Black v Joffe (A966/05) [2006] ZAWCHC 46; [2007] 2 All SA 161 (C); 2007 (3) SA 171 (C) (26 October 2006)

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[2006] ZAWCHC 46
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Black v Joffe (A966/05) [2006] ZAWCHC 46; [2007] 2 All SA 161 (C); 2007 (3) SA 171 (C) (26 October 2006)

27
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOODHOPE PROVINCIAL DIVISION)
“
REPORTABLE”
CASE
NO. A966/2005
In
the matter between:
RAYMOND
BLACK APPELLANT
AND
RONALD
JOFFE RESPONDENT
JUDGMENT
DELIVERED ON 26 OCTOBER 2006
DLODLO,
J
INTRODUCTION
(1) The crisp issue for
decision in this matter is whether a witness who, without having been
suborned to do so, deliberately testifies
falsely incurs delictual
liability to the unsuccessful litigant. The matter emanated from the
Magistrate’s Court and has indeed
a certain history. On appeal
before us, Mr. R. J. Tee and Mr. Paul Tredoux appeared for the
Appellant and the Respondent respectively.
FACTUAL BACKGROUND
(2) During 1992 the
Respondent purchased a dwelling house from a Mr. Conlin in terms of a
written agreement of sale which contained
the usual “voetstoots”
clause. Prior to the conclusion of the aforementioned sale Mr. Conlin
had caused certain building works
to be done on the property. That
entailed the construction of a retaining wall and the placement of a
deck. This retaining wall and
deck were to have been constructed in
compliance with certain approved building plans particularly the
following:
As is the usual practice the
City Council caused Mr. Conlin to appoint an engineer to oversee the
work and to ensure that the approved
building plans were adhered to.
The engineer was to have
issued a completion certificate in order to certify that the works
were properly done.
(3) Mr. Conlin appointed Mr.
Richard Eagen as the engineer, but Mr. Eagen was never summoned to
the site by either Mr. Conlin (who
was an owner builder) or the
Appellant (who was Mr. Conlin’s builder). At the time of the
conclusion of the agreement the Respondent
was not aware:
that the works did not
comply with the approved plans; and
that a completion
certificate had not been issued.
Upon the expiration of some
months after the Respondent had taken transfer of the property, the
City Council drew the fact that there
was no completion certificate
in respect of the works to the Respondent’s attention, and the
Respondent unsuccessfully attempted
to obtain the said certificate
from Mr. Conlin. Mr. Eagen attended at the premises and indicated his
preparedness to issue the necessary
completion certificate provided
that he was satisfied that the work had been performed in accordance
with the Approved Plans. For
this purpose two exploratory holes were
dug in the retaining wall, but these revealed that the wall
constructed did not comply with
the Approved Plans. In fact, the
deviations from the Approved Plans were so gross that an entirely
different wall unsuitable for
the purpose of serving as a retaining
wall had been built. This necessitated extensive remedial work.
ISSUES IN THE FIRST
MAGISTRATE’S COURT ACTION
(4) The Respondent instituted
an action against Mr. Conlin based on the above factual scenario. Mr.
Conlin, however, relied on the
“voetstoots” clause. In response
thereto, the Respondent relied on the rule in
Van der Merwe v
Meades
1991 (2) SA 1
(A), which is to the effect that a party
cannot rely on a “voetstoots” clause where there has been a
deliberate concealment or
non disclosure.
(5) Mr. Conlin testified at
the trial and denied having any knowledge of any deviations from the
Plans save in respect of one minor
aspect, namely the recession of
the foundations to accommodate a planter (that is a seedbox). The
Appellant was called as a witness
by Mr. Conlin, and he, in essence,
corroborated Mr. Conlin’s version. The following aspects of the
Appellant’s testimony deserve
mentioning:
Engineers always go
overboard when designing retaining walls and they include in the
design specifications (a number of elements)
which are unnecessary;
The Appellant had taken it
upon himself to deviate from the Approved Plans, and he had not
informed Mr. Conlin of this as it was
“unnecessary”;
Mr. Conlin and the Appellant
had not decided to alter the specifications; Mr. Conlin had not
instructed the Appellant to vary the
thickness of the concrete
infill;
It was his (Appellant’s)
duty as the builder to ensure that the consulting engineer was
apprised of the fact that the works had
commenced, and he,
(Appellant) had simply failed to notify the engineer thereof, and
this was his fault.
(6) The Magistrate in
deciding the matter rejected Mr. Conlin’s version and held that he
must have been aware of the deviations
from the approved plans and
accordingly found for the Respondent. Mr. Conlin, however, took the
matter on appeal. The Appeal was
heard by Conradie and Blignault JJ.
Judgment of the appeal Court was written by Blignault J. The learned
Judge noted that it was
an “important factor” that Black’s
testimony corroborated that of Mr. Conlin’s. The result was that
the Appeal was upheld.
