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2024
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[2024] ZAKZPHC 72
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Joubert v Drotsky (AR9/2023) [2024] ZAKZPHC 72 (30 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
AR9/2023
In
the matter between:
CHRISTA
JOUBERT
APPELLANT
and
JURIE
JOHANNES DROTSKY
RESPONDENT
Coram:
Mossop J and Mngadi J
Heard:
23 August 2024
Delivered:
30 August 2024
ORDER
On
appeal from
: Regional Court, Durban (sitting as court of first
instance):
1.
The appellant’s application for condonation
for the late filing
of her notice of appeal is refused.
2.
The appeal is struck from the roll.
3.
There shall be no order as to costs.
JUDGMENT
MOSSOP
J
(MNGADI J concurring):
[1]
This is an appeal against a civil
judgment delivered in the Durban regional court on 29 December 2021.
The judgment of the regional
magistrate was in favour of the
respondent and directed the appellant to pay to him an amount of R400
000 on the basis that such
amount had been paid to her by the
respondent as a loan and not as a gift to her, as alleged by the
appellant.
[2]
It is necessary to record at this stage
that no heads of argument were delivered by the respondent. I
accordingly requested my registrar
to make contact with the
respondent’s attorneys to ascertain why this is the case. An
email was received from the respondent’s
attorneys in reply
indicating that the respondent lacks funds to participate in this
appeal and I was advised that there will therefore
be no appearance
for him.
[3]
The
appellant commenced the appeal procedure by delivering a notice of
appeal. That notice was signed on 12 January 2023 by the
appellant’s
legal representative, Mr van Heerden, who is an advocate of this
court who holds a trust account. It appears
to have been filed with
the clerk of the regional court on 17 January 2023. Regard being had
to the fact that judgment was delivered
by the regional magistrate on
29 December 2021, it is evident that the notice of appeal was
delivered substantially out of time.
[1]
Approximately a year out of time.
[2]
The foremost issue that therefore needed to be addressed by the
appellant was that of condonation and a condonation application,
supported by an affidavit made by the appellant, was delivered.
[4]
Before dealing with the issue of condonation,
it is necessary to briefly set out the pattern of facts in this
matter in order to
allow a proper consideration of the facts advanced
in support of the condonation application.
[5]
At the time of the trial in the court a quo,
the appellant was the part owner of a caravan park at Illovo Beach,
KwaZulu-Natal,
known as Wavecrest (the caravan park). The caravan
park is not large: it has only 13 caravan sites but it does have 9
flatlets
and 2 chalets. One of those 9 flatlets was occupied by the
appellant and another was occupied by her daughter, Ms Sarah Lee
Joubert
(Ms Joubert). Ms Joubert occupied her flatlet free of charge.
During either 2009 or 2010, the respondent commenced a romantic
relationship
with Ms Joubert and moved into the flatlet that she
occupied. This was done with the knowledge and blessing of the
appellant. The
relationship between the respondent and Ms Joubert
deepened and they later became engaged to be married.
[6]
During February 2011, the respondent was involved in
a motorcycle
accident and suffered severe physical injuries, which included a
broken arm, leg, heels, elbow, and collarbone. He
was hospitalised
for approximately two weeks and once discharged from hospital, was
initially immobile and required some assistance
for a while to do
even the most basic and intimate things. He was incapacitated for
several months before being able to resume
his employment. In due
course, he lodged a claim with the Road Accident Fund (the RAF),
which was ultimately settled, and which
paid him an amount of
approximately R1,8 million (the settlement) on 1 March 2018.
[7]
After
receipt of the settlement from the RAF, the respondent used some of
it to repay his father for the cost of certain medical
treatments
that he had received after the accident, and which had been paid for
by his father. He also paid some money to his mother.
In addition,
the respondent paid an amount of R400 100
[3]
to the appellant, in three payment tranches. The first payment was in
the amount of R100 and was made by the respondent on 14 March
2018 to
make sure that the banking details that he had for the appellant were
correct. Once the accuracy of the banking details
was established,
the respondent paid an amount of R250 000 to the appellant on 16
March 2018, and a further amount of R150 000
on 20 March 2018. Those
payments were not in dispute, and it is around those payments that
this appeal moves.
[8]
In each
instance, the respondent, when making payment, recorded in his bank
statements that it was made in respect of ‘long
term investment
S and J’
[4]
and the amount
of each payment made. That notation only appeared on the respondent’s
bank statement and not on the appellant’s
bank statement. It
gave an insight into the respondent’s view of the transaction.
