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[2018] ZAKZDHC 24
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Mondi Shanduka Newsprint (Pty) Ltd v Murphy (1419/2006) [2018] ZAKZDHC 24; 2018 (6) SA 230 (KZD) (4 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL LOCAL DIVISION, DURBAN
Case
No: 1419/2006
In
the matter between:
Mondi
Shanduka Newsprint (Pty)
Ltd Plaintiff
and
Clive
Paul
Murphy Defendant
Judgment
Lopes
J:
[1]
This matter has a most unfortunate history, which may be summarised
as follows:
(a) The plaintiff, Mondi
Shanduka Newsprint (Pty) Ltd (‘Mondi’) issued a summons
against the defendant, Clive Paul Murphy
on the 13
th
April
2006. Mondi’s cause of action was that on the 18
th
September 2004 a fire had started on the property of Mr Murphy, which
eventually spread to, and destroyed, a forest on the nearby
Linwood
Estate. Mondi owned the Linwood Estate and conducted a
commercial forestry enterprise from those premises.
Mondi’s
claim was founded in delict, read with the provisions of the National
Veld and Forest Fire Act, 1998, and relying
on allegations that Mr
Murphy had not prevented the spread of the fire as he should have
done.
(b) The trial started
before Ndlovu J, and was heard on the following dates:
(i) 7
th
March 2011 to the 18
th
March 2011;
(ii) 30
th
April 2012 to the 11
th
May 2012;
(iii) 23
rd
September 2013 to the 27
th
September 2013; and
(iv) 10
th
November 2014 to the 15
th
of November 2014.
(c) On the 15
th
November 2014 the matter was adjourned for the hearing of argument.
(d) For various reasons
argument was only heard on the 13
th
August 2015. The
record ran to some 1691 pages, and Mr Murphy’s heads of
argument to 290 pages.
(e) On the 19
th
April 2017 Ndlovu J passed away. He had not yet delivered
judgment. The parties then concluded an agreement on the 30
th
August 2017, purporting to regulate to the future conduct of the
matter. The agreement provided that:
(i) The parties would not
conduct a trial
de novo
;
(ii) The Judge President
of this division was to be requested to allocate a Judge, who would
consider and decide the matter by reading
all the available written
information including the pleadings, transcripts of the evidence,
expert reports, heads of argument and
any notes which may have been
made by Ndlovu J;
(iii) Legal argument
would be presented to the allocated judge prior to his deliberations.
(f) The agreement between
the parties contained various other provisions.
(g) The Judge President
then placed the matter before Olsen J, who, on the 22
nd
September 2017 addressed the parties in writing, raising certain
concerns which he had with the procedure which was suggested.
Thereafter, the parties agreed that the matter would not proceed
before Olsen J, because he had alerted the parties to the fact
that
he had previously worked with one of the experts.
(h) The matter was then
handed to me, and on the 15
th
December 2017 I convened a meeting with the parties’ attorneys
in chambers. At the request of the parties, and with
the
consent of the Judge President, it was agreed that I would allow the
parties an opportunity to address me on the proposed agreement.
The
parties were notified that I was available to hear argument on the
14
th
February
2018. Because of the unavailability of counsel from time to
time, the matter was eventually heard before me on the
17
th
May 2018.
[2]
Mr
Daniels
SC, who
appeared for Mondi together with Ms
De
Villiers-Golding,
recorded that the parties
wish to finalise the action. The delays have distressed the parties
and left them in an unhappy state.
The parties have resolved
that they do not wish to indulge in a reheard trial at great cost,
both in terms of time and money.
It is probable that some of
the witness may no longer be available. Even if they are
available, they would be required to
recall events which occurred
some 14 years’ ago, and they would be cross-examined on their
memory of those events, and the
evidence which they gave at the trial
which ended some three years’ ago. Mr
Daniels
submitted that the parties have been let down by the legal system,
and it was incumbent upon the court to assist in remedying the
situation with the least prejudice to the parties. I am to consider
whether the agreement by the parties can be implemented, in
order to
have the matter determined on the record.
[3]
Mr
Daniels
recorded
that the parties considered the option of arbitration. The
problem with this approach is that the parties would
have to pay the
considerable costs of an arbitrator dealing with the extensive
record, as well as the possibility of an arbitration
appeal board
having to be appointed to settle any dispute arising from the
decision of the arbitrator. Those are all factors
which, if
dealt with by the judiciary, will not result in as much additional
expenditure by the parties.
[4]
The concerns raised by Olsen J include the following:
(a) The default rule
where a judicial officer dies before giving judgment in a trial is
that the case starts
de novo
before their replacement.
