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2015
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[2015] ZANCHC 3
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Saamwerk Southwerke (Pty) Ltd v Minister of Mineral Resources and Another (1463/11) [2015] ZANCHC 3 (24 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, DIVISION, KIMBERLEY]
Case
No: 1463/11
DATE:
24 APRIL 2015
In
the matter between:
SAAMWERK
SOUTWERKE (PTY)
LTD
........................................................................
PLAINTIFF
AND
MINISTER
OF MINERAL
RESOURCES
..............................................................
1
ST
DEFENDANT
SA
SOUTWERKE (PTY)
LTD
.................................................................................
2
ND
DEFENDANT
CORAM:
LEVER AJ
JUDGMENT
Lever
AJ
1.
In this matter the plaintiff, Saamwerk Soutwerke (Pty) Ltd
(“Saamwerk” or “plaintiff”), claims damages
in delict against the Minister of Mineral Resources (“the
minister” or “first defendant”) and SA SOUTWERKE
(Pty) Ltd (“SAS” or “second defendant”),
jointly and severally, the one paying the other to be absolved.
2.
At the commencement of these proceedings the parties moved an
application by agreement that the issues of the quantum and the
merits be separated. In the circumstances the issues were separated
and the appropriate order was made.
3.
The parties have already engaged in fairly lengthy litigation leading
up to the present damages claim. The background to this
earlier
litigation will only be referred to insofar as it is necessary to
give context to the present action.
4.
On the
13
th
July 2005 the plaintiff applied to the Kimberley office of the
erstwhile Department of Minerals and Energy (“DME” or
“the department”) for a permit to mine salt on a property
described as Portion 146 of Portion 58 (Vrysoutpan) of the
farm
Kalahari-West No: 251, Gordonia District, Northern Cape Province
(“Vrysoutpan”) under the provisions of section
22 of the
Minerals and Petroleum Development Act
[1]
(“MPRDA”).
5.
The second defendant got to hear of the plaintiff’s application
in July or August of 2006 and wrote to the department claiming
to
have a valid “old order right” to mine salt on Vrysoutpan
and attached a copy of the document that embodied the
right it
claimed to this letter.
6.
On the 27
th
September 2006 the department informed the
plaintiff in writing that its application for the right to mine salt
on a portion of
Vrysoutpan had been approved in principle, subject to
certain conditions. In essence all that remained to be done in
respect of
the said application for a mining right was for the
plaintiff to fulfil the conditions referred to in this letter (“the
letter
of grant”) and the formal execution of the mining right.
7.
The two conditions relevant to the “in principle”
approval of the plaintiff’s mining right in the letter of
grant, were: Firstly, the lodging of a proper rehabilitation
guarantee; and Secondly, a revised Social and Labour Plan (“SLP”).
Plaintiff contends that it fulfilled both of these conditions. The
last of which was the revised SLP, which it submitted on the
6
th
December 2006. Accordingly, plaintiff claims to have been entitled to
the formal execution of its mining right by no later than
the 2
nd
January 2007.
8.
Second defendant claimed a pre-existing old order mining right for
the same property and in respect of the same mineral. The
right that
second defendant claimed is embodied in a document described as
MP169/2004. This document was not in the relevant mineral
laws file
in the early days of this saga. The document that was present in the
relevant mineral laws file at that time, was a copy
of MP 169/2003.
9.
MP169/03 was issued for a period of one year and had expired by the
material time. MP169/2004 did not have provision for a period
of
validity and this feature will be considered later on in this
judgment. By virtue of the fact that MP169/2004 did not provide
for a
period of validity certain staff members of the department considered
MP169/2004 to be at least invalid. What was said at
certain meetings
by such staff members and what they claim to have meant when they
referred to this document in those meetings
will also be referred to
later on in this judgment.
10.
The department did not execute the plaintiff’s mining right and
set up a process to investigate the situation. This was
the position
that prevailed on the 22
nd
March 2007 when the plaintiff
instituted an application under case number 292/2007 seeking
inter
alia
an order compelling the department to execute its mining
right.
11.
Initially the department defended this application, which was
referred to oral evidence to resolve the various disputes. At
some
point before the oral evidence was heard in that application, the
department withdrew its opposition to the application. The
presiding
judge in that application felt that he could not resolve the disputes
in that matter without the input and evidence of
the department. The
department then filed an application seeking leave to re-join the
matter. On this basis, the department participated
in the application
and adduced evidence to assist the court.
12.
Ultimately, on the 10
th
December 2009, the High Court in
matter number 292/07 found in favour of the present plaintiff and
ordered
inter alia
that the department execute the present
plaintiff’s mining right.
13.
Thereafter the present second defendant sought leave to appeal, which
was refused. Ultimately, by way of petition second defendant
appealed
to the Supreme Court of Appeal (SCA). The matter proceeded in the SCA
under SCA case number 491/10.
14.
On the 1
st
June 2011 the SCA also found in favour of the
present plaintiff and dismissed the appeal.
15.
The first defendant executed and issued the plaintiff’s mining
right on the 5
th
June 2011.
16.
The High Court in case number 292/07 and the SCA in appeal number
491/10 both found that permit number MP169/2004, on which
the present
second defendant relied to establish its pre-existing old order
right, was a forged document.
17.
In the present proceedings it was eventually agreed by all of the
parties involved that neither the High Court in matter number
292/07
nor the SCA in appeal number 491/10 needed to find that MP169/04 was
a forged document in order to reach their respective
conclusions and
that accordingly this issue is not
res iudicata
.
18.
Plaintiff claims as damages its loss of profit for the period from 1
January 2007, the date when it believes it was entitled
to its mining
right up to the 24
th
June 2011, the date when the second
defendant vacated Vrysoutpan. Although plaintiff claims damages from
the 1
st
January 2007 in its Particulars of Claim, Mr
Duminy SC who appeared on behalf of the plaintiff conceded that
plaintiff would probably
only have had its right issued to it on the
2
nd
January 2007, as the 1
st
January was a
public holiday.
19.
The basis of plaintiff’s claim for damages against the first
defendant is that first defendant and/or the department had
a legal
duty to approve and/or sign and issue plaintiff’s mining right
by, at least, the end of December 2006. Also that
first defendant had
a legal duty to prevent the second defendant’s illegal mining
activities on Vrysoutpan.
20.
