MV Banglar Mookh Owners of MV Banglar Mookh v Transnet Ltd

• Jurisdiction: South Africa
• Citation: 2012 (4) SA 300 (SCA)

MV Banglar Mookh
Owners of MV Banglar Mookh v Transnet Ltd
2012 (4) SA 300 (SCA)

2012 (4) SA p300

Citation	2012 (4) SA 300 (SCA)
Case No	842/2011; [2012] ZASCA 57
Court	Supreme Court of Appeal
Judge	Farlam JA, Cachalia JA, Tshqi JA, Wallis JA and Plasket AJA
Heard	February 12, 2012
Judgment	March 30, 2012
Counsel	RWF MacWilliam SC for the appellant.; M Wragge SC for the respondent.

Flynote : Sleutelwoorde G

H Evidence — Expert evidence — Evaluation — Expert evidence as to cause of occurrence — Unsafe to rely unduly on demeanour instead of inherent probabilities — Expert evidence reconstructing incident only reliable where underlying facts on which reconstruction based established.

Practice — Pleadings — Striking out — Abuse of process — Court's power to strike out pleadings to be exercised only where fraud or dishonesty of I party prevented fair trial — Only in extreme cases against defendant or where trial had already run its course — Court refusing to strike out defence where defendant's negligent failure to preserve certain records did not result in unfair trail.

Headnote : Kopnota

The Western Cape High Court had dismissed the appellant owners' claim J against Transnet for damages sustained when their ship, which was at the

2012 (4) SA p301

time being piloted by one of Transnet's employees, collided with a dock A wall. The owners contended that the collision was the result of gross negligence on the part of the pilot. The high court, faced with two conflicting versions of the event that led to the collision — that of the master of the ship (testifying on behalf of the owners), and that of the pilot (testifying on behalf of Transnet) — relied on demeanour to reject the pilot's B version as unsatisfactory. The high court, while accepting the master's version of events, held that since the pilot had, on the evidence (which included a reconstruction of events by an expert witness called by the owners), been merely negligent but not grossly so, it was constrained by s 10(7) of the Legal Succession to the South African Transport Services Act 9 of 1989 to find in favour of Transnet. In an appeal to the SCA the owners argued that the high court should have found the pilot to have been grossly C negligent and that it should in any event have struck out Transnet's defence on the ground that it had failed to preserve the relevant vessel tracking system (VTS) records despite its undertaking to do so.

Held: The high court had misdirected itself when it found that the master's version had to be preferred to that of the pilot. In particular, it mistakenly D disregarded contemporaneous statements made by both the pilot and the master, which tended to exonerate the pilot. In rejecting the pilot's version the high court set great store on his demeanour in the witness box instead of concentrating on the inherent probabilities, which would have required the court to subject the master's version to the same close scrutiny as that of the pilot. In addition, expert evidence reconstructing an incident was E reliable only if the facts on which it was based had been properly established, and in the instant case a number of facts pointed to a potentially imperfect foundation for the assumptions made in the reconstruction. These and certain other misdirections in the high court's approach to the evidence left the SCA at large to decide the matter afresh on the record, from which it was clear that the pilot's version was supported by most of the probabilities and should not have been rejected. As to F the missing VTS records: a court's power to strike out a defence will be exercised only in extreme cases once the trial has run its course, and then only if a fair trial was prevented by the absence of the records. Here this was not the case: although the records might have added greater certainty to the underlying facts on which the experts based their evidence, they would not necessarily have shown that the owners should have succeeded. Since the G loss of the records had in addition been due to negligence and not dishonesty, it was clear that the high court judge had correctly dismissed this point. (Paragraphs [46] – [53] and [60] – [61] at 317H – 321D and 323I – 324D.)

Cases Considered

Annotations:

Case law H

Southern Africa

Arter v Burt 1922 AD 303: referred to

Biddlecombe v Road Accident Fund [2011] ZASCA 225: compared

Body Corporate of Dumbarton Oaks v Faiga 1999 (1) SA 975 (SCA) ([1999] 1 All SA 229): dictum at 979C – I applied I

MV Stella Tingas: Owners of the MV Stella Tingas v MV Atlantica and Another (Transnet t/a Portnet and Another, Third Parties) 2002 (1) SA 647 (D): applied

MV Stella Tingas: Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and Another 2003 (2) SA 473 (SCA): referred to

Owners of the MV Banglar Mookh v Transnet Ltd [2010] ZAWCHC 485: confirmed on appeal J

2012 (4) SA p302

Yung Chun Fishery Co Ltd v Transnet Ltd t/a Portnet (WCC case No AC 30/97, 1 September 2000): applied. A

England

Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167 (CA) ([2001] BCC 591; [2000] EWCA Civ 200): compared

Logicrose Ltd v Southend United Football Club Ltd [1988] 1 WLR 1256: compared B

Masood and Others v Zahoor and Others [2010] 1 All ER 888 (CA) ([2009] EWCA Civ 650): compared

Ul-Haq and Others v Shah [2010] 1 All ER 73 (CA) ([2009] EWCA Civ 542): compared.

