EVIDENCE

Facts and issue: This is an opposed application where the applicant sought to declare mining activities conducted by the first respondent (Lezmin) as unlawful. Lezmin brought two applications to strike out. The first related to numerous passages in the applicant’s founding affidavit and the basis for the strike out is hearsay evidence. The second related to numerous passages in the applicant’s replying affidavit and the basis is impermissible new facts raised in reply.

Discussion: The evidence of Power, Erasmus and Ndlovu is hearsay as defined in section 3(4). Lezmin did not agree to the admission of such evidence as envisaged in section 3(1)(a) of the Law of Evidence Amendment Act 45 of 1988. Power, Erasmus and Ndlovu did not provide affidavits for the application to allow the admission of the hearsay evidence as envisaged in section 3(1(b). The evidence can only be allowed if the court allowed it as envisaged in section 3(1)(c). A party in application proceedings should not be ambushed by the admission of hearsay evidence at the hearing of the matter. The applicant knew that for it to succeed, Power’s opinion was to be accepted by the court as a correct reflection of the position. Acceptance of the opinion of Power on land use would amount to an undeserved crucial and advantageous position for the applicant and an undue evidential disadvantage to Lezmin. Similarly, Erasmus and Ndlovu’s opinions, where contested, must be fairly considered. A dispute needs to be properly resolved through deserved advantages and due disadvantages. The interests of justice do not permit admission on the evidence of this nature under the circumstances.

Findings: The applicant should have addressed the constituent factors of section 36(1)(c) upon which it sought to rely in its founding affidavit, or by way of a distinct application supported by a founding affidavit dealing therewith. In this way, Lenmin would have had an opportunity to fully deal with the factors as relied upon by the applicant in its answer. This is what fairness and justice demands for a court to arrive at an informed decision on the question of the admission of hearsay evidence. The applicant’s case in its founding affidavit is exclusively premised on hearsay evidence in respect of which no case is made out for its admission. The application to strike out hearsay evidence should be granted. The applicant has not made the hurdle of a cause of action. The applicant’s reliance on inadmissible hearsay evidence and impermissible new matter in reply is not allowed.

Order: The application is dismissed with costs.

Facts and issue: The plaintiff instituted action against the defendants, claiming that Motapanyane, acting within the course and scope of his employment as arresting officer, laid a false charge of housebreaking with the intent to steal and theft against him whereupon he was wrongfully and unlawfully detained for 219 days. He was later discharged. He claims damages of R2.2 million against the defendants. Motapanyane and Ntuli, the investigating officer, passed away. The defendants applied for the admission of the written statements of Motapanyane that he deposed to. They pray that the statement of Ntuli, the warning statement of the plaintiff taken by Ntuli, and the bail information statement as signed by Ntuli be admitted.

Discussion: Motapanyane arrested the plaintiff on suspicion of housebreaking related to a robbery at a business. While preparing for trial, it became known that Motapanyane and Ntuli passed away. The statements and documents are the defendants' only evidence to present their case. The statements describe information received on the whereabouts of suspects in the robbery and a description of items found. Ntuli took the plaintiff's warning statement in which he allegedly admitted to assisting other accused persons in selling stolen items. Motapanyane was the only arresting officer, and Ntuli was the only investigating officer. The defendants concede that the admission of the evidence may significantly prejudice the plaintiff but admitting it would serve the interest of justice. The Rule 37 minutes record that the record of the criminal proceedings and the contents of the docket were to be accepted as evidence without further proof.

Findings: The statements and documents play a pivotal role in the matter, and Motapanyane, as the arresting officer, entertained a reasonable suspicion when arresting the plaintiff. Furthermore, the material aspects of Motapanyane’s statement are corroborated by the plaintiff’s warning statement taken by Ntuli. Both statements are based on first-hand accounts of Motapanyane and Ntuli. The statements and the docket are admissible. There was an agreement to that effect.

Order: The application succeeds.

Facts: Two articles were published about Akani by the respondents, members of the press, in November and December 2021. There were subsequent tweets on the social network Twitter related to these articles but the argument centres on the articles themselves. In essence, the articles make reference to reports made by others about Akani and its CEO, Mr Letjane, the applicants in the main application. These reports pertain to alleged complaints made by a provident fund to the Financial Sector Conduct Authority (FSCA) against Akani and Mr Letjane relating to improper relationships with FSCA officials, extortion and failure to hand over documents for forensic investigation.

