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[2018] ZANCHC 46
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Minister of Defence v Vermeulen and Others (1720/2010) [2018] ZANCHC 46 (15 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: 1720/2010
Matter
heard: 27-03-2018
Delivered:
15-06-2018
In
the matter between:
MINISTER
OF
DEFENCE
Applicant
And
GERT
JOHANNES
VERMEULEN
1
st
Respondent
PIETER
JAKOBUS
HUGO
2
nd
Respondent
THABA
LETSELE (PTY)
LTD
3
rd
Respondent
JACOB
STEYN
N.O
4
th
Respondent
DE
BRAK BOERDERY
CC
5
th
Respondent
CHRIS
STRAUSS
6
th
Respondent
BOTHA
MARKRAM
7
th
Respondent
ALWYN
JOHANNES
LÜBBE
8
th
Respondent
SAREL
FRANCOIS
WEIDEMAN
9
th
Respondent
MIETJIE
STEENKAMP
10
th
Respondent
ALEXANDER
ABRAHAMS
11
th
Respondent
FREDDY
MARKRAM
N.O.
12
th
Respondent
J U D G M E N T
WILLIAMS
J:
1.
This is an
application for leave to appeal against the whole of my judgment and
orders granted on 15 December 2017. The applicant,
the Minister
of Defence, raises 36 separate grounds upon which leave to appeal is
sought. I do not intend to deal with each
ground individually,
as certain grounds can be grouped together for the sake of
convenience.
Ground
1
2.
The
constant permitting of repititious reformulation and discovery of
documents during the course of the trial while plaintiffs
were
testifying (both in chief and under cross-examination) is
inconsistent with a fair trial and is a dereliction of the court’s
duty to encourage a culture of compliance with rules of court.
2.1
In paragraph 8 of the main judgment I explain why the amendments to
the plaintiffs’ claims were granted.
Likewise, when
certain documents were produced by both plaintiffs and defendant
while a witness was testifying, I allowed the introduction
of such
documents in my discretion and on the basis that there could be no
prejudice to any party. The applicant has yet
to show what
prejudice was suffered.
Ground
26.
3.
My refusal to allow the expert evidence of the defendant’s
metallurgists.
3.1
The applicant filed a Rule 36 (9) (b) notice in respect of
metallurgical experts on 23 February 2016.
At that stage all
but one of the plaintiffs still had to testify. No reasonable
explanation was given for the late filing
of such notice which in
terms of the Rules should have been given before the trial commenced
on 3 December 2013. Allowing
such evidence would have caused
further inordinate delays in the trial, at that stage already in its
20
th
week, since the plaintiffs would in all probability have to be
recalled on aspects relating to the expert evidence which they had
not had an opportunity to deal with and in addition the plaintiffs
would have to be given an opportunity to call their own metallurgical
experts, if they so whished. It can never be said in these
circumstances, that the interests of justice demand that such
evidence be allowed. This ground of appeal has no merits.
Grounds
3, 5, 7, 8, 11, 12, 15 and 19
4.
These grounds all relate to bias the applicant alleges I have shown
in preferring the plaintiffs’ evidence over that of
the
defendant, ignoring concessions favourable to the defendant and
generally failing to discharge my judicial duties properly.
4.1
If I had been biased in favour of the plaintiffs I would not have
dismissed certain of their claims.
Where I preferred the
evidence of one witness over another I gave full reasons therefore in
the main judgment.
Ground
2
5.
That I erred in not dismissing the claim of the 12
th
defendant since his cause of action did not arise from the fire of 6
to 9 September 2009.
5.1
I dealt in detail with this argument in paragraphs 159.1 to 159.1.5
of the main judgment. The applicant
cannot now complain when
she is the author of her own misfortune. There is no merit in
this ground.
Grounds
3 and 4
6.
I failed to ventilate the question whether the conduct of the
defendant’s employees was the cause of the plaintiff’s
loss of income and erred by not holding that the defendant’s
conduct was not the cause of the plaintiff’s loss of income.
6.1
It should be remembered that the defendant conceded the merits of the
action. If what is meant by these
grounds is that the
plaintiffs failed to mitigate their damages, this issue is
specifically addressed in paragraph 190 of the main
judgment.
Grounds
9, 10 and 13
7.
I failed to find that it was common cause between Professors Snyman
and Dube that grazing can take place about 6 weeks after
a fire, even
before the range has fully recovered, subject to the grazing being
for relatively short periods and allowing for adequate
rest periods.
7.1
This “
common
cause”
factor does not advance the applicant’s case one bit. If
the cattle should be allowed to graze for a few hours or a
day on
veld which has not fully recovered, before being removed from it (as
suggested by Prof Dube.), the plaintiff’s problem
of
overgrazing on the unburned camps (during the “adequate”
rest periods) will persist.
Grounds
14 and 15
8.
