IN THE HIGH COURT OF SOUTH AFRICA jv (TRANSVAAL PROVINCIAL DIVISION)
CASE NO: 24467/97 DATE: ...
In the matter between:
SOUTH AFRICAN RUGBY FOOTBALL UNION First Applicant GAUTENG LIONS RUGBY UNION Second Applicant
MPUMALANGA RUGBY UNION Third Applicant
L LUYT Fourth Applicant
and
THE PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA First Respondent
THE MINISTER OF SPORT AND TOURISM Second Respondent THE DIRECTOR GENERAL OF THE NATIONAL
DEPARTMENT OF SPORT AND RECREATION Third Respondent
REASONS FOR JUDGMENT
DE VILLIERS, J
1. INTRODUCTION:
1.1 The Commission is appointed:
On 22 September 1997 purporting to act in terms of section 84(2)(f) of the Constitution of the Republic of South Africa, 1996, Act 108 of 1996, (“the Constitution”), Mr Nelson R Mandela, the President of the Republic of South Africa (“the President”), appointed a Commission of Inquiry (“the
Commission”) into certain Financial and Administrative Aspects of the South
African Rugby Football Union (“SARFU”) and Related Matters, with certain terms of reference, and appointed the Honourable Mr Acting Justice
J BROWDE (“Browde”) as chairman and only member of the Commission.
[See President’s minute No 354 at 692 of the application papers (“the papers”). The minute was also signed by Mr Thabo Mbeki, the Executive Deputy President (“the Deputy President”) and by Minister Steve Tshwete (“the Minister”), in his capacity as Minister of the Cabinet.]
The appointment of the Commission was notified for general information in Government Gazette No 18326, dated 26 September 1997 (at 252-5 of the papers). Purporting to act under the powers vested in him by section 1 of the Commissions Act, 1947 (Act 8 of 1947), the President on the same day declared that the provisions of that Act would be applicable to the
Commission and made the regulations in the schedule with reference to the Commission. [See Proclamation No R.66, 1997 (“the proclamation”) at 243- 251 of the papers.]
1.2 Papers are filed:
On 20 October 1997 SARFU, as first applicant, the Gauteng Lions Rugby Union, as second applicant, Mpumalanga Rugby Union, as third applicant and Dr Louis Luyt (“Luyt”) in his personal capacity, as fourth applicant, brought an application praying for the following relief:
1. Reviewing and setting aside the decision of the President, as first respondent, to appoint the commission and further setting aside the proclamation.
2. Alternatively to 1, an order declaring that the appointment by the President of the commission, is null and void;
3. That respondents be ordered to pay the applicants’ costs.
The Minister was cited as the second respondent while the Director-General of the National Department of Sport and Recreation, Mr Mthobi Tyamzashe, (“the DG”), was cited as third respondent.
The respondents filed their answering affidavits on 23 December 1997 and the applicants served their replying affidavits on 13 January 1998. Thereafter, on 20 January 1998 the DG served a supplementary affidavit. In terms of an arrangement between the parties’ attorneys and the Deputy Judge President, applicants’ counsel, Messrs Maritz SC, Helberg SC and Cilliers, filed their heads of argument on 19 January 1998, while respondents’ counsel (Messrs Trengove SC and Bham) served their heads on 22 January 1998. The matter was set down for hearing on 26 January 1998. Counsel anticipated that argument would be completed during that week, i.e. on or before 30 January 1998. However, matters turned out quite differently.
1.3 The initial hearing takes place:
At the commencement of his argument on Monday, 26 January 1998 Mr Maritz informed me that an application to strike out portions of applicants’
affidavits and annexures had been served by the respondents’ attorneys on Thursday, 22 January 1998 and that, pursuant thereto, on Friday 23 January 1998 applicants’ attorneys had written a letter to respondents’ attorneys calling for certain information in terms of section 32 of the Constitution and discovery of certain documents by not later than 16:00 on 23 January 1998. A notice of motion, dated 26 January 1998, was handed up by Mr Maritz. In it the applicants prayed, by way of urgent application, for an order compelling the respondents to furnish the applicants with the information and documents requested in the said letter, and that the respondents be ordered to discover the documents and information requested in a notice to discover, dated 23 January 1998.
Mr Trengove indicated that he had not yet received instructions as to whether respondents had the documents called for by the applicants. In the meantime, by agreement, Mr Maritz proceeded to argue the application for the furnishing of further information and documents.
At 14:00 on the same day Mr Trengove informed the court that he had been instructed that the Minister and the DG wished to file affidavits in opposition to the application. The President, who was apparently in Uganda at the time, would only be available for consultation the next day.
The court ruled that the respondents’ application to strike out and the applicants’ application to compel the furnishing of further information and documents would be heard together when the latter application was ripe for hearing. Furthermore, that Mr Maritz would in the meantime argue the merits of the main application without referring to those aspects which formed the subject of the respondents’ application to strike out.
Hereafter Mr Maritz commenced his argument on the merits of the main application. He raised an argument which had not been raised in their heads of argument viz whether the President had complied with the jurisdictional requirements of the Constitution in deciding upon a commission. He argued that the President had failed to consult the Deputy President as he was obliged to do. I may add that the applicants had not stated in their founding affidavit, in so many words, that the President had failed to consult the Deputy
President. I shall return to these issues later.
On 27 January 1998 Mr Maritz continued arguing the merits of the main application. At a certain stage Mr Trengove handed up the respondents’
answer to the discovery application, contained in three affidavits by each of the three respondents, as well as a supplementary affidavit of the President, dated 27 January 1998 in which he dealt with the question whether the Deputy President had been consulted (at 689-694 of the papers).
Mr Maritz contended that the respondents had, under the guise of an answer, tried to fill up holes in the main application. He argued that the affidavits were highly improper and should be struck out in entirety. He intimated that applicants would bring such an application the next day.
Such an application was indeed brought the next day, being 28 January 1998.
In it the applicants applied for an order striking out certain passages of the respondents’ affidavits, filed in the discovery application, “on the ground that they contain material completely irrelevant to the applicants’ application in terms of section 32 of the Constitution, and which have been inserted improperly to influence the Honourable Court in the main application, and which is an abuse of the process, and furthermore on the ground that
applicants will be prejudiced if such passages are not struck out”. Costs were applied for on an attorney and own client basis.
After argument had been heard in respect of that application, the court found that it was not justified and dismissed it with costs. The court indicated that reasons would be given for these orders later if it was necessary to do so.
The main reason for this order is that I did not consider the respondents’
affidavits contained material which was irrelevant to the applicants’
application in terms of section 32 of the Constitution. I did not consider that the averments in respondents’ affidavits had been inserted improperly to influence the court in the main application or that the contents of the affidavits were an abuse of the process of the court. Furthermore I did not consider that applicants would be prejudiced if the passages objected to in such affidavits were not struck out. It is to be noted that the applicants not only sought discovery of the documents set out in their attorneys’ letter, but also asked several questions: See paragraphs 1.2, 1.4, 1.5 and 1.6 of the letter. When a party puts questions of that nature to the other party, the first party cannot complain when the other party answers such questions in a way which the first party did not expect or anticipate.
