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2024
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[2024] ZANCHC 109
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Huxham N.O and Another v Minister of Police (747/2014) [2024] ZANCHC 109 (6 December 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case Number 747/2014
Reportable: YES /
NO
Circulate to Judges: YES
/
NO
Circulate to Regional
Magistrates: YES /
NO
Circulate to Magistrates:
YES /
NO
In
the matter between:
MATTHEW
HUXHAM N.O.
FIRST PLAINTIFF/FIRST
APPLICANT
MATTHEW
HUXHAM N.O. SECOND
PLAINTIFF/SECOND APPLICANT
and
MINISTER
OF POLICE
DEFENDANT/RESPONDENT
Heard
on:
12 November 2024
Delivered
on: 06 December 2024
Summary:
Application
for leave to appeal - Grounds of appeal pertain to the expert
evidence and cost order made - Application dismissed.
ORDER
1.
The
application
for leave to appeal is dismissed.
2.
The first and second applicants shall pay the respondent’s
costs.
JUDGMENT
Stanton
J
Introduction:
[1]
For ease of reference, I will refer to the parties as they are cited
in the action
issued under case number 747/2014.
[2]
The first and second plaintiffs (jointly “the plaintiffs”)
seek leave
to appeal against a part of my judgment and the following
order handed down on 02 February 2024 where I held:
2.1
The
defendant
liable for payment of R150 000,00 in respect of Mr AJ
Huxham’s
claim for general damages;
2.2
The defendant liable for payment of
R550 000,00 in respect of Ms FA Huxham’s claim for general
damages;
2.3
The
plaintiff liable to pay 80% of the defendant’s taxed costs; and
2.4
The defendant liable to pay 20% of the plaintiff’s taxed costs,
including
the reasonable qualifying fees of the expert, Mrs P Tudin -
clinical psychologist.
Legal
principles applicable in applications for leave to appeal:
[3]
Section 17(1) of the Superior Courts Act 10 of 2013 (“the Act”)
provides:
‘
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments
on the matter under consideration.’
[4]
In
Mont
Chevaux Trust v Goosen
[1]
,
Bertelsmann J found that the introduction of the provisions of
section 17(1) of the Act raised the threshold for granting leave
to
appeal against a judgment of a High Court. Bertelsmann J reasoned
that the former test whether leave to appeal should be granted
was a
reasonable prospect that another court
might
come to a different conclusion, whilst the use of the word
would
in the Act indicated a measure of certainty that another court will
differ from the court whose judgment is sought to be appealed
against
[my emphasis].
[5]
In
S v
Smith
[2]
,
Plasket
AJA reaffirmed that:-
‘
What the test of
reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a
Court of Appeal
could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore, the
appellant must
convince this Court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be
a sound, rational basis for
the conclusion that there are prospects of success on appeal.’
The
grounds of appeal:
[6]
The grounds of appeal can be distilled that I erred in:
6.1
Refusing to grant judgment in favour of the first plaintiff against
the defendant in the amount of R14,400,000
in respect of the unlawful
seizure of sugilite by members of the South African Police Service on
or about 01 September 2011; and
6.2
Not exercising my discretion to award 100% costs in favour of the
second plaintiff and 100% costs in
respect of claim 2 of the first
plaintiff, as well as the costs of the Rule 38(2) application.
[7]
In respect of the first ground of appeal, the plaintiffs submit that
my finding at paragraph 20.4.9
of the judgment was erroneous because
it was affected by a misdirection on the facts when I held that Mr
Rothon estimated the value
of sample two at R42.70 per gram with the
resultant value of 33kg at approximately R2,400,000.00.
[8]
During argument Ms Mahomed, on behalf of the plaintiffs, conceded
that the first ground
of appeal was not a misdirection of the facts,
but merely a calculation error, and as such, that the plaintiffs
would not persist
with this ground.
[9]
The second ground of appeal can be considered collectively as it
pertains to Mr Rothon’s
evidence. The plaintiffs contend that I
erred in:
9.1
Finding that Mr Rothon’s evidence did not measure up to the
required standards when taking
into consideration the findings in
paragraphs 61 to 64 of the judgment;
9.2
Finding that the defendant was successful in his defence in respect
of the first plaintiff’s claim
for R14,400,000; and
9.3
Dismissing the first plaintiff’s claim in respect of the
sugilite.
Mr Rothon’s
evidence:
[10]
Mrs Sieberhagen, on behalf of the defendant, submitted that Mr
Rothon’s evidence did not measure up
to the required standard.
In support of her argument, she referred me to
Schneider
NO and Others v AA and Another
[3]
where
Davis J quoted the English case of
National
Justice Compania Naviera SA v Prudential Assurance Co Ltd (The
‘Ikarian Reefer’)
[4]
with approval as follows:
‘
1.
