REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A122/2022
In the matter between:
In the matter between:
PETER SEMONO Appellant
and
MUNICIPAL MANAGER RAND WEST
LOCAL MUNICIPALITY Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines . The date and fo r hand -down is deemed to be 30 April 2025 .
Summary: An appeal against an order dismissing an action for damages
suffered after the plaintiff fell into a n uncovered storm water drainage . In the
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ _________________________
DATE SIGNATURE
absence of a proper stated case, a court is incapable of determining a matter
and sustained injuries. The court below failed to conduct a proper trial of the
action . An agreement between the parties not to lead evidence and accept
medico -legal reports as evidence , does not absolve a judge from conducting a
trial of issues in accordance with the Rules of th is court. A court of appeal
derives its powers from section 19 of the Superior Courts Act. Where a hearing
of further evidence is required , remitting the case to the court of first instance
is appropriate instead of a court of appeal performing the duties of a court of
first instance. In view of the fact that the court of first instance did not conduct
a proper trial of issues, it is appropriate to remit the matter back to the court of
first instance for a proper trial. The decision whether a stated case sh ould be
presented is the decision of the litigating parties and not that of a trial judge.
Once a case reaches a trial stage, the r ule 39 procedure must apply. Held: (1)
The appeal is upheld and the order of the Court below is set aside . Held: (2)
The case is remitted back to the court of first instance for a proper trial of the
action . Held: (3) The respondent is to pay the costs of this appe al on a pa rty
and party scale , to be settled or taxed at scale B . Held : (4) The issue of the
costs of the aborted trial are costs in the cause to be determined by the court
of first instance.
JUDGMENT
CORAM : MOSHOANA, J , VAN DER SCHYFF J and BAM J (concurring)
Introduction
[1] Rule 33(1) of the Uniform Rules of this Court affords the parties to any dispute ,
after institution of proceedings , an opportunity to agree upon a written
statement of facts in the form of a special case for the adjudication of the Court.
When the parties choose not to make use of this opportunity and the case is
allocated for a trial, the allocated trial judge should be navigated by the
provisions of rule 39. Of pertinence in the present appeal, rule 39(5) directs that
where the burden of proof is on the plaintiff, he or one advocate for the plaintiff
may briefly outline the facts intended to be proven and the plaintiff may proc eed
to the proof thereof. At the close of the plaintiff’s case, an a bsolut ion from the
instance may be applied for by the defendant. If granted, the trial proceedings
will termi nate. If not granted, the defendant may either close or open its case.
[2] The trial of th e present action commenced before the court of first instance
beaconed by the learned Mr Acting Justice Nthambeleni. The appellant
tendered full evidence of two witnesse s. His case was not closed. The
peculiarity of this case is that on the second day of the commenced trial, the
plaintiff was supposed to proceed with his case dealing with the quantum
aspect of his claim, however for reasons that are not apparent anywhere in the
transcript, the trial did not proceed. Both representatives before us contended
that the Acting Justice, imposed, as it were, to them a stated case process.
Allegedly, they both agreed that the expert reports would constitute evidence. I
pause to me ntion that there is no evidence of the alleged agreement being
recorded anywhere , other than the ipse dixit of the legal representatives . It is
apparent that both parties submitted to the Acting Justice what was labelled as
stated case s. After adoption of that strange procedure, the Acting Justice
handed down the impugned written judgment on 18 August 2021 .
[3] It bears mentioning at this sta ge that the Acting Justice recorded in the written
judgment, the following:
“[3] Due to the fact that there were no witnesses for the defendant
on both merits and the quantum of the claim, a stated case was
commissioned and prepared by both parties in order to narrow the
issues that were in dispute and what was agreed between the parties
during pre -trial conference.”
[4] … All expert witnesses of the plaintiff were uncontested.”
