THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable

Case No: 190/2015

In the matter between:

MV ‘SHARK TEAM’

FIRST APPELLANT
GRANT TUCKETT

SECOND APPELLANT
WHITE SHARK PROJECTS CC

THIRD APPELLANT

and

SARAH TALLMAN

RESPONDENT

Neutral citation:  MV ‘Shark Team’ v Tallman (190/2015) [2016] ZASCA 46

(31 March 2016)

Coram:
Cachalia, Willis and Zondi JJA and Plasket and Kathree-

Setiloane AJJA

Heard:
22 February 2016

Delivered:
31 March 2016

Summary: Admiralty Jurisdiction Regulation Act 105 of 1983 – maritime claim
involving loss of life at sea – boat capsized when struck by unusually large
wave – whether skipper of boat negligent – no negligence established –
appeal allowed and claim for damages dismissed.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from Western Cape Division of the High Court, Cape Town
(Freund AJ sitting as court of first instance):
1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the court below is set aside and replaced with the following
order:
„(a) The plaintiff‟s action is dismissed.
(b) The plaintiff shall pay the defendants‟ costs, including the costs of two
counsel and the qualifying expenses of:
(i) Dr John Zietsman;
(ii) Mr Michael Fiontann Hartnett;
(iii) Professor Michel Tipton;
(iv) Dr Cleeve Robinson;
(v) Mr Robert Fine;
(vi) Mr Wilfred Chivell; and
(vii) Dr Linda Liebenberg.‟
______________________________________________________________

JUDGMENT
______________________________________________________________

Plasket AJA (Cachalia, Willis and Zondi JJA and Kathree-Setiloane AJA
concurring):

[1] The great white shark (Carcharodon Carcharias) has been described
as „one of the largest and most powerful predators on earth‟.1 Because of its
size and strength, it was hunted by sports fishermen and, presumably
because of the danger it was seen to pose to bathers and divers, by those

1 Rudi van der Elst A Guide to the Common Sea Fishes of Southern Africa 2 ed (1993) at 54.
It is described as a „huge, spindle-shaped shark with small conspicuous black eyes, a blunt,
conical snout and large triangular, saw-edged teeth‟ and grows to as much as 7.1 metres in
length. (L J V Compagno, D A Ebert and M J Smale The Sharks and Rays of Southern Africa
at 44).

who had „taken it upon themselves to rid the oceans of these sharks‟.2 This,
together with the slow growth rate of the great white shark, its low fecundity
and its vulnerability to being caught in open-ocean gill-nets, rendered it a
species vulnerable to over-exploitation. In 1991, it was declared a protected
species in South Africa. As a result, the killing of great white sharks is
unlawful.3 In the wake of this, a new industry developed: about 20 years ago,
operators began to take paying clients to sea to view great white sharks from
cages lowered into the water alongside ski-boats or similar craft.

[2] This appeal concerns the only tragedy in South Africa that has befallen
such a craft, the 10.7 metre long catamaran-hull ski-boat MV ‘Shark Team’. At
about 10h00 on Sunday 13 April 2008, while anchored and engaged in
viewing great white sharks in an area called the Geldsteen to the west of Dyer
Island and some eight and a half kilometres south of Kleinbaai on the
southern Cape coast, a swell broke in front of or on Shark Team and capsized
her. Most of those on board – paying tourists, crew and research volunteers –
were thrown into the sea, among the great white sharks that had been
attracted to the boat by chum – fish-bait thrown into the sea to lure the sharks
to the boat – and „teased‟ closer with a line to which a tuna head had been
attached.4 Most of them managed to climb onto Shark Team’s up-turned hull
and were taken off it and to the safety of Kleinbaai harbour by the crew of one
of the vessels in the vicinity, White Shark.

[3] Unfortunately, three tourists drowned. Two were trapped under the hull
while the third man, who had been sitting on the bow, was probably thrown
clear of the boat. Ms Sarah Tallman, the widow of one of the deceased, Mr
Christopher Tallman, instituted a maritime claim in the Western Cape Division
of the High Court, Cape Town, in which she sought damages for, inter alia,
loss of support in rem from Shark Team, and in personam from the skipper,

2 Van der Elst (note 1) at 54.
3 Phil and Elaine Hiemstra Coastal Fishes of Southern Africa at 70. The authors point out that
similar protection is afforded this shark in Tasmania and New South Wales in Australia, in
California and Florida in the United States of America, and in Namibia (at 70-71).
4 Ms Sara Dix, the videographer aboard White Pointer, whose skipper was considering taking
the spot that Shark Team was about to leave when the capsize occurred, testified that she
saw five great white sharks in the vicinity of Shark Team’s up-turned hull.

Mr Grant Tuckett, and the owner of Shark Team, White Shark Projects CC. I
shall refer to Ms Tallman as the plaintiff and to Shark Team, the skipper and
the owner as the defendants.

[4] The issues of liability and quantum having been separated, Freund AJ,
after a trial that lasted 52 days and generated a record of 8 638 pages, found
in favour of the plaintiff and declared that the defendants were liable for
whatever damages the plaintiff could, in due course, prove. He did so on the
basis that Tuckett had been negligent in failing to keep a proper look out in
respect of the sea conditions and that, had he done so, he would have been
aware of the risk posed by the swell, would have foreseen the reasonable
possibility that a wave could have broken on or over Shark Team, and would
have guarded against that possibility by weighing anchor and departing from
his anchorage. He held that the liability of White Shark Projects CC was not
limited by s 261(1)(a) of the Merchant Shipping Act 57 of 19515 because it
was unable to establish a lack of privity on its part in relation to the loss of life
occasioned by the capsize of Shark Team.

[5] The defendants appeal to this court against Freund AJ‟s order and do
so with his leave.

The applicable law and the legal principles concerned
[6] Section 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983
defines a maritime claim as „any claim for, arising out of or relating to‟, inter
alia, „loss of life or personal injury caused by a ship or any defect in a ship or
occurring in connection with the employment of a ship‟.6 Section 6(1) of the
Act creates a mechanism for the determination of the choice of law to be
applied to a maritime claim. It provides:

5 Section 261(1)(a) of the Merchant Shipping Act provides:
„(1) The owner of a ship, whether registered in the Republic or not, shall not, if any loss of life
or personal injury to any person, or any loss of or damage to any property or rights of any
kind, whether movable or immovable, is caused without his actual fault or privity-
(a)
if no claim for damages in respect of loss of or damage to property or rights arises, be
liable for damages in respect of loss of life or personal injury to an aggregate amount
exceeding 206,67 special drawing rights for each ton of the ship's tonnage. . .‟
6 Admiralty Jurisdiction Regulation Act, s 1, item (f) of the definition of „maritime claim‟.

„(1) Notwithstanding anything to the contrary in any law or the common law contained
a court in the exercise of its admiralty jurisdiction shall-
(a)
with regard to any matter in respect of which a court of admiralty of the
Republic referred to in the Colonial Courts of Admiralty Act, 1890, of the United
Kingdom, had jurisdiction immediately before the commencement of this Act, apply
the law which the High Court of Justice of the United Kingdom in the exercise of its
admiralty jurisdiction would have applied with regard to such a matter at such
commencement, in so far as that law can be applied;
(b)
with regard to any other matter, apply the Roman-Dutch law applicable in the
Republic.‟

[7] The effect of s 6(1) was considered by this court in MT Argun: Sheriff of
Cape Town v MT Argun, her owners and all persons interested in her &
others; Sheriff of Cape Town & another v MT Argun, her owners and all
persons interested in her & another.7 Scott JA held that „with regard to “any
matter” in respect of which the High Court in England exercising its admiralty
jurisdiction in 1890 would have had jurisdiction, the law to be applied is that
which the High Court of Justice of the United Kingdom would have applied in
the exercise of its admiralty jurisdiction on 1 November 1983, being the date
upon which the Act commenced‟ and that the „reference to what may for
convenience simply be called the English admiralty law as at 1983 is to be
construed as a reference to that law including the relevant principles of private
international law‟.8

[8] In terms of English private international law (as at 1 November 1983),
the law applicable to this matter is South African law.9 This means that the
common law rules of Aquilian liability are of application.

[9] The rules of evidence applicable to this matter differ from the usual.
This being a maritime claim, s 6(3) of the Admiralty Jurisdiction Regulation Act

7 MT Argun: Sheriff of Cape Town v MT Argun, her owners and all persons interested in her &
others; Sheriff of Cape Town & another v MT Argun, her owners and all persons interested in
her & another [2001] ZASCA 81; 2001 (3) SA 1230 (SCA).
8 Para 14.
9 JJ Fawcett and JM Carruthers Cheshire, North & Fawcett: Private International Law 14 ed
(2008) at 766-768; Sir Lawrence Collins (General Editor) Dicey, Morris and Collins: The
Conflict of Laws 14 ed (Vol 2) (2006) at 1893-1900.

permits a court in the exercise of its admiralty jurisdiction to „receive as
evidence statements which would otherwise be inadmissible as being in the
nature of hearsay evidence, subject to such directions and conditions as the
court thinks fit‟ but, in terms of s 6(4), the weight to be attached to that
evidence „shall be in the discretion of the court‟.

