Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Wessels JA, Corbett JA, Hofmeyr JA, Kotzé JA and Trengove AJA
• Judgment Date: 10 November 1978
• Court: Appellate Division

Wessels JA:

Appellant (plaintiff) appeals to this Court against the judgment and order of PHILIPS AJ, sitting in the Witwatersrand Local Division, dismissing with costs the action instituted by it against respondent (defendant) in which it claimed, inter alia, an order A declaring that a written agreement entered into by the parties during October 1972 was of no force or effect. It is of some importance to note that the hearing of the action only commenced during March 1977. After the conclusion of the hearing, the learned Judge a quo reserved his judgment, which was thereafter delivered on 16 May 1977.

B Although several alternative causes of action were detailed in plaintiff's particulars of claim, it appears that at the end of the trial only one of them required consideration. The substantial issue which had to be determined related to the averment that plaintiff had been induced to enter into the above-mentioned agreement by a fraudulent C misrepresentation made by Mr R B Evans, acting on defendant's behalf, to Mr M A Basserabie, acting on plaintiff's behalf, at a meeting which took place on 4 August 1972 in the office of Mr B Simler, who was defendant's attorney. Although it was averred in the particulars of claim, as D amplified by further particulars, that the misrepresentation complained of was made to Basserabie in or about "the middle of July to 1 August 1972", the evidence led on plaintiff's behalf at the trial related to a misrepresentation allegedly made on 4 August 1972 at a meeting at which there were also Messrs A I Lerner, D Oved, A Gerson and I S Levy. Basserabie, Lerner, Oved and Gerson held shares in the plaintiff company. Levy attended the meeting in his capacity as plaintiff's attorney. With E the exception of Gerson, the aforementioned persons were all called as witnesses by either the plaintiff or the defendant.

[The learned Judge analysed the evidence and continued.]

A finding of credibility based on demeanour is deserving of great weight and the resulting conclusion based thereon will ordinarily not be lightly F disturbed on appeal, unless it is apparent from the judgment of the trial Court that it failed to give due consideration to the probabilities and their effect on the credibility of the witnesses. See Germani v Herf and Another 1975 (4) SA 887 (A). In my opinion, however, it is clear from the judgment of the Court a quo that its ultimate assessment of the G credibility of the witnesses was not based solely on demeanour. It is patent from the judgment that the learned Judge a quo gave careful consideration to the probabilities and their effect on the credibility of the witnesses. It was, indeed, this approach which led the Court a quo to conclude that, notwithstanding the...