Davids v H Mohamed and Associates (2800/97) [2006] ZAWCHC 55 (16 November 2006)

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[2006] ZAWCHC 55
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Davids v H Mohamed and Associates (2800/97) [2006] ZAWCHC 55 (16 November 2006)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO. 2800/1997
REPORTABLE
In
the matter between:
JOHN
JULIAN DAVIDS PLAINTIFF
And
H.
MOHAMED & ASSOCIATES DEFENDANT
JUDGMENT
IN THE APPLICATION FOR ABSOLUTION DELIVERED
ON
16 NOVEMBER 2006
DLODLO,
J
(1) This is an application
for absolution from the instance brought by the Defendant upon
closure of the Plaintiff’s case in terms
of Rule 39(6) of the
Uniform Rules of Court. On behalf of the Defendant it is correctly
contended that the Plaintiff’s claim against
the Defendant is one
of professional negligence based upon the Defendant’s alleged
failure to timeously institute a delictual action
on Plaintiff’s
behalf against the University of the Western Cape. Accordingly, in
order to succeed in his claim against the Defendant,
the Plaintiff
needs to prove that an act or omission on the part of the University
of Western Cape is causally connected to the damage
allegedly
suffered by the Plaintiff. Put differently, the Plaintiff needs to
prove (
prima facie
at least at this stage) that his alleged
action against the University would have been successful, had the
Defendant taken timeous
steps to give effect to his (Plaintiff’s)
instruction in that regard. Mr. Potgieter (SC) assisted by Mr.
Verster and Mr. Albertus
(SC) assisted by Mr. Paschke, appeared
before me for the Plaintiff and the Defendant respectively. I hasten
to mention that Mr. Potgieter
(SC) and Mr. Verster handled this
matter
amicus curia
. The Court is indebted to them for this
assistance.
(2) The case put forth by the
Plaintiff is that there was a fire at his residence in the Cecil Esau
Hostel at the University of Western
Cape on 4 March 1991, allegedly
caused by the throwing of a petrol bomb (possibly by the students)
into his main bedroom. The Plaintiff
alleges that the fire gave rise
to his alleged psychological harm and that the fire could reasonably
have been prevented by the University
concerned had it (University)
timeously taken certain preventative measures. The gist of what the
law requires of the Plaintiff is
therefore to prove that the fire in
question was caused by a petrol bomb. Conversely a fire caused by
some other means totally unconnected
to any conduct on the part of
the University of Western Cape, for an example lightening or an
electrical short circuit, would most
obviously not give rise to a
claim in delict against the University of Western Cape in
casu
and obviously consequently against the Defendant in this matter.
(3) It is apposite that from
the onset I point out that the test for deciding whether or not to
grant absolution, is whether there
is evidence upon which a court,
applying its mind reasonably to such evidence, could or might (not
should or ought to) find for the
Plaintiff. See:
De Klerk v
ABSA Bank Ltd. & Others
(2003) 1 All SA 651
(SCA) at
p656, par 10;
Claude Neon Lights (SA) Ltd v Daniels
1976(4) SA 403 (A) at 409 G-H;
Gascoyne v Paul and Hunter
1917 TPD 170
at 173;
Ruto Flour Mills (Pty) Ltd v Adelson
(2) 1958(4) SA 307 (D). The Supreme Court of Appeal has fairly
recently authoritatively set out the test in this regard in the
matter
of
Gordon Lloyd Page & Associates v Rivera and
Another
2001(1) SA 88(SCA) as follows:
‘
The test for absolution to
be applied by a trial court at the end of a plaintiff’s case was
formulated in
Claude Neon Lights (SA) Ltd v Daniel
1976(4) SA 403 (A) at 409 G-H in these terms:
“…
(W)hen absolution from
the instance is sought at the close of plaintiff’s case, the test
to be applied is not whether the evidence
led by plaintiff
establishes what would finally be required to be established, but
whether there is evidence upon which a Court,
applying its mind
reasonably to such evidence, could or might (not should, nor ought
to) find for the plaintiff, (
Gascoyne v Paul and Hunter
1917 TPD 170
at 173;
Ruto Flour Mills (Pty) Ltd v Adelson
(2)
1958 (4) SA 307
(T).)”
