IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION, THEMBALETHU)
Case No: 7114/2019
In the matter between
JACOBUS JOHANNES ANDRE GRIEBENOUW APPLICANT
AND
THE MINSTER OF LABOUR 1ST RESPONDENT
DIRECTOR-GENERAL DEPARTMENT OF 2ND RESPONDENT
LABOUR
THE NATIONAL DEPARTMENT OF LABOUR 3RD RESPONDENT
THE COMPENSATION COMMISSIONER 4TH RESPONDENT
THE NATIONAL DEPARTMENT OF 5TH RESPONDENT
CORRECTIONAL SERVICES
THE GOVERNMENT PENSIONS 6TH RESPONDENT
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ADMINISTRATION AGENCY
THE NATIONAL DEPARTMENT OF TREASURY 7TH RESPONDENT
THE NATIONAL MINISTER OF FINANCE 8TH RESPONDENT
Heard: 02 March 2026
Delivered electronically: 17 June 2026
ORDER
(a) The rule nisi is discharged.
(b) The applicant to pay the costs, including costs of counsel on scale C.
________________________________________________________________
JUDGMENT
________________________________________________________________
THULARE J
[1] This is an opposed application for confirmation of a rule nisi and costs,
including reserved costs. The issue turns on the admissibility into evidence , of
an actuarial report attached to the applicants supplementary founding affidavit .
Only the 1 st to fourth respondents (the respondents) opposed the application.
The respondents contended that the actuarial report should be rejected and / or
disregarded for non-compliance with Rule 36(9) of the Uniform Rules of Court.
Their case is that the actuarial report is inadmissible in which event the
application should fail and the rule nisi ought to be discharged.
[2] The main issue between the parties is the determination of the applicant’s
pension in percentage resulting from his disability and the determinations in
terms of the Compensation and Occupational Injuries and Diseases Act, 1993
(Act No. 130 of 1993) (COIDA). The applicant made a few amendments to is
application since it was launched. In the latest amendment, he filed a
supplementary founding affidavit which for the first made had an actuarial
report as an annexure. For purposes of this judgment, the relevant paragraph, 2 ,
of the notice of motion, reads:
2. In the event of any of the respondents opposing the relief sought by the Applicant on the
return day, such respondents shall, in the answering affidavits, state the following in respect
of the calculations by Wim Loots of WL Actuarial Consulting (Annexure X to the Applicants
supplementary founding affidavit):
2.1. In what respects the basis for the calculation is disputed;
2.2. In respect of each dispute, state the amount, percentage, date or time period, as the case
may be, that such respondents contends the correct amount, percentage, date or time to be;
2.3. In respect of each of the disputes referred to in the previous paragraph , the opposing
respondents shall set out the basis for placing the issue in dispute with reference to a
particular document, piece of legislation, decision or determination by any government
official or any other from of evidence, as the case may be, and;
2.4. In what respect the calculations contained in the report are alleged to be incorrect and, in
respect of each incorrect calculation, to provide the correct calculation and total;
[3] In the supplem entary founding affidavit the applicant explained that he
[3] In the supplem entary founding affidavit the applicant explained that he
wished to place the actuarial report before the court to move the matter forward
as it will present the respondents with an opportunity to identify exactly in
which respects they disputed the calculation of the compensation to which he
claimed to be entitled. The actu arial report would benefit the parties and the
court to identify and resolve the outstanding disputes. The respondents would
not be prejudiced as they would have an opportunity to respond thereto. The
payment of compensation in terms of COIDA was an ongoing matter which will
have to be addressed to regulate his future compensation payments. Subsequent
to the 4 th respondent filing their answering affidavit and a court order , and on
the basis of that affidavit and a court order, the applicant requested an actuary to
calculate the difference between the compensation he had received to date and
the compensation to which he had been entitled , as well as the compensation he
is entitled to in future. The answering affidavit and the court order referred to
dealt with the calculations of the disputed compensation. The applicant
requested the court to consider the actuarial report as part of the evidence on
which he relied for the relief sought.
