THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 447/2023

In the matter between:

ANDREW MERRYWEATHER APPELLANT

and

OLIVER SCHOLTZ FIRST RESPONDENT
GERARD DAVID PETER SCHOLTZ SECOND RESPONDENT

Neutral citation: Merryweather v Scholtz and Another (447/2023) [2024] ZASCA 150
(6 November 2024)
Coram: PONNAN, SMITH and UNTERHALTER JJA and KOEN and MANTAME
AJJA
Heard: 23 September 2024
Delivered: 6 November 2024
Summary: Appeal – civil appeal from full court – trial court’s reliance on inadmissible
evidence constituting an irregularity – appellant failed to discharge onus on admissible
evidence – no special circumstances justifying grant of special leave to appeal to the
Supreme Court of Appeal.

2


ORDER


On appeal from: Western Cape Division of the High Court, Cape Town, (per Slingers J,
with Goliath DJP and Ralarala AJ, sitting as a court of appeal).

The appeal and cross appeal are struck from the roll with costs.


JUDGMENT


Koen and Mantame AJJA (Ponnan, Smith and Unterhalter JJA concurring)

Introduction
[1] This is an appeal against a judgment of the Full Court of the Western Cape Division
of the High Court, per Slingers J, with Goliath DJP and Ralarala AJ concurring (the full
court), which upheld an appeal from a decision of Meer J (the trial court). The appellant,
Andrew Merryweather (Andrew)1 had succeeded before the trial court in a delictual claim
against the first respondent, Oliver Scholtz (Oliver), but he was unsuccessful in a claim
for the payment of his costs against the second respondent, Oliver’s father, Gerard David
Peter Scholtz (Gerard).2 The trial court granted leave to Oliver to appeal to the full court
against the judgment, and to Andrew to cross-appeal the refusal of the costs order against
Gerard (the cross-appeal).

[2] The full court set aside the order of the trial court and replaced it with an order
dismissing Andrew’s claim with costs . The full court did not make a separate order in
respect of the cross -appeal. It reasoned that the cross -appeal was conditional on the
failure of Oliver’s appeal, and as the appeal succeeded, the cross-appeal fell away.

1 The various role players are referred to by their first names rather than their surnames, for ease of
reference, to distinguish between Andrew and his brother Nicholas, and Oliver and his father, Gerard. No
disrespect is intended.
2 The trial court in its reasons stated that there was no evidence warranting a costs order against Gerard
and that it was in the circumstances disinclined to grant the costs order against him .

3

[3] Special leave3 to appeal was granted on petition to this Court, in respect of both
the appeal and the ‘cross appeal’ . That two judges of this court g ranted special leave to
appeal does not mean that we are not required to consider whether we should entertain
the appeal.4 The judges considering the petition did not have the benefit of the full appeal
record. It remains for this Court on a conspectus of the full record to determine whether
there are indeed special circumstances present. That is because this Court will not
interfere with a decision of a court, given on appeal, even if it considers the decision may
possibly be wrong, unless there is some additional factor or criteria that play a part in the
granting of special leave .5 The preliminary question in this appeal is whether there are
such special circumstances present to justify a further appeal to this Court. In answering
that question, and particularly g iven the divergence between the trial court and the full
court in respect of both the approach to and assessment of the issues, a rather more
detailed consideration of the evidence than at first blush may appear necessary, is
unavoidable.

Background
[4] During the early hours of 9 September 2006, a physical altercation occurred
between two groups of young men at the Engen garage, Vineyard Motors, in Main Road,
Newlands, Western Cape. The one group consisted of Andrew, his younger brother ,
Nicholas Robert George Merryweather (Nicholas) , and a friend, Progress Mphande
(Progress). The other group included Oliver, Joel Thackwray (Joel), Liam Hechter (Liam),
Shane David Waldendorf (Shane) and Dane Killian (Dane). During the altercation Andrew
sustained a compression flexion type V fracture of his seventh cervical vertebrae, with an
incomplete spinal cord injury. This injury has left him permanently partially paralysed, and
wheelchair bound.

[5] Oliver, Joel, Liam, and others from their group, excluding Shane who had become

[5] Oliver, Joel, Liam, and others from their group, excluding Shane who had become
a witness for the State, were charged criminally in the regional court, Wynberg (the

3 Section 16(1)(b) read with Section 17(3) of the Superior Courts Act 10 of 2013.
4 National Union of Mineworkers v Samancor Ltd [2011] ZASCA 74 para 15.
5 Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A)
(Westinghouse) at 561E-F.

