect
thereof,
the consent of the Minister in terms of s 9(2) of the Minerals
Act was a prerequisite for the issue of the mining
permit. The
application for consent in terms of s 9(2) was approved on 19
August 2002. The regional director was authorised
to sign the written
agreement with SA Soutwerke in terms of which the consent would be
granted. The agreement had already been
signed by the managing
director of SA Soutwerke on 7 December 2001. Per letter dated 15
January 2003, the Department informed SA
Soutwerke that the mining
permit would be issued for a period of five years, subject to
compliance by SA Soutwerke with specified
requirements. This was
repeated by the Department in letters dated 13 June 2003 and 19
November 2003. These requirements were met
by 22 December 2003. SA
Soutwerke therefore expected that a five year permit would be issued
to it.
[6]
On 28 April 2004 the documentation pertaining to SA Soutwerke’s
application served before the regional director for approval
and
signature. The regional director did not accept the recommendation
that the mining permit be issued for a five year period.
He decided
to grant it only for a period of one year. The regional director then
signed and issued mining permit MP169/2003 which
authorised SA
Soutwerke to mine salt at Vrysoutpan until 27 April 2005. The
regional director also signed the aforesaid agreement
that
constituted the consent of the Minister in terms of s 9(2) of
the Minerals Act (the s 9(2) consent). In addition,
he signed a
standard covering letter that, inter alia, stated that MP169/2003 and
the s 9(2) consent were attached thereto.
In terms of the
practice of the Department and the contents of the standard covering
letter, the original MP169/2003 and s 9(2)
consent were to be
attached thereto.
[7]
On 22 August 2005, after the expiry of MP169/2003, Saamwerk lodged an
application in terms of s 22 of the MPRDA for a mining
right in
respect of Vrysoutpan. By letter dated 27 September 2006, the
Department notified Saamwerk that its application had been
granted on
condition that a revised social and labour plan be submitted. A draft
of the mining right accompanied the letter. It
had to be executed
before a notary public.
[8]
Saamwerk submitted a second revised social and labour plan on 6
December 2006. The Department did not raise any objection to
this
plan nor did it at any stage prior to the execution of the mining
right rely on a deficiency in the plan as a reason for not
executing
the mining right. It is probable that Saamwerk would have been able
to correct any such deficiency expeditiously. Had
the mining right
been executed within a reasonable time as required by s 6 of the
MPRDA, so Saamwerk contended, it would have
been able to commence
mining on Vrysoutpan by 1 January 2007.
[9]
By that date, however, a storm had erupted over Vrysoutpan. On 16
August 2006, Duncan & Rothman, SA Soutwerke’s attorneys
in
Kimberley, wrote to the Department to object to the execution of a
mining right in respect of Vrysoutpan. The attorneys stated
that SA
Soutwerke was the holder of mining permit MP169/2004, dated 28 April
2004. A copy of MP169/2004 was attached to the letter.
In terms
thereof, SA Soutwerke was authorised to mine salt at Vrysoutpan for
an indefinite period, as it contained no expiry date.
This was
followed by a letter by Duncan & Rothman to the Department dated
1 September 2006 in which it was contended that SA
Soutwerke was the
lawful holder of a valid mining permit, to wit MP169/2004. According
to SA Soutwerke it held an old order mining
right in terms of the
transitional provisions of the MPRDA, which remained in force for a
period of five years, and the mining
right in respect of Vrysoutpan
had been erroneously granted to Saamwerk. It demanded that the
latter’s mining right be suspended
with immediate effect,
failing which legal action would be taken.
[10]
On 6 December 2006, the regional manager of the Department in
Kimberley designated in terms of the MPRDA (then Mr Mndaweni)
met
with representatives of SA Soutwerke. They discussed the contents of
the letter of 1 September 2006. By then Mr Mndaweni had
found a copy
of MP169/2003 in the mineral laws file of the Department pertaining
to SA Soutwerke’s application. The mineral
laws file did not
contain a copy of MP169/2004. Mr Mndaweni told the representatives of
SA Soutwerke that the Department had no
record of MP169/2004 and that
MP169/2003 had already expired. He handed a copy of MP169/2003 to
them. They, in turn, showed him
a copy of MP169/2004. Mr Mndaweni
indicated that he thought that MP169/2004 was not authentic. He based
that view on discrepancies
in respect of the date stamps, the absence
of an expiry date and that it was not recorded in the permit register
of the Department.
The permit register for 2004 ended on number
146/2004.
[11]
Mr Mndaweni approached the Chief Director of the Department in
Pretoria, to have the matter investigated. The Chief Director
instructed the Deputy Director of Legal Compliance of the Department,
Mr Guthrie, to investigate. On 1 March 2007, Mr Mndaweni
provided Mr
Guthrie with copies of MP169/2003 and MP169/2004. Mr Guthrie called
upon SA Soutwerke to produce the original MP169/2004.
SA Soutwerke
produced the original at a meeting with Mr Guthrie and Mr Mndaweni on
13 March 2007. Mr Guthrie stated that on face
value, MP169/2004 was
invalid, for want of an expiry date. SA Soutwerke maintained that
MP169/2004 was valid and that the absence
of an expiry date meant
that the mining permit had been granted in perpetuity.
[12]
Mr Guthrie completed his investigation and submitted a report to the
Chief Director. He advised that MP169/2004 was invalid,
that
MP169/2003 had expired and that SA Soutwerke had no existing right in
respect of Vrysoutpan.
[13]
On 22 March 2007, however, Saamwerk launched an application under
case no 292/07 (case 292/07) in the Northern Cape Division,
Kimberley. Saamwerk claimed, in essence, an order:
(i)
declaring that it was entitled to a mining right in respect of
Vrysoutpan;
(ii)
obliging the Minister to execute the mining right; and
(iii)
declaring that MP169/2004 was invalid.
It
also claimed interdictory relief against SA Soutwerke based on (iii)
above. SA Soutwerke strenuously defended the application.
The
Department’s initial reaction to case 292/07 was inconsistent.
It gave notice of intention to defend, then withdrew it,
but
reinstated it on 15 August 2007.
[14]
On 5 June 2009 the application was referred for oral evidence. During
September 2009 the officials of the Department involved
in the matter
held a meeting and discussed it. These officials included Mr Mndaweni
and Mr Swart, who succeeded him as the regional
manager in Kimberley
during February 2009. They debated the validity of MP169/2004 and
although they held divergent views, they
resolved that the Department
withdraw its opposition of the application. The Department formally
withdrew its opposition of the
application on 18 September 2009. When
the matter came before the court on 22 September 2009, the judge was
dissatisfied that the
Department would not participate in the
hearing. The Department then re-entered its appearance in the matter,
not to oppose the
relief sought by Saamwerk, but to assist the court
with the investigation of the facts. Both Saamwerk and SA Soutwerke
were of
the view that this was a good idea.
