Court name
Supreme Court
Case number
SA 7 of 2013
Case name
Government of the Republic of Namibia and Others v Katjizeu and Others
Media neutral citation
[2014] NASC 17
Judge
Shivute J










IN
THE SUPREME COURT OF NAMIBIA






CASE
NO.: SA 07/2013


DATE:
29 OCTOBER 2014


REPORTABLE


In
the matter between:


GOVERNMENT
OF THE REPUBLIC OF NAMIBIA......................................First
Appellant


MINISTER
OF AGRICULTURE, WATER AND FORESTRY.......................Second
Appellant


MINISTER
OF SAFETY AND
SECURITY.....................................................Third
Appellant


MINISTER
OF
JUSTICE.............................................................................Fourth
Appellant


And


KARANDATA
KATJIZEU & 31
OTHERS...........................................................Respondents






Coram:
SHIVUTE CJ, MAINGA JA and HOFF AJA


Heard:
19 June 2014


Delivered:
29 October 2014










APPEAL
JUDGMENT






SHIVUTE
CJ (MAINGA JA and HOFF AJA concurring):


Background


[1]
This is an appeal against the judgment of the High Court concerning a
dispute about the number of cattle seized from the respondents by the
first appellant. The respondents, all residents of Gam settlement,
entered the Nyae Nyae Conservancy in the Tsumkwe area with a large
number of cattle, goats and sheep. For the purposes of controlling
and preventing animal diseases as well as parasites in terms of the
relevant provisions of the Animal Diseases and Parasites Act 13 of
1956, Namibia is demarcated into three zones, namely Free Zone,
Buffer Zone and Infected Zone. A 'Free Zone', as the name implies, is
free from Foot and Mouth Disease (FMD) as well as lung sickness. Gam
area falls within the Free Zone. Tsumkwe settlement on the other hand
is classified as a Buffer Zone, meaning that as animal diseases are
known to spread from the infected zone to this area, the Buffer Zone
is used to prevent FMD spreading from the Infected Zone to the Free
Zone.






[2]
The farmers entered the Nyae Nyae Conservancy without the necessary
permits at a point where the Veterinary Cordon Fence was damaged and
erected cattle kraals in the Conservancy. Consequently, they were
arrested by the Namibian Police and their cattle seized by the first
appellant. The farmers claim that they had decided to unlawfully
enter the Buffer Zone, amongst other things, due to a poisonous plant
known as cymosium dichapetalum that was killing their
cattle. A dispute arose as to the exact number of cattle seized. The
history of the dispute is succinctly summarised in the heads of
argument filed on behalf of the respondents and I find it convenient
to refer to that summary at length to continue giving the background
information. The summary goes as follows:






'The
respondents, all farmers from the Gam area, were arrested by the
Namibian Police and their cattle seized during April and May 2009 in
an area north of the veterinary cordon between Gam and Tsumkwe. The
appellants refer to the area as the ‘Nyae-Nyae
Conservancy
.






The
respondents subsequently launched a review application to set aside
the decision to confiscate and dispose of the cattle seized from
them.






The
review was lodged in the ordinary course given an undertaking by the
appellants not to dispose of the animals pending the review.






In
support of the review application a list of cattle confiscated was
attached to the founding affidavit. This annexure lists a total of
2177 head of cattle.






The
review was opposed by the appellants on 17 July 2009 and eventually
on 3 November 2009 the record relating to the decision that was
sought to be reviewed was filed.






Whilst
the review was still pending and on 17 November 2009 the respondents
brought an urgent application under the same case number seeking to
interdict the appellants from disposing of the cattle pending the
determination of the review application.






In
the said interlocutory application the averments relating to the
number of cattle seized were on two occasions stated as follows:






The
total number of livestock confiscated as per annexure ‘K1’
is 2177 cattle, 100 goats and 49 sheep".






In
the answering affidavit to the interlocutory application dated 23
November 2009 the Permanent Secretary of the second appellant [Mr
Ndishishi] deals with the aforesaid averment as to the number of
livestock seized as follows:


I
deny that the livestock were confiscated either in May or April 2009
by the Namibian Police. It is indeed correct that the police seized
the cattle as set out in annexure ‘K1’ to the applicants’
papers. The respondent confiscated the said cattle in June 2009”.






On
3 December 2009 an interim interdict was granted to respondents
interdicting the appellants from disposing of the livestock.