(7) Consequent to losing the
Appeal the Respondent suffered damages namely:
The quantum he had claimed
in respect of remedial work undertaken;
His own costs in respect of
the Magistrate’s Court action;
Mr. Conlin’s costs in
respect of the Magistrate’s Court action;
His own costs in respect of
the High Court Appeal;
Mr. Conlin’s costs in
respect of the High Court Appeal.
THE ISSUES IN THE SECOND
ACTION
(8) Upon losing the Appeal as
foresaid, the Respondent instituted an action against the Appellant
in which he claimed damages from
the latter. The present Appeal
concerns the Judgment which is at issue in these proceedings. The
Respondent initially relied on the
Appellant’s deliberate
deviations from the approved building plans. The Appellant responded
by filing a Special Plea and a Plea
Over on the merits. The Special
Plea raised the question of prescription. It is not necessary to
canvass the Special Plea for purposes
of this Appeal. The Plea Over
contained an averment to the effect that the Appellant had been
instructed by Mr. Conlin to deviate
from the Approved Plans. This
directly contradicted the testimony which the Appellant had given
under oath in the first Magistrate’s
Court action. This moved the
Respondent to amend his Particulars of Claim. In terms of the amended
Particulars of Claim the Respondent
claimed the damages which had
flowed from the false testimony which Mr. Black had given. The
Magistrate observed in his Judgment
that:
“
This is an
unprecedented claim in our law and I must first decide if Plaintiff
has a cause of action.”
Of note is the following
finding by the Magistrate:
“
The gravamen of
Plaintiff’s complaint is that Defendant deliberately lied in the
Magistrate’s Court case, not that he was mistaken,
confused,
careless, unable to recall or otherwise subject to the normal
problems associated with witnesses. I cannot see any grounds
for not
holding a person liable for a deliberate action which causes another
loss. It will surely not be against public policy, not
open the
floodgates of litigation, nor tend to discourage persons from
testifying, if only deliberate misstatements are targeted.”
(9) It would appear that the
aforesaid finding by the Court
a quo
was not appealed against
and is not the subject matter in this Appeal. It needs to be
mentioned that the aforementioned finding by
the Court
a quo
found justification on Mr. Eagen’s testimony as well. The latter
had testified that the departure from his specifications were
material and must have been deliberate. Before embarking on the vexed
question in issue in the instant matter, I consider it prudent
to
refer to what obtains in other Countries.
A COMPARATIVE SURVEY OF
DEVELOPMENTS IN FOREIGN JURISDICTIONS
English Courts
(10) It is said in English
law that; “an action will not lie against a witness for giving
false evidence in a court of justice (
Revis v Smith
[1856] EngR 51
;
(1856) 18 CB 126
at 144.) Effectively then “no action lies, whether
against judges’, counsel, jury, witnesses or parties for words
spoken in the
ordinary course of any proceedings before any court or
tribunal recognized by law. The evidence of all witnesses or parties
speaking
with reference to the matter before the court is privileged,
oral or written, relevant or irrelevant, malicious or not.”
(
Halsbury 4
th
Edition Volume 28
)
“Thus no civil action lies against a witness for perjury at the
suit of the person damnified by the false evidence. This immunity
is
immunity from any form of civil action.” (
Clerk and Lindsell on
Torts
, 18
th
edition, 2000)
(11) This general immunity
from civil liability attaches “to all persons in respect of their
participation in proceedings before
a court of justice, judges, court
officials, witnesses, parties, counsel and solicitors alike…”
“
Why should a witness be
able to avail himself of his position in the box and to make without
fear of civil consequences a false statement
which in many cases is
perjured, and which is malicious and affects the character of
another? The rule of law exists not because
the conduct of those
persons ought not to be actionable, but because if their conduct was
actionable, actions would be brought against
judges and witnesses in
cases, where they had not spoken with malice, in which they had not
spoken with falsehood.” (
Munster v Lamb
(1883) 11
QBD, 588.
607)
(12) The immunity of a
witness from suit in respect of evidence given in court was described
by Simon Brown LJ in
Silcott v Commissioner of Police for the
Metropolis
(1996) 8 Admin Law 633 at 636, as a
fundamental rule of law. The origins of the rule were traced in the
judgment of Kelly CB in
Dawkins v Lord Rokeby
(1873) LR
8 QB at 263-265 where the following appears:
“
upon all these authorities
it may now be taken to be settled law that no action lies against a
witness upon any evidence given before
any court or tribunal
constituted according to law.”
The basis of immunity in
respect of evidence given in court was explained by Lord Halsbury in
Watson v M’Ewan, Watson v Jones
[1905] UKHL 1
;
[1905] AC 480
at 486,
“…
the conduct of legal
procedure by Courts of justice, with the necessity of compelling
witnesses to attend, involves as one of the
necessities of the
administration of justice the immunity of witnesses from actions
being brought against them in respect of the
evidence they have
given. In my view, it is absolutely inarguable, it is settled law and
cannot be doubted.”