[9]
The respondent’s particulars of claim made out
the case that
these payments were made consequent upon the conclusion of an oral
agreement of loan concluded between himself and
the appellant on 14
March 2018. It was pleaded that the loan was repayable on demand.
Such demand was made on 4 October 2018, but
the appellant failed to
repay the money advanced. Legal proceedings commenced, and the
appellant ultimately delivered her plea
to the respondent’s
particulars of claim in which she alleged that the payments that she
had received from the respondent
were a gift from him. The
appellant’s plea will be considered in greater detail shortly.
The trial that then followed led
to the judgment of the regional
magistrate in respect of which this appeal is brought.
[10]
Returning to the condonation
application, the appellant states in her affidavit, that when the
judgment was handed down, she immediately
recognised that the
regional magistrate had made an error in finding as she did and
states that she had every intention of appealing
the judgment. She,
however, had no funds to pursue an appeal. The gravamen of her
submissions in this regard are captured in the
following paragraphs
of her condonation affidavit:
‘
I
made an attempt to mortgage my immovable property to pursue the
Notice to Appeal, to avoid launching a condonation application,
I
approached ABSA Bank but the Bank declined my application based upon
my age being a major factor.’
And:
‘
I
did approach legal aid board but was told that I don’t qualify
due to the means test because I own properties.’
Those
two extracts constitute her only explanation for the lateness of the
notice of appeal.
[11]
The reason why the appellant was eventually
able to note her intention to appeal was as a result of her ‘coming
into possession
of some funds’. The source of those funds, and
circumstances under which they were acquired by her, was not
explained by
the appellant. She did, however, state that these funds
were acquired by her:
‘…
some eight months after
the learned Magistrates’ (sic) Judgment.’
Accepting
this to be accurate, it appears that these funds were acquired by the
appellant on an undisclosed date in August 2022.
This must be so
because the regional magistrate’s judgment was handed down in
December 2021 and August would be the eighth
month after that
occurred.
[12]
Litigation, like just about everything
in this life, must have a beginning and an end. The finality of legal
proceedings is an accepted
underlying ethos of our jurisprudence and
is actively pursued because
it promotes certainty and allows
litigants to know where they stand. Litigation must accordingly be
conducted both with intent
and with deed and in accordance with the
prescribed rules. Prolonged and unnecessary delays in the cycle of
litigation are to be
deprecated and will not be favourable viewed by
a court. This is particularly the case when it comes to appeals.
Where there is
an inordinate delay in delivering a notice of appeal,
a reasonable belief may arise in the mind of the successful party
that the
judgment delivered in his or her favour has become
unassailable.
[13]
All
of this was summed up in
Van
Wyk v Unitas Hospital
and
another (Open Democratic Advice Centre as Amicus Curiae)
,
[5]
where
the Constitutional Court observed as follows:
‘
A
litigant is entitled to have closure on litigation. The
principle of finality in litigation is intended to allow parties
to
get on with their lives. After an inordinate delay a litigant
is entitled to assume that the losing party has accepted
the finality
of the order and does not intend to pursue the matter any further.
To grant condonation after such an inordinate
delay and in the
absence of a reasonable explanation, would undermine the principle of
finality and cannot be in the interests
of justice.’
[14]
That,
of course, does not mean that condonation cannot ever be granted. A
court has a discretion on whether to grant condonation.
[6]
Court rules which fix time periods for steps to be taken, while
definite, are not immutable. Thus, non-compliance may be overlooked
upon the provision of compelling reasons for the failure to comply
strictly with those rules. Each condonation application is thus
to be
decided on its own unique facts, in accordance with developed
principles. But such an application must be brought at the
earliest
opportunity,
[7]
for any delay in
seeking condonation must itself be explained.
[8]
[15]
The general principle applicable to the
determination of condonation applications was set out in
Van
Wyk
as follows:
‘
This
court has held that the standard for considering an application for
condonation is the interests of justice. Whether it
is in the
interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant
to this enquiry
include but are not limited to the nature of the relief sought,
the extent and cause of the delay, the effect
of the delay on the
administration of justice and other litigants, the reasonableness of
the explanation for the delay, the importance
of the issue to be
raised in the intended appeal and the prospects of success.’
(Footnote omitted.)
