South Africa: High Courts - Gauteng

JUDGEMENT

LEGODI J INTRODUCTION

1. In this case the two plaintiffs issued summons against the National Director of public prosecutions (hereinafter referred to as the first defendant), The Director of Directorate of Special Operations (hereinafter referred to as the second defendant) and The

Commissioner for the South African Revenue Services (hereinafter referred to as the third defendant).

2. The reliefs sought by the plaintiffs were:

2.1.1 An order directing the first and second defendants to withdraw the criminal prosecution against the plaintiffs.

2.2 An order interdicting the defendants from instituting any further

criminal prosecution against the first and second plaintiffs for any offence relating to or arising from the transactions as defined in paragraph 6 of the particulars of claim.

2.3 An order that criminal prosecution against the plaintiffs had first to be

instituted against another person or persons in respect of an offence or offences relating to or arising from the transactions.

2.4 An order that the prosecuting authority in charge of such prosecution

referred to in 2.3 above must first call the first and second plaintiffs as witnesses on behalf of the prosecution and that the court must be informed that the first and second plaintiffs were witnesses as contemplated in Section 204 of the Criminal Procedure Act 51 of 1977.

2.5 An order that the first and second plaintiffs be prosecuted only if the

court in the criminal prosecution referred to in 2.3 above did not discharge the first and second plaintiffs from prosecution in terms of Section 204(2) Act 51 of 1977.

BACKGROUND

3. The plaintiffs' cause of action was based on an alleged agreement and undertakings concluded and made on the 26 August 2000 by the plaintiffs and the defendants in terms whereof the first defendant

is alleged to have undertaken not to institute criminal prosecution against the two plaintiffs unless:

- a criminal prosecution was first to be instituted against another person or persons in respect of an offence or offences relating to or arising from the transactions,

- the prosecuting authority in charge of such prosecution had called the plaintiffs as witnesses on behalf of the prosecution and informed the court that the plaintiffs were witnesses as contemplated in Section 204 of Act 51 of 1977 and

- the court in such criminal prosecution had not discharged the plaintiffs from prosecution in terms of the said Section 204.

4. As regard the third defendant it was alleged that the third defendant undertook not to make any request to the first defendant or any prosecuting authority under his control for the criminal prosecution of the plaintiffs in respect of any offence relating to or arising from the transactions.

5. The plaintiffs are said to have been represented by their attorney T.

Du Plessis, and N.G.D. Maritz SC. The defendants on the other hand are said to have been represented by S. Du Toit SC, Advocate A R Bhana, R J Beukes, P.R. Van Staden and M M Mahlong from the state attorney's office. R J Beukes and P R Van Staden were officials in the offices of the third defendants.

6. The first and second defendants denied any involvement in the alleged agreements and undertaking nor any representation on their behalf by either any of the people alleged to have acted on their behalf during the negotiations leading to the alleged agreement.

7. The third defendant on the other hand denied the terms and conditions of the agreement as stated by the plaintiffs. For the purpose of the issue to be decided in these proceedings, the third defendant in their plea denied as if specifically traversed the allegations that the first defendant made some undertakings to the plaintiffs as set in out in paragraph 3 of this judgment. In particular the third defendant denied that anyone of the persons mentioned or referred to in paragraph 5 of this judgment pretended to represent the first and second defendants.

ISSUES RAISED

8. At the beginning of the hearing of this matter, the parties indicated that they would ask for separation of issues in terms of Rule 33(4). The parties agreed that the issue whether or not the first defendant was a party to the alleged agreement has to be decided first.

9. Before making a ruling on the request in terms of Rule 33(4), Mr Semenya on behalf of the first and second defendants raised the issue that the plaintiffs have failed to answer sufficiently to a request as to who was alleged to have given the undertaking and on what basis it was alleged that such persons represented the first defendant. After a very long debate on the issue, I gave a ruling that

further discussion with Mr Le Roux on behalf of the plaintiffs who ultimately indicated that the persons who made undertakings on behalf of the first defendant were Du Toit SC, Advocate Bhana, M M Mahlong (State Attorney) and two officials being Mr Beukes and Van Staden. Separation of issues was then allowed.