Then plaintiff pleaded that: Firstly, the first defendant unlawfully,
with malicious intent and dishonestly,
alternatively
negligently refused and/or neglected to approve and/or sign and issue
the plaintiff’s mining right by December 2006; and
Secondly,
dishonestly and with malicious intent refused and/or neglected to
prevent the second defendant’s illegal mining
activities on
Vrysoutpan.
21.
Plaintiff then pleaded that the direct result of above acts or
omissions on the part of the first defendant led to the plaintiff
only being able to commence its mining activities on Vrysoutpan on
the 25
th
June 2011.
22.
As against the second defendant, the plaintiff pleaded that the
second defendant unlawfully, with malicious intent and fraudulently
represented to the department and the plaintiff from September 2006
to 10 December 2009 that it held a lawfully issued and valid
mining
permit that authorised it to mine salt on Vrysoutpan from 28
th
April 2004 for an indeterminate period, well knowing that such permit
was a false permit, or an invalid permit or that such permit
had not
been lawfully, validly or regularly issued by the department.
Alternatively
, that second defendant was negligent in that it
ought reasonably to have been aware or become aware that such permit
was not lawful,
regular or valid.
Further alternatively
, the
second defendant was negligent in accepting the validity of such
permit at face value where on the face of it, such permit
appeared
questionable or where the questionable status of such permit was
brought to the attention of the second defendant as early
as 2006.
23.
Plaintiff pleaded that the second defendant refused to vacate
Vrysoutpan until the 24
th
June 2011.
24.
Plaintiff further pleaded that the second defendant’s conduct,
dealings and/or refusal and/or neglect directly contributed
to the
department’s refusal to sign and issue the plaintiff’s
approved mining right to extract salt from Vrysoutpan.
Furthermore,
the said conduct, dealings and/or refusal and/or neglect directly
contributed to the fact that plaintiff could only
exercise its right
to mine on Vrysoutpan from the 25
th
June 2011.
25.
Mr Duminy conceded that plaintiff would not be relying on negligence
as a basis for its claim as against both first and second
defendants.
He submitted that in any event the evidence would establish fraud on
the part of both first and second defendants.
26.
It is necessary to briefly mention one further aspect of the prior
litigation before turning to deal with the merits of the
present
action. In the court
a quo
in case number 292/07 the court
made an order on the 10
th
December 2009 and provided its
reasons approximately three weeks thereafter. In the said reasons for
judgment, the learned judge
in that application recorded that it was
common cause between the parties that MP169/04 was a forged document.
27.
Mr Grobler SC, who appeared on behalf of the second defendant, took
me through the relevant passages of the record in matter
number
292/07 which forms part of the SCA record in appeal number 491/10.
Specifically, Mr Grobler referred me to certain concessions
made by
the present second defendant in a counter-application that formed
part of case 292/07.
28.
Mr Duminy in his argument in reply did not even refer to this issue
and the submissions made by Mr Grobler in argument on behalf
of the
present second defendant. In these circumstances I think I can safely
conclude that there are no other concessions, either
in the main
application or the counter application in matter number 292/07 that
would justify the court
a quo’s
conclusion that it was
common cause that MP169/04 was a forged document.
29.Mr
Grobler also referred me to the application for leave to appeal,
which listed this issue as one of the grounds of appeal.
The court
a
quo
in dealing with this issue when refusing leave to appeal
stated that even if it had erred in this regard, it would not have
made
any difference to the outcome of matter 292/07. Mr Grobler
informed the court that this ground of appeal was not proceeded with
in the SCA.
30.After
considering the passages that Mr Grobler referred me to, and with the
greatest respect to the court
a quo
in matter 292/07, I do not
believe that it justified the conclusion that the present second
defendant conceded that permit MP169/04
was a forged document.
31.
The first and second defendants both filed special pleas of
prescription. The plaintiff’s claim is for a continuing wrong
that persisted from the 1
st
January 2007 until the 24
th
June 2011. In effect its claim is for a series of infringements that
arose from day to day during the aforementioned period. Summons
was
issued against the first defendant on the 6
th
September
2011 and was served on the second defendant on the 11
th
September 2011. In these circumstances prescription would only be a
partial defence and would affect only those claims that arose
before
the 6
th
and 11
th
September 2008 respectively.
Accordingly, I will only consider the issue of prescription if the
plaintiff establishes that one
or both of the defendants is/are
liable in delict to make good the damages it claims.
32.
First
defendant, being an Organ of State has also pleaded that plaintiff
has not fully complied with the provisions of the Institution
of
Action Against Certain Organs of State Act
[2]
.
First defendant pleads that plaintiff has only complied with the
provisions of section 3 of the Act mentioned herein for the six
month
period immediately preceding the notice given by the plaintiff.
Similarly, this is also only a defence to a portion of the
plaintiff’s claim. In the circumstances, I will also only
consider the merits of this defence if the plaintiff establishes
that
first defendant is delictually liable to make good the damages it has
suffered.
33.
Plaintiff in its replication sought condonation for its
non-compliance with the notice required in terms of the Institution
of Actions Against Certain Organs of State Act. Again, since this
issue affects part of the claim and does not concern the entire
claim, I will only consider the application for condonation if the
conclusions reached require that it be dealt with.
34.
First and second defendant have both raised issues related to
causation. Broadly, first defendant submitted
inter alia
that
plaintiff’s first rehabilitation guarantee was not regular and
a proper guarantee was only provided on 20
th
April 2009
and that it would not have been able to mine prior to that date and
also it had not had its Environmental Management
Plan (“EMP”)
approved, which occurred simultaneously with the issue of the mining
right on the 7
th
June 2011. Second defendant added the
issue of a valid water use permit, which it maintains the plaintiff
still does not have.
Second defendant submits that by virtue of the
provisions of the MPRDA the plaintiff cannot mine without a water use
permit.
35.
Furthermore, second defendant also raised the issue of the Social and
Labour Plan (“SLP”) and submits that only
the revised
plan submitted in April 2009 proved to be compliant. Then second
defendant submits that the plaintiff’s mining
right could only
have become unconditional after 2009 and that in fact the plaintiff’s
SLP was only approved by the department
on the 7
th
June
2011.
36.
In my view the real dispute to be determined between the parties is
whether or not either or both the first and second defendants
acted
fraudulently as pleaded by the plaintiff. This issue is then the
appropriate point of departure. The fact that I am not considering
the prescription, legal notice to the first defendant and causation
issues does not mean that I have rejected them, but merely
that it
may not be necessary for me to deal with them further until I have
resolved the issue of the alleged fraud on the part
of the first and
second defendants.