[16]
The appellant states in her condonation
affidavit that she did not ‘simply ignore the rules of this
court’. It is difficult
to accept that proposition because of
the paucity of details in her condonation affidavit. She has advanced
no facts that serve
to reassure this court that this is the case and
that she did not simply acquiesce in the judgment, given the length
of the delay
between the date of delivery of the judgment and the
date of delivery of her notice of appeal. She claims to have
attempted to
mortgage her property to raise funds: when this was
done, what property she attempted to mortgage (for it appears, on her
own version,
that she has more than one), what she actually did, who
she dealt with at ABSA Bank, which ABSA Bank branch she approached,
and
whether she approached any other financial institutions are but
some of the obvious questions that call for an explanation from
the
appellant, as do the facts that led to her acquiring the funds to
eventually prosecute her appeal. She has made no attempt
to provide
any of this information.
[17]
At
best, the appellant’s explanation may be categorised as being
vague. The attempts at securing a mortgage and approaching
Legal Aid,
if they occurred, could not have consumed much of the period of the
delay. No attempt has been made to explain what
the appellant did
before, or after, those events. Importantly, if she indeed came into
funds in August 2022, she has provided no
explanation at all of what
occurred between that date and the date of delivery of her notice of
appeal, namely 17 January 2023.
It follows that there has been no
explanation that covers the full period of the very long delay. The
disclosure of dates, for
none have been disclosed by her, would have
gone some way to showing a purposeful, ongoing attempt by the
appellant to bring her
appeal to this court. In
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and others
,
[9]
the court held that:
‘
In
explaining the reason for the delay it is necessary for the party
seeking condonation to fully explain the reason for the delay
in
order for the court to be in a proper position to assess whether or
not the explanation is a good one. This in my view requires
an
explanation which covers the full length of the delay. The mere
listing of significant events which took place during the period
in
question without an explanation for the time that lapsed between
these events does not place a court in a position properly
to assess
the explanation for the delay. This amounts to nothing more than a
recordal of the dates relevant to the processing of
a dispute or
application, as the case may be.’
[18]
The
few significant events that have been mentioned by the appellant are
not located in time, if regard is had to the fact that
the period
that the appellant needs to explain covers approximately a year.
Where the non-compliance is time related, as in this
case, the
Supreme Court of Appeal has observed that ‘the date, duration
and extent of any obstacle’ relied upon ‘must
be spelled
out’.
[10]
This has not
been done.
[19]
The grant or refusal of condonation is not a
mechanical process but one that involves the balancing of often
competing factors.
Accordingly:
‘…
very
weak prospects of success may not offset a full, complete and
satisfactory explanation for a delay; while strong prospects
of
success may excuse an inadequate explanation for the delay (to a
point)’.
[11]
A
combination of an inadequate explanation and poor prospects of
success would hold limited prospects of condonation being granted.
[20]
In seeking condonation, an applicant is required to objectively
assess his
or her prospects of success should condonation be granted.
In this regard, the
appellant
asserts that she has a ‘bona fide or reasonable prospect of
success’. In this regard, she submits in her condonation
affidavit that insufficient emphasis was given to something that was
said in Afrikaans at the trial. The appellant claims that
the
respondent said the following to her when informing her that he would
make the payments to her:
‘
Ma
hierdie geld gee ek vir jou om vir oom Chris uit te sorteer sodat
Sarah nie met hom in die toekoms hoef te deel nie.’
The
appellant claims that this statement establishes that the money was a
gift from the respondent and not a loan. The further submission
is
advanced that the regional magistrate ought to have engaged the
services of an Afrikaans interpreter to fully understand the
meaning
of that statement which, according to the appellant, carries more
weight in Afrikaans than it does when translated into
English.
[21]
There are a number of difficulties with this
submission and the proposition that follows it. Firstly, it
presupposes that the regional
magistrate did not understand
Afrikaans. However, the regional magistrate did understand Afrikaans
and she said as much during
the trial. Secondly, if the appellant
believed that the phrase used held a special meaning that may not be
properly comprehended
by persons who are not naturally Afrikaans
speakers, the duty was on her to lead evidence of an expert on that
issue. That was
not done.
[22]
The
conclusion that the regional magistrate came to in her judgment was
not simply based on her understanding of that single
sentence. It was
based upon a general conspectus of all the evidence led and the
weighing up of probabilities that were found to
exist. The issue was
never taken at the trial that there was anything of special
significance in those words beyond their ordinary
grammatical meaning
or that an interpreter should have been called by the regional
magistrate. The appellant appears to believe
that a regional
magistrate has the powers of a criminal court and may call witnesses
as he or she deems necessary.
