Merryweather v Scholtz and Another

During the early hours of 9 September 2006, a physical altercation occurred at an Engen garage in Newlands, Western Cape, between two groups of young men. Andrew Merryweather sustained a compression flexion type V fracture of his seventh cervical vertebrae with an incomplete spinal cord injury, leaving him permanently partially paralysed and wheelchair bound. Andrew alleged that Oliver Scholtz intentionally assaulted him by 'spear tackling' him against a stationary motor vehicle. Oliver denied the assault and pleaded self-defence, claiming he grabbed Andrew at the shoulders, turned him with a swivel action and pushed him away when Andrew rushed at him, whereupon Andrew accidentally lost his footing and fell. Oliver and others were criminally charged with attempted murder but were acquitted. Andrew instituted a delictual claim for damages. The trial court ruled that Oliver bore the duty to begin and the onus of proving self-defence, and found in Andrew's favour. The full court of the Western Cape Division set aside the trial court's order and dismissed Andrew's claim with costs. Andrew petitioned the Supreme Court of Appeal for special leave to appeal.

• Whether the trial court erred in ruling that the defendant bore the duty to begin and the onus of proving self-defence based on the pleadings
• Whether the trial court committed a material irregularity by relying on inadmissible hearsay evidence from the criminal trial
• Whether Andrew discharged the onus of proving on admissible evidence that Oliver 'spear tackled' him causing his injuries
• Whether the full court erred in its assessment of the evidence and application of legal principles regarding factual disputes
• Whether there were special circumstances justifying the grant of special leave to appeal to the Supreme Court of Appeal in terms of section 16(1)(b) read with section 17(3) of the Superior Courts Act

The appeal and cross appeal were struck from the roll with costs.

Where a defendant denies an assault in their plea and pleads facts 'in amplification thereof' rather than in confession and avoidance, the duty to begin and the overall onus of proof remains on the plaintiff. A trial court's reliance on inadmissible hearsay evidence constitutes a material irregularity. Hearsay evidence admitted provisionally under section 3(3) of the Law of Evidence Amendment Act must be left out of account if the witness does not testify and the evidence is not admitted under section 3(1)(a) or (c). Expert opinion evidence is of little value when experts testify on hypothetical scenarios without being presented with established factual evidence. Special leave to appeal to the Supreme Court of Appeal requires more than reasonable prospects of success - there must be special circumstances such as a substantial point of law, a matter of great importance to the parties or public, or prospects of success so strong that refusal would result in a denial of justice. The Supreme Court of Appeal will not interfere with a full court's decision on factual matters absent special circumstances, even if the decision may possibly be wrong.

The Court observed that the trial court's incorrect ruling on the duty to begin caused obvious prejudice to Oliver, who had to present his case before Andrew adduced any evidence and was deprived of the opportunity to apply for absolution from the instance at the end of Andrew's case. The Court noted with concern that the Supreme Court of Appeal is being inundated with appeals on factual issues which are not truly deserving of its attention, and emphasized that appeals do not assume importance or raise prospects of success by the mere say-so of an appellant. The Court stated that the appeal roll will be clogged unnecessarily if the trend of appeals on factual issues in non-deserving matters is allowed to continue. The Court also observed that the importance of a matter to individual litigants does not extend beyond the interest any litigant would have in achieving success and does not constitute special circumstances. The Court noted that expert witnesses should generally not be required to express opinions until they are presented with the factual evidence upon which they must express an opinion, citing PriceWaterhouseCoopers Inc and Others v National Potato Co-operative Ltd.

This case reaffirms important principles regarding: (1) the determination of the duty to begin and onus of proof based on pleadings - a defendant who denies an assault and pleads facts in amplification does not thereby bear the onus; (2) the strict application of the hearsay rule and section 3 of the Law of Evidence Amendment Act 45 of 1998 - provisionally admitted hearsay evidence must be left out of account if the witness does not testify and the evidence is not otherwise admitted; (3) reliance on inadmissible evidence constitutes a material irregularity; (4) the requirement for expert opinion evidence to be based on established facts rather than hypothetical scenarios; (5) the strict application of the special leave to appeal criteria under section 16(1)(b) of the Superior Courts Act - appeals on purely factual issues without substantial points of law or matters of public importance will not be entertained by the Supreme Court of Appeal even if two judges initially granted special leave on petition. The judgment emphasizes that the Supreme Court of Appeal will not reconsider factual disputes already comprehensively addressed by a full court absent special circumstances, and expresses concern about the Court being inundated with appeals on factual issues not deserving of its attention.