In
an answering affidavit filed out of time and dated 14 July 2010, i.e.
about 8 months subsequent to the affidavit containing the admission
the Permanent Secretary points out that the matter has become settled
save for the number of cattle involved and then continues in an
attempt to withdraw the aforesaid admission in the following terms:






20.
As indicated herein before, the urgent application concerned an
interdict to stop Respondents from slaughtering the cattle. The
number of cattle impounded was not the issue and therefore not really
relevant to the urgent application. It was common cause that a number
of cattle were impounded and Applicants wanted to stop us from
slaughtering the cattle.






21.
The Second Respondent’s answering affidavit in the urgent
application was drafted by my legal representatives in great haste
and over a weekend. When I saw the figure of 2177 in the founding
affidavit, I trusted that it was correct. I had no basis to doubt the
correctness of the figure and I did not make any enquiries as I did
not deem it necessary. I also did not have personal knowledge of the
number of cattle, as I did not see it at any stage and I also did not
count the cattle.






22.
In fact, I was unaware of such admission until it was recently
pointed out to me.






23.
I can assure the Court that I made the admission inadvertently and
that it was a bona fide mistake. I humbly request the Court to accept
my explanation and allow me to withdraw same on the strength of my
explanation as set out hereinbefore. To deny me the opportunity to
withdraw the inadvertent admission will have severe financial
consequences for the State.”






As
a result of the fact that the issues between the parties, save for
the number of cattle impounded, had become settled, the Court was
approached by agreement between the parties to refer this issue to
oral evidence. This agreement between the parties was sanctioned by
the Court on 19 July 2010 which ordered as follows:






That
the only remaining issue between the parties is referred to oral
evidence, namely to determine the number of livestock seized by the
(appellants) apart from the livestock admitted by the respondents”.






When
the hearing for the oral arguments was about to commence, counsel for
the respondents sought to argue the question whether the Court should
allow the withdrawal of the admission in limine
but the Court declined to deal with the matter in
limine
and ordered the oral evidence to proceed which then
happened. Appellants’ Heads of Argument state the happenings on
that day as follows:






On
10 January 2011, when the matter was called to proceed as agreed but
before the presentation of oral evidence, the respondents, despite
the court order raised the issue that because there was an admission
by the second appellant’s Permanent Secretary on the number of
cattle (and) that the respondents are bound by that admission. The
legal representatives of the parties presented oral argument on this
point and the court ruled that oral evidence be presented on this
aspect. This is a confirmation of the court order referred to above”.






In
his judgment Ndauendapo J concluded with regard to the admission as
follows:






I
am not satisfied that a full and/or satisfactory and reasonable
explanation was given as to why Mr Ndishishi made the admission.
Leave to withdraw the admission is refused and the (appellants) are
therefore bound by the admission of Mr Ndishishi”.’






[3]
I may add that the High Court then found that in light of this
finding, it did not deem it necessary to consider the viva voce
evidence adduced before it. All the respondents testified and the
appellants also called witnesses to testify on their behalf. It is
clear from the evidence that the issue that had preoccupied the
parties during the hearing concerned the number of cattle confiscated
by the police. No evidence whatsoever was led regarding the
application for leave to withdraw the admission made by Mr Ndishishi.


Submissions
by counsel


[4]
Counsel for the appellants characterised the issue for decision by
this court as follows:






.
. . the question that arises for determination is whether on the
facts of this case, the court a quo was correct when it, despite the
parties’ agreement and its own order to have oral evidence
adduced in order to determine the amount of cattle impounded by the
Namibian Police, the court decided the very issue on a basis other
than the oral evidence without notice or consent of the parties?’






[5]
Counsel proceeded to contend, based on established principles, that a
court cannot decide an issue referred to it for decision by relying
on matters that were not put before it without inviting counsel to
make submissions on that particular issue.






[6]
Counsel for the respondents, on the other hand, argued that the High
Court was correct in finding that the admission could not be
withdrawn because, firstly, the ground advanced for the withdrawal of
the admission in question was not well-founded, and secondly, the
deponent to the affidavit in which the admission was made did not
give evidence under oath in the subsequent hearing. Therefore, so it
was contended, there was virtually no explanation given for the
intended withdrawal.


[7]
The legal principles relating to the withdrawal of an admission are
common cause between the parties. Mr Hinda who argued the appeal on
behalf of the appellants (together with Mr Mostert) submitted that
the number of cattle admitted was not an issue. In the submission of
counsel, the issue was the respondents' allegation that there were
more cattle over and above the number admitted and paid for by the
appellants in terms of the settlement agreement. He continued to
submit that the issue referred to oral evidence was the number of
cattle over and above that which was admitted in the settlement
agreement, not the admission made by Mr Ndishishi.