10. The issue therefore raised and to be decided in these proceedings remains to be whether or not the first defendant was a party to the alleged agreement. I allowed the separation because a decision on the issue might dispose of the case in its entirety.

PLAINTIFFS' CASE

11. The first witness called on behalf of the plaintiffs was Mr De Vos SC.

His evidence in a nutshell insofar as it might be relevant was that he gave an advice to Mr Maritz SC on the working of section 204 of the Criminal Procedure Act. He advised Mr Maritz that before getting into some sort of an agreement with the third defendant he must ensure that the third defendant had a firm permission and authorisation from the first defendant. He indicated that later after he had given the advice to Mr Maritz, Mr Maritz came back to him and informed him that authorization had been obtained over the phone from the first defendant. He did not have the details of the agreement.

12. The second witness called on behalf of the plaintiffs was Mr N G D Maritz SC. He was the key witness for the plaintiffs. I don't intend dealing with his entire evidence in details except insofar as it is relevant. The second plaintiff, his attorney one Jeffers and the

brother to the second plaintiff were subpoenaed to appear in an enquiry instituted by the third defendant in terms of the Income Tax Act 58 of 1962 and Value Added Tax Act 89 of 1991. The enquiry was set down for hearing for the 3^rd, 4^th and 5^th April 2000. After having satisfied himself that there were no conflicts of interest he accepted the instructions. During the enquiry especially on the 4^th April 2000 it emerged that he was not told the full story by his clients and secondly conflict of interest emerged. As a result he intimated his intention to withdraw representing anyone of them. He was then informally approached by the commissioner who pleaded with him to talk to attorney Jeffers and ask him to come out clean or else face the full force of the law as the commissioner did not believe that neither Jeffers nor the second plaintiff were telling the truth.

13. At this enquiry Advocate Du Toit SC was leading evidence on behalf of the third defendant and was assisted by Adv. Bhana, including Mr Van Staden an official of the third defendant, Ms Mahlong from the state attorney office Johannesburg, and Mr Beukes an official of the third defendant. All these persons were at the time acting on behalf of or in the interest of the third defendant.

14. The final decision to withdraw was taken on the 5^th April 2000. After the withdrawal and in the presence of Advocate Bhana, Mr Du Toit SC asked to speak to him. Mr Du Toit impressed on him that there was sufficient evidence against the second plaintiff that could put him behind bars for a very long time. He indicated that none of them including the commissioner or presiding officer believed any word said by the second plaintiff. Mr Du Toit indicated that the big fish they were looking for was Metcash Trading LTD as it was owing

millions and millions of rands to the third defendant in tax revenue. Du Toit then requested Mr Maritz to speak to the second plaintiff to give his full cooperation and disclosure in exchange for indemnity in terms of Section 204 of the Criminal Procedure Act 51 of 1977 in terms of which the 2^nd plaintiff would not be prosecuted, but would be used as a witness. Subsequent to this discussion with Du Toit SC, Mr Maritz conveyed the offer to the second plaintiff whilst still at the enquiry.

15. At all times when the enquiry was conducted on the 3^rd to 5^th April 2000, the first plaintiff whom Maritz had assisted previously on a number of occasions was not a part of the enquiry as he was not subpoenaed, but it emerged to Maritz during the enquiry that the first plaintiff might have been involved. A week thereafter the third defendant served a subpoena against the first plaintiff in his absence in terms whereof the first plaintiff was to appear in the Tax enquiry. At this stage Mr Du Plessis who was introduced to the first plaintiff on the 5^th April 2000 by Mr Maritz was now acting for the first plaintiff. In the meantime the second plaintiff appeared in the enquiry on the 12^th April 2000. Subsequent to the 12^th April 2000 there were a number of consultations with the plaintiffs and their new attorney Mr Du Plessis. The discussion or consultation revolved around the proposals made regarding indemnity.