This implies that a plaintiff
has to make out
prima facie
case – in the sense that there
is evidence relating to all the elements of the claim – to survive
absolution because without
such evidence no court could find for the
plaintiff (
Marine & Trade Insurance Co. Ltd. v Van der
Schyff
1972 (1) SA 26
(A) at 37G – 38A;
Schmidt Bewysreg
4
th
ed
at 91 – 2). As far as
inferences from the evidence are concerned, the inference relied upon
by the plaintiff must be a reasonable
one, not the only reasonable
one (
Schmidt
at 93). The test has from time to time been
formulated in different terms, especially it has been said that the
court must consider
whether there is ‘evidence upon which a
reasonable man might find for the plaintiff’ (
Gascoyne
(
loc cit
) – a test which had its origin in jury trials when
the ‘reasonable man’ was a reasonable member of the jury (
Ruto
Flour Mills
). Such a formulation tends to cloud the issue.
The court ought not to be concerned with what someone else might
think; it should
rather be concerned with its own judgment and not
that of another ‘reasonable’ person or court. Having said this,
absolution
at the end of a plaintiff’s case, in the ordinary course
of events, will nevertheless be granted sparingly but when the
occasion
arises, a court should order it in the interest of justice.’
(4) It is trite law that, in
deciding whether to grant absolution, questions of credibility should
not normally be investigated until
the court has heard all the
evidence which both sides have to offer. It is also accepted by our
courts that this rule is not absolute.
A court may grant absolution,
based upon considerations of credibility,
inter
alia
where
‘witnesses have palpably broken down’ and where it is clear that
they have stated what is not true. (See:
Siko
v Zousa
1908
TS1013). This court in the matter of
Erasmus
v Boss
1939
CPD 204
held that absolution may also be granted where evidence led
on behalf of a plaintiff is ‘irreconcilable and contradictory
.’
(5) I proceed to have a look
into the evidence led in this matter bearing in mind the test in
application of this type. It was not
the Plaintiff’s evidence that
he had seen anybody throw a petrol bomb into his residence. He
testified that he did not hear any
glass breaking or the sound of an
explosion before he became aware of the fire. He also did not smell
petrol before or after the
onset of the fire. Therefore it is
correctly contended that there was not
prima facie
proof in
the Plaintiff’s evidence that the fire was caused by a petrol bomb.
In fact, the Plaintiff did not present any direct
evidence as to the
cause of the fire. This remains the truth of this aspect of the
Plaintiff’s case despite the fact that his evidence
runs into
volumes consequent upon extensive and truth searching
cross-examination he was subjected to. Mr. Peter Smuts, an
electrician
called by the Plaintiff as an expert witness readily
conceded when cross-examined that the fire could have been occasioned
by a short-circuit
of the electrical supply. He most certainly
offered no expert opinion to support the Plaintiff’s assertion that
the fire was caused
by a petrol bomb. Mr. Smuts was also,
understandably, disadvantaged by the fact that he never visited or
had sight of the place where
fire burnt.
(6) The only evidence on this
aspect of importance led in the Plaintiff’s case regarding the
cause of the fire was evidence of a
circumstantial nature from Mr.
Chris Juries. The latter is brother to the Plaintiff. Mr. Juries
testified about the happenings on
the night of 4 March 1991. It is
not necessary for purposes of this short judgment on the application
to give a comprehensive summary
of Mr. Juries’ evidence. It
suffices, in my view, to point out from the onset that his evidence
was riddled with material contradictions
and inconsistencies. I
proceed to highlight
infra a
few of such contradictions and
inconsistencies in this evidence on material aspects of this case. In
his evidence under cross-examination
on 24 August 2006, Mr. Juries
repeatedly stated that when going outside to investigate the sound of
breaking glass he had heard and
having seen broken glass from a
bottle lying on the Plaintiff’s patio and having seen a group of
people standing nearby, the Plaintiff
had accompanied him but he did
not point out the pieces of broken bottle to the Plaintiff because
the Plaintiff saw them for himself.
However, in further
cross-examination on 17 October 2006, Mr. Juries testified that he
alone went outside and he left the Plaintiff
inside. He stated
further that when he came back inside the house he told the Plaintiff
about what he had seen outside. When he was
confronted about this
obvious discrepancy in his testimony, the answer he gave was rather
revealing in my view because his answer
was to the effect that he
would not remember everything that he had said in Court previously.
In chief Mr. Juries stated that he
had heard “something fall in the
lounge” and he immediately smelt petrol. When cross-examined on 24
August 2006, he at first
said that he ‘heard a sound’ (‘
geluid
gehoor’
). He later described the sound as an explosion
(‘
plofgeluid
’) and he added that his
brother, the Plaintiff, must have also heard. However, under
cross-examination on 17 October 2006, Mr.