(13) The immunity given to a
witness or potential witness in civil or criminal proceedings is
based on the reasoning that,
“
The administration of
justice would be greatly impeded if witnesses were to be in fear that
persons against whom they gave evidence
might subsequently involve
them in costly litigation.” (See per Salmon LJ in
Marrinan v
Vibart
[1962] 1 All ER 869
at 871.)
Additional reasons why
immunity is traditionally conferred upon witnesses in respect of
evidence given in court include the need to
ensure that witnesses,
“
may give their evidence
fearlessly and to avoid a multiplicity of actions in which the value
or truth of their evidence would be tried
over again. Moreover the
trial process contains in itself, in the subjection to cross
examination and confrontation with other evidence,
some safeguard
against careless, malicious or untruthful evidence.” (
Roy v
Prior
[1970] 2 All ER 729
at 736,
[1971] AC 470
at 480.).
(14) It is not only the need
to stop matters being litigated over and over again by disgruntled
parties (
Roy v Prior
[1970] 2 All ER 729)
, but also the
need to protect witnesses themselves from suits stemming from the
evidence they are to give (
Munster v Lamb
(1883) 11
QBD, 588)
, “a
fortiori
the need to encourage witnesses to
come forward and say what they have to say in court.” (
Stanton
v Callaghan
[2000] 1 Q.B.75.) The immunity extends to any
civil proceedings brought against a defendant that are based on the
evidence that he
or she gives in court. Consequently, immunity from
suit extends to the honest as well as the dishonest witnesses,
“
immunity is not granted
primarily for the benefit of the individuals who seek it. They
themselves are the beneficiaries of the overarching
public interest,
which can be expressed as the need to ensure that the administration
of justice is not impeded (
Stanton v Callaghan
[2000] 1
Q.B.75.) Immunity is granted “on the basis of a supervening public
interest which transcends the need to provide a remedy
in an
individual case.” (
Stanton
(supra)
at 88.)
(15) Collins J pointed out in
Meadow v General Medical Council
[2006] EWCH 146 that
the dishonest witness may then be guilty of the criminal offence of
perjury and can be prosecuted if sufficient
evidence exists, however,
if such evidence is not available the immunity exists because of the
requirement that a witness should
be able to give evidence free from
fear of any reprisal. Public policy states that there is a need to
protect the honest witness.
This may result in immunity for the
dishonest witness. Nonetheless, the balance between the right of the
individual to make a claim
and the need, in the interests of the
administration of justice, to ensure that witnesses give evidence in
the knowledge that they
cannot be subjected to action which may seek
to penalize them is struck by giving priority to the latter.
(16) In
Darkur v Chief
Constable of the West Midlands
[2000] UKHL 44
;
2001 1 AC 435
at p464D, Lord
Hutton stated that the rule was necessary,
“
in order to shield honest
witnesses from the vexation of having to defend actions against them
and to rebut an allegation that they
were activated by malice the
courts have decided that it is necessary to grant absolute immunity
to witnesses in respect of their
words in court though this means
that the shield covers the malicious and dishonest witness as well as
the honest one.”
Although Lord Hutton was
referring specifically to actions for defamation, it is clear that
the public policy, which grants immunity,
extends for the same reason
to any action brought, whether or not it alleges malice, bad faith or
dishonesty. The Court continued
in Darkur v Chief Constable of the
West Midlands
supra
and concluded thus:
“
By complete authority,
including the authority of this house (see
Dawkins v Lord
Rokeby
(1875) LR 7HL 744) it has been decided that the
privilege of a witness, the immunity from responsibility in an action
where evidence
has been given by him in a court of justice, is too
well established now to be shaken. Practically I may say that in my
view it is
absolutely unarguable – it is settled law and cannot be
doubted. The remedy against a witness who has given evidence which is
false
and injurious to another is to indict him for perjury; but for
very obvious reasons, the conduct of legal procedure by courts of
justice, with the necessity of compelling witnesses to attend,
involves as one of the necessities of the administration of justice
the immunity of witnesses from actions brought against them in
respect of evidence they have given.”
Scottish Courts
(17) “On the immunity from
suit of witnesses in respect of evidence they have given before
courts of justice and tribunals acting
in a matter similar to courts
of justice there is no difference between the laws of Scotland and
the laws of England. That absolute
privilege attaches to words spoken
or written in the course of giving evidence in proceedings in a court
of justice is a rule of
law based on public policy that has been
established since the earliest times.” (
Trapp v Mackie
[1979] 1 All ER 489)
(See also the case of
Karling v Purdue
[2004] Scot CS 221
(29 September 2004), “the underlying rationale
of the immunity is that witnesses should speak freely, and the
desirability of avoided
repeated litigation on the same issue.”)
Irish Courts
(18) In the case, of
Fagan
v Burgess
[1998] IEHC 52
, O’Higgins J quoted from the case
of
Looney v Bank of Ireland
[1996] 1 IR 157
,
“
at no stage, as far as I
am aware, has it ever been doubted or questioned in any jurisdiction
that there is absolute privilege in
relation to matters in issue in
legal proceedings.”