The respondents’ application to strike out was then argued. However, on 28 January 1998 the parties arrived at a written settlement in regard thereto, as well as in regard to certain ancillary issues arising from the affidavits filed by the respondent in the discovery application. On 29 January 1998 the written deed of settlement was handed up. In so far as the court had a discretion to admit the hearsay evidence, referred to in paragraph 2 of the settlement, in terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, the court exercised its discretion to admit the evidence in the interests of justice.
Paragraph 1 of the settlement provides that “the applicants tender annexure
‘X’ hereto in evidence in the main application. The respondents agree to the admission of annexure ‘X’. The parties are agreed that annexure ‘X’ is a press statement issued on behalf of the department at the instance of the director- general on 7 August 1997".
It is not appropriate at this stage to refer to the contents of annexure “X”. It is undoubtedly an important document and will be referred to fully later.
In paragraph 2 of the settlement the parties agreed that certain annexures (to the replying affidavit) are admissible in terms of section 3 of the Law of Evidence Amendment Act 45 of 1988. It is in regard hereto that the court
exercised its discretion to admit the evidence.
In terms of paragraph 3 of the settlement “the respondents will be afforded a reasonable opportunity to supplement their answers in relation to the evidence described in paragraphs 1 and 2 above ...”.
Paragraph 4 provides that “the applicant will thereafter be afforded a reasonable opportunity to file their reply to the respondents’ supplementary answers”.
Paragraph 5 reads that “save for the annexures listed in paragraph 2 above, the remaining annexures subject to attack in the respondents’ application to strike out, may not be used as evidence of the truth of their contents”.
Pursuant to the provisions of paragraph 3 of the settlement, each of the three respondents made further supplementary affidavits. These were duly handed in. They appear at 695-718 of the papers and are dated 29 January 1998.
In terms of paragraph 4 of the settlement the applicants filed their reply to the respondents’ supplementary answers. This appears at 719-730 of the papers.
It consists of a replying affidavit of Luyt which he made on behalf of all the applicants. Two affidavits are annexed to Luyt’s affidavit. Firstly that of Dr D H Botha (“Botha”), the applicants’ attorney of record, and secondly that of Mr J J Gerber (“Gerber”), sports editor of “Rapport”, a Sunday newspaper.
In the meantime while these further affidavits were being exchanged, argument continued based on the papers as supplemented by the affidavits referred to above.
1.4 The application is referred to evidence:
On 5 February 1998 the application was referred for the hearing of oral evidence before myself in terms of rule 6(5)(g) on certain issues as defined in the order. Briefly the first issue related to the terms of the agreement of 21 February 1997 while the second issue related to whether or not the President had rubber-stamped the Minister’s decision and had failed to properly consider the matter himself. I shall refer to the terms of the order relating to these issues in greater detail below. I shall also give my reasons for the order below.
For the purpose of deciding the said issues Luyt, Mr Oberholzer
(“Oberholzer”), Mr Erasmus (“Erasmus”) and Gerber, as well as the President, the Minister and the DG were ordered to appear personally to be examined and cross-examined as witnesses (paragraph 2 of the order). The reasons for this part of the order will also be dealt with below.
Certain ancillary orders were made on the same date, including an order for discovery of all documents relating to the said issues.
On 6 February 1998 an order was made, by agreement, that the hearing of oral evidence would commence on 16 February 1998.
1.5 Evidence is heard:
On 16 February 1998 the applicants commenced calling their witnesses. Luyt, Oberholzer and Erasmus testified in respect of the first issue while Gerber testified in respect of the second issue.
When the applicants closed their case Mr Trengove applied for the first issue referred to evidence (i.e. in terms of the agreement of 21 February 1997) to be withdrawn from the referral. He described the application as being
comparable to an application for absolution from the instance at the end of a plaintiff’s case in a trial action. The application was opposed by the
applicants. The judgment appears at 637-8 of the record. The application was dismissed with costs including the costs of two counsel. I shall give further reasons for the order below.
Mr Trengove thereafter called the DG, to testify, as well as several other witnesses: Prof Katz (“Katz”), Advocate Marcus (“Marcus”), Advocate Malindi (“Malindi”) and the Minister.
Thereafter Mr Trengove applied for the order that the President should appear personally to be examined and cross-examined should be revoked. The application was opposed by the applicants. The judgment appears at 1505- 1506 of the record. The application was dismissed with costs, including the costs of two counsel. I shall give further reasons for the order below.
In the meantime the DG had been recalled for further cross-examination. See the record at 1467 et seq.
Subsequently the applicants applied for an order that all documents listed in the DG’s supplementary discovery affidavit should be handed to the court in order to examine them to determine whether they are privileged or not. The judgment appears at 1583-1593 of the record. Further reasons will be given below. The application was upheld. The DG was ordered to produce the documents in question for inspection by the court so that the court might decide whether the claim based on legal professional privilege was justified or not. The respondents were ordered to pay applicants’ costs including the costs consequent upon the employment of three counsel.
The court inspected the documents. I regarded them as being covered by the legal professional privilege which had been raised.
On a later date which had been arranged to suit the President’s convenience, the President testified.
It is appropriate to mention at this stage that, although no reference was made thereto in the parties’ affidavits, it appeared during the hearing of oral
evidence that a tape recording had been made of the discussions which took place at the meeting on 21 February 1997 and which formed the subject of the first issue referred to evidence.
A transcript of the tape recording was handed in as exhibit 7.
Oberholzer was one of SARFU’s representatives who attended the meeting on 21 February 1997. He testified that he had listened to the tape recording and had amended a copy of exhibit 7 to accord with what he heard while listening to the recording. He handed in such amended copy as exhibit 7A. His evidence in relation to such amendments was not questioned.
At a later stage counsel listened to the tape recording and, again using exhibit 7A as a basis, agreed on certain further amendments thereto. A few of these amendments amended the amendments which Oberholzer had effected. This amended copy was handed in as exhibit 7B.
During a discussion in chambers I suggested to counsel that they should consider handing in the tapes as real evidence in the matter, and that if they were to consider doing so, the court would prefer to listen to the tapes itself.
After discussing the matter with their clients and attorneys, counsel informed me that they intended handing in the tapes, by agreement. The written agreement is exhibit 37. In terms thereof the two tapes were handed in as exhibits 35 and 36.
In the presence of the parties and counsel the court listened to the tape recording in my chambers. While listening to the tapes certain amendments were by agreement recorded to exhibit 7B and initialled by me. In some cases the amendments I effected were not initialled. In certain cases where there were differences of opinion in regard to what we heard, a note was made on that exhibit in regard thereto and similarly initialled.
Counsel agreed that exhibit 7B, as finally amended by agreement between counsel at the stage when the court listened to the tapes, is basically the transcript upon which the matter is to be decided.
It may be noted at this stage that the transcript as it appears in exhibits 7, 7A and 7B falls into two parts. The first part is the transcript of the first tape cassette relating to the meeting of 21 February 1997. It runs from pages 1 to 52. The second part of the transcript runs from pages 1 to 39. It is common cause that pages 36 to 39 relate to some other discussion which remained on the tape. The relevant discussion accordingly terminates at page 35.
In the second part of the transcript it is common cause that there is a break in the tape recording at the end of what has been recorded at page 28 and the commencement of the recording as it appears at page 29. Apparently this break is partly due to the fact that the cassette was at that stage turned to its other side by the person who operated the tape recorder. It is common cause that the discussions between the parties continued during the break. I shall return to this aspect later.
