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Gqomlana v Minister of Safety and Security (3081/2010) [2013] ZAECGHC 71 (11 July 2013)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE, GRAHAMSTOWN


Case no: 3081/2010

Date heard: 17.01.2013

Date delivered: 11.07.2013

In the matter between:

LULAMA GQOMLANA ...............................................................Plaintiff / Respondent

and

MINISTER OF SAFETY & SECURITY ........................................Defendant / Applicant

JUDGMENT

________________________________________________________________

BACELA, AJ:


[1] The plaintiff instituted an action against the defendant for damages suffered in respect of three separate causes of action, namely: unlawful arrest and detention, assault and malicious prosecution. The action is defended. On the 12 September 2012, trial commenced to finalisation with both parties closing their arguments. Judgement was reserved. Thereafter applicant (defendant in the main action) filed an application for leave to adduce further evidence in the following terms:

  1. That the defendant be granted leave to introduce into evidence an affidavit by captain Edmund Roos authenticating an entry made by him in the occurrence book at Gelvendale police station on 16 October 2009;

  2. That the plaintiff be granted leave to deliver supplementary Heads of Argument, if any, arising from the granting of prayer (one) 1 within (five) 5 days of the granting of the order.

  3. That the defendant be granted leave to deliver supplementary Heads of Arguments in reply within (five) 5 days of receipt of the plaintiff Supplementary Heads of Argument, if any.

  4. Costs against the plaintiff in the event he opposes the application.


For the sake of clarity, I shall refer to the parties as they are in the main action.


[2] The defendant filed an affidavit by Captain Edmund Roos (captain). In his founding affidavit he alleges that their legal representatives were not alerted to the existence of an entry in the occurrence book. This oversight, so the defendant says, occurred because Gelvandale police station has two occurrence books, one kept at the police cells and another kept at the charge office. This led the defendant’s legal services to forward incomplete information to their legal representatives. It has also been submitted that the evidence sought to be introduced is extremely narrow and crucial to the defence. As such a refusal to grant the application may severely prejudice the defendant, while its granting will have no such effect on the plaintiff.


[3] The application is opposed by the plaintiff on the basis that as a general rule, once a party has closed his case, he is not entitled to call further evidence save in rebuttal. The plaintiff further avers that the defendant became pertinently aware of the existence of an entry in the occurrence book and as such the captain gave evidence to this effect, but the defendant elected not to adduce that entry into evidence at any stage. In a nutshell, the witness having been pertinently questioned about the document, and not withstanding his evidence that he made such an entry the defendant elected to close its case without taking any further steps to either introduce the document in re-examinations or take time to seek the documentation to clarify the issue in re-examination.


[4] In an application to lead fresh evidence, the onus is upon the applicant to show that he has exercised proper and reasonable diligence in not presenting evidence at the trial that with due diligence, might have been available. In Oosthuizen vs. Stanley, 1938 AD 322 at 333, TINDALL JA; remarked as follows of applications of this nature, there is no doubt that the trial court has the power to allow plaintiff to call a fresh witness after the defendant has closed his case and that exercise of such power is in the discretion of the court..........”. Amongst certain considerations to be taken into account merely as guidelines should be the reason why the evidence was not led timeously- (Mkwanazi vs. Van der Merwe and another 1970 (1) SA 609(A)).


[5] As it appears from the particulars of the plaintiff’s claim, the defendant is a legal entity, with full capacity to sue and be sued. Given various structures within the defendant’s administrative spheres, it is understandably not an easy task to collect relevant and sufficient evidence in preparation for presentation of its case. It is however expected of legal representatives to conduct matters with proper diligence. The party who makes the application to present fresh evidence must show that the fact he had not brought it forward was not owing to any remissness on his part. He must satisfy the court that he could not have got this evidence if he had used reasonable diligence’(Mkhwanazi above).


[6] Reasons for failure to lead evidence which the defendant seeks to introduce appear from an affidavit filed by the defendant in support of this application. In order to determine if proper, reasonable diligence and care was given to the conduct of this case, a consideration must be had to the reasons proffered. At page 8 paragraph 23, of the founding affidavit the captain states that:

  • In addition thereto,

23.1. The existence of the entry was not mentioned by me to the defendant’s legal representative during consultation, the docket having contained my statement, which was discovered; and


24. The defendant had discovered all that was relevant and had a bearing on the matter and failure to discover this entry is clearly an oversight on the part of the defendant, which oversight is regretted.


