IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
Of interest
CASE NO. 3223/2017
In the matter between:
RENNIE CHARLES BLAINE PRICE N.O. First plaintiff
MICHAEL LOWELL BLAINE PRICE N.O. Second plaintiff
ROBIN OWEN JEFFERSON Third plaintiff
TORTELLO INVESTMENTS NO. 20 (PTY) LTD Fourth plaintiff
EQUISTOCK PROPERTIES 7 (PTY) LTD Fifth plaintiff
and
SUN CITRUS PACKERS (PTY) LTD Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LAING J
[1] This is an interlocutory application pertaining to the presentation of evidence
at the commencement of the defendant’s case. In this regard, the defendant
indicated that its director, Dr Cecil Brummer, intended to testify about the electronic
databases that inform much of the present dispute by using a laptop and a data
projector to display the information on a screen placed inside the courtroom. The
plaintiffs initially agreed to the proposal, provided that the information comprised data
that had already been supplied on flash drives to their attorneys and the experts
involved. At a short demonstration given in court prior to the commencement of Dr
Brummer’s testimony, it was clear that the proposal was somewhat more expansive
than anticipated. Concerns were raised by the plaintiffs, as well as the court. These
gave rise to the present application.
[2] The defendant seeks a declarator that it be permitted to provide
demonstrative evidence, as it was termed, in the manner described above. It also
seeks to refer to the data contained in the electronic files stored on a flash drive (‘the
Mulder stokkie’) that was previously furnished to the plaintiffs’ accountants,
represented by Mr J P Mulder; the Sun Citrus Packers (SCP) database; and the Sun
Citrus Export (SCE) database. Furthermore, the defendant seeks an order that the
resulting audio -visual screen recordings need not be certified and that they be
retained for safekeeping by the Re gistrar, alternatively the court clerk, at the end of
each court day.
[3] In his founding affidavit, Dr Brummer emphasised that the purpose of the
application was chiefly to obtain an order that prescribed the methodology to be used
for the presentation of t he evidence in question. He went on to say that the DiPar
system used by the defendant during the period, 2013 – 2016, together with the
Excel database to which the relevant information was exported, constituted the
foundation of the defendant’s accounting to the plaintiffs. The defendant required an
opportunity to demonstrate, to the court, the following: the content and extent of the
SCP database, which comprised the equivalent of 60 788 pages of information; the
process used to access such information; h ow the SCP database can be used to
prepare various reports, already supplied to the plaintiffs and other citrus producers
for accounting purposes; how it can be used to perform reconciliations; how it can be
for accounting purposes; how it can be used to perform reconciliations; how it can be
matched to the documentary evidence already disc overed, and contained in the
boxes made available and eventually given to the plaintiffs’ accountants; and how
the SCP database can be used to evaluate the reports and evidence of the
defendant’s witnesses. Dr Brummer pointed out that he could not perform the above
demonstration by using printed extracts from the data. The sheer volume of
information, 60 788 pages, made this impossible. The demonstration was necessary
for the court to grasp, sufficiently, the oral and documentary evidence that the
defendant intended to present; it was fundamental to a proper understanding of the
defendant’s accounting systems — and its defence to the plaintiffs’ claim. The same
imperatives applied in relation to the SCE database, already discovered, and the
Mulder stokkie itself. Dr Brummer reiterated that the databases and records, in
general, have always been available to the plaintiffs for inspection, but they had
evidently not understood how the defendant’s systems worked in practice.
[4] In the answering affidavit of Mr Re nnie Price, the plaintiffs made it clear that
their primary concern was the defendant’s proposed methodology for the
presentation of evidence. The resulting record had to comply with the rules of court.
Furthermore, the evidence sought to be introduced ha d to be admissible; amongst
other things, it had to be relevant to the issues set out in the pleadings, specifically
whether the defendant had provided a proper accounting to the plaintiffs,
accompanied by the necessary supporting vouchers.
[5] From the submi ssions made by counsel, it was apparent that the present
matter lent itself to further issues, not initially envisaged when the question of the
proposed methodology for the presentation of the defendant’s evidence first arose.
These will be addressed, but only to the extent that they are properly before the
court. Otherwise, the main issue for determination is simply whether the proposed
methodology is acceptable.