37.
Plaintiff has accepted that it bears the onus of establishing fraud
on the part of the defendants. In order to succeed in its
claim
against both defendants, plaintiff must establish fraud on their part
and that first and second defendants colluded in such
fraudulent
conduct. As already set out herein plaintiff has abandoned the
alternative cause of action based on negligence.
38.
Mr Trengove SC, who represented the first defendant herein, has
submitted that the plaintiff has not pleaded nor established
that any
employee of the department who colluded in the alleged fraud acted
within the course and scope of his/her employment with
the first
defendant.
39.
Nor has plaintiff pleaded or established that if such employee was
not acting within the course and scope of his/her employment
that
there existed special circumstances under which the first defendant
should still be held liable for the alleged fraud.
40.
Mr Trengove mentioned the issue of vicarious liability, in reality in
passing, it was not dealt with in the pleadings and it
was not taken
any further than simply mentioning it in argument. Having regard to
the overall view I take of the case it is not
necessary to delve into
the issue of vicarious liability.
41.
Plaintiff has not been able to adduce any direct evidence of fraud on
the part of either of the defendants. Plaintiff’s
case rests on
a number of inferences it wishes the court to draw from
circumstantial evidence in order to justify the conclusion
that the
defendants committed or colluded in fraud as alleged in its
Particulars of Claim.
42.
In the matter of LOOMCRAFT FABRICS CC v NEDBANK LTD & ANOTHER,
Scott AJA dealt with the issue of how fraud is to be established
and
proved in the following manner:
“
But
the fraud on the part of beneficiary will have to be clearly
established. The onus, of course, remains the ordinary civil one
which has to be discharged on a balance of probabilities but, as in
any other case where fraud is alleged, it will not lightly
be
inferred.”
[3]
(references
omitted)
43.
The learned authors of SCHMIDT., LAW OF EVIDENCE, deal with the issue
in the following manner:
“
According
to current views it would not, however, be quite correct to speak of
a stricter measure than proof on a balance of probabilities.
The
standard remains the same, but in such cases it is accepted that the
preponderance of probabilities is usually more difficult
to establish
than the normal case.”
[4]
In
discussing what this means the learned authors cite two
possibilities, the second one seems apposite in the present case.
Namely,
that the type of conduct is so contrary to the normal that
right from the start, the balance is tipped towards the other side
for
example where immoral conduct is in issue.
[5]
In order to illustrate what is meant by this, the learned authors
cite a
dictum
of Watermeyer JA:
“
There
is not, however, in truth any variation in the standard of proof
required in such cases. The requirement is still proof sufficient
to
carry conviction to a reasonable mind, but the reasonable mind is not
so easily convinced in such cases because in a civilised
community
there are moral and legal sanctions against immoral and criminal
conduct and consequently probabilities against such
conduct are
stronger than they are against conduct which is not immoral or
criminal.”
[6]
44.
Furthermore, any inference sought to be drawn must be consistent with
all of the known or proved facts.
45.
Broadly, the scenario that the plaintiff sought to establish as the
most probable one and which it contends would establish
fraud on the
part of the defendants, is as follows: The department issued and
delivered MP169/03 to the second defendant during
or about April of
2004; MP169/03 clearly had a period of validity of one year from the
date of issue; second defendant received
MP169/03, noted its period
of validity but ultimately did nothing to secure a right beyond that
expiry date; when second defendant
realised that there was a
competing right, someone on its behalf must have colluded with
someone employed in the department to
forge or manufacture MP169/04;
that MP169/04 was forged or manufactured with the intention of
frustrating the execution of plaintiff’s
mining right which had
been approved in principle in the letter of grant and also trying to
create a right for the second defendant
to rely on in its application
to convert an old order right to a right under the MPRDA.
46.
Although the evidence adduced by the plaintiff was wide ranging and
plaintiff never succinctly set its case out in the manner
set out
above. This is what emerged from the evidence led by and the
submissions made on behalf of the plaintiff.
47.
For my own convenience I have divided the evidence up to deal with
three contentions made on behalf of the plaintiff to assist
me in
analysing the evidence in order to establish whether the plaintiff
has established its version is consistent with all of
the known facts
and whether it has established on a balance of probabilities that its
version is the most probable version in the
circumstances.
48.
These three contentions made on behalf of the plaintiff are set out
hereunder.
49.
Firstly, Mr Duminy contends that the very fact that MP169/2004 was
produced on the department’s letterhead, which it is
alleged
was not freely available, means that somebody in the department must
have colluded with somebody from the second defendant
to forge or
manufacture MP169/04. This is connected to a further contention being
that the second defendant would be the only entity
to benefit from
the forging of MP169/04.
50.
Secondly, the fact that MP169/04 did not appear in the department’s
mineral laws file initially, but a copy of MP169/04
was discovered
relatively recently in the rehabilitation file when the first
defendant filed its discovery affidavit for this action
is suspicious
or sinister.
51.
Thirdly, that the second defendant had in fact received MP169/03.
This showed that second defendant was aware that it had a
permit that
was only valid for a period of one year from the 28
th
April 2004 and thus had a motive for someone on behalf of second
defendant to collude with someone in the department to forge or
manufacture MP169/04.
52.
Each of these contentions will be examined individually to determine
whether they are consistent with all of the known facts.
However,
they will be considered together or cumulatively to determine whether
they, collectively, go far enough to establish on
a balance of
probabilities, on the basis set out above, that one or both of the
defendants acted fraudulently with malicious intent
as pleaded by the
plaintiff.
53.
Turning to the first contention. MP169/03 and MP169/04 both purport
to have been issued on the 28
th
April 2004. This places
the second defendant’s permit in the transitional phase between
the old Act and the new MPRDA.
54.
The department’s record of decision relating to the second
defendant’s application for a mineral right, as well
as the
correspondence and royalty payment records show that a five year
mineral right in favour of the second defendant was contemplated.
The
permit register also disclosed that the mineral right contemplated
was for a period of five years. An employee of the department,
one
Succaina Jarodien (“Jarodien”) drew up the draft permit
and filled in the permit register in accordance with the
contemplated
five year period of validity.
55.
