I OVERVIEW

A breach of contract, a delict or enrichment of one party at the expense of another are the noteworthy events that may entail financial loss for which a judicial award of compensatory damages can be sought within the context of the law of obligations. In the case of infringement of a trademark, damages can be awarded by a High Court. Alternatively, at the request of the proprietor, a reasonable royalty can be awarded in lieu of damages.2 As regards damage or loss3 arising from delict, the recovery of compensatory damages will require proof of an act or omission that is 'wrongful'.4 Delictual liability also requires that there must have been fault on the wrongdoer's part (i.e., either in the form of intention or negligence)5 as well as the presence of causation6 and harm.7 Negligence includes intent in the form of dolus eventualis, that is, where a wrongdoer foresees the possibility of a consequence of his or her conduct, but proceeds nonetheless.8 Contracts regulate numerous aspects of the relationship between contracting parties, apart from defining their respective duties,9 for example limiting or extending liability, imposing penalties or granting indemnities, or providing special methods of settling disputes (e.g., providing for arbitration).10

State action may constitute a further cause of financial loss for which compensatory damages may be recoverable. Some organs of state11 are clothed with powers by means of which persons may be deprived of property, or a liability or administrative penalty12 may be imposed and assessed.13 Examples of such powers wielded by an organ of state are powers in terms of the Income Tax Act,14 the Expropriation Act,15 and Section 3(1)(a) and (b) of the Land Reform (Labour Tenants) Act 3 of 1996. Section 25(2)(b) of the Constitution provides that land may only be expropriated subject to compensation – the amount, and the time and manner of payment of which have either been agreed by those affected or decided or approved by a court.16

An administrative award of 'damages' by means of a consent order can be confirmed by the Competition Tribunal or the National Consumer Tribunal. The courts may be called on to review the exercise of their powers by organs of state for a taking of property or an assessment of a liability to make a payment for or for transferring property to the state or to a third party, to determine disputes concerning liability for various forms of loss inflicted or suffered, and to assess the extent thereof. The review of administrative decisions taken by organs of the state is subject to the Promotion of Administrative Justice Act17 and to the Constitution.18 Constitutional damages may be awarded by a court as compensation where a breach of administrative justice rights occurs.19

Arbitration in terms of the Arbitration Act20 plays an important role in commercial disputes. Commercial agreements often contain clauses requiring the resolution of disputes in terms of the Arbitration Act, including the assessment of liability for damages and the assessment thereof. The Supreme Court of Appeal has stated that the onus resting on a party that aims to avoid the consequences of an arbitration clause is not easily discharged.21 As the arbitrator is the sole arbiter of fact and law, an arbitrator is not bound by the views of an expert.22 An arbitration award can be rendered binding as an order of court.23

Financial losses that may be the subject of judicial determination and assessment come in many different forms, but only financial loss sustained by a plaintiff with no accompanying physical harm to her person or property24 is referred to as 'economic loss'.25 Conduct causing pure economic loss (as compared to cases of physical harm) is not prima facie wrongful.26

Wrongfulness in respect of cases of pure economic loss has been established in a limited number of cases, for example, interference in contractual relations or negligent misstatement.27

II QUANTIFICATION OF FINANCIAL LOSS

i Introduction

The judicial determination of liability for, and the assessment of an amount in compensatory damages will often involve the presentation of factual evidence as well as of expert evidence, in turn requiring the identification, evaluation and management by the court of both hearsay and opinion evidence.

ii Evidence

English law has not only been the main source of South Africa's law of evidence,28 but South African law has also been influenced by English law relating to expert evidence. The South African courts have frequently cited the resume of principles relating to expert evidence set out by Cresswell J in the Commercial Court of the Queen's Bench division in The Ikarian Reefer and endorsed by the Court of Appeal29 in National Justice Compania Naviera SA v. Prudential Assurance Co Ltd.30 In PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another,31 the Supreme Court of Appeal also referred with approval to the passage from the judgment of Justice Marie St-Pierre in Widdrington regarding the weight to be accorded to expert testimony.32 A court is entitled to reject a valuation if it is not satisfied with its underlying investigations.33 An expert witness' expertise must evidence a cogent scientific basis.34 Contracting parties may agree on terms providing for the method of calculating damages in the event of a breach of contract by one of the parties, or rely on the rules of the common law for the calculation of damages.35