[15]
Lacock J heard evidence from 12 to 16 October 2009 and on 10 December
2009 gave judgment in favour of Saamwerk. On 15 December
2009, before
the mining right to Saamwerk could be executed, SA Soutwerke filed an
application for leave to appeal. This application
suspended the order
of Lacock J. The parties agreed that pending the appeal no mining
would take place at Vrysoutpan. Case 292/07
was eventually decided in
favour of Saamwerk in this court on 1 June 2011. The judgment of this
court is reported as
SA
Soutwerke (Pty) Ltd v Saamwerk Soutwerke (Pty) Ltd & others
[2011] ZASCA
109
;
[2011] 4 All SA 168
(SCA). As I have said, the mining right was
executed on 7 June 2011.
The
case against SA Soutwerke
[16]
It is convenient to firstly deal with Saamwerk’s case against
SA Soutwerke. It is clear from what I have said that, after
27 April
2005, SA Soutwerke had no right to mine salt or to remain on
Vrysoutpan. Yet it stopped mining on Vrysoutpan only after
judgment
was handed down in case 292/07 on 10 December 2009 and vacated
Vrysoutpan only on 25 June 2011. Saamwerk restricted its
case to
allegations that SA Soutwerke was complicit in forging MP169/2004 and
relied thereon with the knowledge that it had been
forged. An
important question in this regard is whether SA Soutwerke ever
received MP169/2003. I therefore turn to the evidence
relevant to
this question.
[17]
Mr Danie van Zyl testified that he was an accountant employed by SA
Soutwerke until 31 May 2004. He was involved in complying
with the
requirements of the application for the mining permit in respect of
Vrysoutpan and was interested in the outcome thereof.
During the last
month of his employment, he became aware that the mining permit had
been granted, but only for a period of one
year. He never saw the
mining permit, but thought that he was informed of the grant and the
duration thereof by either Mr Altus
van den Heever, SA Soutwerke’s
attorney in Upington, or Mr Andre Blaauw, the managing director of SA
Soutwerke. Mr Van Zyl
further testified that after he had left SA
Soutwerke he had read an article in the Rapport newspaper about it
having a forged
mine permit. He consequently telephoned his friend,
Mr Piet Prins. Mr Prins was the operational manager of the salt
processing
plant of the Blaauw group of companies (Blaauw Group) in
Upington, to which SA Soutwerke belonged, as well as the overhead
manager
of the salt mining operations of the group. The article was
probably the one that appeared in the Rapport on 21 February 2010. Mr
Van Zyl stated that he asked Mr Prins about the article. According to
him Mr Prins said that he had told Ms Elizma Fourie (an accountant
employed in the Blaauw Group) that there was a mining permit and that
when she produced it, it was established that the mining
permit was
not valid and that Ms Fourie had never applied for it to be
converted.
[18]
Mr Corne Zondagh was employed by SA Soutwerke as the manager of the
salt mining operation at Vrysoutpan. He reported to Mr
Prins. He
testified that although his employment contract was signed on 6
October 2006 and stated that his employment would commence
on 9
October 2006, he in fact commenced working at Vrysoutpan during
August 2006. He said that shortly thereafter, Mr Jalie du
Toit of
Saamwerk arrived at Vrysoutpan. Mr Du Toit claimed that SA Soutwerke
had no valid mining permit to mine at Vrysoutpan and
that Saamwerk
was the lawful holder of the right to mine there. It is common cause
that Mr Du Toit visited Vrysoutpan on or about
30 August 2006. Mr
Zondagh conveyed what had happened to Mr Prins, who said that Mr
Zondagh should tell Mr Du Toit to leave Vrysoutpan.
Mr Zondagh did
so. As a result of this incident, Mr Zondagh asked Mr Prins for the
mining permit in respect of Vrysoutpan. Mr Prins
subsequently handed
a one page document to him at Vrysoutpan. Mr Zondagh identified that
document as the first page of MP169/2003.
He noticed that according
to this document it had already expired during 2005. He asked Mr
Prins about this, but Mr Prins said
that an application for a new
permit had been submitted and that the existing permit remained valid
until the finalisation of that
application. Mr Zondagh testified that
he kept the document in his office at his house at Vrysoutpan. At a
later stage his housekeeper,
Ms Hester Pienaar, reported to him that
the station commander of the police station at Noenieput had taken
the document. During
2008 he was given a framed colour version of
MP169/2004, for display at Vrysoutpan. This was handed to him by Mr
Bertus Louw, the
administrative manager of the Blaauw Group.
[19]
At the time the station commander of the Noenieput police station was
Warrant Officer P R de Wet Botha, better known as ‘Rooies’.
He had been stationed at Noenieput for 33 years. He testified that
during 2007 he received an affidavit of a Mr G J Hendriksz,
in terms
of which a charge of illegal mining at Blaauwpan was laid. A company
within the Blaauw Group operated a salt mine at Blaauwpan.
Mr
Hendriksz was an investigator appointed by Saamwerk. Warrant Officer
Botha opened a police docket and drove to Blaauwpan to
investigate
the complaint laid by Mr Hendriksz. There he met a worker by the name
of Mr Stoffel Gooi. He enquired about the mining
permit in respect of
Blaauwpan. Mr Gooi referred him to Mr Zondagh at Vrysoutpan. He
proceeded to Vrysoutpan.
[20]
In his evidence Warrant Officer Botha gave a clear description of the
place that he went to at Vrysoutpan. This was the part
of the house
of Mr Zondagh that was used as his office. Mr Zondagh was not there,
so he spoke to Ms Pienaar, whom he assumed to
be Mr Zondagh’s
secretary. He asked for the mining permit. Ms Pienaar told him to
wait and shortly thereafter appeared with
a one page document which
she handed to him. He drove a short distance and stopped to examine
the document. It was a mining permit
in respect of Vrysoutpan. The
expiry date at the foot of the page indicated that the permit had
expired during 2005. He said that
he was 100% certain hereof. He also
identified the document as the first page of MP169/2003. He assumed
that the permit also pertained
to Blaauwpan. He testified that the
document thus constituted evidence of illegal mining at Blaauwpan. He
therefore continued with
the investigation of the complaint. He
testified that but for the document obtained at Vrysoutpan, he would
have closed the docket.
Instead he arranged for photographs to be
taken of the mining operations at Blaauwpan. He took a witness
statement from a worker,
who confirmed that mining took place at
Blaauwpan. He drove to Upington ─ a distance of approximately
170 kilometres from
Noenieput ─ and obtained a so-called
warning statement from Mr Blaauw. He then took the docket to Colonel
Van Wyk of the
SAPS in Upington. Colonel Van Wyk instructed him to
take the docket to the senior state prosecutor in Upington for
decision. He
did so, but never saw the docket again, as it
mysteriously disappeared whilst at the magistrate’s court in
Upington.