Juries testified that he
could not recall anything accompanying the smell of petrol and after
repeated invitations he said he could
not remember anything else and
that there was ‘net die
reuk
van petrol
en die rook.’
(7) In his evidence in chief
Mr. Juries said that the Plaintiff pushed open (oopgestamp) the door
leading from the lounge to the passage;
he referred to ‘spesifiek
na die gang se deur’. When cross-examined on this on 24 August
2006, Mr. Juries repeated his earlier
evidence that the Plaintiff
pushed open the door which according to him was then closed. But when
he was further cross-examined on
17 October 2006, Mr. Juries totally
changed his evidence on this aspect stating among other things that:
he could not remember
whether there was a door between the lounge and the passage;
from where he was sitting in
the lounge he was able to see down the passage where he saw smoke
coming from one of the bedrooms;
he could not remember
whether the bedroom was opened, closed or ajar (‘op ‘n
skrefie’);
he could not remember
whether or not his brother, the Plaintiff pushed open the door.
(8) In his evidence in chief,
Mr. Juries testified that the Plaintiff was screaming, hysterical and
incoherent (‘onsamehangend’)
and that he had to calm the
Plaintiff down (‘onder bedaring gebring’). It was only thereafter
that he looked to see what he could
do (about the fire). In
cross-examination, on 17 October 2006, Mr. Juries was asked whether
he did or said anything when his brother
was hysterical. Mr. Juries
initially sought to evade the question but when the court repeated
the question, Mr. Juries said that
he did nothing for his brother and
did not pacify (‘troos’) him. When confronted with what he had
said in chief, Mr. Juries claimed
that his memory had let him down.
Under cross-examination, on 24 August 2006, Mr. Juries said that he
could see the curtains in the
main bedroom burning. However, in
further cross-examination, on 17 October 2006, Mr. Juries said that
he could not see what was burning
in the bedroom. When it was put to
him that he had previously stated that he had seen the curtains
burning, he then said that he
remembered this and that the mat was
also possibly burning.
(9) In his evidence in chief,
Mr. Juries said that the passage light and the stoep light were on
when he, the Plaintiff and Dominee
Knoop were in the lounge. This
evidence was repeated in cross-examination on the same day. However,
in further cross-examination,
on 17 October 2006, Mr. Juries could
not remember whether either the passage or outside light were
burning. In his evidence in chief,
Mr. Juries said that he had
switched off the TV and other appliances before leaving the
Plaintiff’s residence. However, in cross-examination,
on 17 October
2006, Mr. Juries said that the TV was still on when he left after the
fire had broken out. He could not remember his
earlier evidence that
he had switched off the TV.
(10) In his evidence in
chief, Mr. Juries testified that he told a fire-fighter that he had
smelt petrol. However, under cross-examination,
on 17 October 2006,
Mr. Juries could only remember telling the fire-fighter who he was
and that his brother stayed at the place in
which the fire had
occurred. When confronted with his earlier evidence that he had told
the fire-fighter of all his observations
including that he had smelt
petrol, Mr. Juries said that he could not remember what evidence he
had given previously. In his evidence
in chief, Mr. Juries said that
four (4) University security officers had found pieces of broken
bottle or of broken bottles in the
lounge and had placed the pieces
in a plastic bag to take to the police. In cross-examination, on 17
October 2006, Mr. Juries confirmed
and stood by his evidence that
bottle pieces were found in the lounge. However, when confronted with
the fact that bottle pieces
found in the lounge could not have formed
part of a petrol bomb thrown into the main bedroom, Mr. Juries then
tried to adapt his
evidence by saying that the bottle pieces were
found in the bedroom.
(11) What follows are
instances where Mr. Juries’ evidence is inconsistent with and
contradictory to other evidence led by the Plaintiff,
including the
Plaintiff’s own testimony. Mr. Juries said that he had heard the
sound of breaking glass caused by beer bottles being
thrown onto the
patio next to lounge. The Plaintiff, however, said that he did not
hear the sound of breaking glass before the fire.
Mr. Juries
testified that the Plaintiff went outside to investigate the sound of
breaking glass. The Plaintiff made no mention of
this in his
evidence. Mr. Juries said that when he came back inside he told the
Plaintiff that he had found broken bottles and that
students were
standing outside his residence. The Plaintiff, while laying heavy
emphasis on previous alleged bottle throwing incidents,
did not
mention that his brother had reported that the bottles had been
thrown onto his patio minutes before the fire. Regard being
had to
the Plaintiff’s evidence that on previous occasions broken glass
was found outside his residence, one would have expected
him, if Mr.