It may also be noted that, as indicated in paragraph 4.3 of exhibit 37, the parties are agreed that in regard to the second of the two tapes (exhibit 36) it
“does not contain the portion of the second part of exhibit 7B from line 17 on page 27 to the end of page 28, which portion appeared on the earlier tape recording of which this tape is a copy”. As appears from paragraph 5 of
exhibit 37 the earlier tape recording of the second tape was misplaced during the course of these proceedings and cannot be found.
After the court had listened to the tapes, Mr Bham closed the respondents’
case.
During the course of argument at the end of the case, the respondents applied for leave to re-open their case in order to call the evidence of a reporter, Mr Hannes de Wet who had apparently conversed with Luyt at some stage during the course of the hearing.
A notice of motion dated 27 March 1998 together with supporting affidavits were placed before court. No answering affidavit was filed.
My judgment in relation to the application appears at 2613-2622. The
application was dismissed. Costs were reserved for later decision. The reason for this appears at 2621:25 to 2622:1 of the record. It is unnecessary to repeat it here.
After several days of argument I reserved judgment on 6 April 1998 and intimated that I would, if possible, give my judgment on 17 April 1998.
1.6 An order is given on 17 April 1998:
On 17 April 1998 I stated in court that due to time restraints I had been unable to complete the judgment which I intended giving on that day. I added that I intended giving an order on that day and that my reasons for the order would be given later.
I granted an order in terms of prayer 1 of the applicants’ notice of motion, dated 20 October 1997. The respondents were ordered to pay the applicants’
costs, including the costs of three counsel. The costs were ordered to include the costs of opposing the respondents’ application to re-open dated 27 March 1998. I thereafter repeated that the court’s reasons for the order would be given later.
My reasons for the order are set out in this judgment.
It is appropriate at this stage to set out why I was unable to give reasons for my order on 17 April 1998 and why I decided to grant an order at that stage.
The papers and the record are of a considerable length. The arguments addressed to the court cover a wide spectrum. Nevertheless I hoped that I would be able to deliver my judgment on 17 April 1998 because it was obviously desirable that there should be finality in the proceedings as soon as possible. I regarded time to be of the essence. I said so during my judgment on the application to re-open (at 2618:24-26). During the course of the hearing I was reminded by counsel on several occasions that it was important to achieve finality as soon as possible. The very nature of the case also strongly indicated that finality had to be reached as soon as possible. The urgency of the matter was also referred to in the course of my judgment
referring the matter to evidence. I said the following (Vol 7A at 705:16-18):
“Because of the obvious urgency of the matter, the evidence should be heard by this court as soon as the parties and their representatives are ready to do so.” Normally, in such a case, quite a long time usually elapses between the order of referral and the hearing of evidence. In this case, because of the urgency, special arrangements were made to hear the evidence less than two weeks after the order of referral.
In my judgment relating to the application to re-open, (at 2618:18-26), which was delivered on 3 April 1998, I stated that because of my heavy
commitments as from 20 April 1998 for the whole of the next court term, it would be exceedingly difficult for me to give my judgment on the merits at any stage after 17 April 1998 and that if I were unable to give my judgment then, the parties might conceivably have to wait for a few months before judgment was given. I added that that would obviously be most undesirable since there should be finality in the proceedings and that time was accordingly of the essence.
After reserving judgment I worked unabatedly in preparing the judgment which I intended delivering on 17 April. However, it soon became apparent to me that I would be unable to complete that Herculean task timeously.
Nevertheless, I had sufficient time at my disposal to satisfy myself that an order in terms of prayer 1 of applicants’ notice of motion should be granted, as well as the order for costs to which I have referred.
I had two options at that stage. Firstly, the parties’ attorneys could be informed that I had been unable to prepare a judgment timeously and that I would accordingly further reserve judgment until such time as my judgment had been prepared. I realised, however, that in that event the parties would by reason of my heavy commitments during the second term have to wait for the judgment for several months. Accordingly, in view of the need for finality in the matter, and because time was of the essence, I did not consider that that would be a feasible option.
The second option would be to grant an order and to indicate that reasons for that order would be furnished later. This is a well-known method which is often employed in our courts where the court concerned is convinced that a particular order should be given, but the court is, for some or other reason, unable to provide its reasons for the order at that stage.
I regarded the second option as the most feasible and practical one in the circumstances for the following reasons:
1. As indicated, it was obviously desirable that there should be finality in these proceedings. Time was of the essence. Granting an order would achieve such finality.
2. It would be physically impossible to deliver my reasons for the order for several months because of my heavy commitments during the second term, but in the mean time the parties would know what the “bottom line” of the judgment was.
Unenlightened persons apparently think that when a court reserves judgment, or when it grants an order with the rider that reasons will be given later, it has nothing else to do but to work on that judgment or reasons for judgment. That is certainly not the position in this division of the high court. A judge’s duties for each term are determined before the commencement of each term by the Judge-President of the division. In my case my duties for the second term included two part-heard murder and robbery trials. They had been part-heard during November and December 1997 and had been postponed to 20 April 1998 and 6 May 1998 respectively. Several of the accused in the two cases had already been in custody for a long time. I would thereafter continue with criminal sessions until 22 May 1998 and thereafter go on circuit court for the hearing of criminal cases at Delmas until the end of term on 19 June 1998. I approached the Judge-President in view of my obligations in this case, to release me from some of these duties, if possible, but because of the heavy work load in the high court, he could only accommodate me in regard to the circuit court at Delmas. I was given other court work in Pretoria in its stead.
The result has unfortunately been that I have had very little time during the second term to prepare this judgment, save for working at nights, over weekends and on public holidays. I have spent both the April and the winter court recesses in preparing this judgment, as well as every other available moment. It is not unusual for judges in this division to have to work in this way. The work load in this division is of such a nature that sacrifices of this nature are often demanded of judges.
Naturally I regard the urgent delivery of my reasons for judgment to be in the interest of the parties as well as in the public interest. I have done all in my power to deliver the reasons as soon as humanly possible. However, it must be borne in mind that there are numerous difficult issues of fact and law involved which have necessarily required a great deal of time to deal with properly.
I have set out the above facts and circumstances in much greater detail than would be necessary in any other case. This case has attracted a great of media attention. Many people are apparently uninformed about such matters. It may be that the parties are also not fully aware thereof, although their legal
representatives should hopefully have informed them thereof.
2. THE ISSUES REFERRED TO EVIDENCE:
When I gave my judgment referring the matter to evidence, I expressed the view that the application could not be properly decided on affidavit. I stated that justice required that oral evidence should be heard on the issues specified in the order which I intended making. I still hold the same view. The oral evidence confirms, to my mind, my finding that justice required that oral evidence should be heard on the issues specified in the order. My reasons for referring the matter to evidence are set out below.
The issues to be determined in terms of the referral to oral evidence are, of course,
determined by reading the terms of reference contained in the order for referral with the parties’ averments in their affidavits.
In this regard the following passage from the judgment of RAMSBOTTOM, J (as he then was) in Wepener v Norton 1949 (1) SA 657 (W) at 658-9 is apposite:
“I think that it is necessary that the Court should state what the scope of this examination is. Ordinarily, where oral evidence is taken, on application, the parties are limited in their evidence to the proof of the allegations made in the petition and replying affidavits. The fact that the Court orders oral evidence does not enlarge the scope of the inquiry; the Rule provides a method of deciding conflicts of fact which are raised in the affidavits. In the present case the Court is concerned with the interests of a child, and the inquiry may, therefore, of necessity be somewhat enlarged; but the fact that oral evidence was ordered does not give either party the right to a roving commission and to put before the Court any facts which that party thinks it would like “the Court to be aware of. The issues must be defined and the inquiry must be limited to its proper scope.”
