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[2018] ZAGPPHC 609
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Molele v Van Heerden (60192/2015) [2018] ZAGPPHC 609 (28 March 2018)
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISON, PRETORIA
Case No.: 60192/2015
28/3/2018
In
the matter between:
JOSIAS
CHABA
MOLELE
Applicant
and
DANIEL VAN
HEERDEN
Respondent
JUDGMENT
Sardiwalla
J:
Introduction
1.
This
is an application for absolution from the instance in the main trial,
brought on behalf of the Defendant, who is the Applicant
in this
matter, after the Plaintiff and Respondent closed their
case
,
in terms of Rule 39(6) of the
Uniform Rules of this Honourable Court.
The
parties
2.
The
Applicant, is
Josias
Chaba Molele
,
a
major
businessman residing [….] and employed at [….]
[1]
.
3.
The
Respondent is
Daniel
van Heerden
,
a
major businessman of [….]
[2]
.
Background
4.
On
or about 15 August 2012 and at or near M
i
drand,
Gauteng
,
it
is alleged that the Applicant wrongfully and maliciously set the law
in mot
i
on
by laying a false charge of theft alternatively fraud against the
Respondent with the police at Midrand, Gauteng
,
by
giv
i
ng
them the false informat
i
on
contained in the affidavit
[3]
.
Applicant's
case
5.
The
Applicant
'
s
case can be summed up as follows
:
the
Respondent in this application has d
i
smally
failed to make out a
prima
facie
case
for the Defendant to answer, hence the necessity of the Defendant,
who is the Applicant
in
casu
opening
his case to refute the case which the Defendant has accounted to put
up
,
has
now fallen away, and this matter should end by way of the
Applicant being granted absolution from the instance in the main
trial, since there is no case for the Applicant who
is
the
Defendant therein to answer
[4]
.
6.
The
Applicant also seeks costs, against the Respondent, who is the
Plaintiff that dragged the Applicant/Defendant to court, without
having set out a basis necessary
in
fact
and law to sustain a cause of action
[5]
.
Respondent's
case
7.
The
Respondent's case can be summed up as follows
:
The Respondent alleges that the
Applicant wrongfully and maliciously set the law in motion by laying
a false charge of theft, alternatively
fraud against the Respondent
with the police at Midrand, Gauteng
,
by
giving them the false
information
contained
in
the affidavit. When laying the charge
and providing the disinformation
,
Applicant-
(1)
Had no
reasonable
or probable cause for doing so,
(2)
Did not have any reasonable belief in
the truth of the information given; and
(3)
acted with malice
8.
As
a result of the Defendant's conduct, criminal proceedings were
instituted against the Plaintiff, and the Plaintiff-
(1)
Had to obtain legal representation;
(2)
Provide a warning statement to the South
African Police Service;
(3)
Incurred
legal
costs in dealing with the criminal
proceedings; and suffered
contumelia
9.
The
criminal proceedings against the Plaintiff terminated without any
charges being preferred against the plaintiff
.
As a result of the Defendant's conduct
the Plaintiff suffered damages in the amount of R500 000
.
00.
The
law
and
application
Malicious
prosecution
10.
The
test for malicious prosecution is set out in
Minister
of Safety and Security v Moleko
[6]
it
was held that the following must be proven
:
-
In
order to succeed (on the merits) with a claim for malicious
prosecution, a claimant must allege and prove-
a)
that the defendants set the law
in motion (instigated or instituted the proceedings);
b)
that (he defendants acted without
reasonable and probable cause;
c)
that the defendants acted with
"
malice
" (or animo injunandi); and
d)
that
the prosecution has failed
,
(in
this case
,
of
course, Mr Moleko was acquitted at the end of his criminal trial and
requirement (d) need detain us no further) the cases of
Rudolph and
others
v
Minister
of Safety and Security
[7]
,
and
Minister of Safety and Security v Seymour
[8]
have discussed this issue as well
.
a)
that the defendants set the law
in
motion (instigated or instituted
the proceedings).
11.
