Cassel and Benedick NNO and Another v Rheeder and Cohen NNO and Another

• Jurisdiction: South Africa

Cassel and Benedick NNO and Another v Rheeder and Cohen NNO and Another
1991 (2) SA 846 (A)

1991 (2) SA p846

Citation	1991 (2) SA 846 (A)
Court	Appellate Division
Judge	Corbett CJ, E M Grosskopf JA, Smalberger JA, M T Steyn JA and Preiss AJA
Heard	March 4, 1991
Judgment	March 26, 1991

Flynote : Sleutelwoorde

Evidence — Witnesses — Credibility — Evidence against a deceased person — Cautionary rule that Court to scrutinise evidence by or on behalf of surviving party to transaction — Although there is no rule requiring corroboration of such evidence, corroboration may assist in F satisfying cautionary rule — But evidence of corroborating witnesses also to be scrutinised.

Headnote : Kopnota

It is necessary, when considering the evidence relating to a transaction where one of the parties to the transaction has since died, to apply the cautionary rule regarding evidence against a deceased person, which rule was stated as follows in Borcherds v Estate Naidoo 1955 (3) SA 78 (A) at G 79A - B: 'If the facts in issue are particularly within the knowledge of only one of the parties to a suit, that is a circumstance which the Court must take into consideration in weighing the probative effect of the evidence adduced. Here the one party to the alleged transaction of repayment is dead. The Court must therefore scrutinise with caution the evidence given by, and led on behalf of, the surviving party.' Though there is no rule which requires evidence against a deceased estate to be H corroborated, corroboration may assist in satisfying the cautionary rule. On the other hand, as pointed out in the Borcherds case supra at 79F: 'The mere fact that... three witnesses corroborate each other by giving similar evidence on the one side cannot make the three or any one of them escape the cautious scrutiny which should be applied to evidence which the other party to the suit is not in a position to answer.'

The decision in the Witwatersrand Local Division in Rheeder and Cohen NNO and Another v Cassel and Benedick NNO and Another reversed. I

Case Information

Appeal from a decision in the Witwatersrand Local Division (Levy AJ). Facts not material to this report have been omitted from the judgment of Preiss AJA.

B E Doctor SC for the appellant referred to the following authorities: J Borcherds v Estate Naidoo 1955 (3) SA 78 (A) at 79E - F; Da Mata v Otto

1991 (2) SA p847

A NO 1972 (3) SA 858 (A) at 869B - E; Randaree and Others NNO v W H Dickson & Associates and Another 1983 (2) SA 1 (A) at 6A; Director of Public Prosecutions v Hester [1972] 3 All ER 1056 (HL) at 1065e - f ; William C Leitch Brothers Ltd [1932] 2 Ch 71 at 79; Bowman NO v Sacks and Others 1986 (4) SA 459 (W) at 464G - H; Gordon NO and Rennie NO v Standard B Merchant Bank Ltd and Others 1984 (2) SA 519 (C) at 527F - 528A; Hoffa NO v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C) at 950; East of England Bank, Feltom's Executors Case (1865) LR 1 Eq 219 - 24; British Guardian Life Assurance Co (1880) 14 Ch 335; Ensor v Syfret's Trust and Executor Co (Natal) Ltd 1976 (3) SA 762 (D) at 766A - C; Dorklerk Investments (Pty) Ltd v Bhyat 1980 (1) SA 443 (W) at C 447A - E; Trautman v The Imperial Fire Insurance Co (1985) 12 SC 38 at 42; Rothschild v Lowndes 1908 TS 493 at 499 and 501; National Bank of South Africa Ltd v Cohen's Trustee 1911 AD 235 at 251; Frankfurt v Rand Tea Rooms Ltd and Sheffield 1924 WLD 253 at 257; Moola v Estate Moola 1957 (2) SA 463 (N) at 464D - E; Motala v Latib 1964 (1) SA 851 (T) at D 854G - H; Trust Bank of Africa Ltd v Standard Bank of South Africa Ltd 1968 (3) SA 166 (A) at 173E; Holzman NO and Another v Knights Engineering & Precision Works (Pty) Ltd 1979 (2) SA 784 (W) at 793C - F; Marais en Andere NNO v Ruskin NO 1985 (4) SA 659 (A) at 671E - F; Spendiff NO v J & J Distributors (Pty) Ltd 1989 (4) SA 126 (C) at 133C - 134J; Leyds NO v Noordwestelikekoöperatiewe Landboumaatskappy Bpk E en Andere 1985 (2) SA 769 (A); Rahim v Minister of Justice 1964 (4) SA 630 (A) at 634A - D; Moosa v Mahomed 1939 TPD 271 at 281; New Zealand Construction (Pty) Ltd v Carpet Craft 1976 (1) SA 345 (N) at 349C and 349H; R v Sacco 1958 (2) SA 349 (N) at 352; Shenker Brothers v Bester 1952 (3) SA 664 (A) at 670E - G; Bagus v Estate Moosa 1941 AD 62 at 71; F Gates v Gates 1939 AD 150 at 155.