On appeal to the Supreme
Court the judgment of the High Court in
Looney v Bank of
Ireland
(
supra
) was affirmed. In his
ex tempore
judgment O’Flaherty J said,
“
there is at issue a far
more fundamental point which is the need to give witnesses (and also
indeed, the judge) in Court a privilege
in respect of oral testimony
and also with regard to affidavits and documents produced in the
course of a hearing. Such persons,
either witnesses or those swearing
affidavits, are given immunity from suit. Otherwise, no judge could
go out on the bench and feel
that she or he could render a judgment
or say anything without risk of a suit. Similarly, witnesses would be
inhibited in the way
they could give evidence. The price that has to
be paid is that civil actions cannot be brought against witnesses
even in a very
blatant case, which of course in this case is not, but
even in a case of perjury – which would be such a case – the law
says
that an action cannot lie.”
(19) In Ireland,
“
the constitution
implicitly recognizes that every citizen should have a right of
access to the courts to determine the existence or
breach of a legal
obligation owed to him by any potential defendant. On the other hand,
the Constitution expressly recognizes the
need for finality in the
judicial process. Moreover, it is recognised that justice is more
likely to be achieved where parties participating
in litigation
whether as parties, witnesses, judges, jurors or lawyers, can
discharge their function without the fear of being held
to account,
at the suit, perhaps of a disgruntled litigant for the manner in
which he performs his role.”(
E. O’K v M.N., P.C., Erinville
Hospital and the Southern Health Board
[2001] 3 IR
568.)
The court in this particular case did consider that there may
be a limit to the immunity but only in cases of ‘flagrant abuse’
of the court process. The Civil Liability and Courts Act, No 31 of
2004, which became law in Ireland on the 21
st
July 2004,
makes wide ranging new provisions for the regulation of civil claims
for compensation. It creates a new offence of giving
false evidence;
however, this is limited to personal injuries actions.
US Courts
(20) Except when authorized
by statute, no civil action lies to recover damages caused by the
giving of false testimony. (The only
jurisdiction that recognises a
civil action for perjury is Maine, which has a statute authorizing
such an action) In
Eikelberger v Tolotti
,
96 Nev, 525
, 531,
611 P.2d 1086
, 1090 (1980) at 531.1 the Nevada
Supreme Court noted, “it is uniformly held that the giving of false
testimony is not civilly actionable.”
Thus, a party injured by
perjured testimony cannot bring a civil action against the opposing
party or a witness who has offered perjured
testimony, even if the
perjury has affected the final judgment in the case. The court went
on to say that, “it is important to
the administration of justice
that full disclosure by a witness be not hampered by a possible
future damage suit. Consequently, perjury
is an offence against the
public only, and subject only to the criminal law”.
(21) Absolute immunity from
civil liability for damages was affirmed by the Supreme Court in
Briscoe v LaHue
,
460 US. 325
, 103 S Ct.1108
75 L.Ed 2
nd
96 (1983),
“
in damages suits against
witnesses, ‘the claims of the individual must yield to the dictates
of public policy, which requires that
the paths which lead to the
ascertainment of the truth should be left as free and unobstructed as
possible. A witness’s apprehension
of subsequent damages liability
might induce two forms of self-censorship. First witnesses might be
reluctant to come forward to
testify. And once a witness is on the
stand, his testimony might be distorted by the fear of subsequent
liability.”
(22) In
US v
Parra-Garcia
2001 10Cir 13
242 F.3d 392
the court held that,
“
Public policy reasons for
the rule include: (1) the absolute immunity for witnesses in judicial
proceedings as discussed in
Briscoe v Lahue
(
supra
),
i.e. encourages witnesses to speak freely without fear of civil
liability, (2) perjury is a public offence and subject only to
the
criminal law, (3) the need for finality in judgments, (4) possibility
of a multiplicity of suits by parties dissatisfied by the
outcomes of
trials, and (5) lack of precedent for such actions.”
THE ISSUES AND SUBMISSIONS
(23) Mr. Tee submitted that
it is not clear, or even probable that the Appellant’s evidence (in
first trial) conclusively influenced
the outcome of the appeal. In
his view, it is, however, clear from the Judgment of the Court of
Appeal that the Appellant’s evidence
was regarded as corroboration
of Conlin’s evidence. Concluding on this aspect Mr. Tee submitted
that the Court of Appeal was of
the view that, even without the
Appellant’s evidence, the Respondent had failed to establish fraud
on the part of Mr. Conlin. It
is indeed so that the Appellant’s
testimony was found to have corroborated that of Mr. Conlin by the
Court of Appeal. But it is
of importance also to pay attention to
what the Learned Judges held, namely:
“
If respondent’s
contentions in this matter were correct, then (Conlin) and
(Appellant) must have colluded in producing the defective
building
work and also in giving false evidence in this matter.”
