Caldwell v Chelcourt Ltd

• Jurisdiction: South Africa
• Judge: Fannin J
• Judgment Date: 26 October 1964
• Citation: 1965 (1) SA 304 (N)
• Hearing Date: 26 October 1964
• Court: Natal Provincial Division

Fannin, J.:

In this matter the applicant, who is the plaintiff in an action brought by her against the respondent for damages, asks for the F appointment of a commissioner to receive and record certain evidence which she avers is essential to her case.

She commenced the application with a document which is headed with the word 'affidavit' and which appears to have been signed by a person having the same name as the plaintiff on 13th February, 1964, before one G Sylvester Lynagh, said to be a notary public in the State of New York. That document commences with the words:

'I, Christine Caldwell of 221 East 23rd Street, New York, United States of America, spinster, hereby make oath and say . . .'

At the end of this document there appear the following words:

'I certify that on the 13th day of February, 1964, appeared before me Christine Caldwell and signed this affidavit.'

H Under that is a signature 'Sylvester Lynagh.'

The statement that Christine Caldwell appeared and signed the affidavit is written in handwriting and underneath the signature is a rubber stamp containing the description: 'Notary Public, State of New York', and certain other words. The original document was obviously prepared for the applicant (probably, one imagines, by her attorneys here), and on the last page after the prayer, appear the words: 'I certify, etc.' Those are typed. Underneath that, the following words have been written in ink:

Fannin J

'That of this date 13th February, 1964, these are the true facts of this case. Sincerely, Christine Caldwell.'

Upon service of the notice of motion in this document the respondent filed an affidavit in which, in limine, were taken the following objections:

'7. In limine, I complain that the document which the applicant has A signed and filed in the guise of an affidavit is not such, because it does not appear, ex facie the copy thereof served upon the respondent, that:

(a)

any oath as to the truth of its contents was ever administered to or taken by the applicant;

(b)

whoever may conceivably have administered any such oath was B qualified to do so;

(c)

the document contains any admissible evidence at all.'

Subsequent to that the applicant filed a further document which is headed 'replying affidavit' and starts with the words:

'I, the undersigned, Christine Caldwell, do hereby make oath and say:'

That document, which also appears to have been prepared for the applicant, ends with an incomplete para. 8, to which have been added C some words, presumably by the applicant. Underneath that appears the signature 'Christine Caldwell' on a dotted line and below that the following certificate:

'The deponent, Christine Caldwell, of whose identity I have satisfied myself, has acknowledged that she knows and understands the contents of this affidavit which was signed by her at New York on this 15th day of D October, 1964, before me P. A. Grobbelaar consul of South Africa in New York.'

Then appears the signature, presumably 'P. A. Grobbelaar', and underneath it the words:

'Authorised by sec. 8 bis of Act 16 of 1914 as...