[6] It is trite that, in terms of section 173 of the Constitution, a court has inherent
power to protect and regulate its own process, and to develop the common law,
considering the interests of justice. The procedure for the conduct of a trial already
exists, however, as laid down in terms of rule 39 of the Uniform Rules of Court
(URC). The relevant portions thereof read as follows:
‘(16) A record shall be made of –
(a) any judgment or ruling given by the court;
(b) any evidence given in court;
(a) any judgment or ruling given by the court;
(b) any evidence given in court;
(c) any objection made to any evidence received or tendered;
(d) the proceedings of the court generally (including any inspe ction in loco and any
matter demonstrated by any witness in court); and
(e) any other portion of the proceedings which the court may specifically order to be
recorded.
(17) Such record shall be kept by such means as to the court seems appropriate and may
in particular be taken down in shorthand or be recorded by mechanical means.
(18) The shorthand notes so taken or any mechanical record shall be certified by the
person taking the same to be correct and shall be filed with the registrar. It shall not
be neces sary to transcribe them unless the court or a judge so directs or a party
appealing so requires. If and when transcribed, the transcript of such notes or record
shall be certified as correct by the person transcribing them, and the transcript, the
shorthand notes, and the mechanical record shall be filed with the registrar. The
transcript of the shorthand notes or mechanical record certified as correct shall be
deemed to be correct unless the court otherwise orders.
(19) Any party to any matter in which a r ecord has been made in shorthand or by
mechanical means may apply in writing through the registrar to a judge to have the
record transcribed if an order to that effect has not already been made. Such party
shall be entitled to a copy of any transcript orde red to be made upon payment of the
prescribed fees.
(20) If it appears convenient to do so, the court may at any time make any order with
regard to the conduct of the trial as to it seems meet, and thereby vary any procedure
laid down by this rule.
(21) Every stenographer employed to take down a record and every person employed to
make a mechanical record of any proceedings shall be deemed to be an officer of the
court and shall, before entering upon his duties, take the following oath . . .’
[7] Van Loggerenberg remarks that everything that is relevant to the proceedings
or the merits of a case must be ‘fully, carefully, and clearly recorded’. 1 The record is,
ultimately, the only trustworthy source upon which reliance can be placed to
ultimately, the only trustworthy source upon which reliance can be placed to
determine what took plac e and what was said at trial. 2 It must be as accurate as
possible a report or account of the proceedings, ensuring that the evidence
presented is correctly preserved. At a practical level, the record serves as an
essential tool for the purposes of cross -examination and re -examination of
1 D E van Loggerenberg Erasmus: Superior Court Practice RS 27 (2025), at D1 Rule 39 – 25.
2 S v Maxaku; S v Williams 1973 (4) SA 248 (C), at 257E.
witnesses, and the preparation of argument; it serves as the basis upon which the
court adjudicates a dispute and upon which an appeal court decides whether the
decision was correct. 3 Overall, the record serves as the mean s for deciding whether
the proceedings were conducted fairly and in accordance with the proper
administration of justice. It is an indispensable element of the trial — and it is the
duty of the presiding officer to ensure that it is kept in an appropriate manner and
form to serve the purposes described above.
[8] Regarding the nature of the evidence to which the defendant in the present
matter referred, rule 39 (16) (d) envisages the recording of ‘any matter demonstrated
by any witness in court’. The erstwhil e Appellate Division dealt with the subject in
Arthur v Bezuidenhout and Mieny.4 The following extract from the judgment, although
lengthy, illustrates the risks associated with a record that is incomplete or otherwise
inadequate. Ogilvie Thompson JA stated as follows:
‘At this point it is apposite to refer to the very unsatisfactory state of the record as placed
before this Court on appeal, of which mention was made by the presiding Judge at the
commencement of the hearing. The transcript of the mechanica lly recorded evidence is far
from perfect. In a few instances what is transcribed is quite unintelligible; while in others
what was said by the witnesses is not reproduced at all, as appears from the following
illustration: “By the Court. What is on the Pitman arm? (Mr Protheroe explains to the Court.)”
Paying due regard to the disadvantages inevitably attendant upon the mechanical recording
of evidence, this record nevertheless falls short of the required standard . . . An even more
serious deficiency in t he record is, however, attributable to the manner in which the expert
evidence was, without comment by the trial Judge, led by counsel on both sides. Neither
counsel nor the learned Judge observed the ordinary practice — and, indeed, elementary
counsel nor the learned Judge observed the ordinary practice — and, indeed, elementary
precaution — of causing the various metal exhibits referred to by the expert witnesses in
their evidence to be lettered or numbered. In consequence, the record abounds in
statements — wholly unintelligible on appeal — which are the equivalent of “this fits into that,
and there is a mark here”. In addition, the frequent demonstrations given by the expert
witnesses during their evidence were not translated into words and incorporated in the
record, the latter merely mentioning the fact of the demonstrations being made. Furthermore,
3 In this regard, the Supreme Court of Appeal, in S v Chabedi 2005 (1) SACR 415 (SCA) para 5, stated that
the record of the proceedings in the trial court is of ‘cardinal importance’ . It does not have to be a perfect
recordal of everything that was said at the trial, but it must be adequate for proper consideration of the
appeal.
