Transnet Limited v Newlyn Investments (Pty) Limited

Transnet Limited (appellant) instituted action against Newlyn Investments (Pty) Limited (respondent) for eviction from immovable property known as the Pinetown PX situated at Kirk Road, Pinetown. Transnet owned the property which had been leased to the respondent under a written lease agreement dated 12 November 1996, extended to 31 December 2005. The respondent claimed a contractual right to occupy based on an addendum to the written lease that allegedly granted two successive renewal options of nine years and eleven months each. The original addendum could not be produced. A forged document purporting to be the addendum was discovered, which the respondent admitted was a forgery. The respondent relied on the oral evidence of four witnesses (Mashinini, Silungwe, Garach, and Balmakhun) and contemporaneous documentation to prove that a genuine addendum had been concluded in November 2002, the terms of which were identical to the forged document. Both parties had spent substantial amounts (appellant on roof repairs, respondent on cladding and improvements) based on their understanding that the lease would be extended. The lease contained a non-variation clause requiring written amendments signed by both parties.

• Whether technical objections to the admissibility of documentary evidence not raised in the court below should be entertained on appeal
• Whether secondary evidence of a lost document is admissible where the document was last in the possession of the opposing party and the nature of proceedings necessarily implies production will be required
• Whether there are degrees of secondary evidence and whether the best secondary evidence must be produced
• Whether oral evidence of the contents of a lost document is admissible
• Whether the respondent proved on a balance of probabilities that a written addendum to the lease existed and was executed by both parties

Appeal dismissed with costs, including costs of two counsel. The trial court's finding that a written addendum to the lease had been proved was upheld.

The binding legal principles established are: (1) Technical objections to the admissibility of documentary evidence which were not taken in the court below and which might have been met by calling further evidence should not be entertained on appeal; (2) Where the nature of proceedings is such as to inform the opposite party by necessary implication that production of a document in its possession will be required, secondary evidence of that document is admissible without formal notice to produce; (3) There are no degrees of secondary evidence in South African common law - a party may adduce any admissible form of secondary evidence, and while a photocopy would be more reliable than oral evidence, failure to produce a photocopy goes to weight and not admissibility; (4) Once secondary evidence is admissible, a party is not obliged to prove that after a thorough search the original or copies could not be found; the party may give whatever evidence it can as to the contents of the missing document.

The court made important non-binding observations on cross-examination practices. Cloete JA quoted with approval from Colman's Cross-Examination: A Practical Handbook and criticized counsel's cross-examination of Balmakhun which included statements such as "we will argue... that you are untruthful, that you are evasive, that you are a person who manufactured this story in the endeavour to hoodwink the Court" and "we are going to do our best to condemn you as a irredeemable liar." The court stated: "Putting argument to a witness in cross-examination can be improper" and described such cross-examination as "rude... unjustifiable and should not have been permitted." The court noted that while it may be proper to give a witness opportunity to meet a submission counsel intends to make, it is quite different to make assertions that expect no answer and serve no legitimate forensic purpose. This obiter provides important ethical guidance for advocates on the limits of robust cross-examination.

This case is significant in South African law of evidence for clarifying several important principles: (1) It reinforces the principle that technical objections to admissibility should be raised at trial, not on appeal, to allow the opposing party opportunity to remedy defects; (2) It confirms that where proceedings necessarily imply a document will be required, no formal notice to produce is necessary before adducing secondary evidence; (3) It authoritatively states that South African law recognizes no degrees of secondary evidence - any admissible form may be used, with reliability going to weight not admissibility; (4) It demonstrates proper appellate restraint in reviewing factual findings, particularly credibility assessments; (5) It provides guidance on evaluating competing probabilities where direct evidence from credible witnesses conflicts with circumstantial suspicions. The case also contains important obiter dicta criticizing improper cross-examination techniques.