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[2017] ZANCHC 38
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Sol Plaatjie Municipality v Ramosie (1872/15) [2017] ZANCHC 38 (17 May 2017)
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HIGH
COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE
NO: 1872/15
In
the matter between:
SOL
PLAATJIE
MUNICIPALITY
APPLICANT
and
CHARLES
TSHEPO
RAMOSIE
RESPONDENT
Coram:
Lever AJ
JUDGMENT
L
Lever AJ
1.
This is an
application under the provisions of the Prevention of Illegal
Eviction From and Unlawful Occupation of Land Act
[1]
(PIE) to evict Mr Ramosie, the respondent, a fire fighter employed by
the applicant, from flat number 7, section: Emergency Services,
situated at [...] L. R. K. (the premises).
2.
The delivery of the judgment in this matter has
been delayed. The main reasons for the delay
inter
alia
include: The respondent filed his
heads of argument on the 4 November 2016 but this first set of heads
made reference to things
witnesses were alleged to have testified
about without any indication where this could be found on the record,
an undertaking was
given to file a proper set of Heads; and the
respondent was convicted of statutory rape and the court that
convicted him ordered
that his name be entered on the Register of
Sexual Offenders and attempts were made to verify this.
3.
Dealing with these causes of delay, firstly, the
Matter was heard on the 9 November 2016 and I allowed the matter to
proceed on
that date on the strength of an undertaking from Mr Venter
that heads with proper references to the relevant tracts on the
record
would be filed by Monday 14 November 2016. These heads were
only filed on the 24 November 2016 and took a further few days to
reach
my chambers.
4.
The second reason for the delay, being that
enquiries were made to establish whether the respondent’s name
was indeed on the
Register of Sexual Offenders. The Registrar of this
Court has been in correspondence with the Administrator of the
Register of
Sexual Offenders. As at the date of this judgment I am
informed that no clear answer has been received for the Administrator
of
the Register of Sexual Offenders. I decided not to delay this
judgment any further. My reasons for making the decision are: It was
never disputed by the respondent that the trial court that convicted
him ordered his name to be placed on the Register of Sexual
Offenders; If his name does not appear on the said Register, this is
nothing more than an administrative error; and this was not
the only
reason for the court reaching the conclusion set out below.
5.
Turning back to the present application. A
similar application was brought by the applicant against the same
respondent for essentially
the same relief under case number 1899/14.
This application was dismissed on technical grounds, hence the
present application which
ostensibly sought to correct the defects in
the preceding application. At least one preliminary legal point
raised by the respondent
flows from the dismissal of this earlier
application. I will return to these preliminary legal points
presently.
6.
Mr Ramosie, the respondent, is employed by the
applicant as a fire fighter who works shifts. Subject to certain
internal procedures,
which are also in dispute, he would ordinarily
qualify for housing at the fire station, such as the premises he
presently occupies.
However, one of the issues in dispute is whether
the said premises were properly allocated to him or whether the
respondent improperly
took possession of the said premises.
7.
A further aspect of the respondent’s
background that is relevant to the applicant’s case is that on
the 26 June 2012,
the respondent was found guilty of statutory rape
and was sentenced to three years imprisonment which was wholly
suspended for
five years. As a result of this conviction, the
relevant trial court ordered that respondent’s name be entered
into the Register
of Sexual Offenders.
8.
The basis upon which applicant’s submission
that the entry of respondent’s name into the Register of Sexual
Offenders
is relevant to the present application, is that other fire
fighters with children reside on the same premises. The premises
concerned
is adjacent to the fire-station. In the context of the fire
department, the said premises are an extension of the respondent’s
and other fire fighters’ work environment. As when they work
shifts and are on duty, they are required to stay either in
the
singles quarters or in their flats adjacent to the fire station. That
by law the applicant could not allow the respondent access
to
children in the work environment. That if the applicant allowed the
respondent to remain on the premises, in the circumstances
it would
allow the respondent access to such children in the extended work
environment.
9.
I pointed out to Mr Gilliland, who appeared for
the applicant, that the mere eviction of the respondent from flat
number 7 would
not solve this problem. The evidence established that
the applicant as a fire fighter employed on shifts would have to be
accommodated
at the fire station while he was on duty. That if he did
not ordinarily reside on the relevant premises adjacent to the fire
station,
whilst on duty he would be accommodated in the singles
quarters on the same premises. Which would still allow the respondent
access
to children in his extended work environment.
10.
In response to my concerns, Mr Gilliland made
what was described as a tender, which was reduced to writing and
handed up as exhibit
“X21”. Whether or not this is
properly described as a tender is not an issue that needs to detain
the court further.
It may more properly be described as an
“undertaking”. In any event the terms of the tender or
undertaking read as
follows: “1.
Respondent will be redeployed to either Ritchie or Galashewe. 2.
Respondent
will be accommodated in single quarters at Ritchie or
Galashewe while he is working shifts.” Mr Gilliland informed me
that
there were no families resident at Ritchie or Galashewe and thus
the respondent would not have access to children in his work
environment.
It may be necessary to return to this undertaking later
in this judgment.
11.
When the application was originally heard, it
became necessary to refer two questions to oral evidence. The two
questions that were
referred to oral evidence are:
11.1.
“
Whether the flat committee had the
authority and authorised Respondent to take occupation of flat […]
situated at Section:
Emergency Services of the Sol Plaatjie
Municipality situate at [...] L. R., Kimberley”; and
11.2.
“
Whether the letter dated 22 July 2014 as
appears at page 32 of the indexed court papers was served on the
Respondent.”
12.
The court must first decide certain issues in the
nature of special pleas or preliminary matters raised on the papers,
being:
12.1.
The special plea of
res
judicata
;
12.2.
The plea that the person who brought the present
application on behalf of the applicant has not established his
authority to bring
the present application; and
12.3.
The plea of irregular service of the notice in
terms of PIE. However, this plea was abandoned by respondent when
heads of argument
were filed on his behalf. Accordingly, the issue
relating to the service of the PIE notice need not enjoy any further
attention.
13.
Then, in the event that the special pleas are
unsuccessful, this court must decide the two issues that were
referred to oral evidence.
The relevant issues have already been
quoted above.
14.
Finally, and again in the event the special pleas
are unsuccessful this court must decide, in the particular
circumstances of this
case, and depending on the findings referred to
oral evidence, whether the respondent should be evicted from the
premises. Further,
if the court finds that respondent ought to be
evicted from the premises, when such eviction should take place and
whether or not
any further special provisions are required in the
Order this Court issues.
15.