4 1962 (2) SA 566 (A).
and perhaps most important of all, portions of the expert witnesses’ testimony were
frequently not recorded at all — the record merely containing entries such as the three
following examples, viz: “Witness explains and demonstrates to the Cour t.” — “Witness
shows pieces of metal to Court and explains.” — “Discussions between the Judge and the
witness regarding fatigue.”
As the result of all the foregoing, not only has the task of this Court been unnecessarily
rendered more difficult, but the evidence of the experts is incompletely reflected in the record
to the potential detriment of the parties. All of which could have been avoided had counsel —
and, indeed, the learned Judge — at the trial followed the conventional course of ensuring
that all material evidence, including demonstrations, was properly and intelligibly
incorporated in the record.’5
[9] Case law is replete with other examples of an unsatisfactory record. 6
Admittedly, the authorities cited are from the 1960s, two generations ago. Significant
advances in information communication technology regarding the generation,
sending, receiving, and storage of information have revolutionised human
communication in every corner of society, including the courtroom. Resort to a virtual
platform, using software such as Microsoft Teams or Zoom, has become an
acceptable method of conducting a trial. Nevertheless, the applicable principles
remain unchanged. To ensure an intel ligible reception and understanding of any
matter demonstrated by a witness, the evidence presented must, conventionally, be
conveyed orally and stored electronically as an audio recording, to be transcribed as
and when circumstances require.
[10] Turning to the present matter, the proposed methodology will entail a separate
audio-visual recording of the demonstration. The defendant’s intention is to have it
incorporated into the record, eventually, as an exhibit. The immediate red flag is that
incorporated into the record, eventually, as an exhibit. The immediate red flag is that
the recording will potentially run to hours, if not days, presumably resulting in a batch
of electronic files that have been created, identified, and stored by the defendant’s
key witness, Dr Brummer himself. The ability of the average person to manage the
rigours of giving evidence is tested in even the most advantageous of circumstances;
5 At 571A – G.
6 See, for example, R v Karg 1961 (1) SA 231 (A), at 234B – C; and S v Nkombani and Another 1963 (4) SA
877 (A), at 894B – D.
to manage this over a protracted period, while simultaneously keeping a satisfactory
audio-visual record of the proceedings, is a very tall order indeed. How such a
methodology will per mit effective cross -examination and re -examination, as well as
the preparation of argument, has also not been sufficiently explained. The court’s
concerns, moreover, about how this would allow or facilitate the adjudication of the
dispute were simply not a ddressed, to say nothing of how an appeal court would
deal with the record. Another red flag, amongst a substantial collection of red flags, is
that Dr Brummer is neither a stenographer nor an officer of the court, as
contemplated by rule 39 (21). The prop osed methodology is self -evidently
unacceptable.
[11] Insofar as rule 39 (20) permits the court a certain degree of latitude regarding
the conduct of a trial, to the extent that it may vary a procedure, convenience
remains the underlying principle. This extends to the convenience of the parties, the
witnesses, and the court itself. 7 Whatever methodology is intended by the defendant
for purposes of Dr Brummer’s demonstration, be it conventional or otherwise, it must,
without difficulty, allow access to th e report or account thereof, an understanding of
what took place and what was said, and ensure that it serves the purposes
previously mentioned. Provided that the demonstration is limited in nature and
extent, it must, at the least, result in a proper audi o recording that is readily capable
of transcription and complies with the provisions of rule 39 in general. Furthermore,
data to which reference is made during the demonstration must be supported by a
printed document so that it can be readily identified and described as an exhibit that
forms part of the record, subject of course to its admission into the general body of
evidence in accordance with the usual principles.
[12] Amongst the remaining issues that have emerged is the extent to which
[12] Amongst the remaining issues that have emerged is the extent to which
reference can b e made to the data contained on the Mulder stokkie, as well as the
SCP and SCE databases. Counsel referred to recent case law and the Electronic
Communications and Transactions Act 25 of 2002 (ECTA) to argue that the data is
admissible. Section 15 (1) of ECTA is clear enough:
7 Rail Commuters’ Action Group v Transnet Ltd 2006 (6) SA 68 (C), at 88B.
‘(1) In any legal proceedings, the rules of evidence must not be applied so as to deny the
admissibility of a data message, in evidence –
(a) on the mere grounds that it is constituted by a data message; or
(b) if it is the best evidence that the person adducing it could reasonably be expected
to obtain, on the grounds that it is not in its original form.’