[10] For Aquilian liability to arise, the harm caused by the defendant must
have been both unjustified – wrongful, in other words – and culpable – either
negligently or intentionally caused.10 The element of wrongfulness is not in
issue in this matter: if the other elements of Aquilian liablity are established,
wrongfulness will follow as a matter of inevitability. There is also no
suggestion that Tuckett acted intentionally when the harm occurred. Whether
negligence was present and causally connected to the harm are the only
issues involved in the first aspect of this matter.

[11] The starting point in a case such as this is, inevitably, this court‟s
judgment in Kruger v Coetzee11 in which the test for negligence was
articulated as follows by Holmes JA:
„For the purposes of liability culpa arises if -
(a)
a diligens paterfamilias in the position of the defendant -
(i)
would foresee the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial loss; and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.‟

[12] The standard of diligence against which Tuckett will be judged will not,
however, be the general standard of the diligens paterfamilias referred to by
Holmes JA – the reasonable person.12 In a case such as this, where
specialized skill is involved, the general standard of the reasonable person is
adjusted to that of the reasonable person in the field of endeavour involved. In

10 Perlman v Zoutendyk 1934 CPD 151 at 155; Coronation Brick (Pty) Ltd v Strachan
Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at 377D-E.
11 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F.
12 See Cape Town Municipality v Paine 1923 AD 207 at 216 in which Innes CJ equated the
diligens paterfamilias of Roman Law with the reasonable man – what we now refer to as the
reasonable person.

other words, while a person possessed of, or professing to be possessed of,
specialized skills is not required to display the „highest possible degree of
professional skill‟, he or she will be held to „the general level of skill and
diligence possessed and exercised at the time by the members of the branch
of the profession to which the practitioner belongs‟.13 In other words, he or she
will be held to a standard of reasonable skill and care within the area of his or
her expertise or professed expertise.14 In this case, then, Tuckett will be
judged against the standard of the reasonable shark boat skipper.

[13] That said, however, one must guard against the „insidious
subconscious influence of ex post facto knowledge‟, and bear in mind that
„[n]egligence is not established by showing merely that the occurrence
happened . . . or by showing after it happened how it could have been
prevented‟: after all, the reasonable person does not have „prophetic
foresight‟.15

[14] Generally speaking, Scott JA held in Sea Harvest Corporation (Pty) Ltd
& another v Duncan Dock Cold Storage (Pty) Ltd & another,16 that in order to
establish negligence on the part of a defendant, it is not necessary that the
precise manner of the harm‟s occurrence must be foreseeable: it is sufficient
that its general manner of occurrence is reasonably foreseeable. But this
general rule must bow to the peculiar facts of a case, which may call for a
more subtle approach: flexibility with reference to the facts of each case is
required.

[15] Sea Harvest illustrates the point particularly well. An unknown reveller
had, shortly after midnight on 1 January 1993, fired a distress flare which
landed on a fibre glass gutter of the respondent‟s cold store in Duncan Dock,
Table Bay Harbour. It set the cold store ablaze. This was largely destroyed by

13Van Wyk v Lewis 1924 AD 438 at 444; Charter Hi & others v Minister of Transport [2011]
ZASCA 89 para 32. See too P Q R Boberg The Law of Delict at 346-347; Jonathan Burchell
Principles of Delict at 87-89.
14 Mitchell v Dixon 1914 AD 519 at 525.
15 S v Bochris Investments (Pty) Ltd & another 1988 (1) SA 861 (A) at 866J-867B.
16 Sea Harvest Corporation (Pty) Ltd & another v Duncan Dock Cold Storage (Pty) Ltd &
another [1999] ZASCA 87; 2000 (1) SA 827 (SCA) para 22.

the fire as were fish and fish products belonging to the appellants that had
been stored in the cold store. The flare had landed on the only part of the
building that it could have ignited, and the fibre glass gutter could only have
been ignited by a heat source of sufficient intensity and longevity. The distress
flare met both of these criteria. Scott JA found that there was no doubt that a
general possibility of a fire in the cold store was reasonably foreseeable but
what would have been foreseen was a fire starting inside the cold store:
indeed, that was precisely why fire-fighting equipment had been installed
inside the premises.17 He then proceeded to hold:18
„Having regard to the particular circumstances of the case, it seems to me therefore
that the question of culpability must be determined not simply by asking the question
whether fire, ie any fire, was foreseeable but whether a reasonable person in the
position of Worthington-Smith or Visser would have foreseen the danger of fire
emanating from an external source on the roof of the building with sufficient intensity
to ignite the gutter.‟

[16] I turn now to the common cause facts followed by the issues that arise
in this appeal. Thereafter I shall deal with the voluminous evidence adduced
by the parties in relation to those issues. I shall then consider the court
below‟s approach to the evidence and the issues.

The common cause facts
[17] According to Ms Christina Rutzen, Kleinbaai harbour‟s harbour master,
on 13 April 2008 the wind was light and the swell was running at about two
metres at the harbour. Conditions did not change until the afternoon. There
were no signs to make her believe that putting to sea that day could be
unsafe.

[18] Shark Team was the first of the shark boats to leave Kleinbaai harbour
on the morning of 13 April 2008. It did so at about 07h30. Shark Team was
followed by Barracuda at about 08h00, by Swallow, skippered by Mr Steve
Smuts, at about 08h20, by Shark Fever, skippered by Mr Albert Scholtz, at

17 Para 23.
18 Para 24.

about 08h45, by Megalodon at about 08h55 and by White Shark, skippered by
Mr Ronnie Lennox, at about 09h05. White Pointer, skippered by Mr Phillip
Colyn, left Gansbaai harbour at about 09h00 and arrived where the other
boats were at anchor shortly before the capsize.19

[19] All of these craft made for the Geldsteen, a favoured area for viewing
great white sharks in the winter months and in the conditions prevailing that
day. Shark Team, having launched first, arrived at the Geldsteen first, and
after choosing a spot, Tuckett instructed the crew to commence chumming.
He then anchored and lay some 200 metres from the point where he had
anchored. Cage diving commenced.

[20] As they arrived, Barracuda, Swallow, Megalodon and White Shark
anchored in a line roughly astern of Shark Team. Shark Fever took up a
position ahead of and off Shark Team’s starboard bow. The line of boats was
spread over about 350 metres from Shark Fever to White Shark.

[21] As a result of the bridle anchoring system used by the shark boats,
their bows faced into the south-westerly swell. The wind, blowing from the
south-east, blew into their port sides and the shark diving took place in the lee
thus created on the starboard side of the boats.

[22] From about 07h50, when Shark Team anchored at the Geldsteen, until
its capsize at about 10h00, it, Barracuda, Swallow, Megalodon and Shark
Fever had their cages lowered and all of them engaged in shark viewing.
Although White Shark lay at anchor, no shark viewing took place on this
vessel. White Pointer, on arrival, had motored along the line of boats and was
in the vicinity of Shark Team when the capsize occurred. Tuckett had
contacted Colyn, the skipper of White Pointer, to offer him Shark Team’s spot,
he having decided to go back to Kleinbaai. As they were talking to each other,
disaster struck. Barracuda had left for the shore shortly before the capsize but
returned to assist in the rescue.

19 I have named the skippers who gave evidence in the trial. One of them, Lennox, was not
available to testify but two statements made by him were placed before the court.

[23] When the capsize occurred, Shark Team’s videographer was inside the
cage. Tuckett and other crew assisted passengers to get onto the up-turned
hull. He and Ms Megan Laird, the dive master that day, managed to free a
woman trapped in the water next to the hull as a result of her leg being
entangled in ropes. Tuckett and Mr Adrian Hewitt, a crew member, were able
to extricate the videographer from the cage, thereby certainly saving his life.
They also saved the life of a passenger who was floating off Shark Team’s
bow in great distress, unable to save himself and about to drown.

[24] White Shark was able to come alongside Shark Team and succeeded
in taking all of the survivors aboard. In what was now a heavily over-loaded
boat, its skipper, Lennox, headed for the safety of Kleinbaai harbour. It was
then realised that people were missing. That information was conveyed to the
other boats in the area. They commenced a search.

[25] Barracuda towed the up-turned hull of Shark Team into deeper water.
In the meantime, the vessel Stan, with Mr Michael Rutzen on board, had
launched from Kleinbaai harbour. When it arrived at Shark Team, its crew saw
the feet of a man protruding from the hull. The body was recovered. It was
Christopher Tallman. Although cardiopulmonary resuscitation (CPR) was
attempted, it was to no avail. Rutzen, a diver and great white shark expert of
immense experience, later dived under the hull and found the body of
Tallman‟s friend, Mr Casey Lajeunesse, entangled in ropes. Despite the
attentions of great white sharks, he was able to recover Lajeunesse‟s body.20
A while later, a third body, that of Mr Kevin Rogne, was found floating near
Shark Team.

[26] Before proceeding further, it is necessary to say something about the
shark diving industry that developed after the great white shark was protected.
Mr Wilfred Chivell, the owner of Shark Fever, is one of the pioneers in the
industry and, it would appear, in the whale-watching industry as well. He
testified that the industry started on a small scale in about 1996. At that stage

20 Rutzen said that great white sharks „don‟t eat people‟ but react aggressively when angered.

only four or five boats operated in the area. That number has since increased.
In 2000, about 20 000 people were taken shark viewing. That figure has risen
to about 70 000 people a year at present. Between 30 000 and 40 000 trips
have been made over the years. The capsize of Shark Team is the first and
only incident of its kind in the industry.

