IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Case No: 1934/2019
In the matter between:
NICOLAAS VAN DEN BERGH Plaintiff
and
THE GOVERNMENT OF THE FRENCH REPUBLIC Defendant
Reportable / Not reportable
Coram: Anderssen AJ
Heard: 16 March 2026
Delivered: Electronically on 17 March 2026
Summary: Claim in contract – special plea of immunity – Foreign States
Immunity Act – onus on plaintiff to plead and prove exception in terms of Act
Absolution from the instance – prima facie case not established
ORDER
1. The application for absolution from the instance is granted and the special
plea of immunity is upheld.
2. The plaintiff is ordered to pay the defendant’s costs, such costs to include
the costs of two counsel on scales C and B respectively.
JUDGMENT
INTRODUCTION
[1] The defendant brought an application for absolution from the instance with
respect to its special plea in abatement . In its plea, t he defendant denied
that this Court is capable of adjudicating the dispute between the plaintiff
and the French government as the defendant is a foreign state, in terms of
section 1(2) of the Foreign States Immunities Act (“the Act”), which enjoys
immunity from the jurisdiction of the courts of South Africa in terms of
section 2(1) of this Act. The plea raised the defence that the disputed
contract, as pleaded, is not a contract as envisaged by either section
4(1)(a) or (b) of the Act.
[2] In terms of the p laintiff’s particulars of claim, he, acting personally,
concluded an oral agreement with Mr Jean-Claude Le Duc (“Le Duc”) who,
at the time, was the duly authorized representative of the defendant, during
November 2011 and in Cape Town. The agreement was one for the supply
of chemical breathalysers and was conditional upon Decree No. 2012 -284
being enacted in France and the defendant confirming the numbers of
breathalysers to be provided annually. The defendant, later confirming that
40 million NF chemical breathalysers must be supplied annually – for an
indefinite period – undertook to ensure the proper implementation of
legislation. In turn the plaintiff agreed to allow the defendant to conduct an
annual audit of the manufacturing plant and premises where the NF
chemical breathalysers were manufactured to ensure that the
breathalysers were safe and could carry the NF stamp.
BACKGROUND
[3] The background facts, as pleaded by the plaintiff in his particulars of claim,
were not challenged by the defendant as it raised a special plea for
reasons elaborated on below . These facts were confirmed under oath by
the plaintiff during his evidence in chief and were mostly not challenged in
his cross-examination. The dispute before the court was a na rrow one and
centred on whether the plaintiff could establish that the transaction giving
rise to his claim is a ‘commercial transaction’ within the meaning of section
4(1) of the Act , alternatively, whether the defendant had waived its right to
claim immu nity in terms of section 3 of the Act . For purposes of this
judgment I briefly summarise the facts as pleaded by the plaintiff , and
expanded upon by him during his evidence.
[4] One of the main causes of road deaths in France was drivers driving under
the influence of alcohol (“ drink-driving”). The defendant had, as a result,
enacted stringent laws to combat drink -driving, had ongoing campaigns to
reduce drink -driving, and had imposed a blood -alcohol limit of 0,5
milligrams of alcohol per millilitre of blood on drivers . On 28 February
2012, as part of this ongoing campaign, the defendant enacted Decree no
2012-284 (“Decree 284”). This decree made it mandatory for every vehicle
in France (subject to a few limited exceptions) to possess a por table
testing device capable of determining the driver’s blood alcohol level from
a breath sample ( breathalyser). The breathalyser had to be government -
approved (‘norme française’ or “NF”) and unused.
[5] Decree 284 applied to local and foreign drivers tr avelling in France and
any driver that failed to comply was liable to a spot fine. The practical
effect of this was two -fold: (a) each vehicle needed two unused
breathalysers in case one was used, and (b) each vehicle had to replace
the breathalysers on an on-going basis – at least bi -annually – due to its
limited lifespan. As the number of vehicles on France’s roads exceed 50
million each year, this meant that at least 100 million breathalysers would
be needed in the first year and, thereafter, 70 million per year. Random
checks would be carried out by the police to ensure compliance with the
law. As a result, there was an immediate (and substantial) increase in
demand for breathalysers in France and its surrounding countries.
[6] The defendant, during late 2011 and early 2012, through various officials,
orally represented to the plaintiff the urgent requirement for NF certified
breathalysers to be supplied into France and that it would endorse and
support persons capable of producing NF breathalysers. A Sou th African
company, Redline Products (Pty) Ltd (“ Redline”), had the capacity, from
November 2012, to produce 120 million breathalysers per annum and was
rightfully anticipating significant increases in sales . The plaintiff was a
director of Redline and hel d 45% of the shares in this company. His co -
director was Hugh Butler (the developer of the product) who also held 45%
of the issued shares. The other 10% issued shares were held by two
further individuals in equal blocks. Redline was one of only two produc ers
in the world (at the time) that could produce NF chemical breathalysers.
[7] The plaintiff – as a result of the agreement reached with Le Duc and
telephonically confirmed by a senior official from the French Department of
Transport – took steps to have Redline produce NF chemical breathalysers
on his behalf in Cape Town and to have these delivered, again on his
behalf, to the French public and foreign drivers in France . The defendant,
the French population and foreign drivers accepted the NF chemical
breathalysers from the plaintiff and paid a market -related price for them
into the bank account designated by the plaintiff. Delivery was made to
distributors as the defendant was unable to receive, store and distribute
the breathalysers. On 15 February 2013, however, the Prime Minister of
France announced the indefinite postponement of the fine imposed for
contravention of Decree 284 and, on 28 February 2013, the defendant
enacted Decree no 2013 -180 (“Decree 180”), which postponed the fine –
for not having an unused breathalyser in a vehicle – indefinitely. (This was
the allegation made in the particulars of claim but it appeared from cross -
examination that Decree 180 may have abolished the fine). As a result of
Decree 180, the demand for, and sales of, breathalysers in France
collapsed.
