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[2024] ZAECMHC 29
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Mbizo v Old Mutual Life Assurance Company (SA) Ltd (3365/2017) [2024] ZAECMHC 29 (14 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO.: 3365/2017
REPORTABLE:
NO
In
the matter between:
NELISA
WENDY MBIZO
Appellant
and
OLD
MUTUAL LIFE
ASSURANCE
COMPANY (SA) LTD
Respondent
APPEAL
JUDGMENT
TOKOTA
ADJP
Introduction:
[1]
The appellant instituted a civil action against the respondent suing
it for damages
in the amount of R3 155 800 arising from an unlawful
dismissal from her employment. The matter came before Mnyatheli AJ
who ordered
a separation of the merits from quantum in terms of rule
33(4) of the Uniform Rules of Court (the rules).
[2]
The court adjudicated on the merits and the quantum was to be
determined at a later
date. It held that the dismissal of the
appellant was unlawful. Consequently, the respondent was found to be
in breach of the contract
of employment and was therefore found to be
liable for damages as may be proved by the appellant.
[3]
On 31 January 2022, the matter came before Rusi J for the
determination of quantum
and was finalized on 2 February 2022. Rusi J
dismissed the claim with costs. The appeal is against that order with
her leave to
this court.
Background:
[4]
To put the matter in proper context it is necessary to briefly
outline the background.
On 24 January 2009, the appellant concluded a
written contract of employment with the respondent as a Financial
Adviser. On 2 October
2014, she was dismissed from the employment.
[5]
She sued the respondent for breach of contract and claimed damages in
the amount of
R3,1 million being the loss of income from the date of
dismissal to a date when she would have retired at the age of 65
years.
[6]
At the hearing before Rusi J, the appellant did not give evidence but
called her expert
witness who testified to prove her damages. The
respondent also called its expert witness to counter the quantum
claim. The respondent
in its defence denied that the appellant
suffered any damages and, alternatively, pleaded that she failed to
mitigate the loss.
[7]
The court a quo commented on her failure to give evidence as follows:
It found that
the information given to the experts by the plaintiff
regarding the period of unemployment and circumstances leading to her
decision
to embark on studies after she lost employment constituted
hearsay evidence. The learned Judge went further, however, and stated
that these facts were undisputed and therefore there was no need for
evidence. I immediately pause here to say I see things differently.
Those facts were exclusively within the knowledge of the appellant
and the respondent would not have been able to know them. The
onus
rested on the appellant to prove them by giving oral evidence which
had to be tested.
[8]
The court a quo correctly held that for the plaintiff to prove her
actual loss she
was obliged to tell the court how her dismissal was
the direct cause of her inability to earn income from November 2014
to April
2017. It found that it was important for her to tell the
court as to what informed her decision to embark on studies post her
dismissal
to enable the court to assess whether she took reasonable
steps to mitigate her loss.
[9]
The court a quo found further that considering the plaintiff’s
failure to give
evidence to prove damages she allegedly suffered
during the period of unemployment, there was no adequate factual
basis for the
court to determine her damages. The court held that she
failed to prove her damages. It held that regard being had to
the
fact that there was a clause in the contract giving the employer
the right to terminate the contract of employment upon notice,
it
would be untenable to think that the appellant would have remained in
employment until the date of retirement.
The
parties’ submissions:
[10]
Counsel for the appellant submitted that the court a quo in its
reasoning revisited the merits
of dismissal and it erred in this
regard. He submitted that by finding that the employer had a right to
terminate the appellant’s
employment in terms of a clause in
the contract she was thereby revisiting the merits of dismissal
whereas Mnyatheli AJ had already
found that the dismissal was
unlawful. He submitted that the court erred in putting the onus on
the appellant to prove that she
took reasonable steps to mitigate her
loss after the dismissal. Counsel argued that the onus rested on the
respondent to prove
that the appellant did not take steps to mitigate
her loss. He relied on the work of Walls SC, as then was, in Labour
Employment
Law 1992: Butterworth’s
:
Durban
at Article 40 and
McMillan
v Mostert
1912 EDL 183.
[1]
He contended that the court erred in speculating that the appellant
would not have remained in employment until she retired considering
the undisputed history of poor performance.
[11]
Counsel for the appellant correctly put the issues for determination
by this court as follows
in his heads of argument in paragraphs
12-14:
‘
12
Fundamentally, the issue for determination is whether the Appellant,
by not testifying in person, failed to prove damages in
respect of
her past and future loss of income.
13.
Whether the expert evidence of Industrial Psychologists called by
both parties does not have value in the absence of Plaintiff’s
testimony.
14.
This court is enjoined in making a finding on whether the only way to
prove damages for breach of contract is by having the
Plaintiff
testify in person...’