[12]
Her legal advisors should have explained to her that this is not the
case in civil proceedings, where the parties assume the burden
of
sourcing and presenting their own evidence to the court. The point is
accordingly misguided.
[23]
It
further appears to me that there is an issue of some significance
that the appellant has overlooked in pressing this argument.
It is
trite that a
dispute between parties litigating against each other is framed by
their pleadings.
The
pleadings ‘define the issues as well as the scope and ambit of
the dispute between the parties’ and they thus
‘play
a vital role in litigation’.
[13]
It
follows that, as a general proposition, parties may only lead
evidence in accordance with what they have pleaded.
[24]
On the issue of the payment of the R400
000, which the appellant admitted receiving from the respondent, the
appellant set out in
her plea why the money was a gift from the
respondent and not a loan. It is helpful in this regard to quote
fully from her plea:
‘
3.12
During March 2018 the Plaintiff approached the Defendant and told her
that he wanted to make a donation to her
in the sum of R400 000.00.
This donation was to be made as a token of appreciation for:
3.12.1
the Defendant’s tolerance in not enforcing her rights in
respect of rental payments and payment for electricity and water;
3.12.2
the costs that the Defendant had incurred in settling
some of the
Plaintiff’s medical expenses during his recuperation after his
motor vehicle accident; and
3.12.3
the care that she had herself taken of him and the
arrangements she
had made for him to be cared for by others.’
[25]
The respondent therefore had to meet a
case that alleged that he was generally indebted to the appellant.
However, t
he record of proceedings reveals that in presenting
her case to the court a quo, the appellant made no effort to
establish the fact
of such indebtedness or to quantify that alleged
indebtedness. The only reference to a figure made by her in her
evidence was a
statement that she had paid ‘4 000 and
something’ towards the cost of an ambulance to transport the
respondent from
one State hospital to another (a fact that was
disputed by the respondent’s father when he later testified).
[26]
Instead, contrary to what had been pleaded, the appellant testified
as follows
when led in chief by her legal representative, Mr Reece:
‘
MS
C JOUBERT
: Mr Drotsky came to me and he said he
was going to give me this money to sort out the legal aspect with my
ex-husband
and he also said to me that he is giving it as a gift to
Sarah should I pass away.
MR
REECE
: Sarah is your daughter?
MS
C JOUBERT
: Sarah is my daughter. She wouldn’t
have to deal with her very difficult father because he is very
difficult.
If I could resolve this because I had a pending court case
with him.’
[27]
From this, it appears that three reasons
for the payment were now advanced by the appellant: the alleged
indebtedness of the respondent
as described in her plea; the payment
of her legal fees by the respondent arising out of legal proceedings
that she had with her
ex-husband; and a gift, not to her, but to her
daughter, Ms Joubert. The appellant appeared to have abandoned the
grounds pleaded
by her and embraced new and different reasons. She
was precluded from doing so and ought not to have been allowed to
advance that
version which contradicted her pleaded version. The
Afrikaans statement referred to by the appellant in her condonation
affidavit
is struck by the same prohibition.
[28]
A final point raised by the appellant in her condonation application
concerning
her prospects of success is that the regional magistrate
failed to attach sufficient weight to the evidence of a so-called
independent
witness called by the appellant, namely Ms Botes. Ms
Botes was a friend of the appellant and her daughter and testified
that she
believed the payment had been a gift and not a loan. She,
however, had no direct evidence of the arrangement and her opinion of
what the true nature of the transaction was correctly held no
attraction for the regional magistrate. Her evidence did not advance
the issue on behalf of the appellant.
[29]
Mr Sukdeo, who appeared for the appellant, submitted that a
procedural irregularity
had occurred at the trial. This submission
was grounded in the fact that the appellant had testified first. That
is what, indeed,
happened, but it happened by agreement between the
parties as the following was said by Mr Suhr, who appeared for the
respondent,
and which was assented to by Mr Reece who, as previously
stated, appeared for the appellant:
‘
It
has been agreed between the parties that the burden of proof is on
the defendant and my learned friend will thus be adducing
evidence.
COURT
:
Thank you.
MR
REECE
: I confirm that’s correct, your worship.’
Who
commences to lead evidence at trial is determined by the pleadings
and any agreement between the parties. Mr Sukdeo’s
submission
that the regional magistrate should have interfered and directed the
respondent to commence giving evidence has no merit.