4

criminal trial) with the attempted murder of Andrew, and assault with intent to do grievous
bodily harm in respect of Nicholas. Joel was convicted of the assault, but that conviction
was set aside on appeal. Oliver and his other co -accused were acquitted on all the
charges.

[6] Andrew (as the first plaintiff) and Nicholas (as the second plaintiff) had in the
interim instituted an action for damages, the subject of this appeal, against Joel, Liam and
Oliver, as the first, second and third defendants respectively. 6 Default judgment was
granted against Oliver,7 but rescinded on appeal.

[7] At the commencement of the trial, the trial court ruled, 8 relying upon Mabaso v
Felix,9 that, as Oliver was invoking self -defence, he bore the duty to begin and should
ordinarily bear the onus of proving the self-defence. It is trite law that the duty to begin
must be determined with reference to the allegations in the pleadings.

[8] In the original particulars of claim dated 15 April 2009, Andrew alleged that Joel,
Liam and Oliver wrongfully, unlawfully and provocatively referred to him as a homosexual,
and intentionally assaulted him by grabbing and pushing, kicking and punching and
throwing and/or tackling him against a stationary motor vehicle. The allegation of ‘tackling’
was amended subsequently, on 19 August 2019, to ‘spear tackling’ after th at term had
been referred to during the criminal trial.

[9] In his plea , Oliver denied having referred to Andrew as a homosexual. He also
denied wrongfully and intentionally assaulting Andrew. He pleaded, ‘without derogating

6 On 25 March 2010 Andrew’s action against Joel and Liam was separated from his action against Oliver,
his action against Oliver was separated from Nicholas’ action against Joel, Liam and Oliver, and the trial by
Andrew against Oliver was ordered to proceed on a default judgment basis.
7 Default judgment for R10 291 100 was granted against Oliver on 14 June 2013.

7 Default judgment for R10 291 100 was granted against Oliver on 14 June 2013.
8 The application was premised on Rule 39(11) of the Uniform Rules of Court which reads as follows:
‘Either party may apply at the opening of trial for a ruling by the court upon the onus of adducing evidence
and the court after hearing argument may give a ruling as to the party upon whom such onus lies: Provided
that such ruling may thereafter be altere d to prevent injustice’. The ruling is reported as Merryweather v
Scholtz 2020 (3) SA 230 (WCC).
9 1981 (3) SA 865 (A).

5

from the aforesaid denial, and purely in amplification thereof’, that: Andrew and Nicholas
had taunted him; Progress had prodded and pushed him, and knocked him under his
chin; Nicholas had grabbed his shirt in an aggressive manner; he had put his arms around
Nicholas to prevent any further attack; and, Andrew hit him on his back whereupon he let
go of Nicholas. He pleaded further that after he had pushed Andrew off and he (Oliver)
was in the process of moving away, Andrew then came towards him as if to ta ckle him.
To avert this attack, he grabbed Andrew at the side of his shoulders, turned him with a
swivel action and pushed him away, whereupon Andrew accidentally lost his footing and
fell. He alleged that throughout the unlawful attack and/or further threatened attack on
him, he had reasonable grounds to believe that Andrew posed a physical danger to him,
and that the physical force used by him against Andrew was in the circumstances
necessary to repel Andrew’s attack and commensurate with the attack.

[10] On a proper construction of the pleadings, the denial of the assault meant that the
duty to begin and the overall onus remained on Andrew. 10 The ruling of the trial court
regarding the duty to begin was wrong. 11 This is implicit from the trial court’s own
reasoning that there was ‘an admission to an assault . . . albeit not the precise assault as
described in the particulars of claim ’. (Emphasis added) The ruling resulted in Oliver
having to present his case before Andrew adduced any evidence. This , however, need
not unnecessarily detain us because it is not in contention that for Andrew to succeed
with his claim, he bore the onus to prove the spear tackle.12

10 In Intramed (Pty) Ltd v Standard Bank of South Africa Ltd 2004 (6) SA 252 WLD at 255H –256 D the
Court observed that the term ‘onus of adducing evidence’ has two meanings. ‘It refers firstly to the duty to
commence leading evidence and secondly to incidence of the onus of proof.’