16. The first plaintiff was willing to accept the offer of indemnity in terms of section 204. The second plaintiff was only prepared to accept an upfront indemnity i.e. whether or not he was given indemnity he still wanted to be excused from any criminal liability or prosecution.

17. The 26 April 2000 was the day on which the first plaintiff was to appear in the enquiry. It was on this day that the agreements or undertakings as alleged in paragraphs 7.3 and 8.3 of the plaintiffs' particulars of claim are said to have been concluded with the first defendant. According to Maritz they were in the office of Advocate Bhana when the attitude of the plaintiffs in regard to the indemnity offer was put on the table. In that room there were certainly Mr Maritz, Mr Du Plessis the attorney for the plaintiffs, on behalf of the third defendant, there were Mr Du Toit although apparently did not come in at the same time with the rest of the people, Advocate Bhana, Mr Van Staden, and Ms Mahlong. Mr Maritz was not clear if Mr Beukes was also there. Mr Maritz insisted that permission and authorisation on the accepted conditions for indemnity in terms of section 204 be obtained. It was at this stage that Adv, Bhana and Ms Mahlong went outside allegedly to phone the office of the Director of Public Prosecutions and Mr Du Toit even suggested that they should go to his office. When Advocate Bhana and Ms Mahlong returned, Mr Bhana indicated that the office of the first defendant had given a go a head. According to Mr Maritz, he then repeated the agreement or explained again the conditions of the agreement to the first plaintiff in the presence of the rest of the people. The upfront indemnity suggested by the second plaintiff was rejected upright. At this stage, the first plaintiff was there. The second plaintiff had not arrived yet.

18. The first plaintiff was then interviewed and Mr Maritz made notes and later dictated what was being said by the first plaintiff and the tape was taken in for typing. Certain corrections were made on the

insisted that specific reference to section 204 be made. He was satisfied that the affidavit was in order and reflected in a nutshell what was agreed upon except to say not everything was mentioned in the affidavit, but was implied especially paragraph 4 of the first plaintiff's affidavit which reads as follows:

"I understand that by making this statement I am waiving the right of self incrimination but on the basis that this statement will not be used in any criminal proceedings against me, and that those present hearing my statement will not be compellable witnesses in any criminal prosecution against me. A list of such persons attending the making of this statement is annexed hereto marked "A ". In understand that the question of an indemnity in terms of section 204 of the Criminal Procedure Act can only arise after I have given full, frank and truthful evidence in court.

19. When the second plaintiff arrived he was told that his upfront indemnity was not negotiable. The same explanation as with the first plaintiff was done by Mr Maritz. Mr Du Toit made notes, dictated and taken in for typing in the form of an affidavit. He was surprised to later learn that it was the intention to charge and arrest the plaintiffs. He was told by Mr Van Wyk who was appointed to prosecute in the case. He told Mr Van Wyk that there was an agreement not to prosecute them criminally before the issue of section 204 Act 51 of 1977 was exhausted. Mr Van Wyk had no knowledge of this arrangement. At some stage Mr Van Wyk brought one Mr Bekker apparently from the second defendant's office. Mr Maritz repeated what he had previously told Mr Van Wyk. Mr Maritz did not ask Bekker about the authorisation, as he did think he would know.

20. Mr Maritz also indicated that after the criminal prosecution was instituted against the plaintiffs one day whilst in court he spoke to Advocate Bhana. Mr Maritz enquired about the reasons for the prosecution as there was an agreement. Mr Bhana then told him that he (Mr Bhana) was told to keep out of the case. Mr Bhana allegedly told Mr Maritz that if he was to be called as a witness, he (Mr Bhana) would confirm the existence of such agreement. It was put to Mr Maritz that Mr Bhana denies any such a discussion in court or an undertaking to testify in favour of the plaintiff.

21. It was put to Mr Maritz by both Counsels on behalf of the defendants that Mr Bhana denies that he at any stage on the 26^th April 2000 went outside under the pretext that he was going to phone the first defendant for permission and necessary authorisation to conclude the agreement with the plaintiffs. It was further put to Mr Maritz that Ms Mahlong of the state attorney's office went outside from time to time during the meeting because she had a small baby. It was put further to Mr Maritz that Mr Bhana denies that he phoned the first defendant for authorisation nor did he tell anyone that he had phoned and that he was having authorisation from the first defendant. The plaintiffs closed their case after the evidence of Mr Maritz.