See also Drummond v Drummond 1979 (1) sa 161 (a) AT 170G-H.
It is accordingly necessary to spend some time in setting out the issues as they appear from the affidavits, read with the order of referral. As will appear later, the definition of such issues came to the fore on several occasions during the course of the trial. It is important to perform this exercise in order to determine the precise bounds of the referral to evidence. At the same time I hope to indicate why it was necessary to refer the matter to evidence and to order the deponents to the affidavits to give evidence.
3. THE PARTIES’ AVERMENTS RELATING TO THE AGREEMENT OF 21 FEBRUARY 1997
3.1 The issues raised in the affidavits:
I shall deal firstly with parties’ averments in the affidavits relating to the first issue which was referred to evidence, viz the terms of the agreement of 21 February 1997.
The applicants’ averments concerning the meeting of that date are set out in paragraph 25 of their founding affidavit (26-29), as deposed to by Luyt.
Because of its importance I quote it in full. This paragraph should, of course, be read in the context of the averments contained in the preceding paragraphs, but it is unnecessary, to my mind, to refer at this stage to what is said there.
Paragraph 25 reads as follows:
“25.1 SARFU was thereafter requested to attend yet a further meeting to be held on 21 February 1997. At this meeting SARFU was represented by a number of its senior executive members, including myself as President. The Minister and the Director General also attended this meeting.
25.2
25.2.1 At the time hereof, it was the conviction and stance of SARFU and its executive that the Minister’s intended Task Team had no legal standing and that neither the Minister nor the intended Task Team had the right to investigate the internal and private affairs of SARFU and its constituent unions. At the same time, however, SARFU and its executive considered that, because of the extensive media attention generated by the VAN ROOYEN dossier and the Minister’s comments in reaction thereto, which had by then already substantially prejudiced SARFU and damaged its good name, it would be in the best interest of SARFU to cooperate, provided a satisfactory
arrangement could be arrived at.
25.2.2 SARFU, further, was not prepared to submit to any fishing expedition or to any procedure whereby it was not first fully apprised of whatever allegations needed investigation.
25.3 The aforegoing viewpoints were raised during the negotiations and after some discussion and negotiation an arrangement acceptable to all was arrived at. This entailed cooperation by
“ SARFU, but only on certain clear and express conditions.
25.4 The agreement reached was that a Task Team to establish the correctness or otherwise of the allegations made against SARFU by MR VAN ROOYEN and others could be appointed. It was furthermore agreed that the Task Team would be chaired by the Director General and that it would conduct its investigations as soon as possible with a view to urgently reporting back to the Minister within a period of two weeks.
25.5 The agreement reached expressly provided that the procedure to be followed and manner in which the investigation was to be conducted was that SARFU would first be given the opportunity to answer to all allegations made against it by VAN
ROOYEN and others. (My emphasis).
25.6 It was furthermore agreed that in the event of the Minister and/or Director General not being
“ satisfied with the response on behalf of SARFU, the Task Team would be at liberty to make use of any expertise necessary to authenticate SARFU’s response to the specific allegations put to it. The aforegoing agreement is hereinafter referred to as ‘the agreement’.
25.7 Arising out of the agreement SARFU insisted on being provided with a copy of the VAN ROOYEN dossier. The Minister and the Director General, however, stated that they were precluded from doing so by the fact that it was handed to them in confidence. It was then raised by SARFU in the discussion that it then might have to approach the Court. The Minister’s reaction was that SARFU had the right to do so.
25.8 Subsequent to the meeting a press statement was issued by the Minister, a copy whereof is annexed hereto as annexure ‘F’(p. 159).”
Because of the importance of annexure “F” (159) I quote it in full:
“PRESS STATEMENT
The Minister of Sport and Recreation, Min Tshwete, his Director General, Mr Tyamzashe and his delegation met with a SARFU delegation led by its
President Dr Louis Luyt.
It was agreed that SARFU should be given the opportunity to answer to all allegations made against them by Van Rooyen and others.
The Minister will appoint a team under the leadership of Mr Tyamzashe.
Mr Tyamzashe will be able to make use of any expertise he may believe necessary in order to authenticate the answers given by SARFU. It was further agreed that no members of other sporting codes will form part of this team.
It is SARFU’s intention to apply to the Supreme Court on an urgent basis for the release of the Van Rooyen document. The Minister conceded that SARFU could proceed.”
It is clear from the applicants’ papers that they regard the term set out in paragraph 25.5 as of vital importance.
At 168 of the papers (annexure “K”) Luyt stated in a letter written to the DG on 20 March 1997:
“It follows that it is premature for you to call for SARFU’s co-operation as is done in paragraphs 1 and 2 on pages 2 and 3 of your letter under discussion before the Minister has intimated what (if anything) is to be enquired into, and what the documentary evidence is to be relied upon for such enquiry.”
On 29 July 1997, Messrs Rooth and Wessels, applicants’ attorneys, wrote a letter (annexure “W” at 195-6) suspending co-operation with the Task Team
“until our client has been advised of every allegation and by whom and when so made ...”
The respondents’ answering affidavit (deposed to by the DG) replied to the averments contained in paragraph 25 of the founding affidavit as follows (at 338-342):
“18.1 At the meeting of 21 February 1997, the appointment of the task team, its mandate and the manner of its investigation were discussed. The minister and the department participated in the discussion in a spirit of co-operation and in an endeavour to avoid confrontation. We never suggested, however, that those were matters for negotiation and agreement. In the appointment of the task team and determination of its mandate
and manner of investigation, the minister exercised his executive powers and did not in any way do so subject to negotiation and agreement with SARFU.
18.2 The minister and the department appreciated at the time that the task team would not have any legal standing or powers of compulsion. It was however the minister’s preferred vehicle of investigation because it was less formal, quicker and cheaper than a presidential commission of inquiry. He hoped that it would achieve its purpose by persuading SARFU to co-operate with it. He appreciated and made it clear, however, that
“ if their co-operation was not forthcoming, he might have to seek the appointment of a commission of inquiry. (My emphasis)
18.3 We discussed these matters with the SARFU delegation and they promised their co-operation.
18.4 The SARFU delegation was anxious to ensure that they would be given an opportunity to answer all the allegations made against them by Mr van Rooyen and others before the task team made any findings on those accusations. The minister assured them that they would be given an opportunity to do so.
18.5 Dr Luyt’s suggestions in paragraph 25.5 and 25.6 of his affidavit,
- that SARFU would first be informed of the accusations made against it;
- that SARFU would then be given an opportunity to respond to those accusations, and
- that the investigation of the task team would then be limited to those matters in respect of which the minister or I were not satisfied with their response,
are not correct. Many of the accusations made against SARFU were serious and substantial but made in general and
unsubstantiated terms. They could not be meaningfully put to SARFU and the latter could not meaningfully respond to them before the task team had investigated those accusations. The minister’s assurance given to SARFU accordingly went no further than that they would in due course be given an
opportunity to respond to the accusations against them before the task team reported on those accusations. (My emphasis) 18.6 The SARFU delegation pressed for disclosure of the Van Rooyen dossier.
