Black v Joffe

• Jurisdiction: South Africa
• Judge: Traverso DJP and Dlodlo J
• Judgment Date: 26 October 2006
• Citation: 2007 (3) SA 171 (C)
• Docket Number: A966/2005
• Hearing Date: 10 March 2006
• Counsel: R J Tee for the appellant. P Tredoux for the respondent.
• Court: Cape Provincial Division

Dlodlo J:

Introduction

[1] The crisp issue for decision in this matter is whether a witness who, without having been suborned to do so, deliberately testifies falsely, incurs delictual liability to the unsuccessful litigant. The matter emanated from the magistrates' court and has indeed a G certain history. On appeal before us, Mr R J Tee and Mr Paul Tredoux appeared for the appellant and the respondent, respectively.

Factual background

[2] During 1992 the respondent purchased a dwelling house from a Mr Conlin in terms of a written agreement of sale which contained the H usual 'voetstoots' clause. Prior to the conclusion of the aforementioned sale, Mr Conlin had caused certain building works to be done on the property. That entailed the construction of a retaining wall and the placement of a deck. This retaining wall and deck were to have been constructed in compliance with certain approved building I plans, particularly the following:

(i)

as is the usual practice, the City Council caused Mr Conlin to appoint an engineer to oversee the work and to ensure that the approved building plans were adhered to; J

Dlodlo J

(ii)

the engineer was to have issued a completion certificate in order to certify that the works were properly done. A

[3] Mr Conlin appointed Mr Richard Eagen as the engineer, but Mr Eagen was never summoned to the site by either Mr Conlin (who was an owner builder) or the appellant (who was Mr Conlin's builder). At the time of the conclusion of the agreement, the respondent was not aware: B

(i)

that the works did not comply with the approved plans; and

(ii)

that a completion certificate had not been issued.

Upon the expiration of some months after the respondent had taken transfer of the property, the City Council drew to the respondent's attention the fact that there was no completion certificate in respect of the works and the respondent C unsuccessfully attempted to obtain the said certificate from Mr Conlin. Mr Eagen attended at the premises and indicated his preparedness to issue the necessary completion certificate provided that he was satisfied that the work had been performed in accordance with the approved plans. For this purpose two exploratory holes were dug in the D retaining wall, but these revealed that the wall constructed did not comply with the approved plans. In fact, the deviations from the approved plans were so gross that an entirely different wall, unsuitable for the purpose of serving as a retaining wall, had been built. This necessitated extensive remedial work. E

Issues in the magistrates' court action

[4] The respondent instituted an action against Mr Conlin based on the above factual scenario. Mr Conlin, however, relied on the 'voetstoots' clause. In response thereto, the respondent relied on the rule in Van der Merwe v Meades 1991 (2) SA 1 (A), which is to the effect that a party cannot rely on a 'voetstoots' F clause where there has been a deliberate concealment or non-disclosure.

[5] Mr Conlin testified at the trial and denied having any knowledge of any deviations from the plans save in respect of one minor aspect, namely the recession of the foundations to accommodate a planter (that is, a seedbox). The appellant was called as a witness by G Mr Conlin, and he, in essence, corroborated Mr Conlin's version. The following aspects of the appellant's testimony deserve mentioning:

(i)

engineers always go overboard when designing retaining walls and they include in the design specifications (a number of elements) which are unnecessary; H

(ii)

the appellant had taken it upon himself to deviate from the approved plans and he had not informed Mr Conlin of this as it was 'unnecessary';

(iii)

Mr Conlin and the appellant had not decided to alter the specifications; Mr Conlin had not instructed the appellant to vary the I thickness of the concrete infill;

(iv)

it was his (appellant's) duty as the builder to ensure that the consulting engineer was apprised of the fact that the works had commenced, and he (appellant) had simply failed to notify the engineer thereof and this was his fault. J

Dlodlo J

[6] The magistrate in deciding the matter rejected Mr Conlin's version and held that he must have been aware of the deviations from A the approved plans and accordingly found for the respondent. Mr Conlin, however, took the matter on appeal. The appeal was heard by Con- radie J and Blignault J. The judgment of the appeal Court was written by Blignault J. The learned Judge noted that it was an 'important factor' that Black's testimony corroborated that of Mr Conlin. The result was that the appeal was upheld. B

[7] Consequent to losing the appeal, the respondent suffered damages, namely:

(i)

the quantum he had claimed in respect of remedial work undertaken; C

(ii)

his own costs in respect of the magistrates' court action;

(iii)

Mr Conlin's costs in respect of the magistrates' court action;

(iv)

his own costs in respect of the High Court appeal;

(v)

Mr Conlin's costs in respect of the High Court appeal.