[8] As a further result, Redline was unable to pay its liabilities arising from its
borrowings for outlay to increase the manufacture of breathalysers to meet
the plaintiff’s contractual obligation. Redline went into business rescue, the
plaintiff lost his shares in Redline after the company was restructured, and
was called upon, in terms of the sureties he had signed, to pay the
company’s liabilities (the latter resulted in the forced sale of several
properties owned by the plaintiff ). The plaintiff seeks dama ges for the
losses he suffered, being the loss of his shares in Redline, his loss of
substantial annual dividends, payments made in respect of the suretyship
he signed and the replacement cost for several properties he lost through
forced sales.
THE STATUTORY FRAMEWORK
[9] The Foreign States Immunities Act 1 commenced on 20 November 1981
and its stated purpose is to determine the extent of the immunity of foreign
states from the jurisdiction of the courts of the Republic, and to provide for
matters connected therewith. It is common cause that the defendant is a
foreign state. In terms of section 2(1) of the Act a foreign state shall be
immune from the jurisdiction of the courts of the Republic except as
provided in this Act or in any proclamation issued thereunder. This section
therefore confers general immunity on a foreign state, subject to the limited
exceptions listed in the Act. Section 2 (2) imposes an obligation on this
court to give effect to the immunity conferred b y subsection (1) even
though the foreign state does not appear in the proceedings in question.
The Act followed the development of case law in South Africa – from the
position where foreign states enjoyed absolute immunity to the position
where the exercis e of sovereign authority by a foreign state was not
susceptible to determination in our courts, but acts flowing from ordinary
commercial transactions, undertaken by a foreign state, were.2
[10] The plaintiff avers that the defendant does not have immunit y from the
jurisdiction of this Court by virtue of the transaction between the plaintiff
1 Act 87 of 1981.
2 See for example Inter-Science Research and Development Services (Pty) Ltd v Republica
Popular de Moçambique 1980 (2) SA 111 (T) , which is the landmark case that applied the
restrictive approach to sovereign immunity. It established that foreign states are not immune from
legal action regarding commercial transactions ( acta jure gestionis ), as distinct from public acts
(acta jure imperii). See also Kaffraria Property Co (Pty) Ltd v Government of the Republic of
Zambia 1980 (2) SA 709 (E).
and the defendant (a) being a contract for the supply of goods, which
makes it a commercial transaction within the provisions of section 4(1)(a)
of the Act; and (b) imposing on the defendant an obligation to perform
annual audits in Cape Town, which means that the contract fell to be partly
performed in South Africa in accordance with section 4(1)(b) of the Act.
Furthermore, he avers that an official letter , from the de fendant to the
plaintiff, dated 26 November 2018, constitutes a deemed waiver of its
immunity. The plaintiff thus relies on two exceptions to the defendant’s
general immunity. The relevant sections of the Act are the following:
3. Waiver of immunity
(1) A foreign state shall not be immune from the jurisdiction of the courts of the
Republic in proceedings in respect of which the foreign state has expressly
waived its immunity or is in terms of subsection (3) deemed to have waived its
immunity.
(2) Waiver of immunity may be effected after the dispute which gave rise to the
proceedings has arisen or by prior written agreement, but a provision in an
agreement that it is to be governed by the law of the Republic shall not be
regarded as a waiver.
(3) A foreign state shall be deemed to have waived its immunity—
(a) if it has instituted the proceedings; or
(b) subject to the provisions of subsection (4), if it has intervened or taken
any step in the proceedings.
(4) Subsection (3)(b) shal l not apply to intervention or any step taken for the
purpose only of—
(a) claiming immunity; or
(b) asserting an interest in property in circumstances such that the foreign
state would have been entitled to immunity if the proceedings had been brought
against it.
4. Commercial transactions
(1) A foreign state shall not be immune from the jurisdiction of the courts of the
Republic in proceedings relating to—
(a) a commercial transaction entered into by the foreign state; or
(a) a commercial transaction entered into by the foreign state; or
(b) an obligation of the foreign state which by virtue of a contract
(whether a commercial transaction or not) falls to be performed wholly or partly in
the Republic.
(3) In subsection (1) ‘commercial transaction’ means –
(a) any contract for the supply of services or goods;
(b) any loan or other transaction for the provision of finance and any
guarantee or indemnity in respect of any such loan or other transaction or of any
other financial obligation; and
(c) any other transaction or activ ity of a commercial, industrial, financial,
professional or other similar character into which a foreign state enters or in which
it engages otherwise than in the exercise of sovereign authority, but does not
include a contract of employment between a foreign state and an individual.
[11] The defendant, mindf ul of the provision of section 3(3)(b) , has not taken
any step in the proceedings . It did not even object to the various
amendments effected to the plaintiff’s particulars of claim over the years
but confined itself to raising exceptions and filing a plea in which it affirmed
its immunity and denied that the pleaded contract constituted a commercial
transaction. By doing so the defendant cannot be said to have waived its
immunity because it was, and is, merely asserting its immunity.