Turning now to the first of the two remaining
preliminary matters, being the special plea of
res
judicata
. The basis of this plea is the
judgment of my sister Mamosebo AJ (as she then was) in case number
1899/2014. This was an application
where the parties were: the
present applicant, who was also the applicant in that matter; the
present respondent who was the first
respondent in that matter; and a
witness in the present application, Irene Nombuyiselo May (Bungxu)
who was the second respondent
in that matter. Although the second
respondent in case number 1899/2014 was not a party to the present
application, the parties
to that application and the parties to the
present application are substantially the same.
16.
In case number 1899/2014 the applicant sought
inter alia
the
eviction of the respondent. Which is essentially the relief sought
against the respondent in the present matter.
17.
In her judgment delivered on the 2 December 2014
Mamasebo AJ discharged the
rule nisi
and
dismissed the eviction application with costs on the basis that the
deponent to the applicant’s affidavits and the Municipal
Manager had not established their authority to bring such application
on behalf of the applicant. In her judgment Mamasebo AJ specifically
and expressly said that she did not deal with the merits of the said
application.
18.
Mr Venter,
who appeared on behalf of the respondent, relying on a passage from
Herbstein & Van Winsen
[2]
submitted that the defence of
res
judicata
can
be successfully raised where a judgment in an earlier case was given
in a dispute between the same parties, for the same relief
on the
same ground or on the same cause of action.
19.
Mr Venter then goes on to submit that respondent
has established that the present application is between the same
parties. That
it involves the same relief and that such relief is
sought on the same basis ie on the same cause of action. He then
submits that
the application should be dismissed with costs on an
attorney and own client scale.
20.
What Mr
Venter fails to appreciate is, that it is implicit in the passage in
Herbstein & Van Winsen that he cites in relation
to the
requirements for a plea of
res
judicata
that
in determining if the relief is based on the same cause of action,
that the merits of such cause of action must have been finally
determined by the court upon whose judgment his client seeks to rely,
in raising the plea of
res
judicata.
In fact, our courts have historically and consistently held that for
a plea of
res
judicata
to
be upheld the original judgment must finally determine the merits of
the cause of action between the parties.
[3]
21.
In her judgment in case number 1899/2014 Mamosebo
AJ specifically and directly stated that she had not considered nor
dealt with
the merits of the matter. It is clear that in case number
1899/14 the matter was decided entirely on the issue of authority.
Accordingly,
the respondent has not established that the matter
is
res judicata
and
this special plea is dismissed with costs.
22.
Turning now to the question of authority to bring
the present application. The respondent challenges the authority of
the officers
who acted on behalf of the applicant in launching the
present application. The respondent maintains that the applicant has
not
established their authority to launch the present application.
23.
The deponent to the founding affidavit is the
applicant’s Municipal Manager. The fact that he is indeed the
Municipal Manager
is not in dispute. In order to consider the
question whether this application was properly authorised, it is
necessary to quote
the relevant passages of the founding affidavit,
which read:
“
2.
My authorisation to depose this affidavit on behalf of the Applicant
is based on the following:
2.1 The Municipal
Council of the Applicant delegated the authority to institute legal
proceedings on behalf of
the applicant to me in my stated capacity as
Municipal Manager;
2.2 In terms of the
existing delegating authority of the Applicant the aforesaid
authority was delegated by me
in my capacity as Municipal Manager to
the Executive Director: Corporate Services of the Applicant. A copy
of the relevant pages
of the existing delegation register of the
applicant confirming this delegation is attached as annexure “GHA1”
hereto;
and
2.3 The current
Executive Director: Corporate Services, namely Kootsi Ruth Sebolecwe,
decided to institute these
proceedings on the Applicant’s
behalf as is evident from her confirmatory affidavit which is
attached as annexure “GHA2”
hereto and she requested me
to depose this affidavit in the light of her decision she took in
this regard.”
24.
It is evident from the delegation annexed to the
founding papers, read with the confirmatory affidavits filed that the
relevant
formalities required by the said delegation had been
complied with.
25.
It is evident from the passages in the founding
affidavit quoted above, that the Municipal Manager states the source
of his authority
and the authority to launch the present application
expressly.
26.
The respondent in his answering affidavit states
the Council resolution adopting the said delegation of powers was not
annexed to
the founding papers. The applicant then filed the relevant
Council resolution to its replying affidavit.
27.
Mr Venter who appeared on behalf of the applicant
submitted that it is trite law that an applicant must make his case
in his founding
affidavit and that the applicant had not done so
because the relevant resolution was only annexed to applicant’s
replying
affidavit. Mr Venter then submitted that the applicant had
failed to prove the necessary authority to institute these
proceedings,
that the application for eviction should be dismissed
with costs on an attorney and own client scale.
28.
Whilst it
is true that the best evidence of the authority to launch the present
application would have been the Municipal Manager’s
affidavit
together with the relevant resolution. This is not required in every
case.
[4]
As
Watermeyer J (as he then was) said: “Each case must be
considered on its own merits and the Court must decide
whether enough
has been placed before it to warrant the conclusion that it is the
applicant which is litigating and not some unauthorised
person on its
behalf.”
[5]
29.
The present
application is clearly distinguishable on the facts from the case of
Kouga Municipality v South African Local Government
Bargaining
Council and Others
[6]
where no
resolution was placed before the court. In the present application,
the Municipal Manager has made specific averments
about his
authority. When challenged by the respondent to do so the relevant
resolution was placed before the court albeit in reply.
In my view,
there are sufficient factual allegations to establish that indeed it
is the applicant litigating. The relevant document
setting out the
delegations is sufficient and compelling evidence to establish that
the applicant is indeed litigating and not
some unauthorised person.
30.
The production of the relevant resolution in
reply is not unlike the procedure now dictated under Rule 7 of the
Uniform Rules of
Court. The respondent challenged the authority to
act on the basis that a resolution of Council was not produced. In
reply the
respondent produced the required resolution which placed
the matter beyond doubt.
31.
Accordingly, this second preliminary point also
stands to be dismissed with costs.
32.
Turning now to the issues referred to oral
evidence. The first question being whether or not the flat committee
had the necessary
authority to allocate a flat and indeed allocated
flat number 7 to the respondent, Mr Ramosie.
33.
On this question, the applicant called the
following witnesses: Mr Andrews the present chairperson of the flat
committee, who had
also been a member of the previous flat committee;
Mr Griesel, the logistics officer of the applicant’s fire
department;
Mr Pretorius the fire-chief and Mr Mornè Simons a
fire fighter employed by the applicant, whose application for a flat
was
acknowledged by all parties to be a special case.
34.