26. The long and short is that the defendant’s legal representatives were not aware of the existence of this evidence which only came to light when the last of the defendant’s witnesses testified on the Friday just before mid-day...............”


[7] Indeed it appears that the existence of the entry by the captain only came to light when counsel for the plaintiff questioned him. On page 54 of the application Index, which is a reference to the transcript of evidence of the captain, paragraph 18; counsel from the plaintiff asks the captain:

(a) Mr Cole: And you have somewhere recorded the incident the same evening and for some reason or other it hasn’t been disclosed to us?............Then captain replies: ‘Well in my occurrence book entry it, you can almost say it was a statement without I, Edmund Roos, whatever, it states there the date and times, what happened, the incident, the areas, who was involved, what firearm was used, it is quite a detailed entry that I as an officer needed to make’...............


[8] From this evidence, even if the defendants’ legal counsel were not aware of the existence of yet another entry not discovered for the benefit of the plaintiff, it became pertinently clear that such an entry existed. It has been trite law that the use of non discovered documents has often been allowed by the courts. In such cases the other party would be afforded an indulgence to either consult on the documents or have an opportunity to properly peruse the documents.. There is no explanation by the defendant, why, after it became clear that there was crucial documentary evidence available somewhere at Gelvandale police station, nonetheless chose to close its case. Not only was this occurrence book (ob) entry the only document that was not discovered by the defendant, it would appear that a full report of the incident was compiled and handed over to a senior officer by the captain. This appears on page 51 of the application Index, paragraph 25, counsel for the plaintiff asks the captain:

25. Mr Cole: Okay fine but you importantly said that because a member had discharged his firearm you have to fill in special reports?............ The captain replies:........... ‘ That is correct, in shooting incidents the officer on the scene whether I was present at the time of the incident or I was called out after the incident I need to complete that shooting incident report as well as make an Occurrence Book (OB) entry which is reflected in the report M’ Lady’............


On page 52 of the application, paragraph 12 counsel for the plaintiff asks:

Mr Cole: ‘But that report surely entail the most up to date as it were, scenario, factual detail relating to what happened that evening, you did it the same night? Then the captain replies: “That is correct M’ Lady........”


Mr Cole: It (the report) has got a whole lot of stuff and we haven’t seen it? . ... The captain replies, “I wouldn’t know why you haven’t seen it M’ Lady, I mean it is a report that we complete so [interrupted]..............”


[9] One of the reasons given for failure to present the evidence is that Mr Basson who dealt with the matter was not present in court when this piece of evidence was presented by the captain. No doubt even in that absence, I am satisfied that the defendant was properly and competently represented. Therefore the explanation has little bearing on the decision to close the case without exploring this new piece of evidence. I am unable to conclude that counsel for the defendant doubted the existence of such an occurrence book (ob), its entry or favourability to the defence case, but I must point out that the explanation that has been given for failure to lead such crucial evidence when it came to light is not satisfactorily at all. More so in the light of the fact that an adverse inference could possibly be drawn from any failure to present documentary evidence which a party claims exists but does not present it. The defendant ought to have foreseen that the plaintiff may request the Court to draw an adverse inference in his closing submissions.


[10] Having regard to all the relevant considerations made out above, I have come to conclude that it would be fair to the administration of justice to refuse the application by the defendant.


[11] In the result:

(1)The application is dismissed.

(2) The Defendant is ordered to pay costs of this application



__________

X BACELA

ACTING JUDGE OF THE HIGH COURT


APPEARANCES


For the Plaintiff : Mr. Cole

Instructed by : Wheeldon Rushmere & Cole

119 High Street

Grahamstown

Tel.: 046 622 7005

Ref.: (Mr BRODY/Glyn/S13270


For the Defendant : Mr. Boswell

Instructed by : Whitesides

53 African Street

Grahamstown

6140

Tel.: 046 622 7117

Ref.: AF BASSON/gdp/C08749


Heard : 17 January 2013

Reserved : 17 January 2013