The issues in the second action D

[8] Upon losing the appeal as foresaid, the respondent instituted an action against the appellant in which he claimed damages from the latter. The present appeal concerns the judgment which is at issue in these proceedings. The respondent initially relied on the E appellant's deliberate deviations from the approved building plans. The appellant responded by filing a special plea and a plea over on the merits. The special plea raised the question of prescription. It is not necessary to canvass the special plea for purposes of this appeal. The plea over contained an averment to the effect that the appellant had been instructed by Mr Conlin to deviate from the approved plans. This directly contradicted the testimony which the appellant had given under F oath in the first magistrates' court action. This moved the respondent to amend his particulars of claim. In terms of the amended particulars of claim, the respondent claimed the damages which had flowed from the false testimony that Mr Black had given. The magistrate observed in his judgment that: G

'This is an unprecedented claim in our law and I must first decide if plaintiff has a cause of action.'

Of note is the following finding by the magistrate:

'The gravamen of plaintiff's complaint is that defendant deliberately lied in the magistrate's court case, not H that he was mistaken, confused, careless, unable to recall or otherwise subject to the normal problems associated with witnesses. I cannot see any grounds for not holding a person liable for a deliberate action which causes another loss. It will surely not be against public policy, not open the floodgates of litigation, nor tend to discourage persons from testifying, if only deliberate misstatements are targeted.' I

[9] It would appear that the aforesaid finding by the court a quo was not appealed against and is not the subject-matter in this appeal. It needs to be mentioned that the aforementioned finding by the court a quo found justification on Mr Eagen's testimony as well. The latter had testified that the departure from his specifications were material and must have J

Dlodlo J

been deliberate. Before embarking on the vexed question in issue in the instant matter, A I consider it prudent to refer to what obtains in other countries.

A comparative survey of developments in foreign jurisdictions

English courts B

[10] It is said in English law that 'an action will not lie against a witness for giving false evidence in a court of justice'. (Revis v Smith (1856) 18 CB 126 at 144.) Effectively then

'No action lies, whether against Judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or tribunal recognised by law. The evidence of all C witnesses or parties speaking with reference to the matter before the court is privileged, oral or written, relevant or irrelevant, malicious or not.'

(Halsbury 4 ed vol 28 at para 98.)

'Thus no civil action lies against a witness for perjury at the suit of the person damnified by the false evidence. This immunity is immunity from any form of civil action.' D

(Clerk and Lindsell on Torts 18 ed (2000).)

[11] This general immunity from civil liability attaches 'to all persons in respect of their participation in proceedings before a court of justice, Judges, court officials, witnesses, parties, counsel and solicitors alike'. E

'Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement which in many cases is perjured, and which is malicious and affects the character of another? The rule of law exists not because the conduct of those persons ought not to be actionable, but because if their conduct was actionable, actions would be brought against judges F and witnesses in cases, where they had not spoken with malice, in which they had not spoken with falsehood.'

(Munster v Lamb (1883) 11 QBD 588 at 607.)

[12] The immunity of a witness from suit in respect of evidence given in court was described by Simon Brown LJ in Silcott v Commissioner of Police for the Metropolis (1996) 8 Admin Law 633 F at 636, as a fundamental rule of law. The origins of the rule were traced in the judgment of Kelly CB in Dawkins v Lord Rokeby (1873) LR 8 QB at 263 - 265 where the following appears:

'(U)pon all these authorities it may now be taken to be settled law that no action lies against a witness upon any evidence given before any court or tribunal constituted according to law.' H

The basis of immunity in respect of evidence given in court was explained by Lord Halsbury in Watson v M'Ewan; Watson v Jones [1905] AC 480 at 486:

'(T)he conduct...