One of the critical functions of legal practitioners is to construct court papers (i.e. pleadings etc) in a professional manner, setting out the case they represent. Once this is done to critically assess evidence and to make the necessary amendments, if possible before pleadings close. Another is to consult with witnesses and clients in order to not only prepare them for the process but also to explain the parameters of leading and cross-examination of evidence.

It is the function of the court, once legal arguments have been made at the conclusion of a case to interpret the law, contract and its applicability to a specific matter. It is not the role of a witness to do so, including expert witnesses. The purpose of an expert witness is to guide the court on his / her opinion on any technical field (other than a legal field) in order to aid the court in its interpretation and ultimately the decision – made. 

Unfortunately, an increasing trend of witnesses expressing their opinions on the interpretation of a contract or law is seen. This is problematic for many reasons and was addressed in a fairly recent matter in the Supreme Court of Appeal. 

The City of Tshwane Metropolitan Municipality v Blair Atholl[1] 

The essential issue between the parties, even before the inception of litigation, was which of a range of tariffs the appellant, the City of Tshwane Metropolitan Municipality (the City) could charge the respondent, the Blair Atholl Homeowners Association (the association), for the water it supplied to the housing estate which the latter administered. The dispute was about whether the words ‘normal rate’ in an Engineering Services Agreement (the ESA) was the ‘bulk rate for municipalities’.

A certain Murphy J. Croswell, was the only witness to testify on behalf of the Association. As the Association’s consulting engineer, he was intimately involved in the negotiations and discussions that led to the conclusion of the ESA. He testified that the City’s standard agreement was adapted to the specific needs of this development. He explained how he and others contributed to the details and specifics contained therein. Croswell described how there was a series of draft agreements exchanged between the parties and that the finalisation of the ESA took several months. Croswell’s evidence was led, ostensibly, on the basis of providing context to the conclusion of the ESA.

The Rules

Rule 33(4) reads as follows:

‘If, in any pending action, it appears to the court mero motu that there is a question of law or fact which may conveniently be decided either before any evidence is led or separately from any other question, the court may make an order directing the disposal of such question in such manner as it may deem fit and may order that all further proceedings be stayed until such question has been disposed of, and the court shall on the application of any party make such order unless it appears that the questions cannot conveniently be decided separately.’

The judge commented as follows:

…”we are seeing a spate of cases in which evidence is allowed to be led in trial courts beyond the ambit of what is set out in the preceding paragraph. We are increasingly seeing witnesses testifying about the meaning to be attributed to words in legislation and in written agreements. That is true of the present case in which, in addition, evidence was led about negotiations leading up to the conclusions of the ESA.

… As a matter of policy, courts have chosen to keep the admission of evidence within manageable bounds. This court has seen too many cases of extensive, inconclusive and inadmissible evidence being led. That trend, disturbingly, in on the rise. “


Besides it being a rule of the profession to respect the framework within which matters at court are conducted, it is also in the interests of justice to do so.

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