iii Date of assessment

Delictual damages are ordinarily measured as at the date of the delict.36 As a general rule, damages arising from breach of contract are to be calculated as at the time performance was due, or at the date of the breach.37 The time for assessment of damages may be at the latest stage in proceedings when new evidence may still be submitted.38

iv Financial projections

Financial projections may entail a wide array of accounting and actuarial calculations and methodologies. Property, asset and liability valuations may be required, cash flow and capital expenditure forecasts calculated, appropriate discount rates selected, and risk factors considered.39 Calculations must depart from an appropriate and correct database that includes correct and relevant factual evidence and data. The proper assumptions must be made and the correct methodology must be applied. The requirement that a judge must be satisfied with the underlying investigations for any calculation (and for that matter including any financial calculations) remains valid and important,40 as does the requirement that an expert witness's expertise must evidence a cogent scientific basis.41 Material shortcomings in the reliability of the projected capital expenditure (or any other variable) may render the expert's calculations defective.42 In Stepney, the Supreme Court of Appeal, relying on a passage from Lord Denning's judgment in Dean v. Prince,43 observed that a court is entitled to reject a valuation if it is not satisfied with the investigations underpinning it.44

v Assumptions

The factual evidence presented to the court lays the groundwork for the expression of an opinion and the opinion must be relevant to the factual evidence. An unfounded or unrealistic assumption (for example, an assumption not based on factual evidence or that is tainted by hearsay or an incorrect hypothesis) may have the effect of contaminating expert evidence.45 Assumptions should be 'sound' and the court may accept actuarial assumptions.46

vi Discount rates

The applicable discount rate, inflation rate and life expectancy are actuarial issues to be determined or agreed by the actuaries.47

vii Currency conversion

Where a debt obligation is expressed in a foreign currency, the question to be considered is whether the debtor has responded in terms of the agreement and has paid to the creditor the equivalent of the expressed amount in rand, and, if so, the debt is satisfied.48

viii Interest on damages

Where the parties to a contract have not agreed on an interest rate at which an amount payable under an agreement is to be calculated, this does not render the agreement invalid. The interest rate prescribed from time to time by notice in the Gazette in terms of the Prescribed Rate of Interest Act49 will apply if no rate has been agreed between the parties (provided that the interest rate is not governed by another law).50 A court may (subject to any other agreement between the parties51 and the provisions of the National Credit Act52) grant an order that interest on the judgment amount shall run from a date determined by the court. The court making a finding of damages may give judgment to be calculated on the amount awarded at the rate of interest prescribed in terms of the Prescribed Rate of Interest Act. Unless expressly agreed by the parties to a contract, interest will be payable calculated as simple interest and not as compound interest.53 The rate of interest prescribed in terms of the Prescribed Rate of Interest Act is periodically adjusted and is typically below the prime rate of interest.

ix Costs

A party that is successful in a claim (or defence) is normally entitled to its costs on a party and party scale (as opposed to attorney and client costs, which reflect the attorney's fees charged to his or her client). The court does, however, have discretion to deprive a successful party partially or entirely of its costs, and, even, to make an order requiring the successful party to pay the unsuccessful party's costs.54

x Tax

The relevant tax table applicable for each year applies.55

III EXPERT EVIDENCE

i Introduction

There may be cases where the court is, by reason of a lack of special knowledge and skill, not sufficiently informed to enable it to undertake the task of drawing properly reasoned inferences from the facts established by the evidence.56 Addressing the role of an expert, the court in Schneider NO and Others v. AA and another57 refers to the South African Law of Evidence,58 citing the well-known passage from National Justice Compania Naviera SA v. Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68 at 81, setting out the duties of an expert witness.59

Not all hearsay evidence is necessarily inadmissible,60 and not all hearsay evidence will necessarily amount to expert evidence.61 As described by the former Appellate Division (now the Supreme Court of Appeal) in Coopers (South Africa) (Pty) Ltd v. Deutsche Gesellschaft für Schädlingsbekämpfung MBH, an expert's opinion represents his or her reasoned conclusion based on certain facts or data, which are either common cause, or which are established by his or her own evidence or that of some other competent witness.62 An expert's bald statement of his or her opinion (except possibly where it is not controverted) is, however, not of any real assistance – proper evaluation of the opinion can only be undertaken if the process of reasoning that led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.63

ii The role of expert evidence in calculation of damages

As noted by Davis J in Schneider NO and Others v. AA and another, an expert comes to court to give the court the benefit of his or her expertise; while an expert is called by a particular party (presumably because the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party) this does not absolve the expert from providing the court with as objective and unbiased an opinion, based on his or her expertise, as possible.64 An expert must not be a hired gun who dispenses his or her expertise for the purposes of a particular case, and should not assume the role of an advocate, nor give evidence that goes beyond the knowledge he or she claims to possess.65