The respondent himself acknowledged that he had
no knowledge of the powers of the committee. In order to support his
version that
the flat committee had the requisite authority to
allocate a flat without having to refer the matter to management for
a final
approval, the respondent called the following witnesses: Mr
Solomon the Deputy Chairperson of the present flat committee and Ms
May, the Secretary of the present flat committee.
35.
The evidence adduced on behalf of the applicant
and the evidence adduced on behalf of the respondent is mutually
exclusive and their
respective versions are irreconcilable.
36.
The law on how to approach the evidence in such
situations has been set out in a number of cases, the essential
features thereof,
I will try to summarise hereunder.
37.
The Supreme
Court of Appeal (SCA) in the matter of SANTAM BPK v BIDDULPH
[7]
stated:
“
However,
the proper test is not whether a witness is truthful or indeed
reliable in all that he says, but whether on a balance of
probabilities the essential features of the story he tells are
true.”
[8]
38.
Then
dealing with the questions of ‘reliability’ and
‘credibility’ of a witness, the SCA in the matter of
COMMISSIONER, SARS v CAPSTONE 556 (PTY) LTD
[9]
,
in analysing those questions, concluded:
“…
The
credibility and reliability of the evidence of the witness (for the
taxpayer) must be determined in the light of the objective
facts and
inferences drawn therefrom, the probabilities and any evidence put up
in contradiction thereto.”
[10]
39.
In the case
of STELLENBOSCH FARMER’S WINERY GROUP LTD & ANOTHER v
MARTELL ET CIE & OTHERS
[11]
the SCA also analysed the question of how to resolve factual disputes
in evidence adduced before a court. The said analysis is
set out in
the following passage of the SCA’s judgment in the matter:
“…
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. As to (a), the courts finding
on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witnesses’ candour and demeanour
in the witness-box, (ii) his bias, latent and blatant,
(iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with
the established facts
or with his own extracurial statements or actions, (v) the
probability or improbability of particular aspects
of his version,
(vi) the calibre and cogency of his performance compared with other
witnesses testifying about the same incident
or events. As to (b), a
witnesses’ reliability will depend, apart from the factors
mentioned under (a)(ii), (iv) and (v)
above, on (i) the opportunities
he had to experience the or observe the event in question and (ii)
the quality, integrity and independence
of his recall thereof. As to
(c), this necessitates an analysis and evaluation of the probability
or improbability of each party’s
version on each of the
disputed issues. In the light of its assessment of (a), (b) and (c)
the court will then, as a final step,
determine whether the party
burdened with the onus of proof has succeeded in discharging it. The
hard case, which will doubtless
be the rare one, occurs when a
court’s credibility findings compel it in one direction and its
evaluation of the general
probabilities in another. The more
convincing the former, the less convincing will be the latter. But
when all factors are equipoised
probabilities prevail.”
[12]
40.
The
Appellate Division (AD), as it then was, in the matter of PEZZUTTO v
DREYER & OTHERS
[13]
stated
that where the evidence of a witness is left uncontradicted,
plausible and unchallenged in any major respect, there is no
justification for submitting the evidence to unduly critical
analysis.
41.
Mr
Gilliland, who appeared for the applicant, referred the court to an
instructive and comprehensive lecture given by Nicholas JA
at the
Oliver Schreiner Memorial Lecture delivered at the University of the
Witwatersrand on the 28 August 1984 on the “Credibility
of
Witnesses”
[14]
. In the
paragraphs that follow, I will be referring to a number of aspects
dealt with by Nicholas JA in the said lecture.
42.
On the subject of the veracity of a witness,
Nicholas JA stated:
“
A
witness is proved to be in error where his statements are
contradicted by the proved facts or where he is guilty of
self-contradiction.
… Yet error does not in itself establish a
lie. It merely shows that in common with the rest of mankind, the
witness is
liable to make mistakes. A lie requires proof of conscious
falsehood, proof that the witness had deliberately misstated
something
contrary to his own knowledge or belief”.
[15]
43.
In dealing with the situation where a witness has
been found to have lied on a particular aspect of his evidence,
Nicholas JA stated:
“
There
is, therefore, no rule that where a witness has lied his testimony
must be rejected without more ado – all that can
be said is
that a witness whose evidence has been shown to be deliberately false
on one point is liable to be regarded with suspicion
and distrust,
and the trier of fact
may
(not
must
) conclude that
his evidence on another point cannot safely be accepted.
The question is not
whether a witness is wholly truthful in all that he says, but whether
the court can be satisfied, beyond a reasonable
doubt in a criminal
case, or on a balance of probabilities in a civil matter, that the
story which the witness tells is a true
one in its essential
features.”
[16]
(references omitted)
44.
In dealing
with the issue of contradictions between witnesses Nicholas JA quotes
with approval a passage from the work of Professor
Starkie
[17]
:
“
The
consistency of testimony is also a strong and most important test for
judging the credibility of witnesses. Where several witnesses
bear
testimony to the same transaction, and concur in their statement of a
series of particular circumstances, and the order in
which they
occurred, such coincidences exclude all apprehension of mere chance
and accident, and can be accounted for only by one
or other of two
suppositions; either the testimony is true, or the coincidences are
the result of concert and conspiracy. If, therefore,
the independency
of the witnesses be proved, and the supposition of the previous
conspiracy be disproved or rendered highly improbable,
to the same
extent will the truth of their testimony be established.
So
far does this principle extend, that in many cases … the
credit of the witnesses themselves for honesty and veracity may
become wholly immaterial. Where it is once established that the
witnesses to a transaction are not acting in concert, then, although
individually they should be unworthy of credit, yet if the
coincidences in their testimony be too numerous to be attributed to
mere accident, they cannot possibly be explained on any other
supposition than that of the truth of their statement.”
[18]
45.
In dealing with this passage from the work of
Professor Starkie, quoted above, Nicholas JA concludes:
“
It
follows that an argument based only on a list of contradictions
between witnesses leads nowhere so far as veracity is concerned.
The
argument must go further, and show that one of the witnesses is
lying. It may be that the court is unable to say where the
truth lies
as between contradictory statements, and that may affect the question
whether the onus of proof has been discharged:
but that has nothing
to do with the veracity of the witnesses.”
[19]
46.
In dealing with the question of the demeanour of
a witness, Nicholas JA stated:
“
The
deportment of witnesses in the box and the impression they make upon
a trial court is often of great importance. ‘But
a finding of
credibility based baldly on demeanour alone is not satisfactory.’
For demeanour can often be misleading.”
[20]
(references omitted)
47.
