Establishing a prima facie case for a sec 5(3) security arrest
28 October 2011

After the decisions of The Dimitris 1989 (3) SA 820 (A) and The Bocimar 1994 (2) SA 563 (A), it became settled law that a claimant established a prima facie claim if it could produce evidence, which if accepted, would establish a cause of action. The only qualification was that the inference drawn from such evidence should be reasonable.

In Imperial Marine Company v Pasquale della Gatta; Imperial Marine Company v Filippo Lembo [2011] ZASCA 131, 638/2010 (5 September 2011) the Supreme Court has extended this “formula” by clearly allowing the respondent the opportunity to attack the prima facie claim circumstances when the respondent can produce material and undisputed evidence that defeats the claimant’s prima facia case.

Clients must place themselves in a position whereby their prima facia case is sustainable.  In proving its case the claimant will have to furnish the court with all evidence that is material and undisputed. Questions that one should ask are, “Is my prima facia case based on fact or mere speculation?”, “Are reasonable inferences being drawn from those facts?” and “Is my case in conflict with materially undisputed evidence?”