[4] The respondents’ case was that the actuarial report was not placed properly
before the court as contemplated in the rules, with specific reference to rules
6(1) and 36(9)(a). It is contended that the applicant did not seek leave of the
court or consent of the respondents regarding the use of expert evidence to
support the relief sought. All the applicant did was to seek leave from the court
to file a supplementary founding affidavit and nothing else. The applicant
simply attached the actuarial report as part of the evidenc e he alleged supported
the relief he sought , without due regard to the provisions of Rule 6(1) and
36(9)(a). The respondents case was that the supplementary affidavit failed in
material terms to comply with the provisions of Rule 6(1) of the Rules in that it
material terms to comply with the provisions of Rule 6(1) of the Rules in that it
did not set out the facts upon which the applicant relied for the relief sought.
The respondents are of the view that it was not sufficient for the applicant to
wholly rely on the actuarial report , whose introduction did not comply with the
rules, and as a result the actuarial report should not be allowed.
[5] The respondents also said that the calculations in the actuarial report, at any
event, were not in accordance with COIDA, and as such was misplaced. In
respect of future compensation , the applicant claimed a lump sum, to which he
was not entitled. It was not clear which model or formula was used to result in
claiming a lump sum. Calculations of his pension was to be done in accordance
with COIDA, which the 4th respondent had considered. The applicant did not set
out the foundational basis of how he arrived at higher percentages than what
had been determined . The applicant sought his compensation to be determined
as a person would have received during June 2023, without setting out the basis.
He was injured in 1998 and filed his claim for compensation in that year , and
section 63 of COIDA provided for the determination of compensation with a
monthly rate at which the employee was remunerated at the time of the
accident. The salary scale used was his salary scale of 1998 in accordance with
COIDA. The applicant did not report his injury to 4 th respondent in 1997. In
respect of increased compensation based on alleged negligence of an employer ,
the applicant was required to make an application with additional information as
required by section 56 of COIDA. It was for the applicant to show that he was
entitled to a higher percentage for his monthly compensation. The applicants
compensation was determined and paid in accordance with the prescripts , and
was annually adjusted.
Rule 6(1) of the Uniform Rules of Court
[6] Rule 6(1) of the Uniform Rules of Court reads:
6 Applications
(1) Every application shall be brought on notice of motion supported by an affidavit as to
the facts upon which the applicant relies for relief.
The applicant was allowed to amend by filing supplementary affidavits so that
the material disputes between the parties could be determined [Greyling v
Nieuwoudt, 1951 (1) SA 88 (O) at 93G; Berg v Gossyn (1) 1965 (3) SA 702 (O)
at 705E-H; Nedbank Ltd v Hoare 1988 (4) SA 541 (E) at 543H. The g eneral
principle that amendments to pleadings should, wherever possible, be granted to
enable true dispute s to be determined should not be frustrated because
particulars of claim originated as an affidavit [Nedbank at 547F-G].
[7] Anyone who can provide the necessary material to support an applicant’s
claim can execute an affidavit [ Leith, NO and Heath, NO v Fraser 1952 (2) SA
33 (O) at 36B -C]. The rule required that the applicant set out the facts upon
which he relied for relief . The determination of the applicant’s pension in
percentage resulting from his disability is a question of fact . In Morrison v
Commissioner for Inland Revenue 1950 (2) SA 449 (A) at 455 it was said:
A question that depends for its answer on matters of degree, on what weight is to be given to
this and that variable factor, like factors of duration, repetition, scale of operations, seems to
me to be ordinarily answerable only for the particular case and to be therefore a question of
fact. (Cf. Cohen v Commissioner for Inland Revenue (1946 AD 174 at p. 179).)