commence leading evidence and secondly to incidence of the onus of proof.’
11 If regard is had to the case that was pleaded, the trial court erred in ruling that Oliver had a duty to begin
for inter alia the following reasons; the trial court was incorrect when it found that the respondent’s plea was
one of confession and avoidance and that Mabaso was therefore triggered; the trial court formed a view
that Oliver assaulted Andrew before the evidence was adduced. In substantiating this view, it went on to
state that, a push being an application of force to the body of Andrew constituted an assault which
incorporates an inherent intenti on to injure. The trial ran throughout on the understanding that Oliver had
an intention to injure Oliver. It therefore commenced on the wrong premise.
12 Andrew had to prove his case, specifically the harm caused – Evins v Shield Insurance Co Ltd 1980 (2)
SA 814 (A) at 838G-839H and H L & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd 2001 (4)
SA 814 (SCA) para 13 where it was held that for the element of dolus to be established in the context of
delictual claims for bodily injuries, it is insufficient to prove that the defendant intended to apply force. It is
also necessary to prove that the defendant applied force with the intention to cause harm – see Groenewald

6

[11] Oliver’s witnesses accordingly testified on the assumption that Andrew’s case
would establish a spear tackle, with the impact to the top (vertex) of Andrew’s head. But
for the ruling, Oliver would have had the opportunity to have applied for absolution fro m
the instance at the end of Andrew’s case if the spear tackle were not to have been proven.
Again, we will pass over the obvious prejudice to Oliver in this regard.

The factual evidence
[12] The evidence of the events which preceded the final interaction between Andrew
and Oliver when Andrew was injured, has little significance, beyond providing context. It
can be summarised as follows. The young men from the two groups were all, to a greater
or lesser extent, affected by having been out drinking. Oliver however maintained that he
was not tipsy. After an evening of celebrating Dane’s eighteenth birthday, he and the
others in his group gathered at the Engen garage where Mrs Killian, Dane’s mother, was
to collect them.

[13] Andrew and Progress had arrived at the garage after a night of ‘clubbing’. Andrew
parked his vehicle in front of the automatic teller machine (ATM) in the forecourt of the
service station. Progress described Andrew as on the way to being drunk, and that his
speech had slowed down. Progress had consumed three beers. Nicholas, who had been
to a high school old boys’ function where he had consumed four beers , and thereafter
went clubbing, joined Andrew and Progress at the garage. He remarked that Andrew was
tipsy and saying ‘irrelevant stuff’.

[14] Around 1.45 am, whilst waiting for Mrs Killian, there was an exchange of words
between the two groups. Oliver denied making any homophobic comment as alleged in
the particulars of claim. Andrew allegedly lost his temper. He told Oliver to move away
from his (Andrew’s) car, or he would get someone to assault him. Nicholas did not know

v Groenewald 1998 (2) SA 1106 (SCA) at 1112F -I and Roux v Hattingh [ 2012] ZASCA 132; 2012 (6) SA

428 (SCA) at paras 17, 18 and 26. In essence, for Andrew to succeed with his delictual claim and for Oliver
be held liable for the injuries that Andrew sustained as a result of him striking the car, Andrew had to
establish that when Oliver executed the movement, he intended him to strike the car and be harmed in the
manner pleaded. The litigant who asserts must prove – Pillay v Krishna & Another 1946 AD 946 at 951-952
and Goliath v MEC for Health [2014] ZASCA 182; 2015 (2) SA 97 (SCA) para 8.

7

who had started the verbal altercation that ensued. He described Andrew as a ‘bit
aggressive’, but he could not hear what was said.

[15] A physical altercation then followed. Nicholas said that he stepped in between
Andrew and Oliver to prevent anything further happenin g. Oliver grabbed his shirt and
pushed him back. He grabbed Oliver by the collar close to his neck. During this scuffle
they moved towards the ATM. He was thereafter thrown to the ground, by someone else,
a person wearing white shoes, probably Joel, who kick ed him whilst he was on the
ground. He ended up lying on his side in the alcove and lost sight of Oliver while on the
ground.

[16] Oliver stated that he had prevented Nicholas from striking at him by placing his
arms around Nicholas. He next felt an impact from behind, probably from Andrew, which
resulted in him letting go of Nicholas. He pushed Andrew so that they became separated.
Andrew staggered a few steps back but managed to find his balance. As Mrs Killian had
arrived, Oliver turned to proceed to her car.

