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Disclaimer: This is an unofficial translation of the judgment in Barnard v Santam Bpk. (61/97) [1998] ZASCA 84; 1999 (1) SA 202 (SCA); [1998] 4 All SA 403 (A) (25 September 1998) produced for SAFLII. The original Afrikaans text takes precedence and should be cited at all times.

 

This document was compiled by SAFLII with the contribution of:

Judge Ben Griesel - Translation

 

Funding for this project was provided by OpenUCT

_______________________________________________________

 

Citation: Barnard v Santam Bpk [1998] ZASCA 84; 1999 (1) SA 202 (SCA)

Court: Appellate Division

Coram: Van Heerden ACJ, Vivier JA, Nienaber JA, Schutz JA and Scott JA

Date heard: 3 September 1998

Date delivered: 25 September 1998

JUDGMENT

Van Heerden DCJ: On 10 March 1991, the appellant’s 13-year-old son was a passenger on a bus when it was involved in a collision with a motorcar in the vicinity of Duiwelskloof. The collision was caused by the negligence of the driver of the motorcar, one Laubscher. As a result, the son sustained serious injuries and he died shortly afterwards. A few hours later, the appellant learnt that he had died. This occurred as a result of a telephone call made to her husband by a doctor at the hospital where the son had died.

Later, the appellant instituted a claim for damages in the Trans­vaal Provincial Division. The respondent (defendant in the court a quo) was sued as nominated agent in terms of the provisions of the Multi-lateral Motor Vehicle Accidents Fund Act 93 of 1989. According to the appellant’s version in the particulars of claim, the news of the death of her son had had (and still has) a devastating effect on her. More particularly, she sustained “serious nervous shock” with divergent sequelae, but it is not necessary for present purposes to furnish details thereof. She also continued to grieve for her son.

At the commencement of the trial before Swart J the parties submitted a stated case in terms of Uniform rule 33(1). In terms thereof, the court was requested, initially, only to determine two questions on the basis of acceptance of the appellant’s said version, amplified by an affidavit. In so far as may be relevant, the questions read as follows:

“12.1 whether the shock and psychic trauma suffered consequent upon being told that the plaintiff’s son had died constitutes legally recoverable damages;

12.2 whether the plaintiff’s grief over the death of her son constitutes legally recoverable damages.”

Regarding the first question, the respondent’s main contention, as formulated in the stated case, was that the appellant’s claim was not sus­tainable because (i) she had not been present at the scene of the accident, and (ii) it had not been reasonably foreseeable that she would suffer nervous shock. Primarily because of his view that the element of fore­see­ability was lacking, Swart J answered the first question in the negative. Without furnishing further reasons, he also answered the second question in favour of the respondent. Thereupon leave was granted to the appellant to appeal to this court. (The judgment of Swart J is reported as Barnard v Santam Bank Bpk 1997 (4) SA 1032 (T). The word “Bank” was errone­ously included in the name of the defendant.)

In this court counsel were in agreement that the appeal falls to be determined on the assumption that the appellant had suffered nervous shock resulting in acknowledged and significant psychiatric (or psychic) trauma. The questions whether she had indeed sustained psychic injury and, if so, the extent thereof, is accordingly not presently relevant. Should the appeal succeed, those questions would have to be determined by the trial court.

As mentioned, it must be assumed that the appellant had indeed suffered nervous shock with accompanying psychological trauma. For convenience I refer to such condition simply as nervous shock. For the sake of clarity, I should mention, however, that I do not exclude the possibility that damages may be claimed in a case where a person sustained psychological trauma not induced by nervous shock. In fact, there is much to be said for the view that “nervous shock” is not only an outmoded term that lacks psychiatric content, but that it could also be misleading and that the only relevant question was whether the claimant had sustained a detectable psychiatric injury. See Mullany and Handford, Tort Liability for Psychiatric Damage at 14–5.

A further comment is necessary. This court is not being called upon to formulate general rules setting out the circumstances in which damages could be recovered for the negligent infliction of nervous shock in our law. It is neither necessary nor desirable to do so. In the instant case, one is dealing with a situation with two particular features. First, the appellant was the mother of a son who, at the time of his death, was still in his early teens. Secondly, she was not an eye-witness of the accident; she was not with her son when he died; she did not come across his body in an institution such as a hospital or a mortuary, but only learnt of his death as a result of a telephone call. (For convenience, I shall refer to such a case as a hearsay case, and to the person who sustained nervous shock as a hearsay victim.)