Application: The applicants (in the main application) seek relief relating to alleged defamatory statements made in articles published by the respondents. This is an interlocutory application for the admission of further evidence in a main application. The evidence sought to be admitted by the respondents takes the form of findings in certain passages in a judgment of the full bench, Moropa v Chemical Industries National Provident Fund and a press release of the FSCA. The handing down of the judgment and the publication of the press release came after the respondents had filed their answering affidavit in the main application and the applicants had replied.

Discussion: The hybrid approach taken by the applicants in the main application seeks to have the court determine liability in a vacuum which seals the inquiry off from context. The applicants raise objections to the admission of the evidence, firstly, that there is a temporal problem in that the judgment and the press release post-date the articles and are thus irrelevant to the making of the statements. Second, they rely on Hollington v Hewthorn & Co Ltd  1943 All ER 35 on the basis that, properly construed, it provides that findings in judgments are inadmissible for being the irrelevant opinion evidence of another court. Related to this are the arguments that there is, furthermore, prejudice arising from the fact that (i) the evidence sought to be admitted is not, in any event, properly defined and (ii) that the judgment is subject to appeal. These objections, in their essence, are that the evidence is inadmissible for being irrelevant.

Findings: The matter sought to be introduced, although it postdates the statements is relevant to the reasonableness or otherwise of the making of the statements at the time. A plaintiff is not entitled to recover damages in respect of an injury to a reputation which he does not deserve. The question of whether the applicants have such a reputation is central evidence in the case. The respondents raise that the applicants have no reputation worthy of protection. The introduction of the evidence even for the purposes of context as opposed to truth arguably creates disputes of fact which would require an oral ventilation of the factual complex. This, ultimately, is for the consideration of the court hearing the main application. The existence of this evidence should not be excluded from the consideration as to whether the hybrid approach was apposite. The rule in Hollington v Hewthorn is to be strictly applied and is not applicable in circumstances of this case. When an opinion has probative force, it can be considered admissible. This also applies to the opinions of judges expressed in court cases.

Order: The factual findings made by the High Court in Moropa in certain listed paragraphs are admitted into evidence. The press release of the FSCA of 14 July 2022 is admitted into evidence.

FISHER J

Facts: The parties, WB and RB, who are married to each other and are separated, are engaged in litigation relating to the primary residence of their minor children. The parties have made allegations and counter allegations in relation to their respective suitability to be awarded primary residence of the children. It would appear that the 19-year relationship between the parties has been tumultuous and that they have over such period of time separated and reunited and attempted to resolve their marital issues, with no success. RB was admitted to and treated at the clinic and diagnosed with a bipolar disorder and related depression. WB indicates that, apart from such diagnosis, she also has “anger issues” and was treated for drug and alcohol misuse.

Application: The applicant seeks an order directing the clinic to make available all medical records of RB in its possession relating to her treatment including the results of any drug tests, psychological or psychometric testing, copies of any medical reports submitted to the clinic by medical practitioners, and copies of all medical and psychological notes relating to the treatment of and findings or recommendations of medical practitioners employed by the clinic.

Discussion: Whether a blanket privilege exists which prevents the clinic from disclosing and making available the medical records and such additional documents requested; whether the best interests of the minor children dictate that the medical records are made available, without restriction, to determine the suitability of RB to be awarded primary residence and to determine any appropriate contact arrangements; that Ms Law, for WB, suggested that where one has children, one has limited rights and that the best interests of the children trumped one’s right to privacy; and that Ms Lennard, for RB, submitted that disclosures are made in a therapy session, regarded as “a safe space”, and if the therapy notes were to be disclosed, a party would be reluctant to seek therapy and professional help, knowing that at some stage this could be disclosed for litigation purposes.

Findings: Section 14 of the National Health Act 61 of 2003 deals with the confidentiality of medical information and prohibits the disclosure of such information subject to the exclusions contained in section 14(2). The Constitutional Court has recognised that the disclosure of medical records is not just a question of privacy but also one of dignity. The overarching factor is whether the records are relevant for purposes of the issues before the court. That the documents are relevant is not disputed in this matter. WB has complied with the procedural requirements, has served a subpoena duces tecum in terms of the provisions of Uniform Rule 38 and then instituted the application in terms of section 14 of the NHA. Some sort of restriction has to be in place to protect RB’s privacy and the disclosures that she has made during the course of therapy. Safeguards will be put in place to protect the privacy and dignity of RB.