[17] Up to that point there had been a physical exchange, but without any, or significant,
injuries. The trial court and the full court both devoted some attention to who had been
the catalyst for the events that occurred. The trial court concluded that it was Oliver, or
his group, whereas the full court concluded that it was Andrew and his group. In our view,
a resolution of this issue is immaterial to the outcome of the appeal. Even if Oliver was
the catalyst, there would have been no injury resulting in Andrew’s paralysis, had the
subsequent events summarised below not occurred.

[18] The events material to this appeal occurred after there was a brief interlude and
Oliver started to move towards Mrs Killian’s car. Andrew rushed at him, as if to tackle him.
Oliver described how Andrew came from his right, at a rapid speed , in a rapid explosive
movement towards him. When Andrew came within reach, in order to avert the attack, he

movement towards him. When Andrew came within reach, in order to avert the attack, he
grabbed Andrew at the side of his shoulders, and as they were about to collide, he
stepped to his right, turned Andrew and using his momentum , pushed him. It was a fast

8

swivel movement, but with sufficient force to get Andrew away from him and to avoid any
collision. He let go of Andrew when his arms were at full length. He saw Andrew lose his
footing and fall in the direction of the car parked in the parking bay. He did not see Andrew
actually hit the car and had no recollection of hearing Andrew hitting the car, although he
conceded that he would have heard it. He denied having thrown or spear tackled Andrew
against the motor vehicle, or that he pushed Andrew off his feet, intending Andrew to lose
his footing.

[19] Andrew could not contradict Oliver’s evidence. He had no recollection of the events
from the time he said he looked into Oliver’s eyes, probably when Oliver released
Nicholas from the bear hold, or possibly when Oliver grabbed him by his shoulders when
he was rushing towards Oliver, until he was lying on the ground injured and paralysed.
He did remember being concerned about Nicholas, and understandably looked to see
where Nicholas was. From his position, lying on the ground, he could see Nicholas lying
on the ground and being kicked by someone with white shoes. This evidence was
consistent with what Andrew had stated in an affidavit, deposed to in April 2007 shortly
after the incident, when the facts would have been considerably fresher in his mind, and
with which he was confronted during cross examination. There is no reason why Andrew
would be untruthful in saying that he saw Nicholas on the ground being kicked, particularly
given his concern as to what had happened to his younger brother.

[20] Progress did not witness what happened between Oliver and Andrew during this
stage and could not contradict Oliver’s evidence. He simply said that he heard a loud
bash while he was pushing others away from him.

[21] Nicholas did not see Andrew rushing towards Oliver. He (Nicholas), had been
thrown to the ground. He did not know who did this as it all happened so quickly. On a

thrown to the ground. He did not know who did this as it all happened so quickly. On a
reading of the evidence, it seems that this person probably was Joel.13 Nicholas was lying

13 Joel said that on his way to Mrs Killian’s car something caught his attention and he observed Oliver being
wrestled by Nicholas on the pavement between bays 2 and 3, and Andrew also being there right in front of
Oliver facing him but more to his side. Joe l moved towards them. His focus was on Nicholas. Andrew and
Oliver had moved out of his sight. He remembered throwing a punch, which it seems struck Nicholas. He

9

on the ground, in the alcove. While on the ground he had lost sight of Oliver, Andrew and
Progress.

[22] Nicholas was subsequently assisted by Progress. He claimed that within seconds
after being helped up, he saw Oliver execute what he described as a rugby spear tackle
on Andrew. He demonstrated that Oliver, whilst facing Andrew, had picked Andrew up
with both hands from around his waist area, lifted his feet about 30 centimetres off the
ground, then tilted him with his back towards the ground, nearly parallel to the ground and
his face upwards-facing, and that Oliver then threw Andrew so he fell backwards against
the vehicle in parking bay 3. This parking bay was on the extreme right of the three
diagonal parking bays in front of the ATM (the other two being vacant at the time). He
testified that the back of Andrew’s head hit the wheel or fender on the passenger side of
the vehicle parked there. This evidence of Nicholas was the only direct evidence to
contradict Oliver’s version and constituted the highwater mark of Andrew’s case against
Oliver.

[23] Nicholas was confronted with the evidence he gave at the criminal trial: that Oliver
had picked Andrew up at the shoulders. Nicholas said he was not sure whether it was at
the waist or shoulders. It would be improbable that a person could be picked up by the
sides of his shoulders and lifted 30 centimetres into the air. On his own evidence Nicholas’
opportunity for observation was limited. As he said, ‘it all happened very quickly’ . But
significantly, he testified that it was the back of Andrew’s head, as opposed to the top or
vertex which hit the fender or wheel of the parked vehicle.