[8] The amount payable to the applicant was the end finding. It can only be
properly reached after consideration of all the relevant evidence, including
expert evidence where necessary. Expert opinions inherently are records of
findings of fact by another. The applicant annexed a summary of evidence and
findings by another , to his affidavit, and sought this court to construe them as
both summaries of evidence and findings, and as relevant evidence which
should be included as admissible in this matter . It is in the opinion of another,
not supported by an affidavit and not under oath from that other , wherein the
applicant is setting out the evidence upon which it relies to discharge the onus
of proof resting on it in respect thereof. Simply annexing a report of an alleged
expert to a founding affidavit did not discharge the evidential duty cast upon an
applicant in motion proceedings , in the absence of an affidavit by that alleged
expert, wherein amongst others they qualified themselves to express an opinion,
and confirming both the facts considered, the path of travel to the opinion and
the opinion itself. This is the first problem with the applicant’s approach.
[9] Secondly, the respondents contend that the findings of fact by the alleged
expert are assailable as there is a dispute on the evidence upon which the
findings could properly be reached, and the opinion itself. The respondents’ case
was that the evidence upon which they rel ied showed that the findings of the
alleged expert were findings at which no reasonable person could arrive at
[Commissioner of Taxes v Levy 1952 (2) SA 413 (A) at 421D-E]. The credibility
and reliability of the evidence of the alleged expert witness for the applicant
must be determined in the light of the objective facts and inferences drawn
therefrom, the probabilities and any evidence put up in contradiction thereto
[Commissioner, South African Revenue Service v Pretoria East Motors (Pty)
Ltd 2014 (5) SA 231 (SCA) ([2014] ZASCA 91) para 8 ; Commissioner, South
African revenue Service v Capstone 556 (Pty) Ltd 2016 (4) SA 341 (SCA) para
30].
[10] In Skog NO and Others v Agullus and Others 2024 (1) SA 72 (SCA) at para
18 it was said:
[18] It is trite that in motion proceedings, the affidavits filed in the application constitute
evidence. In such proceedings, the norm is that affidavits are limited to three sets. For this
reason, utmost care must be taken to fully set out the case of a party on whose behalf an
affidavit is filed. These being motion proceedings, the application fell to be decided in
accordance with the principle laid down in Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 4 (the Plascon-Evans principle). In terms of that principle, an applicant who seeks
final relief in motion proceedings must, in the event of a dispute of fact, accept the version set
up by his or her opponent unless the latter's allegations are, in the opinion of the court, not
such as to raise a real, genuine or bona fide dispute of fact or are so far -fetched or clearly
untenable that the court is justified in rejecting them merely on the papers.
In motion proceedings the papers stand as the pleadings and evidence do in
action proceedings. The relevance of the evidence offered is dependent on its
cogent connection with the relief being sought which, in an application, is
defined in the notice of motion [Kouga Local Municipality v St Francis Bay
(Ward 12) Concerned Residents Association and Others 2024 (4) SA 70 (SCA)
at para 15]. In Venmop 275 (Pty) Ltd and Another v Cleveland Projects (Pty) Ltd
and Another 2016 (1) SA 78 (GJ) at 86A-B it was said:
Save in urgent applications for interim relief to restrain irremediable injury and to keep
matters in status quo, where otherwise inadmissible hearsay might be permitted ( Cerebos
Food Corporation Ltd v Diverse Foods SA (Pty) Ltd and Another 1984 (4) SA 149 (T) at
157E – G), there is no authority that the admissibility of the evidence of a witness in motion
proceedings is somehow different from that in a trial action.
[11] The applicants annexure, by its very nature , contain submissions which
have neither evidential content nor probative value as they are not made or
have neither evidential content nor probative value as they are not made or
confirmed under oath . They are rendered argumentative matter, which is
hearsay, and as such, inadmissible. They are argumentative inadmissible hearsay
submissions which also amount to legal opinions on matters upon which the
court is required to decide [Venmop para 16 ]. Even expert legal opinion on
matters of domestic law is neither necessary nor admissible ( South Atlantic
-
Islands Development Corporation Ltd v Buchan 1971 (1) SA 234 (C) at 237C –
F; and Prophet v National Director of Public Prosecutions 2007 (6) SA 169
(CC) (2006 (2) SACR 525; 2007 (2) BCLR 140; [2006] ZACC 17) para 43).