THE BURDEN OF PROOF
[12] The plaintiff has referred me to the locus classicus on the incidence of the
burden of proof and has, based on Pillay v Khrishna,3 submitted that the
defendant has raised a substantive special plea relating to jurisdiction and
therefore it is asserting a positive case that facts exist , which defeat the
plaintiff’s right to invoke this court’s jurisdiction. As such, the argument is,
that the onus rests with the defendant to prove that case and it cannot
content itself with a denial of the plaintiff’s allegations or with cross -
examination of the plaintiff. The exceptio declinatoria fori , on which the
plaintiff avers the defendant is relyi ng, is a Roman -Dutch legal plea, often
3 Pillay v Krishna and Another 1946 AD 946.
referred to as a plea to jurisdiction. It is used by a defendant to argue that
a particular court lacks the authority to hear a case, often questioning the
court’s jurisdiction over the subject matter or the person involved.
[13] The terms ‘burden of proof’ and ‘onus of proof’ refer to the duty that is cast
upon a litigant to adduce evidence that is sufficient to persuade a court, at
the end of the trial, that the claim or the defence, as the case may be ,
should succeed. It never shifts. In Pillay v Krishna it was described as
follows:
The only correct use of the word ‘onus’ is that which I believe to be its true and
original sense (cf D 31.22), namely, the duty which is cast on the particular
litigant, in order to be successful, of finally satisfying the court that he is entitled to
succeed on his claim, or defence, as the case may be…
[14] The burden of proof in an action will not necessarily fall on one party alone,
but each of the parties may bear a burden of proof in relation to different
issues. In Pillay v Krishna the g eneral approach was explained as
follows:
If one person claims something from another in a Court of law, then he has to
satisfy the Court that he is entitled to it. But there is a second principle which must
always be read with it: Where the person agains t whom the claim is made is not
content with a mere denial of the claim, but sets up a special defence, then he is
regarded quoad that defence, as being the claimant: for his defence to be upheld
he must satisfy the Court that he is entitled to succeed on it … But there is a third
rule, which Voet state s … as follows: ‘He who asserts, proves and not he who
denies, since a denial of a fact cannot naturally be proved provided that it is fact
that is denied and that the denial is absolute’. The onus is on the person who
alleges something and not on his opponent who merely denies it.
[15] Where there are a number of distinct issues, for instance a claim and a
[15] Where there are a number of distinct issues, for instance a claim and a
special plea, then there are several and distinct burdens of proof. During
the course of the trial the evidential burden (as opposed to the burden of
proof) may shift. In South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty) Ltd 4 Corbett JA (as he then was) explained
the distinction between the burden o f proof and the evidential burden as
follows:
As was pointed out by Davis AJA in Pillay v Krishna and Another 1946 AD at 952-
3, the word onus has often been used to denote, inter alia two distinct concepts:
(i) the duty which is cast on the particular lit igant, in order to be successful, of
finally satisfying court that he is entitled to succeed on his claim or defence, as
the case may be; and (ii) the duty cast upon a litigant to adduce evidence in order
to combat a prima facie case made by his opponent. Only the first of these
concepts represents the onus in its true and original sense. In Brand v Minister of
Justice and Another 1959 (4) SA 712 (A) at 715 Ogilvie -Thompson JA called it
‘the overall onus’. In this sense the onus can never shift from the pa rty upon
whom it originally rested. The second concept may be termed, in order to avoid
confusion, the burden of adducing evidence in rebuttal (‘weerleggingslas’). This
may shift, or be transferred in the course of the case, depending upon the
measure of proof furnished by the one party or the other.
[16] Rules 39(5) and (9) of the Uniform Rules of Court, read together, provide
that the party who bears the burden of proof has the right to adduce
evidence first. Rule 39(13) provides as follows:
Where the onus of adducing evidence on one or more of the issues is on the
plaintiff and that of adducing evidence on any other issue is on the defendant, the
plaintiff shall first call his evidence on any issues in respect of which the onus is
upon him, a nd may then close his case. The defendant, if absolution from the
instance is not granted, shall, if he does not close his case, thereupon call his
evidence on all issues in respect of which such onus is upon him.
[17] The ‘onus to adduce evidence’ as it is used in Rules 39(11) and (13) is no
more than the duty to adduce evidence and has no bearing upon the
more than the duty to adduce evidence and has no bearing upon the
evaluation of the evidence. It is merely a procedural duty that is imposed
upon one or other of the parties to enable the trial to be conducted
effectively. In general, and as a matter of logic, the party who bears the
burden of proof will have a duty to adduce evidence first on those issues
upon which he or she bears that burden, but the pleadings may alter the
position.
4 1977 (3) SA 534 (A) at 548.
[18] The defendant has referred me to the Mohunram-case5 as authority for its
argument that the plaintiff bears the onus and that the defendant bears no
onus in respect of its special plea in abatement . My attention was drawn to
paragraph [75]. The Constitutional Court, with reference to the extract from
South Cape Corporation, quoted above, held the following:
… The onus of establishing that all the requirements for a forfeiture order in terms
of section 50 of POCA – including that of proportionality – have been met, rests
on the NDPP throughout. However, as some of the factual material relevant to the
proportionality analysis will often be peculiarly within the knowledge of the owner
of the property concerned, the owner who is faced with a prima facie case
established by the NDPP would in the usual course be well -advised to place this
material before the court. This does not, however, shift the onus of proof to the
owner in question; it merely places on the owner an evidentiary burden or, as it is
sometimes called, a burden of adducing evidence in rebuttal.