FIRST DEFENDANT'S CASE

22. On behalf of the first defendant, Mr Bekker testified. He was admitted as an advocate of this court during April 1987. During April 1987 he started working with the first defendant. During October 1998 he was appointed Deputy Director in the office of Serious Economic Offence division of the National Director of Public Prosecution or Prosecutions. During December 1998 he was appointed and became in charge of the investigation and prosecution of the activities of the Metro, Metcash and or its associates.

23. The case concerning or which might affect the plaintiffs was first referred by the third respondent to the first defendant on the 31 July 1998. On the 21 August 1998 an authority was then given to launch an enquiry into activities of Metro International LTD and or its officers, employees or business associates. This authority was given by the director in the office of Serious Economic Offences, Mr S.A. Swanepoel. The witness Mr Bekker was reporting to the said Mr Swanepoel.

24. On the 30 November 1998 Mr J Mahlangu was then mandated to investigate such activities as it would appear from memorandum directed to Mr Mahlangu and referred to during evidence. On the 11 February 1999 and after consultation with the officials of the third defendant a decision was taken not to proceed with the investigation and as a result the mandate given to Mr Mahlangu as referred to above was then withdrawn. On the 29 Mary 2000 the third respondent in their letter of the 29 May 2000 and addressed to the

second defendant asked for the reopening of the enquiry. The third respondent requested that Messrs LA Hugler, JJV Kidson and Ms T Kunnemeyr be part of the investigation team. On the 22 June 2000 the second defendant confirmed that Messrs Huger and Kidson had been appointed in terms of section 28 Act 32 of 1998 to assist in the investigation. Advocate Meyer and Inspector Oosthuisten from the office of the second defendant were also appointed to assist in the investigation. The witness, Mr Bekker was appointed an overall controller of the investigation.

25. According to Mr Bekker if someone or any person was to phone their enquiry office about a particular matter or wanting someone in their office to assist on a particular matter, a clerk or receptionist at the switchboard or reception will have to establish first whether the matter was registered with them, secondly identify the person dealing with the matter, have the file be taken out and given to the person dealing with the matter. If there was any person who phoned on the 26 April 2000 in connection with this matter he would have known about it or any other member of the investigation team would have known or been told about it. As he was an overall controller of the case he would have been responsible for the giving of permission or necessary authorisation to institute criminal proceedings against the plaintiffs. If the telephone call was made to the office of the Director or National Director, he would have been consulted on the matter before any decision was taken.

26. The first time when Mr Bekker heard about the alleged undertaking made to the plaintiffs by the first defendant was when he was approached by Advocate Van Wyk. Advocate Van Wyk was

appointed in terms of sections 28 and 38 of Act 32 of 1998 to prosecute in the criminal case against the plaintiffs. Later Van Wyk took him to the office of Mr Maritz where he confirmed to Mr Maritz that their office knew nothing about the alleged undertaking by the first defendant. As it was further alleged that the discussion or agreement was apparently entered into with the National Director of Public Prosecution Mr Ngcuka, Mr Bekker together with his immediate senior went to see Mr Ngcuka and he denied any knowledge of the alleged undertaking. The first and second defendants closed their case after the evidence of Mr Bekker.