[24] Nicholas conceded that if Andrew was correct in saying that he saw him (Nicholas)
on the ground being kicked, then he (Nicholas) could not have seen Andrew being
tackled. When Andrew was confronted with this concession by Nicholas he changed his

tackled. When Andrew was confronted with this concession by Nicholas he changed his

thereafter went to Mrs Killian’s car and did not know what happened to either Oliver or Andrew. He did not
see Oliver push Andrew or ‘spear tackle’ him. They all eventually boarded Mrs Killian’s car and Nicholas
came to the car and banged on the window and side door aggressively.

10

evidence from previously having said that while lying injured on the ground he saw
Nicholas lying on the ground being kicked, to that ‘[t[here is no possible way I could have
seen my brother’.14 Andrew had however said more than once, and some time apart - in
the affidavit of April 2007 and when he gave evidence before the trial court – after there
had been ample time for reflection, that he had seen Nicholas lying on the ground.
Accepting Andrew’s evidence that he saw Nicholas lying on the ground, Nicholas could
not have got up from the ground and thereafter witnessed Andrew allegedly being spear
tackled, as Andrew had by then already been tackled, struck his head against the vehicle,
and was lying paralysed next to the vehicle . Given th ese contradictions in Nicholas’
evidence, his account of the alleged spear tackle cannot be accepted. The direct evidence
fell woefully short of establishing the pleaded allegations in support of Andrew’s claim.

The expert evidence
[25] Andrew however also sought to gain some support for his version from the opinion
evidence of two experts, Dr David Glynne Welsh (Dr Welsh) and Mr Cornelius de Jongh
(Mr de Jongh) , that his injury was more probable to have resulted from a spear tackle ,
than a flexion force injury a s would result from Andrew striking the back of his head
against the vehicle . Following the high court’s ruling on the duty to begin, Oliver had
testified first, followed by Joel, then the medical expert, Professor Robert Neil Dunn
(Professor Dunn), the chair of the Orthopaedic Surgery Department at the University of
Cape Town, and Mr Trevor John Cloete (Mr Cloete), a senior lecturer in mechanical
engineering at the University of Cape Town. Andrew’s case started with the evidence of
Progress, followed by that of the ambulance paramedic, Elizabeth Howes, Andrew’s
medical expert, Dr Welsh, an orthopaedic surgeon and the doctor who operated on
Andrew after his injury, Mr Cornelius de Jongh (Mr d e Jongh), a biomechanical expert,

Andrew after his injury, Mr Cornelius de Jongh (Mr d e Jongh), a biomechanical expert,
then Nicholas, and finally Andrew.

[26] Dr Welsh described a spear tackle as involving the body being less than parallel
to the ground, with the person tackled lifted off the ground, the head passing through 90
degrees, and with the body driven into the ground. The testimony of Oliver, his witnesses

14 Andrew then also testified that he no longer had memory of Nicholas being kicked while on the ground.

11

and the experts w ere all directed at Andrew’s claim as pleaded, namely that Oliver had
executed a spear tackle, thereby causing Andrew to sustain the injury that he did.

[27] It was only after they had testified that Nicholas described how Andrew’s body was
parallel to the ground when he came into contact with the vehicle and that the back of his
head came into contact with the vehicle. That evidence, even if it was accepted, did not
fit Dr Welsh’s description of a spear tackle.

[28] It has been held in, inter alia, PriceWaterhouseCoopers Inc and Others v National
Potato Co -operative Ltd and Another ,15 that expert witnesses should generally not be
required to express opinions until they are presented with the factual evidence upon which
they have to express an opinion. Because this did not happen before the trial court, the
expert witnesses gave evidence and were cross-examined on a hypothetical basis, not in
accordance with the established facts or all of the relevant factual evidence.

[29] Accordingly, the opinions of the experts were of little value to the trial court and
could not tip the scales in Andrew’s favour. It is therefore not necessary to analyse the
evidence of the experts any further. Suffice it to say that Professor Dunn was of the view
that one could not say from an expert medical perspective which of the two scenario was
more probable. He complained that ‘nowhere were we given the clear facts, otherwise Dr
Welsh and I would have had something to conclude . . .’.
It was furthermore probable, having regard to Andrew’s state of sobriety, that he might
well have lost his footing and fallen backwards against the car, after the swivel push
manoeuvre. The combined expert summary of forensic scientist s, Claire Lewis and Mr
Cloete, admitted in evidence by consent, supported the proposition that individuals
affected by alcohol are susceptible to injuries sustained during ground level falls because
of their compromised co-ordination and reactions.

of their compromised co-ordination and reactions.