[12] In The Master v Slomowitz 1961 (1) SA 669 (T) at 672B-C it was said:
In exceptional cases an application may be based on hearsay but then the deponent must state
that the allegations of fact are true to the best of his information, knowledge and belief and
state the basis of the knowledge or belief. Such basis may also emerge from the papers as a
whole. The mere omission in the present case of an allegation that the facts are within the
personal knowledge of the applicant is not conclusive - the petition and annexures must be
approached as a whole. But it seems more appropriate and expedient to deal with questions of
hearsay in conjunction with the respondent's application to strike out portions of the petition
and the annexures referred to in such portions.
[13] The applicant has an obligation to place before the Court the best evidence
of which from its nature such fact, matter or thing shall be capable [Gibson v
Arnold & Co. (Pty.) Ltd. , 1951 (2) SA 139 (T): R v Ferguson , 1949 (3) SA 69
(N)); The Master at 673E-F]. The disputed paragraphs and annexure contain the
bulk of the now essential allegations against the respondent s. The general rule
against hearsay and new matter , essentially in reply as they follow the
answering affidavit was filed, should be applied . In Galp v Tansley NO and
Another 1966 (4) SA 555 (C) at 558G-559H it was said that:
Mr. Prest went further and contended that an affidavit filed in terms of Rule 46 (2) should
contain no hearsay evidence at all. He referred the Court in this connection to Visser v Estate
Collins, 1952 (2) SA 546 (C) at pp. 552 and 553, and added, inter alia , that it was plain
from Silber's case, supra, at p. 352, that the burden imposed upon a defendant in terms of
from Silber's case, supra, at p. 352, that the burden imposed upon a defendant in terms of
Rule 46 (5) was one of actually proving, as distinct from merely alleging, the existence of
good cause for rescission.
I do not consider that the decisions cited by Mr. Prest support the very wide contention
advanced by him, to which I have just referred. For a considerable period, now, our Courts
have recognised the need to admit and act upon sworn statements of 'information' and 'belief'
in interlocutory matters (as distinct from matters in which the rights of the parties concerned
are finally decided) where urgency, or possibly the existence of other special circumstances,
appear to justify their doing so - see van Zyl's, Judicial Practice of South Africa (1921
edition), vol. 1, p. 441; Mears v African Platinum Mines, Ltd., and Others (1), 1922 W.L.D.
48 at p. 55; Grant-Dalton v Win and Others , 1923 W.L.D. 180 at p. 186; Pountas' Trustees v
Lahanas, 1924 W.L.D. 67 at p. 70; Levin v Saidman , 1930 W.L.D. 256; Harris' Executor v
Weinberg, 1938 CPD 134; Mia's Trustee v Mia , 1944 W.L.D. 102 at pp. 103 - 4; A Brighton
Furnishers v Viljoen, 1947 (1) SA 39 (GW); Geanotes v Geanotes , 1947 (2) SA 512 (C). In
admitting such statements our Courts cannot, of course, be said to be recognising an
exception to the hearsay rule: they are merely taking cognisance of the statements in question
for limited purposes and subject to certain conditions - see Mia's Trustee v Mia, supra. What
exactly the conditions are which would justify the admission presently under discussion, do
not require to be determined in detail in the instant case. In Mears' case, supra, WARD, J.,
commented that he did not know
'that any rule had been laid down in these Courts as to the limitation of this admission',
adding that for the English Courts (from which, it would seem, our Courts took over the
practice of admitting these sworn statements of information and belief) the matter was
regulated by Rule of Court, viz. by Order 38, Rule 3. In most of the other decided cases
enumerated above the basis for admission mentioned was that of urgency, in the sense that
enumerated above the basis for admission mentioned was that of urgency, in the sense that
the status quo had to be preserved if justice was to be done - see the remarks of
SCHREINER, J. (as he then was), in Mia's Trustee v Mia . In Levin v Saidman and Brighton
Furnishers v Viljoen, however - in each of which the Court had to do with an affidavit made
by an attorney on behalf of his client - the Court may have been prepared to entertain the idea
of other circumstances than urgency providing sufficient justification for admission. Urgency
was certainly not mentioned as a requisite by van Zyl in his Judicial Practice of
South E Africa, supra, and it is interesting to note that it does not feature as a requirement in
the wording of the English Rule of Cou rt dealing with the admission of such statements, viz.,
Order 38, Rule 3 - see The Annual Practice 1966, Part 1, at p. 922. As I have already
indicated, it is not necessary for the purposes of the present case to define with exactitude the
conditions which would justify the admission of sworn statements of information and belief. I
think I have said enough to indicate that there can be no reason why such statements should
not - in appropriate circumstances - be admissible also for the purposes of Rule 46 (2) of the
Rules framed under our Magistrates' Courts Act. In other words, I cannot accept without
qualification Mr. G Prest's contention that an affidavit filed in terms of Rule 46 (2) should
never contain any hearsay evidence.