I
agree. And essentially our debate with counsel during the hearing of
the appeal centered around these issues.
[12]
Counsel for the respondent contended that the testimony of the
appellant was crucial to her claim
on quantum. He submitted that her
failure to testify deprived the respondent of an opportunity to
cross-examine her on her claims
that she suffered a loss of income,
whether past or future in the amount claimed or any amount. He
contended that the court a quo
correctly regarded the evidence of her
expert as hearsay evidence. He contended that the appellant’s
failure to testify resulted
in the absence of a factual basis for a
determination of any future loss of salary. Accordingly, so the
argument went, the appeal
ought to be dismissed.
Discussion:
[13]
The function of an expert is to give an opinion on the facts and
documents given to him by the
client. He must then draw inferences
from those facts and documentation. The reasonableness or otherwise
of drawing inferences
from such facts in support of the opinion can
only be determined once the plaintiff’s evidence has been
tested.
[14]
In
AM
v MEC for Health
[2]
Wallis JA described the functions of an expert witness in the
following terms:
‘
The
functions of an expert witness are threefold. First, where they have
themselves observed relevant facts that evidence will be
evidence of
fact and admissible as such. Second, they provide the court with
abstract or general knowledge concerning their discipline
that is
necessary to enable the court to understand the issues arising in the
litigation. This includes evidence of the current
state of knowledge
and generally accepted practice in the field in question. Although
such evidence can only be given by an expert
qualified in the
relevant field, it remains, at the end of the day, essentially
evidence of fact on which the court will have to
make factual
findings. It is necessary to enable the court to assess the validity
of opinions that they express. Third, they give
evidence concerning
their own inferences and opinions on the issues in the case and the
grounds for drawing those inferences and
expressing those
conclusions.’ [Footnotes omitted.]
[15]
The Learned Judge continued and said: ‘The need for clarity as
to the facts on which an
expert's opinion is based has been stressed
in several cases. In
Price Waterhouse Coopers v National Potato
Co-operative Ltd,
the following passage from a Canadian judgment
was cited with approval:
“
Before
any weight can be given to an expert's opinion, the facts upon which
the opinion is based must be found to exist. As long
as there is some
admissible evidence on which the expert's testimony is based it
cannot be ignored; but it follows that the more
an expert relies
on
facts not in evidence
, the weight given
to his opinion will diminish. An opinion based
on
facts not
in
evidence
has no value for the Court.”
[Emphasis added]
[16]
The learned Judge of Appeal stated further: ‘The opinions of
expert witnesses involve the
drawing of inferences from facts. The
inferences must be reasonably capable of being drawn from those
facts. If they are tenuous,
or far-fetched, they cannot form the
foundation for the court to make any finding of fact.
Furthermore, in any process of
reasoning the drawing of inferences
from the facts must be based on admitted or proven facts and not
matters of speculation. As
Lord Wright said in his speech in
Caswell
v
Powell Duffryn Associated Collieries Ltd
:
“
Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective facts
from which to
infer the other facts which it is sought to establish. . .. But if
there are no positive proved facts from which
the inference can be
made, the method of inference fails and what is left is mere
speculation or conjecture.”
[3]
[Footnotes omitted]
[17]
The Learned Judge continued and said:
‘
Where
the facts are central to the opinions of the experts,
courts
should require that those facts be led in evidence
before
the experts express their opinions. Primarily that is for the benefit
of the court, which is thereby placed in a position
where the
expert's opinion can be assessed, and, if need be, queried or
elucidated, in the light of the factual material before
it. It is
also conducive to fairness in cross-examination of the experts on
behalf of the defendants. Where the case comes on appeal
it
facilitates a reading of the record. Lastly, if this principle is
borne in mind and objections are upheld to leading the expert
evidence without a proper factual foundation being laid, that should
avoid situations, such as that in
Madikane,
where the case was conducted entirely on the basis of expert evidence
without any factual foundation at all for the opinions being
expressed.’
[4]
[Emphasis is mine]
[18]
Here we have two opposing opinions of the experts for both parties.
In such a case, then for
the party, upon whom the onus rests, to get
a judgment in his favour, he must get the court to accept his
evidence and reject that
of the other party. Otherwise, absolution
from the instance must be granted.
[5]
The test on absolution is whether the evidence of the appellant has
the potential for a finding in her favour. The criterion
is slightly
lower than that of a prima facie case. The evidence need not call for
an answer; it is sufficient if there is a possibility
that a court
acting reasonably may find in favour of the plaintiff.