On the subject of crosscurrents, Nicholas JA
said:
“
A
witness is liable to be deflected from the course of truth by
crosscurrents operating in his mind. … These crosscurrents
include partiality, prejudice, self-interest and corruption. Their
range is great, from the gross to the subtle and their forms
are
protean. They may be so powerful as to lead to outright lying. They
may be such as to lead to dilution or colouring of the
evidence, to
the suppression of inconvenient facts, or to additions.”
[21]
and
“
Although
crosscurrents may influence the evidence of a witness, they do not
necessarily do so, nor do they raise any substantial
probability of
falsehood. The existence of one or more of these factors is a ground
for caution in the assessment of the evidence
of a witness, but it is
no more than that, and certainly it is not in itself a ground for
preferring the evidence of another witness
who has no interest.”
[22]
48.
In discussing the question of the reliability of
a witness, Nicholas JA said the following:
“
Here
one is concerned, not with defects in moral character, but with the
human tendency to honest mistake.”
[23]
49.
Further, on
the subject of witness reliability Nicholas JA sets out certain
experiments conducted by experimental psychologists
on the ability of
a number of persons to observe and recall the details of an incident
that all observed in the same manner and
at the same time.
[24]
Remarking on the results of such experiments, Nicholas JA concluded:
“
In
the light of the experimental evidence, it is not surprising that the
eyewitness accounts are often not an accurate representation
of
reality, and that there are often profound differences in eyewitness
accounts of the same event, even when it is observed by
witnesses
under the same external conditions.
This
shows the futility of the exercise, frequently performed by
cross-examiners, of raking at tedious length over the evidence
of
different eyewitnesses in order to uncover contradictions, variances,
omissions, discrepancies, differences and inconsistencies.
For the
most part it shows no more than what is to be expected, namely that
eyewitnesses differ from one another in their accounts
and are liable
to error.”
[25]
50.
Then Nicholas JA again goes on to quote Professor
Starkie with approval, and sets out the following quote from his
work:
“…
partial variances in the
testimony of different witnesses, on minute and collateral points,
although they frequently afford the
adverse advocate a topic for
copious observation, are of little importance, unless they be of too
prominent and striking a nature
to be ascribed to mere inadvertence,
inattention or defect of memory.”
[26]
51.
Finally, Nicholas JA discussed how the issue of
‘probability’ came into the assessment of oral evidence
and pithily
set out the relationship between such evidence and the
issue of probability as follows:
“
This
is a matter which concerns, not the credibility of the witness as
such, but the credit to be given to his story by reason of
its
inherent probability or improbability. Where an assertion is regarded
as improbable, belief is slow and difficult.”
[27]
52.
Mr Gilliland also correctly pointed out that the
cross-examination of the applicant’s witnesses conducted on
behalf of the
respondent contained badly phrased questions which were
difficult to understand or so ambiguous that they were likely to be
misunderstood
and/or long statements which contained a number of
propositions which required of applicant’s witnesses an
unqualified response.
Further, applicant’s witnesses were also
accused of not having answered questions which had in fact been
answered. Mr Gilliland
submitted that where this was the case, it
should not impact negatively on the credibility of the applicant’s
witnesses.
53.
In support
of this contention Mr Gilliland referred the court to a passage in
the judgment of Marais J in the matter of S v Tswai,
[28]
where the following passage
inter
alia
appears:
“
In
similar vein it may not be inappropriate to emphasise that
belligerent assertions to the contrary by a cross-examiner are no
substitute for pertinent, properly focused and accurate
cross-examination. …”
[29]
54.
Mr
Gilliland also submitted that having regard to the manner in which
the respondent’s ‘defence’ unfolded and
where the
respondent was represented by Counsel a failure to cross-examine on
an aspect of the applicant’s case means that
the respondent has
accepted such evidence. In support of this submission, Mr Gilliland
referred to the following passage in the
case of S v MNGOMEZULU
[30]
:
“
No
cross-examination on a point may mean that the evidence concerning
such which the prosecutor has led is accepted by the defence,
that
the facts to which the witnesses for the state have testified in that
regard are admitted, and in an appropriate case it will
be so
construed. Or it may warrant the inference, when the accused in turn
takes the stand and says something different on the
point, that this
part of his evidence was a concoction brewed late in the day.”
[31]
55.
In applying these principles to the facts of the
present case, it is necessary to start from the point where the
evidence adduced
on behalf of the respective parties diverged on the
first question referred to oral evidence.
56.
For the applicant, Mr Griesel (the logistics
officer), Mr Andrews (the chairperson of the current flat committee)
and Mr Pretorius
(the fire-chief), all testified that the flat
committee did not have the final say on assigning a flat to an
applicant, but merely
made a recommendation to management and the
fire-chief made the final decision to assign a flat to the relevant
applicant.
57.
Mr Venter submitted, on behalf of the respondent,
that this was the only material aspect of their evidence upon which
all three
of the applicant’s witnesses on this first question
referred to oral evidence concurred. In making this submission, Mr
Venter
was clearly implying that that these three witnesses were
colluding and had concocted this vital piece of evidence.
58.
In all of the circumstances of this case, I find
Mr Venter’s submission less then compelling. In my view, if
these witnesses
had conspired to concoct this evidence they would
have ensured that they coordinated their story with greater care. In
the circumstances,
I find it is highly improbable that they conspired
to concoct this one piece of evidence. Further, I consider the
aspects referred
to by Mr Venter as the differences in their
respective evidence on this question referred to oral evidence to be
peripheral. There
are other aspects of the oral evidence adduced by
the respective parties that have a far greater bearing on where the
probabilities
lie. These will be dealt with hereunder.
59.
Mr Solomon and Ms May testified on behalf of the
respondent that the flat committee made the final decision and
assigned the flat
to the relevant applicant. Mr Solomon’s
evidence was that the new flat committee had the same authority to
allocate or assign
a flat as the old flat committee had. His position
was that although he did not know where the flat committee acquired
the authority
to assign or allocate flats without referring to
management for final approval, that both the old and the new flat
committees had
enjoyed the authority to assign flats without any
reference to management.
60.
The evidence of Mr Solomon on this point was
materially different from the evidence of Ms May on this aspect. In
fact, it cannot
be reconciled with the evidence of Ms May. Ms May’s
testimony on this aspect was that the fire-chief, Mr Pretorius, after
the election of the new flat committee, told the new flat committee
that he no longer wanted to be bothered by anything to do with
the
flats. She testified that she took this statement allegedly made by
Mr Pretorius as granting the flat committee the authority
to make the
final decision on the allocation of flats without having to refer to
management for final approval. This material contradiction
casts
serious doubt upon the credibility of both Mr Solomon and Ms May.
61.