[21]
I now turn to the evidence adduced in rebuttal. Ms Pienaar confirmed
that she worked for Mr Zondagh at his house at Vrysoutpan
from 2006
to 2010. She denied the evidence of Warrant Officer Botha and Mr
Zondagh that she handed a mining permit to Warrant Officer
Botha. She
said that nothing of the sort happened. Mr Prins confirmed that Mr
Zondagh telephoned him about the visit of Mr Du Toit
and that he
instructed Mr Zondagh to tell Mr Du Toit to leave Vrysoutpan. Mr
Prins accepted that this could have taken place on
30 August 2006.
However, Mr Prins flatly denied every other piece of evidence
concerning him given by Mr Zondagh. He said that
he had never spoken
to Mr Zondagh about the mining permit, and simply denied the evidence
of Mr Van Zyl in respect of the conversation
between them.
[22]
Ms Roelien Oosthuizen worked in the environmental section of the
Department in Kimberley. She testified that during 2004 the
practice
of the Department was to open two files in respect of an application
for a mining permit. One file contained mining authorisations
and
related documents (the mineral laws file). The other contained the
environmental management programme in respect of the envisaged
mining
and related documentation (the rehabilitation file). In the period
before 1 May 2004, Ms Oosthuizen telephonically communicated
with Mr
Van den Heever and his secretary, Ms Rista Boshoff. This had to do
with an undertaking that had to be signed by SA Soutwerke.
The
undertaking was a prerequisite for the approval of the environmental
management programme which, in turn, was a prerequisite
for the issue
of the mining permit. As a result of arrangements made between the
three of them, the original undertaking was posted
to the Department.
Ms Oosthuizen testified that, after 1 May 2004, she had received
enquiries from Ms Boshoff, who indicated that
the mining permit had
not yet been received. After one of these enquiries Ms Oosthuizen
went to the section where the files were
kept. She took out the SA
Soutwerke mineral laws file. She found a bundle of documents
consisting of four pages on top of the documents
in the file. In
terms of the practice of the Department, she regarded the bundle as
copies of the originals that had been sent
to SA Soutwerke. The first
two pages consisted of a copy of a standard covering letter to an
applicant. The other two pages consisted
of a copy of a mining
permit. The covering letter referred to MP169/2003. Ms Oosthuizen
was, however, unable to say what permit
was part of the bundle of
documents. Ms Oosthuizen testified that she made photostat copies of
the four pages. The photostat machine
caused a vertical light printed
section on each page. She returned the bundle of documents to the
mineral laws file. She wrote
the words ‘Attention: Rista’,
as well as the fax number that Ms Boshoff provided, on the first page
of the copy of
the covering letter, and faxed the four pages to the
given fax number.
[23]
Ms Oosthuizen testified that she thereafter filed the photostat
copies that she had made in the rehabilitation file. These
documents
were subsequently found in the rehabilitation file and introduced in
the court a quo, as exhibit C14. The first page
of C14 (the covering
letter) referred to MP169/2003, but the third page of C14 was a copy
of the first page of MP169/2004. Ms Oosthuizen
could not explain why
only a copy of MP169/2003 was subsequently found on the mineral laws
file. She testified that the post register
of the Department
reflected that a document had been sent by registered post to Duncan
& Rothman on 19 May 2004.
[24]
Ms Boshoff confirmed in evidence that she had contact with Ms
Oosthuizen in respect of SA Soutwerke’s application for
a
mining permit. In this regard she referred to her contemporaneous
file notes. She made notes of various telephonic conversations
with
the Department up to and including 23 April 2004. The next note was
made on 20 May 2004. It read that Ms Boshoff had called
Ms
Oosthuizen; that according to Ms Oosthuizen the permit had been
signed and issued a considerable time ago; and that they had
sent it
per registered post to the address as on the application for the
mining permit.
[1]
The
application was sent to the Department under cover of a letter of
Duncan & Rothman, but the address on the application
was that of
SA Soutwerke, Private Bag X6009, Upington. According to a further
note, Ms Oosthuizen returned a call on 14 June 2014
and said that the
permit had been sent to Duncan & Rothman and that she would fax
papers to the attorneys before 13h00 on the
same day. On 14 June 2014
Ms Boshoff received a four page faxed document. In accordance with
her practice, Ms Boshoff punched a
single hole through the top
left-hand side of the pages. She handed them to Mr Van den Heever. Ms
Boshoff had no independent recollection
of the contents of the faxed
pages.
[25]
Mr Altus van den Heever testified that he practised as an attorney
under the name Wessels & Smith in Upington. He acted
for the
Blaauw Group and SA Soutwerke since 1997. He was involved in the
application for the mining permit in respect of Vrysoutpan.
Both he
and SA Soutwerke were aware thereof that the MPRDA would commence on
1 May 2004. He testified that his client placed considerable
pressure
on him to procure the permit. During April 2004 he and Ms Boshoff
contacted the Department virtually on a daily basis.
This contact was
mainly with Ms Oosthuizen, as the last outstanding matter was the
original undertaking required for the environmental
management
programme. This was posted to the Department on 23 April 2004. This
was also the date of the last contact that his office
had with the
Department prior to 28 April 2004.
[26]
Mr Van den Heever said that he had received a telephone call from Ms
Oosthuizen on 28 April 2004. She told him that the mining
permit had
been issued. Mr Van den Heever testified that he had received the fax
from Ms Boshoff on 14 June 2004. He confirmed
that it had included a
copy of MP169/2004, even though he noticed that the covering letter
made reference to MP169/2003. He only
made a copy of the first two
pages of the fax (the covering letter), but later sent that to Duncan
& Rothman, with his letter
dated 17 June 2004. He drove to the
offices of SA Soutwerke and handed the fax to Mr Arrie Bester, the
financial manager of the
Blaauw Group. Mr Van den Heever did not keep
a copy of the fax in his files. He denied the evidence of Mr
Van Zyl and said
that he had never spoken to him about the mining
permit.
[27]
Mr Van den Heever’s letter to Duncan & Rothman dated 17
June 2004, to which copies of the first two pages of the
fax were
attached, stated that after a big struggle
[2]
they had ascertained that the mining permit and the s 9(2)
consent had been sent to Duncan & Rothman on 28 April 2004,
as
appeared from the attachment. That the documents were sent to Duncan
& Rothman on 28 April 2004 was an assumption not justified
by the
covering letter. In the letter Duncan & Rothman was requested to
urgently provide the original mining permit and s 9(2)
consent
per docex. Mr Van den Heever testified that in response hereto, he
received, per docex, a letter from Duncan & Rothman
dated 23 July
2014 as well as the original covering letter and the original
MP169/2004. Notably, the s 9(2) consent was not
included. He
testified that except for the fact that the two pages of the original
MP169/2004 were stapled together, they were
in pristine condition,
with no perforations and no punch holes. He had personally delivered
the original covering letter and original
MP169/2004 at the offices
of SA Soutwerke. A date stamp on the covering letter indicated that
the original documents had been received
by Duncan & Rothman on
25 May 2004. Mr Van den Heever later received the original MP169/2004
from Mr Louw, for purposes of
the examination thereof by Saamwerk’s
expert, which took place on 4 June 2008.