These grounds relate to my acceptance of the plaintiffs’
experts opinion that an entire camp should be withdrawn from grazing
if more that 10% thereof had been burned – and that it would
not be reasonable or prudent to accommodate all the animals
on the
rest of the farms.
8.1
The plaintiffs’ experts opinions in this regard were reasonable
and logical, unlike that of Prof Dube
who did not take into account
the fact that farms were divided into camps. See paragraphs 143
and 189 – 191 of the
main judgment.
Grounds
16 and 17
9.
I erred in holding that the plaintiffs’ physical measurements
of the fire scar were more reliable than the SANSA measurements.
9.1
Only the 1
st
,
7
th
,
9
th
,
11
th
,
and 12
th
,
plaintiffs are affected in this regard. I accepted their
physical measurements at the hand of the evidence of Mr Emery as
discussed at paragraph 157 of the main judgment. Accordingly I
am of the view that there are no merits in this ground of
appeal.
Ground
27
10.
That I erred in accepting lay witnesses evidence as to the cause of
damage to the plaintiffs’ fences.
10.1
The plaintiffs testified that the fire caused the damage to their
fences. So too Mr Swanepoel and Mr De Jager.
There was no
cogent reason for me to reject the plaintiffs’ evidence as to
the state of their fences before and after the
fire.
Grounds
28 and 29
11.
That I erred in affording Mr Swanepoel and Mr De Jager the status of
experts on all the aspects they testified on and erred
in relying on
their evidence to support the plaintiffs’ claims.
11.1
Mr Swanepoel and Mr De Jager were properly qualified to testify as
experts on the aspects they testified on. As
such I was
justified in relying on their evidence.
Grounds
19 and 20
12.
That I erred in accepting the plaintiffs’ evidence as to the
value of trees burned in the fire and awarding damages for
the loss
of trees.
12.1
I accepted the plaintiffs and their experts evidence in this regard
which made far more logical and reasonable sense
than that of the
defendant’s expert.
Ground
21
13.
This ground, that the claim for lost trees amounted to duplication of
damages, was abandoned during argument.
Grounds
22, 23, 24, 25
14.
These grounds relate to my acceptance of the plaintiffs’ and Mr
Swanepoel’s evidence relating to the claims for
firefighting
expenses, transport costs, fuel and the like.
14.1
I deal with these claims in paragraphs 170 to 172 of the main
judgment. In my view there can be no merit in these
grounds.
Ground
30
15.
I erred in holding that those plaintiffs leasing land from the
government have claims against the government for damaging its
own
property.
15.1
This argument was fully dealt with in paragraphs 159.2 and its
sub-paragraphs in the main judgment. I have not
been referred
to any authority to the contrary.
Grounds
31 and 32
16.
I erred in awarding damages for loss of income as the plaintiffs did
not take contingencies into account in quantifying their
damages
alternatively I erred by not taking past and future contingencies
into account when quantifying the plaintiffs’ damages.
16.1
In this regard the applicant has failed to show any contingencies
which would serve to reduce the award of damages.
There is no
merit in this particular ground.
Grounds
33 and 34
17.
These grounds refer to the credibility of the plaintiffs and their
expert witnesses.
17.1
I have expressed my views on the credibility and cogency of the
plaintiffs and their experts in the main judgment.
In my view
no other court would reasonably come to a different conclusion.
Ground
35
18.
I erred in awarding costs against the defendant.
18.1
There exists no reason in this matter why costs should not follow the
event.
Ground
36
19.
I erred in accepting reliance on the report of Mr du Toit on matters
on which he was not qualified and did not testify about.
19.1
Mr Du Toit’s report was placed before court in terms of Rule
36(9). He was present in court for most of the
proceedings.
When the plaintiff’s testified they had no inclination that Mr
Du Toit would not be called. Mr Weideman,
the 9
th
plaintiff, accepted Mr Du Toit’s calculating of his farm’s
affected area since it accorded with his own calculation.
Mr
Matthee who testified on behalf of the 8
th
plaintiff, accepted Mr Du Toit’s calculation of the 8
th
plaintiff’s affected area as 300 hectares. It also
accorded with the 8
th
plaintiff’s claim. The acceptance of these plaintiffs’
reliance on Mr Du Toit’s report was thus not done
in a vacuum.
It is rather disingenuous of the applicant, at this stage, to contend
that their own expert was not qualified
to report on such aspects.
20.
In the circumstances I am of the view that the applicant would not
have a reasonable prospect of success on appeal and the application
thus stand to be dismissed.
The
following order is made:
The
application for leave to appeal is dismissed with costs.
____________________________
C
C WILLIAMS
JUDGE
For
Applicant:
Adv. FR Memani
Mjila & Partners
For
Defendent:
Adv. B Knoetze (SC)
Elliott Maris Wilamans &
Hay