The second defendant’s application came before the then head of
the Kimberley office of the department, who at the time
was a Mr
Mfetuane (“Mfetuane”). On the department’s record
of decision the reference to five years was changed
in that the word
“five” was crossed out and replaced with the numerals
“12”. Mr Duminy submitted that the
most probable meaning
of that was the permit was to be issued for 12 months. This seems to
have been accepted by both defendants
and this seems to coincide with
MP169/03 which has a one year period of validity.
56.
Second defendant relies on permit MP169/04 to establish its old order
right. MP169/04 appears to be the same as MP169/03 in
format and
overall appearance, but there are two important differences in the
appearance of the printed documents. There are also
certain
differences in the department’s stamps, but it is difficult to
draw conclusions from the differences in these stamps
and nothing
more will be made of the differences in the stamps on the respective
documents.
57.
The important differences in the appearance of the respective
documents are that MP169/03 has provision for a period of validity
and MP169/04 has no provision for a period of validity. MP169/03 has
less than a centimeter space between the department’s
coat of
arms and the document’s first heading. Whereas MP169/04 has
approximately three centimeters between the same coat
of arms and the
same first heading.
58.
There was a meeting on the 6
th
December 2006 where Mr
Mdaweni (“Mdaweni”), Mfetuane’s successor as head
of the Kimberley office, was heard to
use words to the following
effect, that: “MP169/04 was issued under fraudulent
circumstances.” Mdaweni was called as
a witness on behalf of
the plaintiff, but he specifically tried to qualify that statement in
his evidence by saying that what he
meant was that on the face of it
MP169/04 was not valid as it did not provide for a period of validity
and that there was no record
of it in the mineral laws file, the file
in which mining permits were kept.
59.
It was clear from Mdaweni’s evidence that at that stage he had
no evidence of fraud on which to base the aforementioned
statement.
In fact viewing Mdaweni’s evidence as a whole, it does not
disclose a reasonable and acceptable basis on which
to make an
allegation of fraud. Certainly, there were legitimate concerns such
as the fact that MP169/04 did not have provision
for a period of
validity and that it was not in the mineral laws file, but this is
not sufficient in and of itself to show fraud.
60.
The evidence establishes that a Mr Guthrie (“Guthrie”)
was sent by the department’s head office in Pretoria
to
investigate the matter. He also expressed the view that on the face
of it MP169/04 was not valid. He was going to write a report
to the
Director General Ms Zikalala with a recommendation. This report never
emerged and we also do not know what Guthrie’s
recommendation
was.
61.Mr
Swart (“Swart”) followed Mdaweni as the head of the
Kimberley office of the department. Swart was used as a
“troubleshooter”
to regularise problematic offices. He of
course held that position in the Kimberley office long after the
events in question had
taken place. Swart was involved whilst the
litigation in case number 292/07 and the subsequent appeal was in
progress.
62.
It emerged from Swart’s evidence that he was told that at the
time that either MP169/03 or MP169/04 was issued that Mfetuane
had
signed a batch of second pages for permits in bulk because the office
was under severe strain due to the fact that this was
the transition
period from the old Act to the MPRDA. Mr Duminy objected to this
hearsay evidence. At the time I ruled that this
hearsay evidence was
provisionally admitted and that the issues relating to its
admissibility would be fully canvassed during argument.
63.
Ms Roelien Oosthuizen (“Oosthuizen”) gave evidence that
at the time that either MP169/03 or MP169/04 was issued
she worked in
the environmental department of the Kimberley office of the
department. Her evidence really relates to the second
contention and
will be dealt with in more detail hereunder. She did however express
a view that what came to be known as the “innocent
explanation
theory” was possible and that is the reason for her evidence
being mentioned at this point in the judgment.
64.
Mr Trengove, on behalf of the first defendant, put a hypothetical
scenario to the witness who either worked in the department
at the
time that the permits in question were issued, investigated the
matter or were involved in the litigation in case number
292/07.
65.
The scenario that was put to these witnesses went along the following
lines: The permits concerned were created in the Kimberley
office on
the computers of the Mineral Laws department; standard templates for
these permits were used; the appropriate fields
on these templates
were filled in; the first page of the permit was a departmental
letterhead that had a coat of arms lithographed
onto it; the
letterhead page was a better quality paper than the second page which
was ordinary bond paper; these permits were
printed on various
printers available in the department; permit numbers were allocated
chronologically in the “permit register”
for the year in
which they were issued; it was not usual practice in that office to
physically issue a permit with a permit number
from the previous
year; the permit register in relation to the permit concerned was
filled in during 2003; the record of decision,
the draft covering
letter and the draft permit were prepared in 2003; the permit
concerned was only signed during April 2004; an
unknown person in the
Kimberley office reprinted the first page of the permit and changed
the permit number to reflect that it
was issued in 2004; the
different computers made different provision in each template to
accommodate the coat of arms on the letterhead
page; MP 169/04 made
greater allowance for the coat of arms and there was more space on it
between the coat of arms and the first
heading of the body of the
permit; as a result of this greater allowance for the coat of arms
the provision for the period of validity
fell off the bottom of page
1 and would have appeared on page 2; however, if one simply reprinted
the first page and attached it
to the signed second page a permit
would be created without provision for a period of validity.
66.
Each of the relevant witness confirmed the factual contentions
relating to the procedures followed in this scenario as far as
they
were able to and save for Mdaweni, confirmed that the other aspects
were indeed possible. Mdaweni maintained that he could
not accept or
deny this theory. Implicitly, Mdaweni’s approach confirms that
the said scenario was possible. This scenario
came to be known as
“the innocent explanation theory”.
67.
It was only Guthrie that qualified his acceptance of the possibility
of this theory to the extent that he maintained that the
template was
only available on the computers of the Assistant Deputy Directors or
Deputy Directors in the Mineral Laws department.
Swart’s
evidence was that these templates were more widely accessible. Swart
estimated that 7 to 9 people had access to these
templates in the
mineral laws department at that time. Furthermore, he stated that
these people would not necessarily be high ranking
officials in the
mineral laws department.
68.
The plaintiff called a document expert, Mr Hattingh (“Hattingh”)
who examined the original MP169/04. Hattingh’s
main findings
were that the first page of MP169/04 was printed on an ink jet
printer and the second page of that document was printed
on a laser
printer. The second page had one set of punch holes on it that were
not on the first page. The first page had certain
staple holes that
were not found on the second page and visa – versa.