The
Applicant who
is
the
Defendant in the main trial admits that he
initiated
the
criminal proceedings by reporting and opening up a case of fraud
against the Respondent who is the Plaintiff in the main trial
at the
police station
in
Midrand
in which he set out the relevant information in an affidavit. The
Applicant denies that the criminal proceedings were however
instituted
against
the Respondent in that the Respondent was never formally indicted
by the National Prosecuting Authority or appeared
before any
Court of law and therefore no prosecution occurred
[9]
12.
The
Respondent however is of the
view
that
the charges or complaint
laid
by
the Applicant were false and without such false statement the public
official would not have instituted the proceedings. The
respondent
also submits that that Applicant should still be held liable even if
he was only grossly negligent
[10]
and lastly prosecution includes the pre-trial leg constitutes part of
the
proceedings
.
13.
The
correct legal position was stated as follows in
Waterhouse
v Shields
[11]
and
Madnitsky
v Rosenberg
[12]
and
both were approved by the Appellate Division in Lederman
v
Moharal Inv
(Pty)
Ltd
[13]
, it was held that,
"A
private person who gives to
a
public
official information of another's supposed criminal misconduct, of
which the official is ignorant
,
obviously causes the institution
of such subsequent proceedings as the official may begin on his own
initiative, but giving such
information or even making an accusation
of criminal misconduct does not constitute a procurement of the
proceedings initiated
by the officer if it is left entirely to his
discretion to initiate the proceedings or not. Where
a
private person gives to
a
prosecuting officer information which
he believes to
be
true,
and the officer in the exercise of his uncontrolled discretion
initiates criminal proceedings based upon that information,
the
informer is not liable under the rule stated in this section even
though the information proves to be false and his belief
therein was
one
which
a
reasonable
man would not entertain. The exercise of the officer's discretion
makes the initiation of the prosecution his own and
protects from
liability the person whose information or accusation has led the
officer to initiate the proceedings
.
If,
however, the information is known by the giver to be false, an
intelligent exercise of the officer's discretion
becomes
impossible and
a
prosecution based thereon is procured
by the person giving the false information
.
In order to charge a private
person with responsibility for the initiation of proceedings by
a
public official
,
it
must
therefore appear that h
.
is
desire to have the proceedings initiated expressed by direction
,
request, or pressure of any kind
was the determining factor in the
official's
decision to commence the prosecution or that the information
furnished by him upon which the official acted was known
to be
false
.
"
14.
In
essence the Respondent submits that the Applicant pleaded his own
conclusions
in
his
affidavit by stating that the cause of action and that the Respondent
must be prosecuted as to oppose to material facts he would
have to
prove in order to sustain the cause of action. According to
Respondent it thus lacks the requisite
.
particularity to allow firstly the
public official to exercise his discretion in view of the information
provided or the Respondent
to plead thereto in a meaningful manner
which he submits is therefore malicious. In applying the
case
supra
in order for the Applicant to
be found liable, the information provided even if proven to be false
must be one that a reasonable
person would not entertain. In the
present case the Applicant initiated the criminal proceedings where
he claims that the Respondent
acted without authority in changing the
banking details of the Molele LGS (Pty) Ltd in the contract between
Molele LGS (Pty) Ltd
as a contractor with the Mogale City
Municipality to Quill and Associates (Pty) Ltd without prior written
consent or a resolution.
It was conceded by the Respondent's witness
Mr Kooi a Chartered Accountant, who is an expert in his field that
where a director
in the position of Mr Van Heerden was no longer a
director of Molele LGS (Pty) Ltd, or a company, and then went on
without the
requisite authorisation from a company law perspective,
in the form of a resolution from his own company and the company
whose
details he seeks to have removed and bearing in mind the
stipulation of clause 7 on page 209 of Exhibit C which deals sets out
the regulations for a transfer and cession of rights for
contracting
with a municipality, then the conduct of such a director would indeed
be fraudulent. I must therefore accept the Appl
i
cant's
version that he believed the facts stated to the public official to
be true and one that a reasonable person would entertain
.