[28]
A curious feature of the matter is that neither the fax received by
Wessels & Smith on 14 June 2004, nor C14, were discovered
in case
292/07. Mr Van den Heever testified that after the Minister
discovered C14 in the present matter, he recalled that he had
handed
the fax to Mr Bester. He testified that he then searched for and
found it in the files of SA Soutwerke, which led to its
discovery in
this matter. This document was handed in at the trial as exhibit C10.
It corresponded in all respects with C14, except
that the foot of
each page of C10 reflected a fax machine imprint. These imprints
indicated that the four pages had been received
on 14 June 2004 at
10h43.
[29]
Saamwerk presented the evidence of an expert examiner of questioned
documents, Mr Hattingh. Initially he only compared copies
of
MP169/2003 and MP169/2004. Both consisted of two printed pages. The
second page of each was identical. Mr Hattingh concluded
that they
were without doubt copies of the same document. Each contained the
signature of the regional director, below the handwritten
date 28
April 2004 inserted in the spaces provided for that purpose. The
first page of each was a copy of a document that had been
printed on
an official letterhead of the Department. However, they differed
markedly in respect of the positioning of the date
stamp in the block
provided for that purpose, the positioning of the printing on the
letterhead and the form of the printing. Notably,
the following was
printed at the foot of the first page of MP169/2003:
‘
Tensy
hierdie permit opgeskort, ingetrek of opgesê word of verval, is
dit geldig vir ‘n tydperk wat strek vanaf die
datum van
uitreiking tot . . ..’
This
was followed by a block containing the date stamp ‘2005-04-27’.
None of this appeared on MP169/2004.
[30]
Subsequently, on 4 June 2008, Mr Hattingh examined the original of
MP169/2004. He observed that the first page thereof was
printed with
an inkjet printer on what appeared to be an authentic colour
lithographic letterhead of the Department. The paper
of the
letterhead was of a different colour and thickness than the second
page. The second page was printed on ordinary printing
paper by means
of a laser printer. Mr Hattingh observed that the first and second
pages had corresponding staple or pin perforations,
which indicated
that they had at some stage been stapled or pinned together. However,
the first page had perforations not corresponding
with that on the
second page, which indicated that the first page had on at least four
occasions been attached to a document that
was not the second page of
MP169/2004. Also, perforations on the second page that did not appear
on the first page, demonstrated
that the second page had once been
attached to a document other than the first page of MP169/2004. The
second page also had two
punch holes through it, whereas the first
page had none.
Application
to receive further evidence
[31]
It is appropriate, at this stage, to consider Saamwerk’s
application to adduce further evidence by Mr Hattingh. The
application was filed in this court on 4 February 2016, after leave
to appeal against the dismissal of Saamwerk’s claim against
the
Minister had been granted on 28 October 2015.
[32]
The gist of the proposed new evidence of Mr Hattingh is the
following. During January 2016 he received C10 and C14 for
examination.
He observed the vertical light printed portions on each
page of C10. This corresponded with the light printed portions on
each
of the pages of C14. (It will be recalled that Ms Oosthuizen
testified that the photostat machine caused such light printed
portions
on the copies that she made on 14 June 2004.) The vertical
light printed portion of the third page of the fax C10 (the first
page
of the mining permit) differed from that of the other three
pages, in respect of both alignment and quality. The vertical light
printed portion on the third page was positioned lower and more to
the right than on the other pages. In respect of quality, the
light
printed portion on the third page was less affected than on the other
pages. Only the lower part of the third page was affected
and even
there the printing was clearer than on the other pages. As a result
of the misalignment and difference in quality of the
light printed
portion of the third page of C10, Mr Hattingh’s opinion is
firstly that the third page was not copied together
with the other
pages thereof. His second opinion is that the pages of C10 were not
continuously kept as one unit. This is based
on the fact that the
third and fourth pages of C10 were stapled one more time than the
first and second pages thereof, as well
as on indentations on the
first and second pages that do not occur on the third and fourth
pages.
[33]
In terms of s 19
(b)
and
(c)
of the
Superior Courts Act 10 of 2013
, this court has the power to
receive further evidence or to remit the case to the court a quo for
that purpose. Our courts have,
however, over many years made clear
that in the interest of finality and to avoid tailoring of evidence
and prejudice to the other
party, this power should be exercised
sparingly and only in exceptional circumstances. Whilst holding that
it is undesirable to
lay down definite rules, the courts have laid
down two basic requirements for such an application. First, there
must be a reasonable
explanation for the failure to present the
evidence in time. Secondly, the evidence must be weighty, material
and presumably to
be believed. In
Colman
v Dunbar
1933 AD
141
at 162 Wessels CJ said that the evidence ‘must be such that
if adduced it would be practically conclusive, for if not, it
would
still leave the issue in doubt and the matter would still lack
finality’. See also
S
v De Jager & another
1965 (2) SA 612
(A) at 613A-F and
Rail
Commuters Action Group & others v Transnet Ltd t/a Metrorail &
others
[2004] ZACC 20
;
2005 (2) SA
359
(CC) paras 41-43. Evidence that is disputed on substantial
grounds will of course not meet the second requirement. The Minister
and SA Soutwerke opposed the application on the basis that it failed
to meet both these requirements.
[34]
I therefore turn to the question whether Saamwerk offered a
reasonably sufficient explanation for not adducing this evidence
in
the court a quo. C10 was discovered by SA Soutwerke on 20 August
2013. The services of Mr Hattingh were readily available to
Saamwerk.
The notice and summary of his expert evidence was delivered on 23
August 2013. The trial commenced on 26 August 2013,
but was postponed
five days later when Saamwerk was presenting the evidence of Mr
Hendriksz. The trial resumed on 5 May 2014. On
that day, SA Soutwerke
put its case in respect of the receipt of C10 to Mr Hendriksz. Mr
Hattingh testified on 3 November 2014
and Mr Van den Heever from 3 to
6 November 2014. The evidence was concluded on 11 November 2014.
Argument was heard during February
2015 and judgment was handed down
on 24 April 2015. There was thus ample opportunity for Saamwerk to
inspect C10 and to obtain
and present the further evidence of Mr
Hattingh. Even if one accepts Saamwerk’s contention that the
significance of C10 only
became apparent during the evidence of Mr
Van den Heever, approximately five months passed before judgment was
delivered. During
this period Saamwerk could have procured the
evidence and applied to re-open its case. That the court file was
with the trial judge
in chambers during this period, is no excuse.