There is only one decision of this court in which liability for negligent infliction of nervous shock was considered. In Bester v Commercial Union Insurance Company of SA Ltd 1973(1) SA 769 (A), two young brothers, Deon and Werner, who were eleven and six years old respectively, ran across a street. A vehicle insured in terms of the provisions of the Motor Vehicle Insurance Act 29 of 1942 collided with Werner. As a result of injuries sustained, he died later the same day. At the time of the collision Deon, who was approximately two meters ahead of Werner, had just crossed the street. Because he was imperilled by the negligent driving of the vehicle and also witnessed the collision immediately behind him, he sustained serious nervous shock.

This court held that damages were recoverable in respect of Deon’s nervous shock. The basis for the decision (per Botha JA), in so far as it may presently be relevant, may be summarised as follows:

(a) In the sphere of delictual liability, there is no reason to distinguish between nervous shock and a bodily injury. An injury to the nervous or brain system is indeed an injury of a physical organism (at 779B–C).

(b) It is not a requirement that nervous shock has to be accompanied by a physical injury (at 779 A and G).

(c) In our law, there is no reason why someone who sustained nervous shock or a psychiatric injury as a result of a negligent act of a wrongdoer should not be entitled to recover damages, provided such result would have been foreseeable by a reasonable person in the position of a wrongdoer (at 779H). (Here it should be mentioned that causation was not in dispute: 776F.)

(d) In the case before court the personal harm suffered by Deon was reasonably foreseeable, although fear for the safety of Werner and his feelings of guilt at the witnessing of the fatal collision, rather than fear for his own safety, contributed to his condition. A reasonable driver would therefore have taken steps to avoid causing such harm (at 781E–F).

I shall return at a later stage to the following passage in the judgment of Botha JA (at 781A):

“It may be that where the harm arises from nervous shock caused by the negligent act of the wrongdoer which threatens the safety injured person him- or herseslf, it may more readily be concluded that the possibility of the harm caused should have been foreseen by the wrongdoer, than in the case where nervous shock is caused by the victim witnessing the endangerment of another or being informed thereof. However, it cannot be concluded without more that in the one situation the harm caused would have been reasonably foreseeable, and not in the other.” (My emphasis)

Some authors maintain that Botha JA dealt with the requirement of foreseeability in the context of causation, and not negligence. In the light, especially, of the last sentence of (d) above, I do not think that this is correct, but from a practical point of view it makes no difference whether the one rather than the other construction is preferred.

Since Bester was decided at the end of 1972, no reported hearsay case came before our courts, save for the present case. Because of a somewhat analogous factual scenario I should, however, refer to the judgment of Cleaver J in Majiet v Santam Limited [1997] 4 All SA 555 (C). The plaintiff’s nine-year-old son died when a vehicle ran him over in a street. Shortly afterwards, the plaintiff came across his body in the street. This resulted in her sustaining nervous shock. Cleaver J held that she was entitled to recover damages. With regard to foreseeability he held (at 568h–i):

“. . . I conclude that it was reasonably foreseeable to the driver of the insured vehicle that a parent of a child knocked down by the vehicle in a residential suburb would come upon the aftermath of the accident and in the result would suffer emotional trauma or depression of sufficient severity to have a substantial effect on the well-being of the parent.”

The court a quo referred to a number of English decisions. I am not aware of any decision of the House of Lords or the Court of Appeal where a hearsay victim was successful or where it was indicated that he or she can in certain circumstances recover damages. On the contrary, in McLoughlin v O’Brian [1982] UKHL 3; [1982] 2 All ER 298 (HL) 305c Lord Wilberforce said:

“ . . . (T)here is no case in which the law has compensated shock brought about by communication by a third party. In Hambrook v Stokes Bros [1925] 1 KB 141, [1924] All ER Rep 110, indeed, it was said that liability would not arise in such a case, and this is surely right. It was so decided in Abramzik v Brenner (1967) 65 DLR (2d) 651. The shock must come through sight or hearing of the event or of its immediate aftermath.”