The issues
[27] In her particulars of claim, the plaintiff alleged 32 different grounds of
negligence. During the course of the trial some were not pursued while others
were refuted. What remained were two issues. A third arose during the course
of argument in this appeal. The first was that Tuckett was negligent because
he failed to notice a deterioration in sea conditions when he could and should
have done so. The second was that he had been negligent in failing to motor
into the swell before anchoring in order to check the depth in front of where
Shark Team was to lie. The third concerned the size of the wave and its
origins, and whether Tuckett ought to have recognised signs that were
indicative of an extraordinarily large swell developing and breaking. This issue
is in truth part of the broader „proper lookout‟ issue but will be considered
separately.

[28] The trial centred on the first issue and Freund AJ found that this ground
of negligence had indeed been established by the plaintiff. He rejected the
defendants‟ defence that a reasonable skipper in Tuckett‟s position on the day
in question, at the same spot, with Shark Team’s bow pointing into the swell,
and in the prevailing swell and wind conditions, would not have foreseen the
reasonable possibility of the capsize (and resultant harm). Because of the
conclusion reached in respect of the first ground, Freund AJ did not consider it
necessary to deal definitively with the second ground: although he found that
Tuckett had been negligent, he suggested that the element of causation may
not have been established. The third issue does not appear to have received
discrete treatment.

[29] Evidence was led, on behalf of the plaintiff, to establish that while
Shark Team was at the Geldsteen on the morning of 13 April 2008, the sea
conditions deteriorated to the point that it had become dangerous to be there.

[30] The witnesses called by the defendants, on the other hand, testified
that Shark Team was lying in deep enough water, that the swell was
manageable and that no swells broke in the vicinity of Shark Team or looked
like breaking (by either „peaking‟ or „feathering‟).21 The conditions were safe
and there were no danger signs.

[31] As a result of a bathymetric survey conducted on the instructions of
one of the defendants‟ expert witnesses, Dr John Zietsman, two pinnacles
were found in the vicinity of the spot where Shark Team lay and on one of
which the swell that caused the capsize appears to have begun to break. It
was argued that had Tuckett motored into the swell and used his fish-finder to
determine the depth further on from where he wanted to lie, he would have
seen the danger and would have avoided it by lying elsewhere. The defence
to this attack was that the chances of Tuckett finding the pinnacles in this way
were slim. Zietsman provided a possible explanation for the size of the wave,
which was described, in one way or another, by everyone who saw it, as an
extraordinarily large wave. The defendants‟ defence was that the possibility of
such a swell developing and then breaking, in that area in the conditions
prevailing at the time, was not reasonably foreseeable.

[32] This appeal turns largely on the facts. It is therefore necessary to
traverse the voluminous evidence at some length before considering Freund
AJ‟s factual findings and his conclusions.

The evidence
Proper lookout: the sea conditions in general
[33] As stated above, Christina Rutzen, the harbour master at Kleinbaai
considered the wind to be light and the sea conditions to be moderate on the

21 A swell peaks when its face steepens. A swell feathers when white water develops on its
crest. Both are signs that a swell is likely to break.

morning of 13 April 2008. She also testified that those conditions prevailed
throughout the morning and only deteriorated during the afternoon. Her
observations were supported by her brother-in-law, Michael Rutzen, who put
to sea shortly after the capsize in order to help with the rescue effort. The
conditions at the Geldsteen were, in his opinion, not dangerous on his arrival.
He described conditions that day as not being too rough, stating that there
was nothing unusual about the sea conditions. He experienced a light south-
easterly wind and a swell of two and a half to three metres on his way to
where Shark Team had been towed. He saw nothing to alarm him at the
Geldsteen, the wind was dying and there was not a lot of swell. Mr Wilfred
Chivell, the owner of Shark Fever, had not been concerned that day about the
weather forecast and the maximum predicted swell height of 3,96 metres
because the swell was long and could be worked in safely and comfortably.
He thought that it would be a good day at sea. He saw no signs of
deteriorating weather conditions by the afternoon. It must be borne in mind,
however, that neither Christina Rutzen nor Chivell went to sea on the day in
question and that Michael Rutzen only did so after the capsize. That said,
however, they are people with a great deal of maritime experience and local
knowledge.

[34] Ms Marili Meyer, a passenger on Shark Team, testified that the wind
was strong and the sea was rough. She was extremely nervous and anxious
as this was the first time she had ever gone to sea. Coming from the inland
city of Bloemfontein, she was not particularly familiar with the sea. Her
husband, Mr Hendrik Meyer, had been to sea once before. He therefore also
had little experience to draw on as far as the nature and characteristics of the
sea conditions and the wind were concerned. Ms Meyer testified about a
wave that broke while she was on Shark Team’s viewing deck. While she
initially testified that it was 50 to 100 metres from Shark Team, she conceded
that it could have been much further – in the region of 500 metres or more as
Mr Tuckett later testified. Her evidence concerning this wave takes the matter
no further, because the wave broke far away from Shark Team and posed no
threat to it at all.

[35] Smuts, the skipper of Swallow, described the wind on 13 April 2008 as
being „very light‟. On the way to the Geldsteen nothing caused him any
concern. When he arrived at the Geldsteen, however, he said he experienced
a larger swell than he had anticipated. He took up a position about 30 to 50
metres astern of Barracuda, which was, in turn, about 100 metres astern of
Shark Team. His crew lowered the cage and his clients proceeded to view
sharks.

[36] He regarded the conditions as „threatening‟ but not dangerous. The
threat, he said, lay in the swell picking up because of the dropping tide. The
swells began to peak and he estimated their size to have reached about 7
metres. His method of estimating the swell size, however, was based on what
he believed to be the height from Barracuda’s waterline to the top of her
aerial. He believed this to be eight metres but accepted that it was, according
to Barracuda’s skipper, between three and a half and four metres. He also
accepted that estimating swell height in the circumstances was, at best, a
rough and ready exercise and unlikely to be accurate.

[37] He maintained that conditions deteriorated rapidly – in the five to ten
minutes prior to the capsize – and spoke to Lennox, the skipper of White
Shark, on his cellphone to discuss the conditions. He told Lennox that all of
his clients had had their chance to view sharks and he intended returning to
Kleinbaai. Lennox said that he was aborting his trip, having lain at anchor for
about 30 minutes already. At that stage, however, Smuts had not seen any
swells breaking in the area. He had just ended his conversation with Lennox
when the capsize occurred.

[38] When Smuts was asked about the size of the wave that had capsized
Shark Team, he said that one saw waves like that after and during north-west
storms. On the day in question, a light south-easterly wind that normally
flattens the sea was blowing but, he added, that „definitely was not the case
that day‟.

[39] He conceded that conditions could vary from one spot to another, even
over a fairly short distance. As a result, he said that all he could speak about
were the conditions prevailing where Swallow lay.

[40] Mr Coenie Coetzee was the dive master aboard White Shark which
had left Kleinbaai harbour at 09h05 on 13 April 2008. He described the trip to
the Geldsteen as „a nice ride‟ but on arriving and anchoring there he found a
bigger swell than he had anticipated. He estimated the south-westerly swell to
have been about four metres in height and said that a „very, very slight‟ south-
easterly wind blew. On arrival the crew began to chum and motored round for
a while to see what the sea was doing. White Shark then anchored astern of
Megalodon. A period of time after the vessel had anchored, however, four
larger swells passed her. This alarmed Coetzee and Lennox. A decision was
taken not to put the cage over the side and to abort the trip as well as the
afternoon‟s trip. Shortly thereafter – „a couple of minutes‟ later, according to
Coetzee – Shark Team was struck by the wave and capsized.

[41] Despite the four swells coming through, White Shark remained at
anchor until Shark Team’s capsize. Coetzee was explaining to his clients why
the shark viewing had been cancelled when he saw the wave striking Shark
Team some 300 metres away. Lennox was talking to Smuts, or had just
finished doing so. It was put to Coetzee in cross-examination that the swell
that was running at the Geldsteen had not caused concern for him „until that
set of swells came through‟ to which he answered: „Correct.‟ Coetzee agreed
that conditions could vary from boat to boat, depending on position, and that
what was experienced on Shark Team could have been different to what was
experienced on White Shark.

[42] Lennox did not testified but was interviewed by Captain K J Coates,
who investigated the capsize on behalf of the South African Maritime Safety
Authority (SAMSA). Lennox also made a statement to the police, which is
more or less consistent with the evidence of Coetzee.

[43] Colyn, the skipper of White Pointer testified that, after he had arrived at
the Geldsteen, Tuckett called him by cellphone to offer him Shark Team’s
position. He stated that a swell of about four metres was running. He
described this as „quite a big swell‟. His assessment of the conditions was that
it was „pretty safe‟ for shark viewing if one was in deeper water. He accepted
that if a boat was in a depth of ten to 12 metres, it would not be on a reef and
would be safe. He described the position where Shark Team lay as being a
prime spot for shark viewing and one that he had used. He testified that on 13
April 2008, the wind was a light south-easterly wind and it would have had no
effect on the swell.