Therefore it cannot be said that the
Applicant
'
s
intention was to have the proceedings initiated expressly by
d
i
rection,
request
,
or
pressure of any kind was the determining factor in the offic
i
al's
decision to commence the prosecution or that the information
furnished by him upon wh
i
ch
the offic
i
al
acted was known to be false. The Applicant therefore escapes
liability on th
i
s
element.
15.
The
issue of the valid
i
ty
of transfer and cession of rights was not ra
i
sed
as a
point in limine
in
the present appl
i
cation
or in the ma
i
n
tria
l
and
therefore
i
s
not an issue to be determined by this court
.
b)
He had no reasonable or probable
cause to do so
16.
Mr Kooi who testified on behalf of the
Respondent conceded that any person acting w
i
thout
the requisite authority wherein he was no longer a director of a
company
,
such
conduct would indeed be fraudulent. Therefore it can be concluded if
a reasonable person in the position of the Applicant believed
tha
t
the informat
i
on
he was providing to the pol
i
ce
officia
l
was
true that he had a reasonable cause for initiating criminal
proceedings with a publ
i
c
official had a reasonable basis on fact and in law
.
c)
that the defendants acted with
"
malice
" (or
animo iniunandi)
17
.
The e
l
ement
of intention as proved above required for mal
i
ce
i
s absent.
I
t has
been
accepted that a reasonable person in the position of the Applicant
would have taken the same steps as the Applicant and therefore
such
act
i
ons
cannot be considered to have been intended to be malicious.
d)
that the prosecution has failed
.
18.
The
Applicant submits that prosecution only commences once the main trial
begins and this process excludes the pre-trial and investigative
stages of the inquiry
.
Further
that the Respondent was never formally indicted, therefore it cannot
be said that the Respondent was under prosecution as
there was no
prosecution to begin with
[14]
.
•
The
Respondent submits that pre-trial stage forms part of the prosecution
process is therefore an indication that prosecution had
commenced
.
Further
that in the pre-trial minute dated 28 October 2106 the Applicant
denies that the proceedings were terminated
[15]
.
He also submits that in all probability the prosecution was
terminated as no progress had been made for a period of six
years
[16]
.
What
therefore must be determined is whether termination of the criminal
proceedings can be held as the same as the prosecution
failing
.
In
the
Zuma
case
where he contested the reopening of the case, the Supreme Court of
Appeal distinguished between
prima
facie
evidence
that would merit the prosecution of an accused and discharging the
onus of proof during a criminal trial. The court held
that
prima
facie
evidence
does not need to be conclusive or irrefutable at the stage when
criminal proceedings are instituted
.
It
must have enough merit only once the criminal investigations are
concluded "in the sense of reasonable prospects of
success".
[17]
The rationale beh
i
nd
this requirement is
to
prevent
the laying of spurious charges. Whether or not a case would actually
be winnable in court is the domain of the judiciary
and not the
prosecutors. That decision depends on the evidence presented to the
court under cross-examination
,
where
the prosecution is required to present
prima
facie
evidence
of each element of the crime. On
.
ly
if the prosecution can during the trial establish a
prima
facie
case
which is strong enough to discharge the burden of proof will the
accused be required to rebut it by raising a reasonable doubt.
[18]
The court found that the trial court failed to comply with the basic
rules of procedure when Nicholson J presumed that there was
political
meddling in the prosecution, even though this was not proved.
[19]
The court held that the motive behind a prosecution
i
s
irrelevant
insofar
as
a crime that ought to be prosecuted had been committed
.
[20]
The court concluded that it was difficult to see, in the light of the
Shaik judgment
,
how
the prosecution could have failed to prosecute Zuma.
[21]
19.
In
Lemue
v Zwartbooi
(1896) 13 SC 403
at 405,
De
Villiers CJ said the following
in
this
regard
:
"For
the first time the question has been raised in this court whether, in
an action for malicious prosecution, the refusal
of the
Attorney-General or Solicitor-General to prosecute constitutes
sufficient proof of
a
termination
of the prosecution in the Plaintiffs favour. It has been urged on
behalf of the Defendant that such refusal is equivalent
to a no/Ii
prosequi which
,
according
to the English law, has been held not to terminate the prosecution
.