THIRD DEFENDANT'S CASE

27. The third defendant although not specifically affected by the issue raised in these proceedings called Mr Bhana to testify on behalf of the third defendant. Mr Bhana is alleged by the plaintiffs to have gone out of his office on the 26 April 2000 to phone the first or second defendants for authorisation to conclude the agreement and to give an undertaking to the plaintiffs. He denied ever having gone out of his office to make a call to the first defendant nor did he indicate to the plaintiffs or Mr Maritz that he had the authorisation to make the undertaking on behalf of the first defendant. Mr Bhana indicated that after the discussion and after Maritz had indicated that the plaintiffs wanted to know what was there for them in the event they reveal what they knew regarding the investigation, the second plaintiff for example wanted an upfront indemnity he then telephoned Ms Smith employed by the third defendant. She was in the legal division. Ms Smith contacted Mr Pillay at the offices of the commissioner for the third defendant. Mr Pillay impressed upon Mr

Bhana that no undertakings can be made to the plaintiffs. This was conveyed to Mr Maritz. Subsequent to this the plaintiffs agreed to make statements. The vital point in the statements was paragraphs 3 and 4 of the first and second plaintiffs' statements respectively. The two paragraphs similarly read as follows:

"I understand that by making this statement I am waiving the right of self­incrimination but on the basis that this statement will not be used in my criminal proceedings against me and that those hearing my statement will not be compellable witnesses in any criminal prosecution against me. A list of such persons attending the making of this statement is annexed hereto marked A. I understand that the question of an indemnity in terms of Section 204 of the Criminal Procedure Act can only arise after I have given full, frank and truthful evidence in court".

28. Mr Maritz participated and insisted on some wording of paragraphs 3 and 4 respectively. According to Mr Bhana at no stage did he pretend to Mr Maritz or plaintiffs that he was having authority to act and make undertakings on behalf of the first defendant. Mr Bhana indicated that his mandate and that of Mr Fourie SC was to do investigation on Metcash with the sole purpose of instituting civil proceedings. They never had mandate to deal with the matter for the purpose of instituting criminal proceedings. There were in the third defendant's set up specific section dealing with the criminal investigation or prosecution.

DISCUSSION AND SUBMISSIONS

29. When this matter was argued I raised the issue whether or not on the evidence tendered in particular the evidence of Maritz, Bekker and Bhana, the plaintiffs established on the balance of probability that there was an undertaking as alleged in paragraphs 7.3 and 8.3 of the plaintiffs' particulars of claim. Just to recap, paragraphs 7.3 and 8.3 deal with the alleged undertaking by the first defendant as follows:

29.1 that the first defendant undertook that no criminal prosecution would be instituted against the plaintiffs in respect of any offence relating to or arising from the transactions unless

29.1.1 a criminal prosecution was first instituted against

another person or persons in respect of an offence or offences relating to or arising from the transactions,

29.1.2 the prosecuting authority in charge of such prosecution

had called the plaintiffs as witnesses on behalf of the prosecution,

29.1.3 informed the court that the plaintiffs were witnesses as

contemplated in section 204 Act 51 of 1997 and,

29.1.4 the court in such prosecution had not discharged the

plaintiff or had not granted indemnity.

30. I further raised the issue with counsel for the plaintiffs whether of not if I was to find that Mr Bhana told Mr Maritz that he had an undertaking from the first defendant, this would be sufficient ground to make a finding that the first defendant is bound by the undertaking as alleged especially in the light of concession by Mr Bhana that he never spoke to the first defendant and that he had no authority to bind the first defendant. It appears to have been common cause that at one stage or the other during the discussion on the 26 April 2000, Mr Bhana had phoned for instructions as to how to proceed with the discussion between the representatives of the third defendant and that of the plaintiffs. The dispute however was whether or not Mr Bhana made a report as alleged by Mr Maritz or whether or not a report was made by Mr Bhana as alleged by Mr Bhana. Neither Mr Semenya on behalf of the first and second defendants nor Mr Roux on behalf of the third defendant attacked or seriously attacked the credibility of Mr Maritz. On the other hand neither Mr Le Roux nor Mr Preizes attacked the credibility of Mr Bhana. Both Mr Maritz and Mr Bhana are members of this court. Both of them had long been in practice as advocates and have distinguished themselves as men of great integrity in their respective fields of expertise. These observations were clearly displayed as they respectively gave evidence. However the disputes in this case had brought them in the firing line of having their credibility and reliability been tested under cross-examination. There is clearly a dispute of fact in this case i.e. whether or not Mr Bhana after he had made a telephone call on the 26 April 2000 made a report to those present including Mr Maritz that the first defendant had given an authorisation and undertaking as set out in paragraphs 7.3 and 8.3 of the plaintiffs' particulars of claim.