[44] On his arrival at the Geldsteen that day, he first motored to the
northern-most end of the line of shark boats before turning and coming down
the line to the vicinity of Shark Team and Shark Fever. The area looked safe
to him. He accepted that if there was an absence of breaking swells and a
boat lay in sufficient depth of water it could be accepted that it was in a safe
position. He did not see any warning signs that a massive wave may be
imminent but said that he had not been in the area long enough.

[45] As the skipper of Shark Team, Tuckett was the defendants‟ main
witness. His version of events, and of the prevailing conditions, on the day in
question was supported by various crew members of Shark Team and Shark
Fever, as well as a passenger aboard Shark Fever.

[46] It is apparent that Tuckett is a well-qualified and experienced para-
medic, diver and skipper. He began to work for White Shark Projects in late
2003 and so, by the time of the capsize of Shark Team, he had close to four
and a half years of experience in the shark diving industry. All of that
experience was obtained in the area in which the capsize occurred. The shark
boats tended to operate in an area called Joubert‟s Dam, which is inshore of
the Geldsteen and north of Dyer Island, and around Dyer Island, including the
Geldsteen. The Joubert‟s Dam area is favoured in the summer months and

the area around Dyer Island, including the Geldsteen, is the preferred area in
the winter months.22

[47] From Tuckett‟s experience, it can be accepted that he had local
knowledge of the areas in which he operated, including the Geldsteen – and
the spot where the capsize occurred. Smuts, for instance, testified that
Tuckett had extensive knowledge of shark-diving in the Geldsteen area. Mr
Michael Hartnett, an expert witness called by the defendants, testified that
Tuckett had local knowledge as he had „thousands of hours working in the
same area‟ and that, on this basis, he would have been in a position to
„discern certain conditions and what effect they will have on his vessel‟. (He
considered local knowledge to be perhaps the most important factor when a
skipper has to decide on a safe place to lie at anchor.) Chivell, speaking more
generally of all of the shark boat skippers, said that they had been going to
sea in the Geldsteen area for „many, many, many years over hundreds and
hundreds of days and thousands of hours‟. As a result of their experience,
they „got to know where [are] the safe areas; where can you do what in certain
weather conditions‟. For him too, the most important aspects of understanding
the workings of the sea on the Geldsteen, and what is safe and what is not,
are historic and local knowledge.

[48] Tuckett testified that he tended to be a cautious skipper and White
Shark Projects was known among the local shark diving community as being
the first to cancel or postpone trips on account of weather and sea conditions.
This was confirmed by a number of the witnesses called by both the plaintiff
and the defendants. The witnesses on both sides regarded Tuckett as a good
skipper. Their assessment of his abilities as a skipper ranged from him being
described as a „fine skipper‟ by Smuts; a competent skipper according to a
member of his crew, Ms Megan Laird; a responsible skipper, according to
Christina Rutzen; and a competent and responsible skipper according to
Colyn. The witnesses also agreed that Tuckett was a cautious skipper.

22 The Geldsteen area was described differently by various witnesses. Nothing turns on this. It
is common cause that the spot where the capsize occurred is on the Geldsteen, howsoever it
may have been defined.

Indeed, Chivell regarded him as being „too careful‟ and a „very cautious
skipper‟. This is confirmed by Zietsman who correlated swell heights and the
instances of boats going to sea, both before and after the capsize: Shark
Team only went to sea occasionally when the swell height was bigger than
3.75 metres, and less often than the other shark boats.

[49] On the day in question, Tuckett followed a routine that appeared to be
standard among the shark boat skippers. He checked the forecast on the
program that White Shark Project used, Buoy Weather. That indicated, with a
green flag, that conditions were suitable for most marine activities. When he
arrived at the harbour, at about 06h00 or possibly earlier, he looked at the
sea. There was nothing in the conditions that concerned him: a moderate
south-east wind blew and it was overcast. The launch was uneventful, as was
the trip to the Geldsteen. He saw no waves breaking over a rock called Black
Sophie, which was an indicator of rough sea. He regarded it as „an average
trip on the Geldsteen‟, and the „shark action was fantastic‟. Everyone on board
„seemed to be quite happy with what they were seeing‟. Neither the wind nor
the sea conditions at the Geldsteen gave him cause for concern.

[50] When he arrived in the area that he had decided upon, he motored
around for ten or 15 minutes and checked the swell direction, the current and
the wind direction. He first went to a spot where Barracuda later lay. He
decided that it was a bit rough there so he motored 100 to 150 metres to the
south-west where conditions looked flatter. Both spots were entered as
markers into his global positioning system (GPS) and had been since he
started work in the industry. He had never seen the south-westerly swell
break in that area and nothing in the sea state indicated to him that there may
be shallower water to the west of Shark Team.

[51] Once he had decided on where he wished to lie, he motored, with the
aid of his GPS and with his fish-finder functioning, into the wind for 200
metres – the length of his anchor line – and gave an order for the anchor to be
deployed. The anchor was in nine metres of water. He then went astern back
in the direction in which the wind was blowing and lay in the spot he had

chosen, on the bridle anchoring system which kept the bow into the swell. He
lay in 11.1 metres of water. He felt that this was safe: the shark boat skippers
have a rule of thumb that one should, in order to be safe, lie in over nine
metres of water.

[52] In dealing with where the boat lay, he denied the evidence given by
Coetzee that Shark Team lay close to the kelp – and hence shallow water.
Tuckett said that it lay over 200 metres from the kelp: the anchor, being in 9
metres of water, was probably 30 to 50 metres from the kelp and the boat was
a further 200 metres from the anchor. He denied that Shark Team was on a
reef and said that he was not aware of any reef nearby. The bow of Shark
Team faced into the south-westerly swell at all times up to the capsize.

[53] None of the passengers experienced any difficulties from the swell
when moving around the boat. Indeed, he said that „often when we‟re out
there and it‟s a little choppy, people who are not used to being at sea, do
need to hold on to handrails – we have to constantly tell them to hold on, don‟t
move around too much, and there was nothing noticeable on that particular
day‟. None of the passengers indicated a concern with either the weather
conditions or the state of the sea. Nobody experienced difficulties climbing
into or out of the cage as a result of the swell.

[54] When everyone had had a chance to view sharks from the cage,
Tuckett decided that it was time to leave. The videographer wanted more
footage and Tuckett gave him a few minutes to do so. If he had been in any
way concerned about the conditions, he would not have acceded to this
request. He issued instructions to the crew to prepare for the return trip to
Kleinbaai. By that stage, Shark Team had been at that spot for about two and
a half hours. Tuckett had seen White Pointer approaching and was speaking
to her skipper Colyn, to offer him Shark Team’s spot, when the capsize
occurred.

[55] After the capsize, the surviving passengers and crew of Shark Team
were rescued by White Shark which had slipped its anchor on seeing the

wave strike and was on the scene very quickly. The sea conditions at this
stage were, according to Tuckett, flat. This is borne out, by and large, by the
photographs depicting the rescue.

[56] Tuckett testified that conditions vary from place to place on the
Geldsteen, even over fairly short distances. He described the spot where
Shark Team lay as being sheltered.

[57] When testifying about the conditions, he pointed to various features of
the Shark Team video that had been handed in as an exhibit. It showed a
fairly flat sea, with a small swell, people getting into and out of the cage with
ease and the cage itself being stable rather than „swinging and slapping
around‟ when in the water. It also depicted a crew member standing easily on
an engine while he worked the bait line. This was possible in good sea
conditions but if the sea is „very up and down or choppy then we actually have
to stand down on the deck behind the cage‟. He described the swell as „a slow
rolling swell‟. These conditions, he said, remained constant throughout the
trip.

[58] While he made it clear that it was difficult to estimate the swell size with
accuracy, especially from photographs or videos, and his estimates came with
no guarantee of accuracy, he guessed that the swell size was between two
and two and a half metres. In some of the photographs that he was taken to,
he estimated swells of three metres.

[59] When a video taken from Barracuda came to light towards the end of
Tuckett‟s examination in chief, he was taken through it. It showed, much like
the Shark Team video, passengers who seemed to be comfortable in the
conditions, and who stood with ease, and with no support, on the deck. The
cage looked stable and divers were entering and leaving it easily. The sea, he
said, looked calm where Barracuda was lying. He identified one swell that he
described as „a moderate swell‟ that was not peaking which looked to him like
an „average, moderate, slow, lazy swell‟. He estimated that other swells going
past Barracuda were in the region of two and a half metres but said that he

was making „educated guesses‟. One had some white water on it, created, he
believed, by the wind.

[60] Tuckett was subjected to a long, arduous cross-examination that
traversed both the relevant and the irrelevant. It lasted five days.

[61] In cross-examination, he stated that: his employer had not placed
pressure on him to go to sea on 13 April 2008; he was satisfied that his crew
was competent; he was alert, as he always was, when he was at sea that day;
Shark Team was never in danger; there were no warning signs of possible
breaking waves; there was no deterioration in the conditions; and there were
no breaking waves anywhere near Shark Team. He said that there was
nothing that he could have done to have prevented the capsize and that the
wave was one he „could never have expected or never have avoided‟. He
made it clear that, being the first to arrive on the Geldsteen, he was able to
choose the calmest spot, that the swells were not very big where Shark Team
lay and that he saw no peaking or feathering swells: all he saw were slow,
lazy swells. He did notice, however, that the boats astern of him were „riding
in higher swells than where I was‟.