[19] The question of onus must be determined with reference to the pleadings.
In paragraph 52 of the particulars of claim, the plaintiff avers that the
defendant does not have immunity from the jurisdiction of this Court in
these proceedings by virtue of the transaction between the parties, which
he expands on in subparagraphs 52.1 and 52.2. In essence he relies on
the exceptions to the default position of immunity as formulated in section
4(1)(a) and (b) of the Act. In paragraph 53 of the particulars of claim the
plaintiff also pleads a deemed waiver and therefore also relies on the
exception formulated in section 3(1) of the Act.
[20] It is necessary for the plaintiff to plead and prove one of the exceptions
listed in the Act in light of the provision of section 2(1) of the Act – the
default position is that a foreign state shall be immune from the jurisdiction
default position is that a foreign state shall be immune from the jurisdiction
of the courts of the Republic except as provided for in the Act. The
5 Mohunram and Another v National Director of Public Prosecutions and Another (Law
Review Project as Amicus Curiae) (CCT19/06) [2007] ZACC 4; 2007 (4) SA 222 (CC); 2007 (6)
BCLR 575 (CC); 2007 (2) SACR 145 (CC) (26 March 2007).
question of what must be pleaded by the plaintiff was an issue that came
before this court already by way of exception in this matter and was
determined by Francis J on 9 December 2024.
[21] The hearing before Francis J related to the adjudication of a second
exception lo dged by the defendant against the plaintiff’s (amended)
particulars of claim dated 12 June 2024 . The defendant averred that the
particulars of claim did not disclose a cause of action as the plaintiff had
failed to plead the facts which would demonstrate, if proved, that the
defendant does not enjoy immunity from the court’s jurisdiction . I quote
from this judgment 6 the passages that made it clear that the plaintiff was
obliged to set out the facts on which he relies to establish one of the
exceptions to the defendant’s general immunity:
[16] ... Plaintiff has not expressly categorized the type of commercial
transaction that he seeks to enforce but, in my view, even if what he has set out
in his particulars of claim could be construed as some sort of su pply and/or
distribution agreement, the transaction as pleaded by plaintiff is substantially, and
predominantly, political or governmental in character. It is not a ‘commercial
transaction’ even though it may incorporate, or possibly incorporate, some
elements of commercial activity.
[17] In my view, the principal difficulty with plaintiff’s submission is that the
enactment of legislation, or the amendment, or repeal thereof, is primarily political
in nature and involves the exercise of sovereign author ity. From what is stated in
the particulars of claim, it is apparent that the Decree was meant to apply to all
drivers in France and was designed to achieve a public objective. Certainly, it
appears that the purpose of the Decree was not to enact a law in order that
plaintiff may profit therefrom in perpetuity.
[18] Indeed, if the purported agreement between plaintiff and defendant is
[18] Indeed, if the purported agreement between plaintiff and defendant is
‘commercial’, then the agreement as pleaded by plaintiff is extremely vague and
runs counter to what one would expect o f such an agreement: obligations in
commercial agreements are generally expressed in definite, quantifiable terms.
Having regard to the alleged agreement as a whole, with reference to the context
in which it was apparently made, the transaction has insuffi cient character of
commerciality. The Decree, in my view, was a political or governmental act that
fell outside the ambit of the definition of ‘commercial transaction’ under the Act.
6 Van Der Bergh v Government of the French Republic [2024] ZAWCHC 414; 2025 (4) SA 307
(WCC) (9 December 2024).
[19] In the result, I am satisfied that the exception should succe ed as the
particulars of claim do not disclose a cause of action. Defendant has immunity in
terms of the Act and this Court does not have jurisdiction to entertain plaintiff’s
claim against it.
[22] It was only after this decision that the plaintiff introduced paragraph s 52
and 53 t o his particulars of claim. The special plea of abatement filed by
the defendant merely reasserts the defendant’s immunity – i.e. pleads the
default statutory position – and denies that the contract, as pleaded by the
plaintiff, is a contract in terms of section 4(1) of the Act. The defendant is
not asserting a positive case. It is a denial of an averment in the particulars
of claim. My analysis of the pleadings – against the background of the
statutory framework and the views expressed by Francis J – leads me to
the conclusion that the first principle and the third rule referred to in Pillay
v Krishna find application in this matter: The plaintiff has asserted, as he
was obliged to do, that the exceptions raised by sections 3(1) and 4(1) of
the Act finds applicat ion in this matter. He must prove this. If he does not,
the defendant’s general immunity from jurisdiction remains. The onus is on
the plaintiff in this regard and it cannot shift. The defendant has denied that
the contract is a contract in respect of whic h th e exception raised under
section 4(1) applies – which effectively incorporates a denial in respect of
the exception raised under section 3(1) – and this denial cannot draw to it
an onus in its true and original sense. The defendant did not raise the
exceptio declinatoria fori in the ordinary sense.
[23] Should the plaintiff establish a prima facie case after close of his case ,
then this would place on the defendant an evidentiary burden – a burden
of adducing evidence in rebuttal. This application for absolution from the
instance is before me precisely because the plaintiff has closed its case
and the defendant avers that the plaintiff has not made out a prima facie
case. I do not agree with the submission by Mr Papier that The Akademik
Fyodorov-case7 is authority for the proposition that the onus is on a
foreign state to prove that it must be afforded immunity. He relied on the
following passage at 443A/B:
It is clear from the provisions of s 2(1) read with s 3 -s 12, which set out the
exceptions to the general immunity of foreign States from the jurisdiction of South
African courts, that a foreign State does not enjoy such immunity if any one of the
statutory exceptions applies to it or to the proceedings in which the question of
immunity arises . The foreign State must, so to speak, run the gamut of the
statutory exceptions under s 3 -s 12 and only if it emerges unscathed must it be
afforded immunity from the adjudicative jurisdiction of the courts.