The minister and the department explained that they had no objection to such disclosure except that we
“ had received the dossier subject to an express condition of confidentiality and could accordingly not disclose it to SARFU without Mr van Rooyen’s permission.
18.7 I had in fact attempted to obtain his permission for disclosure of his dossier to SARFU. I refer in this regard to the following letters in the respondents’
exhibits file exchanged with Mr van Rooyen’s attorneys:
(I have omitted certain irrelevant matter from paragraph 18.7.)
18.8 We did, however, not succeed in obtaining Mr van Rooyen’s leave to disclose his dossier to SARFU. We were accordingly not at liberty to do so.
18.9 The SARFU delegation suggested that they might resort to an application to court to
“ compel disclosure of the dossier. The minister acknowledged that they fully entitled to launch such an application.
18.10 Dr Luyt’s suggestion that a binding contract was made at the meeting, is quite incorrect. We did no more than to discuss and agree upon a broad working
arrangement acceptable to both sides as a basis for co-operation. This arrangement was never intended to be a contract in law. Neither the minister nor the department considered the appointment of the task team, its mandate and its manner of
investigation, to be matters for negotiation and agreement and would not have entered into any contract fettering their executive discretion to act in the public interest.
18.11 Immediately after the meeting, the minister issued the press statement, annexure “S” at page 159 of the applicants’ founding papers.”
It is clear that the respondent’s deponent pertinently denied the averment that SARFU would first be informed of the accusations made against it. He states that “the Minister’s assurance given to SARFU accordingly went no further than that they would in due course be given an opportunity to respond to the accusations against them before the task team reported on those accusations”
(paragraph 18.5). (My emphasis.)
It is quite apparent from the affidavits (and confirmed by the evidence) that the divergent views on when the accusations would be made known to the applicants is the very crux of the dispute which later developed between SARFU on the one side and the Minister and the DG on the other. It was this dispute which led directly to the suspension of co-operation between SARFU on the one hand and the Minister, the DG and the Task Team on the other.
It is necessary to repeat the contents of par 8 of applicants’ replying affidavit (at 565-8 and paras 36 to 41 (at 592-6 of the papers) where applicants replied to the respondent’s averments concerning the agreement of 21 February.
3.2 A robust approach or a referral?
By reason of the very serious factual dispute as to the terms of the agreement of 21 February 1997, it would clearly not have been fair to either of the parties to have adopted the so-called robust approach and to have decided the matter
on the papers. Mr Trengove argued that this dispute could not be resolved on paper (paragraph 63 at 61 of his heads of argument of 21 January 1998). Mr Maritz argued prior to the referral that the court should adopt a robust approach and reject the respondents’ version on the papers as being
demonstrably false or untenable, but I did not agree with that submission. I agreed with Mr Trengove’s submission that the dispute could not be resolved on paper.
Mr Maritz went so far as to try to convince me that, instead of referring the matter, as a whole, to evidence, I should first decide various points of law which he had raised during the course of his argument prior to the referral.
Only if I should decide against him on all those points and refuse to robustly reject the respondents’ version as demonstrably false and untenable, did he submit, in the alternative, that the matter should to be referred to evidence in terms of rule 6(5)(g) of the rules of court. I specifically mention this to make it clear that Mr Maritz attempted to avoid the referral of the matter, as a whole, to evidence. However, I was of the view that it would not be possible to avoid a referral. As I saw it, the dispute concerning the terms of the agreement of 21 February 1997 was central to the dispute between the parties and the matter could not with justice and fairness to the parties be properly decided without the court having the benefit of hearing and seeing the deponents to the affidavits in the witness box.
Rule 6(5)(g) provides that “where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as to it seems meet with a view to ensuring a just and expeditious decision. In particular, but without affecting the generality of the aforegoing, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed to appear and be examined and cross-examined as a witness ...”
(I have omitted the latter portion of the sub-rule which is clearly irrelevant.) As indicated, I was satisfied that the application could not be properly decided on affidavit as far as both issues referred to evidence were concerned and that it was necessary to refer those issues to evidence “with a view to ensuring a just and expeditious decision”. However, since I am now dealing with the referral of the first issue, viz the terms of the agreement of 21 February 1997, I shall at this stage confine myself to that issue.
Prior to the referral Mr Trengove did argue, in the alternative, that even if the applicants had established that the term in dispute had been agreed upon on 21 February 1997, that would not afford them grounds for attacking on review the President’s decision to appoint the Commission (paragraph 63 at 61 of his heads). I shall deal with this argument in due course. As I viewed the matter at the time, I did not regard that argument to be so conclusive of the matter that it would be unnecessary to determine what the terms of the agreement were.
I may add, at this stage, that although the order of referral referred to the
“agreement” of 21 February 1997, I did not thereby pre-empt the respondents’
denial that an agreement in the ordinary sense of the word had been arrived at and only a “working arrangement”. (See paragraph 18.10 on 342 of the papers.) The word “agreement” was simply used as a convenient label to include both the concept of “agreement” as referred to in paragraph 25 of the founding affidavit, as well as the idea of a “working arrangement” as
contained in paragraph 18.10 of the answering affidavit.
3.3 Draft referral orders are requested:
When I requested counsel to prepare draft referral orders in the event of the court finding that the matter should be referred to evidence, Mr Bham who at that stage appeared alone for the respondents, formulated the first issue as follows:
“2.1.2 Was the First Applicant entitled, in terms of the parties’ agreement made on 21 February 1997 and 3 April 1997 to withhold its co- operation with the Task Team until it had been
“ furnished with full particulars of the accusations against it?
2.1.2 (sic) Did the agreements referred to above in fact give rise to a legitimate expectation as contended for by the applicants.”
Mr Maritz contended, in answer to this draft, that neither the applicants nor the respondents rely in the papers on any agreement arrived at on 3 April 1997. He submitted that paragraph 2.1.2 was too widely formulated since there was no dispute as to what had occurred on 3 April 1997. He accordingly objected to a reference to an agreement of the parties made on 3 April 1997 being included in the order of referral. Mr Maritz pointed out that applicants’
counsel foresaw that events prior to 21 February 1997 would be relevant to decide what was agreed upon that date, but that it was unnecessary to include a reference thereto. He also argued that the second paragraph 2.1.2 of Mr Bham’s draft amounted to a legal conclusion and that it was accordingly unnecessary to include it in the order for referral.
3.4 Findings relating to the draft orders:
For the sake of convenience, I shall deal with the second paragraph 2.1.2 of Mr Bham’s draft first. I agreed with Mr Maritz’s submission that it amounted to a legal conclusion. I accordingly found it inappropriate to include it in the order of referral.
I agreed with Mr Maritz’s argument relating to Mr Bham’s first paragraph 2.1.2. In my view, it is clear that neither the applicants nor the respondents have averred in their affidavits that any agreement was arrived at on 3 April 1997, save for the respondents’ averment (in paragraph 30.9 at 351) that it was agreed at the meeting that neither side would issue a press statement without informing the other. The respondents add that “The purpose was merely to ensure that both sides were kept informed”.
4. THE PARTIES’ AVERMENTS CONCERNING THE EVENTS OF 3 APRIL 1997:
4.1 The issues raised on the affidavits:
Since the issue whether any agreement was arrived at on 3 April 1997 became important during the course of the trial, it is necessary to set out in
considerable detail the parties’ averments in their affidavits concerning the events of 3 April 1997.