[4] Having outlined t he features of the present appeal, it reaches us as a sequ el of
leave to appeal being granted by the Supreme Court of Appeal on 10 February
2022 . This after the Acting Justice refused leave to appeal. It suffices to
mention at this embryonic stage that we take a view that a proper trial was not
conducted by the C ourt of first instance. Regard being had to the transcript
availed, the appellant had not closed his case, neither did the defendant open
or close his case. More importantly, t he parties never sought and obtained an
order contemplated in rule 33(4) separat ing the merits from the quantum. It is
common cause that the disputed issues of quantum were not adjudicated upon
by the Court of first instance. Apparently , such lack of adjudication was
occasioned by the presence of a stated case. As it shall be demonstr ated later
in this judgment, absent a proper stated case, the Acting Justice was not
empowered to, as he did, adjudicate this case.
Factual matrix appertaining the present appeal
[5] In light of the views already expressed above, and given the approach this
Court takes at the end, it shall be obsolete to, in this judgment , punctiliously
narrate all the facts appertaining the present appeal. The salient facts are that,
on one evening of 15 November 2015, the appellant, Mr Peter Semono, took a
walk to visit his friend. At the corner of Lembede and Nhlapo streets,
Mohlakeng Township, Randfontein, the appellant tripped and fell into an
uncovered , unprotected and unmarked storm water drainage . As a result, he
sustained serious injuries and received medical treatment at Leratong Hospital.
[6] He was hospitalised for a period of about nine days. In due course, the
appellant instituted a civil action against the Municipal Manager of the Rand
West Loc al Municipality . The action was defended by the Municipal Manager.
Pleadings were exchanged and ultimately, the action was enrolled for trial on
several occasions. Ultimately, the trial of the action commenced before the
Acting Justice on 20 April 2021. On this day, the learned Acting Justice received
testimony from two witnesses, which testimony was aimed at proving the merits
of the action. Although, the transcript of the proceedings does not bear this out,
before us the appellant , in his heads of argumen t, submitted the following:
“[10] At the start of the trial His Lordship Nthambeleni AJ, after
having been informed by Counsel for the Appellant that various issues
had become settled between the parties at a pre -trial held on 13 April
2021, directed the p arties to submit a stated case . Counsel for the
respective parties were provided until the 21 April 2021 to upload their
stated cases, which was complied with for Plaintiff/Appellant and
Defendant/Respondent respectively.”
[7] The transcript of the trial proce edings on 20 April 2021 records the following:
“COURT : In that case then, under the circumstances we will have
to adjourn this matter until tomorrow for us to be able to proceed with
the matter and hear the quantum of the plaintiff in this matter. Under
the circumstances the Court is adjourning.
CASE POSTPONED UNTIL 21 APRIL 2021
COURT ADJOURNS
[8] After the above stated adjournment, there is no shred of evidence
demonstrating that the Court resumed on 21 April 2021, in order to proceed and
hear the quantum claim of the appellant. As stated at the dawn of this
judgment, both counsel submitted that on 21 April 2021, an agreement was
reached that the reports of the experts, which were lined up to prove the
quantum claim , were admitted as evidence. I interpose to state that this alleged
agreement is not mentioned in the written judgment of the learned Acting
Justice. It is unclear as to whether it was sanctioned by the learned judge. The
judgment vaguely mentions that certain medical experts were emplo yed on the
quantum claim and that expert witnesses of the appellant were uncontested.
These type of throw away and incoherent statements are with respect
disconcerting , to say the least.
[9] The trial Court having not resumed since the adjournment, the next th ing that
happened on 18 August 2021 was the handing down of the impugned
judgment. Regard being had to the transcript at hand, rendering of a judgment
was clearly premature. Chagrined by the dismissal of his action, with an order
to pay costs on a party an d party scale, the appellant sought leave to appeal
from the Acting Justice. As indicated above, leave was refused and only to be
granted by the Supreme Court of Appeal.
Analysis
[10] Based on the above stated facts, it is crystal clear to this Court that the learned
Acting Justice failed to fully adjudicate the action of the appellant. The appellant
had not closed his case, as contemplated in rule 39. The respondent had not
opened nor closed his case. Rule 39(6) expressly provides that at the close of
the cas e for the plaintiff, the defendant may apply for absolution from the
instance. Although the respondent declared at the commencement of the trial
that he shall not be presenting any evidence, such did not debar the
respondent to have applied for the absolut ion from the instance, once the
appellant closed his case.