In this matter the respondent company obtained a n order for the arrest of
the ship, Akademik Fyodorov, as security for its claim in arbitration
proceedings pending in London . The Russian government launched an
application seeking the release of the ship. As such, it was deemed to
have waived its immunit y in terms of section 3(3)(a) by instituting the
proceedings.
[24] The plaintiff has also relied on Minister of Correctional Services and
Others v Ongom 8 for his submission that the party asserting a special
plea bears the onus of establishing it. The special plea that was raised in
this matter by the appellants, was one of prescription. The full court held
that the onus in respect of the special plea rested on the appellants. In
doing so, the court relied on Macleod v Kweyiya 9 where the Supreme
Court of Appeal held:
7 The Akademik Fyodorov: Government of the Russian Federation and Another v Marine
Expeditions Inc 1996 (4) SA 422 (C).
8 An unreported full court decision by Fortuin J (case no 2912/21 in the WCHC) , which does not
appear on Saflii.
appear on Saflii.
9 Macleod v Kweyiya (365/12) [2013] ZASCA 28; 2013 (6) SA 1 (SCA) (27 March 2013) at para
[10].
This court has repeatedly stated that a defendant bears the full evidentiary
burden to prove a plea of prescription, including the date on which a plaintiff
obtained actual or constructive knowledge of the debt. The burden shifts to the
plaintiff only if the defendant has established a prima facie case.
[25] This full court judgment is therefore not authority for the general
proposition that the onus is always on the p arty raising a special plea. The
nature of the plea raised by the defendant must be determined. It was
described to be a ‘special plea in abatement.’ The import of the term ‘plea
in abatement’ is, however, not clear in South African jurisprudence. It is
taken from the English procedural lexicon. 10 The purpose of a special plea
is to prevent unnecessary time and resources o n a matter that proceeds to
trial where the trial should not have started from the beginning. The
functioning of a plea in abatement simply determines the legal position
prior to the matter proceeding to trial. The plea raised by the defendant is
not a dilatory plea, which seeks to delay the plaintiff's claim on the merits
until some defect is remedied or some temporary bar to the claim is
removed. It is a plea that strikes at the heart of the plaintiff’s case. A party
denying an essential element of a plaintiff’s case can never be said to draw
the onus of disproving an element in respect of which that plaintiff bears
the burden of proof. It is clear that the burden of proving the exceptions to
general immunity raised by the plaintiff falls on him.
[26] I also do not agree with the submission by Mr Papier, relying on rule 39(6),
that the defendant’s special plea must be dismissed and judgment should
be granted in favour of the plaintiff. This submission, and the claim that this
court declares that the plaintiff is entitled to proceed to trial on his claim, is
based on the incorrect submission that the burden of proof is on the
based on the incorrect submission that the burden of proof is on the
10 See AC Cilliers et al, Herbstein & Van Winsen, The Civil Practice of th e High Courts of South
Africa (Juta) 5th edition at p 599.
defendant and furthermore conflates the application for absolution from the
instance with the defendant closing its case. At this stage only the plaintiff
has closed his case. Should I refuse the application for absolution from the
instance, this equates to a finding that the plaintiff has establis hed a prima
facie case and would then cast the duty upon the defendant to adduce
evidence in order to combat the prima facie case made by the plaintiff.
Once he has done so, and has closed his case, this court must determine
the narrow issue – has the plaintiff discharged its burden of proving, on a
balance of probabilities , on one or more of the exceptions to the genera l
immunity of the defendant.
ABSOLUTION FROM THE INSTANCE
The test for absolution
[27] When absolution from the instance is sought at the close of a plaintiff's
case, the test to be applied is not whether the evidence led by the plaintiff
establishes what would finally be required to be established, but whether
there is evidence upon which a Court, applying its mind reasonably to such
evidence, could o r might (not should, nor ought to) find for the plaintiff. 11
Counsel for the parties were at least ad idem as to this test. Mr Papier
formulated the test slightly differently in accordance with what was set out
in Gascoyne:12 the test is whether there is evidence upon which a court,
applying its mind reasonably, could find for the plaintiff.
[28] As pointed out in Van Wyk v Venter N.O. ,13 although the constitutionality
11 Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409E.
12 Gascoyne v Paul and Hunter 1917 TPD 170 at 173.
13 Van Wyk v Venter N.O and Others (21072/2019) [2025] ZAWCHC 197; [2025] 3 All SA 572
(WCC) (12 May 2025)
of granting absolution has been questioned in the past, it remains a rule of
practice engrained in Rule 39(6) . This old rule of litigation practice may
pre-date our constitutional era but it serves an important constitutional
purpose. It allows bad cases to be weeded out, thus protecting scarce
judicial resources from being spent on cases which do not merit further
judicial attention. In this way, absolution serves the interests of justice and
promotes the more efficient and effective administration of justice.
Absolution from the instance implies that, at the end of a plaintiff’s case,
there is an insufficiency of cogent evidence, or the absence of adequate
testimony, so that no order ought to be made in a plaintiff’s favour in
respect of a claim.