Clearly the attorneys of Saamwerk could have arranged for an
inspection of C10. I
find that Saamwerk did not provide a reasonably
sufficient explanation for the failure to adduce the further evidence
in the court
a quo.
[35]
In opposing this application, SA Soutwerke relies on an affidavit and
report of its own expert, Mr Landman. In answer to Mr
Hattingh’s
first opinion, Mr Landman states that he found microscopic vertical
white lines running through the typescript
and signatures on all four
pages of C14. These thin lines were caused by the photostat machine
by which C14 was created. He says
that it would have been impossible
to reproduce these microscopic lines with such precision. Mr
Landman’s opinion is that
this provides conclusive proof that
all four pages of C14 were copied on the same machine and therefore
in all probability at the
same time. In reply Mr Hattingh
acknowledged the presence of these thin lines and accepted this
conclusion. According to Mr Landman
his conclusion is supported by
the close similarity in the grain and colour of the four pages of
C14. He states that the difference
in the quality of the vertical
light printed portion of the third page of C14 is too slight to
justify any conclusion and that
the misalignment thereof could have
been caused by a slightly skew placement of the third page on the bed
of the photostat machine.
Once the four pages are properly aligned
with each other, the alignment of the vertical light printed portions
materially corresponds.
According to SA Soutwerke, C10 was created
when C14 was faxed to Wessels & Smith. It is clear that Mr
Hattingh’s opinion
that the third page of C10 was not copied
together with the other pages thereof, is disputed on substantial
grounds and is open
to serious question.
[36]
I fail to see the relevance of Mr Hattingh’s second opinion.
That the third and fourth pages of C10 were stapled once
more than
the first and second pages thereof, does not appear to have any
particular significance. Mr Hattingh’s second opinion
is in any
event also disputed by Mr Landman on substantial grounds. He says
that because of the number of staple perforations on
C10 and the
resultant damage to the paper, it is not possible to say with any
measure of certainty that the third and fourth pages
of C10 have one
additional set of staple perforations. He also says that he
conclusively found by microscopic investigation that
the indentations
that Mr Hattingh found on the first and second pages of C10, do
indeed occur on the third page thereof.
[37]
In sum, there is no reasonably acceptable explanation for the failure
to present the new evidence in the court a quo and the
evidence
cannot be said to be weighty, material and to be believed. It follows
that the application to receive further evidence
must fail.
Analysis
of the evidence
[38]
It is trite that an appellate court is reluctant to upset findings of
credibility and fact of a trial court. This is so mainly
because the
trial court had the advantages of seeing and hearing the witnesses
and of being steeped in the atmosphere of the trial.
The advantages
of the trial court must, however, not be overemphasised, because that
may render the appellant’s right of
appeal ‘illusory’.
The findings of the trial court in respect of credibility and fact
will thus be disturbed if they
are plainly wrong. See
R
v Dhlumayo & another
1948 (2) SA 677
(A) at 706,
Protea
Assurance Co Ltd v Casey
1970 (2) SA 643
(A) at 648 D-E and
Santam
Bpk v Biddulph
2004
(5) SA 586
(SCA) para 5.
[39]
There is no reason to doubt the evidence of Ms Oosthuizen and Ms
Boshoff. The court a quo made no pertinent credibility findings
in
respect of Mr Prins and Mr Van den Heever. This court is therefore at
large to determine the credibility and reliability of
their evidence
as far as it is possible to do so on record. The evidence of Mr
Hattingh was not disputed.
[40]
However, the court a quo found Mr Zondagh’s evidence to be of a
very poor quality and inherently unreliable. The court
a quo
preferred the evidence of Ms Pienaar over that of Warrant Officer
Botha. It said that Ms Pienaar’s evidence was more
probable and
more reliable. The trial court also did not accept the evidence of Mr
Van Zyl. It said that Mr Van Zyl’s evidence
as to how he came
to know that the mining permit had been granted for a period of a
year ‘was too vague’ to be given
any real evidential
weight, and that his evidence in respect of his telephonic
conversation with Mr Prins was improbable.
[41]
It is true that Mr Zondagh confused dates and mixed up the chronology
of events. However, it must be kept in mind that he testified
during
2014 about events that took place during 2006 and 2007. A reading of
his evidence as a whole paints a sufficiently clear
picture that the
chain of events he described was triggered by the visit of Mr Du Toit
to Vrysoutpan. There can be no criticism
of the substance, as opposed
to the dates and chronology, of his evidence and it is supported by
the probabilities. It is probable
in the extreme that the visit of Mr
Du Toit would have raised the question as to what could or should be
done to show that SA Soutwerke
was entitled to mine at Vrysoutpan.
[42]
The trial court criticised Warrant Officer Botha for only mentioning
during cross-examination that he had first gone to Blaauwpan
before
he went to Vrysoutpan. But this is typical of the type of detail that
may only emerge during cross-examination. This was
moreover not
disputed in cross-examination or in evidence. The criticism of
Warrant Officer Botha on this issue was wholly unjustified.
[43]
The court a quo was also troubled by the fact that Warrant Officer
Botha simply assumed that the mining permit also pertained
to
Blaauwpan and performed ‘a perfunctory investigation’. It
criticised Warrant Officer Botha for not informing the
Witdraai
police about the mining permit that he had confiscated, after he
heard that they were investigating illegal mining at
Vrysoutpan. I am
prepared to accept that these aspects impacted on the credibility of
Warrant Officer Botha. But they mostly relate
to peripheral matters
and are overwhelmed by the probabilities. These are that Warrant
Officer Botha would only continue with his
investigation, and drive
all the way to Upington with the docket, if he did in fact believe
that MP169/2003 pertained also to Blaauwpan
and had seen that it had
expired. As Warrant Officer Botha said, because of the distances and
heat in the Kalahari, no one in his
right mind would undertake such
an unnecessary journey. There is more than a ring of truth to that
statement.
[44]
To my mind, the decisive consideration is this. Mr Zondagh and
Warrant Officer Botha are not highly sophisticated people. Mr
Zondagh
was a truck driver for the Blaauw Group before he became the manager
at Vrysoutpan. It is not difficult to understand that
this is why
Warrant Officer Botha came to be stationed at Noenieput in the
Kalahari for 33 years. Both Mr Zondagh and Warrant Officer
Botha bear
the hallmark of being the salt of the earth. Both testified that they
had the first page of MP169/2003 in their hands.