(b) Whereas an arbitrator
may deal with, and decide a case, upon instructions given to him by
the parties, judges are not in the
same position. Judges are
required, in accordance with their oath of office, to decide cases
according to the law and practice
of the court. There are
limits to the exercise of the discretion of a judge to depart from
ordinary principles and practices,
because of the particularities of
a case.
(c) A judge reading the
record alone would have to resolve disputes of fact and conflicts
between the evidence of the lay witnesses
as well as the expert
witnesses. This could involve the making of credibility
findings in circumstances where the judge has
not had the advantage
of seeing the witnesses.
(d) In the normal course,
findings of fact made by trial courts are not departed from on appeal
save in exceptional circumstances.
The reason for this is that
the trial judge is steeped in the trial, and has had the benefit of
seeing and hearing the witnesses
at first hand. This assists in
helping the judge to determine where the truth lies, and how the
probabilities affect that
decision. If this matter went on appeal,
each judge of appeal would be in the same position as the judge who
read the record. As
the judge who read the record would not have had
the benefit of assessing credibility, the judges on appeal will be in
no different
a position. The appeal court will have no decision
to which to defer in the assessment of credibility, and the treatment
of witnesses and their evidence.
(e) The agreement
concluded between the parties does not set out how a judge is
required to determine the facts of the case, or
deal with issues of
credibility. This may be extremely important when it comes to the
assessment of experts. Findings of credibility
in the case of experts
may well affect their livelihoods and the esteem in which they are
held by the legal profession, if they
regularly appear as experts.
(f) The ordinary rules
applicable to the hearing of opposed motions do not allow for the
resolution of disputed facts, save in very
limited circumstances.
[5]
Mr
Daniels
submitted
that the difficulties raised were not insurmountable. He
submitted that the agreement of the parties did not anticipate
the
court deciding the matter on the record by applying the rule in
Plascon-Evans Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
.
He agreed that such an approach was not acceptable for resolving
disputes of fact in trial matters, where
viva
voce
evidence has been given. Mr
Daniels
referred to the judgment of Nienaber JA in
Stellenbosch
Farmers’
Winery
Group
Ltd and Another v Martell Et Cie and Others
2003
(1) SA 11
(SCA). This judgment sets out how to resolve factual
disputes by reference to credibility, reliability and the
probabilities.
In the event that an impasse was reached where a
disputed fact could not be decided on the papers, then the onus would
be applied,
and would be decisive of the matter. He submitted
that no different or new approach to evidence was being suggested,
and
that the evidence disclosed in the record must be assessed where
it is necessary to do so.
[6]
Mr
Daniels
submitted that plaintiff’s case can be
determined upon the version of Mr Murphy with only two broad factual
issues requiring
determination:
(a) Why did the fire
start?
(b) Where did the fire
start, and what happened to it?
There
is a considerable area of dispute on why the fire started,
specifically relating to the keeping by Mr Murphy on his property
of
quantities of sawdust. That is contrasted against the probabilities
of the fire having been started by persons seeking honey.
There
was a considerable dispute between the experts on this issue.
Mondi’s case was based upon the negligence of Mr
Murphy in not
properly maintaining the sawdust pits, and the fact that the pits
themselves constituted a fire hazard. Mr
Daniels
submitted that there was no certainty as to exactly where or how the
fire started, but the statute required that if the fire started
on a
person’s property, that person was required to extinguish it or
prevent it from spreading. That is the plaintiff’s
case, and
the credibility and reliability of witnesses is less important.
[7]
Mr
Daniels
conceded that there is no recorded case on all
fours with the present situation. It is, however, a situation
which must have
arisen many times in the past. He accepted that
the default position was that set out by Olsen J -ie- that the
parties should
start the matter
de novo
before another judge.
He submitted that for the reasons set out above, it would simply be
inconvenient and impractical for
the parties to attempt to do so, not
to mention the enormous costs which will be involved. Mr
Daniels
referred to
St Paul Insurance Co SA Ltd v Eagle Ink
System (Cape) (Pty) Ltd
2010 (3) SA 647
(SCA), as authority for
the proposition that the matter could simply be decided on the
papers. In that case Knoll J had presided
at a trial during which
reliance was placed on a policy of insurance. The learned judge
had died before she could deliver
judgment. By agreement
between the parties a transcript of the evidence, together with the
documentary exhibits, were placed
before another judge who heard
further argument. The Supreme Court of Appeal described the
procedure which had been followed
as ‘eminently sensible’
and referred to
Mhlanga v Mtenengari and Another
1993 (4) SA
119
(ZS).