In Alcock and others v Chief Constable of the South Yorkshire Police [1991] UKHL 5; [1991] 4 All ER 907 (HL) 915b, Lord Keith of Kinkel referred with apparent approval to the above dictum, and in the same case Lord Ackner said (at 917f–g):

“Even where the nervous shock and the subsequent psychiatric illness caused by it could both have been reasonably foreseen, it has been generally accepted that damages for merely being informed of, or reading, or hearing about the accident are not recoverable. In Bourhill v Young [1942] UKHL 5; [1942] 2 All ER 396 at 402, [1943] AC 92 at 103 Lord Macmillan only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact’. Certainly Brennan J in his judgment in Jaensch’s case [1984] HCA 52; 54 ALR 417 at 430 recognised that ‘A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential’.”

It should be emphasised that according to Lord Ackner a hearsay victim cannot recover damages, even if the causing of nervous shock was reasonably foreseeable. I shall presently return to this aspect.

It would appear that the hearsay victim did not enjoy a happier fate in Canadian law. See Abramzik v Brenner (1967) 65 DLR (2d) 651 which is referred to by Mullany and Handford, op cit p 154. At the other end of the globe, however, the victim did recently encounter a more sympathetic ear. I refer to the minority judgment of Kirby P in Coates and another v Govemment Insurance Office of New South Wales (1995) 36 NSWLR 1, which came before the Supreme Court of New South Wales (Court of Appeal). (The judgment of Kirby P was, with regard to the aspect under discussion, not in conflict with the majority judgment.) The father of two minor children died as a result of a collision caused by the negligence of the insured driver. Neither of the children were near the scene of the accident. They also did not observe the body of their deceased father. They were only informed afterwards of his death. They nevertheless instituted a claim for damages against the insurer of the vehicle. This action was based on the allegation that they suffered nervous shock when they learnt of the death of their father. The majority of the court held that they had not proved this allegation. Kirby P held, however, that the children had ideed discharged the onus and that they were entitled to damages, despite the fact that it was a hearsay case. In particular, he was of the view that the nervous shock sustained by the children had been reasonably foreseeable, and that there were no considerations of public policy that stood in the way of an award of damages.

(According to Mullany in 1996 (4) Tort Law Review 96 the judgment of Kirby P was followed by a district court in Quayle v State of NSW (1995) Aust Torts Reports 81.)

I may mention in passing that German law also does not exclude a hearsay claim in all cases. See Markesinis, A Comparative Introduction to the German Law of Torts, third edition, pp 118 et seq.

The question arises why English law adopts such an inexorable attitude towards a hearsay victim. In my attempt to answer this question, I restrict myself, for convenience, to collision cases. Originally it was a requirement that a claimant who sued a defendant for causing nervous shock had to be present at the scene of the accident and had to have experienced that which gave rise to the shock with his own senses. Later, however, the “aftermath” doctrine developed. Leaving aside requirements regarding foreseeability and relationship (congeniality), it was regarded as sufficient if such a claimant sustained nervous shock as a result of witnessing the accident or its immediate sequel. See Mullany and Handford, op cit at 136 et seq. The application of this doctrine may be explained as follows. A man is seriously injured in an accident and is taken to hospital. Within an hour or so, his wife encounters him in hospital in a critical condition where he is writhing with pain. As a result of this observation she sustains nervous shock. In such a situation there is then direct observation of the immediate aftermath of the accident (cf McLoughlin v O'Brian supra).

In the case of a hearsay victim, there is obviously no similar observation. The shock is after all caused by the hearing of the report, and nothing else. That the denial of an action to such a victim is not based merely on a lack of foreseeability appears inter alia from the passage in the judgment of Lord Ackner in the Alcock case quoted above. The true reason for such denial, as it appears to me, is to be found in the following explanation by Lord Wilberforce in McLoughlin v O’Brian supra at 303g:

“Foreseeability, which involves a hypothetical person, looking with hindsight at an event which has occurred, is a formula adopted by English law, not merely for defining, but also for limiting the persons to whom duty may be owed, and the consequences for which an actor may be held responsible. It is not merely an issue of fact to be left to be found as such. When it is said to result in a duty of care being owed to a person or a class, the statement that there is a ‘duty of care’ denotes a conclusion into the forming of which considerations of policy have entered. That forseeability does not of itself, and automatically, lead to a duty of care is, I think, clear.”

