Osman and Others v National Director of Public Prosecutions and Others (32564/01) [2005] ZAGPHC 26 (11 March 2005)

Osman and Others v National Director of Public Prosecutions and Others (32564/01) [2005] ZAGPHC 26 (11 March 2005)

The court found that the plaintiffs bore the onus to prove the existence of the alleged agreement or undertaking by the first defendant. The evidence presented resulted in two irreconcilable versions: the plaintiffs' witness, Mr Maritz, claimed that authorisation was obtained from the first defendant, while the defendants' witnesses, Mr Bekker and Mr Bhana, denied any such authorisation or undertaking. The court assessed the credibility and reliability of the witnesses and found no basis to prefer one version over the other. The probabilities did not favour either party, and the plaintiffs failed to discharge the onus of proof. Even if the probabilities favoured the plaintiffs, the...

Citation
[2005] ZAGPHC 26
Parties
Plaintiff: Anver Ally Osman; Plaintiff: Cassim Anver Ally Cassim; Plaintiff: Abdul Majid; Defendant: National Director of Public Prosecutions; Defendant: Director of the Directorate of Special Operations; Defendant: Commissioner for the SARS
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
11 March 2005
Case Number
32564/2001
Procedural Posture
Civil Trial / Separation of Issues; Trial on Preliminary Issue
Outcome
Plaintiffs' action against all defendants dismissed with costs.
Judges
Legodi M F
Legal Topics
Onus of Proof, Factual Dispute, Authority of State Officials, Undertakings by Prosecuting Authority
Civil Procedure Administrative Law Onus of Proof Factual Dispute Authority of State Officials Undertakings by Prosecuting Authority

Case Brief

Summary, issues, holding and outcome

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Parties

Anver Ally Osman

Plaintiff

Cassim Anver Ally Cassim

Plaintiff

Abdul Majid

Plaintiff

National Director of Public Prosecutions

Defendant

Director of the Directorate of Special Operations

Defendant

Commissioner for the SARS

Defendant

Procedural Posture

Civil Trial / Separation of Issues; Trial on Preliminary Issue

Legal Issues

  1. 1 Whether the first defendant was a party to the alleged agreement not to prosecute the plaintiffs unless certain conditions were met.
  2. 2 Whether the plaintiffs discharged the onus of proving the existence of the alleged undertaking by the first defendant.
  3. 3 Whether any of the persons present had authority to bind the first defendant to the alleged agreement.

Ratio Decidendi

The court found that the plaintiffs bore the onus to prove the existence of the alleged agreement or undertaking by the first defendant. The evidence presented resulted in two irreconcilable versions: the plaintiffs' witness, Mr Maritz, claimed that authorisation was obtained from the first defendant, while the defendants' witnesses, Mr Bekker and Mr Bhana, denied any such authorisation or undertaking. The court assessed the credibility and reliability of the witnesses and found no basis to prefer one version over the other. The probabilities did not favour either party, and the plaintiffs failed to discharge the onus of proof. Even if the probabilities favoured the plaintiffs, the...

Court Disposition

Plaintiffs' action against all defendants dismissed with costs.

Orders

  • The action against the first and second defendants is dismissed with costs.
  • The action against the third defendant is dismissed with costs.