This version attested to by Ms May was put to Mr
Pretorius in general terms, when he was cross-examined by Mr Venter,
without reference
to who would provide such evidence and without
referring to the time place and context in which Mr Pretorius was
alleged to have
made the statement that he no longer wished to have
anything to do with the flats. Mr Pretorius categorically denied
having made
such statement.
62.
The evidence of Ms May is the high watermark of
the respondent’s evidence on the question of the authority of
the new flat
committee. The question of the authority of the old flat
committee will be dealt with presently.
63.
Ms May, the secretary of the new flat committee,
in her evidence relied on 3 examples where the said flat committee
exercised its
authority as she alleged it possessed, to prove that
the flat committee had the power to allocate flats without reference
to management.
These 3 examples include: the occupation of flat 12 by
Mr Solomon; the assignment of flat number 16 to Mr Simons; and the
allocation
of flat 7 to the respondent.
64.
Ms May’s reliance on these examples to
prove that the flat committee had the authority to allocate flats is
clearly misplaced.
Firstly, Mr Solomon did not in the true sense of
the word, apply to the flat committee to be allocated flat 12. He was
already
a resident of the flats at that time. He was also a member of
the relevant flat committee at that time. He approached respondent
who had allegedly expressed an interest in applying to be allocated
flat 12 and made a private arrangement with him, that if respondent
stood aside and allowed Solomon to obtain flat 12 without
competition, that the flat committee would then allocate the next
available
two-bedroomed flat to the respondent.
65.
Neither Mr Solomon nor Ms May produced a letter
in the same form as the permission letter furnished to the respondent
indicating
that the flat committee had allocated the flat to Mr
Solomon. Ms May did not even produce an application letter from Mr
Solomon
or a minute of the flat committee to substantiate this, even
though she was the secretary of the flat committee and would be
expected
to keep the relevant documents and records.
66.
Mr Solomon’s manoeuvre to obtain occupation
of flat 12 has all the hallmarks of an abuse of his position on the
flat committee
to obtain an advantage he was not entitled to. In
fact, Mr Solomon said himself that if the policies and procedures of
the flat
committee and fire-department were followed, he would not
have been allocated flat 12. In all of these circumstances, this
cannot
be used as an example of the flat committee legitimately
exercising an alleged power to allocate flats without recourse to
management.
67.
The example of Mr Simons can also not be used as
an example of the flat committee exercising its alleged power to
allocate a flat
without recourse to management. All parties agreed
that Mr Simons’ case was an exception to the rule.
68.
Much was made of the wording of a letter written
by the flat committee in support of Mr Simon’s case. However,
if this letter
is read in its proper context the said letter was
clearly written in support of the fire-chief’s motivation to a
higher authority
to make an exception and not apply the applicant’s
housing policy, in order to come to the aid of Mr Simons. In fact,
the
decision to make an exception to the rule and not apply the
applicant’s housing policy in Mr Simons case, was made at a
management
level above the fire-chief in the applicant’s
hierarchy. In these circumstances, this is also not a legitimate
example of
the flat committee exercising a power to allocate a flat
without recourse to management.
69.
The final example raised by Ms May is that of the
respondent himself. Where this is the central issue, or at worst one
of the central
issues in the present dispute, it is simply untenable
to raise it as an example of the alleged power of the flat committee
to allocate
a flat without recourse to management.
70.
Mr Pretorius, in his capacity as fire-chief
signed certain documents referred to him by Mr Griesel to indicate
management’s
assent to the final allocation of the respective
flats. Mr Venter criticised minor differences in how Mr Pretorius’
assent
was indicated on the respective documents. In the context
where all agreed that flats did not become available for allocation
very
often, these slight variations in the manner in which assent was
indicated are both understandable and acceptable.
71.
Furthermore, one cannot lose sight of the fact
that the documents made available to the court were those of the
logistics officer,
Mr Griesel, who kept these records for the benefit
of the logistics office. The fact that these records were never
intended to
be the formal record of the flat committee’s
operations, would be a further satisfactory explanation for the lack
of uniformity
and formality in management indicating its consent on
such documents. These records were only intended to fulfil Mr
Griesel’s
needs in the logistics office of the fire department.
72.
Furthermore, there is the issue of how the
respondent obtained possession of flat number 7. Certain aspects of
how respondent came
to obtain possession of flat number 7 and how
respondent handled the evidence adduced on this question, have a
direct and meaningful
effect on the probabilities as to where the
final authority to allocate a flat resided.
73.
Mr Griesel’s testimony was that once a flat
had been vacated and the necessary inspections were completed he
locked the flat
and retained the keys until the relevant flat had
been properly allocated to the next occupant. Mr Griesel testified
that flat
number 7 was locked and he kept the keys and that in fact
he is still in possession of the keys to flat number 7 despite the
respondent
taking occupation of flat number 7. None of this evidence
was challenged when Mr Venter cross-examined Mr Griesel.
74.
Furthermore, it was never put to Mr Griesel under
cross-examination that the respondent had requested the keys to flat
number 7
from Mr Griesel and that Mr Griesel had refused to hand the
said keys to the respondent. The fact that this was never put to Mr
Griesel means that this court can only conclude that respondent never
asked Mr Griesel for the relevant keys. The importance of
this
evidence is that if the flat committee had the final authority to
allocate a flat, Mr Griesel would have no grounds to refuse
to hand
over the keys to the respondent and he would certainly have been
confronted with this refusal.
75.
Mr Andrews gave evidence that the respondent was
informed by the fire-chief, Mr Pretorius, that respondent’s
first application
was forwarded to the Director Mr Setlogelo for his
decision, given the fact that the court that convicted respondent
ordered that
respondents name be included in the register of sexual
offenders. Furthermore, that Mr Solomon and Ms May were aware of this
state
of affairs. Neither of these contentions was challenged when Mr
Andrews was cross-examined by Mr Venter. If the flat committee had
the authority to allocate a flat without recourse to management,
surely this evidence would have been challenged.
76.
Similarly, Mr Pretorius gave evidence that Ms May
and Mr Solomon approached him to enquire about respondent’s
first application
for a flat. Mr Pretorius testified that he informed
them that the matter had been referred to the Director Mr Setlogelo
for his
decision on the matter. Again, neither of these contentions
was challenged when Mr Pretorius was cross-examined by Mr Venter. The
importance of this evidence is that Mr Solomon and Ms May would not
have approached Mr Pretorius in this way if the flat committee
indeed
had the final authority to assign or allocate a flat.
77.
The contention put to Mr Pretorius by Mr Venter
that letters of approval similar to that given to the respondent,
annexure “CTR3”,
were issued by the new flat committee
was not supported in the evidence of either Mr Solomon or Ms May.