C Z Cohen SC (with him M C Goldblatt) for the respondents referred to the following authorities: R v De Villiers 1944 AD 493 at 508 - 9; New Zealand Construction (Pty) Ltd v Carpet Craft 1976 (1) SA 345 (W) at 349C; R v Dhlumayo 1948 (2) SA 677 (A) at 706; African Eagle Life Assurance Co Ltd v Cainer 1980 (2) SA 234 (W) at 237 - 8; Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) at 165C - D; G National Employers' General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 439H - 441A; Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 662C - F; In re East of England Bank, Feltom's Executors Case (1865) LR 1 Eq 219 at 222 - 4; In re British Guardian Life Assurance Co (1880) 14 Ch 335 at 340 - 1; Gordon NO and H Rennie NO v Standard Merchant Bank Ltd and Others 1984 (2) SA 515 (C) at 527, 528; Dorklerk Investments (Pty) Ltd v Bhyat 1980 (1) SA 443 (W) at 447E; Joubert (ed) Law of South Africa vol 4 para 256; Gillespie v Toplis and Another 1951 (1) SA 290 (C) at 293C - D; Hoffa NO v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C) at 950G - H, 955A - 955 in fin ; Government of the Republic of South Africa v Ngubane I 1972 (2) SA 601 (A) at 608H, 609B; Bowman NO v Sachs and Others 1986 (4) SA 459 (W) at 464G - 465D; Re Maney & Sons Deluxe Service Station Ltd; Maney v Cowan 1969 NZLR 116 (CA) at 128 - 9; In re Cyona Distributors Ltd [1967] 1 Ch 889 at 902B - E; Ex parte Lebowa Development Corporation Ltd 1989 (3) SA 71 (T) at 109 - 10; Lategan and Another NNO v Boyes and J Another 1980 (4)

1991 (2) SA p848

A SA 191 (T) at 201F - 202A; Salomon v Salomon & Co [1897] AC 22; Lander v Weston 61 ER 951; Hanbury and Maudsley Modern Equity 12th ed at 611; Fisheries Development Corporation of SA Ltd v Jorgensen and Another 1980 (4) SA 156 (T) at 168E; Re Gerald Cooper Chemicals Ltd [1978] 2 All ER 49 at 53.

B Cur adv vult.

Postea (March 26).

Judgment

Preiss AJA:

Rand Broom and Brush (Pty) Ltd (the company) manufactured C brooms and brushes at its factory in Industria West, Johannesburg. Associated Brush Manufacturers (Pty) Ltd was its holding company. The late Dennis Joseph Cassel (Cassel) was a director of the subsidiary company from 3 November 1949 until his death on 3 March 1984. A fellow director was Mr A B Treisman (Treisman).

During December 1985, almost two years after Cassel's death, an action D was commenced in the Witwatersrand Local Division. It consisted of a number of claims arising out of the alleged conduct of Cassel during his administration of the company's affairs. The first plaintiff was the company itself and the holding company was the second. The executors in Cassel's deceased estate were cited as the first defendants and Cassel's widow (who was, incidentally, one of the joint executors) was cited as E the second defendant.

During July/August 1986 the company was placed into liquidation; its two liquidators, Messrs Rheeder and Cohen, were substituted for the first plaintiff. In what follows it is convenient to describe the four parties to the action as the company, the second plaintiff, the first F defendants and the second defendant, respectively, as they were in the Court a quo.

The action was heard by Levy AJ. He was faced with a series of claims. Some of them were at the suit of the...