Order: The manager of the clinic is required to provide a medical report to either a clinical or forensic psychologist appointed by WB, which discloses the following information: the dates of admission and discharge of RB; the diagnosis and treatment plan, including the number of therapy sessions; the results of any drug or alcohol testing; the medication prescribed and treatment plan and whether RB is compliant therewith; and the prognosis and recommendations of the clinic. Each party is directed to pay their own costs.

HENRIQUES J

Facts and issue: The appeal is against an award of damages arising from the unlawful arrest and detention of the plaintiff and the failure of the court a quo to make an order for interest on the claim. An identified issue is that the prescribed oath applicable to witnesses in court proceedings was either not correctly administered in respect of the appellant or not administered at all, and that the oath administered to the appellant was not fully administered in accordance with accepted practice for administering of oaths. The admissibility of the evidence of the appellant is therefore brought into sharp focus.

Discussion: To simply take an oath is not synonymous with the assurance that a witness will speak the truth, the whole truth and nothing but the truth. Half-truths or an affinity to be partially truthful does not engender the reliability that is required in the evidence of a witness to be of assistance to a court in arriving at a decision. The oath unaccompanied by adequate indication that the truth in its full conspectus be told, results in an improper administering of the oath. Witnesses may accede to the taking of the oath, which may at first blush be an abstract concept, but what informs the severity of the occasion is the call to speak the truth. This was omitted by the court a quo. It is therefore a matter of fact, that the administering of the oath to the appellant had not achieved the purpose that the oath was intended for, notwithstanding the use of the words “So help me God.”

Findings: The oath was not properly administered as there was no innovation to tell the truth. It axiomatically follows that the appellant’s evidence did not have the status and character of admissible evidence.

Order: The order of the court a quo is set aside. The matter is remitted for trial before another presiding Judge on both merits and quantum.

Facts and issue: The plaintiff’s application was predicated upon the refusal by the respondent’s expert, Banbury, to sign the draft minute  prepared by the plaintiff’s expert, Scherf, arising from the meeting held between the said experts. What was apparently in dispute was the contents of the draft minute. The defendant contended that the draft minute did not correctly reflect what had been agreed upon at the meeting of the experts.

Discussion: The plaintiff contended that the respondent’s failure to sign the minute, alternatively furnish a comment thereto was hampering its ability to approach the Registrar of the Court for certification. Having regard to the provisions of the new Rule 36(9A) of the Uniform Rules, there is no legal nor factual foundation upon which the defendant can refuse to sign the draft minute or furnish his own minute. The parties have attended a meeting and have reached certain consensus that ought to be reduced to writing. It terms of the contention that the plaintiff’s expert was supposed to furnish the defendant’s expert with particular documents that can be recorded in a minute. It is no bar to concluding the joint minute. If parties were allowed not to file minute of the meeting on the grounds advanced by the defendant, that would have dire consequences on the case management process.

Findings and order: Within 10 days of the order, the defendant is directed to cause its expert, Mr Banbury, to sign the joint expert’s minute sent to the defendant by the plaintiff; or produce his own minute of what occurred at the joint expert’s meeting. 

Facts and issue: The appellant sought leave to appeal to the full beach against the whole judgment of Lukhaimane AJ. The main defence of the appellant is based on the doctrine of estoppel. The appellant’s case is that the respondent allowed Tamarron to make representation vis-à-vis the appellant, which misled the appellant into believing that Tamarron was entitled to transfer ownership of the property to the appellant, and that such representation was made negligently and on that basis the appellant acted to its detriment by making payment and taking delivery of the CAT loader.

Discussion: In principle estoppel can only succeed if one can prove following elements, namely, misrepresentation, negligence, prejudice, causation, and maintainability. The owner’s mere entrusting a person with possession of articles is not sufficient to produce the representation that the dominium or jus dispondendi was vested in the possessor. The respondent would not be entitled to assume from such mere possession that the possessor was authorised to dispose of the articles. If he made such an assumption he would only have himself to blame for his gullibility.  The question of whether Tamarron was acting as an agent was debatable in that, on the one hand, the respondent claims to have only requested Tamarron to find a purchaser and once that is done, Tamarron had to purchase the machine for it to sell it to the intended buyer and on the other hand, the appellant argues that Tamarron acted as owner or agent and as such it was entitled to transfer ownership.