But one important point emerging from the cases which I have enumerated in the preceding
paragraph is this, viz., that our Courts have consistently refused to countenance the admission
as evidence - for any purpose whatever - of any statement embodying hearsay material, save
where such statement has properly been made the subject of an affidavit (or solemn
affirmation) of information and belief, i.e., save where the deponent (or affirmer) has not only
revealed the source of the information concerned but in addition has sworn (or solemnly
affirmed) that he believes such information to be true and furnished the grounds for his belief.
In this connection see particularly Harris' Executor v Weinberg, supra; Mia's Trustee v Mia,
supra; and Grant-Dalton v Win and Others, supra.
[14] In his supplementary founding affidavit, the applicant did not under oath
swear that he believed the information contained in the alleged expert opinion to
be true nor furnish grounds for that belief . In Passenger Rail Agency of South
Africa v Swifambo Rail Agency (Pty) Ltd 2017 (6) SA 223 (GJ) at para 21 it was
said:
[21] Hearsay evidence is generally not permitted in affidavits. Once again this is not an
absolute rule and there are exceptions to it. Where a deponent states that he is informed and
verily believes certain facts on which he relies for the relief, he is required to set out in full
the facts upon which he bases his grounds for belief and how he had obtained that
information, and the court will be inclined to accept such hearsay evidence. The basis of his
information, and the court will be inclined to accept such hearsay evidence. The basis of his
knowledge and belief must be disclosed, and where the general rule is sought to be avoided
reasons therefor must be given. Where the source and ground for the information and belief is
not stated, a court may decline to accept such evidence.
[15] The applicant did not utter a single syllable in his supplementary founding
affidavit as to why the general rule that hearsay evidence is generally not
permitted in affidavits was sought to be avoided and therefore did not advance
any reasons for the court to accept such evidence. It does not avail a n applicant
in motion proceedings to depose to inadmissible evidence. His affidavit must
allege facts which the Court can take account of. Annexing an alleged expert
opinion with no confirmatory affidavit from the author of the opinion , and
without the deponent stating that he was informed and verily believed certain
facts on which he relied for the relief , what is relied on is not admissible
[Standard Merchant Bank Ltd v Rowe and Others 1982 (4) SA 671 (W) at
676H-677A].
Rule 36(9) of the Uniform Rules of Court
[16] Rule 36(9)(a)(i) provides that:
36 Inspections, Examinations and Expert Testimony
(9)(a) No person shall, save with the leave of the court or the consent of all parties to the suit,
be entitled to call as a witness any person to give evidence as an expert upon any matter upon
which the evidence of expert witnesses may be received unless —
(i) where the plaintiff intends to call an expert, the plaintiff shall not more than 30 days
after the close of pleadings, or where the defendant intends to call the expert, the defendant
shall not more than 60 days after the close of pleadings, have delivered notice of intention to
call such expert; and
(ii) …
Provided that the notice and summary shall in any event be delivered before a first case
management conference held in terms of rules 37A(6) and (7) or as directed by a case
management judge.