[8]
Mhlanga
is authority
for the proposition that a record may be placed before another judge
where a judicial officer is unable to complete
a part-heard civil
trial. His successor should commence with the trial
de
novo
, notwithstanding that to do so would
involve rehearing witness who had already testified and would be
adducing their evidence afresh.
In
Mhlanga
reliance was placed on the cases of
Philipp v
Lindau
1948 (1) SA 1033
(SWA) 1036 and
Protea
Assurance Co Ltd v Gamlase and Other
1971 (1)
SA 460
(E) at 465A. In
Mhlanga
,
Gubbay CJ recorded that the desirability of hearing the trial
de
novo
is self-evident, because a judicial
officer would otherwise be deprived of the substantial advantage of
seeing and hearing the
witnesses for himself, and of being able to
compare their demeanour with that of the witnesses who testified in
the trial before
him.
[9]
Gubbay J recorded that the attitude of the litigants in such a
situation was of the utmost importance, and it was not for the
judicial officer to dictate that the trial is to recommence at the
point reached by his pre-assessor, although, this depended on
the
nature and extent of the evidence led, which might appear to him to
be desirable in order to avoid wasted costs, time and inconvenience.
Only if the parties agreed that the trial should be continued, should
the new judicial officer rely on a transcript of the proceedings
thus
far, as evidence before him. In the absence of consent, the trial
must start afresh.
[10]
Gubbay J also referred to the following cases in support of his
conclusion:
(a)
Samuel and Others
v Seedat
1949 (3) SA 984
(N) where a magistrate trying a case had
fallen ill, and the matter was then placed before another magistrate,
with the parties
agreeing that the evidence already given should form
part of the record. The second magistrate gave judgment for the
respondent.
A preliminary point was taken on appeal that the second
magistrate had no jurisdiction to continue the case, because he had
not
heard the evidence of the witnesses who testified before the
first magistrate. That contention was dismissed by Selke J, who
was of the view that the parties had obviously agreed to the
procedure followed. The only limitation was whether the second
magistrate,
by being confined to reading the notes of the evidence
taken by his pre-assessor, was deprived of the benefits which he
would have
had by seeing and hearing the witness who gave the
evidence in the notes.
Gubbay CJ did not regard
that limitation as being justified. He said that he could
conceive of no basis why the wishes of
the parties should not hold
sway, even though the trial before the original judicial officer may
have reached an advanced stage.
He did not believe that it was
correct for the second judicial officer to override the decision of
the parties and insist that
the trial start
de novo
.
(b)
Greenblo v Levitt
1914 CPD 244
, was a matter which came before three different
magistrates. The first one postponed it, the second one heard
part of the
evidence, and the matter was then postponed for the
taking of interrogates in order to confirm the evidence. The parties
agreed
that all the evidence could be accepted before any other
magistrate who might further try the case. This was because the
second magistrate was a relieving magistrate, only temporarily
available. The third magistrate heard the remainder of the
matter and the interrogatories, and decided the disputes on the
merits. On appeal there had been no suggestion that he ought
to
have ordered the
viva voce
evidence to be led afresh.
(c)
The
Forest Lake:
Owners of the
Steamer
Janet Quinn v Owners of the Motor Tanker Forest Lake
[1966] 3 ALL ER 833
(PDA). Here, a collision involved foreign ships
and certain witnesses had their evidence taken fully, and were
cross-examined.
The case was adjourned part-heard, and in the interim
the judge fell ill and retired. Pursuant to the rules of the
Supreme
Court an order was made that the trial be heard
de
novo
before another judge. An
application was then brought requesting that the trial be restored
using the evidence already given
by the original judge. The judge
hearing the application opined that the real point needing
consideration was whether the circumstances
of the case compelled the
court to start again at the beginning and call
de
novo
all those witnesses who were still
available. It was considered that to do with be both difficult
and expensive. Some
of them may not have been available.
The learned judge decided that the correct course was to do what both
counsel had asked
the court to do, and accept as evidence the
evidence led before the first judge.
[11]
Gubbay J recorded that he was firmly of the view that if the parties
agreed that the previous evidence be placed before the
new judge, he
should give effect to their wishes. It was not for the new judge to
direct, contrary to the will of either one or
both of the parties,
that the record of evidence given before his pre-assessor be produced
as evidence at the hearing over which
he was about to preside.