[11] Veritably, having not fully adjudicated the trial action, it was in competent for the
learned Acting Justice to have rendered a judg ment dismiss ing the action.
There is simply no legal basis for th e Acting Justice to have dismissed the
action without hearing the case in full (on the merits and quantum) . It is
apparent that the Acting Justice was under a misapprehension that he was
adjudicating a stated case as he had directed or “commissioned” one. In a
state d case proper, no evidence is required because a decision is predicated
on agreed facts. Inexplicably, the judgment of the trial Court does not reference
any agreed fact s or legal contentions of the parties on any legal questions
raised with it. Instead, with respect, in a rather tangential fashion , verbosely
dealt with the principles applicable to the evidence of a single witness , in the
circumstances where the appellant had not even closed his case. On the
assumption that the parties made a volte face and resorted to a stated case
procedure , the viva voce evidence of the two witnesses would of necessity be
rendered nugat ory thereby.
Was there a stated case placed before the Acting Justice?
[12] Absent a proper stated case, there was nothing for the learned Acting Justice to
adjudicate, in the circumstances where none of the parties closed their
respective cases. Similarly, this Court is u nable to p lace itself in the stead of the
Court of the first instance and adjudicate an incomplete or improperly stated
case. The Supreme Court of Appeal in Minister of Police v Mzingeli and others
(Mzingeli )1, expressed itself in the following terms:
“[8] It is important to restate the approach to be adopted whenever
litigants request a court to invoke rule 33 and determine issues by way
of a stated case. It is incumbent upon the parties to ensure that the
stated case contains adequate facts as agreed upo n between them.
Further, the statement ought to also contain the question of law in
dispute between the parties and their contentions regarding these
questions of law. Wallis JA reaffirmed this in Minister of Police v
Mboweni and Another :
“It is clear therefore that a special case must set out agreed facts, not
assumptions …A judge faced with a request to determine a special
case where the facts are inadequately stated should decline to accede
to the request.
[13] Mzingeli , makes it abundantly clear that the procedure in rule 33 has to be
invoked by the parties and not to be “commissioned” or directed by a judge. To
the extent that the judge below did exactly that, he misdirected himself. It is
also abundantly clear that where the facts are inadequately state d, the request
for a stated case adjudication should be declined. Before reaching its
conclusion and an order of remitting the matter to the court a quo for
determination of quantum , the SCA expressed itself in the following terms:
“[13] In this case the q uantum of the unliquidated damages claimed
by the respondents was hotly disputed. Evidently, damages of the kind
claimed by the respondents are by their very nature indeterminate and,
as such, require proper assessment by the court. The court a quo
acknowl edged this much. However, even in the face of such
acknowledgement, no evidence was adduced to aid the assessment
and quantification of these damages.”
1 (115/2021) [2022] ZASCA 42 (5 April 2022)
[14] It was accepted by the parties during argument on appeal that
determining quantum in this matter by way of a stated case – such as it
was – was not the correct approach to adopt. This stance was correct
as nowhere in the stated case or the pleadings had the parties agreed
on the relevant facts necessary to determine and prove the quantum
awarded by the court a quo
[14] With almost similar sagacity and perspicacity, the SCA in Feedpro Animal
Nutrition (Pty) Ltd v Nienaber NO and another (Feedpro )2 expressed itself in
the following terms:
“[9] Where the inadequacy of the agreed facts, as recorded in the
stated case, was put to counsel for Feedpro during argument of the
appeal, he submitted that any such inadequacy may be balanced by
drawing the necessary inferences from the agreed facts… Where, as in
this case, the agreed facts are discordant, ambivalent and inadequately
stated for purposes of deciding whether the Trust’s counterclaim has
prescribed, the process of inferential reasoning has no place.
[15] Before reaching its conclusion and an order of remitting the matter for the
determination of the special pl ea of prescription together with the remaining
issues in light of evidence to be led, the SCA again expressed itself in the
following terms:
“[15] …The trial court erred in (a)… and (b) deciding the special plea
on inadequately stated agreed facts.”