[8]
Counsel further urged the court to look at the entire context within
which the matter was heard in order to decide what issue was referred
to oral evidence. He conceded that there was no order made in respect
of the application for leave to withdraw the admission. He submitted
in that regard that the evidence given during the oral hearing
pertained to the number of cattle and not to the application for
leave to withdraw the admission made by Mr Ndishishi. He contended
that the manner in which the evidence was led at the hearing was not
done according to normal practice. One would not, at the inception of
the hearing, call 32 witnesses to demonstrate the number of cattle
they own. The parties made submissions on the application for leave
to withdraw the admission after which the court returned with an
order that the matter must be referred to oral evidence. Thereafter
the parties gave evidence pertaining to the number of cattle. The
court could have resolved the question of whether or not to grant
leave to withdraw the admission on the papers before it and it would
not have been necessary to refer that issue to oral evidence, which
in the submission of counsel strengthens the argument that the
question referred to oral evidence was not the issue of the
admission, but rather the issue of the number of cattle.






[9]
Mr Hinda argued that the court a quo erred in deciding an
issue that was not triable, namely the application for leave to
withdraw the admission. Counsel submitted that a referral to trial
was different from a referral to evidence on limited issues. In the
latter case the affidavits stand as evidence to the extent that they
deal with the disputes of fact; when evidence is needed to resolve a
dispute, the matter is decided on the basis of the affidavits and
oral evidence. In this case, the oral evidence was not considered by
the court a quo but simply ignored.


[10]
Counsel contended that the respondents entered into the settlement
agreement, and that they knew that the admission referred to in the
settlement agreement concerned the number of cattle already paid for
by the appellants rather than the application for leave to withdraw
the admission made by Mr Ndishishi. He continued to say that the
respondents could not approbate and reprobate.


[11]
Mr Frank, for the respondents (with him Mr P Kauta), submitted that
the application for leave to withdraw the submission made by Mr
Ndishishi on behalf of the appellants was not allowed at any point
during the proceedings prior to the judgment in the matter being
delivered. He continued to say that the matter referred to oral
evidence was the application for leave to withdraw the admission by
Mr Ndishishi. Counsel contended that the phrase in the settlement
agreement which states that the issue between the parties must be
referred to oral evidence, 'namely to determine the number of
livestock seized by the respondents, apart from the livestock
admitted by the respondents', refers to the admission made by Mr
Ndishishi. Counsel argued that the appellants were bound to seek
permission from the court to withdraw the admission, and that when
the settlement agreement was entered into, that admission had not
been withdrawn. This, according to counsel, is why the agreement
refers to the admission made by Mr Ndishishi.


[12]
Counsel further contended that the arguments by the appellants are a
belated attempt to create a misunderstanding. According to Mr Frank,
the court a quo could not foresee that Mr Ndishishi would not
testify and accordingly the judge made an order based on the issue of
the admission made by Mr Ndishishi on the basis of the affidavits
alone. He conceded that the evidence showed that the number of cattle
proved by the respondents was fewer than those admitted on behalf of
the appellants, but he added that the admission still stood as a
factor to be taken into account by the court, and it was within the
court’s discretion whether or not to allow the application. The
court in this instance refused to allow the application and
accordingly that was the end of the matter.


[13]
Mr Frank concluded his submissions with the contention that there was
no question that the admission made on behalf of the appellants did
not remain an issue because there was no basis to suggest that the
respondents had accepted the withdrawal and the appellants could not
continue as if it was not made.


The
applicable legal principles



[14]
As
indicated above, counsel agreed on the legal principles pertaining to
applications for leave to withdraw an admission, which have also been
correctly referred to in the judgment of the High Court. Where the
parties part company is on the application of those principles to the
facts of the case. In summary, the legal principles of application to
the appeal are as follows. A court is bound by an admission while it
is on record; an admission may be withdrawn if there is a reasonable
explanation as to why the admission was made and no prejudice is
suffered by the other party that cannot be rectified by an
appropriate cost order;
[1]
an admission eliminates the admitted fact from issues to be tried; it
must be justified by evidence that a reasonable basis exists for
making the reasonably mistaken admission and why a withdrawal ought
to be permitted;
[2]
the admission prohibits any further dispute of the admitted facts by
the party making it in evidence in order to disprove or contradict
it; the effect of the admission is that the admitted fact is not an
issue to be determined by the trial court and the trial court has no
jurisdiction to adjudicate upon it;
[3]
and a party must give full and satisfactory explanation on affidavit
as to how the admissions came to be made and apply formally for their
withdrawal.
[4]