In the circumstances of
Mhlanga
,
neither counsel protested the ruling that the trial was not to start
afresh. The defendant’s counsel knew and understood
that
he would have had to cross-examine the second plaintiff, without
having the opportunity of having cross-examined the first
plaintiff
and her witnesses. Gubbay decided that if either counsel had
considered the procedure prejudicial to their case,
that would have
been communicated to the presiding judge. Both counsel, were
experienced, chose not to speak out, and remained
silent. They were
taken to have acquiescenced in the procedure adopted by the learned
judge.
[12]
Mr
Daniels
conceded
that what was at issue in
St Paul
was
the interpretation of clauses in an insurance policy. It does
not appear from the record that any assessment of the witnesses
was
required to be made by the learned judge a quo.
[13]
In my view the present matter is distinguishable from the facts of
St
Paul
. In this case six witnesses
testified for Mondi and five witnesses testified for Mr Murphy. They
included two experts, Mr
Henderson for Mondi, and Mr Dickson for Mr
Murphy. The heads of argument prepared for Mr Murphy by the late Mr
Hewitt, (who passed
away shortly before the hearing before me), dealt
at length with the evidence of Mondi’s expert. The
arguments which
he set forth undoubtedly call for a finding of
credibility to be made. There are also other material disputes of
fact which are
evident on the record, and which were raised in the
heads of argument. They include the exact place where the fire
started,
the cause of the fire, when Mr Murphy became aware of the
fire, and the reasonableness of the steps which were taken in order
to
prevent it from spreading.
[14]
What is significant about the decision of the Gubbay J in
Mhlanga
is that he was faced with a fait accompli.
The parties had agreed to a procedure, had followed it, and were now
on appeal,
with the loser complaining that the procedure had not been
the correct one.
Mhlanga
is in any event distinguishable on the basis that the plaintiff’s
case had not yet been closed. The plaintiff was in a position
to lead
further witnesses, and they were able to be cross-examined by the
defendant’s counsel who could work from the record
of
proceedings thus far. Counsel would also have been able to raise any
objections they wished to the procedure to be followed,
if they
concerned that their clients’ case would be prejudiced.
[15]
In
Philipp,
Brebner AJ
considered whether the costs of an appeal, which was heard, but not
decided, by a preceding incumbent of the bench,
could be decided.
Brebner AJ recorded that in the case of the death of a judge before
giving judgment, the case must be heard
de
novo
and the costs of the abortive
proceedings cannot be claimed by one party against the other. In
Protea Assurance
, Hart
AJ was required to consider an application for leave to continue
in
forma pauperis
in an action which had already
been instituted. The learned acting judge decided that he would
follow the precedent in
Charmfit of Hollywood
Inc v Registrar of Companies and Another
1964
(2) SA 765
(T) in directing that the application before him proceed
de novo,
as if it has
not been heard. He further ordered that the costs of the
aborted hearing, before the judge who did not complete
the
application, should be costs in the application between the parties.
[16]
In
Charmfit
,
Trollip
J was required to deal with the costs of an
abortive previous hearing which came before the late Mr Justice
Kuper
who heard argument, but died before giving judgment.
Trollip
J took a different view from that of
Brebner
AJ in
Philipp.
He
held that the court retained full jurisdiction and discretion with
regard to the costs of the uncompleted hearing, and, in the
interests
of finality, was able to make any order of costs. An order was
simply then made that the costs would be costs in
the cause of the
proceedings.
Charmfit
concerned an application to compel the Registrar of Companies to
change a company’s name. It did not, as I understand
the
matter, involve a hearing with witnesses who gave evidence on the
merits.
[17]
In
P Lorillard Co v Rembrandt Tobacco Co
(Overseas) Ltd
1967 (4) SA 353
(T) an appeal
came before three judges. Shortly before the hearing started,
counsel applied to amend his grounds of appeal,
and the matter was
adjourned. The matter then again came before the appeal court
without the grounds of appeal having been
amended. The first
three judges of appeal were not available to hear the matter and it
came before a differently constituted
court. With regard to the
question of a part-heard civil matter coming before a differently
constituted court, the full court
held that the attitude of the
parties was of the greatest importance. As long as their
agreement was not in conflict with
any statutory provision or rule of
law, they could agree to a new trial or hearing before a differently
constituted court as well
as, within limits, the production of
evidence at the new trial. Relying on
Samuel
and
The
Forest
Lake
decisions, the court held that in the
absence of the original appeal court, the parties could agree to a
new hearing before the
subsequently constituted appeal court.
[18]
In addition to the above cases Mr
Daniels
also referred me to
Rowe v Assistant
Magistrate, Pretoria and Another
1925 TPD
361.