Case Information

C Appeal against a decision of the Western Cape High Court, Cape Town (Binns-Ward J).

RWF MacWilliam SC for the appellant.

M Wragge SC for the respondent.

Cur adv vult. D

Postea (March 30).

Order

E 'The appeal is dismissed with costs.'

Judgment

Farlam JA and Wallis JA (Cachalia JA, Tshiqi JA and Plasket AJA concurring):

Introduction F

[1] The appellant in this matter, the owners of the Banglar Mookh, the Bangladesh Shipping Corporation, instituted an action in the Western Cape High Court, Cape Town, exercising its admiralty jurisdiction, against the respondent, Transnet Ltd, and the National Ports Authority of South Africa. They claimed payment of the damages suffered on G 5 September 2005 when their vessel, the MV Banglar Mookh, which was at the time being piloted by Mr Tadeusz Jan Grelecki, an employee of the respondent, collided with the knuckle of the A Berth at the entrance to Duncan Dock in the Cape Town harbour. (It was subsequently agreed between the parties that the respondent was the party which would be H responsible if the appellant were to establish a basis for liability for the damages sustained as a result of the collision and the National Ports Authority of South Africa, which had been cited as second defendant, took no part in the proceedings and no relief was sought against it.)

[2] In its particulars of claim the appellant alleged that the cause of the I collision was the gross negligence of Mr Grelecki (whom we shall call in what follows 'the pilot'). When the appeal was called in this court the appellant was granted leave to amend its particulars of claim to allege recklessness.

[3] The appellant accordingly sought to prove that the collision between the appellant's vessel and the knuckle had been caused by the recklessness J or gross negligence of the pilot. It did this in an attempt to

2012 (4) SA p303

Farlam JA and Wallis JA (Cachalia JA, Tshiqi JA and Plasket AJA concurring)

circumvent the exemption from liability enjoyed by the respondent in A terms of item 10(7) of Schedule 1 to the Legal Succession to the South African Transport Services Act 9 of 1989, which reads as follows:

'The Company [ie the respondent] and the pilot shall be exempt from liability for loss or damage caused by a negligent act or omission on the part of the pilot.' B

[4] In two high court judgments, Yung Chun Fishery Co Ltd v Transnet Ltd t/a Portnet, an unreported judgment of the Western Cape High Court delivered on 1 September 2000 in case AC 30/97; and Owners of the MV Stella Tingas v MV Atlantica and Another (Transnet Ltd t/a Portnet and Another, Third Parties) 2002 (1) SA 647 (D) it was held that the C exemption does not apply if the pilot's acts or omissions were grossly negligent or reckless. When the Stella Tingas case came before this court [1] it assumed, without deciding, that 'the exemption would not apply if the pilot were found to have been grossly negligent' (see para 7 of the judgment at 480B – C).

[5] The appellant relied on the two high court decisions to which we D have referred and submitted that the pilot in this case was reckless or grossly negligent and accordingly that the exemption did not apply.

[6] The case came before Binns-Ward J in the court a quo. [2] Although the learned judge had, as he put it, 'some reservations' whether item E 10(7) had been properly construed in the two cases mentioned earlier, the issue did not arise because he held that the appellant had not succeeded in proving that the pilot had been guilty of gross negligence. Having found that gross negligence on the part of the pilot had not been proved, he held that the exemption contained in item 10(7) applied and consequently dismissed the appellant's action, but gave the appellant leave to appeal to this court against his judgment. F

[7] There were, as will appear more fully later, two conflicting versions of the events which led to the collision, one in the evidence of Captain Shahidul Islam, the master of the vessel, the other in the evidence of the pilot. The judge rejected the pilot's version and accepted that of G Captain Islam. He held that the pilot had been negligent, but not grossly negligent, hence the dismissal of the action.

[8] Mr MacWilliam SC, who appeared for the appellant, submitted, as was to be expected, that the judge had correctly accepted Captain Islam's version of the events leading up to the collision...