[15]
For the purposes of this judgment, it is also important to consider
the law pertaining to settlement agreements. In Gollach Gomperts
(1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd
1978
(1) SA 914 (A) at 921, Miller JA made the following observations:






'In
Cachalia v Herberer & Co., 1905 T.S. 457 at p. 462,
SOLOMON, J., accepted the definition of transactio given by
Grotius, Introduction, 3.4.2., as






"an
agreement between litigants for the settlement of a matter in
dispute".






Voet,
2.15.1., gives a somewhat wider definition which includes settlement
of matters in dispute between parties who are not litigants and
later, 2.15.10., he includes within the scope of transactio,
agreements on doubtful matters arising from the uncertainty of
pending conditions "even though no suit is then in being or
apprehended". (Gane's trans., vol. 1, p. 452.) The
purpose of a transactio is not only to put an end to existing
litigation but also to prevent or avoid litigation. This is very
clearly stated by Domat, Civil Law, vol. 1, para 1078, in a
passage quoted in Estate Erasmus v Church, 1927 T.P.D. 20 at p
24, but which bears repetition:






"A
transaction is an agreement between two or more persons, who, for
preventing or ending a law suit, adjust their differences by mutual
consent, in the manner which they agree on; and which every one of
them prefers to the hopes of gaining, joined with the danger of
losing.”






A
transactio, whether extra-judicial or embodied in an order of Court,
has the effect of res judicata.’






[16] In PL v
YL
2013 (6) SA 28 (ECG) at 48 the court held that:






'The
suggestion that besides legislative support the encouragement of a
negotiated settlement also requires judicial support, is in my view
not something which is inconsistent with the policies underlying our
law. The settlement of matters in dispute in litigation without
recourse to adjudication is generally favoured by our law and our
courts. The substantive law gives encouragement to parties to settle
their disputes by allowing them to enter into a contract of
compromise. A compromise is placed on an equal footing with a
judgment. It puts an end to a lawsuit and renders the dispute between
the parties res judicata. It encourages the parties to resolve their
disputes rather than to litigate. As Huber puts it:






"A
compromise once lawfully struck is very powerfully supported by the
law, since nothing is more salutary than the settlement of lawsuits."






This
was confirmed by the appeal court in Schierhout v Minister of
Justice
1925 AD 417 at 423:






"The
law . . . rather favours a compromise . . . or other agreement of
this kind; for interest reipublicae ut sit finis litium."






[35]
As a natural progression of the notion that the resolution of
disputes by agreement, as opposed to litigation, is favoured and is
in accordance with the policy of our law, any action by the court
which has the effect of expressing a willingness to encourage the
settlement of disputes must equally be favoured.'






Karson
v Minister of Public Works
1996 (1) SA 887 (E) at 893F-H adds the
following:






'It
is well settled that the agreement of compromise, also known as
transactio, is an agreement between the parties to an obligation, the
terms of which are in dispute, or between the parties to a
lawsuit, the issue of which is uncertain, settling the matter in
dispute, each party receding from his previous position and conceding
something, either by diminishing his claim or by increasing his
liability
- see for example Cachalia v
Harberer & Co
1905 TS 457 at 462,
Dennis Peters Investments (Pty) Ltd v Ollerenshaw and
Others
1977 (1) SA 197 (W) at 202, Gollach
& Gomperts (1967) (Pty) Ltd v Universal Mills and Produce Co
(Pty) Ltd and Others
1978 (1) SA 914 (A) at
921,
Trust Bank van Afrika Bpk v Ungerer
1981 (2) SA 223 (T) at 225 and Tauber v Von Abo
1984 (4) SA 482 (E) at H  485-6. It
is thus the very essence of a compromise that the parties thereto, by
mutual assent, agree to the settlement of previously disputed or
uncertain obligations
- compare further for example Jonathan v
Haggie Rand Wire Ltd and Another
1978 (2) SA 34 (N) at 38 and
Mothle v Mathole 1951
(1) SA 785 (T) at 788G.
'


(Emphasis
is mine.)