Juries’ evidence was true, to have mentioned what Mr. Juries had
told him. The fact that he did not, in the words of
Mr. Albertus,
belies Mr. Juries’ evidence. I agree with Mr. Albertus.
(12) Mr. Juries repeatedly
mentioned that he smelt petrol and also told the Plaintiff that he
had smelt petrol. The Plaintiff, however,
said that he did not smell
petrol before the fire and made no mention of the fact that his
brother had smelt petrol or told him that
there was a smell of
petrol. Regard being had to the importance the smell of petrol has to
Plaintiff’s claim that a petrol bomb
caused the fire, one would
have expected him, if Mr. Juries’ evidence was true, to have
mentioned what Mr. Juries had told him.
The fact that he did not,
once more, belies Mr. Juries’ evidence. Mr. Juries testified that
there was a sound of an explosion which
his brother ‘must’ have
heard. The Plaintiff, however, was unaware of the sound of any
explosion before the fire. The Plaintiff
also did not say that his
brother had told him that he had heard an explosion before the fire.
This too, presents problems for the
Plaintiff’s case. Mr. Juries
testified that the fire-fighters put out the fire using hoses from
their fire engines which were attached
to one of the University’s
fire hydrants. The Plaintiff, however, testified that by the time the
fire brigade had arrived on the
scene, the students had already put
out the fire, using ‘first-aid’ hose reels from the hostel. This
is also born out by the
Plaintiff’s acceptance of the immediate
fire report prepared by Fire Officer Theron.
(13) Mr. Juries maintained
that when he had visited the Plaintiff at the hostel a number of
times after the fire, the Plaintiff and
his then wife were living
together at the hostel as husband and wife. This is inconsistent with
the evidence of both the Plaintiff
and his then wife and with the
Plaintiff’s Particulars of Claim in his divorce action and his own
oral testimony in the divorce
proceedings before the High Court. The
evidence shows that the Plaintiff induced his present wife to lie for
him. She admitted that
she lied to the court about when they were
married and when their children were born because the Plaintiff had
asked her to do so.
Importantly Plaintiff called a witness, Dominee
Behaardien who told lies about everything he testified to in chief.
He subsequently
asked to be forgiven for telling so much lies. He was
a shameless dangerous liar.
(14) In the light of all the
evidence that has been led on behalf of the Plaintiff in this matter,
an inescapable conclusion is that
the Plaintiff put Mr. Juries up to
lie for him. Mr. Juries had demonstrably lied about the extent of
contact between himself and
the Plaintiff. Under cross-examination,
on 24 August 2006, Mr. Juries claimed that he had not spoken to his
brother at all between
June 2006 and 23 August 2006. Under further
cross-examination, on 17 October 2006, Mr. Juries initially confirmed
that he had not
spoken to the Plaintiff between June 2006 and 23
August 2006, including on the phone. Under further cross-examination,
Mr. Juries
said that he may have spoken to the Plaintiff on the phone
between June 2006 and 23 August 2006. He said that he had spoken to
the
Plaintiff two (2) or three (3) times between August and 17
October 2006. His wife had about one (1) or two (2) telephone
conversations
per month with the Plaintiff’s wife. Subpoenaed
telephone records show forty five (45) telephone conversations being
held between
the Davids’ and Juries’ household in the last year
totaling almost eight (8) hours. Of these thirty three (33) calls,
conversations
occurred since August 2006. Mr. Juries lied about
whether the Plaintiff had discussed the case with him prior to him
giving evidence.
This, notably, was a lie on an unimportant aspect of
his testimony.
(15) Initially Mr. Juries
mentioned in his evidence under cross-examination, on 24 August 2006,
that since the incident in March 1991
until then (24 August 2006) he
and the Plaintiff had not at all (‘geensins nie’) spoken about
the incident. He also said that
the Plaintiff’s legal
representatives had not told him what the case was about. He denied
contacting his brother even to ascertain
why he had been subpoenaed,
claiming that he knew from the subpoena what the matter was about.
When it was put to him that the subpoenas
did not indicate that the
case involved the University of Western Cape or had anything to do
with the fire, Mr. Juries said that
he could not remember how he knew
what the matter was about. However, in further cross-examination, on
17 October 2006, Mr. Juries
admitted that before the hearing on 24
August 2006 he could have spoken to his brother about the case. He
certainly must have spoken
to the Plaintiff about the case. Why would
a man be dishonest on this aspect? There is nothing wrong in speaking
about the case with
the Plaintiff, his own brother.
