Kruger v Minister of Safety and Security (525/2014) [2025] ZANWHC 20 (29 January 2025)

Kruger v Minister of Safety and Security (525/2014) [2025] ZANWHC 20 (29 January 2025)

The court held that while Rule 38(2) allows for evidence to be adduced by affidavit for sufficient reason, this discretion is expressly limited where a party reasonably requires the attendance of a witness for cross-examination and the witness can be produced. The respondent's request to cross-examine the expert witnesses was reasonable and fundamental to the right to a fair trial. The court found that cost-saving considerations cannot override the respondent's entitlement to test the evidence through cross-examination. Accordingly, the application to admit expert evidence by affidavit was dismissed, upholding the respondent's right to cross-examine.

Citation
[2025] ZANWHC 20
Parties
Plaintiff: Herlan Lance Kruger; Defendant: Minister of Safety and Security
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
29 January 2025
Case Number
525/2014
Procedural Posture
Civil Application / Application to Adduce Expert Evidence by Affidavit Under Rule 38(2)
Outcome
Application dismissed with costs.
Judges
M Z Makoti
Legal Topics
Rule 38 Evidence by Affidavit, Cross Examination Right, Costs Award, Expert Evidence
Civil Procedure Rule 38 Evidence by Affidavit Cross Examination Right Costs Award Expert Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Herlan Lance Kruger

Plaintiff

Minister of Safety and Security

Defendant

Procedural Posture

Civil Application / Application to Adduce Expert Evidence by Affidavit Under Rule 38(2)

Legal Issues

  1. 1 Whether the applicant may adduce expert evidence by affidavit under Rule 38(2).
  2. 2 Whether the respondent's right to cross-examine expert witnesses overrides cost and efficiency considerations.
  3. 3 Whether fairness requires deviation from the norm of oral evidence in this case.

Ratio Decidendi

The court held that while Rule 38(2) allows for evidence to be adduced by affidavit for sufficient reason, this discretion is expressly limited where a party reasonably requires the attendance of a witness for cross-examination and the witness can be produced. The respondent's request to cross-examine the expert witnesses was reasonable and fundamental to the right to a fair trial. The court found that cost-saving considerations cannot override the respondent's entitlement to test the evidence through cross-examination. Accordingly, the application to admit expert evidence by affidavit was dismissed, upholding the respondent's right to cross-examine.

Court Disposition

Application dismissed with costs.

Orders

  • The application to adduce evidence of the applicant’s witnesses at the trial is dismissed with costs on party and party scale A.