Thus, even if the infliction of nervous shock was foreseeable, it must still be determined whether a “duty of care” existed vis-à-vis the victim. If not, the delictual act was not unlawful vis-à-vis such person. And in answering the question whether a “duty of care” existed, consider­ations of policy arise. As I see it, it is primarily such considerations which according to English law weigh against liability of a wrongdoer vis-à-vis a hearsay victim.

The current state of English law regarding recoverability of damages by a person who suffered nervous shock (or other psychiatric injury) elicited harsh criticism. Recently, Teff, “Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries” (1998) CLJ 91 at 94, said:

“Unquestionably the prevailing liability rules are a source of embarrasment. There is ample reason to support Stapleton’s claim that liability for nervous shock is where ‘the silliest rules now exist’”.

And in the Alcock case at 926a–d Lord Oliver of Aylmerton was of the view that the exclusion of a hearsay victim was not logically justifiable.

After the foregoing survey of foreign law, I revert to the judgment of the court a quo. Swart J held that the nervous shock sustained by the appellant was not reasonably foreseeable and accordingly that Laubscher had not acted negligently vis-á-vis the appellant. It appears, however, that his view of the concept reasonable foreseeability involves elements that do not belong there. Thus, he stated (at 1069E–F) that policy consider­ations should play a role “in the question whether the foreseeability which is being investigated is reasonable”.

It is settled law that someone acts negligently if he fails to take steps to avoid a harmful result, and if a reasonable person in his place would have done so. In order to determine whether such person would have taken precautionary steps, the first question is whether he would have foreseen the reasonable possibility that the particular act may cause harm to another. I shall revert below to the meaning of the concept “reasonable possibility”. Suffice it for present purposes to state that in evaluating the reasonableness of a possibility, policy considerations play no role.

It appears nonetheless that Swart J, even without taking such considerations into account, was of the opinion that the nervous shock sustained by the appellant was not reasonably foreseeable. He described that result as extraordinary because of the appellant was not involved in the accident or its aftermath (at 1070E). He thereupon posed the follow­ing questions (at 1070H–J):

“Can it be expected of the reasonable motorist to foresee that apart from the physical damage on the scene that naturally arises from his negligent driving, someone in the position of the appellant may also be injured, even if only psychologically? If so, should it not be expected at the same time that it can happen to the grandparents of the child or to the parents of someone in the position of the plaintiff due to the harm suffered by their daughter? If something like that were foreseeable, would the reasonable man have taken steps to avoid it and, if so, what steps?’

His answers were that the appellant’s harm was not foreseeable as a reasonable possibility and that, even if it were, no steps to avoid it would or could have been taken by a reasonable person in the position of Laubscher (at 1071H).

It is appropriate first to say something about the alternative finding. As mentioned earlier, the collision was caused by Laubscher’s negligence. A reasonable person in his position could therefore have averted the collision and its consequences merely by driving carefully. If that had happened, the accident would not have happened; the appellant’s son would not have died, and she would not have suffered nervous shock. There is thus no question of any further steps (apart, that is, from the avoidance of the collision) that would or could have been taken by the reasonable driver to prevent the occurrence of the nervous shock suffered by appellant. (Cf Neethling’s discussion of the judgment of the trial court in 1998 THRHR 335, 340.)

As far as the primary finding of Swart J is concerned, it may readily be conceded that psychic shock was rare in hearsay cases such as the present and that it may even be described as an extraordinary case. However, appraisal of negligence did not necessarily require of the reasonable man that he assign a statistically significant likelihood to a given outcome (cf Van der Walt, Delict: Principles and Cases at 77). This is so because there is an interaction between the elements of fore­see­ability and preventability. That is why Centlivers JA in Joffe & Co Ltd v Hoskins; Joffe & Co Ltd v Bonamour NO 1941 AD 431, 451 said that the phrase “likelihood of harm” refers to “a possibility of harm to another against the happening of which a reasonable man would take precautions.”

Obviously the decision of a reasonable person whether or not to take precautions would be influenced, inter alia, by the degree of the chance that a certain result will follow failing precautions (cf Herschel v Mrupe 1954 (3) SA 464 (A) 477B–C per Schreiner JA). The mere fact that such a result occurs only rarely does not, however, mean that it is not foreseeable as a reasonable possibility. In The Council of the Shire of Wyong v Shirt and Others [1980] HCA 12; 146 CLR 40 (HC of A) at 47 this line of thought was articulated as follows by Mason J:

“A risk of injury which is quite unlikely to occur . . . may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.”