‘…a plaintiff has to make out a prima facie case - in the sense tha t there is
evidence relating to all the elements of the claim - to survive absolution because
without such evidence no court could find for the plaintiff. As far as inferences
from the evidence are concerned, the inference relied upon by the plaintiff must
be a reasonable one, not the only reasonable one . ... The court ought not to be
concerned with what someone else might think; it should rather be concerned
with its own judgment and not that of another 'reasonable' person or court.
Having said this, absolution at the end of a plaintiff's case, in the ordinary course
of events, will nevertheless be granted sparingly but when the occasion arises, a
court should order it in the interests of justice.’14
[29] I am also mindful thereof that, in deciding whe ther absolution should be
granted, it must be assumed that, in the absence of special considerations,
such as the inherent unacceptability of the evidence adduced, the
evidence is true. 15 Questions of credibility should not normally be
investigated at this stage of the proceedings.16
The first narrow issue before the court
14 Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA), 92G -93A.
14 Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA), 92G -93A.
Internal citations removed.
15 Atlantic Continental Assurance Co of SA v Vermaak 1973 (2) SA 525 (E) at 527C-D.
16 South Coast Furnishers CC v Secprop 30 Investments (Pty) Ltd 2012 (3) SA 431 (KZP) at
439D-E.
[30] The first question is whether the plaintiff has established that a
‘commercial transaction’ was concluded between the defendant and him –
either in terms of section 4(1)(a) or (b). In that regard, Mr Manca SC made
two broad submissions:
[30.1] If the Court does not regard itself as bound by the finding of
Francis J, it should make the same finding, for the same reasons,
that what is pleaded is not a ‘commercial transaction;’ and
[30.2] Even if what is pleaded is a ‘commercial transaction ,’ the plaintiff
has not, by a long mark, proven the conclusion of such an
agreement. He has not even tendered evidence with respect to all
elements of the claim.
[31] As to the first ground, Mr Manca SC argued that the formulation of the
contractual claim in the fourth set of particulars is not materially different to
the formulation of the contractual claim in the third set of particulars, which
served before Francis J when the second exception was taken. In this
regard he referred me to paragraph [16] of that judgment (as quoted
above), in which it was held that the agreement pleaded by the plaintiff is
not a ‘commercial transaction’. As the amen dment of the particulars by the
plaintiff did not change the fundamental nature of the contractual claim
contended for, he submitted that the plaintiff is estopped from now
contending that the contract has a different character to what the court
already found.17
17 I was referred to Democratic Alliance v Brummer (A184/2020) [2021] ZAWCHC 62; [2021] 2
All SA 818 (WCC); 2021 (6) SA 144 (WCC) (12 April 2021).
[32] Mr Papier has, with reference to the Brummer-judgment,18 argued that
even if both requirements for issue estoppel are met (i.e. (a) the same
parties, and (b) the same issue to have been finally determined), the court
retains a discretion to ref use the plea on the grounds of fairness and
equity. He argued that the eadem quaestio for determination before this
court differs as the question before Francis J was whether the particulars
of claim disclosed a cause of action – a pleading test on paper – whilst the
question before this court is an evidentiary determination on facts.
Furthermore, the plaintiff amended his particulars of claim, but the
defendant did not plead estoppel , electing instead to participate in the trial
and cross -examine th e plaintiff extensively. I find these arguments
persuasive.
[33] It is , however, not necessary for me to decide this issue, which would
require an analysis of the third and fourth sets of particulars of claim. The
issue can be determined with regards to th e contract as pleaded in the
fourth set of particulars, and the plaintiff’s evidence. The plaintiff’s
evidence was as follows:
[33.1] Le Duc came to South Africa for two reasons: one was to enter
into a contract with the plaintiff “ for a commercial contrac t to
enable the drivers in France to comply with decree 2012 -284 for
two breathalysers in their vehicle ” and secondly to do an audit so
that the product would have the NF mark.
[33.2] The terms of the contract were “ we, through the conduit, the
factory wou ld manufacture the product. It would have an NF. I
18 Supra.
undertook to deliver, at that time, 55 million breathalysers ... The
contract was ongoing. The prices were set, market -related prices,
and the French government undertook to implement the Sa rkozy
decree of 2012-284 was their responsibility. Without that, I would
not have committed myself and taken the contract without that
certainty.”
[34] The doctrine of sovereign immunity applicable in this country is that of
restrictive immunity as opposed to absolute immunity. A foreign state
would enjoy immunity from our courts where the relevant act, which forms
the basis of the claim , is an act iure imperii (a sovereign or public act). On
the other hand, the foreign state would not enjoy immunity if the act which
forms the basis of the claim is an act iure gestionis – an act of a private law
character such as a private citizen might have entered into.
[35] What the plaintiff is asking the court to believe is that he contracted with a
foreign state to exercise its sovereign authority and to pass Decree 284 so
that the plaintiff could benefit fr om that sovereign act personally. The
enactment of legislation (such as Decree 284), or the amendment thereof
(such as Decree 180) , is political in nature and involves the exercise of
sovereign authority. This was never disputed by the plaintiff. 19 From what
is stated in the particulars of claim, it is apparent that Decree 284 was
meant to apply to all drivers in France and was designed to achieve a
public objective. This was expressly pleaded by the plaintiff (it was part of
the defendant’s campaign to red uce road deaths by policing drink -driving).