It is therefore, in my view,
not completely correct to submit that the Court of Appeal held the
view that even without the Appellant’s
evidence, the Respondent had
failed to establish fraud on the part of Mr. Conlin.
(24) The Plea which is
clearly in variance with the testimony given in the first action was
obviously prepared on the instructions
of the Appellant. The latter
has not denied that. In any event regard needs to be had to the
provisions of section 15 of the Civil
Proceedings Evidence Act 25 of
1965, namely:
“
It shall not be necessary
for any party in any civil proceedings to prove nor shall it be
competent for any such party to disprove
any fact admitted on the
record of such proceedings.”
(25) Mr. Tee submitted
further that the Appellant’s failure to testify in the second trial
had the effect of leaving the evidence
led on behalf of the
Respondent uncontradicted. Relying on
Marine & Trade
Insurance Co. Ltd. v Van der Schyff
1972 (1) SA 26
(A) at
39-40; 48-49,
Gericke v Sack
1978 (1) SA 82
(A) at 824,
Olifant v Shield Insurance Co.
1980 (1) SA 903
at 907
he concluded that facts established
prima facie
could be held
to be proved on a balance of probabilities but that, however, failure
by one of the litigants to testify (as
in casu
) does not
affect the question of onus such that the Respondent (in order to
succeed) still bore the onus to establish all the elements
of his
cause of action. I have no quarrel with this submission. The
Appellant who reasonably could have been expected to testify
elected
not to do so. The result is that the Respondent was rendered unable
to traverse the issues about what really happened between
the
Appellant and Mr. Conlin. Mr. Tredoux is correct in holding the view
that the Respondent must be taken to have derived some assistance
in
the rule enunciated in
Gericke v Sack
1978 (1) SA 821
(A) at 827 which reads thus:
“
It is not a principle
of our law that the onus of proof of a fact lies on the party who has
peculiar or intimate knowledge or means
of knowledge of that fact.
The incidence of the burden of proof cannot be altered merely because
the facts happen to be within the
knowledge of the other party. See
R
v Cohen
,
1933 TPD 128.
however, the Courts take cognizance of the
handicap under which a litigant may labour where facts are within the
exclusive knowledge
of his opponent and they have in consequence
held, as was pointed out by Innes, J, in Union Government (Minister
of Railways) v Sykes,
1913 AD 156
at p.173, that:
“
less evidence will
suffice to establish a prima facie case where the matter is
peculiarly within the knowledge of the opposite party
than would
under other circumstances be required.”
(26) In Mr. Tee’s
submission it is inappropriate to sue the dishonest witness under the
circumstances prevailing in the instant
case as it should be borne in
mind that a witness does not testify of his own volition, one of the
litigants must call him to give
evidence. In his view, it is that
decision (whether or not to call him) which could affect the Court’s
judgment. Whilst there may
be merit on this submission, it must be
borne in mind that the Respondent could no longer sue Mr. Conlin at
the time when it came
to light that the Appellant testified in his
(Conlin’s) favour untruthfully.
(27) I support the view that
witnesses should not be discouraged by the potential threat of a
damages action from testifying voluntarily.
In South African law,
there is no absolute immunity for witnesses in civil proceedings
instead there is a qualified privilege for
statements made by a
witness while giving evidence under oath. However, this is quite
distinct from the absolute privilege awarded
through the English
courts.
“
While a witness or a
person making an affidavit does not by our law enjoy the same amount
of privilege which, according to the books,
such persons possess by
English law, yet a qualified privilege is accorded to a witness, who
in judicial proceedings gives evidence
upon oath.”(
Rubel v
Katznellenbogen
1915 CPD)
“
Under Roman Dutch law the
privilege enjoyed by a witness giving evidence in a court of law, in
reply to questions regularly and properly
put to him, was a very real
one. But it was not absolute.” (
Macgregor v Sayles
1909 554.)
(28) In
Preston
v Luyt
1911 EDL 298
, Kotze JP at p319 noted,
“
the great importance to
the administration of justice that witnesses should testify with
minds absolutely free from the apprehension
of being annoyed by civil
actions for anything they may say as such, has already been pointed
out. They are brought into court by
the mandate of the law and
compelled to testify, usually for the benefit of others.”
In the
Preston
case
supra
at 310 the court recognised,
“
the privilege which by our
law a witness, who gives evidence at some judicial enquiry, enjoys is
a fairly wide one. It is necessary
for the protection of the witness
who is compelled to appear and give evidence, as well as for the due
and proper administration
of justice. But it does not go so far as to
amount to what in the English law is known as the absolute privilege
of a witness. By
that system of law it is held that a witness is
absolutely privileged as to anything he may say as a witness, having
reference to
the inquiry, in which he is called.”