In considering various, and often conflicting expert opinions, as a rule, a court must make a determination of reasonableness66 and negligence not by reference to considerations of credibility, but by examining the opinions and analysing their essential reasoning, in preparation for the court reaching its own conclusion of the issues raised.67 What is thus required of the trial judge is to determine to what extent the opinions advanced by the experts are founded on logical reasoning and how the competing sets of evidence stand in relation to one another, viewed in the light of the probabilities.68

iii The court's role excluding and managing expert evidence

It has been said that the integrity of the justice system is anchored in the impartiality of the judiciary, which should refrain from descending into the arena.69 The judge nevertheless has the power to control trial proceedings to ensure that they are conducted in a manner that avoids delay and the unwarranted escalation of costs. The court may question a witness' expertise mero motu or at the behest of a party. Notwithstanding the fact that the conduct of a trial is largely a matter for the parties to determine as they present their cases, the judge may make rulings regarding the presentation and admissibility of hearsay evidence.70 The court will be loath to interfere with the parties' management of the matter. The Supreme Court of Appeal has noted that,71 while provisionally admitting expert evidence of limited scope where its admissibility is contestable, such a practice in relation to a matter of larger scope and magnitude may have disastrous consequences.72 It is consequently incumbent upon judges hearing cases of substantial potential magnitude to exercise control over the conduct of proceedings to prevent the proceedings from assuming unmanageable proportions, since overuse of scarce judicial resources would be to the detriment of both the parties and society.73

iv Independence of experts

Any fact that may compromise the independence of an expert witness should be disclosed to the court.74 A party who has an interest in a matter by, for example, being a funder of one of the litigants should not be represented as being an independent or disinterested expert in the case.75 A party may, for example, be admitted as an amicus curiae, in which event the court would be apprised of the nature and purpose of the party's participation in the matter.76

v Challenging experts' credentials

The differentiation between factual, expert and hearsay evidence is fundamental to the orderly and fair conduct of a trial, and, if done incorrectly, may have fateful consequences for the outcome. The challenging of an expert's credentials can be undertaken both during preparation for trial and during the trial, and, depending on the nature of the challenge, either by a party or the judge. The primary pretrial mechanism for challenging an expert's credentials is embodied in Rule 36(9) of the Uniform Rules of Court. Save with the leave of the court or with the consent of all the parties, a party who intends to present a witness to give expert evidence must, at least 15 days before the hearing, deliver a notice of his or her intention to do so,77 and must, at least 10 days before the hearing, furnish the other party with a 'summary' of the witness's opinions and his or her reasons therefor.78 These periods will often be inadequate in practice and extended periods may be required, failing which trials may not be ready for hearing.79 A challenge to an expert's credentials or to the procedure adopted for the presentation of expert evidence at the trial can be made at the pretrial conference, which must be held in terms of Rule 37 of the Uniform Rules of Court, alternatively by means of an interlocutory application, as a point in limine, or during the trial itself. Grounds on which the evidence of an expert witness can be challenged include failure to comply with the provisions of Rule 36(9); an objection that a witness is not an expert where expert opinion is required on a specified matter; an objection that a particular witness is not an expert witness for the purpose of testifying as to the subject matter of the evidence summarised in the Rule 36(9) summary;80 and an objection that evidence will be or has been presented falls beyond the scope of the summary.81 In order to avoid burdening the court, it is of fundamental importance that possible hearsay evidence or non-expert evidence be identified and challenged as soon as possible.82

Characterising the nature of evidence called or proposed and challenging an expert's credentials at an appropriate time are important in balancing the freedom of the parties to determine the conduct of the trial against the need for the judge to intervene in proceedings to ensure that they are conducted in a manner that avoids delay and unwarranted escalation of costs.83 The Supreme Court of Appeal in PricewaterhouseCoopers84 observed that the basic principle of trial practice regarding the calling of witnesses of fact and expert witnesses is that, while a party may generally call its witnesses in any order it likes, it is the usual practice for expert witnesses to be called after witnesses of fact, 'where they are to be called upon to express opinions on the facts dealt with by such witnesses'.85 This practice necessitates identification and characterisation at the earliest possible opportunity of evidence that is being presented to the court. If factual evidence is presented under the guise of expert evidence, it may eventually cause grave problems for the conduct of the trial and the determination of the dispute.