15 [2015] ZASCA 2; [2015] 2 All SA 403 (SCA) para 99.

12

In the trial court
[30] The trial court concluded that the demeanour of Andrew and his witnesses was not
that of lying and unreliable witnesses. In rejecting Oliver’s claim of reasonable self -
defence and finding that Oliver had executed a spear tackle on Andrew, the trial court
relied on Shane’s evidence in the criminal trial to the effect that ‘what he saw was not self-
defence.’ It concluded that this did not favour Oliver’s self-defence version.

[31] Apart from this being inadmissible opinion evidence, the trial court had previously
ruled that the contents of an affidavit deposed to by Shane, which foreshadowed his
evidence, was ‘not admissible.’ In addition, during the early stages of the trial, the trial
court ruled that the record of the criminal tri al was admitted provisionally, as provided in
s 3(3) of the Law of Evidence Amendment Act (the Act). 16 Section 3(3) provides that
hearsay evidence may be provisionally admitted in terms of s 3(1) (b) if the court is
informed that the person upon whose credibility the probative value of such evidence
depends will himself testify in such proceeding, provided that if such person does not later
testify in such proceedings, the hearsay evidence shall be left out of account, unless the
hearsay evidence is admitted in terms of subsection 1(a) or (c).

[32] The admissibility of the criminal record was never revisited by the trial court, after
it had been admitted ‘provisionally’ . The evidence of witnesses who testified at the
criminal trial, but who were not called to testify before the trial court, was therefore
inadmissible. Specifically, Shane was not called as a witness. Shane’s evidence was not
admitted by the trial court in terms of s 3(1)(a) nor (c) of the Act. There was no evidence
that Shane was unavailable to testify. The evidence that Shane might have given at the
criminal trial was consequently inadmissible. The trial court’s reliance on that evidence
constituted a material irregularity.17

constituted a material irregularity.17



16 The Law of Evidence Amendment Act 45 of 1998.
17 Although this irregularity was identified as a ground of appeal in the appeal to it, the full court did not rule
separately on it, probably because it had concluded that the appeal, in any event, had to succeed on the
merits.

13

In the full court
[33] The onus of proof, as a matter of law, always remained on Andrew to establish
that Oliver assaulted him by ‘spear tackling’ him, and that the other requirements for
delictual liability were satisfied. The full court concluded that the trial court had committed
irregularities and had regard to evidence which was inadmissible. In that regard, the full
court was undoubtedly correct. It also concluded, on an evaluation of the evid ence, that
Andrew had not proved his case. It concluded that it was more probable that Andrew was
injured as a result of the swivel and push defence and that Nicholas’ description of the
spear tackle was not established. It found that Oliver’s reaction to avert the further threat
to him was reasonable.

[34] Andrew appeals the full court’s judgment on the basis that it misapplied or
misunderstood the relevant evidence and superficially applied the legal principles
germane to this matter. On behalf of Andrew it was contended that the full court erred as
it: failed to have regard to the evidence in its totality; failed to ensure that the conclusions
reached accounted for all the evidence; failed to distinguish probabilities and inferences
from conjecture and speculation; failed to properly consider the probabilit ies; failed to
draw inferences only from objectively proven facts; and, failed to follow the approach to
factual disputes as stated in Stellenbosch Farmers Winery Group Ltd and Another v
Martell Et Cie and Others (Martell)18 in regard to irreconcilable versions.

[35] We are not persuaded that the full court erred. The full court rightly concluded that
little weight could be attached to any opinion that Nicholas’ pick-up, tilt and throw face-up
backward version, assuming that he in fact witnessed it, was more probable than the
swivel-push scenario explained in Oliver’s evidence. Upon a reading of the experts’
evidence, one is left with the clear impression that it could not be said, as a matter of

evidence, one is left with the clear impression that it could not be said, as a matter of
probability, that the injury was more probably caused by a spear tackle, and not the swivel
diversion movement described by Oliver, and that the latter was not reasonable in the

18 Stellenbosch Farmers Winery Group Ltd and Another v Martell ET Cie and Others 2003 (1) SA 11 (SCA)
para 5. See also National Employers’ General v Jagers 1984 (4) SA 437 (E) at 440D-441A.