Considering,
however, the wide difference between the functions of the
Attorney-General
,
as well as the systems of criminal prosecution in the two countries,
the English precedent cannot be regarded
as
binding her.
"
And
further at page 406
:
"
In
this country the public prosecutor really performs the functions of
a
grand jury in addition to his other
duties
.
He
indicts where the preliminary examination discloses
a
prima facie
case
against the accused
,
but he declines to prosecute it
there is no reasonable prospect of a conviction by an impartial jury
.
This refusal to prosecute does
not operate
as
res
judicata so as to prevent a future prosecution for the offence
charged, for it has been held that the Attorney-General may indict
in
the case where the Solicitor-General has declined to prosecute (which
is not the position at present) and the private party
who has
suffered injury by any crime or offence
may
,
subject
to
the restrictions mentioned in
Ordinance No
.
40
prosecute (private prosecution now provided for in the Criminal
Procedure Act where the public prosecutor has declined to prosecute)
But
so
.
far
as
the
original proceedings are concerned
,
!hey are terminated by the public
prosecutor's refusal to prosecute
.
This view has been taken for
granted in numerous actions for malicious prosecution which have been
brought in this court."
And
further at 407:
"While
a
prosecution
is actually pending its results cannot be allowed to be pre-judged by
the civil action
,
but
as soon as the Attorney-General
,
in the exercise of his quasi
judicial function
,
has
decided not to prosecute
,
there
is sufficient termination of the original proceedings to allow of the
civil action being tried. A different view of the law
would lead to
the extraordinary result that the clearer the proof of a person's
innocence is
,
the
greater difficulty would he have
in
obtaining damages for false and
unfounded charges maliciously made against him
.
On the other hand
,
the law, as I have stated
it
to be
,
need not lead to any hardship on
the Defendant
in
an
action for
malicious prosecution
.
If, after the Solicitor-General n
has refused to prosecute
,
there
is a reasonable possibility that the Attorney-General will prosecute
or an undertaking by the Defendant himself to prosecute
without
delay
,
it
would be quite competent for the court to postpone the civil trial
until after the verdict in the fresh criminal proceedings
.
In the present case there was no
suggestion that the Attorney-General was likely to prosecute the
Plaintiff for perjury
,
or
that the Defendant himself intends to institute a private prosecution
for that offence
"
.
20.
I
applying the above
cases supra
to
the present case the Applicant was not required
t
o
subm
i
t
prima facie
evidence
that was conclus
i
ve
at the stage of
i
n
it
iating
or instituting the criminal proceedings against the Respondent.
Further that the motive behind the initiation of the proceedings
were
irrelevant as the crime of suspected fraud and theft is a crime that
ought to be prosecuted if the complainant has a reasonable
belief
that such c
ri
me
has indeed been comm
i
tted
.
There also is no suggestion that even
though the criminal proceedings may have been terminated that the
Applicant does not intend
to institute a private prosecution for the
offence
,
in
which case
i
t
would have the effect of suspending the present civil act
i
on.
In the present case and in light of the evidence presented before me
I find it difficult to see how the prosecution could have
failed or
why it was terminated and I am of the view that termination in this
instance cannot be viewed as the prosecution failing
.
21.
Having regard to the above I therefore
conclude that the requ
i
rements
f
or
malicious
prosecution have not been met.
Damages
22.
In
casu
the
Plaintiff bears the onus to prove that he has suffered damages and
also quantum thereof
;
Vide
Momentum Art CO v Kenston Pharmacy,
[22]
Rose Innes AJ, as he was then
,
said
:
"
the
onus rest upon plaintiff to prove not only that its goods have been
damaged, but also the amount of the damages thereby sustained
.
I apply with respect the dicta of
Muller AJA
,
as
he then was in
Erasmus
v Davis
case at 19A where he
said:
'it
is for the plaintiff to establish not only he has suffered damages
but also the quantum thereof. Consequently it is for the
plaintiff to
show that the method which he employs is appropriate to that the
evidence produced by him establishes the quantum
of the damage which
he has suffered
'
.
23.