(29) This qualified privilege
protects the witness, until it is shown that the limits of the
privilege have been exceeded, by proof
on the part of the plaintiff
that the witness made a defamatory statement, actuated by malice or
an intent to injure or insult him
or her. In such instances,
“
a witness may be proceeded
against for statements made in the course of the evidence he gives in
a judicial proceeding but only in
case it is proved that the
statements he made were
false, malicious and made without
probable cause”
.(
Dippenaar v Hauman
, 1878.Buch
135)- (my underlining). It may then be sufficient to deprive a
witness of this qualified privilege where malice,
“
has induced the witness,
in answering questions put to him, to make for the purpose of
injuring the plaintiff, statements injurious
to him which the witness
knew when he made them to be false or such malice as has induced the
witness to introduce in the course
of his evidence for the purpose of
injuring the plaintiff some statement injurious to him, irrelevant
and not pertinent to any of
the subject matters as to which his
evidence was required, even although when he made it he believed it
to be true.” (
Norden v Oppenheim
1846
3
Menzies 42.))
(30) Although perjury is a
criminal offence in South African law, there are no specific
statutory provisions providing for civil claims
(personal injury or
otherwise) where the plaintiff knowingly gives false or misleading
evidence. (
South Africa: Can Our Courts Shoot Down Liars?
17
February 2005, Cliffe Dekker Inc, T Fletcher.) It is sometimes said
that the criterion for the determination of wrongfulness is
'a
general criterion of reasonableness', i e whether it would be
reasonable to impose a legal duty on the defendant (see e.g.
Government of the Republic of South Africa v Basdeo and
another
1996 (1) SA 355
(A) 367E-G).
(31) In the words of Brand JA
in the case of
Trustees for the Time Being of Two Oceans
Aquarium Trust v Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA),
“
It is to be borne in mind
that what is meant by reasonableness in the context of wrongfulness
is something different from the reasonableness
of the conduct itself,
which is an element of negligence. It concerns the reasonableness of
imposing liability on the defendant (see
e.g. Anton Fagan
'Rethinking
wrongfulness in the law of delict'
2005
SALJ
90
at 109).
Likewise, the 'legal duty' referred to in this context must not be
confused with the 'duty of care' in English Law which
straddles both
elements of wrongfulness and negligence (see e.g.
Knop v
Johannesburg City Council
1995 (2) SA 1
(A) 27BG;
Local Transitional Council of Delmas v Boshoff
2005
(5) SA 514
(SCA) para 20). In fact, with hindsight, even the
reference to 'a legal duty' in the context of wrongfulness was
somewhat unfortunate.
As was pointed out by Harms JA in
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority
SA
2006 (1) SA 461
(SCA) para 14), reference
to a 'legal duty' as a criterion for wrongfulness can lead the unwary
astray.”
Furthermore,
“
When a court is requested,
in the present context, to accept the existence of a 'legal duty', in
the absence of any precedent, it
is in reality asked to extend
delictual liability to a situation where none existed before. The
crucial question in that event is
whether there are any
considerations of public or legal policy, which require that
extension. And as pointed out by Nugent JA in
Minister of
Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA)
at para [21] and endorsed in
Telematrix
(
supra
para [6]) in answering that question.
'When determining whether the
law should recognise the existence of a legal duty in any particular
circumstances what is called for
is not an intuitive reaction to a
collection of arbitrary factors but rather a balancing against one
another of identifiable norms.'
(32) Delictual liability
arises if the essential requirements have been satisfied. These are:
The wrongful conduct on the
part of the Appellant;
Harm sustained by the
Respondent;
A causal connection/ link
between the said conduct and the Respondent’s harm; and
Fault or blameworthiness on
the part of the Appellant.
(See
Edouard v
Administrator Natal
1989 (2) SA 368
(D) at 391.
I intend to discuss wrongful
conduct and the causal link as they relate to the fact of this case.
The other delictual requirements
will merely be referred to in
passing because they appear to be self-evident.
(33)
Whether the Appellant
acted wrongfully
is a conclusion of law which a court draws from
the facts which have been placed before it. (See:
Mabaso v
Felix
1981 (3) SA 865
(A) at 875) However, the wrongfulness
element is antecedent to the requirement that the Appellant’s
conduct must have been intentional
or negligent. Once it has been
established that the conduct has been wrongful the question arises as
to whether the Appellant was
at fault i.e. whether the objectively
wrongful conduct can be imputed to the Appellant in the sense that he
conducted himself negligently
or intentionally.
Administrateur,
Transvaal v Van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A) at 364. As
mentioned earlier on in this judgment wrongfulness is determined
according to the general criterion of reasonableness.
Conduct is
wrongful or unlawful if it is unreasonable, in other words, when in
the light of all the circumstances the Appellant is
expected to
behave in a manner which will not harm the Respondent.
See:
Minister van
Polisie v Ewels
1975 (3) SA 590
(A) at 596-597;
Marais
v Richard
1981 (1) SA 1157
(A) at 1168
(34) In determining the
wrongfulness element Courts also refer to concepts such as the
boni
mores
of the community, the prevailing conceptions in a
particular community at a given time, or the legal convictions of the
community.