14

circumstances. Andrew had failed, at the level of fact , to adduce evidence in support of
his pleaded case. His claim was therefore unsustainable.

[36] Andrew’s criticism of the judgment of the full court is without merit. The conclusions
of a court must account holistically for whatever inferences may reasonably be drawn,
and for all the evidence. The judgment of the trial court did not account for all the evidence
or the contradictions. The fact that the trial court had the opportunity to observe the
witnesses and to make credibility findings must yield to the import of the admissible
evidence and inferences that could properly be drawn from the evidence. It is clear, when
regard is had to the versions of Andrew and Nicholas, that their respective recollection of
the material events was not reliable, was irreconcilable, and not credible. This is apparent
ex facie the record and is not dependent on any findings relating to their demeanour, upon
which the trial court had placed much reliance. The full court, properly considering the
evidence holistically, concluded that Oliver had acted in self-defence and that his conduct
was commensurate with the threatened attack.

Are there special circumstances present?
[37] Reverting then, against the aforegoing factual backdrop, to what has been
identified as t he preliminary question in this appeal, namely whether there are such
special circumstances present to justify a further appeal to this Court? Special
circumstances require more than reasonable prospects of success; such as that the
appeal deals with a substantial point of law, or is a matter of great importance to the
parties or the public, or that the prospects of success on appeal are so stron g that the
refusal to grant leave to appeal would result in a denial of justice for the party seeking
leave to appeal.19 This list of what may constitute special circumstances is not exhaustive.

[38] The appeal does not raise a substantial point of law, nor is it an issue of great

[38] The appeal does not raise a substantial point of law, nor is it an issue of great
importance to the public. Andrew’s prospects of success turn on various factual disputes.

19 Westinghouse fn 5 above at 561E-F; Stu Davidson and Sons (Pty) Ltd v Eastern Cape Motors (Pty) Ltd
(260/2017) [2018] ZASCA 26 (23 March 2018).

15

These disputes have already been considered carefully in the unanimous judgment of the
full court by three judges.

[39] Andrew’s counsel was requested to indicate the special circumstances and any
issues of law warranting the attention of this Court. He contended that the issues
appealed against are of importance to Andrew and that nothing was done by the full court
to motivate its overturning the judgment of the trial court, and that in its assessment of the
evidence, it misapplied or misunderstood the relevant evidence and it thereby superficially
applied the law. We disagree for the reasons set forth earlier in this judgm ent. The
importance of the matter to Andrew and Oliver does not extend beyond the interest any
litigant to a lis would have in achieving success.

[40] There is accordingly no reason why this Court should determine any matter arising
from the first appeal further. This Court is being inundated with appeals on factual issues,
which are not truly deserving of its attention. Appeals do not assume importance or raise
prospects of success, by the mere say-so of an appellant. The appeal roll will be clogged
unnecessarily if this trend of appeals on factual issues in non-deserving matters were
allowed to continue.

Conclusion
[41] The normal criterion of reasonable prospects of success applies to both ‘special
leave’ and ‘leave’.20 Given that there is no merit in the appeal, there are no reasonable
prospects of success,21 much less special circumstances, which demand that the factual
issues require further reconsideration by this Court. There is no reason why this Court
should reconsider any matter arising from the judgment of the full court. The relevant
issues have been considered comprehensively by the full court. Having had the benefit

20 Westinghouse fn 5 above at 561E-F.
21 MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25 November
2016) paras 16-17.

16

of the full record and all the evidence, we conclude that there are no special
circumstances present in this matter.22

[42] That being so, the appropriate order is that the appeal and ‘cross appeal’ be struck
from the roll with costs.



________________________
P A KOEN
ACTING JUDGE OF APPEAL



________________________
B P MANTAME
ACTING JUDGE OF APPEAL













22 Westinghouse fn 5 above and National Union of Metalworkers of South Africa and others v Fry’s Metals
(Pty) Ltd [2005] ZASCA 39.

17

Appearances

For the appellant: J Whitehead SC and S Botha
Instructed by: DSC Attorneys, Cape Town
Rosendorff Reitz Barry, Bloemfontein.

For the respondents: B D J Gassner SC
Instructed by: Chennels Albertyn, Cape Town
Honey Attorneys, Bloemfontein