ONUS OF PROOF

31. The rule is not that a plaintiff always bears the onus. However in a matter like the present one, the onus lies on the one who alleges that an agreement existed. He or she makes positive allegations which must be proved on the balance of probabilities. Where there is factual dispute of fact or where court is confronted with two irreconcilable versions, a court is required to make findings on a credibility of factual witnesses their reliability and probability. As regard a court's finding on credibility of particular witness, this will be depended on the court's impression of veracity of witness. This in turn will depend on variety of subsidiary factors such as a witness' candour and demeanour in the witness box, his bias, latent and blatant, internal contradictions in his evidence, external contradictions with what was pleaded or put on his behalf or with established fact or with own extra curial statements or actions, probability or improbability of particular aspects of his version, calibre and cogency of his performance compared to that of other witnesses testifying about same incident or events (See Stellenbosch Farmers' Winery Groupt Ltd v Marshall et cie and others 2003 (1) SA 11 (SCA).

32. In the instant case the plaintiffs had an onus to prove on a balance of probabilities that there was an agreement alleged by the plaintiffs on their pleadings. In my view any finding that the probabilities did not favour any party would mean that the plaintiffs had failed to discharge their onus.

33. There are two contradictory versions regarding the issue whether or not Mr Bhana reported to Mr Maritz and his team that the first defendant had given an authorisation as alleged by Mr Maritz and the plaintiffs in their particulars of claim. Mr Maritz was criticised for not having caused the authorisation by telephone to be specifically included in the affidavit nor in any subsequent document or correspondence. This criticism was in my view intended to suggest that Mr Maritz may not have been telling the truth especially in the light of his professed meticulous way of explaining the essence of the alleged agreement to his clients and, his active participation in finalising the affidavit. Mr Bhana on the other hand was questioned about what would have been the need for the plaintiffs to enter into an agreement as alleged by Mr Bhana. The contention was that the only basis for the plaintiffs to have entered into the agreement and to make statements as they did was as a result of the undertaking as set out in paragraphs 3 and 4 of the affidavits amplified by Mr Maritz in his evidence. The evidence and the submission made on behalf of the plaintiffs in this regard was in my view meant to suggest that the probabilities favour the plaintiffs.

33.1 In addition to this, the plaintiffs through the word of mouth by Mr Maritz, materially not included in paragraphs 4 and 3 were that "we intend to use you as a state witness in the prosecution of other persons relating to this transaction, you will not be prosecuted directly in relation to your involvement in any of these transactions, the only circumstance under which you will be prosecuted is if you refuse to give evidence for the state in the criminal proceedings, that of course is given under section 204 because you do not get there if you refuse. Or if you are in fact called as a witness and the court at

the conclusion of the case declines to give you an indemnity, then and only then may you be prosecuted for any offences in which you were involved relating to these transactions". I intend returning to this issue later in this judgment.

34. The evidence by Mr Maritz, regarding his discussion with Mr Bhana in court, his discussion with Van Wyk and subsequently Mr Bekker coupled with the evidence by Mr De Vos was in my view intended to suggest that Mr Maritz's evidence points to one direction, that is Mr Bhana made or pretended to have had authority to conclude an agreement on behalf of and binding the first defendant. For one to come to this conclusion, one must make a finding that Mr Bhana had lied regarding his denials on these issues. Applying principles set out in Stellenbosch Farmers' Winery Group LTD's case referred to earlier in this judgment. I am required to consider the credibility and reliability of each witness. Of importance and materially relevant to the issue raised, the witnesses in this case were Messrs Maritz, Bekker and Bhana. Mr Bekker materially was corroborated by Mr Bhana to the effect that no undertakings were made by the first or second defendant. These witnesses' evidence impressively unfolded without any hesitation or contradictions. Their candour and demeanour in the witness box could not be faulted and nor perceived bias could emerge from their evidence. The same thing could be said about Mr Maritz. The criticism levelled against him, in my view could not directly taint the impression, candour and demeanour I had of him. Neither version is less or more probable than the other. This of course should immediately raise the issue whether or not the plaintiffs had discharged the onus. I am not satisfied that the plaintiffs succeeded in establishing the onus. The

probabilities in this case, does not in my view favour any particular party.