There is no room for
honest mistake on their part. Counsel was constrained to argue that
both had fabricated their evidence. What
is more, on SA Soutwerke’s
case, Mr Zondagh and Warrant Officer Botha must have conspired to put
forward this fabricated
version. But there was no conceivable reason
for them doing so. The undisputed evidence of Warrant Officer Botha
was that he did
not know Mr Zondagh. Neither had anything to gain or
to lose. It is clear that the court a quo had no appreciation of
these critical
factors.
[45]
In light of what I have said, the denials of Ms Pienaar and Mr Prins
cannot stand. As the court a quo recognised, Ms Pienaar’s
evidence was ‘not without its flaws’. She denied the
evidence of Warrant Officer Botha with the same firmness that
she
denied the objectively established facts that a framed copy of
MP169/2004 hung on the wall of Mr Zondagh’s office and
that
Warrant Officer De Koker of the Witdraai police station visited
Vrysoutpan in respect of the mining permit. Apart from accepting
that
Mr Zondagh called him about the visit of Mr Du Toit and that that
could have taken place on 30 August 2006, Mr Prins denied
every other
piece of evidence of Mr Zondagh and Mr Van Zyl, irrespective of
whether the evidence was important or not. He did so
in an
unconvincing manner. It is apparent that he consciously attempted in
evidence to distance himself as far as possible from
the events in
question. The evidence of Mr Van Zyl in respect of the telephone call
to his friend after the newspaper report, cannot
be a figment of his
imagination. Although, as I have said, the trial court found his
evidence on this issue to be improbable, it
was to my mind the
converse. Not only does it have the inherent ring of truth but is
supported by the existence of the newspaper
article relating to SA
Soutwerke mining without a valid permit.
[46]
I am therefore satisfied that on the totality of the evidence, Mr
Prins cannot be believed. The pedantic evidence of Mr Louw
that it is
impossible that Mr Zondagh could have been working on Vrysoutpan
before the commencement date of his employment contract,
is clearly
not acceptable. I agree that the evidence of Mr Van Zyl that the
mining permit had been issued for a period of a year
could, on its
own, not carry much weight. In the light of the evidence of Mr
Zondagh and Warrant Officer Botha it is, however,
not without
significance. Although Mr Van den Heever denied that he conveyed this
to Mr Van Zyl, Mr Blaauw, one of the persons
whom Mr Van Zyl thought
could have told him about the permit, did not testify.
[47]
The evidence of Mr Van den Heever that he received a call from Ms
Oosthuizen on 28 April 2004 when she reported that the mining
permit
had been issued, cannot be accepted. Ms Oosthuizen did not recall
such an incident. Mr Van den Heever mentioned it only
in
cross-examination, when he was asked about the fact that despite the
extreme pressure to obtain a mining permit, nothing happened
between
23 April 2004 and 20 May 2004. When he first mentioned this, he did
so tentatively. He said:
‘
Ek
het nie ‘n nota daarvan nie, maar ek wil dit onthou dat sy vir
my geskakel het die 28ste en bevestig het dat die permit
uitgereik
is.’
and:
‘
Edele
soos wat ek reeds vir u gesê het, ek het nie ‘n nota
daaroor nie, maar ek wil dit hê dat die 28ste inderdaad
bevestig is aan my dat die permit uitgereik is.’
Mr
Van den Heever thus conveyed that he seemed to remember or would have
it that he received the call. In his later evidence, however,
he
inexplicably became quite certain about this. The fact is that he
meticulously made notes in respect of matters far less important
than
the good and important news that the mining permit had at long last
been issued. The absence of a note in respect of the alleged
call
from Ms Oosthuizen strongly indicates that it did not take place. If
he did receive this call, Mr Van den Heever would have
contacted SA
Soutwerke without delay and would probably clearly remember doing so.
Instead, he first said that he did not report
this to his client and
later that he would have but did not recall it. The evidence of this
call is also inconsistent with Ms Boshoff’s
note of 20 May 2004
as well as Mr Van den Heever’s own letter of 24 May 2004. In
this letter to SA Soutwerke he said:
‘
Ons
verwys na bostaande aangeleentheid en het ons op 20 Mei 2004 van die
Departement verneem dat die permit reeds uitgereik is en
dat dit per
geregistreerde pos aan u kantore versend is.’
[48]
Mr Van den Heever was the only witness who said that when the fax had
been received on 14 June 2004, it contained a copy of
MP169/2004. Mr
Bester, to whom he had allegedly handed the fax, did not testify. Mr
Van den Heever gave no reason for specifically
remembering this after
all the years and I find it improbable that he could do so. It will
be recalled that Mr Van den Heever did
not keep a copy of the fax and
only remembered it nine years later, during August 2013. In evidence,
Mr Van den Heever was prone
to confirm matters in absolute terms
which he was in fact unable to verify, such as that SA Soutwerke
never received MP169/2003
and that MP169/2004 was not forged. The
danger of reconstruction in regard to this part of his evidence is so
great that I have
no confidence therein. We simply do not know
whether copies of MP169/2003 or MP169/2004 were part of the fax
received on 14 June
2004.
[49]
For the same reason, I do not accept the evidence that Mr Van den
Heever received the original MP169/2004 in pristine condition.
One
set of staple perforations and one set of punch holes, both on the
second page thereof, could easily have been missed. He did
not say to
whom he handed the original at SA Soutwerke and could not say whether
it had punch holes when he handled it for purposes
of examination by
Mr Hattingh. Mr Van den Heever’s evidence does not bar a
finding that SA Soutwerke received MP169/2003.
That, after all, was
the permit that was validly issued; which would according to Ms
Oosthuizen have been sent with the
s 9(2)
consent to the address
on the application; and a copy of which was kept on the mineral laws
file. All of this, of course, does
not mean that Mr Van den Heever
was involved in or knew about the creation of MP169/2004.
[50]
That Mr Prins gave a copy of the first page of MP169/2003 to Mr
Zondagh shows that it is more probable than not that SA Soutwerke
was
in possession of the original. It is not possible or necessary
to determine exactly when and how SA Soutwerke received
the original
of MP169/2003. Once it had been received, the second page thereof
must have been used as the second page of the forged
MP169/2004. This
follows from the evidence of Mr Hattingh. The first and second pages
of the original MP169/2004 had been created
separately. The second
page thereof, which was exactly the same as the copy of the second
page of MP169/2003, had been separated
from the first page and had
been attached to one document which was not the first page of
MP169/2004. The evidence of punch holes
through only the second page
of MP169/2004, is telling.
[51]
Thus there is no room for an ‘innocent’ explanation of
MP169/2004 and I need not discuss the hypothetical innocent
explanation raised at the trial. I agree with counsel for Saamwerk
that the probabilities are overwhelming that SA Soutwerke, with
assistance from within the Department, was complicit in forging
MP169/2004 and that its reliance on MP169/2004 was fraudulent.