A magistrate sought to import into a case before him, his
knowledge of certain customs. In order to substantiate his view he
arranged
for a witness to be called, who was not an expert, but who
testified to the custom.
Curlewis
JP recorded that in a civil action the parties may lay before a court
what evidence they think necessary to support their respective
cases. If the presiding officer is unable to decide where the
truth lies, then the question of onus becomes decisive.
The
court may not call a witness except with the express or tacit consent
of the parties to such an action.
[19]
Mr
Daniels
submitted
that in the event that I were to hear the matter, having read the
record of the proceedings, I would be no worse off
than if the matter
had been decided before the late Ndlovu J. It is only where the
evidence is contested that it would be
necessary to assess it, and to
make a decision on which version should be accepted.
Credibility is but one of the aids available
to a court in arriving
at a proper decision. Mr
Daniels
submitted that the interests of justice demand that the agreement
concluded between the parties be given effect to, and that the
matter
be heard on the basis set out in the agreement.
[20]
Mr
McIntosh
who
appeared for the defendant recorded that he agreed with the
submissions of Mr
Daniels,
and that the task which faced a judge in hearing the matter was no
different to one where evidence was taken by way of a
commission
de bene esse
or Interrogatories. In
those matters evidence is taken from a witness who would otherwise
not be able to testify at the trial.
If the witness is able to
testify at the trial, he has to give his/her evidence
viva
voce.
An applicant for a
commission
de bene esse
is required to show that it is
convenient or necessary for the purposes of justice that evidence
should be put before the court
in that manner. A court retains
a judicial discretion to decide whether in all the circumstances
evidence should be obtained
on that basis. As a general rule
commissions are granted where the witnesses are outside the
jurisdiction of the court and unwilling
to attend upon the court.
The taking of such evidence is usually done at the time that
pleadings close in an action.
With regard to interrogatories,
questions are formulated for the purpose of being put to a witness by
a commissioner. The
same requirements as in commissions apply
in the case of interrogatories.
[21]
In my view none of the arguments advanced before me, nor the cases
cited in favour of the matter being heard as sought by the
parties,
have provided a solution to the problem that matters of credibility
cannot be dealt with in the manner suggested by the
parties.
There are numerous disputes of fact and expert opinion in the record
of the proceedings, and a determination of
those would be crucial to
any decision.
[23]
Whilst the parties may well place whatever evidence they wish before
a civil court, the court still has to decide the matter
on the
applicable principles of law. Parties may, for example, agree
that a certain fact can be accepted by the court as
being true, when
there is no documentary or
viva voce
evidence
to support the finding of fact. In this way parties to civil
actions may agree to limit, to some extent, the role
of a judicial
officer in determining matters. That is a very different thing,
however, to parties being able to dictate to
a judge how to exercise
his oath of office by restricting the judge’s adherence to
legal principles, statutes, and precedents.
Given the number of
conflicts of fact and expert opinion in this case, I am of the view
that a judge would not be able properly
to determine the matter upon
a mere reading of the record.
[24]
It is also no answer to the above to suggest that one can simply
apply the tests set out in
Stellenbosch
Farmers Winery
for the resolution of
disputes. That is because the first two aspects referred to by
the learned judge of appeal are the credibility
of the factual
witnesses and their reliability. The very fact that they cannot
be decided merely on paper is recognised in
Plascon-Evans
and provides a limitation on the ability of judges to make such
decisions, except in special circumstances. This matter is
distinguishable from the situation where a case is part-heard, and
the judge may recall one or more witnesses (who have recently
testified) in order to clarify any per clued uncertainty.
[25]
Were I merely to override those considerations, albeit with the
consent of parties, I have serious doubts as to whether I would
be
fulfilling my oath of office by allowing the parties to a civil
action to restrict the ordinary performance of my duties.
[26]
The conclusion to which I have come is no doubt most unfortunate for
the parties, and one which will not be welcomed by them.
In the
circumstances I make the following order:
(a) The application that
I recognise and follow the agreement concluded between the parties
with regard to the future conduct of
this action is refused;
(b) Should the parties
wish to continue with the trial in the High Court, they are required
to start the proceedings
de novo
.
____________________
Lopes
J
Dates
of hearing: 17
th
May 2018.
Date
of Judgment: 4 June 2018.
Counsel
for the Plaintiff: Mr J
Daniel
s SC and Ms
de
Villiers-Golding
(instructed by Allen & Overy).
Counsel
for the Defendant: Mr
K McIntosh
(instructed by Askew &
Associates).