Further, no such letters
were discovered by the respondent or
produced in court. The fact that such contention was made and not
substantiated by the relevant
witnesses has a bearing both on the
probabilities and the general credibility that can be assigned to the
respondent’s version.
78.
Mr Venter argued that fire-chief made everything
complicated. He could simply have vetoed the flat committee if he had
that power.
Mr Venter asked, why did he have to call a meeting of
residents and refer the matter to Mr Setlogelo if he could simply
exercise
his veto. To this Mr Pretorius answered with the benefit of
hindsight he might agree, but he did not think of it at the material
time.
79.
Having regard to the evidence of how Mr Pretorius
conducted himself, it was clear that he was dealing with a new and
unprecedented
situation. He called the meeting of the 18 February
2014 to hear the concerns of residents. Due to the unprecedented
nature of
dealing with an applicant for a flat who was under a court
order to be registered in the relevant register as a sex offender Mr
Pretorius’ actions in calling a residents meeting, to hear the
residents’ concerns is not unreasonable even though
with the
benefit of hindsight it may have been unnecessary.
80.
The evidence establishes that Mr Pretorius and
subsequently the applicant sought the guidance of local State
Prosecutors who helped
establish for the applicant that there were
grounds for concern. Ultimately the applicant commissioned a formal
legal opinion which
we are informed highlighted the potential
liability of the applicant in these circumstances. In my view, all of
these steps show
a concern for the residents that is not misplaced
and is both prudent and justifiable in the circumstances. In my view
Mr Venter’s
criticism of Mr Pretorius on this aspect does not
establish the authority of the current flat committee to allocate a
flat without
recourse to management.
81.
Having regard to the issues relating to the
credibility of the respondent’s witnesses highlighted above,
including the fact
that both Ms May’s and Mr Solomon’s
credibility is seriously called into question by the material
contradiction on
the source of the flat committee’s authority
to make a final decision. Contrasting that with the general
credibility of the
applicant’s witnesses. The fact that the
applicant’s version did not suffer from the same inherent
improbabilities
as that of the respondent. I am satisfied that on a
balance of probabilities the applicant’s version and
contentions on the
authority of the flat committee are true.
82.
On the facts of the present case the issues
relating to the opportunities the respective witnesses had to observe
events does not
really come to the fore. In the circumstances, this
court is not required to deal with this aspect of assessing conflicts
in oral
evidence.
83.
On the question of the probabilities on the first
part of the first question, being whether the flat committee had the
authority
to allocate flat 7 to the respondent without referring the
matter to management, for the reasons set out above, the
probabilities
are overwhelmingly in favour of the applicant’s
version that the flat committee did not have the authority to make a
final
allocation.
84.
Having regard to the finding made on the first
part of the first question referred to oral evidence, the second part
of that question
being whether in fact the flat committee did in fact
authorise the respondent to occupy flat number 7 is moot. This must
be so
because if the flat committee had no such authority it could
not, on any basis, authorise respondent to occupy flat number 7.
85.
Turning now to the second question referred to
oral evidence, being whether or not Mr Setlogelo’s letter of
the 22 July 2014
was served on the respondent.
86.
As set out above this second question referred to
oral evidence involves a letter dated 22 July 2014 from the Acting
Executive Director:
Community and Social Development Services of the
applicant. The incumbent of that office at the material time was Mr S
Setlogelo
(Director Setlogelo).
87.
The letter concerned appears at pages 32 and 33
of the record of the original application. An additional copy of this
letter was
presented to this court during the course of the oral
evidence. This additional copy of such letter is to be found at pages
“X1”
and “X2” of bundle X. The relevance of
this additional copy will be set out in due course.
88.
In the chronology of the relevant events: there
is the respondent’s first letter of application applying to be
allocated flat
number 7, which is dated 15 October 2013; then the
meeting of residents that took place on the 18 February 2014; shortly
after
the residents’ meeting Mr Andrews wrote a letter to the
fire-chief, which is dated 3 March 2014, requesting management to
find a solution to the resident’s concerns regarding the
accommodation of the respondent in the relevant flats; then followed
the respondent’s second letter of application to the flat
committee, which is dated the 5 March 2014, wherein respondent
claims
he is being victimised as a result of his conviction; then as a
result of Mr Andrew’s letter to him the fire-chief
wrote a
letter to Director Setlogelo, which is dated 12 March 2014 in which
the fire-chief recommended that the applicant should
not approve the
allocation of a flat to the respondent and sought a ruling from
Director Setlogelo; this is followed by the purported
letter of
approval from the flat committee, dated 20 May 2014; then came the
letter under discussion in the second question referred
to oral
evidence, which is dated the 22 July 2014; then there is a lull in
events until certain interviews for a training officer
took place in
or around October 2014 where accommodation in flat number 7 was
offered as an incentive to attract a training officer
to Kimberley;
and thereafter the respondent opened an account for electricity, paid
the relevant deposit and took occupation of
flat number 7 on the 28
October 2014.
89.
In the
context of the overall application to evict the respondent from flat
number 7 this letter from Director Setlogelo is significant
and of
great importance. This letter informs the respondent that his
application for a flat was not successful and that applicant’s
reasons for refusing him accommodation, included
inter
alia
that
the court that had convicted him had ordered that his name be
included in the register of sexual offenders. Further, that the
provisions of the Criminal Law Sexual offences and Related Matters
Amendment Act
[32]
(SORM)
placed certain obligations on the applicant as an employer relating
to access to children at the workplace.
90.
If this letter was indeed delivered to the
respondent, respondent clearly knew that management had refused his
application to be
accommodated in such flat before he took occupation
of flat number 7 on the 28 October 2014.
91.
In respect of the question as to whether this
document was served on respondent, on behalf of the applicant two
security officers,
Mr Badenhorst and Ms Jantjies testified that they
had served the document on the respondent. The respondent testified
on his own
behalf that the relevant document was never served on him.
Again, the evidence led on behalf of the applicant and the
respondent’s
evidence on this question also cannot be
reconciled.
92.
The main contentions made by Mr Badenhorst in his
evidence were that he and Ms Jantjies received the relevant letter
from his senior
Mr Verkoper on the same day as the letter is dated,
being the 22 July 2014. That he and Ms Jantjies were instructed to
serve the
said letter on the respondent. Thereafter, he and Ms
Jantjies went to the fire-station and they found the respondent
standing on
a flight of stairs at one of the blocks of flats that is
adjacent to the fire-station. Respondent came towards them and Mr
Badenhorst
offered to read the letter to respondent. Respondent
replied that he knew what was contained in the letter and further
remarked
that Badenhorst was doing the dirty work for Pierre de
Villiers.