[17] The opinion sought to be introduced is not common cause or otherwise
incontrovertible. It is not of a n official, scientific, technical or statistical nature
and capable of easy verification. The applicant did not set out any facts a nd
suggest them to establish exceptional circumstances where the evidence sought
to be submitted was weighty, material and to be believed . At best he purports a
reasonable explanation for the late filing of the opinion. The opinion purports to
be scientific evidence . The opinion is disputed by the respondent and is not
capable of easy verification. A legal opinion on matters a court might have to
decide is inadmissible [Prophet at para 43; Zeffertt et al The South African Law
of Evidence (Butterworths, Durban, 2003) at 295 ]. It follows that the opinion
can only an opinion on the facts.
[18] The theme of rule 36 in its entirety, and 37A to which it refers , suggest a
course of action within the line of reasoning of an action and an application
where a Judge President has determined that a case management through
judicial intervention was appropriate. The applicant did not allege that this was
such an application and that such a determination was made. The driving force
behind case management is to ensure that all issues that are amenable to being
resolved without a trial have been dealt with; that the remaining issues that are
to go to trial have been adequately defined; that the requirements of rules 35 and
36(9) have been complied with if they are applicable; and that any potential
causes of delay in the commencement or conduct of the trial have been pre-
empted to the extent practically possible [Rule 37A(5)(b)]. All these measures
are intended to assist in an expeditious resolution of disputes of facts. An
application is not a mechanism for resolution of disputes of facts and in
appropriate circumstances an application may be dismissed where it was
launched in circumstances where an action was appropriate
[Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155 (T) at 1162; CULLEN v HAUPT 1988 (4) SA 39 (C) at p 40F-
H].
[19] The applicant in his supplementary founding affidavit said nothing about
the training, skill, competenc e and experience of Wim Loots (Loots), his
purported expert. Except for an entry which reads : Fellow of Actuarial Society
of South Africa, which is located under the name above which is a signature,
Loots himself said nothing about his expertise. A court has to evaluate the
expertise of the witness , to weigh the cogency of the witness’s evidence in the
contextual matrix of the case with which he is seized and to gauge the quality of
the expert qua witness on matters falling within the purview of the expert
witness’s field [S v M [S v M 1991 (2) SACR 91 (T)].
[20] In AM v MEC for Health, Western Cape 2021 (3) SA 337 (SCA) at
paragraph [17] the following was said about the role of an expert and expert
evidence:
‘Something needs to be said about the role of expert witnesses and the expert evidence in this
case. The functions of an expert witness are threefold. First, where they have themselves
observed relevant facts that evidence will be evidence of fact and admissible as such. Second,
they provide the court with abstract or general knowledge concerning their discipline that is
necessary to enable the court to understand the iss ues arising in the litigation. This includes
evidence of the current state of knowledge and generally accepted practice in the field in
question. Although such evidence can only be given by an expert qualified in the relevant
field, it remains, at the end of the day, essentially evidence of fact on which the court will
have to make factual findings. It is necessary to enable the court to assess the validity of
opinions that they express. Third, they give evidence concerning their own inferences and
opinions on the issues in the case and the grounds for drawing those inferences and
expressing those conclusions.’
[21] On the papers, neither the applicant nor Loots claim, under oath, that Loots
possessed any knowledge dictated by any science. In the absence of such
evidence, I am unable to conclude that Loots is an expert on matters he purports
to express an opinion on. Against the background of the respondents answering
affidavits to the earlier founding affidavits of the applicant , Loots did not take
the path of travel to demonstrate why his own inferential reasoning and opinions
present superior logic to that of the respondents. For these reasons I am not
persuaded to confirm the rule nisi, and I make the order.
___________________________
DM THULARE
JUDGE OF THE HIGH COURT
Appearances
Counsel for Applicant : Adv. AF Schmidt
Instructing Attorney: Mr A Van Niekerk
Counsel for Respondent: Adv. TB Hutamo
Instructing Attorney: Ms S Shaik