[19]
This principle has been restated in the case of
Rosherville
Vehicle
Services
(Edms) Bpk v Bloemfonteinse Plaaslike Oorgangsraad
[6]
as follows:
'Die
maatstaf wat vir die aansoek gebruik word, moet dus daarop
gerig wees om te bepaal of die eiser se getuienis die potensiaal
vir
'n bevinding in sy guns het. . . . Die maatstaf is dus 'n rapsie laer
as die van 'n prima facie saak: die getuienis hoef nie
'n antwoord te
verg ('call for an answer') nie. Nogtans moet dit egter die
moontlikheid van 'n bevinding vir die eiser inhou: 'n
redelike hof
moet daarop ten gunste van die eiser kan bevind. . . ."
Translated
as (
The criterion used
for the application must therefore be aimed at determining whether
the claimant's evidence has the potential
for a finding in his
favour. . .. The standard is therefore slightly lower than that of a
prima facie case: the evidence does not
need to require an answer
('call for an answer'). Nevertheless, it must contain the possibility
of a finding for the plaintiff:
a reasonable court must be able to
find in favour of the plaintiff. . .)
[20]
Regard being had to the appellant’s family problems, her state
of health, being in and
out of hospital which probably resulted in
the deterioration of her work performance, and her decision to embark
on studies, her
evidence would have thrown some light as to the
viability of her retention in her position and the prospects of
promotion as projected
by her expert. Having elected not to give
evidence the court was deprived of firsthand information in this
regard
[21]
The above discussion deals with all the issues for determination.
Accordingly, to begin with,
the appellant, by not testifying in
person, failed to prove her damages but there is still a possibility
that if she testifies,
she might prove them. I agree with the view
that if an expert expresses his opinion without relying on proven
facts in evidence,
the weight to be given to his opinion will
diminish.
[22]
It is implicit in the reasons for judgment as
appears from the judgment of the court a quo that judgment
was not
granted against the appellant on the basis that she had failed to
prove any of the facts which constituted the appellant's
cause of
action. What was found is that the appellant’s reliance on the
expert’s evidence, instead of herself giving
evidence, resulted
in her failure to prove the quantum of her claim as such evidence
constituted hearsay evidence. However, in
my view, the court a quo
erred in dismissing the claim and should have granted an absolution
from the instance.
Costs:
[23]
Counsel for the appellant contended that if this court holds that an
absolution from the instance
should have been granted then in that
event costs should be costs in cause determinable at the end of the
case. Counsel for the
respondent persisted that the court a quo was
correct in dismissing the claim and we should then dismiss the appeal
with costs.
[24] The award of costs rests with the discretion of the court which must be exercised
judiciously. The general rule is that costs should follow the event. The central inquiry in each case must be whether, when all the
factors have been taken into account, it is in accordance with the requirements of the law and fairness to award costs.
[25] The alteration on appeal of a judgment which was in favour of a defendant to
one of absolution from the instance does not necessarily entitle the appellant to the costs of the appeal. It may be that such an
alteration of the judgment does not have a substantial effect but is merely formal in nature, in which case a costs order in favour
of the appellant would not be justified. In the present case, however, no evidence was adduced by either party and it cannot be said
at this stage that it would be fruitless for the appellant's case even if she presented evidence.
[7]
Order
[26]
In the result, the following order is issued:
1.
The appeal is upheld with each party to pay its own costs.
2.
The judgment of the court a quo is set aside and substituted with
‘Absolution
from the instance with costs.’
B
R TOKOTA
ACTING
DEPUTY JUDGE PRESIDENT EASTERN CAPE DIVISION
I
agree:
M
MAKAULA
JUDGE
OF THE HIGH COURT EASTERN CAPE DIVISION
I
agree:
M
HINANA
ACTING
JUDGE OF THE HIGH COURT EASTERN CAPE DIVISION
APPEARANCES:
Counsel
for the Appellant
:
B Metu
Instructed
by T A Nkele & Sons Inc
Counsel
for the Respondent
: E A De
Villiers-Jansen SC
Instructed
by
Cliffe Dekker Hofmeyer
Heard
on
29 April 2024.
Date
delivered:
14 May
2024.
:
[
1]
See also
Everett
v Marian Heights (Pty) Ltd
1970
(1) SA 198
(C) at 201G
[2]
AM
and Another v MEC for Health, Western Cape
2021
(3) SA 337
(SCA) at para 17.
[3]
Ibid
paras.20-21; HAL obo MML v MEC for Health, FS
2022 (3) SA 571
(SCA) ([2021] ZASCA 149) paras.212-213;
[4]
At
para.215
[5]
National
Employer's Mutual General Insurance Association v Gany
1931 AD at 199;
[6]
1998
(2) SA 289
(O) at 293F-G
[7]
Shahmahomed
v Hendriks and Others
,
1920 AD 151
op bl. 171;
Kruger
v Sekretaris van Binnelandse
Inkomste
1970
(4) SA 687
(A) at 692B