93.
Mr Badenhorst then testified that respondent was
handed a copy of the said letter. Then Mr Badenhorst testified that
he, the respondent
and Ms Jantjies signed the other copy of the
letter in each others presence. Thereafter, such signed copy was
returned to Mr Verkoper.
This is where “X1” and “X2”
become significant, as this is the copy of such letter that bears the
additional
signatures referred to herein.
94.
Mr Badenhorst also testified that this was the
only time he went to the fire-station flats to speak to the
respondent. He also testified
that he and the respondent knew each
other as they had played soccer together at one time.
95.
The contention made by Mr Badenhorst that he
offered to read the relevant letter to the respondent was never
challenged when Mr
Venter cross-examined Mr Badenhorst.
96.
The respondent considered himself to have been
victimised and discriminated against as a result of his conviction on
a charge of
statutory rape. This is evident from his second letter
dated the 5 March 2014. Considering this in the light of the fact
that Mr
Pierre de Villiers’ name appears on the letter
presently under consideration, even though Mr De Villiers was not the
author
of that letter and his name is not mentioned in the body of
that letter. Further, in the context that respondent’s case was
discussed at the resident’s meeting of the 18 February 2014.
Considered in the light of these facts, Mr Badenhorst’s
evidence that respondent at the time that the relevant letter was
served on him, stated, that he (Mr Badenhorst) was doing the
dirty
work for Mr Pierre de Villiers is simply too unique for Mr Badenhorst
to have made that up. Furthermore, this spontaneous
evidence of Mr
Badenhorst was never challenged when he was subjected to a long and
repetitive cross-examination by Mr Venter.
97.
The respondent’s assertion that he was not
aware that residents had concerns about him staying at the
fire-department’s
flats is simply not credible in the light of
his own letter of the 5 March 2014 and the resident’s meeting
of the 18 February
2014.
98.
The only material aspects of Mr Badenhorst’s
testimony that were challenged when he was cross-examined were: that
he had not
handed a letter to the respondent; and that the signature
alleged to be that of the respondent acknowledging receipt was not in
fact that of the respondent.
99.
In argument, Mr Venter referred me to the
affidavits signed and deposed by the respondent and invited me to
compare them and submitted
that they were not the same. Mr Venter
overlooked the fact that Mr Badenhorst testified that he did not have
a clipboard or book
to support the document when respondent signed it
and the only support he could offer the respondent whilst signing for
the letter,
were his open hands. Signing such document on an unstable
surface could easily explain any differences in the respondent’s
signatures on the relevant letter when compared to other documents.
100.
Further, other parts of Mr Badenhorst’s
evidence was similarly left undisputed. For example: that a meeting
actually took
place between Mr Badenhorst, Ms Jantjies and respondent
on the relevant date at the fire-department flats; although Mr
Badenhorst
and respondent knew each other from having played soccer
together they did not socialise and in that sense, they were not
friends;
and Mr Badenhorst and respondent had met each other only
once at such flats. It flows from these undisputed facts that the
only
reason that is apparent from the established facts to meet
respondent at the said flats would be to serve the relevant letter on
him.
101.
It is true that Ms Jantjies was vague and open to
criticism on some aspects of her testimony. She was sent with Mr
Badenhorst to
witness the document being served on respondent. It is
evident that she was an inattentive witness. A fact which she readily
acknowledged
and to her credit did not try to disguise. Despite this
she did corroborate Mr Badenhorst in material respects. Where there
were
differences, these were clearly on peripheral issues.
102.
By contrast the respondent’s evidence was
self-serving and lacked credibility. Respondent’s evidence that
he did not
know of other residents having concerns with him is simply
not credible having regard to his letter of the 5 March 2014 and the
resident’s meeting of the 18 February 2014. The two events are
simply too close together in the chronology of events to be
unconnected.
103.
Respondent portrayed himself as a victim and he
showed no appreciation and comprehension for the consequences of what
he had done
and the consequences that flowed from his conviction. He
could not see further than his belief that he was being victimised.
He
showed no understanding for the concerns of the parents at the
fire-station flats. He also showed no understanding as to the
wrongfulness
of the relationship he had entered into that led to his
conviction and why children needed to be protected from the abuse of
the
power relationship that such interaction represents.
104.
On respondent’s own version he and Mr
Badenhorst were merely acquaintances who never had any difficulty
with each other. There
is no evidence as to where Mr Badenhorst could
have obtained the information from to explain his evidence as to what
respondent
said to him when Mr Badenhorst offered to read the
relevant letter to respondent. This evidence fits in with the other
established
facts and is too unique to be explained away.
105.
In all of these circumstances, I find that the
probabilities overwhelmingly support the applicant’s version
that the letter
of the 22 July 2014 was served on the respondent.
106.
The consequences that flow from these findings
establishes that the respondent took occupation of flat number 7
without any lawful
basis. In all of the circumstances set out above,
I conclude that it will be just and equitable to evict the respondent
from the
relevant premises.
107.
Mr Gilliland, for the applicant, argued that for
the purpose of s 4(6) of PIE, that the earlier application brought
under case number
1899/2014 should be regarded as the time when
proceedings were initiated to secure the eviction of the respondent.
108.
As pointed out above, the application brought
under case number 1899/2014 was dismissed on the grounds that the
applicant had not
established its authority to bring that
application. It is not disputed that upon the ruling in case number
1899/2015 dismissing
that application, that applicant applied for
leave to appeal. Further, once leave to appeal was refused the
applicant brought the
present application without delay.
109.
By contrast Mr Venter argued that these
proceedings stand on their own and these proceedings were initiated
outside the 6-month
period contemplated in s 4(6) of PIE and that the
present application should fall under the provisions of s 4(7) of
PIE. Further,
Mr Venter submitted that the applicant had not
established that other land or premises were made available to the
respondent by
the applicant municipality. Accordingly, it was
submitted that the respondent should not be evicted.
110.
Having regard to the fact that the earlier
application was initiated whilst the respondent was taking occupation
of the said flat
and that such application was dismissed on a
technical ground. Further, that an application for leave to appeal
was brought and
that once the application for leave to appeal was
dismissed the present application was instituted without undue delay.
In these
circumstances, I believe it would be artificial to
compartmentalise these two applications, which would be tantamount to
ignoring
the facts. I believe it is appropriate in these
circumstances to conclude that proceedings were initiated under case
number 1899/2014
for the eviction of the respondent, even though
those proceedings were ultimately unsuccessful. Accordingly, I
concluded that the
provisions of s 4(6) of PIE must be applied in the
present case.
111.