[17]
A Canadian court has considered the effect of a settlement agreement
and the following was stated in George v 1008810 Ontario Ltd,
2004 CanLII 33763 (ON LRB) in para 23:


'At
common law, the effect of a settlement was to put an end to the
underlying cause of action: Halsbury’s Laws of England,
4th ed., vol. 37, para 391:






"Effect
of settlement or compromise. Where the parties settle or compromise
pending proceedings, whether before, at or during the trial, the
settlement or compromise constitutes a new and independent agreement
between them made for good consideration. Its effects are (1) to
put an end to the proceedings, for they are thereby spent and
exhausted, (2) to preclude the parties from taking any
further
steps in the action except where they are provided for liberty to
apply to enforce the agreed terms, and (3) to supersede the original
cause of action altogether.
A judgment or order made by consent
is binding unless and until it has been set aside in proceedings
instituted for that purpose and it acts, moreover, as an estoppel by
record." '


(Emphasis
is mine)






Application
of the law


[18]
A few details of this case must be highlighted here. The parties
entered into a settlement agreement. The appellants have in terms of
that agreement paid a certain amount to the respondents as
compensation for the seizure of 1182 cattle. The respondents
maintained that they were entitled to payment in respect of 2177
cattle. The parties then, according to the respondents’ own
written submission in the High Court which appears contrary to the
position now adopted by them on appeal ' . . . agreed to refer to
oral evidence the dispute concerning 995 cattle. As, Mr Ndishishi put
it, in monetary terms the dispute concerns a sum of N$3 245 690,00
due to the Applicants'.






[19]
The appellants’ written submissions in the High Court stated in
para 8 that '(t)he matter, except for one issue, became settled
between the parties. The farmers were paid for the cattle impounded
and the total number of cattle impounded was based on the version of
the respondents (appellants in this court), to wit - 1210 cattle. The
amount per head of cattle was an agreed rate. The issue that remained
for consideration and decision was the exact number of cattle
impounded. The applicants (respondents in this court) alleged that
2177 were impounded, whereas respondents (appellants in this court)
contend 1210. Evidence was presented by both sides as to the number
of cattle impounded and the court is now saddled with the onerous
task, if at all possible, to determine the number of cattle
impounded. If the determination remains impossible, it is submitted
that the court should grant absolution from the instance'.






[20]
I will approach the issues in the appeal in the following manner: (1)
which issue was referred for oral evidence? and (2) did the High
Court err in coming to its conclusion on the issue?


Which
issue was referred to oral evidence?


[21]
As indicated above, the confusion that emerged emanated from the
judgment of the High Court, which heard the oral evidence pertaining
to the number of cattle and then decided the matter based on the
application for leave to withdraw the admission made by Mr Ndishishi
on behalf of the appellants. What added to this anomaly was that the
settlement agreement - which was made an order of the court - stated
that the matter should be referred to oral evidence apart from the
admission made by the appellants. There were two admissions according
to the different submissions by counsel, namely the admission made by
Mr Ndishishi and the admission made in the settlement agreement in
terms of which the appellants have made payment to the respondents.


[22]
Mr Frank advanced arguments in support of his submission that the
admission referred to was the admission made on behalf of the
appellants by Mr Ndishishi, which concerned 2177 cattle. He submitted
that the admission made was never withdrawn, and that there was no
agreement between the parties that it should be withdrawn. Nor was
there an order of the court withdrawing the admission, and
accordingly it was appropriate for the court a quo to decide
the matter based on that admission.






[23]
Mr Hinda on the other hand contended that the admission referred to
concerned the number of cattle admitted in the settlement agreement,
in terms of which a certain amount had already been paid to the
respondents. As indicated above, he urged this court to decide this
issue by having regard to the context within which the issues were
heard in order to decide what was referred to oral evidence. He
submitted in the High Court that the parties agreed in the court
order that the contest concerned the number of cattle and the
respondent could not be allowed to approbate and reprobate.






[24]
It is clear from the heads of argument filed by the respondents in
the court below (which we especially requested in light of the
dispute over the precise issue referred to oral evidence) that the
parties understood that the matter which was referred to oral
evidence was the number of cattle, and not the issue of whether leave
to withdraw the admission made by Mr Ndishishi should be allowed.
Furthermore, I agree with the submission made by counsel for the
appellants that the manner in which the proceedings in the court a
quo
was conducted is a clear indication of an intention to
determine the number of cattle over and above that which was already
paid by the appellants to the respondents. The record utterly bears
out this contention.






[25]
At the commencement of the oral hearing, the respondents began
leading evidence, which would not have been the case if the issue
referred to oral evidence was the application for leave to withdraw
the admission. Had this been the case, the appellants would have
borne the duty to begin.