It
cannot be doubted that this conduct was wrongful and caused Saamwerk
to be deprived of the right to mine at Vrysoutpan.
Prescription
[52]
It remains to deal with SA Soutwerke’s plea of prescription.
The summons was served on SA Soutwerke on 6 September 2011.
The debt
claimed by Saamwerk is based on what should in my view be classified
as a continuous wrong committed by SA Soutwerke,
in contrast to a
single wrongful act. SA Soutwerke continuously caused Saamwerk to be
deprived of the right to mine at Vrysoutpan.
Such continuous wrong
gives rise to a series of debts arising from moment to moment or day
to day. See
Barnett
& others v Minister of Land Affairs & others
2007 (6) SA 313
(SCA) paras 20-21. It was not suggested that the
running of prescription had not commenced on 1 January 2007.
Therefore, unless
the running of prescription was interrupted, that
part of the debt that arose prior to 6 September 2008 would have
prescribed.
[53]
Saamwerk contends that the running of prescription was interrupted in
terms of
s 15
of the
Prescription Act 69 of 1969
, by the service
of the application in case 292/07. This contention raises the
question whether case 292/07 could properly
be described as a process
whereby Saamwerk claimed payment of the same debt that it claimed in
the present action.
[54]
Saamwerk relies on the judgment in
Cape Town Municipality &
another v Allianz Insurance Co Ltd
1990 (1) SA 311
(C). In
Peter
Taylor & Associates v Bell Estates (Pty) Ltd & another
2014 (2) SA 312
(SCA)
[2013] ZASCA 94
, this Court uncritically
referred to
Allianz
. It summarised the facts and issue in
Allianz
in the following terms (para 8):
‘
That
case concerned two consolidated actions, the essential relief claimed
by each plaintiff being an order declaring that
Allianz
was liable to indemnify the plaintiffs in terms of an insurance
policy in respect of all loss or damage suffered as a result of
two
storms. The issue for determination was whether service of a process
whereby the creditor claimed a declaratory order that
the debtor was
liable to indemnify it, rather than a claim for payment of a debt,
interrupted the running of prescription. Howie
J stated (at 334H-I):
“
1.
It is sufficient for purposes of interrupting prescription if the
process to be served
is one whereby the proceedings begun thereunder
are instituted as a step in the enforcement of a claim for payment of
a debt.
2.
A creditor prosecutes his claim under that process to final,
executable judgment,
not only when the process and the judgment
constitute the beginning and end of the same action, but also where
the process initiates
an action, judgment in which finally disposes
of some elements of the claim, and where the remaining elements are
disposed of in
a supplementary action instituted pursuant to and
dependent upon that judgment.”’
[55]
Howie J reasoned that further proceedings to exact payment from the
defendant pursuant to a declaratory order that the defendant
was
liable to indemnify the plaintiffs, would cover the elements of the
plaintiffs’ claim other than the issue of liability.
The issue
of the liability of the defendant to indemnify the plaintiffs would
be
res judicata
when the declaratory order is made. Thus the cause of action in the
proceedings for the declaratory order would be the same cause
of
action upon which the supposed further litigation would be based. The
declaratory order establishing liability to indemnify
would be
inextricably linked to the final executable judgment, notwithstanding
that the latter would require separate proceedings.
Therefore the
actions for the declaratory order were steps in the enforcement of
the plaintiffs’ right to indemnity, that
is to get the
defendants to implement the indemnity.
[56]
In my view, Saamwerk’s case does not fall within the parameters
of
Allianz
.
What was claimed in case 292/07 was a declaratory order that Saamwerk
was entitled to a mining right in respect of Vrysoutpan,
an order
obliging the Minister to execute the mining right and a declaratory
order that MP169/2004 was invalid, with consequential
interdictory
relief. Case 292/07 was essentially aimed at obtaining the mining
permit. It did not encompass any of the elements
of Saamwerk’s
subsequent delictual action, that is, fraudulent and wrongful conduct
that caused damages. None of the elements
of the delictual cause of
action were
res
judicata
as a
result of the judgment in case 292/07. The notice of motion in case
292/07 cannot, in my view, be regarded as a step in the
enforcement
of the delictual claim for payment of damages. I therefore conclude
that the plea of partial prescription must succeed.
[57]
For these reasons I conclude that SA Soutwerke is liable for such
damages as Saamwerk may prove that it suffered as a result
of being
unable to mine salt at Vrysoutpan during the period from 6 September
2008 to 25 June 2011.
The
case against the Minister
[58]
It is necessary to state at the outset what Saamwerk’s case
against the Minister was not. It was not that the Department
was
complicit in forging MP169/2004, despite the fact that this must have
happened. This was clearly confirmed by counsel for Saamwerk
at the
trial during argument on an objection by counsel for the Minister
that Saamwerk had deviated from its pleadings in this
regard.
Departure from the pleaded case on appeal would seriously prejudice
the Minister and is impermissible. Complex questions
as to the
vicarious liability of the Minister for dishonest conduct of an
official of the Department were, for instance, not canvassed
at all
at the trial.
[59]
The pleaded case against the Minister was that the Department
wrongfully, with malicious intent and dishonestly (onregmatig,
kwaadwillig, opsetlik en oneerlik), alternatively negligently,
refused or failed either to execute Saamwerk’s mining right
by
the end of December 2006 or to prevent SA Soutwerke from mining
unlawfully at Vrysoutpan. Properly analysed, the conduct of
the
Department relied upon would constitute nothing other than those two
administrative omissions. These omissions (the omissions)
are two
sides of the same coin and could conveniently be taken together.
[60]
Saamwerk’s claim for the compensation of loss of profit is one
for pure economic loss. The element of wrongfulness is
therefore of
particular importance. The principles applicable to wrongfulness in
the context of causation of pure economic loss,
are well developed.
The causation of pure economic loss is not prima facie wrongful.
Whether causation of pure economic loss is
wrongful, depends on
whether considerations of public and legal policy, consistent with
the Constitution, require that a delictual
claim be afforded. This
involves a value judgment based on judicial evaluation of the policy
considerations relevant to the particular
case. An incorrect
administrative act or omission causing pure economic loss is thus not
per se wrongful, but dishonest or mala
fide administrative conduct
will generally be wrongful. See
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006
(1) SA 461
(SCA) para 1, 2, 13 and 32;
Minister
of Finance & others v Gore NO
2007 (1) SA 111
(SCA) para 82 and 87-88;
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2007 (3) SA 121
(CC) para 37-42;
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
2015 (1) SA 1
(CC);
[2014] ZACC 28
para 21-26. I now turn to the
question whether the relevant considerations of public and legal
policy in this case require that
the Minister be held liable for
damages resulting from the omissions.
[61]
An important consideration of legal policy is that ordinarily public
law wrongs attract public law remedies and not private
law remedies.