[16] That w hich the parties and the trial court labelled as a “stated case” is nothing
but a recordal of the common cause and disputed facts. No legal question to be
decided by the trial court was flashed out. A stated case proper requires agreed
facts, a question of law and the contentions of the parties in respect of the
identified question of law. By deciding the merits of the appellant’s case on
2 (20866/2014) [2016] ZASCA 32 (23 March 2016)
palpably inadequately stated agreed facts , the trial court was perspicuously in
error. Accordingly, there was no proper stated case that was placed before the
trial court that would have allowed it to adjudicate the action.
Can this Court adjudicate the present action or is remittal appropriate?
[17] As a Court of Appeal, the powers of this Court are legislated and circumscribed .
The role of this Court is to exercise appeal jurisdiction. Such presupposes a
decision of a Court below. This Court is not possessed with the same
jurisdictional powers as a Court of first instance. Section 19 of the Superior
Courts Act3, importantly provides as follows:
“Powers of court on hearing appeals
19. The Supreme Court of Appeal or a Division exercising appeal
jurisdiction may in addition to any power as may specifically be
provided for in any other law –
(a) Dispose of an appe al without hearing oral evidence;
(b) Receive further evidence;
(c) remit the case to the court of first instance or to the court whose
decision is the subject of the appeal, for further hearing, with
such instructions as regards the taking of further evid ence or
otherwise as the Supreme Court of Appeal or the Division
deems necessary; or
(d) Confirm, amend or set aside the decision which is the subject of
appeal and render any decision which the circumstances may
require.”
[18] In order for this Court to exercise powers in section 19(d), it must have all the
necessary evidence at its disposal. In the present matter, it is common cause
that the parties involved herein did not invoke the provisions of rule 33(4).
Therefore, the mer its and the quantum of the action were to be determined as
one lis. The transcript availed to this Court clearly indicates that no evidence
3 Act 10 of 2013 as amended.
was led on the quantum aspect of the case. Both representatives contended
that an agreement was reached that the exp ert reports will serve as evidence.
Clearly, there is a procedural irregularity with regard to the alleged agreement.
This Court lays a blame squarely on the legal representatives of the parties.
Both should have known that rule 38(2) offers a bespoken sol ution to the
situation where oral evidence may not be tendered.
[19] The rule provides thus:
“(2) The witnesses at the trial of any action shall be orally examined,
but a court may at any time, for sufficient reason, order that all or any
of the evidence to be adduced at any trial be given on affidavit or that
the affidavit of any witness be read at the hearing, on such terms and
conditions as to it may seem meet: Provided that where it appears to
the court that any other party reasonably requires the attendance of a
witness for cross -examination, and such witness can be produced, the
evidence of such witness shall not be given on affidavit.”
[20] It is perspicuous from the text of the rule that the default position is that
witnesses must be examined orally. Further, adducing of evidence by way of an
affidavit requires an order of the trial court. It must be emphasised that expert
reports do not constitute evidence in the absence of an affidavit4. It is common
cause in the present matter that the expert reports were not accompanied by an
affidavit. Given the above legal position, it is difficult to understand the finding
by the learned Acting Justice to the following effect ‘All expert witnesses of the
plaintiff were uncontested’. The appellant did not present any exp ert witnesses.
Put to its lowest ebb, the case punted for by the legal representatives is that an
agreement was reached with regard to th e status of the expert reports . Such an
agreement is pro non scripto . It carries no legal weight.
[21] Regard being had to the above, this Court is effectively faced with half trial as