It
is not in dispute that criminal proceedings were init
i
ated
aga
i
nst the
Respondent. It is also not in dispute he never appeared before a
Court of law and that only pre-trial stages were reached
before the
matter was withdrawn.
24.
It
i
s
however in dispute that there were legal costs incurred by Van
heerden in defend
i
ng
the criminal matter which amounted to R18 000 as claimed for in his
particulars of claim
[23]
. The
Applicant in th
i
s
regard has po
i
nted
out and correctly so in my view that there is no documentary evidence
from the Responden
t
’s
counsel or the attorneys
·
to
substan
t
iate
the claim for the legal
costs
[24]
.
Further that in his evidence in chief the Respondent abandoned his
claim for loss of income of R 15 000
[25]
,
to which again no expert or documentary proof of calculations has
been provided to this Court. Where no evidence is led to prove
the
calculations of the amounts claimed for damages the Court in this
regard held At page 118D-F Innes AJ
,
as
he then was continued to say
...
.
"the
court does not have to embark on conjecture in assessing damages
where there is no factual basis in evidence or, an in
adequate
factual basis
,
for
an assessment, and it is not competent to award an arbitrary
approximation of damages to a plaintiff which has failed to produce
available evidence upon which assessment of the loss could have been
made
.
For
the plaintiff to succeed in his claim, he must proof all the elements
claimed required to be proved'.
25.
Further
Rule 18 (10) states as follows:
A
plaintiff suing for damages shall set out in such manner as will
enable the defendant reasonably to access the quantum thereof:
provided that a plaintiff suing for damages for personal injury shall
specify his date of birth
,
the
nature and extent of injuries, and the nature effects and duration of
the disability alleged to give rise to such damages, and
shall as far
as practicable state separately what amount, if any is claimed for-
(a)
Medical
costs and hospital and other sim
il
ar
expenses and how these costs and expenses are made up,
(b)
Pain
and suffering, stating whether temporary or permanent and which
injuries caused it;
(c)
Disability
in respect of-
i.
the
earning of income (stating the earnings lost to date and how the
amount is made up and the estimated future loss and the nature
of the
work the plaintiff will in future be able to do);
ii.
the
enjoyment of amenities of life (giving particulars);
and
stating whether the disability concerned is temporary or permanent
and
(d)
disfigurement,
with a full description thereof and stating whether it is temporary
or permanent
26.
Having
regard to the onus placed on the Respondent to produce evidence
deducing the quantum claim for, the Respondent has provided
no
evidentiary or documentary proof to substantiate his calculation for
damages
.
As
held in the
case supra
the
Plaintiff in order to succeed with his claim must prove all elements
and
i
t is
not for the Court to assess the amount of damages were there is no
factual basis and no evidence to support the claim
.
In the absence of the evidence in
support of the elements required the claim for damages must fail.
Contumelia
27.
Where
a person's bodily integrity has been wrongfully and intentionally
infringed, he or she can claim satisfaction with the
actio
iniuriarum
unless the principle
de
minimis non curat lex
applies to his
or her claim. The defendant is then liable for all the personality
harm which flows from the infringement of the
plaintiff's
physical integrity in so far as the general nature of the harm was
reasonably foreseeable
.
The
amount which is awarded as satisfaction is estimated according to
what is just and equitable
(ex aequo
et bono)
.
Because
solatium
is
awarded primarily for injured feelings, the quantum of damages is
first of all dependent on the extent or intensity of the physical
and
mental suffering or sentimental loss which the plaintiff has
experienced as a result of the
contumelia
or contempt of his or her body
.
28.
Contumelia
must in this context not be
understood as a synonym for insult
,
but
rather as a description of the plaintiff's feelings of having
suffered an injustice. For this reason provocation by the plaintiff
or an apology by the defendant, or the plaintiff's social or cultural
status may influence the amount of satisfaction
.
In addition, awards in previous cases
,
allowing for inflation, must be properly
considered
.
Where
other personality interests are also affected
,
such as dignity or
fama
,
the amount of damages may be
i
ncreased
accordingly
.
29.
Compensation
for pain
,
suffering
,
disfigurement and loss of amenities of
life associated with assault is recovered by means of the action for
pain and suffering and
not the
actio
iniuriarum.