Furthermore, the second page of MP169/03 appeared to
be the same as
the second page of MP169/04. However, it must be noted that Hattingh
never had the original of MP169/03 to compare
its original second
page to that of MP169/04.
69.
Hattingh conceded that the innocent explanation theory was possible.
Save for the issue of the pair of punch holes on the second
page of
MP169/04 Hattingh’s main findings could also be consistent with
the innocent explanation theory.
70.
It is true that the issue of the pair of punch holes on the second
page does raise certain questions, but whether in and of
itself, this
is sufficient to establish fraud on the part of the defendants is
doubtful.
71.
Considering the evidence of those persons who worked in the office of
the department in Kimberley at the relevant time and the
evidence of
those who investigated this matter on behalf of the department at
that time, it is clear that the Kimberley office
of the department
was under severe pressure during and around April 2004.
72.
The MPRDA came into effect on the 1
st
May 2004. Holders of
“old order” rights held significant advantages over new
applicants for mineral rights under the
MPRDA. Therefore there was a
rush by those involved in the mining sector to secure their old order
rights before the cut-off date.
The evidence was that on the last day
for registration of permits under the old legislation twenty permits
were registered and
issued. By contrast on a normal day if any
permits were issued at all, there would not be more than one or two
permits issued on
that particular day.
73.
From the evidence led on this transition period it would be fair to
conclude that there was a measure of chaos that prevailed
in that
office at that time.
74.
Turning to the question of the hearsay evidence tendered by Swart
relating to the signing of the second pages in bulk by Mfetuane.
I
canvassed the issue of hearsay evidence directly with Mr Duminy
during his argument on behalf of the plaintiff. His attitude
was that
he would not take the matter further as he did not believe anything
turned on it. Having regard to Mr Duminy’s attitude,
I intend
to admit this evidence, but I do not intend to give it much weight. I
will only rely on it to the extent that it supports
the conclusion
that there was a measure of chaos in that office at the relevant
time.
75.
Turning to the related contention made on plaintiff’s behalf
that it was only the second defendant that stood to gain
from a
forged MP169/04. In my view this argument does not take account of
the fact that the second defendant used professional
advisers in
their application for a mining right. These professional advisors
would have known that once an old order right had
been secured a
conversion was almost a formality. In these circumstances it would
not matter whether the old order right was for
a period of one year
or five years.
76.
The second defendant and its legal advisors might have made a mistake
in regard to the validity of the permit that second defendant
received or the period they believed the permit to be valid, but
whilst they believed they had a valid permit there would be no
motive
or reason to forge a permit.
77.
It is more probable that second defendant’s legal advisors
would have advised them to lodge an application to convert
their old
order right. The right to do so emerges clearly from the MPRDA.
78.
The argument that the second defendant was the only one to benefit
from a forged MP169/04 and therefore it had a motive to do
so might
have carried more weight if plaintiff could establish that the
forgery occurred after the expiry of the period of validity
of
MP169/03. Understandably, plaintiff is not in a position to do so.
79.
The factors that tend to show that MP169/04 might be a forgery are as
follows:
79.1.
On the face of it, it does not make provision for a period of
validity;
79.2.
The permit number 169/04 does not exist in the permit register for
2004;
79.3.
The pair of punch holes on the second page of the permit when it was
examined by Hattingh still raises some questions; and
79.4.
The covering letter refers to MP169/03.
80.
The factors that tend to support the “innocent explanation
theory”, are as follows:
80.1.
The physical appearance of MP169/04 shows that a great deal more
space was left to make provision for the coat of arms on
the
department’s letterhead;
80.2.
In these circumstances it is probable that the provision for the
period of validity, which appears at the bottom of the first
page in
MP169/03, would have fallen off the bottom of page one on MP169/04
and would have been moved by the word processor to the
second page;
80.3.
If a member of staff changed the permit number to reflect the year of
actual issue and reprinted the first page on a computer
whose
template left more space for the coat of arms on the letterhead, it
is probable that MP169/04’s physical appearance
would be as it
is today;
80.4.
If MP169/04 was in fact forged, it is an almost unbelievably shoddy
attempt at forgery. If one is going to the trouble of
committing a
criminal act and forging an important document such as a mining
permit, you would expect the perpetrators to at least
go to the
trouble of making it look valid on the face of it;
80.5.
In fact it is also incredibly stupid for a forger to use a permit
number that clearly doesn’t exist in the permit register.
It
would be more probable for a forger to stick to the 2003 register
number. To use a permit number that doesn’t exist simply
draws
attention to the document and announces its doubtful provenance; and
80.6.
It begs the question as to why the second defendant would forge an
old order right when it was clearly entitled to an old
order right on
the basis of the record of decision and once it had an old order
right, all that it needed to do was to lodge an
application for
conversion.
81.The
“innocent explanation theory” is compatible with an
official letterhead being used for MP169/04. In these circumstances,
the use of the official letterhead becomes a neutral factor.
82.
The evidence in relation to the covering letter was that it was
drafted in 2003 when the entry was made in the permit register.
In
the chaos prevalent in the Kimberley office of the department during
the transition period to the MPRDA it is possible that
the covering
letter might simply have been sent out without reading and checking
it. Clearly, the office was overwhelmed during
this transition
period.
83.
While the pair of punch holes on the second page raises some
questions. It does not in and of itself prove that the document
was
forged. Mr Van Den Heever (“Van Den Heever”), the second
defendant’s attorney gave evidence that the document
was
pristine and without punch holes when he received it. Van Den
Heever’s evidence will be considered in greater detail
later in
this judgment.
84.
I now turn to consider the plaintiff’s second contention being
that the absence of MP169/04 from the department’s
records and
it being found in the rehabilitation file during the discovery
process for the present action is suspicious.
85.
It emerged from the evidence of Oosthuizen and Van Den Heever that
there had been telephonic contact between Van Den Heever’s
secretary and Oosthuizen as well as between Van Den Heever and
Oosthuizen during the period April to June 2004.
86.
The point of this communication was to establish what happened to the
second defendant’s mining right and Van Den Heever’s
office wanted to establish what happened to the permit itself as it
had not at that time been received by the second defendant.
87.Although
Oosthuizen was in the environmental department there had been contact
between her and Van Den Heever’s office
regarding the permit
which was the function of the mineral laws department. However, it
appears that over the transition phase
to the MPRDA everyone pitched
in where they could.