See also Koufos v C Czamikow Ltd [1969] 1 AC 350 (HL) 385G–386A ([1967] 3 All ER 686), and Page v Smith [1995] UKHL 7; [1995] 2 All ER 736 (HL) ([1995] WLR 644) per Lord Ackner.

As mentioned earlier, Botha JA in Bester at 781A did not exclude the reasonable foreseeability of causing nervous shock in a hearsay case. In so doing, he by implication questioned the correctness of the decision in Waring & Gillow Ltd v Sherborne 1904 TS 340. In that case, it was held that a plaintiff who sustained nervous shock as a result of the communication that her husband had died could not recover damages in respect thereof. According to Botha JA (at 778C of Bester) the decision was based on the remoteness or unforeseeability of the harm.

In the light of the foregoing, it must now be considered whether the nervous shock suffered by the appellant in this case was foreseeable as a reasonable possibility. In answering this question, it has to be borne in mind that a reasonable driver in the position of Laubscher could have avoided the above result simply by not driving incautiously.

The respondent’s counsel submitted that sustaining nervous shock was reasonably foreseeable only where it arises from direct observation of the event in question or its immediate aftermath. He accordingly relied on the requirements in English law mentioned earlier, but which are not based on foreseeability or the absence thereof. While it may be conceded that the likelihood of sustaining nervous shock in the above type of situation is substantially higher than in a hearsay case, the likelihood in the latter type of case was not so insignificant that a reasonable man would not have considered preventive action. To be more specific, I am of the view that the nervous shock suffered by appellant in this case would have been foreseen as a reasonable possibility by the diligens pater­familias in the position of Laubscher.

On analogous facts, Kirby P in Coates held a similar view. He said (at 10 D):

“ . . . it is clearly foreseeable that, the young, loving children, at least, of a particular person seriously injured or killed will shortly be informed of the injuries or death and may, in certain cases, then suffer such a serious instance of ‘nervous shock’ as to warrant holding the tortfeasor liable. Damage to such persons is certainly foreseeable in the ordinary course of human experience. In some cases that damage may take the form of nervous shock.”

As seen above, Swart J posed the question, if psychological harm to someone in the position of the appellant was reasonably foreseeable, the same could not be said regarding nervous shock sustained by a deceased child’s grandparent in a hearsay case. Only two observations are necessary. First, the closer the relationship between the primary victim and the traumatised person, the more reasonable the inference that shock was reasonably foreseeable. Secondly, in the present case we only have to deal with the very intimate relationship that naturally exists between a mother and her young child.

My conclusion that it was reasonably foreseeable that the appellant may sustain nervous shock does not however, without more, mean that the appeal should succeed. A further question is whether Laubscher’s negligence was also the legal cause of that shock. It is hardly necessary to reiterate that factual causation is not always sufficient also to be regarded as the legal cause of the result in question. In this regard, it was stated in S v Mokgethi 1990 (1) SA 32 (A) at 40E that in determining legal causation policy considerations come into play and that caution should be exercised that a wrongdoer’s liability does not exceed the bounds of reasonableness, fairness and justice. Such considerations do not differ materially from those employed in English law in answering the question whether, also with regard to nervous shock, the wrongdoer had a “duty of care” vis-à-vis the injured party.

A consideration that is frequently advanced is that the recognition of liability in, inter alia, hearsay cases would give rise to a flood of claims. Allied to this, it is contended, as was done in the court a quo (at 1071H–1072C), that caution should be exercised not to increase the burden on offenders to a potentially intolerable extent. In this vein, Navsa J said the following in Clinton-Parker v Amdinistrator, Transvaal; Dawkins v Administrator, Transvaal 1996 (2) SA 37 (W) at 63B–D:

“Accident cases present particular policy problems. The floodgates will open if claims for nervous shock are not contained within manageable limits. An infinite number of people could claim for nervous shock upon viewing an accident and its consequences. So too with relatives or friends to whom an accident and its consequences are communicated. The number of deaths and severe physical injuries that occur in modern life due to motor vehicle and other accidents is great. The Courts may well, in adopting too liberal an approach to these situations and allowing bystanders and relatives to the umpteenth degree to claim damages, cripple economic activity.”