The fact that
the appellant gave evidence first did not have any material impact on
the outcome of the trial. All the evidence
that could be led was
called, considered and evaluated by the court.
[30]
The receipt
by the appellant of the payment of R400 000 was admitted. Given the
specific defence that it was paid to her as a gift,
the appellant
bore the onus of establishing that proposition,
[14]
for a gift or donation is not presumed to have occurred simply
because one person has paid money to another. Mr Sukdeo submitted
in
argument that the notation on the respondent’s bank statement
previously referred to established that the payments received
by the
appellant were actually an investment. It is entirely conceivable
that a loan may be an investment. For example, holding
a savings
account with a bank that earns interest is both a loan to the bank
and an investment. What is more significant, perhaps
by its omission,
is that the notation did not refer to the payments as being a gift to
the appellant.
[31]
In my view, the appellant, did not discharge that onus that she
bore
and I am unable to discern any misdirection in the reasoning of
the regional magistrate in the judgment that she delivered. It
appears therefore to me that the appellant does not have good
prospects of ultimately succeeding.
[32]
The appellant’s condonation application is threadbare and
starved of
facts. It is inadequate in its content and fails to
explain the full period of the delay. Allied to this is the fact that
the appellant
has poor prospects of success. The law encourages
litigants to act with due speed when litigating. Those that do not do
so may
find the court to be unwilling to come to their assistance
when issues arise. The delay in delivering the notice of appeal in
this
instance is excessively long. If condonation were to be granted,
the prized principle of finality would, in my view, be undermined.
By
virtue of the interplay of all these factors, it appears to me not to
be in the interests of justice to condone the late filing
of the
appellant’s notice of appeal. The appeal is thus not properly
before us and must be struck from the roll.
[33]
Before concluding, one final issue needs to be addressed. It was
mentioned
at the beginning of this judgment that the appellant is
represented by counsel who holds a trust account. He may therefore be
directly
consulted by clients without the involvement of an attorney.
A reading of the appellant’s affidavit in support of her
condonation
application establishes that it was commissioned by her
counsel. Asked about this, Mr Sukdeo submitted that this occasioned
no
prejudice. I am not able to agree with that submission. The
administration of justice is prejudiced when legal practitioners do
not comply with the regulations that govern the administering of
oaths.
[34]
Regulation
7(1) of
the
Regulations Governing the Administering of an Oath or Affirmation
(the regulations)
[15]
reads as
follows:
‘
A
commissioner of oaths shall not administer an oath or affirmation
relating to a matter in which he has an interest.’
[35]
In
Royal
Hotel, Dundee, and others v Liquor Licensing Board, Area No 26;
Durnacol Recreation Club v Liquor Licensing Board Area, No
26
,
[16]
this court observed that:
‘…
a
commissioner
of oaths is required to be impartial and unbiased in relation to the
subject matter of the affidavit [that he or she
commissions] and
that, if he is otherwise, he has an interest in the matter’.
[17]
The
court held that an attorney acting for a party in a matter has an
interest in that matter which precludes him from functioning
as a
commissioner of oaths to attest an affidavit used in that litigation
and went on to explain the reasoning behind that conclusion
as
follows:
[18]
‘
An
attorney practises his profession for gain; he carries on his
practice to make a living, albeit he submits to and is bound by
professional rules of conduct. In the course of carrying on his
practice, he has an interest to earn fees and in each matter to
which
he gives attention, that is an interest attributable to him. In
addition, and even where he acts
pro Deo
or
pro amico
,
he has an interest to improve, increase and consolidate his goodwill,
which is a valuable thing; it is to his interest in this
respect to
bring his client’s affairs, whether litigious or otherwise, to
a successful conclusion – “success
breeds success”.
Not only, consequently, has he these financial interests in any
matter in which he is acting, but, because
it is to his interest to
bring his client’s affairs to a successful conclusion, he
cannot be impartial and unbiased; if he
functions as a commissioner
of oaths in the matter, he is not independent.’
[36]
These words apply with equal force to an advocate who holds a trust
account.
Counsel ought, therefore, not to have commissioned the
respondent’s affidavit. This is, quite frankly, an elemental
principle
and should not have to be discussed in this judgment.
Affidavits commissioned in the fashion employed in this matter do not
comply
with the regulations and are, therefore, not affidavits. By
virtue of the decision to which I have come as to the fate of this
appeal, it is not necessary to take this point to its logical
conclusion, but the facts of this matter should be a salutary warning
to legal practitioners, who are not aware of the content of the
regulations, to familiarise themselves with them.