88.
When dealing with the enquiry of where the permit was Oosthuizen
checked the mineral laws file and found on top of it a package
of
documents being a copy of the covering letter and the permit.
Oosthuizen’s evidence was that she took this pack of documents
made a copy replaced the original copy in the mineral laws file,
faxed the new copy to Van Den Heever’s office and placed
the
new copy of such documents in the environment file.
89.
In bundle “C” at pages 138,139,139A and 139B the document
that was received by the fax machine in Van Den Heever’s
office
appears. This document has the imprint of the receiving fax printed
on the bottom of each page. This imprint shows that
the fax was
received on the 14
th
June 2004 at 10:43, that this
document was the 15
th
communication received by that fax
machine and the pages received were numbered consecutively. Showing
that four pages were received.
90.
Pages 3 and 4 of this fax show that MP169/04 was faxed to Van Den
Heever’s office on the 14
th
June 2004. This document
shows Oosthuizen’s handwritten note on the front page of the
covering letter, “For Attention:
Rista 054 – 3388111”.
91.
Rista was Van Den Heever’s secretary at that time and the
number written on the document by hand is the fax number of
Van Den
Heever’s office.
92.
The next document in bundle “C” at pages 140, 141, 142
and 143 show the same document without the fax imprint at
the bottom
of the page. This document has a typed inscription at the top right
hand corner of each page “REHAB – 17”,
“REHAB
– 18”, “REHAB – 19” and “REHAB –
20” respectively. The Court was informed
by Mr Trengove that
these inscriptions were made by his junior Mr Vorster during the
discovery process when preparing for this
trial.
93.
The evidence was that this was the document that was faxed by
Oosthuizen and placed by her in the rehabilitation file after
it was
faxed. Oosthuizen’s evidence when asked about the reference to
MP169/03 in the covering letter was that she did not
read the
document, she simply faxed it.
94.
Another feature of both these documents that needs to be mentioned is
that somewhere between a third of the width and halfway
into the
width of each of these pages there is a light area that runs from the
top to the bottom of each page. Even though it appears
that these two
documents were photocopied at different magnifications this light
stripe seems to match in each respective page
of the respective
documents. The evidence was that this light stripe was caused by the
department’s photocopying machine.
95.
Mr Grobler pointed out another copy of the covering letter of this
document appeared in the SCA record. This copy of the covering
letter
shows Oosthuizen’s covering note but it does not show the fax
imprint at the bottom of the page. The evidence of Van
Den Heever was
that this copy of the document was faxed to his Kimberley
correspondent, Mr Potgieter (“Potgieter”)
when he was
trying to trace the original permit. Mr Grobler submitted that at the
time of the application 292/07 and the subsequent
appeal, the
relevance of these three copies of the same document was not
realised.
96.
No evidence was tendered to try and explain why the fax imprint did
not appear at the bottom of the page of the covering letter
faxed to
Potgieter’s office. There are a number of possible
explanations. One cannot just assume that the explanation for
the
fact that the fax imprint does not appear on the bottom of this copy
must be a sinister one.
97.
In argument Mr Duminy submitted that this fax would have been highly
relevant in matter number 292/07 and the fact that it only
comes to
light now is very suspicious. I would be more impressed by Mr
Duminy’s argument if he told me that the contents
of the
rehabilitation file were discovered in matter number 292/07 and this
fax did not appear from such discovery. I have to assume
that the
reason Mr Duminy did not say so was because he was not in a position
to say so.
98.
Mr Duminy also submitted that the fax should have been in the mineral
laws file and the fact that it comes out of the rehabilitation
file
is also suspicious. Mr Grobler countered with the argument that the
fact that MP169/04 was missing from the mineral laws file
when
Oosthuizen’s evidence was that she returned it too that file is
equally suspicious. In my view Mr Grobler’s point
is well made.
99.
Turning to the third contention, being that second defendant had in
fact received MP169/03 and was well aware that it was only
valid for
a period of one year from the 28
th
April 2004. That
consequently there was a motive for someone from the second defendant
to collude with someone from the department
to forge or manufacture
MP169/04.
100.
On this aspect, plaintiff called a Mr Daniel Johannes Van Zyl (“Van
Zyl”). Van Zyl was sometimes referred to as
“Danie”
or “Danie Van Zyl” by some of the other witnesses. Van
Zyl’s evidence was to the effect that
he was a former employee
of the second defendant. That he prepared the second defendant’s
application for an old order right
on Vrysoutpan. He left the employ
of the second defendant at the end of May 2004. He never saw the
permit concerned himself. He
was told by someone, he can’t
remember who it was that the permit had been issued but that it was
only valid for one year.
There was a handover meeting in his office
before he left attended by one Arrie Bester and Andre Blaauw. He
remembers that something
needed to be done in respect of the second
defendant’s mining right on Vrysoutpan, but that Bester and
Blaauw had a nonchalant
unconcerned attitude.
101.
At some later stage Van Zyl read about the second defendant’s
alleged mining with a forged permit on Vrysoutpan in the
Rapport
newspaper. It was later established that this was probably the
article that was published in Rapport on the 21
st
February
2010. A day or two after reading this article he phoned a certain
Piet Prins (“Prins”) whom he considered
to be a friend of
his and asked him what was happening that the second defendant had
made the papers. According to Van Zyl, Prins
told him that he (Prins)
told Elizma Fourie (“Fourie”) to get the permit out and
when they saw the permit they realised
that it was not a valid permit
and then it emerged that Fourie never applied for the conversion.
Prins who testified later on behalf
of the second defendant denied
telling Van Zyl these things.
102.
Van Zyl in his testimony was particularly vague in regard to how he
heard that the permit application had been successful but
that it was
only valid for one year. He acknowledged that he had never seen the
permit. He left the employ of the second defendant
at the end of May
2004.
103.
Van Zyl maintains that he could have heard of the successful
application either from Van Den Heever, second defendant’s
attorney or that Van Den Heever had told Blaauw who told him. Van Den
Heever denied discussing the permit with Van Zyl. Van Den
Heever was
criticised by Mr Duminy for embroidering his version when pushed
under cross-examination in relation to the opportunity
he may have
had for discussing the permit with Van Zyl he disclosed that he dealt
with Van Zyl when dealing with second defendant’s
labour
disputes. Van Den Heever did not give me the impression that he was
embroidering his evidence. Van Den Heever was under
cross-examination
for a period that stretched over two days. I got the impression he
was trying to be fastidious and provided detail
as to his contact
with Van Zyl.