 Findings: There was no basis for the court to find that the respondent, through its conduct in concluding the agreement with Tamarron, constituted a representation and or that such representation was negligent. The respondent was not negligent in its conduct, and it is found to be irrelevant that the representatives of Tamarron held themselves out to be owners or agents, and in any event such act cannot be blamed on the respondent.  

Order: The appeal is dismissed with costs.

Facts: During a pretrial conference the parties agreed that all documents contained in the core bundle are what they purport to be and shall be admissible in evidence without formal proof or production of the original. In a further pretrial conference the parties confirmed this agreement and agreed that the records reflect the contemporaneous notes by the medical and nursing staff at the respondent’s medical facilities, indicating their management and treatment of the plaintiff. Despite the agreement the respondent’s counsel during cross examination sought to challenge reliance by the applicant’s expert witness on statements contained in the core bundle agreed to by the parties.

Application: Applicant seeks to introduce certain medical records into evidence in terms of section 3(1) of the Law of Evidence Amendment Act 45 of 1988 read with section 34 of the Civil Proceedings Evidence Act 25 of 1965. These medical records form part of a bundle of documents which was discovered by the respondent.

Discussion: Dr Davis testified in support of the applicant’s claim and referred to certain aspects of the clinical notes, inscriptions, and hospital records contained in the core bundle. He was cross-examined by counsel on behalf of the respondent for a few days before an objection was raised to the effect that his reference and indeed, his reliance on an inscription by Dr Ben Kahla, constitutes hearsay evidence. The respondent’s contention is that Dr Kahla was not present at the first and second laparotomy procedures and his inscriptions and clinical notes in this regard, absent his own evidence, constitute hearsay.

Findings: Dr Davis, an expert in his own right, is permitted in law to glean the evidence of other people in support of his opinion. The statement of Dr Kahla is admissible in evidence as a statement tending to establish what is conveyed in the clinical notes he authored. The parties in the pretrial conference elected to include all medical records in the core bundle. To the extent that the respondent avers that the statement of Dr Kahla is hearsay, it is admissible hearsay within the contemplation of the Civil Proceedings Evidence Act regarding records made in the performance of a duty to record information supplied by a person who had or might reasonably have been supposed to have personal knowledge of those matters.

* See in particular paras [10]-[14] on expert opinion and reference to reports, notes and other material.

Order: The medical records contained in the core bundles as admitted by the parties in the pretrial conference are admitted into evidence.

MFENYANA J

Facts: Mr Chauke (appellant) claims that he was driving while it was still dark when an oncoming car overtook a truck and veered into his lane. He swerved to avoid a collision and his vehicle rolled. He was taken by ambulance to Pelonomi hospital. He could not provide any information regarding the registration details, make or colour of the other vehicle. He claimed damages from the Road Accident Fund.

Appeal: Against the judgment of a single judge which rejected appellant’s version. The court a quo accepted the time on the accident report and that the incident happened in daylight.

Discussion: The admissibility of the accident report and section 34 of the Civil Proceedings Evidence Act 25 of 1965; that the court accepts, for present purposes, that the accident report is a public document because it was generated by a public officer during a public inquiry in the exercise of his duties; that the Fund did not prove the report’s relevance, originality and authenticity; that the lack of compliance with the admissibility requirements for documentary evidence meant that the contents of the document was hearsay evidence; that it is not enough for a litigant to state that a witness, a police officer, had been shipped somewhere and could not be located; and that the court a quo took judicial notice of the time of sunrise and twilight in Bloemfontein on the date of the accident.

Findings: There was no basis to allow the accident report as documentary evidence because none of the requirements for its possible admission were proved or present. Section 26 of the Act provides for the Minister to Gazette the times of sunrise or sunset. Neither party made use of section 26. The statutory regulation of the times of sunset and sunrise is indicative of the fact that a court may not of its own accord take judicial notice of such times. It must be proved. The parties may not grant a court permission to take judicial notice of a fact unless the fact fulfils the requirements. On consideration of the entire basket of evidence, regardless of the shortcomings in his version, it cannot be said that the incident occurred in a manner other than the one recounted by the appellant.

Order: The appeal is upheld with costs. The order of the court a quo is replaced with one finding the Fund liable for 100% of the plaintiff’s damages.

