Saamwerk Soutwerke (the appellant) was granted a mining right in respect of Vrysoutpan by the Minister of Mineral Resources on 7 June 2011. SA Soutwerke (the second respondent) had been in possession of Vrysoutpan for many years based on a mining permit (MP169/2004) that Saamwerk alleged was forged. SA Soutwerke's original valid permit (MP169/2003) had been issued on 28 April 2004 by the regional director for one year, expiring on 27 April 2005. MP169/2004 appeared identical except it had no expiry date, suggesting perpetual validity. SA Soutwerke vacated the property on 25 June 2011 after judgment in earlier proceedings (Case 292/07). Saamwerk sued both the Minister and SA Soutwerke in delict for damages consisting of loss of profit for the period 1 January 2007 to 25 June 2011, alleging it had been prevented from mining by SA Soutwerke's reliance on a forged permit and the Department's failure to issue the mining right and prevent SA Soutwerke from mining. The trial court dismissed both claims. The SCA granted leave to appeal.
1. The application to receive further evidence was dismissed with costs, including costs of two counsel. 2. The appeal against the first respondent (Minister) was dismissed with costs, including costs of two counsel. 3. The appeal against the second respondent (SA Soutwerke) was upheld with costs, including costs of two counsel. 4. The order of the court a quo was set aside and replaced with: (i) The claim against the first defendant dismissed with costs including costs of two counsel; (ii) Declaration that the second defendant is liable to the plaintiff for payment of such damages as the plaintiff may prove it suffered as a result of being unable to mine salt at Vrysoutpan during the period 6 September 2008 to 25 June 2011; (iii) The second defendant to pay the plaintiff's costs in respect of the claim against it, including costs of two counsel.
1. An appellate court will disturb findings of credibility and fact of a trial court if they are plainly wrong, particularly where critical probabilities and objective factors were not properly appreciated. 2. In delictual claims for pure economic loss, wrongfulness depends on public and legal policy considerations. Administrative omissions causing pure economic loss are not per se wrongful absent dishonesty or mala fides. 3. Where public law remedies are available and a private law remedy exists against another party, policy considerations weigh against imposing delictual liability on state defendants for negligent administrative omissions. 4. For receiving further evidence on appeal, there must be: (a) a reasonably sufficient explanation for failure to present the evidence at trial; and (b) the evidence must be weighty, material and presumably to be believed (not disputed on substantial grounds). 5. In prescription, a continuous wrong gives rise to a series of debts arising from moment to moment. Previous proceedings only interrupt prescription under s 15 of the Prescription Act if they constitute a step in the enforcement of payment of the same debt - proceedings aimed at different relief (declaratory orders vs damages) do not interrupt prescription.
The court observed that "salt is the only rock directly consumed by man" and quoted literary reflections on the historical and cultural significance of salt. The court noted it would not say that an incorrect administrative act or omission will never be wrongful in the absence of dishonesty or mala fides, leaving this question open for future cases. The court noted that complex questions regarding vicarious liability of the Minister for dishonest conduct of departmental officials were not canvassed at trial as this was not the pleaded case, and departure from pleadings on appeal would be impermissible and prejudicial.
This case is significant for establishing principles regarding: (1) when appellate courts will overturn trial court credibility findings - the advantages of the trial court must not be overemphasized to render appeal rights illusory; (2) wrongfulness in delictual claims for pure economic loss caused by administrative omissions - absent dishonesty or mala fides, such omissions are generally not wrongful where public law remedies are available; (3) the test for receiving further evidence on appeal - requiring both reasonable explanation for failure to present evidence at trial and that evidence be weighty, material and not substantially disputed; (4) prescription in relation to continuous wrongs - such wrongs give rise to a series of debts arising from moment to moment; and (5) when previous proceedings constitute a step in enforcement for purposes of interrupting prescription - proceedings must be aimed at the same cause of action, not merely related issues.