South Africa: High Courts - Gauteng

IN THE SUPREME COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

PRETORIA

1995-05-15

Case No. 6527/92

In the matter between:

O BESSERGLIK                                                                Applicant

versus

MINISTER OF TRADE AND INDUSTRIES                      Respondent

JUDGMENT (LEAVE TO APPEAL)

CURLEWIS, DJP. : In this matter Mr. Bruwer has now debated at some length the application for leave to appeal. It will be remembered there was an amended notice of appeal, and his heads of argument - he was kind enough to provide heads of argument which are in the court's file and they are before me - it will be found in the main that everything that he has debated here now he debated at considerable length and was considered when I heard the matter before giving judgment on 22 September.

I do not think there is anything that I can usefully say that I have not said in my judgment. The question of the documents I made perfectly clear is a red herring. Insofar as the general objection to the documents were concerned, I was not prepared to countenance it. It came far too late in the trial, but in effect most of the documents were not of any significance at all. There were many volumes disclosed but the documents used will be found to be the ones that Mr Besserglik himself referred to or were otherwise relevant. The query raised by plaintiff's counsel (and this was very early on) was withdrawn by him when I pointed out that the truth of the contents was not an issue. This is all on the record.

Plaintiff's Counsel while arguing this leave to appeal kept on referring to a cloud of suspicion (or to similar words). I must point out that the damage done to plaintiff's case was largely due to his own conduct in the witness box, and his evidence and that of Van der Merwe. Plaintiff was, as stated a very bad witness.

As far as the question of onus is concerned, I must point out that although the appellate division may very well find and lay down that henceforth the onus in unlawful arrest is upon the defendant to show good cause - and I do not dispute what Mr Bruwer says for a moment - that is of no assistance because plaintiff had agreed, .and it so appears from the pre-trial conference, that the onus was upon him. So it is of no consequence that the appellate division will say - if it does say so - that the plaintiff should not have accepted that onus. Certainly it will not refer the matter back and compel the defendant to reopen its case on the basis of some other type of onus. So that the grounds set out really - that is the only new ground - do not take the matter any further.

Insofar as the reserved costs are concerned it seems to me quite clear that the plaintiff should pay for these reserved costs if I refuse leave to appeal. It seems to be the fairest order.

In the result, leave to appeal  is refused, with costs, including the costs of the postponement on 81994.