See
Steenkamp
paras 29-30. In the instant matter, Saamwerk had
public law remedies at its disposal. It could, for instance, have
instituted proceedings
to review the refusal to execute the mining
right in terms of s 6(2)
(g)
of the
Promotion of
Administrative Justice Act 3 of 2000
read with the definition of
‘decision’ in
s 1
thereof. Importantly, Saamwerk had
the public remedies that it actually enforced in case 292/07, namely
a declaratory order that
it was entitled to the mining right, an
order obliging the Minister to execute the mining right, and an order
declaring MP169/2004
to be invalid.
[62]
An important linked consideration is that the law of delict provided
Saamwerk with a private law remedy to recover the loss
in question.
As this judgment finds, SA Soutwerke is liable to make good the loss.
It is Saamwerk’s own doing that caused
prescription to
extinguish a part of the loss that could be recovered from SA
Soutwerke. Thus, there is no pressing consideration
of public policy
which require that the law be extended to allow a private law remedy
to recover the loss from the Minister.
[63]
The omissions did not involve any dishonesty or bad faith. We have
not been referred to any case where an incorrect administrative
act
or omission was found to be wrongful in the absence of dishonesty or
bad faith. In
South
African Post Office v De Lacy & another
2009 (5) SA 255
(SCA), the incorrect award of a tender was found not
to be wrongful as no dishonesty was involved. In
Gore
the dishonesty involved in the fraudulent award of a tender
constituted a decisive consideration on which the finding of
wrongfulness
was based. I do not say that an incorrect administrative
act or omission will never be wrongful in the absence of dishonesty
or
mala fides. However, dishonesty or mala fides in respect of
administrative conduct is a weighty consideration of public policy in
favour of a finding of wrongfulness, which consideration is absent in
the present matter.
[64]
Public and legal policy sometimes require that the plaintiff be
compensated for pure economic loss only in the event of an
intentional wrong. See
Media
24 Ltd & others v SA Taxi Securitisation (Pty) Ltd
[2011] ZASCA 117
;
2011 (5) SA 329
(SCA) para 12;
Roux
v Hattingh
[2012]
ZASCA 132
;
2012 (6) SA 428
(SCA) para 38-40;
Country
Cloud
paras 39-40.
This cued counsel for Saamwerk to argue that the Department took a
deliberate decision not to execute the mining right
and that fault in
the form of intent (dolus), as opposed to negligence (culpa), was
present. This is not correct. Fault refers
to the legal
blameworthiness of wrongful conduct. In delict, fault in the form of
intent is present only if the person intended
to bring about the
particular result that he or she caused. The person’s
will must have been directed at the result
caused. There is no basis
for finding that the Department intended to cause damages to Saamwerk
by delaying the execution of the
mining right. At best for Saamwerk,
the omissions were negligent, but it is not necessary to determine
this distinct and separate
issue.
[65]
In my view the considerations that weigh most heavily against the
imposition of liability on the Minister, arise from the particular
facts of the matter. As I have said, the omissions occurred during
the period from the end of December 2006 to 7 June 2011. Mr
Mndaweni
became the regional manager of the Department in Kimberley with
effect from 1 February 2005. He had no personal knowledge
of the
issue of a mining permit to SA Soutwerke. He first became aware of
MP169/2004 during August 2006. SA Soutwerke threatened
the Department
with litigation shortly thereafter, in September 2006. Mr Mndaweni
met with SA Soutwerke during December 2006 and
determined that it was
seriously contended that only it had a valid right to mine salt at
Vrysoutpan. He approached the Chief Director
to have the tricky
question of the validity of the competing claims to Vrysoutpan
investigated. She instructed Mr Guthrie to conduct
the investigation.
During or about March 2007 Mr Guthrie concluded that MP169/2004 was
invalid and that SA Soutwerke had no right
to mine salt at
Vrysoutpan. He reported this to the Chief Director. Given the
complexities of the matter, it is rightly not contended
that the
investigation was not concluded expeditiously. However, more or less
at the same time, Saamwerk instituted case 292/07,
which was opposed
by SA Soutwerke. This made Saamwerk’s mining right and the
validity of MP169/2004 the direct subjects of
the proceedings in case
292/07.
[66]
After its initial prevarication, the Department formally withdrew its
opposition to Saamwerk’s application before the
hearing of
evidence in case 292/07. No doubt the Department’s initial
inconsistent conduct in case 292/07 had no effect on
SA Soutwerke’s
opposition. With the approval of Saamwerk, the Department thereafter
participated in case 292/07 only to assist
the court. From then on
the matter remained before the courts only at the instance of SA
Soutwerke. The policy of the Department
was not to finalise a mining
right whilst litigation was pending regarding the validity of that
right. It was in my view perfectly
in keeping with public and legal
policy not to undermine the legal process by determining that which
the courts were called upon
to decide.
[67]
In my view, policy and legal considerations do not regard the
omissions as unlawful conduct. In the circumstances they do not
require the imposition of delictual liability on the Minister. As
Saamwerk failed to prove that the omissions were wrongful, its
claim
against the Minister must fail.
[68]
In the result the following order is issued:
1
The application to receive further evidence is dismissed with costs,
including the costs of two counsel.
2
The appeal in respect of the claim against the first respondent is
dismissed with costs, including the costs of two counsel.
3
The appeal in respect of the claim against the second respondent is
upheld with costs, including the costs of two counsel.
4
The order of the court a quo is set aside and replaced with the
following:
‘
(i)
The claim against the first defendant is dismissed with costs,
including the costs
of two counsel.
(ii)
It is declared that the second defendant is liable to the plaintiff
for payment of
such damages as the plaintiff may prove that it
suffered as a result of being unable to mine salt at Vrysoutpan
during the period
6 September 2008 to 25 June 2011.
(iii)
The second defendant is directed to pay the plaintiff’s costs
in respect of the
claim against it, including the costs of two
counsel.’
__________________
C
H G van der Merwe
Judge
of Appeal
Appearances
For
the Appellant:
W R E Duminy SC (with him J C Tredoux)
Instructed
by:
Haarhoffs
Inc, Kimberley
Honey
Attorneys, Bloemfontein
For
the First Respondent: W Trengove SC
(with him H J L Vorster)
Instructed
by:
State
Attorney, Kimberley
State
Attorney, Bloemfontein
For
the Second Respondent: S J Grobler SC (with him J L Gildenhuys)
Instructed
by:
Wessels
& Smith Inc, Upington
McIntyre
& Van der Post, Bloemfontein
[1]
‘
Volgens
haar is die permit al ‘n geruime tyd terug onderteken en
uitgereik. Hulle het dit per geregistreerde pos gestuur
na die adres
soos op die Aansoek.’
[2]
‘’
n
groot gesukkel’.