The applicants deal with the events of that date in paragraph 31.3 to 31.12 of their founding affidavit (at 38-42). In paragraph 31.1 and 31.2 the deponent (Luyt) referred to his letter to the DG (at 175) in which he says he “confirmed that SARFU shared the Minister and the Director General’s view that such concerns as might exist in South African rugby be resolved openly, fairly and objectively. I consequently invited the Task Team to meet with SARFU”.
He continues as follows:
“31.3 Pursuant hereto a meeting was arranged for 3 April 1997 at my office at Ellis Park, Johannesburg.
31.4 This meeting was then held and attended by myself, MR R
OBERHOLZER, MR H ERASMUS, MR I BLOOM, the financial manager of SARFU, MR W B KRUGER, the managing director of Ellis Park stadium, MR J PRINSLOO, the chief executive
“ officer of the Gauteng Lions Rugby Union, MR A COSTA, an attorney at that time representing SARFU, MR M TYAMZASHE, the Director General, and members of the Task Team, i.e. MR M KATZ (an attorney), advocate G MARCUS SC and MR G MALINDI.
31.5 The meeting started off in a friendly atmosphere, in discussing the way in which the Task Team would work. It was stated that their work would be divided up and that each of the Task Team would be in charge of a particular aspect.
31.6 It was emphasized by the Director General that there would be no witch hunt and that allegations of a personal nature were not part of the Task Team’s brief. Mr KATZ said that allegations would be discussed with SARFU ‘over a cup of tea’, and that SARFU would get a chance to answer all allegations. It was stated that thereafter the Task Team could have an opportunity of verifying SARFU’s answers.
“31.7 Mr ERASMUS made the point that it was not to be an enquiry into the affairs of SARFU, but into rugby in South Africa. This was accepted by those present, and confirmed by the Director General.
31.8 SARFU tried to find out how long the investigation would continue.
SARFU wanted it to be completed before the visit of the British Lions rugby team to South Africa which was to start on 24 May 1997. The members of the Task Team indicated that they intended to finalise the
investigation before that date.
31.9 SARFU was still willing to cooperate as it had nothing to hide and the investigation would offer it the opportunity of once and for all
clearing the air of the innuendos and adverse publicity to which SARFU had unfairly been subjected. Mr OBERHOLZER again stressed that SARFU was to be afforded every opportunity to answer any allegation against it. SARFU was of the view that nothing of substance could be levelled against it. SARFU’s willingness to cooperate was throughout premised on the
“ agreement that it would first be provided with all allegations against it that required investigation.
31.10 It was also agreed that no press statements would be made before the other party had been informed thereof.
31.11 The next day SARFU received a draft intended press statement from the Director General, a copy of which is annexed hereto as annexure ‘N’ (p. 177). This draft contained an invitation to the public to make representations to the Task Team.
Because this was completely contrary to the agreement and amounted to a fishing expedition, SARFU objected thereto and this was communicated to the Director General by SARFU’s attorney. The upshot of this was that it was agreed that the press statement would be corrected by deleting the invitation to the public.
“31.12 Arising out of the aforegoing, an amended press statement dated 4 April 1997 was released by the Director General. A copy thereof is annexed hereto as annexure ‘O’ (p. 179).”
The respondents’ deponent (the DG) answered hereto as follows (at 349):
“30. AD PARAGRAPHS 31.3 TO 31.10
30.1 In these paragraphs Dr Luyt deals with the meeting between SARFU and the task team held on 3 April 1997. The purpose of the meeting was to discuss the manner in which the task team would undertake its investigation.
30.2 I explained how the task team proposed to do its investigation. I said that it would be divided up and that each of its members would assume responsibility for a particular aspect of the investigation. I
emphasized that the task team did not intend to conduct a witchhunt and that its purpose was to establish the truth. I again assured SARFU
“ that the task team would not make any findings adverse to SARFU without giving it adequate opportunity of answering the accusations
made against it.
We never implied or suggested, however, that SARFU would first be furnished with particulars of the accusations against it and would be allowed an opportunity to respond to those accusations before the task team investigation got under way.
30.4 It was envisaged that the task team would undertake its investigation in an informal way. It was in this context that it was suggested that they would discuss matters with SARFU “over a cup of tea”. My
recollection, however, is that the suggestion came from SARFU’s attorney, Mr Alec Costa and not from Mr Katz.
30.5 Mr Erasmus may well have made the point that the investigation was not to be an enquiry into the affairs of SARFU as such, but rather
“ into rugby in South Africa. Nobody was however under any illusion that the investigation would, inter alia, focus on SARFU as the body in control of rugby at national level.
30.6 The task team indicated that it intended to finalise its investigation before commencement of the British Lions rugby tour because they did not want to jeopardise SARFU’s tour program. Their intentions were, however, ultimately frustrated by SARFU’s lack of co-operation.
30.7 It is correct that SARFU again protested its innocence and promised co-operation. They failed however to make good on that promise.
30.8 The statement in paragraph 31.9 that SARFU’s offer of co-operation was “premised on the agreement that it would first be provided with all allegations against it” is however unfounded. The very purpose of the investigation of the task team was to
“ determine whether or not there was evidence to prove the
accusations against SARFU. Only when its preliminary investigations had been completed, would the task team have been in a position to inform SARFU of the matters which called for explanation and would it have been given an opportunity to give one.
30.9 It was agreed at the meeting that neither side would issue a press statement without informing the other. The purpose was merely to ensure that both sides were kept informed.”
4.2 Neither party alleged an agreement on 3 April 1997 or an amendment of the agreement of 21 February:
To my mind, it is quite clear that neither party alleged that any agreement was entered into on 3 April 1997 save for agreeing that neither side would issue a press statement without informing the other.
Seen in its context the latter agreement is, in my view, not significant,
especially if one sees it against the background of the deponent’s averment that the purpose of this was merely to ensure that both parties were kept informed. In the applicants’ reply it is stated (at 603) that
“the allegation in paragraph 30.9 is not entirely correct. The
underlying idea was that it would be done for purposes of procuring the other side’s approval”.
The important point, however, is that neither party averred that the agreement or working arrangement of 21 February 1997 had been amended, substituted or waived by any agreement or conduct of 3 April 1997.
I was accordingly of the view that Mr Maritz was correct in contending that no agreement, relevant to the agreement of 21 February 1997 had allegedly been concluded on 3 April 1997, and that accordingly Mr Bham’s reference to an agreement of that date was irrelevant.
I may add that prior to argument on the terms of referral, Mr Trengove had argued that “even if the agreement of 21 February was the one contended for by the applicants, then the parties amended it on 3 April”. See his heads of argument dated 21 January 1998, at 61 and 62-72.
As indicated, the respondents’ deponent does not aver that the agreement of 21 February 1997 was amended on 3 April 1997.
Neither does the applicants’ deponent aver such an amendment. To my mind, there is no merit in the argument that the affidavits disclosed any amendment to the agreement of 21 February 1997 on 3 April 1997.
4.3 The issue arises again during the hearing:
4.3.1 During Luyt’s cross-examination:
The issue whether any agreement was concluded between the parties on 3 April 1997 which was relevant to the
agreement of 21 February again arose during Mr Trengove’s cross-examination of Luyt.
