Namdeb Diamond Corporation (Pty) Ltd. v Bester NO and Others (144/93) [1995] ZASCA 72 (31 May 1995)

Namdeb Diamond Corporation (Pty) Ltd. v Bester NO and Others (144/93) [1995] ZASCA 72 (31 May 1995)

The Supreme Court of Appeal found that, on a balance of probabilities, the appellant succeeded in proving Nieuwoudt's involvement in the theft and misappropriation of diamonds stolen from its mine. The evidence of Cilliers, supported by deposit records and corroborated by other witnesses, established the theft and delivery of diamonds to Van Zyl, who in turn delivered them to Nieuwoudt. Nieuwoudt's own admissions and conduct, as well as the corroboration provided by exhibit U and other witnesses, outweighed the contradictions and deficiencies in the evidence. The court held that the quantum of damages could be reliably calculated using statistical methods and expert testimony, subject to...

Citation
[1995] ZASCA 72
Parties
Appellant: Namdeb Diamond Corporation (Pty) Limited; Respondent: L Von Wielligh Bester N.O.; Respondent: Rael Gordon N.O.; Respondent: A A Nieuwoudt
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 May 1995
Case Number
144/93
Procedural Posture
Civil Appeal / Appeal From Cape Provincial Division; Judgment of Van Niekerk J
Outcome
Appeal upheld. Judgment for the appellant in the sum of R909,916 and costs, payable by first and second respondents out of the insolvent estate of the third respondent.
Judges
Joubert, Steyn, F H Grosskopf, Nienaber, Olivier
Legal Topics
Condictio Furtiva, Actio Legis Aquiliae, Actio Ad Exhibendum, Theft of Property, Quantification of Damages, Insolvent Estate Liability
Delict Civil Procedure Land and Property Condictio Furtiva Actio Legis Aquiliae Actio Ad Exhibendum Theft of Property Quantification of Damages +1 more

Case Brief

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Parties

Namdeb Diamond Corporation (Pty) Limited

Appellant

L Von Wielligh Bester N.O.

Respondent

Rael Gordon N.O.

Respondent

A A Nieuwoudt

Respondent

Procedural Posture

Civil Appeal / Appeal From Cape Provincial Division; Judgment of Van Niekerk J

Legal Issues

  1. 1 Whether the appellant proved, on a balance of probabilities, that diamonds stolen from its mine were delivered to and received by Nieuwoudt with knowledge of their illicit origin.
  2. 2 Whether the quantum of damages claimed by the appellant was established with sufficient certainty.
  3. 3 Whether the evidence of key witnesses, particularly Van Zyl, was reliable enough to establish the chain of delivery from theft to Nieuwoudt.

Ratio Decidendi

The Supreme Court of Appeal found that, on a balance of probabilities, the appellant succeeded in proving Nieuwoudt's involvement in the theft and misappropriation of diamonds stolen from its mine. The evidence of Cilliers, supported by deposit records and corroborated by other witnesses, established the theft and delivery of diamonds to Van Zyl, who in turn delivered them to Nieuwoudt. Nieuwoudt's own admissions and conduct, as well as the corroboration provided by exhibit U and other witnesses, outweighed the contradictions and deficiencies in the evidence. The court held that the quantum of damages could be reliably calculated using statistical methods and expert testimony, subject to...

Court Disposition

Appeal upheld. Judgment for the appellant in the sum of R909,916 and costs, payable by first and second respondents out of the insolvent estate of the third respondent.

Orders

  • The appeal succeeds with costs, including the costs of two counsel, payable by first and second respondents out of the insolvent estate of the third respondent in the order of preference provided for by the Insolvency Act 24 of 1936.
  • The order of the court a quo is set aside and substituted with judgment for the plaintiff in the sum of R909,916 and costs, including the costs of two counsel and qualifying fees of expert witnesses employed by plaintiff, payable by first and second defendants out of the insolvent estate of the third defendant in...