[13] There is no prohibition, in general, against the admission of data such as
contemplated in the present matter. In Spring Forest Trading CC v Wilberry (Pty) Ltd
t/a Ecowash and Another,8 the Supreme Court of Appeal, per Cachalia JA, remarked
that one of the aims of ECTA was to promote legal certainty and confidence in
relation to electronic communications and transaction. When interpreting th e
legislation, courts were enjoined to recognize and accommodate electronic
transactions and data messages in the application of any statutory law or the
common law. 9 Section 15 (2) stipulates, furthermore, that the information must be
given due evidentia l weight; section 15 (3) indicates the factors to be considered
when carrying out an assessment in that regard. Importantly, section 15 (4) provides
that a data message ‘made by a person in the ordinary course of business’ is, on its
mere production, admis sible in evidence. Whether the data mentioned by the
defendant is indeed admissible, however, falls outside the scope of the immediate
matter. This will depend on, amongst other things, its relevance, considering the
issues arising from the pleadings.
[14] An important distinction made by the plaintiffs is that Dr Brummer intends to
use the data, during the demonstration, to create a new ‘illustration’, ‘reconciliation’,
‘outcome’, or ‘result’ that never previously existed. Presumably this would be
achieved by relying on the search or filter functions (or their equivalent) available in
the software used. The plain answer to this is that such a product or data message,
the software used. The plain answer to this is that such a product or data message,
to use the language of ECTA, cannot be presented for admission unless it was
properly discovered beforehand.
8 2015 (2) SA 118 (SCA).
9 Para 16.
[15] Counsel invited the court to make a finding on whether Dr Brummer was
qualified as an expert to demonstrate access to the data and use of the software in
question. This is not, however, a question that is properly before the court. Neither
the application itself nor the heads of argument indicate that the parties intended this
to be an issue for immediate determination. Although the defendant’s explanation for
why a demonstration is necessary suggests that an expert will be required, Dr
Brummer has yet to commence his testimony. A finding in this regard would be
premature. At best, the court can merely refer to the following passage from
Schwikkard’s work:
‘The party seeking to adduce the opinion of a witness as an expert opinion must satisfy the
court that the opinion is not supererogatory, that is, not irrelevant. For this purpose the court
must be satisfied: (1) that the witness not only has specialist knowledge, training, skill, or
experience but can furthermore, on account of these attributes or qualities, assist the court in
deciding the issues; (2) that the witness is indeed an expert for the purpose for which they
are called to express an opinion; and (3) that the witness does not or will not express an
opinion on hypothetical facts, th at is, facts which have no bearing on the case or which
cannot be reconciled with all the other evidence in the case.’10
[16] In conclusion, the defendant sought a departure from the conventional
methodology used in the making and keeping of the record, as env isaged under rule
39. For the reasons already stated, the proposed methodology is unacceptable. The
plaintiffs are entitled to the costs of the application on scale C. Whereas they also
sought the wasted costs of the trial proceedings, the defendant was in vited or
directed to bring the application at the instance of the court; it should not be saddled
with the additional burden for which the plaintiffs contend.
[17] The following order is made:
[17] The following order is made:
(a) the application is dismissed; and
(b) the defendant is ordered to pay the plaintiffs’ party -and-party costs,
including those of two counsel, on scale C.
10 P J Schwikkard (et al) Principles of Evidence 5 ed (2023), at 95.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
Appearances
For the plaintiffs: Adv Beyleveld SC with Adv Zietsman
Instructed by: Rushmere Noach Inc.
5 Ascot Office Park
Conyngham Road, Greenacres
GQEBERHA
Tel: 041 399 6700
Email: shelbyr@rushmere.co.za
steveg@rushmere.co.za
Ref: (Mr S K Gough / Mrs S L Lubbe – Roberts)
For the defendant: Adv Ford SC with Adv Gess SC
Instructed by: Schoeman Oosthuizen Inc.
167 Cape Road
GQEBERHA
Tel: 041 373 6878
Email: paso@soattorneys.co.za
Ref: (Mr J S Schoeman/ave/C02322)
Date heard: 11 February 2026.
Date delivered: 13 February 2026.