It arose in the following way. Mr Trengove, referring to the meeting of 3 April 1997 put the following question to Luyt (record 153:5-8):
“Dit was baie duidelik gemaak in daardie vergadering dat u samewerking was onvoorwaardelik en ongekwalifiseerd geverg en u het daardie onderneming gegee.”
In his following question to Luyt, Mr Trengove put the following to him:
“Beide Mr Katz en die D.G. het gesê dat hulle verg van u ‘n onvoorwaardelike en ‘n ongekwalifiseerde onderneming van
same-werking. Mnr Katz het bygevoeg dat hy nie weer wil betrokke raak in ‘n debat oor prosedure nie.” (Record 153:10-13.)
Mr Maritz objected to this line of cross-examination, as he put it. His objection was that that line of cross-examination referred to matters which were not part of the issues and were accordingly irrelevant and inadmissible.
The court sustained Mr Maritz’s objection (record 197-206).
The reasons which actuated that decision do not have to be repeated here. In that judgment I referred to several aspects to which I have also referred above.
I would refer particularly to what the court found at 205:2 to 21 and to the cases of Wepener v Norton supra at 658-659 (referred to at 199:21 et seq) and Drummond v Drummond supra at 170G-H where TRENGOVE, AJA said the following:
“When a matter is referred to oral evidence under Rule 6(5)(g), the parties are usually limited in their evidence to the proof of the allegations in their affidavits. The mere fact that a dispute has been referred to oral evidence does not enlarge the scope of the inquiry (Wepener v Norton 1949 (1) SA 657 (W) at 658). But the ambit of an inquiry as
indicated in the affidavits may be extended by the terms of reference and, in special circumstances, also by the Judge presiding at the hearing, subject, of course, to the absence of prejudice to the “other party not remediable by an
appropriate order as to costs.”
In the instant case the ambit of the inquiry as indicated in the affidavits was not extended by the terms of reference. Nor was the court requested at any stage of the proceedings by virtue of alleged special circumstances to extend the ambit of the enquiry. The question whether such an extension would have caused prejudice not remediable by an appropriate order as to costs accordingly never arose.
A related question did, however, arise during argument at the end of the case, viz whether evidence which had
rightfully emerged during the course of hearing evidence on the two issues referred to evidence, and which was relevant to such issues, but was also relevant to other issues which had not been referred to evidence, could be taken into account as part of the evidence before court in deciding the latter issues. It is not appropriate to deal with this question at this stage. I shall deal with it later.
Shortly after Mr Maritz’s objection, referred to above, was sustained, he again objected to Luyt’s cross-examination by Mr Trengove in regard to whether any condition had been coupled by SARFU to the assurance SARFU had given the Task Team that they should count on SARFU’s co-operation and support. Luyt replied that no such condition had been stated in the press statement issued after the meeting, but that such a condition had been put during the meeting. Mr Trengove asked who had done so. Mr Maritz objected to the cross-examination on this point on the basis that the only purpose of the questions was to show that a new legal act (“regshandeling”) had taken place on 3 April. He submitted that the court’s previous ruling was still applicable. The court considered, that although the question put came very close to what had been ruled in its previous ruling, it did not come so close to it that the question should be disallowed.
The court was of the view that the question fell within the defence raised in paragraph 30.8 of the answering affidavit.
The question was accordingly allowed. (The judgment appears at 216-218 of the record.)
Luyt’s cross-examination in relation to the meeting of
3 April continued (at 219). At 220:23-24 Mr Trengove put it to Luyt that SARFU accepted that co-operation with the Task Team was not subject to any condition (i.e. that particulars of the accusations against SARFU would be provided to it first). Mr Maritz again objected to the question (220:24 et seq).
The following passage (record 222:9 to 223:30) conveys what occurred during argument as well as the court’s ruling in regard to the objection:
“Hof: Mnr Maritz die hof moet weet wat het gebeur by die vergadering van 3 April “onderhewig daaraan dat wat ek reeds voorheen beslis het nie op die tafel is nie. Daar is nie
‘n onvoorwaardelike en ‘n ongekwalifiseerde onderneming op die tafel nie. Dit is nie ‘n geskilpunt nie. Maar daar is ander geskilpunte oor wat gesê is en wat nie gesê is nie en die hof moet weet. Hoe gaan ek weet as ek my oë kort moet sluit vir sekere goed wat gesê is en gedoen is?
MNR MARITZ: U edele, dit is so. Maar terselfdertyd dit is
‘n moeilike aangeleentheid om te hanteer vir myself ook sekerlik en my geleerde vriend na aanleiding van u reëling.
Die situasie waarin ek myself bevind namens my kliënte is eenvoudig net dit, daar is ‘n reëling waar ons beswaar gemaak het en wat u edele bevind het meriete in gehad het.
Ons kan nie met respek dat die beswaar en die reëling eenvoudig onder die mat ingevee word en ander etikette
geheg word en presies dieselfde resultaat bereik word nie.
Dan frustreer dit die hele oefening “en dan frustreer dit ook u hele reëling en daarom besef ek, u edele, dit is
ontwrigtend, daarom is ek maar op die been. Ek besef dat dit is ‘n moeilike skeidslyn en daarom doen ek aan die hand die werklike vraag, die werklike onderskeiding lê daarin gaan dit lig werp op wat gebeur het op 21 Februarie en of dit nie die doel is nie?
HOF: Wel, hoe sal ek weet as ek die antwoorde nie hoor nie? Daar moet ‘n mate van vryheid toegelaat word en dit mag wees dat u beswaar word genoteer en as dit later sou blyk dat van die vrae oorskry het op die reëling wat ek reeds gemaak het, dan kan u my later toespreek oor daardie vrae en die antwoorde wat na aanleiding daarvan gegee is.
MNR MARITZ: Mag dit u behaag.
HOF: Maar ek dink op die huidige, mnr. Maritz, sou dit goed wees as ons ‘n bietjie voortgang kan kry sonder dat ek u “wil belet om beswaar te maak, maar as ons dit so hanteer soos wat ek aan die hand gegee het, dan kan ons aan die einde van die saak weer na die vrae en antwoorde kyk en as sekere vrae en antwoorde ontoelaatbaar was, dan is dit ontoelaatbaar. Maar ek dink op hierdie stadium moet ek maar die getuienis hoor van wat op 3 April gebeur het onderhewig natuurlik dat ek gaan nou nie die poort oopgooi vir mnr. Trengove om nou nuwe verwere te kom stel wat nie op sy verklarings blyk nie.
MNR. MARITZ: Mag dit u behaag.
HOF: Maar daar is fyn onderskeidinkies wat ons moet maak nou en ek dink ons moet miskien maar daardie fyn
onderskeidinkies later maak as ons die papier voor ons het.
Mnr. Trengove, ek dink u sou goed vind wat ek nou gesê het dat onderhewig daaraan dat ek nou nie vir u die poort
oopgooi om te sê u kan nou enigiets wat nie op die verklarings is opper as verwere nie, maar dat ons maar voortgaan en dat ons dan aan die einde tydens betoog as ons die getuienis ook dan voor ons het, kan daar geargumenteer word maar hierdie is buite die veld en hierdie is nie buite die veld nie.”