In PricewaterhouseCoopers, the Supreme Court of Appeal held that it should have become clear within a few days of the plaintiff's main witness commencing to give evidence that such evidence was 'overwhelmingly based upon hearsay'. The first course open to the judge (at the commencement of the trial) was to require the plaintiff to identify the hearsay evidence that it wished to have admitted and to make application for its admission on any available ground, and then to make a ruling on its admissibility.86 Insofar as it had been indicated that a witness would be called upon to substantiate such hearsay evidence, the second course open to the judge would have been to require that the evidence of the main witness stand down until such (factual) evidence had been presented and was properly before the court. The next stage at which the matter of the characterisation and admissibility of evidence could have been addressed was on completion of the witness' evidence and prior to his cross-examination. The witness should not, therefore, have been cross-examined on the evidence that was arguably inadmissible.87 It was only at the end of a trial of considerable length that the evidence of the witness was challenged as being of an inadmissible hearsay nature. 'By then of course it was impossible to sort the wheat of admissible evidence from the chaff of inadmissible hearsay.'88

It is not necessary that the grounds on which the expertise of the expert witness is based must be set out in the Rule 36 Notice. The court must, however, be satisfied as to the expertise of an expert witness.89 While Rule 36(9) does not require that exposition of the expert's expertise must be set out in the Rule 36(9) notice, a party that fails to address the expert's expertise in the notice renders itself vulnerable to a challenge both by the court and the other party, as such lacking information renders it impossible to assess whether the witness will be qualified to give the evidence described in the summary in terms of Rule 36(9). The main purpose of Rule 36(9) is to require the party intending to call a witness to give expert evidence to give the other party such information about the evidence as will remove the element of surprise, something that was viewed as tending to cause delay in the conduct of trials.90 The draughtsman of the summary (facts and data) should, therefore, ensure that no information is omitted, where the omission thereof might lead to the other side being taken by surprise when in due course such information is adduced in cross-examination or evidence.91 Proper compliance with the sub-rule is perceived as enabling experts to exchange views before giving evidence and thus to reach agreement on at least some of the issues, thereby saving costs and the time of the court.92

vi Novel science and methods

It is an established principle that courts and arbitrators are not bound by the opinions of experts.93 As stated in Municipality v. International Parking Management, the court remains the sole arbiter of fact and expert evidence must be weighed up, accepted or rejected by the court in the same way as any other evidence. Satchwell J in Holtzhauzen v. Roodt94 (cited in Municipality v. International Parking Management)95 cautions that 'opinion evidence must not usurp the function of the court. The witness is not permitted to give opinion on the legal or the general merits of the case. The evidence of the opinion of the expert should not be proffered on the ultimate issue'. Whether science and methods that form the subject of expert evidence are novel or not is not the determining factor, but whether the expert evidence of the witness falls within the legitimate bounds of the testimony of an expert witness.

vii Oral and written submissions

The Supreme Court of Appeal has emphasised that an expert may be tendered for cross-examination upon his or her report alone, without additional oral examination, or after only limited questioning, and that, as a rule, the report of an expert witness can be read as the evidence in chief, subject only to supplementary questions necessary for explanation or elaboration of the report.96 Ultimately, it remains for the court to evaluate the testimony that is presented as expert evidence.

IV RECENT CASE LAW

i Breach of contract

The remedies available for a breach have been set out in Christie's Law of Contract in South Africa.97 These remedies are specific performance, interdict, declaration of rights, cancellation and damages. The choice among these remedies rests primarily with the injured party, the plaintiff, who may choose more than one of them. The plaintiff's choice is subject to the overriding principles that it must not claim inconsistent remedies and must not be overcompensated. The traditional view that a party who is, prima facie, entitled to specific performance may claim in the alternative damages as surrogate for specific performance held sway until the judgment in 1981 in Isep StructuraL Engineering and Plating (Pty) Ltd.98 The Supreme Court of Appeal has now made it clear that, save in relation to instances of leases and the obligation of reinstatement under a lease where the law as set out in Isep still applies, the remedy of damages in lieu of specific performance will be available to a plaintiff where specific performance by the defendant is no longer possible. 99

ii Breach of fiduciary duty

A plaintiff who takes legal action claiming for loss or damage arising from breach of a fiduciary duty must plead causation and allege a link between the wrongful act (the breach of fiduciary duty) and the damage, where the former caused the latter.100


