The Owners of the MV 'Banglar Mookh' v Transnet Ltd

On 5 September 2005, the MV 'Banglar Mookh', a vessel owned by Bangladesh Shipping Corporation, collided with the knuckle of the 'A' berth at the entrance to Duncan Dock in Cape Town harbour while being piloted by Mr Tadeusz Jan Grelecki, an employee of Transnet Ltd. The appellant instituted an action in the Western Cape High Court exercising its admiralty jurisdiction, claiming damages suffered as a result of the collision. The appellant alleged gross negligence/recklessness by the pilot to circumvent the exemption from liability in item 10(7) of Schedule 1 to the Legal Succession to the South African Transport Services Act 9 of 1989, which exempts the company and pilot from liability for negligent acts or omissions. Two conflicting versions emerged: Captain Islam (the vessel's master) claimed the pilot ordered hard to starboard to avoid the North Wall, then hard to port to avoid the North Spur, leading to the collision with the A berth knuckle. The pilot claimed he ordered hard to port but the helmsman turned hard to starboard contrary to instructions, causing the collision. VTS (Vessel Tracking Service) records that would have provided objective evidence were not preserved despite an undertaking to do so.

• Whether the pilot was grossly negligent or reckless in causing the collision
• Whether the exemption from liability in item 10(7) of Schedule 1 to the Legal Succession to the South African Transport Services Act 9 of 1989 applied
• Whether the onus of proving gross negligence/recklessness was on the appellant or respondent
• The proper approach to assessment of credibility and demeanour of witnesses versus inherent probabilities
• The proper approach to expert evidence based on reconstruction where underlying facts are uncertain
• Whether the respondent's defence should be struck out due to failure to preserve VTS records

The appeal was dismissed with costs.

The binding legal principles established are: (1) Courts should be cautious about relying unduly on demeanour instead of assessing the inherent probabilities and the evidence as a whole (following Body Corporate of Dumbarton Oaks v Faiga 1999 (1) SA 975 (SCA)); (2) Expert evidence reconstructing an incident is only reliable where the underlying facts on which it is based are properly established - where reconstruction rests on 'a potentially imperfect foundation' of uncertain data or 'imperfect human observation', it has limited evidential value (applying principles from Biddlecombe v Road Accident Fund [2011] ZASCA 225); (3) Negligent failure to retain records, even where there was an undertaking to preserve them, does not warrant striking out a defence - the power to strike out on grounds of lost evidence applies only where there is fraud or dishonesty (not mere negligence) and only where the absence of evidence prevents a fair trial (applying principles from English cases Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167, Shah v Ul-Haq [2010] 1 All ER 73, and Zahoor v Masood [2010] 1 All ER 888); (4) Where a trial court misdirects itself on material aspects of the evidence, an appellate court is at large to decide the matter afresh on the record.

The court made several non-binding observations: (1) It noted that the trial judge had 'some reservations' whether item 10(7) had been properly construed in previous cases as not applying to gross negligence, but did not decide this issue as gross negligence was not proved in any event; (2) The court observed that it would be 'a very rare case' where at the end of a trial it would be appropriate to strike out rather than dismiss in a judgment on the merits (quoting Zahoor); (3) The court noted it was 'possible, without the need to decide whether it is permissible, to conceive of an extreme case' where the power to strike out might be exercised against a defendant thereby affording the plaintiff victory by default, but did not decide whether this was permissible; (4) The court commented on good practice in witness assessment, noting that 'the current tendency is (on the whole) to distrust the demeanour of a witness as a reliable guide to his honesty' (quoting Lord Bingham); (5) The court observed that handicaps of language and elapse of time should be taken into account when assessing demeanour.

This case is significant for several reasons: (1) It reinforces warnings against over-reliance on demeanour in assessing witness credibility, emphasizing the importance of 'wider probabilities'; (2) It establishes important principles regarding expert reconstruction evidence - such evidence is only reliable where underlying facts are established, and caution is required where reconstruction rests on 'imperfect human observation' rather than definitive scientific data; (3) It clarifies the approach to applications to strike out pleadings for destruction/non-preservation of evidence - the power is only exercised in cases of fraud/dishonesty (not mere negligence), and only where a fair trial is prevented; (4) It provides guidance on when contemporaneous statements made immediately after an incident should be given weight in determining credibility; (5) While not definitively deciding the point, it proceeds on the assumption that the exemption in item 10(7) does not apply to gross negligence or recklessness, following two High Court decisions; (6) It demonstrates the appellate court's approach when trial court misdirections are identified - the SCA is at large to decide the matter afresh on the record.