[62] Tuckett had testified in chief that he had been to the spot where the
capsize occurred many times in the past. It was one of his waypoints in his
GPS and a favourite spot of his. He was taken to task on this evidence on the
basis that the logs for Shark Team’s trips from 7 March 2008 to the date of the
capsize showed that he had been to spots all over the Geldsteen but not to
that exact one. These spots varied from 40 to 770 metres away.

[63] I turn now to the evidence of Scholtz, the skipper of Shark Fever,
which had taken up a position about 40 metres ahead of Shark Team and
about 20 metres across (off Shark Team’s starboard bow). His evidence is
important because of Shark Fever’s proximity to Shark Team.

[64] He testified that, on the morning of 13 April 2008, Shark Fever
launched without incident and „had a very pleasant ride‟ to the Geldsteen.

There was, he said, some swell but it was not uncomfortable or anything to
worry about. On arrival, he saw that Shark Team was lying almost exactly on
a way point of his – a spot he described as one of the „safe spots‟ – so he
moved to another way point in front of Shark Team. He lay in 12 or 12.5
metres of water. He described the conditions as calmer than where Barracuda
and Swallow lay at The Point. He said:
„Where myself and Shark Team were lying, the water was calmer there than where
Barracuda and Swallow was lying, because I could see their boats‟ noses go up and
down and up and down, and we were almost stationary at times. And yes we also
went a little up and down at times but give and take 80% of the time we were lying,
we were almost lying still.‟
He estimated the swell size to be about two and a half metres on average.

[65] He said that he knew the area where he lay and that it was a „safe area
for me‟. He had been there in conditions similar to those prevailing on 13 April
2008, and worse. He had never seen feathering swells in that area: while
swells break close to the island and on the kelp, they do not break in the area
where he lay. Later, he said that over a period of five years prior to the
capsize, he had not seen a swell break in that area, so he assumed it to be a
safe area.

[66] On the day in question, he never saw any swells „standing up‟ near his
boat and nothing in the conditions caused him any concern. The swell posed
no danger. He knew he was safe from experience and because Shark Team,
being so close to him, had been there for longer than him. He could not recall
conditions deteriorating in any way and he did not notice any increase in the
swell height. He stated, however, that the swell was not consistent in that
while the average was about two and a half metres, some swells as big as
about four metres came through at times. He stressed that „[w]hile we were
lying there I felt very safe and comfortable being there at the time, no matter if
the swell was 1 metre or 4 or 5 metres‟. Conditions remained constant from
before the capsize to afterwards. From an hour and a half before the capsize
to a half hour after it, Shark Fever lay in that area and, „there was nothing for

me to really feel worried about, to really move out of the area to get to the
harbour, to land‟.

[67] It was put to him that when he saw the swell that capsized Shark Team
getting bigger, it must have reached a shallower area. He said that he had
difficulty responding to this as „I was lying there the whole day‟ and „[n]othing
out of the ordinary happened‟. It was also put to him that Shark Team should
never have been where she was. His answer was that there was no doubt in
his mind that the vessel was „not in danger at all‟ and that the swell that
capsized Shark Team „was according to me an unexpected swell or as it was
referred to as well, as a freak swell‟.

[68] The evidence of both Tuckett and Scholtz concerning the wind and sea
conditions as well as a lack of deterioration in them was supported by: Ms
Megan Laird, who was on Shark Team as a volunteer and dive master; Mr
Adrian Hewitt, who was a crew member aboard Shark Team; Ms Alison
Towner, the dive master aboard Shark Fever; and Ms Sara Dix, the
videographer aboard White Pointer. Laird, Hewitt and Towner were marine
biologists engaged in research into great white sharks and all three had sea-
going and diving qualifications and experience. Their research and their duties
entailed recording data concerning their boat‟s position, water depth, swell
size and wind direction. They also had to keep a lookout for these types of
factors and conditions. While Dix may not have had the research involvement
of the others, she too had extensive sea-going experience. A passenger
aboard Shark Fever, Ms Bridget Willcox, who had some sea-going
experience, gave evidence that was consistent with that of the crew of both
vessels.

[69] Their evidence, taken together, was to this effect: the wind was light to
moderate; there were no concerns about the swell on the Geldsteen; it was
estimated to be two metres, two to three metres; two and a half to three
metres by Laird, Hewitt and Towner respectively and described as moderate
by Dix and Willcox; the swells were long, lazy swells; all felt comfortable on
their boats; none of them noticed any deterioration in the conditions or any

increase in wind speed; nobody on the respective boats were seen to
experience condition-related difficulties; no breaking, peaking or feathering
swells were observed; and none of them recalled any larger swells coming
past their boats.

[70] Laird said that if the swell had deteriorated she would have noticed
because she was working as the dive master and this would have had an
impact on people who were trying to get in and out of the cage, and on those
inside the cage. Hewitt recorded details of the conditions for his research. He
was interested in correlating shark sightings and prevailing conditions. One of
Towner‟s duties was to fill in data sheets that recorded conditions, including
the depth of water, the nature of the swell and its direction, wind direction,
current direction and underwater visibility. She said that after the capsize, the
sea returned to the state it had been in before the event. Dix said that the sea
returned to normal, and said of the wave that „[i]t really was just like
something that came out of nowhere and then went again‟.

[71] Michael Rutzen‟s evidence concerning conditions on 13 April 2008 has
been alluded to above. He also gave evidence concerning the Geldsteen,
based on more than 20 years of experience. In his experience, the swells
break only on the kelp lines and the south-east wind tends to flatten the south-
westerly swell. He had only experienced an extraordinarily large wave once
on the Geldsteen and that was in 1998 when it broke and „washed white
water‟ towards the moving boat he was in. Swells of between three and four
metres are normal in the area where the capsize occurred.

[72] Chivell is also a mariner with a great deal of experience of the
Geldsteen. He said that he was familiar with the spots where Shark Team and
Shark Fever lay and, in his opinion, they are safe spots. He had never seen
breaking swells there or heard of a shark diving or whale watching boat
experiencing problems with breaking swells in that area.

[73] Concerning the deterioration of conditions, he made two points: first,
that deteriorating conditions per se are not a problem but it is only when a

„massive change in swell conditions‟ occurs that it becomes problematic;
secondly, he saw no signs of deteriorating conditions by the afternoon of 13
April 2008, no deterioration of significance was forecast and only a slight
increase of wind speed, which would have been irrelevant to boats lying in the
lee of Dyer Island, was predicted. He also saw no evidence of dangerous
conditions in the photographs taken immediately after the capsize.

[74] He was of the opinion that three metre swells could not be said to be
big and four metre and bigger swells could be said to be big but there was no
reason why skippers could not go to the Geldsteen in four metre swells: it all
depended on a range of factors whether it was safe or not. Large swells on
their own are not a problem. They only become a problem when they break.

[75] He found it strange that Smuts and Lennox could have thought that
conditions were dangerous but yet had anchored. This, he said, would have
led him to institute a disciplinary process if one of his skippers had done that.
He made the point, however, that both Smuts and Lennox were new to the
industry, that they had only a few months experience in the area and that
White Shark was smaller than the other shark diving boats, as well as lower in
the water, and thus susceptible to „feeling‟ the conditions more than the
others. Swallow was also a smaller boat, according to Smuts.

[76] Chivell was sceptical about the ability of lay people to gauge that
conditions were deteriorating. First, he expected that experienced skippers
and crew would become aware of deteriorating conditions before a lay
person. Secondly, he said that if „you‟ve never been at sea . . . and you‟re
sitting on the boat and you‟ve done your dive and you‟re starting to feel
seasick, then everything becomes a problem‟.

[77] When asked to comment on one of the swells in the Barracuda video,
he conceded that „[f]rom the angle of the video it looks like a big swell‟ but he
insisted that conditions could be different where other boats were lying and
that if the swell „is not breaking, if it‟s not feathering, if it doesn‟t give you any
indication of breaking, I wouldn‟t mind these swells‟. He added, however, that

while the bigger swells that showed signs of feathering posed no threat to
Barracuda, the boats astern of her should have been „very much alert‟.

[78] Hartnett was an expert by virtue of his long and varied experience as a
mariner. He was not at sea on the Geldsteen on the day of the capsize but
was required to give his expert opinion on a number of aspects relating in one
way or another to the reasonableness of Tuckett‟s conduct that day.

[79] He believed that there were no indications in the weather forecast of
possible danger. He considered that the size of the swell, on its own, is a
meaningless measure of whether conditions are dangerous. What would
indicate danger are such features as feathering swells or the shortening of
swells, and of course, breaking waves. Big swells pose no threat on their own.
As other witnesses had testified, he also pointed to the fact that conditions at
sea may vary from spot to spot: while swells may be breaking in one spot,
they may not be doing so elsewhere.

[80] He regarded a boat lying in 11 metres of water to be safe. He was of
the view that in choosing a spot, Tuckett ought to have been guided by his
local knowledge. The fact that he had found his chosen spot to be safe in the
past, and had never experienced breaking swells there before, were important
indicators that he acted reasonably.