Footnotes

1 Evert van Eeden and Elzaan Rabie are directors at Van Eeden Rabie Inc.

2 Trade Marks Act, 194 of 1993, Section 34(3)(d).

3 See Jowell v. Bramwell-Jones and others [2000] 2 All SA 161 (A) 169.

4 Positive conduct that harms the person or property of another is prima facie wrongful – Country Cloud Trading CC v. Member of the Executive Council, Department of Infrastructure Development, Gauteng 2014 (12) BCLR 1397 (CC) Paragraph 22.

5 Country Cloud Trading CC v. Member of the Executive Council, Department of Infrastructure Development, Gauteng 2014 (12) BCLR 1397 (CC) Paragraph 40. See Kruger v. Coetzee 1966 (2) SA 428 A 430 as to the test for negligence.

6 Causation posits proof of a causal link between a defendant's actions or omissions and the harm suffered by the plaintiff, determined on a balance of probabilities – see Oppelt v. Head: Health, Department of Health, Provincial Administration: Western Cape 2015 (12) BCLR 1471 (CC) Paragraph 35.

7 Oppelt v. Head: Health, Department of Health, Provincial Administration: Western Cape 2015 (12) BCLR 1471 (CC) Paragraph 34.

8 Country Cloud Trading CC v. Member of the Executive Council, Department of Infrastructure Development, Gauteng 2014 (12) BCLR 1397 (CC) Paragraph 37 and authorities cited in footnote 38.

9 ibid., Paragraph 63.

10 id.

11 Comprehensive procedures must be followed in terms of the Institution of Legal Proceedings against Certain Organs of State Act, 30 of 2002, when an organ of state is cited in legal proceedings.

12 Sections 59(1) of the Competition Act; Section 111 of the Consumer Protection Act, 68 of 2008.

13 Calculation of capital gains tax in terms of the Income Tax Act 58 of 1962 – see Commissioner for the South African Revenue Service v. Stepney Investments (Pty) Ltd [2016] 1 All SA 1 (SCA).

14 Act 58 of 1962, Section 78(1).

15 Act 63 of 1975.

16 Act 108 of 1996.

17 Act 3 of 2000.

18 Act 108 of 1996.

19 Promotion of Administrative Justice Act, 3 of 2000, Section 8(1)(c)(ii)(bb). The requirements for a claim for Constitutional damages were considered in Minister of Police v. Mboweni and another [2014] 4 All SA 452 (SCA), and Lee v. Minister for Correctional Services (Treatment Action Campaign and Others As Amici Curiae) 2013 (2) BCLR 129 (CC).

20 Act 42 of 1965.

21 See De Lange v. Presiding Bishop, Methodist Church of South Africa and another 2015 1 SA 106 (SCA); Snowy Owl Properties 284 (Pty) Ltd v. Mziki Shareblock Limited [2017] JOL 37397 (KZP) Paragraph 17, citing Zhongji Development Construction Engineering Company Ltd v. Kamoto Copper Company SARL [2014] 4 All SA 617 (SCA) Paragraph 56.

22 Municipality v. International Parking Management (Pty) Limited and Others [2015] JOL 33183 (GSJ) Paragraph 172.

23 Act 42 of 1965 Section 33.

24 Country Cloud Trading CC v. MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC) A Paragraph 22.

25 Pilkington Brothers (SA) (Pty) Ltd v. Lillicrap, Wassenaar and Partners [1983] 3 All SA 111 (W) 116.

26 See also Doug Parsons Property Investments (Pty) Ltd v. Erasmus De Klerk Inc 2015 (5) SA 344 (GJ) Paragraph 20; Home Talk Developments (Pty) Ltd and Others v. Ekurhuleni Metropolitan Municipality 2018 (1) SA 391 (SCA).

27 Country Cloud Trading CC v. Member of the Executive Council, Department of Infrastructure Development, Gauteng 2014 (12) BCLR 1397 (CC) Paragraph 24.

28 See Savoi and others v. National Director of Public Prosecutions and another 2014 (5) BCLR 606 (CC) Paragraph 37.

29 1993 2 Lloyd's Reporter 68 (QB).

