Gordon Lloyd Page & Associates v Rivera and Another

• Jurisdiction: South Africa
• Judge: Smalberger JA, Harms JA, Olivier JA, Melunsky AJA, Farlam AJA
• Judgment Date: 31 August 2000
• Docket Number: 384/98
• Hearing Date: 16 August 2000
• Counsel: L R G Serrurier SC (with him D N Unterhalter and R M Robinson) for the appellant. M S M Brassey SC (with him D B Spitz) for the respondents.
• Court: Supreme Court of Appeal

Harms JA:

[1] The appellant, a partnership, claimed payment of damages from the respondents because of an alleged unlawful appropriation D of the appellant's confidential information. At the close of the appellant's case relating to the merits of its claim, the Court below (Wunsh J in the Witwatersrand Local Division) granted absolution from the instance with costs. It is against that order that the appellant, with the leave of the Chief Justice, appeals. E

[2] The test for absolution to be applied by a trial court at the end of a plaintiff's case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G - H in these terms:

'. . . (W)hen absolution from the instance is sought at the close of plaintiff's case, the test to be applied is not whether the F evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).)' G

This implies that a plaintiff has to make out a prima facie case - in the sense that there is evidence relating to all the elements of the claim - to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G - 38A; Schmidt Bewysreg 4th ed at 91 - 2). As far as inferences from H the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is 'evidence upon which a reasonable man might find for the plaintiff' (Gascoyne (loc cit)) - a test which had its origin in jury trials when the I 'reasonable man' was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another 'reasonable' person or court. Having said this, absolution at the end of J

Harms JA

a plaintiff's case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court A should order it in the interests of justice. Although Wunsh J was conscious of the correct test, I am not convinced that he always applied it correctly although, as will appear, his final conclusion was correct.

[3] When Johannesburg was relatively younger, the Carmelite nuns B established a convent on the outskirts of town along Rivonia Road in what is now known as Sandton. Township creep created the potential for the property as a prime business site and made it less attractive as a convent. The appellant, a property developer and project manager with no financial backing, realised the potential of the property. When the Carmelite nuns decided to put the property out on bid during 1992, the C appellant submitted one in the name of one shell company for R13,5 m and in that of another for R17m, in the latter case subject to certain conditions. The first bid was successful. In order to pay, the offeror company required financial backing. For this purpose the appellant put together a team of experts or consultants consisting of architects, town planners, quantity surveyors, retail property brokers, engineers D and traffic consultants to prepare a preliminary feasibility study which would have enabled it to convince one or other property developer or investor to invest in the scheme. The involvement of the consultants was on a purely speculative basis and they were not entitled to any remuneration from the appellant and had to bear their own expenses. E

[4] Acting on the assumption that the property had been sold, the order evacuated the convent. However, in spite of a great deal of effort, the appellant was unable to obtain the necessary backing and the sale was cancelled notwithstanding a number of artificial hurdles placed in the way of the Church by the appellant, well knowing that the Church could not recover any damages from an empty shell. Having formed F a kind of attachment to the property, the appellant persisted in its efforts to interest others in it, sometimes even representing that it had exclusive rights to the property, which it did not have. Its experts - at least one being under the impression that the appellant had such rights - were called upon to prepare plans...