19 In fact the plaintiff, relying on Planmount Ltd v Republic of Zaire [1981] 1 All ER 1110 at 1114F
and Victory Transport Inc v Comisaria General de Abestecimientos y Transportes (1964) 336 F 2d
354 (2nd Cir) at 360, argued that sovereign acts are confined to internal administration, legislation,
armed forces, diplomatic activity and public loans
Certainly, the purpose of Decree 284 could never have been to enact a law
so that the plaintiff may profit therefrom in perpetuity. I agree with Francis J
that Decree 284 was a political or governmental act that fell outside the
ambit of the definition of ‘commercial transaction’ under the Act.
[36] In The Akademik Fyodorov -case the court considered the definition of
‘commercial transaction’ in section 4(3) of the Act and held that this “ poses
an objective criteri on based upon the nature or character of a particular
transaction, contract or activity without reference to the purpose with which
it was concluded or engaged in.”20 I agree. But despite what Mr Papier has
argued, this does not save the plaintiff. The problem for the plaintiff is that
he alleges that the defendant contracted with him (one man) to enact
legislation (Decree 284) – affecting 50 million drivers in France – and,
concomitantly, not to repeal or amend the legislation as the contract /
commercial transaction had no end date. This is inherently improbable.
[37] This brings me to the second broad submission from Mr Manca SC. The
plaintiff had pleaded that Le Duc was the duly authorised representative of
the defendant at the time of the conclusion of the pleaded contract. He
testified that Le Duc came to Cape Town inter alia with the express
intention of concluding a contract with him. The defendant expressly
placed the authority of Le Duc in dispute, yet the plaintiff gave no evidence
on how it came about that Le Duc (who was employed as the chairman of
the NF Certification Committee at Laboratire National d’Essais or “ LNE”)
had the authority to bind the French state to issue Decree 284 and ,
furthermore, to bind the state not to change this law thereafter. As Mr
20 At 447F-H.
Manca SC submitted, this is an extraordinary claim, requiring extraordinary
evidence. The plaintiff admitted in cross -examination that the LNE is
responsible for carryi ng out all studies, research, consultations, expert
assessments, testing and control work, as well as all technical assistance
services useful for consumer protection and information or for improving
product quality. Its mission is to ensure consumer prote ction and
information – to protect the NF mark. No evidence was led as to why Le
Duc, against this background, would have the authority to bind the
defendant.
[38] The plaintiff’s riposte was that, if LNE is not an arm of the French
government but distinc t from the executive organs and capable of being
sued in their own name, then section 15(1) of the Act would in any event
find operation. This does not address the point regarding the inherent
probabilities that a chairperson of a Certification Committee could bind the
French government to issue a law and not to recall or amend same . Put
differently, the plaintiff must put up the evidence that would persuade the
court that Le Duc met with the plaintiff not only in his capacity as an
employee of LNE tasked with annual NF quality audits but also as a
representative of the defendant. No factual evidence was led that would
support such a conclusion – testifying to the conclusion as fact is not
sufficient.
[39] The further difficulty is that no evidence was tendered regarding what had
passed between the plaintiff and Le Duc at this meeting . There was no
evidence placed before this court as to an offer or an acceptance, that
would indicate consensus between the parties. T hus no evidence was led
regarding the conclusion of a contract. The plaintiff ha d to make out a
prima facie case – in the s ense that there is evidence relating to all the
elements of the claim – to survive absolution because without such
evidence no court could find for the plaintiff. In my view, he did not.
The second narrow issue before the court
[40] Section 3(1) of the Act removes immunity where a foreign state has
expressly waived immunity or is deemed to have done so. The plaintiff
argues that a contractual waiver entered into before proceedings is
sufficient21 and that the letter from the Prime Minister of France oper ates
precisely in this way. On 10 October 2018, the plaintiff had written to the
Prime Minister requesting him to intervene and take personal control of the
plaintiff’s financial claim against the government. On 26 November 2018
the Prime Minister sent a r eply to him, in French, on his official letterhead.
The letter was translated and reads as follows:
Dear Sir
In your letter of 10 October 2018, you engaged the Prime Minister about a
discretionary remedy.
I have the honour to inform you that requests to the French administration must
be written in French.
Yours truly
Thierry-Xavier GIRARDOT
[41] The argument is that a head of government’s personal response to a
financial claim, on official letterhead, constitutes conduct wholly
inconsistent with any assertion of immunity. The Balkan Energy-case, on
which the plaintiff relies, does not support the argument. The dispute has
21 Relying on Ex parte Balkan Energy Limited and Another; In re Balkan Energy Limited and
Another v Government of the Republic of Ghana 2017 (5) SA 428 (GJ).
its origins in an agreement called ‘the Power Purchase Agreement ’. In
terms of this agreement the respondent contracted the second applicant in
Ghana to operate a dual fired diesel and gas power barge on its behalf for
the purposes of generating and supplying electricity . The written
agreement contained a clause relating to jurisdiction and expressly
provided “… GoG agrees not to claim and irrevocably waives immunity to
the full extent permitted by the laws of such jurisdiction .” This was clearly
an express waiver.