Expert evidence presented to the court should be, and should be
seen to be, the independent product of the expert uninfluenced
as to form or content by the exigencies of litigation.
2.
An expert witness should provide independent
assistance to the court by way of objective, unbiased opinion in
relation to matters within his expertise . . . .
An expert witness should never assume the role of an
advocate.
3.
An expert witness should state the facts or
assumptions upon which his opinion is based.
He should not
omit to consider material facts which could detract from his
concluded opinion.
4.
An expert witness should make it clear when a
particular question or issue
falls outside his
expertise.
5. If
an expert opinion is not properly researched because
he considers that insufficient data is available,
then this must be
stated with an indication that the opinion is no more than
a provisional one. In cases where an expert witness who
has prepared a report could not assert that the report contained the
truth, the whole truth and nothing but the truth without some
qualification, that qualification should be stated in the report.’
[11] In
addition to the findings in my judgment, I remain unpersuaded that Mr
Rothon could determine the value
of the seized sugilite at R14 400
000 for the following reasons:
11.1
According to the first plaintiff’s particulars of claim, if the
sugilite had not been confiscated by police
officers, he would have
cut, polished and sold it for the value claimed on the open market in
the United States of America;
11.2 Mr
Rothon, however, failed to provide the Court
a quo
with any
details regarding the realistic possibility that the value of R14 400
000 would be attained on the open market in the United
States of
America after the deduction of the costs of cutting, carving,
polishing, marketing and shipping;
11.3 Mr
Rothon testified that:
‘
It
took a lot of research because as I said there is no known supplier
of sugilite in South Africa. I believe that the mine puts
it aside –
the sugilite aside and then it goes off to
auctions
so the
prices can differ quite considerably
I would
imagine on
auction
because you have got different people bidding.’ [my
emphasis]. Mr Rothon, however, failed to provide any details or
information
relating to the value that the sugilite could or had in
the past earned at auctions in South Africa or the United States of
America;
11.4 Mr
Rothon, with regard to the research he conducted, referred to his
online research via SA Facts, but he included
a proviso in his
evidence that he still had to assess the sample before he could place
a value on it. He, however, did not give
evidence that he assessed
the cut and polished sample;
11.5 Where
property has been damaged, or rendered less valuable, the difference
in the pre-delict market value and the
post-delict market value of
the property usually indicates the extent of the diminution of a
plaintiff’s patrimony. The difference
is assessed as at the
time of the delict.
[5]
Mr
Rothon’s calculation was made during May 2019 at the exchange
rate of 18,5%. He did not assist the court with the values
as
calculated at the existing exchange rate when the sugilite was
confiscated in 2011 or when it was returned to the first plaintiff’s
attorney in November 2018; and
11.6 No
specific evidence was placed before the Court of the value of the
“raw” sugilite or cut sugilite
on the open market in the
United States of America at the time of the delict or on the date of
the return of sugilite.
[12]
Despite my obiter remark that the defendant chose not to present
evidence in respect of the value of the
sugilite, the defendant bore
no onus to disprove the value of the sugilite. It follows that in
dismissing the first plaintiff’s
claim, the defendant was 100%
successful in his defence.
[13] I
accordingly remain unpersuaded that an appeal court would come to a
different conclusion based on the value
of the sugilite as assessed
by Mr Rothon.
Costs:
[14] I
granted an order that the plaintiff is liable to 80% of the
defendant’s taxed costs and that the
defendant is liable to pay
20% of the plaintiff’s taxed costs, including the reasonable
qualifying fees of the expert, Mrs
P Tudin – clinical
psychologist. I pause to clarify that the defendant is liable to pay
100% of Mrs P Tudin’s costs.
[15] In
Erasmus
– Superior Court Practice
[6]
,
the following guidelines are provided regarding cost orders:
‘
The rules referred
to above, which the court should follow in exercising its discretion
in the award of costs, are as follows:
(1) The
general rule is that the successful party is entitled to his costs.
. . .
(3) In
determining who is the successful party the court looks to the
substance of the judgment and not merely
to its form.
.
. .
(4) The
court has the power to deprive a successful party of portion or all
of his costs and, in a proper
case, to order him to pay portion or
all of the costs of the unsuccessful party’.
[16] In
Gelb v
Hawkins
[7]
,
the Appeal Court confirmed that the award of costs in any matter is
in the exclusive discretion of the Court, which discretion
should be
exercised judicially upon a consideration of all of the facts of each
case, and that in essence, it is a matter of fairness
to both sides.