Each of these is but a different expression of the general
criterion of reasonableness. In considering whether conduct was
wrongful
the Courts must consider and balance:
the particular conflicting
interests of the parties;
the parties’ reaction to
each other;
the particular circumstances
of the case;
whether any superior legal
rights exist;
appropriate considerations
of social policy.
(
Natal Fresh
Produce Growers’ Association v Agroserve (Pty) Ltd
1990 (4)
SA (N) 753-754). Considerations of public and legal policy are
important and the Courts are required to determine what society’s
notions of justice demands. In other words, the courts are required
to make a value judgment.
(
Administrateur, Natal v Trust
Bank van Afrika Bpk
1979 (3) SA 824
(A) at 833-834). Public
policy is closely associated with, and cannot be separated from, the
community’s perception of justice,
equity, good faith and
reasonableness.
(
Compass Motors Industries (Pty) Ltd v
Callguard (Pty) Ltd
1990 (2) SA 520
(W) at 528-529). The
problem can be approached either from the point of view of either the
Respondent or the Appellant. In
Coronation Brick (Pty) Ltd v
Strachan Construction Co (Pty) Ltd
1982 (4) SA 371
(D)
Booysen J held thus:
“
Those authorities who
approach the matter from the point of view of the Respondent state
that any infringement of a subjective right
of the Respondent is
unlawful and then proceed to enquire whether Respondent had the right
in any given case not to be injured in
the circumstances of that
case. Those authorities who approach the matter from the point of
view of the Appellant state that a breach
of a duty of care owed to
the Respondent is unlawful and then proceed to enquire in each case
whether such a duty existed. Logically
speaking these two approaches
should arrive at the same criterion for unlawfulness and it seems to
be that they do.”
Simply put the question is
whether the Appellant’s conduct interfered with the respondent’s
subjective right in a legally unacceptable
way or constituted the
breach of a duty owed by the Appellant to the Respondent (recognized
in law for purposes of liability).
(35) In the instant appeal
the complaint against the Appellant is that he clearly deliberately
testified falsely in the action which
the Respondent instituted
against Mr. Conlin. It is not the Respondent’s case that the
Appellant mistakenly or inaccurately testified.
The Respondent’s
contention is that the Appellant deliberately lied in order to defeat
the Respondent’s action instituted against
Mr. Conlin. I pause and
rhetorically ask whether the community’s perception of justice,
equity, good faith and reasonableness require
a witness to refrain
from deliberately testifying falsely. Witnesses are required to
testify under oath or affirmation (Section 112
of
Magistrate’s
Courts Act 32 of 1994
). A witness who makes a statement under
oath which he knows or foresees to be false, commit the crime of
perjury. (See: PMA Hunt-
South African Criminal Law and Procedure
Vol II (2
nd
ed. By JRL Milton p. 110). Our law does not
countenance fraud and perjury is a species of fraud (
R v du
Toit
1950 (2) SA 469
(A). The Respondent would have no remedy
because it is only if it can be proved that a successful party was
party to the misdeed
that a judgment obtained by fraud, forgery or
perjury, will be set aside at the suit of a party affected by such
judgment (
Makings & Makings
1958 (1) SA 338
(A).
Boswell v Minister of Police
1978 (3) SA 268
(E) at
273-275 is authority for the proposition that, although there is
inclination to curb liability for misstatements, a statement
made
with the intention to cause harm will normally lead to liability
because the intention to injure is an overriding factor in
favour of
imposing liability.
(36) There is most certainly
no consideration of public policy, fairness and equity which indicate
that a remedy should be denied.
I fully agree that witnesses should
be encouraged to testify, and that they should not be unduly
restricted by potential liability
arising out of inaccurate or
incorrect statements. This judgment is thus no authority for imposing
liability to such witnesses. The
fact of the matter, however, is that
perjury is a very different thing. I agree with Mr. Tredoux that the
conduct complained of in
the instant matter was wrongful in that it
constituted the breach of a duty owed by the Appellant to the Court
which is recognized
in law for purposes of liability, namely, the
duty to refrain from telling deliberate untruths during his
testimony. Whether or not
there is
a causal link between this
wrongful conduct and the harm suffered
is a different question
for determination. As far as causation is concerned, one needs to
bear in mind what was held in
Minister of Police v Skosana
1977 (1) SA 31(A)
at 34-35, namely:
“
Causation in the law of
delict gives rise to two rather distinct problems. The first is a
factual one and relates to the question
whether the negligent act or
omission in question caused or materially contributed to….the harm
giving rise to the claim. If it
did not, then no legal liability can
arise and
caedit quaestio
. If it did, then the second problem
becomes relevant,
viz
whether the negligent act or omission is
linked to the harm sufficiently closely or directly for legal
liability to ensure or whether,
as it is said, the harm is too
remote. This is basically a juridical problem in which considerations
of legal policy may play a part.”
