law being a question of fact, one would have expected that the party wishing to invoke it, would prove it. Caterham
initially intended to do so because it filed an expert summary relating to the law of unfair competition in Japan, from
which it appears that there is a recent statute governing the matter. The text of the statute was not produced, nor
was the witness. Is the court then obliged to presume that the foreign law is the same as our law? Hoffmann &
Zeffertt The South African Law of Evidence 4ed p110111 point out that our case law is not consistent and refer to a
well argued note by Prof Ellison Kahn (1970) 87 SALJ 145149 who favours the approach that a failure to prove
foreign law will cause the plaintiff relying on it to lose his action or the defendant relying on it to fail in his defence.
Whether the presumption can be applied when the trial court has good reason to believe that the foreign law is not
the same as the local law, where the rule to be applied may be affected by a difference in mores or where
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public policy considerations arise (as is the case with passingoff), appears to me to be open to doubt (cf. Cuba
Railway Company v Walter E Crosby [1912] 222 US 473, a decision of the Supreme Court quoted with disapproval in
Rogaly v General Imports (Pty) Limited 1948 (1) SA 1216 (C) 1230). In the absence of counsel's assistance it is
inadvisable to say more on the subject and I shall simply adopt the approach of Corbett JA in Standard Bank of South
Africa Ltd and another v Ocean Commodities Inc and others 1983 (1) SA 276 (A) 294H that the party relying on a
foreign statute should, generally speaking, place it before the court. Having regard to the pleadings and the expert
notice, Caterham was saddled with that duty. It cannot hide behind its failure.
[35] If we have to apply South African law to this part of the case, Caterham has to overcome the considerations
discussed in the South African context in pars [28] to [31], which apply in the light of the evidence with equal force
in the Japanese setting. No attempt to do so was made. An even greater problem for Caterham is the fact that its
evidence dealt with misrepresentations made in advertisements which it tried to fix the responsibility for on Birkin
and Watson. It did not deal with the question whether the Birkin Seven itself misled or could mislead anyone in the
manner alleged. There is therefore no merit in this aspect of the appeal.
[36] I wish to say something about the practice note. It is required of the practitioner who will argue the appeal to
indicate which parts of the record in his opinion are not relevant for the determination of the appeal
(1997 (3) SA 345; [1997] 2 All SA between pp 594 and 595). The object of the note is essentially twofold. First, it
enables the Chief Justice in settling the roll to estimate how much reading matter is to be allocated to a particular
judge. Second, it assists judges in preparing the appeal without wasting time and energy in reading irrelevant
matter. Unless practitioners comply with the spirit of this requirement, the objects are frustrated and this in turn
leads to a longer waiting time for other matters. Caterham's note boldly claimed that the whole record was relevant
while it had to be obvious that the whole record of 30 volumes
View Parallel Citation
and 2669 pages could not be, especially in view of the limitation of the issues on appeal. When called upon by the
learned Judge presiding to reconsider, we were informed that 11 volumes were irrelevant. Even that was an
understatement. Much more was, as is apparent from Birkin's note which was filed out of time. This conduct is
unacceptable.
[37] There also appears to be a misconception about the function and form of heads of argument. The rules of this
Court require the filing of main heads of argument. The operative words are "main", "heads" and "argument".
"Main" refers to the most important part of the argument. "Heads" means "points", not a dissertation. Lastly,
"argument" involves a process of reasoning which must be set out in the heads. A recital of the facts and
quotations from authorities do not amount to argument. By way of a reminder I wish to quote from Van der
Westhuizen NO v United Democratic Front 1989 (2) SA 242 (A) 252BG:
"There is a growing tendency in this Court for counsel to incorporate quotations from the evidence, from the Court a quo's
judgment and from the authorities on which they rely, in their heads of argument. I have no doubt that these quotations are
intended for the convenience of the Court but they seldom serve that purpose and usually only add to the Court's burden.
What
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is more important is the effect which this practice has on the costs��in civil cases ... Superfluous matter should therefore be
omitted and, although all quotations can obviously not be eliminated, they should be kept within reasonable bounds. Counsel
will be well advised to bear in mind that Rule 8 of the Rules of this Court requires no more than the main heads of argument.
... The heads abound with unnecessary quotations from the record and from the authorities. They reveal, moreover, another
disturbing feature which is that the typing on many pages does not cover the full page ... Had the heads been properly
drawn and typed I do not think more than 20 pages would have been required. The costs cannot be permitted to be
increased in this manner and an order will therefore be made to ensure that the respondent does not become liable for more
than what was reasonably necessary."
[38] Practitioners should note that a failure to give proper attention to the requirements of the practice note and
the heads might result in the disallowance of part of their fees.
[39] In the result the appeal is dismissed with costs which include those consequent upon the employment of two
counsel.
(Smalberger, Marais, Schutz and Plewman JJA concurred in the judgment of Harms JA.)
For the appellant:
CE Puckrin SC and JN Cullabine instructed by Shepstone & Wylie, Durban