Mr Trengove’s question was accordingly allowed. It is not relevant at this stage to refer to Luyt’s replies to the cross- examination which followed. I merely refer to the court’s aforesaid rulings in order to indicate how matters arising from the meeting of 3 April were dealt with, in view of the issues between the parties as they appeared from the
affidavits.
4.3.2 During the DG’s evidence:
During the DG’s evidence in chief a similar point arose.
The witness was testifying about a press statement which appears at 179 of the papers and which had been issued after the meeting of 3 April 1997 between SARFU and the Task Team. With reference to the last sentence thereof the
witness testified that such an assurance (of co-operation) had been given during the meeting of 3 April 1997. Mr
Trengove then asked whether it was subject to any condition or qualification (record 703:28). Mr Maritz objected to the question.
I sustained the objection (706-708) on the basis that the question was not relevant to the issues raised in the affidavits or to the issues which had been referred to evidence.
Further aspects relating to the admissibility of evidence relating to the meeting of 3 April 1997 arose at a later stage during the hearing of evidence. I consider that it is
necessary to deal with it now to complete the picture in regard to the question of admissibility in so far as the meeting of that date is concerned.
4.3.3 Before calling Katz, Marcus and Malindi:
Before calling Katz, Marcus and Malindi to testify in relation to the meeting of 3 April, Mr Trengove requested the court to make a ruling in advance relating the
admissibility of these witnesses’ evidence viewed in the light of the parties’ affidavits relating to the meeting of that date. Counsel informed the court of the five main
propositions in support of which they proposed to lead the witnesses’ evidence and which they perceived might be controversial. The court would then be asked for a ruling whether or not it would be permissible for respondents’
counsel to lead that evidence (record 767:11 to 25).
The five propositions were stated (at 969:4 to 17) as follows:
“1. The task team described the scope of their investigation to Sarfu as being in the broad areas of administration,
“ development programmes, representi-vity, media and ownership of stadiums.
2. The task team emphasised the need for cooperation from Sarfu and its affiliates.
3. Sarfu assured the task team that they could count on the cooperation and support of Sarfu and its affiliates.
4. It was not suggested that their cooperation was governed by or subject to an existing agreement which made it
conditional on particulars of accusations being given to them first.
5. Sarfu did not suggest that its assurance of cooperation and support was subject to such a condition.”
On the relevance of the evidence Mr Trengove said the following (969:28 - 970:7):
“My lord, as far as relevance is concerned, we submit that the five propositions are all relevant to the first issue before the court, namely whether there was an existence at the time an agreement such as the one contended for by the applicants which made their cooperation conditional on particulars of accusations being given to them first.
We submit that these propositions and particularly 3, 4 and 5 tend to show that there was no such agreement in place at the time. So we do submit that the evidence would be relevant to issue Nr. 1.”
Dealing with the question whether the evidence had been
foreshadowed in the papers, Mr Trengove referred to a passage in paragraph 31.9 in the founding affidavit (at 40) where SARFU’s deponent stated that “SARFU’s willingness to cooperate was throughout premised on the agreement that it would first be provided with all allegations against it that required
investigation”.
Counsel pointed out (970:23-29) that this allegation had been placed in dispute (at 351 in paragraph 30.8) where the DG said that “the statement in paragraph 31.9 that SARFU’s offer of co- operation was ‘premised on the agreement that it would first be provided with all allegations against it’ is however unfounded”.
Mr Trengove then continued as follows (971:5 to 25):
“The evidence that we tender and the five propositions in support of which we will seek to do so, we submit will show that the promise of cooperation was not founded on any such a premise as contended for by Sarfu and that the evidence accordingly will go to an issue arising on the papers.
My lord, in the past in debating the admissibility of related evidence, questions have been raised whether this evidence has not amounted to an amendment of an existing agreement and if so whether such an amendment “has sufficiently been foreshadowed
in the papers.
We would submit that whether the evidence would amount to an amendment or not is not the issue. The evidence is not being tendered to prove in this enquiry, is not being tendered to prove an amendment. The evidence is being tendered to prove that the agreement contended for by the applicant, was not the true agreement between the parties because at the meeting of 3 April, Sarfu acted inconsistently with what it contends the agreement was, but consistently with what the respondents contend the agreement was and the evidence is for that reason both relevant and foreshadowed by an issue crystallised on the papers.” (My emphasis.)
Mr Maritz submitted that this was the first time, since the issue relating to admissibility of events at the meeting of 3 April had arisen, that respondents’ counsel were advancing the proposition that the evidence relating to the events of that date, was being tendered only to shed light on what occurred on 21 February, and for no other purpose (973:15-24). If respondents’ counsel had stated before that they intended tendering the evidence relating to 3 April on the basis, not of proving that any agreement or any amendment of the agreement of 21 February took place on that date, but merely to cast light on 21 February, applicants’ counsel would not have opposed it (975:16-24). It would have been admissible (976:21-30). Mr Maritz accordingly did not oppose the evidence being admitted on that basis, but he stated that that was subject to two qualifications. The first was that the purpose of tendering the evidence relating to 3 April, as stated expressly by Mr Trengove, would not be to prove or support an agreement or an amendment thereof, but only to cast light on the events of 21 February (974:20-30). He added the following (at 975:1-7):
“Kruisondervraging van die getuies mag egter in die proses antwoorde uitlok en ons wil nie met respek in ‘n argument later inloop deur “kruisondervraging toe te pas op hierdie feitlike basis ons die deur oopgemaak het vir ‘n argument dat daar ‘n wysiging van ‘n ooreenkoms was of ‘n nuwe ooreenkoms nie. Die
skeidslyn tussen die twee is besonder dun en dit berus op dieselfde feite.”
The same was stated at 972:15-27 and 976:10-19).
Mr Maritz’s second qualification was as follows (975:8-13):
“Die tweede kwalifikasie is dat dit is getuienis wat nou op die tafel geplaas word, vir die eerste voor u edele geplaas word wat nie vantevore aangebied is nie en wat ons nie oor gekruisverhoor het nie en wat ons getuienis sou kon aanbied en uit die aard van die saak hou dit benadeling vir ons in, omdat dit nou vir die eerste
keer aangebied word.”
This argument was further expanded upon at 977:1-14.
Mr Trengove replied to these arguments at 977:26 - 978:16). His reply to Mr Maritz’s first qualification was as follows (977:26 - 978:6):
“MR TRENGOVE: My lord, as far as my learned friend’s first concern or condition or qualification is concerned, we have no difficulty. It seems to us that evidence in these proceedings is admissible only in the resolution of the matters referred to evidence and it is not admissible for any other purpose so that it seems to us to be a given that the evidence adduced in this
hearing may be used only for resolution of the issues referred and not for resolution of anything else. The rest of the case will have to be decided on the papers according to the rules that govern paper evidence.”
In my view, Mr Trengove hereby clearly accepted Mr Maritz’s first qualification.
Indeed, as indicated, Mr Trengove had from the outset of his argument relating to the ruling requested for, expressly stated that the evidence relating to the meeting of 3 April was not being tendered to prove that any agreement or any amendment of an agreement was agreed upon at that meeting, but to prove that at that meeting SARFU acted inconsistently with what it contended the agreement of 21 February was, but consistently with what respondents contend the agreement on that date was.
It has been necessary to spell this out in detail since respondents’
counsel in their argument at the end of the case submitted the following in paragraph 74 (at 55) of his heads of argument:
“But whateve