(37) The enquiry as to the
factual causation is generally conducted by applying the so-called
‘but-for’ test, which is designed
to determine whether a
postulated cause can be identified as a
causa sine qua non
of
the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the Appellant. (See:
Siman & Co.
(Pty) Ltd
1984 (2) SA 888
(A) at 914-918). It is trite as Van
Reenen J correctly pointed out in
Moses v Minister of Safety
and Security
2000 (3) SA 106
(C) that the existence of a
causal nexus between a defendant’s conduct and the loss sustained
by a plaintiff is an essential element
of delictual liability and
that the onus to have shown the presence of such a causal connection
rested on the plaintiff. As regards
the factual element Corbett CJ
reaffirmed the approach when he made the following authoritative
statement in
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700 E-H:
‘
As has previously been
pointed out by this Court, in the law of delict causation involves
two distinct enquiries. The first is a factual
one and relates to the
question as to whether the defendant’s wrongful act was a cause of
the plaintiff’s loss. This has been
referred to as “factual
causation”. The enquiry as to factual causation is generally
conducted by applying the so-called “but
for” test, which is
designed to determine whether a postulated cause can be identified as
a
causa sine qua non
of the loss in question. In order to
apply this test one must make a hypothetical enquiry as to what
probably would have happened
but for the wrongful conduct of the
defendant. This enquiry may involve the mental elimination of the
wrongful conduct and the substitution
of a hypothetical course of
lawful conduct and the posing of the question as to whether upon such
an hypothesis plaintiff’s loss
would have ensued or not. If it
would in any event have ensued, then the wrongful conduct was not a
cause of the plaintiff’s loss;
aliter
, if it would not so
have ensued. If the wrongful act is shown in this way not to be a
causa sine qua non
of the loss suffered, then no legal
liability can arise.’
(38) It is not therefore the
correct approach to consider the matter on the basis of what would
have happened had the defendant not
testified and not to consider it
on the basis of what would have happened had the Appellant told the
truth. There is a clear distinction
between ‘commission’ and
‘omission’ and therefore different considerations apply to each
one. It is clear that had the Appellant
testified in the matter
between the Respondent and Mr. Conlin that the latter had instructed
him to deviate from the Approved Plans,
it would no doubt have been
held that Mr. Conlin was aware of the defects. This would have
brought the rule in
Van der Merwe v Meades
1991 (2) SA
1
(A) into play and Mr. Conlin would have been precluded from relying
on the
voetstoots
clause. The result would
have been that the Respondent would have been the successful party in
the first Magistrate’s Court action.
(39)
Fault
can take
the form of intention
(dolus)
or negligence (
culpa
).
The Appellant’s intention can either be
dolus directus
(i.e.
the attainment of a particular consequence which the Appellant
intends to bring about,
dolus indirectus
(i.e. a secondary
result which was a necessary consequence of the intended conduct) or
dolus eventualis
(i.e. where one acts with the intention of
attaining a particular object but subjectively realizes or
appreciates that another consequence
may reasonably result and one
reconciles oneself with this possibility, and recklessly proceeds
with the conduct nevertheless. (See:
Wentzel v SA Yster en
Staalbedryfsvereniging, Wentzel v Blanke Motorwerkersvereniging
1967 (3) SA 91
(T) at 98). In the present appeal the Appellant must
have known that the effect of his testimony would be to cause the
Respondent
to lose the case he had against Mr. Conlin. He
nevertheless proceeded to testify falsely. That he intended a
particular consequence
is beyond question.
(40) Van Reenen J in
Moses
v Minister of Safety and Security
2000 (3) SA 106
(C) at
113G-114D dealt with a situation involving an omission but in the
instant case, I am faced with a situation which involves
a
commission. In the instant matter, I simply ask myself a rhetoric
question, namely, would the Respondent have suffered the loss
he
sustained had the Appellant not deliberately falsely testified in
favour of Mr. Conlin? The answer is clearly no. I hold the view
that
before a witness is held civilly liable for damages suffered
consequent to his deliberate false testimony, it must be established
that the witness acted
mala fide
. In the present case the
Appellant clearly colluded with Mr. Conlin to testify falsely in
favour of the latter. Malice on the part
of the Appellant can be
inferred from his conduct, namely to testify falsely to the prejudice
of another person despite the existence
of a duty on him to speak the
truth. He, despite the oath he took, testified falsely and that was
deliberate.
(42) In my view all elements
of a delictual claim were satisfied. I am particularly satisfied that
there was malice on the part of
the Appellant. It is in the interests
of justice that where all the elements of a delictual claim have been
met and where malice
on the part of the witness is found to have
existed, such a witness must be held to be liable for the damages
occasioned by his deliberate
false testimony. It is my view therefore
that this appeal stands to be dismissed with costs. I would thus
propose the dismissal of
this appeal and that the Appellant must bear
the costs hereof.
___________________
DLODLO, J
I agree and it is so
ordered. ____________________
TRAVERSO, DJP