opposed to full trial of the merits and quantum , if the presence of the alleged
4 See Mafisa v Road Accident Fund [2024] ZACC 4 (25 April 2024).
stated case is discounted . Even if this Court were to make a find ing on the
merits portion of the case in favour of the appellant, it has no proper ly tendered
evidence on the quantum aspect of the case. It shall be improper for this Court
to invoke rule 33(4) process at this stage. Doing so will lead this Court to falli ng
into the pitfall that the SCA has already cautioned about . The SCA in Feedpro
cautioned thus:
“[15] It is regrettable that the trial court, despite ample guidance from
this court deemed it appropriate, in terms of rule 33(4) of the Uniform
rules, to sep arate the special plea from the remaining issues in the trial,
without first applying its mind to whether the separation of the special
plea was convenient and appropriate in circumstances where, the
agreed facts were wholly inadequate and, evidence needed to be led to
determine the special plea of prescription… The trial court, accordingly
erred in: (a) separating the determination of the special plea from the
remaining issues therein, without giving proper consideration to the
issues in the trial, and the need for evidence to be led by the parties on
these issues…”
[22] If for any reasons , the learned Acting Justice had sanctioned the alleged
agreement to admit the reports as evidence, such leaves an indelible
impression that the Acting Justice had already pre -judged the merits and knew
very well that the alleged agreement would be inconsequential. Impliedly, the
trial Court rendered no decision on the quantum issue. It could not do so
without receiving proper evidence with regard to the quantum issue. As affirm ed
in Mzingeli , determination of quantum requires proper assessment and
evidence to aid the assessment and quantification. This Court is bereft of such
evidence to itself conduct a proper assessment. Ineluctably, this Court must
exercise its remittal power s and not attempt to determine an incomplete case.
Both in Mzingeli and Feedpro , the SCA having found that no proper stated case
was present ordered that the cases should be remitted for a determination after
setting aside the orders of the Courts below. A ccordingly, since this Court is not
in a position to determine this matter due to its inchoate status , the appropriate
order to make is for the case to be remitted for a proper determination.
[23] This Court makes common cause with the sentiments expressed by t he learned
Murphy AJA in Arends and Others v South African Local Government
Bargaining Council and Others (Arends )5. He said:
“[24] The absence of any evidence; the absence of a stated case;
and, the manner of its presentation make it impossible for this Court on
appeal to determine whether the dispute is indeed one about the
implementation of the collective agreement, and, if so, how it should be
resolved. This Court cannot resolve the question of jurisdiction or the
merits of whether the new grading system had been correctly
implemented in terms of the applicable contracts and neither could the
arbitrator.”
[24] This Court, in the absence of a proper statement of case, is not in a position to
resolve the question of the negligence or otherw ise of the respondent. More
importantly, in the absence of proper evidence on the quantum aspect of the
action, this Court cannot resolve the question of the quantum . Yes, this is
melancholic state of affairs, however justice demands a proper hearing of
triable issues as enjoined by section 34 of the Constitution.
Findings of the trial Court on the merits
[25] Given the approach to be taken by this Court at the end, this Court advisedly
refrain s from expressing any view on the correctness or otherwise of any of the
findings made by the trial Court on the merits of the action . It suffices to
mention that procedurally, absent an order in terms of rule 33(4), the merits
issue was incapable of being determined or adjudicated separately. The t rial
Court beaconed by a ny judge other than the Acting Justice must re -determine
the merits issue and also make a determination on the quantum aspect of this
case, either for or against.
5 [2015] 1 BLLR 23 (LAC)
[26] I interpose to remark that, it is apparent that the respondents had actually
conceded the qu antum of the appellant. If such is correct, the quantum may
advisedly be settled between the parties.
The instructions of the remittal
[27] Section 19(b) empowers this Court to issue instruction with regards to the
taking of further evidence. In the interest o f justice and expediency, it shall be
inappropriate to have the evidence rehashed. A transcript has been produced
of the evidence tendered before the Acting Justice. Section 15 of the Civil
Proceedings Evidence Act (CPEA)6, with regard to the admission of a record
and sufficiency of evidence , provides the following:
“Sufficiency of Evidence
15 It shall not be necessary for any party in any civil proceedings to
prove nor shall it be competent for any such party to disprove any fact
admitted on the record of such proceedings.”