Even though both the applicant and the respondent
referred to SORM, having regard to the conclusions reached it is not
necessary
for me to deal with them. Save to the extent that the
provisions of SORM dictate that applicant cannot allow the respondent
to
work shifts at the main fire-station in Kimberley as this would
again expose the applicant to the risk of liability under SORM,
as
the respondent would have to live in the single quarters on the same
premises whilst on duty. Accordingly, I shall have to order
that the
respondent be transferred to the Galashewe or Ritchie fire-stations
where I am informed no families and no children reside.
112.
Then I need to consider the period within which
the respondent is to move out of the premises. Mr Gilliland submitted
in all of
the circumstances of the case that 30 calendar days would
be reasonable and equitable for the respondent to find alternative
accommodation.
Considering the manner in which the respondent took
occupation of the premises, the length of time that he has been in
occupation,
respondent’s family situation and the fact that the
respondent is in full time employ and receives a monthly salary, in
my
view affording him 30 calendar days to find alternative
accommodation is reasonable in all of the circumstances of this case.
113.
The last question to be considered is the
question of costs. Mr Gilliland submitted that due to the manner in
which the proceedings
were protracted by Mr Venter’s cross
examination that I should make a punitive costs order that the
respondent pay the costs
on an attorney and client scale.
114.
Mr Venter submitted that having regard to the
fact that the respondent’s papers in case number 1899/2014
disclosed the disputes
of fact this court had to deal with that the
applicant should pay the costs regardless of the outcome. Mr Venter
might have had
a point if the disputes referred to were raised in a
bona fide
and
honest way. In my view, this is not the case. In the present
circumstances, the applicant being successful, I see no reason
to
deprive the applicant of its costs.
115.
It is trite that the court has a discretion on
the issue of costs to be exercised judicially. A punitive costs order
is usually
made to show the court’s displeasure at the way a
party conducted its case. The cross-examination conducted on behalf
of
the respondent was tedious and accomplished very little, but I
hesitate to find that it was of such a nature as to deserve special
censure or that such censure should be visited on the respondent
himself. I considered if an order against Mr Venter would be
appropriate but due to the fact that applicant had abandoned this
approach it initially indicated it would follow and the fact that
whilst such cross-examination was tedious and inefficient, I could
not go further than that, I decided against such an approach.
116.
If in future matters Mr Venter were to continue
to conduct his cross-examination in this way and if circumstances
were slightly
different I may reach a different a different
conclusion. In the circumstances the respondent will be ordered to
pay the taxed
or agreed party-and-party costs of the applicant. Such
costs to include the costs of the preliminary matters dealt with
above.
In
the circumstances, the following order is made:
1.
That the respondent and/or all persons occupying
the premises through him, known as flat number […] at the
Section: Emergency
Services Sol Plaatjie Local Municipality, situated
at [...] L. R., Kimberley be evicted 30 (thirty) calendar days after
the date
of this Order.
2.
That should the respondent and/or any person
occupying through him refuse or neglect to do so, the applicant –
through the
Sheriff of this Court – be authorised and directed
to evict the said respondent 30 (thirty) calendar days after the date
of this Order.
3.
That whilst the respondent is employed by the
applicant as a fire fighter working shifts, he shall be transferred
to and/or be deployed
to either the Ritchie or Galashewe fire
stations of the applicant.
4.
That the respondent shall pay the taxed or agreed
party-and-party costs of this application. Such costs shall include
the costs
of the preliminary matters or special pleas placed before
this court.
_______________
Lawrence
Lever AJ
Northern
Cape High Court, Kimberley
On
behalf of Applicant :
Adv
Gilliland
On
behalf of Respondents:
Adv Venter
Date
of hearing:
11/03/2016; 31/05-02/6/2016; 05-08/09/2016; 09-10/11/2016
Date
of Judgment:
17 May 2017
[1]
Act 19 of 1988.
[2]
Herbstein & Van Winsen., Cilliers et al., 5
th
Ed. P. 609.
[3]
R v Kerr 1908 SC vol 1 p. 91 at p. 95; Verhagen v Abramowitz
1960
(4) SA 947
(C) at p. 951 B-C; African Wanderers Football Club (Pty)
Ltd v Wanderers Football Club
1977 (2) SA 38
(AD) at p. 45 H.
[4]
Mall (Cape)(Pty) Ltd v Merino Ko-operasie Bpk
1957 (2) SA 347
(C) at
p 351H to p 352 A.
[5]
Mall’s case above at p 352A.
[6]
(P513/08)[2009] ZALC 158.
[7]
SANTAM BPK v BIDDULPH 2004 (5) SA 586 (SCA).
[8]
Above at para [10].
[9]
COMMISSIONER, SARS v CAPSTONE 556 (Pty) Ltd 2016 (4) SA 341 (SCA).
[10]
Above at para [30].
[11]
STELLENBOSCH FARMER’S WINERY GROUP LTD & ANOTHER v MARTELL
ET CIE & OTHERS 2003 (1) SA 11 (SCA).
[12]
Above at para [5].
[13]
PEZZUTTO v DREYER & OTHERS
[1992] ZASCA 46
;
1992 (3) SA 379
(A) at 391D.
[14]
H.C. NICHOLAS., “CREDIBILITY OF WITNESSES”., (1984) 102
SALJ p. 32.
[15]
“CREDIBILITY OF WITNESSES”., above at p. 32.
[16]
“CREDIBILITY OF WITNESSES”., above at p. 35.
[17]
Thomas Starkie.,
A
Practical Treatise of the Law of Evidence and Digest of Proofs, in
Civil and Criminal Proceedings
2
ed I (1883) at 486-7.
[18]
“CREDIBILITY OF WITNESSES”., at p. 35.
[19]
“CREDIBILITY OF WITNESSES”., at p. 36.
[20]
“CREDIBILITY OF WITNESSES”., at p. 36.
[21]
“CREDIBILITY OF WITNESSES”., at p. 37.
[22]
“CREDIBILITY OF WITNESSES”., at p. 38.
[23]
“CREDIBILITY OF WITNESSES”., at p. 38.
[24]
“CREDIBILITY OF WITNESSES”., at pp. 38 to 42.
[25]
“CREDIBILITY OF WITNESSES” at p. 41.
[26]
“CREDIBILITY OF WITNESSES” at p. 41.
[27]
“CREDIBILITY OF WITNESSES” at p. 42.
[28]
S v TSWAI
1988 (1) SA 851
(C) at 858C to 859A.
[29]
TSWAI., above at p. 858H.
[30]
S v MNGOMEZULU 1983 (1) SA 1152 (N)
[31]
Mngomezulu’s case above at 1153B-1154B.
[32]
Act 32 of 2007.