I agree with Navsa J’s underlying premise, that it would be unreasonable and unfair to tie liability for nervous shock simply to a finding of negligence in all cases. However, I am of the view that fears of limitless liability are nevertheless exaggerated. After all, in the quarter-century since Bester’s case was decided, there have only been a handful of reported cases in which damages were claimed for the negligent causation of nervous shock. And there is little reason to believe that this situation would change significantly if the instant appeal succeeded. Here it should be stressed again that sustaining nervous shock in a hearsay situation is something that occurs rarely.

It is significant, in this context, to have regard to information con­tained in a report by the English Law Commission, published in March this year. It is entitled “Liability for Psychiatric Injury” and in para 6.14 (at p 87) the following appears:

“In New South Wales, the Australian Capital Territory and the Northern Territory legislative provisions permit the spouse (defined in New South Wales to include a de facto spouse) or parent (defined to include stepparent, grandparent and persons in loco parentis) of a person killed, injured or put in peril by the defendant’s wrongful act to recover damages for mental or nervous shock suffered as a result, regardless of whether they saw or heard the accident. . . . Rather than fïnding that this legislation has resulted in a flood of claims, it has come to be regarded as unduly restrictive.”

A second argument that is advanced in favour of limitation of liability is that, in the absence of such limitation, it could give rise to simulated claims. There are a number of answers to this argument. First, a person who alleged that he sustained nervous shock as a result of direct observation of, say, the death of a close relative could also institute a fraudulent claim or could deliberately exaggerate the extent of the shock. Secondly, a plaintiff has to prove that he suffered recognised psycho­logical harm and would as a rule have to rely on supporting psychiatric evidence. Thirdly, it is not unheard of that in a case of purely physical injury, a plaintiff simulates a consequence thereof, either wholly or in part.

Contrary to the submissions by counsel for the respondent, I am of the view that insufficient policy considerations exist in our law for the exclusion of liability for nervous shock in all hearsay cases. As appears from the foregoing, a different view is held in English law, particularly the House of Lords, but it is significant that in para 11 at p 123 of the above report of the Law Commission the following is proposed:

“There should be legislation laying down that a plaintiff, who sufïers a reasonably foreseeable recognisable psychiatric illness as a result of the death, injury or imperilment of a person with whom he or she has a close tie of love and affection, should be entitled to recover damages from the negligent defendant in respect of that illness, regardless of the plaintiff s closeness (in time and space) to the accident or its aftermath or the means by which the plaintiff learns of it.”

The question whether an act should be regarded as the legal cause of a given result was a question that had to be decided in the light of the facts of the case at hand. It therefore needs to be re-emphasised that in the instant case we are dealing with nervous shock sustained by a mother relatively shortly after the death of her young son when she heard of it. In my view, policy considerations, and in particular considerations of reasonableness and fairness, do not militate against the conclusion that Laubscher’s negligence was the legal cause of appellant’s shock. What would be the position in hearsay cases of a different nature is not relevant for present purposes.

It is not necessary to say much about the second question formulated in the stated case. The appellant’s “grief” for her son mentioned in that question was clearly not a psychiatric injury, otherwise the question of law formulated in relation thereto would have been tautological. It accordingly has to be accepted that the parties had only emotional grief in mind. The appellant’s counsel correctly conceded that no damages could be recoverable in respect of such grief.

Because the respondent’s potential liability in respect of the appellant’s psychiatric injuries was by far the most important issue at the trial in the court a quo, counsel were agreed that if the first question had to be answered in the affirmative, the appellant would be entitled to the costs of proceedings in that court.

The following orders are accordingly issued:

(1) The appeal is upheld with costs.

(2) The order of the trial court is replaced with the following:

(a) The first question in the stated case is answered in the affirmative and the second in the negative.

(b) The trial is postponed sine die.

(c) The defendant is ordered to pay the costs occasioned by preparation and the hearing of the stated case.

 

HJO VAN HEERDEN
Deputy Chief Justice

 

Vivier JA, Nienaber JA, Schutz JA and Scott JA concurred.

_______________________________________________________

Disclaimer: This is an unofficial translation of the judgment in Barnard v Santam Bpk. (61/97) [1998] ZASCA 84; 1999 (1) SA 202 (SCA); [1998] 4 All SA 403 (A) (25 September 1998) produced for SAFLII. The original Afrikaans text takes precedence and should be cited at all times.

This document was compiled by SAFLII with the contribution of:

Judge Ben Griesel - Translation

Funding for this project was provided by OpenUCT

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