MUSI JP (GUSHA AJ and BERRY AJ concurring)

Facts: Appellant is the mother of a child who was rendered a cerebral palsy quadriplegic. She has a claim against the MEC and contends that there was negligence on the part of staff at St Patrick’s Hospital in Mthatha. The trial of the plaintiff’s action is pending in the High Court, but could not proceed when, during the presentation of her case, the court made an order which prevents plaintiff from adducing crucial expert evidence in support of her claim, on the basis that that evidence was precluded by the provisions of the Civil Proceedings Evidence Act 25 of 1965.

Appeal: Against the finding of the High Court that plaintiff was not entitled to present evidence to disprove the contents of two initial expert reports for the plaintiff on the basis that these had been admitted in terms of section 15 of the Evidence Act.

Discussion: How plaintiff gave notice of her intention to present expert evidence by two specialist paediatric radiologists that the child suffered acute profound hypoxic injury; that the MEC informed plaintiff that these were “admitted” and that they could “be handed in as evidence in the case” and that the MEC specifically recorded her “admission” that the child had sustained an acute hypoxic ischaemic injury; and that plaintiff delivered a supplementary affidavit and sought to clarify the expert findings.

Findings: The MEC is seeking to eliminate all evidence which suggests that the event was not sudden or without warning. The order irreparably prejudices the child, who is permanently disabled and whose best interests are paramount, by preventing the plaintiff from placing evidence which might be held to be decisive before the trial court in support of her claim. The administration of justice has been impeded in that the High Court has foreclosed its own assessment of certain of the experts’ evidence. Section 15 of the Act finds no application in this case for the simple reason that the purported admission is neither an admission, nor a formal admission in terms of the section. An admission is a statement adverse to the party making it and the party must intend to make a formal admission.

Order: The appeal is upheld and the order of the High Court replaced with one dismissing the application for an order that plaintiff is not entitled to adduce evidence to disprove the contents of the reports.

SCHIPPERS JA (VAN DER MERWE JA, GORVEN JA, OLSEN AJA and MALI AJA concurring)

Facts and issue: Meintjies sued Annandale for a statement and debatement of account and payment of monies found to be due pursuant thereto. The application was referred to oral evidence by Collis J on the issue of the nature of the oral agreement concluded between them during June 2015 and the terms agreed upon. The appeal is against judgment in which she rejected Annandale's version and accepted that of Meintjies and granted the initial relief sought.

Majority discussion: The parties presented two mutually destructive versions. The approach on appeal is that factual findings of a trial court bind an appeal court unless it can be shown that they are vitiated by material misdirection. This Court cannot fault the Court a quo's summation of the evidence. It also finds her findings on the credibility of the witnesses correct. Mrs Annandale's evidence leaves much to be desired is the myriad of unanswered questions that weigh heavily against her version on the probabilities. The probabilities all point to the version of Mrs Meintjies and the Court a quo therefore correctly rejected Mrs Annandale's version and granted the order sought in the notice of motion.

Dissenting discussion: This appeal raises the question whether the Court a quo correctly dealt with the issue of two mutual destructive and irreconcilable versions, when it accepted the version of Mrs Mentjies and rejected that of the appellant. The failure of the court below to deal with the evidence without due regard to other probabilities is a clear misdirection and entitles Court to reassess the merits. Under the circumstances, and having assessed all the probabilities, the appeal must be allowed.

Majority findings and order: The appeal is dismissed with costs.

Facts: The appellants brought a claim for damages caused by a fire which originated on the respondents’ farm called Lemoensdrif, and spread into their farms, The Oaks and Winterhoek-Wes. Appellants contended that respondents’ workers were working in the vicinity of the origin of the fire until approximately 15 minutes before the fire was detected, that they were smokers and only they were in that area of the farm on that day.

Appeal: Against the judgment of the High Court dismissing the appellants’ claim with costs.

Discussion: That the cause of the fire was unknown and there was no direct evidence, so the appellants relied on circumstantial evidence on the cause and place of origin of the fire, and sought inferences to be drawn from the evidence with regards to liability, negligence and causation; and whether the appellants placed sufficient objective facts for the court a quo to draw inferences in their favour.

Findings: Appellants had to establish sufficient facts regarding their “lit match/cigarette ember” theory. There was no expert evidence presented regarding any investigations conducted after the fire or regarding the cause thereof. There was no evidence relating to physics of ignition and fire propagation. In those circumstances, the court a quo correctly observed that the appellants were calling upon it to speculate. Considering the witness evidence, the balance of probabilities favoured the version of the respondents.

Order: The appeal is dismissed with costs.

MANGCU-LOCKWOOD J (ALLIE J and FORTUIN J concurring.)