104.
The evidence relating to the circumstances under which Fourie left
the employ of the second defendant does not show that she
left under
difficult circumstances. In fact there is still an ongoing
relationship between the Blaauw group of enterprises and
Fourie that
undermines the contention that she left under difficult circumstances
because she neglected to submit the conversion
application.
105.
My overall impression of Van Zyl’s evidence was that he was
just too vague on how he came to learn of the permit being
granted
and that it was only valid for a year. In the circumstances I cannot
give this testimony any real evidential weight. The
evidence of the
conversation with Prins around Fourie’s failure to submit the
conversion application is denied by Prins and
is not supported by the
evidence relating to her departure from the employment of the Blaauw
group and is also improbable in the
light of Fourie’s ongoing
relationship with the Blaauw group.
106.
Then plaintiff also adduced the evidence of Mr Zondagh (“Zondagh”)
and Adjudant Botha (“Botha”) to
show that second
defendant had indeed been in possession of MP169/03. To answer the
plaintiff’s evidence on this aspect the
second defendant led
the evidence of Ms Hester Pienaar (“Pienaar”).
107.
Zondagh was also a former employee of the second defendant and he
described himself as the mine manager on Vrysoutpan. His
evidence was
that a Mr Jalie du Toit (“Du Toit”) from the plaintiff
had visited Vrysoutpan and had made certain allegations
about the
second defendant’s permit. As a result of this Zondagh
contacted Prins and asked about the permit. His evidence
was that he
was given a permit which had already expired to keep in his house on
the pan. He then goes on to state that the commander
of the Noenieput
police station collected this permit from his housekeeper one day
when he was absent from Vrysoutpan and that
this was reported to him
after the event by his housekeeper. After the first permit was taken
in this fashion, he was later given
a copy of MP169/04 in a frame and
he made copies of this for a policeman from the Witdraai police
station by the name of De Koker.
108.
Zondagh’s evidence was of a very poor quality. He confused
dates, he mixed up the chronology of events. He changed the
chronology of events at different stages of his evidence. Having
regard to the purpose for which Zondagh’s evidence was given,
the date when he allegedly came into possession of MP169/03 is
critically important. It is not something that can be ignored or
lightly brushed over. There is also at least one improbability to his
version. He claims that he asked for a copy of the permit
because Du
Toit made allegations about illegal mining. The evidence was that Du
Toit made a number of visits to Vrysoutpan but
Zondagh never showed
Du Toit the copy of the permit he had in his possession on any of
these occassions.
109.
Furthermore, in relation to Fourie and Bester’s alleged failure
to compile and submit second defendant’s conversion
application
and how this story came out, he gave a version that was totally at
odds with Van Zyl’s evidence. When confronted
with the fact
that Van Zyl had left the employ of second defendant at the end of
May 2004 and this alleged meeting took place long
after that, Zondagh
developed his evidence and then testified that this subsequent
meeting took place after Van Zyl left but that
he had visited the
second defendant’s offices on a social visit when this meeting
allegedly took place. However, this is
still at odds with Van Zyl’s
evidence on these issues.
110.
In addressing this issue in argument Mr Duminy tried to excuse these
lapses on Zondagh’s part by arguing that Zondagh
was not a
sophisticated man and that he had previously been a truck driver and
conceded Zondagh was poor with dates. I am not convinced.
Zondagh’s
evidence was a poor display. To my mind it is inherently unreliable
and must be treated as such.
111.
Botha’s evidence came before court as a result of the plaintiff
bringing an application to re-open its case as a result
of a
reference Zondagh had made to the Nonieput station commander taking
the first permit, alleged to be permit MP169/03. This
application was
granted but Zondagh was recalled to the stand for further
cross-examination before Botha gave evidence.
112.
Botha, an Adjudant in the SAPS, gave evidence that was to the effect
that Gawie Hendriksz (“Hendriksz”) lodged
a criminal
complaint by faxing an affidavit to him that there was illegal mining
activity going on at Bloupan on the farm Annesley.
113.
Botha’s evidence-in-chief, surprisingly, commences with the
allegation that he went to Vrysoutpan to investigate this
complaint
of illegal mining on Bloupan. It is only under cross-examination that
Botha said no he went to Bloupan first and spoke
to one Stoffel Gooi
(“Gooi”) who referred him to Zondagh on Vrysoutpan and
that Gooi said that Zondagh was in possession
of all the permits. Why
Botha started off his evidence-in-chief in this way was never
satisfactorily explained.
114.
Botha’s evidence was to the effect that he arrived on
Vrysoutpan, knocked on Zondagh’s door. That a lady who he
thought was the secretary opened the door, he explained what he
wanted to her. That she did not invite him in but went inside and
returned with a document. Botha took this document and drove off and
a short distance away he stopped and examined the document
and saw
that it had already expired.
115.
Under cross-examination he was asked if he saw that the document
referred to Vrysoutpan and not Bloupan. His answer was that
he
thought that the document applied to all the salt pans. This aspect
was also not satisfactorily explained. It appears that Botha
did no
further investigation. He completed the docket took it to his
superior in Upington for inspection. His superior told him
to refer
it to the senior public prosecutor. Which he did and the docket got
lost never to be seen again. Botha’s investigation
diary was
archived and was not available at the trial.
116.
Botha read in the press that there was an investigation going on in
relation to the illegal mining on Vrysoutpan. He heard
indirectly
that the Witdraai police station was investigating the Vrysoutpan
matter. Vrysoutpan being within the area of jurisdiction
of the
Witdraai police station. When asked whether he informed the Witdraai
police that he had in investigating the Bloupan matter,
taken into
his possession a vital piece of evidence related to their
investigation he answered no he did not contact them because
he only
heard indirectly about their investigation and he expected Zondagh to
tell the Witdraai police that he (Botha) had investigated
and taken
the earlier permit. This answer is in my view singularly
unconvincing.
117.
Furthermore, if one looks at Botha’s evidence in its entirety
he simply believes that the permit, although it refers
to Vrysoutpan
also covered Bloupan and he seems to believe this gave him a
convincing case in relation to illegal mining on Bloupan
that he
thought could go to the prosecuting authority without any further
investigation. I would at the very least have expected
Botha to go to
the head office of SAS in Upington and also phone up the department
to confirm the position in relation to Bloupan.