(16) In chief, the
Plaintiff’s counsel asked a simple question, ‘Can you tell his
Lordship what you know about this incident?”
Mr. Juries’ reply
lasted six (6) pages of the record during which the Plaintiff’s
counsel did not have to prompt him once. The
answer was a narration
complete with minute details of the incident. Mr. Juries was evasive,
his memory was selective and he sought
to embellish and adapt his
evidence as he went along. He created an extremely poor impression.
The only reasonable assessment that
this court can make of Mr.
Juries’ evidence regarding the cause of the fire, is that he was
told what to come and say. He clearly
was nowhere near the place
where the fire burnt.
(17) The difficulty the
Plaintiff’s case faces is that there is no evidence other than that
of Mr. Juries about what caused the
fire. In the light of the
irreconcilable and contradictory nature of Mr. Juries’ evidence, I
hold the view that no court applying
its mind reasonably to such
evidence can or may find for the Plaintiff. See: (
Gascoyne v
Paul and Hunter
1917 TPD at 173;
Ruto Flour Mills (Pty)
Ltd v Adelson
(2) 1958(4) SA 307 (T).) Quite apart from Mr.
Juries, it is strange to say the least, that almost every witness in
this matter has
either ‘palpably broken down’ or made material
concessions which have largely contributed in making the Plaintiff’s
case unsustainable.
(18) I have had regard to Mr.
Verster’s opposition to this application. It is trite law though
that a Plaintiff has to make out
a
prima facie
case at this
stage. The approach set out
supra
was confirmed as the correct
approach in adjudicating on applications such as the present by
Schutz JA in
De Klerk v ABSA Bank Ltd
2003(4) SA 315
(SCA) at 323. An application for absolution from the instance at the
end of the Plaintiff’s case can be compared
in some way with an
application for discharge at the close of the case for the
prosecution in a criminal case. The case should not
summarily be
terminated merely because there are contradictions in the evidence
led on behalf of the plaintiff (see
Herbstein the Civil Practice
of the Supreme Court of South Africa
681-683). Accordingly a
trial court should not readily grant absolution at the end of the
plaintiff’s case. It must assume that
in the absence of
very
special considerations,
such as the “inherent unacceptability
of the evidence adduced” that the evidence is true (see
Herbstein
683). (Underlining is my own). The instances, in which an
application for absolution can succeed where it is based on the
unreliability
of the evidence adduced by the plaintiff, are therefore
very limited. This case is a classical example of a case in which
indeed
very special considerations are present. The Plaintiff’s
case as it presently stands is certainly inherently unacceptable.
Unlike
in a matter involving more than one Defendant, the instant
matter, (as far as the determination of this application is
concerned)
is rather simple. There is only one Defendant.
Accordingly it can fairly be inferred at the stage when the Plaintiff
has closed
his case, that the Court has heard
all
(my
emphasis) the evidence which is available against the Defendant. Any
further evidence that would be forthcoming if the case continued
would be likely to operate only to the detriment of the Plaintiff.
Therefore, it is considered unnecessary in the interest of justice
to
allow the case to continue any longer if, there is no
prima facie
case made against the Defendant.
(19) I have briefly set out
above the material shortcomings and deficiencies in the Plaintiff’s
case. I cannot turn a blind eye
to these difficulties in the
Plaintiff’s case because if I do grave injustice would be done not
only to the Defendant but also
to the Plaintiff himself. What would
be the reason to spend more days (possibly months and years)
prosecuting a matter that has shown
itself to be dead at this very
stage. Continuity will serve to expose the parties to further
generation of legal costs. It is certainly
not in the interest of
justice that litigants should be allowed endlessly to expose
themselves to what may be economic ruin. It is
also of importance
that this valuable time to be further spent on this matter be rather
applied fruitfully and gainfully in deserving
matters by not only the
litigants but also their legal representatives. This, in my view, is
one exceptional occasion which has arisen
where although absolution
should be granted sparingly; the dictates of justice make it
obligatory for a court applying its mind properly
and reasonably to
the evidence adduced upto now to grant absolution from the instance.
(20) In the result I make the
following ruling:
Absolution from the instance
is granted.
Plaintiff is ordered to pay
the Defendant’s cost upto this stage of the proceedings.
____________________
DLODLO, J