30 Court of Appeal (Civil Division) [1995] 1 Lloyd's Rep 455.

31 [2015] 2 All SA 403 (SCA).

32 PricewaterhouseCoopers Inc and Others v. National Potato Co-operative Ltd 2004 (9) BCLR 930 (SCA) Paragraph 99.

33 Commissioner for the South African Revenue Service v. Stepney Investments (Pty) Ltd [2016] 1 All SA 1 (SCA) Paragraph 28.

34 Ntsele v. MEC for Health, Gauteng Provincial Government [2013] 2 All SA 356 (GSJ) Paragraph 92.

35 Consolidated Rock Machinery Consolidated (Pty) Ltd t/a Bobcat SA v. Mechanical Cleaning Services CC & another [2006] JOL 17621 (T) Paragraph 13.

36 Philip Robinson Motors (Pty) Ltd v. N. M. Dada (Pty) Ltd 1975 (2) SA 420 (A.D.) 28. The Appellate Division is now referred to as the Supreme Court of Appeal.

37 GB Bradfield, Christie's Law of Contract in South Africa, 7th ed (2016) 657.

38 JM Potgieter, L Steynberg and TB Floyd, Law of Damages, 3rd ed, Juta (2012) 92.

39 See Commissioner for the South African Revenue Service v. Stepney Investments (Pty) Ltd [2016] 1 All SA 1 (SCA), Paragraph 22.

40 Commissioner for the South African Revenue Service v. Stepney Investments (Pty) Ltd [2016] 1 All SA 1 (SCA) Paragraph 28.

41 Ntsele v. MEC for Health, Gauteng Provincial Government [2013] 2 All SA 356 (GSJ) Paragraph 92.

42 See Commissioner for the South African Revenue Service v. Stepney Investments (Pty) Ltd [2016] 1 All SA 1 (SCA).

43 [1954] 1 All ER 749 at 758: 'For instance, if the expert added up his figures wrongly, or took something into account which he ought not to have considered, or conversely, or interpreted the agreement wrongly, or proceeded on some erroneous principle in all these cases, the court will interfere.'

44 Commissioner for the South African Revenue Service v. Stepney Investments (Pty) Ltd [2016] 1 All SA 1 (SCA) Paragraph 28.

45 PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another [2015] 2 All SA 403 (SCA) Paragraph 118.

46 Oosthuizen v. Member of the Executive Council & another [2006] JOL 18165 (T); Nienaber v. RAF [2012] JOL 28355 (GSJ) Paragraph 4.

47 See Reay and another v. Netcare (Pty) Ltd t/a Umhlanga Hospital and Others [2016] 4 All SA 195 (KZP) Paragraph 53, where the trial judge, in the context of an agreement between the parties as to a claim for loss of support, was requested by the parties to determine the basis of the calculations pertaining to the loss of support to enable the actuaries to determine the loss and to give directions and specify relevant assumptions.

48 Zelenyck v. Avnit [2009] JOL 23748 (GNP).

49 Act 55 of 1975.

50 See Basson and others v. Hanna 2017 (3) SA 22 (SCA) Paragraph 16.

51 See JM Potgieter, L Steynberg and TB Floyd, Law of Damages, 3rd ed, Juta (2012), 205.

52 Act 34 of 2005.

53 Euro Blitz 21 (Pty) Ltd and another v. Secena Aircraft Investments CC [2015] JOL 32990 (SCA).

54 Michael and another v. Linksfield Park Clinic (Pty) Ltd and another 2001 (3) SA 1188 (SCA) Paragraph 5.

55 See Reay and another v. Netcare (Pty) Ltd t/a Umhlanga Hospital and others [2016] 4 All SA 195 (KZP) Paragraph 53.

56 Coopers 370. See generally M Dendy et al 'Evidence' 'Expert evidence' LAWSA 3rd ed Vol 18.

57 2010 (5) SA 203 211.

58 Zeffertt, Paizes and Skeen, The South African Law of Evidence, Second Edition (2009), LexisNexis 330.

59 The Supreme Court of Appeal in PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another [2015] 2 All SA 403 (SCA) Paragraph 99 also cites with approval the judgment of Justice Marie St-Pierre in Wightman v. Widdrington (Succession de) 2013 QCCA 1187 (CanLII).

