Pentree Limited v Nelson Mandela Bay Municipality (3199/2013) [2016] ZAECPEHC 83; [2017] 2 All SA 260 (ECP); 2017 (4) SA 32 (ECP) (17 November 2016)

Pentree Limited v Nelson Mandela Bay Municipality (3199/2013) [2016] ZAECPEHC 83; [2017] 2 All SA 260 (ECP); 2017 (4) SA 32 (ECP) (17 November 2016)

The court held that evidence tendered by an expert valuer based on statements from third parties not called as witnesses is admissible in expropriation proceedings, provided it is presented as information that a notional informed buyer and seller would have considered in determining market value, rather than for the truth of the statements. The probative value of such evidence depends on the weight a notional buyer and seller would attach to it, not on the credibility of the third party. The court found that the reasoning in Lornadawn Investments and subsequent cases remains valid under the current Expropriation Act and constitutional framework. Any procedural shortcomings in the Rule...

Citation
[2016] ZAECPEHC 83
Parties
Plaintiff: Pentree Limited; Defendant: Nelson Mandela Bay Municipality
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
17 November 2016
Case Number
3199/2013
Procedural Posture
Civil Ruling / Objection to Admissibility of Evidence During Expropriation Proceedings
Outcome
Objection to the admissibility of Ms Falck's evidence is overruled; the evidence is admitted.
Judges
J W Eksteen
Legal Topics
Expropriation Act 1975, Admissibility of Expert Evidence, Hearsay Evidence, Market Value Determination, Rule 36 9b Compliance
Land and Property Civil Procedure Expropriation Act 1975 Admissibility of Expert Evidence Hearsay Evidence Market Value Determination Rule 36 9b Compliance

Case Brief

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Parties

Pentree Limited

Plaintiff

Nelson Mandela Bay Municipality

Defendant

Procedural Posture

Civil Ruling / Objection to Admissibility of Evidence During Expropriation Proceedings

Legal Issues

  1. 1 Whether evidence tendered by an expert valuer based on statements from third parties not called as witnesses is admissible in expropriation proceedings.
  2. 2 Whether such evidence constitutes hearsay under the Law of Evidence Amendment Act, 45 of 1988.
  3. 3 Whether the Rule 36(9)(b) notice filed by the plaintiff complies with procedural requirements for expert evidence.

Ratio Decidendi

The court held that evidence tendered by an expert valuer based on statements from third parties not called as witnesses is admissible in expropriation proceedings, provided it is presented as information that a notional informed buyer and seller would have considered in determining market value, rather than for the truth of the statements. The probative value of such evidence depends on the weight a notional buyer and seller would attach to it, not on the credibility of the third party. The court found that the reasoning in Lornadawn Investments and subsequent cases remains valid under the current Expropriation Act and constitutional framework. Any procedural shortcomings in the Rule...

Court Disposition

Objection to the admissibility of Ms Falck's evidence is overruled; the evidence is admitted.

Orders

  • The evidence of Ms Falck, as set out in paragraphs 4 and 5 of the first Rule 36(9)(b) notice, is admitted.
  • Any prejudice arising from procedural shortcomings in the Rule 36(9)(b) notice is cured by the postponement and subsequent disclosure.