[81] Hartnett made the point that inexperienced people, being in a foreign
environment, are not well placed to judge whether conditions are
deteriorating. Skippers and crew, being more attuned to the marine
environment, are far better placed to do so.

[82] He did not consider it inappropriate for a skipper to be checking on the
cage diving. He considered this to be one of a skipper‟s duties. He also saw
no problem in a skipper working a bait line. This did not create a conflict with
his duty to keep a proper lookout: indeed, by virtue of the nature of the task, it
could make the skipper more alert to „strange waves or big swells‟ because

these would affect his balance while he throws, works and retrieves the bait
line.

Proper lookout: the pinnacles and motoring into the swell
[83] After Zietsman, a civil and ocean engineer, had been engaged as an
expert witness by the defendants, he commissioned a bathymetric survey of
the area in which the capsize occurred. This brought to light the existence of
slightly shallower water to the north-west of Shark Fever and to the west of
Shark Team. More importantly, it brought to light the existence of two
pinnacles, each about five square metres in area, and approximately 6,8 and
7,2 metres under the water. Neither Tuckett nor any of the other skippers who
testified, including Chivell, knew of these pinnacles. They all had used this
area for shark viewing over a number of years, and considered it a perfectly
safe place to lie. The remainder of the shallower area was over eight metres
deep.

[84] Tuckett was asked whether he had ever seen, with the aid of his fish-
finder, shallower areas in the vicinity of the capsize. He said he had not and
the sea state to the west of Shark Team had not indicated the presence of
shallower water either. He saw nothing, he said, that „gave me any indication
that there [were] any shallow reefs there‟. This evidence was supported –
perhaps indirectly – by Scholtz when it was put to him that the swell that
caused the capsize must have reached a shallower area when he saw it
getting bigger. As previously noted, he answered that he had difficulty
responding because „I was lying there the whole day‟ and „[n]othing out of the
ordinary happened‟. He had not seen a wave breaking in that area for the
previous five years during which he had used that spot.

[85] It was put to Chivell, in the context of the assertion that Tuckett should
have spotted the shallower water off his starboard bow, that a skipper of a
boat will see shallower water because the swell would „rise up‟ over a reef.
Chivell, with reference to a recent trip he made to the Geldsteen (in conditions
similar to those prevailing of 13 April 2008) to try to locate the pinnacles
identified by the bathymetric survey, said that one would have expected this to

be the case but he found on his trip that it was not necessarily so. He then
stated, with obvious reference to Shark Team, that if a boat has been lying in
a place for two or two and a half hours and no swells had looked like they
were going to break, there would be no danger signs to induce a skipper to
move away. When it was put to him that a swell is going to break sooner or
later over a shallow reef, his answer was that he had not seen that happen in
the Geldsteen area.

[86] Hartnett was of the view that given the depth, size and spire-like shape
of the pinnacles off Shark Team’s starboard bow, and on one of which the
swell had begun to break, it was not to be expected that a person would be
aware of their presence by reading the water: there would have been no
discernible disturbances of the surface when swells passed over them in the
conditions prevailing on 13 April 2008. It could well have been different in a
very big sea, but nobody would be there to observe.

[87] It was suggested to Tuckett that he had been remiss in failing to
proceed from the spot he had chosen into the swell to ensure that no shallow
water lay ahead. He stressed that he had not been aware at the time of any
shallow areas in the vicinity of Shark Team „so I was one hundred percent
confident with the area where I came to lay‟. The court then asked him
whether he should have „scouted around, to use lay language‟ and whether, if
he had done so, his knowledge would have been different. To this he said:
„Yes, M‟Lord, but I had been riding around that area in years previously and I‟ve
never picked up anything like that, so the thought never entered my mind that there
was anything there that I needed to worry about. And because I‟d anchored
previously on that marker in those conditions with that wind, with those swell
conditions, I was quite happy to go straight to that point and I felt quite safe there,
M‟Lord. And we did motor around. We motored around off The Point. We did motor
coming over. We did go a little bit further out to start our chum line coming into that
point. So we did look for a good 15 minutes before actually dropping our anchor in
the 9 metres of water, M‟Lord.‟

[88] He made the point that „as soon as I came anywhere near to the
Geldsteen and started . . . choosing my anchor point and checking the wind,
then the depth-finder would go on‟. When asked by the court what his fish-
finder had shown him on the day in question, he said that he had definitely not
seen „any shallow pinnacles or anything‟.

[89] He was asked whether, with the benefit of hindsight and the
bathymetric survey, he thought it would have been prudent to proceed into the
swell for a while. He said:
„Yes, M‟Lord, but you‟ve got to also bear in mind, M‟Lord, that I was one hundred
percent convinced in my mind that the only swell that was going to break anywhere
near me that day would have been behind me and on my portside. And I never saw
anything peaking or swirling or any indication of anything south or west of my position
to give me any concern. And I would have been looking in that direction as I came in
to pick my spot to lay anchor as well, M‟Lord.‟

[90] In re-examination, he was taken to this issue again. He made two
points. First, he said, when he chose his spot, he motored around it for
anything from five to 15 minutes focusing on the area in front of where the
vessel was to lie. Secondly, he said that going into the swell to check depth
would not have led to the discovery of the shallower area and the pinnacles
because they lay to the west – in other words, off Shark Team’s starboard
bow.

[91] As far as spotting the pinnacles was concerned, Chivell was of the
opinion that it would have taken sheer luck for anyone to have done so: one
would have to sail directly over one of them with the fish-finder on and be
watching it at the precise moment. This is so because the fish-finder uses a
single beam trained directly downwards. That was why it was more important
to read the sea.

[92] According to Zietsman, one pinnacle was about 37 metres from Shark
Fever and the other was about 48 metres from Shark Team. One does not
know how accurate these figures are but they will suffice as a rough guide. He

explained that while the fish-finders on the shark boats use a single beam, the
bathymetric survey was done with a high resolution multi-beam system that
gives a swathe of the sea bed.

The wave and the capsize
[93] In his judgment, Freund AJ expressed the view that the size of the
wave that struck Shark Team was not relevant but he accepted that it was
„both a very large wave, and that it was considerably larger than the largest
swell observed in the preceding or succeeding few hours‟.23

[94] It is, in my view, necessary to canvass the evidence concerning the
size of the wave and its effect on Shark Team. It is noteworthy that, as I shall
show, every person who saw and testified about the wave described it as
extraordinarily large.

[95] Coetzee described the wave as unique and said that the unique thing
about it was „the size, the height and the white water that was going
continuously non-stop for a long period of time‟. Smuts said that he had seen
waves of that size and bigger during north-westerly storms but on that day a
light south-easterly wind, which usually flattens the sea, was blowing. Colyn
said that the wave that capsized Shark Team was „massive‟. It had been put
to him that in a consultation with the defendants‟ legal team, he had said that
the wave was the biggest he had seen in the area. He conceded that he may
have said so.

[96] Dix, the videographer on board White Pointer, testified that she was in
the wheelhouse with Colyn when the wave struck Shark Team and that Colyn
described it as a „freak wave‟. This made sense to her because „there was
nothing else after it really . . . it was just out of the blue‟. She described it as a
„massive wave‟. When asked what drew her attention to the swell, she said:
„Well, it was massive. It was massive. I‟d never seen anything so big.‟

23 Judgment of the court below, para 65.

[97] It was put to Coates, who investigated the capsize on behalf of
SAMSA, that Tuckett had experienced nothing untoward at sea and then saw
a „wall of water‟ coming towards Shark Team, and he was then asked how
Shark Team could have escaped in these circumstances. He answered: „With
a lot of luck, Sir.‟

[98] Tuckett said that he had never seen a wave of that size in his life,
before or since the capsize of Shark Team. He continued shark viewing in that
very area after the capsize and has never seen a breaking swell of that nature
there.

[99] Laird was on the bow of Shark Team when the wave struck. She
estimated that it was about 10 metres high. (In an interview with „You‟
magazine, she had apparently said the wave was about eight metres high but,
in my view, little turns on this. On the basis of this discrepancy, the court
below called her credibility into question. In my view, the discrepancy was
immaterial.)

[100] Hewitt described the wave as „this huge wave heading straight towards
us‟ and said that „you could hear it roaring‟. He described it as being
„incredibly large‟. He estimated its height to be the height of the White Shark
Projects lodge ─ which was about 10 metres high. He also estimated the
height of the wave to be about the same as the length of Shark Team ─ about
ten to 11 metres. He had never seen a wave like that at the Geldsteen and
had only seen something similar once before ─ 20 nautical miles off Cape
Point in „very, very rough conditions‟.

[101] Scholtz referred to the wave as „the freak swell‟. He was on the viewing
deck when he saw the swell which was „out of the ordinary compared to the
other swells‟. It was catching up to a swell in front of it. Then, when the swell
was 15 to 20 metres from Shark Fever it „just suddenly became very big, just
like rose up‟. He told his passengers after the capsize that they had witnessed
something that he as a skipper had never witnessed, either in that area or

elsewhere. Finally, he described the swell as a „freak swell‟ and as being „out
of the ordinary for me‟.

