|commission de bene esse
- A commission appointed to take evidence by deposition where the deponent is unwilling or unable to come to court and the court cannot compel the wittness/deponant.
Etymology: for the good cause.
Manuel Fernandes, on the other hand, contends that the signature on this document is not his signature, but the signature of his younger brother, Victor Fernandes ('Victor'). Manuel Fernandes alleges in the present application that Victor is abroad and for this reason leave should be granted for the issue of the commission de bene esse to take the evidence of Victor in Portugal before a Commissioner of the Court in terms of Rule 38(3). Manuel Fernandes contends ...that at the time when Victor appended his signature to the deed of suretyship he was 18 years old and still in South Africa, but that he has since emigrated to Portugal and he is not prepared to come to South Africa for the purposes of giving evidence because he fears that he will be arrested. Manuel Fernandes accordingly contends that he needs the evidence of Victor on commission in Portugal in order to sustain the defence of Manuel Fernandes to the claims of the plaintiff in the main action. FERNANDES v FITTINGHOFF & FIHRER CC 1993 (2) SA 704 (W)
The law of application for a .
:Rule 38(3) of the Uniform Rules of Court provides as follows:
:'A Court may, on application on notice in any matter where it appears convenient or necessary for the purposes of justice, make an order for taking the evidence of a witness before or during the trial before a Commissioner of the Court, and permit any party to any such matter to use such deposition in evidence on such terms, if any, as to it seems meet, and in particular may order that such evidence shall be taken only after the close of pleadings or only after the giving of discovery or the furnishing of any particulars in the action.' FERNANDES v FITTINGHOFF & FIHRER CC 1993 (2) SA 704 (W)
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