[28] The respondent has already stated the following:
MR BUCKSTEG … well we do not have any witnesses or expert
witness es so we will only rely on cross -examination of the witnesses…”
[29] Ex facie the written judgment of the Acting Justice, it is apparent that in an
attempt to free the respondent from the conundrum expressed above, a stated
case was commissioned. As discussed above, such was an improper approach
to adopt in the trial7. The so -called stated cases do not in any event meet the
requirements8 of rule 33(2)(a), which provides:
“(2)
6 Act 25 of 1965 as amended.
7 See Arends para 23.
8 The Court in Arends cautioned that practitioners must follow these rudimentary elements of good
practice when intending to proceed on the basis of a stated case. (para 17)
(a) Such statement shall set forth the facts agreed upon, the
question of law in dispute between the parties and their
contentions thereon. Such statement shall be divided into
consecutively numbered paragraphs and there shall be
annexed thereto copies of documents necessary to enable
the court to decide upon such questions. It shall be signed by
an advocate and an attorney on behalf of each party or,
where a par ty sues or defends personally, by such party”
[30] Without dictating to the trial Court judge, this Court, subject to the trial judge’s
approval, suggests to the parties to submit the transcript as prove of the
evidence already tendered. At the hearing of this appeal none of the parties
contended that the transcript is deficient in any shape or manner. Certainly,
since there is no evidence of any of the parties having closed their respective
cases at the aborted trial, there is nothing that will prevent any part y from
adducing further evidence. With regard to the agreement on the status of the
expert reports, this Court has already expressed a view that such was
improper. If the quantum issue is not settled , although it is advisable for the
respondent to seriou sly consider settlement thereof , the determination of the
quantum issue requires a proper presentation and assessment or determination
thereof, as discussed above.
The issue of costs
[31] On application of the principle of costs following the results, the respondent
must pay the costs of the appellant. He succeeded in setting aside the order of
the trial Court. Accordingly, an award of the costs of this appeal is warranted.
What then remain s for determination is the costs of the aborted trial
proceedings. Such costs should be costs in the cause. Accordingly, this Court
leaves the determination of such costs within the province of the trial court.
Conclusions
[32] Sadly, the parties have to be se nt back to the trial Court simply because no
proper trial was conducted. The Acting Learned Justice failed to appropriately
determine the action. The legal representatives of the parties are complicit too.
If this Court accepts that the Acting Justice comm issioned a stated case, they
ought to have resorted to the rules and comply with them. They ought to have
known of the procedure populated in rule 38(2) , yet they opted to invoke some
other strange procedure of agreeing to accept the re ports as testimony w ith no
accompanying affidavits.
[33] Howbeit, it is this Court’s considered view that since no proper trial was
conducted, the order of the trial Court must be set aside . This Court, in the
circumstances of this case, is not in a position to separate issues and
determine any issue separately. The issue of quantum did not receive any
determination or decision. An appeal lies against the decision of a Court and
not the reasons advanced. Without the benefit of a decision for or against on
the quantum issue, this Co urt has nothing to determine. Ironically, the Acting
Justice, when the appellant sought a postponement of the trial to the following
day, lamented a waste of judicial time . Regrettably, the approach he adopted
has instead led to the waste of judicial time. Remittal has since become
ineluctable.
[34] A caution is not necessarily out of place. No judge should entertain a case or
agree to entertain a case based on a stated case, in the circumstances where
the requirements of rule 33 are not complied with. It must be emphasised that
the decision whether litigants wish to proceed by way of a stated case or not , is
solely theirs and not that of the judicial officer. A judicial officer cannot
commission a stated case under any circumstances. Once a trial is allocated t o
a judicial officer, it has to be conducted in accordance with rule 39.
[35] On account of all the above reasons, I propose to make the following order.
Order
1. The appeal is upheld.
2. The order of the Court below is set aside.
3. The matter is remitted to the trial Court to be properly determined by a
single judge .
4. The respondent is to pay the costs of this appeal on a scale of party
and party to be settled or taxed on scale B.
5. The costs of the aborted trial shall be costs in the cause to be re-
determined by th e trial Court.
____________________________
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
___________________________
E VAN DER SHYFF
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
(I agree and it is so ordered)
____________________________
N BAM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
(I agree and it is so ordered)
APPEARANCES:
For the Appellant : Ms B Botma
Instructed by: Noko Phago & Associates, Pretoria
For the Respondent : Mr H Bucksteg
Instructed by: Fick Attorneys, Randfontein.
Date of the hearing: 16 April 2025
Date of judgment : 30 April 2025