[102] Towner was on the viewing deck of Shark Fever when she saw the
swell that capsized Shark Team. She said that she saw „a very, very large
what can only be described as “a wall of water” coming towards us‟. When
asked about its size, she said she was on the viewing deck and „I had to look
up and actually strained my neck to look up at this thing‟. In cross-
examination, it was established that the viewing deck was about four metres
above the waterline and she was 1,6 metres tall ─ and she still strained her
neck looking up at „this thing‟. She described it as „significantly higher‟ than
the viewing deck and as a „very, very large wave, abnormally large‟. She
resisted estimating its height until she was pushed to do so by the court. She
accepted that a swell of eight metres would be „extraordinarily large‟ and said
that this swell was „larger than 8 metres‟: it was „certainly not something
normal out there‟.

[103] Wilcox was a passenger on Shark Fever. She described the swell as
„massive‟ and huge in comparison to anything they had seen earlier.

[104] Michael Rutzen did not see the wave. He was asked, however, if he
had ever seen abnormally large waves in the Geldsteen area. He said that he
had, on one occasion in 1998 when he „heard a big thunder‟, a wave broke
and „washed white water towards us‟. He said that three to four metre swells
are normal in the area where the capsize occurred but the wave that capsized
Shark Team was not normal.

[105] Chivell, the owner of Shark Fever, was not at sea when the capsize
occurred. In his view, it would have taken a wave of a height more or less
equal to the length of Shark Team to cause her to capsize. He had never
seen a wave of that size at the Geldsteen.

[106] Although Tuckett said that the wave had struck Shark Team head-on,
other witnesses spoke of it striking the starboard bow. Tuckett appears to

have been incorrect. Given that it is now known that the swell began to break
on a pinnacle which was west of Shark Team and that it passed under Shark
Fever which was off Shark Team’s starboard bow, it is probable that it struck
Shark Team’s starboard bow – as Hewitt put it, „somewhere directly off the
bow to slightly off the starboard bow‟.

[107] Smuts described the wave as having pitch-poled Shark Team. By this
he meant that it went over along its length. Coetzee said the same: that the
wave flipped Shark Team over, bow over stern and that „the bow ended up in
the stern‟s direction upside down‟. This is consistent with the evidence of
Laird, who was on the bow of Shark Team when the wave struck. She said
that it „hit Shark Team on the bow and flipped it over, capsized the vessel‟.

[108] It is clear from the evidence given by those who saw the wave that
capsized Shark Team that it was extraordinarily large and was the only wave
of its kind to be seen that day. Indeed, most of the witnesses testified that
they had either never seen a wave of that magnitude or had only seen one
once. Clearly, it was not the product of the prevailing swell: not a single swell,
even those that were bigger than the norm, broke that day in the vicinity of
Shark Team. Only one, or perhaps two, showed signs of feathering, but those
were some distance beyond Shark Team, and astern of Barracuda – and
posed no threat to Shark Team.

[109] Zietsman proffered an explanation for the large wave, what its probable
size was and how it broke. His explanation is summarised in his report at the
conclusion of an analysis of the swells and the wind conditions on 13 April
2008 and reads as follows:
„The most important findings of these analyses is that the crossing of the South West
swell and the South East wind sea, at right angles, would create a wedging effect.
Observers on the boat would have felt the relatively short period wind generated
waves from the SE at a period of about 8 seconds and a wave height of 1.5 m. The
much longer wave swell from the SW at about 14 seconds and a significant wave
height of 3.5 m would have been less evident to someone on the boat, at least until
the two coincided and created a superposition of the components.

The wedging effect would have resulted from the merging of the incoming
swell from the South West with the wind sea from the South East. The combination of
wind and wave swells is an infrequent occurrence and is only likely to occur at less
than 2% of the time.

The confluence of these effects, together with the reflection of other waves
from the NE (i.e. from the Gansbaai/Danger Point Peninsula) as modelled by ZAA,
would have increased the most probable maximum wave height to give a swell of
Hs=3.5m (and most probable maximum height 7m) and when this is further
combined with their localised superimposition at a point where the water depth is
reduced, it would cause wave break.

The result of the combination of all these factors at the same time and same
point most probably resulted in the wave breaking over the reef, which as noted in
Section 2.2.1 above is a rocky outcrop to the north west of Shark Fever and to the
west of Shark Team, where the water depth is about 5.3m LAT or about 6.5m at the
time of the incident. We believe that it is this outcrop that caused the combined wind
and wave swells coming from directions at right angles to each other to break. Shark
Fever was able to avoid a potentially similar scenario because the wave had not yet
broken as it was positioned to seaward of Shark Team and in deeper water.

In summary, if the wind sea had not been present from the South East and
superimposed on the wave swell from the South West, with both occurring
simultaneously and at a location where the water was shallow enough to cause wave
break, then the possibility of the wave breaking when and where it did and the
consequences for Shark Team would have been much reduced.‟

[110] When Zietsman testified, he said that what made the wedging occur,
and explains why this was a relatively rare phenomenon, was the confluence
of the south-westerly swell of a particular height – over about three and a half
metres – and a south-easterly wind of a sufficient velocity – capable of
generating a wind swell. In other words, it is not a phenomenon associated
with every south-westerly swell and south-easterly wind.

[111] Zietsman was not surprised to be told that neither Tuckett nor Laird
aboard Shark Team were aware of any short period wind-generated swells,
despite the fact that, he said, one could see in the video the effect of the wind
swell in the rocking of the boats. People on the boats probably only noticed

and experienced the larger swell and would not have been aware of the wind
swell cutting across the sea swell.

[112] During the course of his cross-examination, Zietsman was asked
whether, with the full knowledge at his disposal and with the benefit of
hindsight which, it was conceded, Tuckett „couldn‟t possibly have known‟, he
would have thought it dangerous to lie where Shark Team had on the day of
the capsize. His answer was that on the basis of what he knew „with hindsight,
having done all this work, that under these conditions I wouldn‟t moor there‟.

[113] The cross-examination proceeded thus:
„Now, I understand that and I understand, of course, that even you if you‟d been out
there as a skipper wouldn‟t have known all those things. --- Exactly.
And far less would Mr Tuckett have known all of those things. I understand that. ---
Yes, I understand, M‟Lord. Yes.
But you do accept that if hypothetically – and it would be a very strange scenario – if
hypothetically one had all of that knowledge. --- Yes.
It would be apparent it‟s risky. --- Yes, you wouldn‟t moor in that location.‟

[114] He was asked about how easy it was to identify the interaction of the
sea swell and the wind swell. He said that although it was correct that the
hump effect, where the two meet, was „quite dramatic‟, nobody but he noticed
it and nobody wanted to accept it. He said that „nobody could see it‟ and it
was only when he pointed it out that people noticed it. The cross-examination
proceeded as follows:
„But what happens is, it is quite a dramatic effect if you‟re looking for it, as you said. --
- Well, if you know what you‟re looking for.‟

[115] That the phenomenon was not generally known about was clear from
the evidence of Chivell. He testified that he had never experienced a cross
sea on the Geldsteen but, if it occurred, that would be when the sea is very
big as a result of a „massive cold front‟.

[116] Zietsman explained that the swell began to break on the deeper of the
two pinnacles, which was closest to Shark Fever. In order for it to start to
break, the swell had to be at least 8,41 metres high. (He departed from the
rule of thumb that the break height of a swell is determined by the depth of
water divided by 1,3 because other factors were present, such as the slope of
the sea bed, which increased the break height.) He calculated the break
height where Shark Team lay to be 10,81 metres. What stood out for him,
however, was that the break continued even as the swell moved into deeper
water. This attested to the size of the swell because, if it had been smaller, it
would have reformed into a swell and passed under Shark Team. The fact
that it continued to break confirmed for him that it was bigger than ten metres.
He believed that it would have taken a wave of that size to have capsized a
boat of the size of Shark Team.

[117] It is perhaps not surprising that, on being asked what conclusions he
drew from his evidence about the size of the swell and how it broke, he
answered that it suggested to him that „it was an unusual event‟. He also was
of the view that given the size of the swell, it „would have broken whether or
not that pinnacle of 7,2 existed‟.