[17] It
is trite that a court, sitting as a court of appeal, will not lightly
interfere with any judgment (specifically
with a judgment as to
costs) where the court
a
quo
exercised
a discretion when deciding on the issue, on condition that the
discretion was judicially exercised.
[8]
In essence, whether I exercised my discretion judicially, entails an
investigation on whether the decision is based on grounds
upon which
a reasonable person would have reached the same conclusion.
[9]
[18] In
Trencon
Construction (Pty) Ltd v Industrial
Development
Corporation of South Africa Ltd and Another
[10]
,
the Constitutional Court confirmed, with reference to
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[11]
,
that:
‘
When
a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to interfere
unless it is satisfied that this discretion was not exercised:
“
. . .
judicially, or that it had been influenced by wrong principles or a
misdirection on the facts, or that it had reached
a decision which in
the result could not reasonably have been made by a court properly
directing itself to all the relevant facts
and principles”.’
[19] Ms
Mahomed argued that my apportionment of the costs at 80% (plaintiffs’
liability for the defendant’s
taxed costs) and 20% (defendant’s
liability for the plaintiffs’ taxed costs) is incorrect as one
day was spent in respect
of the sugilite claim, including the
interlocutory application in respect of which the first plaintiff was
successful, and the
second day for the adjudication of the second
plaintiff’s claim for general damages. She furthermore
contended that different
evidence was led in regard to the second
claim of the first and the second plaintiff’s claim.
[20] My
assessment of the costs was not solely based on the time allocated
for the adjudication of the matter.
I also took cognisance of the
number of witnesses who testified in each claim. In addition to the
video footage, three further
witnesses testified in respect of the
sugilite claim; and only Mrs Tudin was called to testify about the
second plaintiff’s
claim. The plaintiffs were entitled to
institute their claims against the defendant jointly. In determining
who the successful
party was, I also considered the substance of the
judgment and not merely the form. This being said, the defendant was
successful
in its defence against the R14 400 000 claim whilst the
first plaintiff was only partially successful in his claim for
general
damages in the amount of R150 000. The second plaintiff was
successful in her claim for R550 000. However, the successful defence
of the R14 400 000 claim far outweighs the amounts awarded as general
damages to the first and second plaintiffs.
[21] Ms
Mahomed submitted that separate cost awards would not be impractical
as the cost consultant and the taxing
master will determine the
issue. I remain unpersuaded as there is only one set of pleadings;
and one attorney and one counsel for
the plaintiffs and the defendant
respectively.
[22]
The Court in
Stolp
v Du Plessis
[12]
,
reiterated that:
‘
.
. . there is no rigid rule which can be laid down as to what
order as to costs will produce a fair result, but each case
must be
dealt with on its own facts and an order appropriate to those facts
should be made. It is almost impossible to arrive at
a formula which
will produce mathematically accurate apportionment to costs and what
the Court should do is to make an order which
will produce a result
which is substantially fair.’
[23]
After a careful and dispassionate consideration, I am satisfied that
there are no reasonable prospects that
another court would come to a
different finding in respect of the issue of costs.
[24]
In the result, the application for leave to appeal fails.
Wherefore
the following order is made:
1.
The
application
for leave to appeal is dismissed.
2.
The first and second applicants shall pay the respondent’s
costs.
STANTON,
A
JUDGE
NORTHERN
CAPE DIVISION
On
behalf of the plaintiffs
:
Adv.
S Mahomed on instruction of Jonathan Cohen & Associates and care
of Elliot
Maris
Attorneys
On
behalf of the defendant
:
Adv.
AS Sieberhagen on instruction of the Office of the State Attorney
[1]
2014 JDR 2325 (LCC) paras 5-6.
[2]
2012 (1) SACR 567
(SCA) para 7.
See also
S v Notshokovu
2016 JDR 1647 (SCA).
[3]
Schneider
NO and Others v AA and Another
2010
(5) SA 203
(WCC) at 211F-H.
[4]
[1993] 2 Lloyd's Rep 68 at 81.
[5]
15
Lawsa
3
ed
para 195 (and the authorities cited therein).
[6]
RS 23, 2024, D5-7.
[7]
[1960] 3 All SA 371
(A) at 376.
[8]
Kruger
Bros & Wasserman v Ruskin
1918 AD 63
at 69. See also
Cronje
v Pelser
[1967] 1
All SA 265 (A) at 267.
[9]
Merber
v Merber
[1948] 1 All SA 437
(A) at 443 with reference to
Ritter
v Godfrey
(1920, 2.K.B. 47).
[10]
2015 (5) SA 245
(CC)
para
88.
[11]
2000 (2) SA 1 (CC)
para
11.
[12]
[1960]
2 All SA 588
(T) at 590.