60 For the factors that the court may consider in determining whether hearsay evidence should be admitted, see Section 3 of the Law of Evidence Amendment Act 45 of 1988 and the discussion thereof by DT Zeffert and AP Paizes, The South African Law of Evidence, 2nd ed, LexisNexis (2009) 389.

61 PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another [2015] 2 All SA 403 (SCA) Paragraph 96.

62 1976 (3) SA 370.

63 Coopers (South Africa) (Pty) Ltd v. Deutsche Gesellschaft Für Schädlingsbekämpfung MBH 1976 (3) SA 352 (A) 371.

64 2010 (5) SA 203 (WCC) 211-212.

65 2010 (5) SA 203 (WCC) 212.

66 That is to say, the 'reasonableness of imposing liability' – see Masstores (Pty) Ltd v. Pick N Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) Paragraph 48.

67 Michael and another v. Linksfield Park Clinic (Pty) Ltd and another 2001 (3) SA 1188 (SCA) Paragraph 34.

68 Louwrens v. Oldwage [2006] 1 All SA 197 (SCA) Paragraph 27.

69 S v. Le Grange 2009 (1) SACR 125 Paragraph 21, cited in City of Johannesburg Metropolitan Council v. Ngobeni [2012] JOL 29134 (SCA) Paragraph 31-33.

70 In PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another Paragraph 434-435.

71 2015] 2 All SA 403 (SCA) 434.

72 In PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another Paragraph 78.

73 ibid., Paragraph 161.

74 Schneider NO and others v. AA and another 2010 (5) SA 203 (WCC) 220. See also Menday v. Protea Assurance Co Ltd [19786] 1 All SA 535 (E).

75 Schneider NO and others v. AA and another 2010 (5) SA 203 (WCC) 220. PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another.

76 Schneider NO and Others v. AA and another 2010 (5) SA 203 (WCC) 220.

77 Uniform Rules of Court Rule ٣٦(٩)(a); Coopers (South Africa) (Pty) Ltd v. Deutsche Gesellschaft Für Schädlingsbekämpfung MBH ١٩٧٦ (٣) SA ٣٥٢ (A) Paragraph ٣٧٠.

78 Uniform Rules of Court Rule 36(9); Coopers (South Africa) (Pty) Ltd v. Deutsche Gesellschaft Für Schädlingsbekämpfung MBH 1976 (3) SA 352 (A) Paragraph 370.

79 See the practice directions for the various courts.

80 PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another Paragraph 101.

81 See generally P van den Heever Objections in Civil Litigation Juta (2010) 67.

82 See PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another Paragraph 158 – 159.

83 PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another [2015] 2 All SA 403 (SCA) Paragraph 160.

84 Citing Tristram Hodgkinson Expert Evidence : Law and Practice 106–7.

85 PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another, Paragraph 80.

86 PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another Paragraph 80.

87 PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another Paragraph 81.

88 PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another Paragraph 81.

89 Consolidated Rock Machinery (Pty) Ltd t/a Bobcat SA v. Mechanical Cleaning Services CC & another [2006] JOL 17621 (T) Paragraph 20.

90 Consolidated Rock Machinery (Pty) Ltd t/a Bobcat SA v. Mechanical Cleaning Services CC & another [2006] JOL 17621 (T) 17.

91 id.

92 See Klue and another v. Provincial Administration, Cape 1966 (2) SA 561 (E) 563, cited in Consolidated Rock Machinery 17.

93 Municipality v. International Parking Management (Pty) Limited and Others [2015] JOL 33183 (GSJ) Paragraph 172.

94 1997 (4) SA 766 (W) at 773.

95 Municipality v. International Parking Management (Pty) Limited and Others [2015] JOL 33183 (GSJ) Paragraph 171.

96 See PricewaterhouseCoopers Incorporated and others v. National Potato Co-operative Ltd and another Paragraph 161 and sources cited there.

97 GB Bradfield 7th ed (2016) 616. See Basson and Others v. Hanna 2017 (3) SA 22 (SCA) Paragraph 22.

98 1981 (4) SA 1 (A).

99 See Basson and Others v. Hanna 2017 (3) SA 22 (SCA).

100 Du Plessis NO v. Phelps [1995] 2 All SA 469 (C) 475. See also Symington and others v. Pretoria-Oos Privaat Hospitaal Bedryfs (Pty) Ltd [2005] 4 All SA 403 (SCA); Derbigum Manufacturing (Pty) Ltd v. Callegaro and Others [2014] JOL 31495 (GSJ) 9.