None of this was
done. Botha’s investigation was so perfunctory that his
evidence just seems improbable.
118.
Also Botha could only identify the permit itself, being MP169/03 in
the format that it was faxed to him. The document was shown
to him in
the format in which he probably would have received it when he
allegedly took it from Zondagh’s house on Vrysoutpan
and he
could not identify it. At this stage of his evidence Botha was being
questioned by Mr Duminy who gave him every opportunity
to realise his
mistake and correct his evidence, but he failed to do so.
119.
Botha in his oral evidence also contradicted what was stated in the
affidavit he filed in the plaintiff’s application
to re-open
its case.
120.
Mr Grobler also criticised the manner in which Botha identified the
permit concerned. The permit was faxed to Botha to identify.
Mr
Grobler described this procedure as akin to a complainant being led
into an identity parade with only one person, the suspect
on parade.
In my view Mr Grobler’s point is well made.
121.
Ms Pienaar was called by the second defendant and she gave evidence
that she worked for Zondagh as a domestic worker on Vrysoutpan
from
2006 to 2009. She further gave evidence that she knew Botha from the
Noenieput police station and De Koker from the Witdraai
police
station. She even knew Botha’s nickname which was related to
his once red hair. Pienaar maintained that she never
saw Botha or De
Koker on Vrysoutpan. That she had never opened the door of Zondagh’s
house to Botha and that she had not
given Botha a document. Pienaar
maintained she would not scratch around Zondagh’s work things.
122.
Pienaar’s evidence is also not without its flaws. She appears
almost too ready to state things as absolutes. She had
never seen a
permit. There was no permit. This when nobody disputed that Zondagh
was given a copy of MP169/04 in a frame that hung
on a wall in his
house. That Botha and De Koker had never been on Vrysoutpan. But Mr
Duminy’s justification for the faults
in Zondagh’s
evidence would fit far more comfortably on Pienaar. Here was a woman
that had been born, raised and educated
in the far reaches of the
Kalahari. She was a domestic worker, had no business with permits or
licences of any kind. Licences were
not her concern, her job was to
clean the house.
123.
Mr Duminy submitted that Pienaar had a motive to lie in that she
believed she ought not to have given the document to Botha
and that
she would be in trouble if she admits to it. This submission is not
impressive because Pienaar had left Zondagh’s
employ several
years ago. There can be no meaningful repercussions for Pienaar at
this stage.
124.
Pienaar may also have been mistaken about the date that she left
Vrysoutpan. Nevertheless taking an overall view of her evidence
and
performance in the witness box and comparing it with the overall
evidence and performance of both Zondagh and Botha, it is
my view
that Pienaar’s evidence is more probable and more reliable. It
is on this basis that I accept Pienaar’s evidence
insofar as it
relates to the permit not being given to Botha.
125.
Despite my finding in Pienaar’s favour there is a further
aspect regarding the permit MP169/03 that deserves mention.
It
emerges from the evidence that second defendant was given a copy of
MP169/03 at the meeting that took place on the 6
th
December 2006. Zondagh’s evidence as to dates and when he was
allegedly given this permit is so unreliable that it must be
ignored.
Botha’s evidence was that his investigation took place in 2007.
So even if I am wrong in accepting Pienaar’s
evidence in this
regard and even if Botha did obtain the permit MP169/03 from Pienaar
in the circumstances he testified to, in
these circumstances it may
not be the “smoking gun” that it is alleged to be.
126.
Mr Duminy also latched on to a period where there was no
correspondence or contact between the department and Van Den Heever
or his office during May 2004. Mr Duminy pointed out that before this
period there was correspondence and file notes relating to
telephone
calls but during this period of approximately three weeks there was
what he termed “radio silence”. Mr Duminy
insinuated that
this was suspicious. In answer to this I need only refer back to the
point made earlier, which is even more valid
at this stage of the
saga. At this stage everyone agreed that not only was second
defendant entitled to an old order right, it
had an old order right.
At this stage it would make no sense to forge MP169/04 as second
defendant could simply apply for a conversion
under the MPRDA.
127.
Considering the evidence, and for the reasons set out above, I do not
believe that plaintiff has discharged the onus of establishing
that
its version is consistent with all of the known or established facts
and that on a balance of probabilities it is the most
probable
version. In my view plaintiff has not established fraudulent conduct
on the part of either the first or the second defendants.
128.
In these circumstances plaintiff’s case must fail. Also
in these circumstances it is not necessary to decide the
special plea
of prescription or the failure to give full notice under the
Institution of Action Against Certain Organs of State
Act. Nor is it
necessary to give consideration to the issues of causation.
129.
The last issue relates to costs. It was common cause that the costs
in respect of the applications to recall Zondagh and to
re-open the
plaintiff’s case and call Botha should follow the result. This
is a practical and pragmatic approach and in the
circumstances I
agree with it. It was also common cause that any costs order should
include the costs of two counsel as all legal
teams had in fact
employed two counsel. In the circumstances of this case I can see no
reason to depart from the norm that costs
should follow the result.
In
the result the following order is made:
1.)
The plaintiff’s case is dismissed with costs.
2.)
Such costs to include the costs of the applications to recall Zondagh
and to re-open the plaintiff’s case and call Botha
as well as
the costs occasioned by the employment of two counsel.
LEVER
AJ
APPEARENCES:
Plaintiff:
Adv. Duminy SC & Adv. Tredoux
1
st
Defendant: Adv. Trengove SC & Adv. Voster
2
nd
Defendant: Adv. Grobler SC & Adv. Gildenhuys
Dates
of Hearing: 26, 27, 30 August 2013; 5, 6, 8, 9, 12, 13, 14, 15 May
2014; 3, 4, 5, 6, 7, 10, 11 November 2014; 10, 11, 12,
13 February
2015
Date
of Judgement: 24 April 2015
[1]
Act 28 of 2002.
[2]
Act 40 of 2002.
[3]
LOOMCRAFT FABRICS CC v NEDBANK LTD & ANOTHER
[1995] ZASCA 127
;
1996 (1) SA 812
(AD) at 817 E-H.
[4]
CWH SCHMIDT & H RADEMAYER., Law of Evidence., Lexis Nexis.,
Issue 12., 3-6.
[5]
Schmidt., supra., at 3-6.
[6]
Gates v Gates
1939 AD 150
at 155.