Therefore, in instances
of assault
,
these
two actions are both available. This also appears impliedly in case
law, where a distinction is drawn between satisfaction
for
contumelia
and compensation for pain and
suffering
.
30.
The
Applicant denies that the charges were terminated against the
Respondent and further that the Respondent suffered
contumelia.
The
Respondent in my findings above has not produced expert evidence or
evidence
any family member to support any claim for physical
,
mental suffering or sentimental loss incurred as defined above
.
In
fact by concession of the Respondent's own witness that the conduct
of person who acts without the requisite authority of a company
to
which he is no longer a director of, is fraudulent. The correct
approach was stated in
De
lange vs Costa
[26]
is
that the test to be applied in determining whether the act complained
of is wrongful must be assessed in accordance with reasonableness
and
the prevailing norms of society.
In
this
instance the prevailing norms of society would require that the act
of fraud in all reasonableness be prosecuted and would
consider that
actions of the Applicant in initiating criminal proceedings against
the Respondent reasonable in the circumstances
.
I
am therefore of the view that the element of wrongfulness or
intentionally malicious and that any injustice was suffered by the
Respondent which is required to succeed on a claim of
contumelia
is
absent.
Absolution
from instance
31.
"
Absolution"
as defined
is
an
act of freeing from blame and releasing from consequences,
obligations or penalties. "Instance" refers to
"a
particular case". It then follows
that absolution from the instance is a state of being released from a
particular case
.
In
South African law, the decree of absolution from the instance amounts
to an order granted to dismiss the plaintiff's claim on
the basis
that no order can be made.
32.
Rule
39 (6)states that at the close of the case for the plaintiff
,
the defendant may apply for absolution
from
i
nstance
,
in which event the defendant or one
advocate on his behalf may address the court and the plaintiff or
none advocate on his behalf
my rep
l
y.
The defendant or his advocate may thereupon reply on any matter
a
r
ising out
of the address of the plaintiff or his advocate.
33.
The
correct approach to absolution applicat
i
on
is conveniently set out by Harms JA
i
n
the case of
Gordon
Llyod Association v Rivera and Another
:
[27]
[2]
The test fo
r
absolution
to be applied by a trial court at the end of a plaint
i
ff's
case was formulated
i
n
the case of Claude Neon Lights (SA) Ltd v Daniel..
..
..
"
When
absolution from the instance is sought at the close of plaintiff's
case, the test to be applied is not whether the evidence
led by
plaintiff establishes what would finally
be
required
to be established, but whether there is evidence upon which
a
Court,
applying its mind reasonable to such evidence could or might (not
should
,
nor
ought to) find for the plaintiff.
[28]
The plaintiff has to make out
a
prima
facie case in
t
he
sense that there is evidence relating to all the elements of the
claim"
.
34.
This
implies that a plaintiff has to make out a prima facie case- in the
sense that there is evidence relating to all elements of
the claim-
to survive absolution because without such evidence no court could
find for the plaintiff
.
[29]
As far as inferences from the evidence are concerned, the inference
relied upon by the plaintiff must be reasonable one, not the
only
reasonable one {Schmidt at 93). The test has from time to time been
formulated
in
different
terms, especially it has been said that the court must consider
whether there is
"evidence
upon
which a reasonable man might find for the plaintiff {Gascoyne (
loc
cit))
-
a test which had
its
origin
injury trials when the "reasonable man" was a reasonable
member of the jury (Ruto Flour Mills). Such a formulation
tends to
cloud the issue. The court ought not to be concerned with what
someone concerned with its own judgment and not that of
another
"reasonable"
person
or court. Absolution at the end of the plaintiff's case, in the
course of events, will nevertheless be granted sparingly
but when the
occasion arises, a court should order it in the
interest
of
justice.
35.
Hattingh
J
found
that the test to be applied in determining the question whether the
defendant's application for absolution from the instance
should be
granted is not whether the adduced evidence required an answer, but
whether such evidence held the possibility of a finding
for the
plaintiff, or put differently, whether a reasonable Court can find in
favour of the plaintiff. Consequently, at the absolution
stage the
plaintiff's evidence should hold a reasonable possibility of
success for him and should the Court be uncertain whether
the
plaintiff's evidence has satisfied this test, absolution ought to be
refused
[30]
.