35. However even if I was to find that the probabilities favour the plaintiffs, regarding the report Mr Bhana is alleged to have made to Mr Maritz and his team, I would still find that the plaintiffs have not succeeded in establishing the onus resting on them particularly taking into account the followings:

- Mr Bhana denied having made such a report and therefore the first and or second defendant cannot be bound by such a report suggesting an undertaking by the first defendant.

- Mr Bekker confirmed that no such telephone call was made by Mr Bhana and that no permission and authorisation was obtained from the first defendant and therefore no such a report alleged to have been made by Mr Bhana could be binding on the first defendant when the first defendant was not a party to the alleged undertaking as allegedly reported by Mr Bhana to Mr Maritz and his team.

36. This denial by Mr Bhana brings me again to consider the probability surrounding the interpretation of paragraphs 4 and 3 of the plaintiffs' statements as referred to earlier in this judgment. Reference to section 204 of Act 51 of 1977 was according to counsel on behalf of the defendants intended to be what it is i.e. indemnity in terms of section 204 will only arise after the plaintiffs shall have given full, frank and truthful evidence in court. The submission as I understood it was to suggest that the only protection given by the third defendant in terms of paragraphs 4 and 3 respectively was that the statements would not be used against the plaintiffs in subsequent

criminal case against the plaintiffs and that indemnity in terms of section 204 would be given by the court once satisfied with the evidence of the plaintiffs and only in the event the plaintiffs are so called as witnesses. The question whether or not such statements could be used against the plaintiff is not for this court to decide.

Such an issue in my view would best be raised in the criminal case if and when it becomes an issue in the criminal court. I am hesitant to venture into what the true constructions of paragraphs 4 and 3 might be. Neither do I think that this is material for determination of the real issue raised by this case. The material issue being whether or not the plaintiffs established on the balance of probability, that the first defendant has given the alleged undertaking. However these different of opinions about what was intended by the parties once more raises a factual dispute and in my view the plaintiffs did not succeed in showing that the probabilities favour them

37. Lastly there was an issue which was raised during the evidence by Mr Maritz I have in brief earlier referred to this issue. Mr Maritz indicated that after the 26 April 2000 he met Mr Bhana in court. He confronted and or questioned Mr Bhana about the agreement and undertaking. Mr Bhana is alleged to have told him that he (Mr Bhana) had been told to keep away from the dispute. It was during this discussion that Mr Bhana is alleged to have confirmed that there was such an agreement or undertaking and that Mr Bhana undertook to testify in favour of the plaintiffs. All of these were denied by Mr Bhana. Again one here is confronted with two equally

PLAINTIFFS'S ATTORNEYS

destructive versions. This is factual dispute. I am unable to make adverse credibility finding against any of these witnesses.

CONCLUSION

38. I therefore conclude by finding that the plaintiffs did not succeed in proving that the first defendant made an undertaking as set out in paragraphs 7.3 and 8.3 of the particulars of claim. The action against the first and second defendants is therefore dismissed with costs.

39. The only issue before me was the one relating to the first and second defendants. Separation of issues was ordered at the beginning of the trial in this case. Parties agreed that should a finding on the issue to be determined in these proceedings be against the plaintiffs, this would bring the matter to an end. Indeed once the action against the first and second defendants is dismissed, there can be no further remedy for the plaintiffs even if they wanted to proceed with the matter against the third defendant. The third defendant has therefore in my view substantially succeeded and therefore the action against the third defendant is also dismissed with costs.

LEGODI M F

JUDGE OF THE HIGH COURT

TJAARD DU PLESSIS INC.

1^ST, 2^ND and 3^RD DEFENDANTS' ATTORNEYS THE STATE ATTORNEY