[26]
Mr Frank further argued that the admission made by Mr Ndishishi had
not been withdrawn and could only be withdrawn with the leave of the
court. He contended that it would have been possible to decide the
issue on the affidavits filed. He also submitted that there was no
question of the respondents agreeing to the withdrawal of the
admission.






[27]
Firstly, the question here is not whether an admission can be
withdrawn by a settlement agreement, but rather whether a settlement
agreement puts an end to the entire proceedings and its cause of
action, and substitutes it with the terms of the settlement
agreement. This is clear from the authorities cited. Once the parties
have entered into a settlement agreement, all issues previously in
dispute become res judicata as the proceedings come to
an end. Each party recedes from his previous position and concedes
something different. The effect of this in the present case is that
the dispute between the parties, including the admission made by Mr
Ndishishi, was no longer an issue to be adjudicated. As Mr Hinda put
it, the issue of the application for leave to withdraw the admission
'is no longer triable'. The admission which is referred to in the
settlement agreement was understood by the parties as that made in
the settlement agreement, and in terms of which payment was made by
appellants.






[28]
Secondly, the question before us is not whether the parties have by
agreement withdrawn the admission. The parties have voluntarily
entered into a settlement agreement and accepted the natural
consequences of such agreement which is, as set out above, that the
parties have substituted the proceedings before the court a quo
with the settlement agreement, which disposed of all issues except
the one remaining in dispute. The submission by Mr Frank that the
admission by Mr Ndishishi could only be withdrawn with leave of the
court a quo, and the authorities he cited to the effect that
an admission eliminates the admitted fact from dispute is legally
correct. However, this is so only in respect of the proceedings that
were subsequently replaced by the settlement agreement. As already
noted, by concluding an agreement or compromise the parties have
receded from their previous positions and conceded something, either
by diminishing their claim or by increasing their liability. What has
been referred to oral evidence by agreement of parties as sanctioned
by the court order is the determination of the number of livestock
seized by the appellants over and above the number admitted by the
appellants. I agree with Mr Hinda that the respondents cannot be
allowed to approbate by accepting payment for the number of cattle
admitted by the appellants, yet now seeking to reprobate by
resurrecting the admission made by Mr Ndishishi.






[29]
As previously indicated, the authorities emphasise the importance of
settlement agreements in litigation. It is reiterated here that the
settlement of disputes without recourse to adjudication is generally
favoured by our courts. As such, a higher premium should be placed on
these agreements.






Did
the High Court err in coming to its conclusion?


[30]
In light of the above, it is clear that the court below should have
reached a conclusion on the oral evidence and made a ruling only on
the single issue referred to it without reverting to the issue that
has become res judicata in light of the settlement
agreement.


[31]
I accordingly conclude that the appeal should succeed and the matter
be referred back to the High Court for that court to decide on the
number of cattle over and above those admitted by the appellants in
the settlement agreement by having regard to the oral evidence.



Costs


[32]
The respondents have asked only for costs of one instructed and one
instructing counsel, regardless of the fact that two counsel were
instructed. I did not hear the appellants make a similar submission.
However, I do not consider this matter sufficiently intricate or of
such a complex nature as to necessitate the services of two
instructed counsel. Accordingly, I would propose a costs order to
include the costs of one instructed and one instructing counsel.



Order


[33] The
following order is made:






1.
The appeal is allowed.






2.
The matter is referred back to the High Court for the determination
of the number of cattle over and above those admitted by the
appellants in terms of the settlement agreement by having regard to
the oral evidence.






3.
The respondents are ordered to pay the appellants’ costs of the
appeal, such costs to include the costs of one instructed and one
instructing counsel.










SHIVUTE
CJ






MAINGA
JA










HOFF
AJA







APPEARANCES






APPELLANT:
G S Hinda (with him C Mostert)


Instructed
by Government Attorney






RESPONDENTS:
T J Frank SC (with him
P Kauta)


Instructed
by Dr Weder, Kauta and Hoveka Inc







[1]
Law
of Evidence

issue 6, 2008, LexisNexis: Schmidt and Rademeyer.




[2]
Beck’s
Theory and Principles of Pleading in Civil Actions
,
6 ed.




[3]
Water
Renovation (Pty) Ltd v Gold Fields of SA Ltd

1994 (2) SA 588 at 605 and 606.




[4]
President-Versekeringsmaatskappy
Bpk v Moodley

1964 (4) SA 109 (TPD).