[42] The plaintiff faces an additional difficulty. He claimed a deemed waiver, as
opposed to an express waiver. In terms of section 3(3) a foreign state shall
be deemed to have waived its immunity only on two grounds: firstly, if it
has instituted the proceedings (which is clearly not the case in casu); or,
secondly, if it has intervened or taken any step in the proceedings (with a
step taken purely to claim immunity being expressly excluded) . The letter
from the Prime Minister does not fall within either of these categories. It
also does not incorporate an express waiver. It is trite that a waiver must
be clear and unequivocal. In this regard the Constitutional Court has held 22
as follows:
Waiver is first and foremost a matter of intention; the test to determine intention to
waive is objective, the alleged intention being judged by its outward
manifestations adjudicated from the perspective of the other party, as a
reasonable person. Our courts take cognisance of the fact that persons do not as
a rule lightly abandon their rights. Waiver is not presumed; it must be alleged and
proved; not only must the acts allegedly constituting the wavier be shown to have
occurred, but it must also appear clearly and unequivocally from those facts or
otherwise that there was an intention to waive. The onus is strictly on the party
asserting waiver; it must be shown that the o ther party with full knowledge of the
asserting waiver; it must be shown that the o ther party with full knowledge of the
right decided to abandon it, whether expressly or by conduct plainly inconsistent
with the intention to enforce it. Waiver is a question of fact and is difficult to
22 Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another (CCT 97/07) [2009]
ZACC 6; 2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC) (20 March 2009) at [80].
establish.
[43] The plaintiff’s evidence was in accordance with what he had pleaded in the
fourth particulars of claim. This evidence is not sufficient to make out a
prima facie case for either a deemed, or an express, waiver, and in this
respect also the plaintiff cannot survive absolution because no court could
find for the plaintiff on the evidence as led.
THE PROBABITIVE VALUE OF PLAINTIFF’S EVIDENCE
[44] Finally I wish to remark on the probative value of the plaintif f’s evidence.
His evidence in chief was little more than having his particulars of claim
read to him. Mr Manca SC recorded early on that the defendant was not
objecting on the narrow basis that he was being led through a document
that he himself had signed, and that on that basis he was entitled to tell the
court that that is indeed wha t he had pleaded. Despite the fact that the
plaintiff was warned that the defendant would argue that this evidence had
no probative value as a result, the leading questions continued.
[45] As Mr Papier rightly submitted, the rule against leading questions in
examination in chief is to ensure that the reliability of the witness’ evidence
is not compromised – the rule relates not to admissibility but to the weight
to be attached to the evidence. He submitted that the plaintiff’s evidence
was corroborated by objective documents and that this gave the evidence
weight despite the leading questions. I cannot agree with him. The
documents do the opposite. They demonstrate that the plaintiff never acted
in his personal capacity at any time. He always acted as the d irector and
shareholder of Redline. The only agreement for ‘ goods sold and delivered’
was between Redline and its distributors as is clear from the invoices
discovered by the plaintiff. There was no evidence that the French
Government purchased anything from the plaintiff or made any payment to
him. All payments were made by the distributors to Redline.
[46] Furthermore, if the plaintiff has not established that any contract was
entered into, then he has not established that any part of the agre ement
fell to be performed in this country. The evidence was clear that the annual
NF audit was being performed in the years prior to the alleged contract
being concluded. Furthermore, it was an audit of Redline’s factory to
ensure that the product may con tinue to carry the NF mark. Every
document, from Redline’s audited annual financial statements to the
invoices, and the Le Duc’s emails (always addressed to the directors of
Redline) as well as the concessions made by the plaintiff in cross -
examination, po int to one inescapable conclusion. Whatever agreement
came into being, it was never between the plaintiff in his personal capacity
and a third party. At every point in time he met with officials from various
departments as the director of Redline. It was R edline that manufactured
the breathalysers, made delivery to distributors, invoiced distributors,
received payment and declared profits on the sales. It was not the plaintiff.
[47] The effect of the order, which I intend to make, is to leave the parties in the
same position as if the case had never been brought, for a judgment of
absolution from the instance does not amount to res iudicata and the
plaintiff is entitled to proceed afresh. I would, however, caution the plaintiff
against this course of action . The court in this division has now, on two
separate occasions held that the contract , as pleaded by him , was not a
commercial transaction.
[48] I agree with Mr Manca SC that t he plaintiff’s case was properly set out in
the first set of particulars. It was a claim in delict. It did not rely on any
contract of any kind. It was preceded by a string of emails from him to the
defendant in which he sought to convince the defendant to compe nsate
him for his alleged loss. Those attempts came to nought. The notion of a
‘contract’ only arose after the defendant alerted him to the general
immunity it enjoys in terms of the Act. After the first exception before Desai
J was upheld, the plaintiff amended his pleadings to introduce one of the
exceptions provided for in the Act. This is the first time a contract was
pleaded. As he still failed to establish a cause of action, the second
exception followed and he, then, for the fourth time, amended his
particulars of claim and also introduced the waiver claim.
[49] The plaintiff’s version as regards the conclusion of the contract has gone
from him accepting the terms of Decree 284 to concluding the contract on
the telephone whilst in a taxi in France with an unnamed French official
(which was the version pl aced before Desai J and deposed to in an
affidavit), which was then amended to being a contract concluded with
unknown officials (in the second particulars of claim) before, in the third
particulars of claim, being a contract concluded with Le Duc as duly
authorised representative . It is clear that the plaintiff ’s evidence has not ,
and cannot, establish any basis on which to assert that the defendant does
not enjoy immunity from this Court’s jurisdiction.
COSTS
[50] The ordinarily rule is that the successful party is entitled to its costs. The
matter is of sufficient complexity to warrant the employment of two counsel
and for taxation of counsel’s fees on Scales C and B respectively.
[51] The order is recorded above.
__________________________
ANDERSSEN J S
Acting Judge of the High Court
Appearances:
For the applicant: Adv G R Papier with Adv Carla Hing
Instructed by: Tobin Attorneys Inc
For the defendant: Adv B J Manca SC with Adv Adam Brink
Instructed by: Bisset Boehmke McBlain