36.
In applying the test and principles of
the cases
supra
to
the Respondent, the Respondent has failed to make out a case of
malicious prosecution and prove the existence of damages and
that he
suffered any
contumelia
on
his own version as it stands.
Conclusion
37.
Based
on the above, I conclude that the Respondent has failed to provide
sufficient evidence to even establish a
prima
facie
case that the prosecution was
malicious and he had been suffered any
contumelia
by the actions of the Applicant.
This Court, in applying its mind reasonably to the Respondent's case
and evidence, simply cannot
conclude at the conclusion of such
evidence led that the Court could ultimately find in his favour. The
application for absolution
from the instance must therefore succeed
.
Order
38.
I make the following order:
a)
The
application for absolution from the instance in the main trial is
granted
b)
The
Respondent shall bear the costs of this Application and the main
trial on an attorney and client scale.
C
M SARDIWALLA
JUDGE
OF THE GAUTENG DIV
I
SION
,
PRETORIA
APPEARANCES
Date
of hearin
:
12
FEBRUARY 2018
Date of
Judgment
:
28 MARCH
2018
Counsel
for the Plaintiff ADV
:
PW MAKHAMBENI
Applicant's
Attorneys L
:
ACHPORIA ATTORNEYS
Counsel
for the Respondent
:
ADV
.
:
S. D
.
WAGENER SC
Respondent's
Attorneys
:
A. L.
MAREE INC
[1]
Plaintiffs Particulars of Claim,
paragraph
2
[2]
Plaintiffs Particulars of Claim, paragraph 1
[3]
Plaintiffs Particulars of Claim, paragraph 1
[4]
Applicant's Heads of Argument, paragraph 2
[5]
Applicant's Heads of Argument, paragraph 2
[6]
[2008] 3 ALL SA 47
(SCA) at paragraph 8
[7]
2009 (5) SA 94
(SCA) (also at [2009] 3 ALL SA 323 (SCA))
[8]
2006 (6) SA 320 (SCA)
[9]
Applicant's Heads of Argument, paragraph 7
[10]
Respondent's Heads of Argument, paragraph 16.6
[11]
1924 CPD 155
, at 16
[12]
1949 (1) P.H. JS
[13]
1969 (1) SA 190
(A),at page 197
[14]
Applicant's Heads of Argument, paragraph 11, 12, 13 and 14
[15]
Respondent's
Heads of Argument, paragraph 13
[16]
Respondent's
Heads of Argument, paragraph 22, 24 and 25
[17]
NDPP v Zuma (SCA)
paras 27, 43; see also Zeffert, Paizes and
Skeen
Law of Evidence.130-121
[18]
S v Coetzee 3
1997 SA 527
(CC) para 195 ; Scagell v
Attorney-General, Western Cape 2 1997SA 368 (CC) para 11
[19]
NDPP v Zuma (SCA)
paras 44 -54.
[20]
NDPP v Zuma (SCA)
para 37.
[21]
NDPP v Zuma (SCA)
para 51
[22]
1976 (2)SCA (CPD) 111 at 120 C-E
[23]
Particulars of Claim, paragraph 7.1
[24]
Applicant's Heads of Argument, paragraph 13 and 14
[25]
Particulars of Claim, paragraph 7.2
[26]
[1989] 2 All SA 267
(A),
at page 271.
[27]
2001 (1) SA 88
(SCA) at 92E-93A
[28]
Gascoyne v Paul and Hunter
1917 TPD 170
at 173; Ruto Flour Mills
(Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T)
[29]
Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (I) SA 26
(A) at 37G-38A, Schmidt Bewysreg 4
th
ed at 91-2
[30]
See: Build-A-Brick BK en 'n Ander v Eskom
1996 (1) SA 115
(0) at 123
A - E. See also Schmidt C W H, Law of Evidence, loose (1) leave
edition, p. 3-16 to 3-18.