[37]
It does not appear that the respondent has taken any steps in
relation to this
appeal and did not, as previously recorded, appear
at the appeal. It seems fair to me that in those circumstances there
should
be no order as to costs.
[38]
In the circumstances, I would propose the following order:
1.
The appellant’s application for condonation
for the late filing
of her notice of appeal is refused.
2.
The appeal is struck from the roll.
3.
There shall be no order as to costs.
MOSSOP J
I
agree and it is so ordered:
MNGADI J
APPEARANCES
Counsel
for the appellant:
Mr
Sukdeo
Instructed
by:
Advocate
H van Heerden
Suite
10
Illovo
Business Park
Lower
Illovu
Counsel
for the respondent:
No
appearance
[1]
Rule 51(3) of the Magistrates’ Court Rules at the time
provided as follows: ‘
An
appeal may be noted within 20 days after the date of a judgment
appealed against or within 20 days after the registrar or clerk
of
the court has supplied a copy of the judgment in writing to the
party applying therefor, whichever period shall be the longer.’
[2]
There
were 384 days between the date upon which judgment was handed down
and the date upon which the notice of appeal was filed.
[3]
It was common cause at the trial that notwithstanding the
particulars of claim stating that the sum of R400 000 was paid by
the respondent to the appellant, the amount actually paid by the
respondent to the appellant was R400 100. The respondent limited
his
claim to the amount of R400 000, possibly to keep it within the
jurisdiction of the regional court as the amount of
R400 000
is
the upper limit of the regional court’s monetary jurisdiction.
See: Determination of monetary jurisdiction for causes
of action in
respect of regional divisions, GN 216,
GG
37477,
27 March 2014).
[4]
The
respondent’s first name is Sarah (S) and the respondent’s
first name is Jurie (J), hence ‘S and J’.
[5]
Van
Wyk v Unitas Hospital
and another (Open Democratic Advice Centre as Amicus Curiae)
[2007]
ZACC 24
;
2008
(2) SA 472
(CC) para 31 (
Van
Wyk
).
[6]
PAF
v SCF
[2022]
ZASCA 101; 2022 (6) SA 162 (SCA) para 15.
[7]
Commissioner
for Inland Revenue v Burger
1956
(4) SA 446
(A)
at 449G-H.
[8]
Mulaudzi
v Old Mutual Life Assurance Co (South Africa) Ltd and others
[2017] ZASCA 88
;
2017 (6) SA 90
(SCA) para 26.
[9]
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and others
(2010)
31 ILJ 1413 (LC) para 13.
[10]
Uitenhage
Transitional Local Council v South African Revenue Service
2004 (1) SA 292
(SCA);
[2003] 4 All SA 37
(SCA) para 6.
[11]
Valor
IT v Premier, North West Province and others
[2020] ZASCA 62
;
2021 (1) SA 42
(SCA) para 38. See also
United
Plant Hire (Pty) Ltd v Hills and others
1976 (1) SA 717
(A) at 720E-G;
Darries
v Sheriff, Magistrate’s Court, Wynberg, and another
1998 (3) SA 34
(SCA) at 40H-41E.
[12]
See
in this regard
s 186
of the
Criminal Procedure Act 51 of 1977
.
[13]
V
an
Wyk v The MEC: Department of Local Government and Housing of the
Gauteng Provincial Government and others
[2019]
ZASCA 149
para
11.
[14]
Timoney
and King v King
1920 AD 133
at 139. In
Avis
v Verseput
1943 AD 331
at 345 it was held that
this
principle is based upon the following passage from
Voet
(39.5.5): ‘
In
dubio autem donatio non praesumitur quamdiu alia conjectura capi
potest adeoque qui eam allegat licet in exceptione probare
debet
’,
meaning that ‘in case of doubt a donation is not presumed as
long as any other conjecture or interpretation is
possible. And
therefore he who alleges a gift - even if it be by way of an
exception (when he is sued), ought to prove it’.
[15]
Regulations Governing the Administering of an Oath or Affirmation,
GN R 1258,
GG
3619,
21 July 1972.
[16]
Royal
Hotel, Dundee, and others v Liquor Licensing Board, Area No 26;
Durnacol Recreation Club v Liquor Licensing Board Area,
No 26
1966
(2) SA 661 (N).
[17]
Ibid
at 668G-H.
[18]
Ibid
at 669G-670A.