The court below’s judgment
[118] In his judgment, Freund AJ‟s starting point was what he described as „a
fundamental question‟ as to „what swell size would be large enough to serve
as a warning to a reasonably prudent skipper of a shark-cage vessel at
anchor that he should weigh anchor and depart‟.24 His key finding in this
respect was that the reasonable skipper, with tourists on his boat and at
anchor on the Geldsteen, „would regard passing waves of 4m or more as a
clear warning that conditions were, or were becoming, unsafe and therefore a
warning that he should depart‟.25

[119] On the basis of the evidence of the Meyers, the up-country passengers
aboard Shark Team, as well as that of Smuts on Swallow, which lay astern

24 Judgment of the court below, para 45.
25 Judgment of the court below, para 51.

and to the port of Barracuda, Coetzee on White Shark, the vessel at the
northern end of the line of shark boats, and the hearsay evidence of Lennox,
the skipper of White Shark, Freund AJ found that, on the probabilities, „swells
in excess of 4m must have passed Shark Team in the period preceding the
capsize reasonably frequently‟ and that „these swells were sufficiently
threatening that a prudent skipper would, prior to the time of the capsize, have
taken steps to depart from the scene‟.26

[120] He was „in little doubt‟ that Coetzee and Lennox on White Shark
„regarded the conditions where they were in the period preceding the capsize
of Shark Team as dangerous‟27 and that, on the basis of the evidence of
Coetzee and Smuts, „conditions where they were deteriorated alarmingly in
the few minutes immediately preceding the capsize‟.28 He was prepared to
accept that conditions may have been different where Shark Team and Shark
Fever lay but regarded it as „improbable that they were very different‟.29

[121] He found that, having regard to the probabilities, the „swell conditions
prior to the capsize had become noticeably dangerous and that the evidence
of Tuckett, and those who supported him to the effect that the conditions were
benign, cannot be accepted‟.30

[122] On this basis, Freund AJ found that there was force in the contention
advanced on behalf of the plaintiff that Tuckett and his crew were not keeping
a proper lookout in respect of the swell conditions as a result of complacency;
that the swell conditions were large and threatening enough to serve as a
warning to a prudent skipper and, that being the case, Tuckett should have
„foreseen that a wave breaking over Shark Team was a reasonable
possibility‟.31

26 Judgment of the court below, para 186.
27 Judgment of the court below, para 152.
28 Judgment of the court below, para 160.
29 Judgment of the court below, para 162.
30 Judgment of the court below, para 151.
31 Judgment of the court below, paras 187-188.

[123] The crux of Freund AJ judgment appears in the following passage:
„189
If Tuckett had been keeping a proper lookout, he would have been aware of
the risk posed by the swell conditions. He would have foreseen the reasonable
possibility that, if Shark Team stayed where it was, a wave might break over his
vessel. He should have taken reasonable steps to guard against this risk. The
reasonable steps which should have been taken were to weigh anchor and to depart
from Geldsteen as soon as possible.‟
It is common cause that Tuckett took no steps to depart. Though his
passengers had completed their dives, he was content to allow the videographer to
continue filming in the cage.
A reasonable skipper would, by the time of the arrival of the capsizing wave,
have departed. At the very least, a reasonable skipper would already have weighed
anchor and been at the wheel, and therefore, on the probabilities, in a position to
avoid or “punch through” an approaching wave.
Tuckett was, therefore, negligent. His negligence was causally connected to
the capsize which resulted in the plaintiff‟s husband‟s death.‟

[124] Freund AJ held that because the Geldsteen is described in charts as
being foul ground, „care must be taken to establish the depth of the position
where the vessel comes to rest and the depth in the direction from which the
swell is proceeding‟.32 A prudent skipper would therefore, he said, have „taken
care to establish the depth in the direction from which the swell is
proceeding‟.33 As Tuckett had not looked at the depth south and west of his
chosen spot, he could not have known whether there was shallow ground in
those directions, and so was negligent.34

[125] The court then held that what was „considerably less clear‟ was
whether that negligence was causally connected to the capsize35 and
whether, with the equipment available to him, Tuckett would have found the
pinnacles had he explored to the west of his spot.36 Freund AJ held that it was
not necessary to make findings on these issues as he had already concluded

32 Judgment of the court below, para 193.
33 Judgment of the court below, para 194.
34 Judgment of the court below, para 195.
35 Judgment of the court below, para 196.
36 Judgment of the court below, para 197.

that Tuckett had been negligent in another respect and that his negligence
was causally linked to the harm. He suggested, however, that he inclined
towards a finding of liability on this ground too.37

Analysis
Factual findings
[126] Freund AJ accepted as more probable the evidence of the plaintiff‟s
witnesses and rejected as improbable the evidence of the defendants‟
witnesses as to the sea conditions and whether they deteriorated. In
particular, he rejected the evidence of Tuckett in its entirety. He also appears
to have rejected the evidence of every witness whose evidence supported
Tuckett‟s version. He accepted, and relied heavily on, aspects of the evidence
of Zietsman as to swell heights.

[127] The factual findings of trial courts are presumed on appeal to be
correct and will only be interfered with if they are the product of misdirection.
In Santam Bpk v Biddulph38 Zulman JA held:
„Whilst a Court of appeal is generally reluctant to disturb findings which depend on
credibility it is trite that it will do so where such findings are plainly wrong (R v
Dhlumayo and Another 1948 (2) SA 677 (A) at 706). This is especially so where the
reasons given for the finding are seriously flawed. Overemphasis of the advantages
which a trial Court enjoys is to be avoided, lest an appellant's right of appeal
“becomes illusory” (Protea Assurance Co Ltd v Casey 1970 (2) SA 643 (A) at 648D-E
and Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979 (1) SA 621 (A) at 623H-
624A). It is equally true that findings of credibility cannot be judged in isolation, but
require to be considered in the light of proven facts and the probabilities of the matter
under consideration.‟

[128] In my view, there are a number of criticisms that may be levelled
against the judgment of the court below in respect of its assessment of the
evidence and consequent factual findings. They amount to misdirections.

37 Judgment of the court below, para 198.
38 Santam Bpk v Biddulph [2004] ZASCA 11; 2004 (5) SA 586 (SCA), para 5.

[129] The first is that the court below did not evaluate and assess the
evidence of the witnesses properly. Freund AJ simply accepted the evidence
of the plaintiff‟s witnesses and rejected the evidence of the defendants‟
witnesses without giving reasons of any substance as to why he preferred the
one over the other: he referred to the probabilities as favouring one side and
being against the other without justifying his conclusion.

[130] For instance, he stated that, having regard to the probabilities, the
„swell conditions prior to the capsize had become noticeably dangerous and
. . . the evidence of Tuckett, and those who supported him to the effect that
the conditions were benign, cannot be accepted‟.39 He did not say on what
basis he had decided that the probabilities favoured this conclusion,
especially when it was accepted by all of the witnesses with sea-going
experience that conditions differ from spot to spot, that Smuts and Coetzee
could only speak about conditions where their vessels lay and that Tuckett
had testified that he had chosen his spot precisely because it was calmer.

[131] In accepting the evidence of Smuts, Coetzee and Lennox that the sea
condition was deteriorating Freund AJ overlooked the incorrect premise on
which they based their opinion ─ the dropping tide. The evidence was that the
capsize occurred shortly after high tide. The tide could not have dropped
significantly by then and certainly was not dropping when they claim the
deterioration of conditions caused them concern. This undermines Smuts‟
evidence that „with the tide dropping, the chances of swells breaking in that
area were large‟40 and Lennox‟s hearsay evidence (to which, admittedly, little
weight was attached) that „with the tide dropping, it was not going to be good
to lie around any of the reefs‟ and that „[o]n low tide the swell would pick up‟.41
Low tide was still almost six hours away.

[132] All of this is gainsaid by the fact that the evidence of those aboard
Shark Team and Shark Fever, the closest boat to Shark Team, was that they

39 Judgment of the court below, para 151.
40 Judgment of the court below, para 76.
41 Judgment of the court below, para 88.

experienced no breaking swells over the entire period that they were on the
Geldsteen – over two hours in the case of Shark Team prior to the capsize,
and more or less the same time, but both before and after the capsize, in the
case of Shark Fever. They also saw no peaking or feathering swells where
they lay.

[133] The grounds upon which Freund AJ rejected Tuckett‟s evidence are
flawed. They were that Tuckett had testified in chief that he had, on the
request of his employer, filled in training logs after he had given crew
members training and not contemporaneously, had not had the appropriate
skipper‟s licence for a period while he skippered Shark Team and had been
shown to be incorrect in his evidence that he had gone to the precise spot of
the capsize numerous times before in the weeks preceding the incident. He
had filled in the training logs some time after the capsize and the problem with
his skipper‟s licence had occurred, and been rectified, about two years before
the capsize.

[134] These grounds accord no basis whatsoever for rejecting his evidence
as a whole. Whether Tuckett filled in the training logs after the event, and not
contemporaneously with the training being given, and whether he was
properly certified as a skipper at some stage prior to the capsize had no
material bearing on his credibility and were irrelevant to the issues before the
court. In the second place, there was no suggestion that Tuckett was
untruthful. Ironically, his forthrightness in disclosing these facts seems to have
been held against him and was used as the basis for a finding that he was
„not unwilling to mislead‟.42

[135] As for Tuckett‟s evidence about going previously to the precise spot of
the capsize, it must be borne in mind that he was testifying about six years
after the capsize occurred. When he was confronted with his boat‟s logs, they
showed that in the five weeks or so preceding the capsize he had been to
numerous spots all over the Geldsteen including spots close to his position on

42 Judgment of the court below, para 165.

13 April 2008. He had an explanation for that too. He said that one could not
always go to a spot because it could already be taken by another boat or the
wind or the swell prevented one from lying there. He also said that in the
previous winter months he had used that spot many times. It was not
suggested to him in cross-examination that he had tried to mislead the court
deliberately, as opposed to making a sincere mistake.

[136] Even if it were to be accepted that he had been untruthful about lying
on the precise spot of the capsize during the preceding five weeks, that does
not mean that everything else that he said must be rejected: evidence can be
„good in parts‟.43 The ultimate question that must be answered „is not whether
a witness is wholly truthful in all that he says, but whether the court can be
satisfied . . . on a balance of probabilities in a civil matter, that the story which
the witness tells is a true one in its essential features‟.44

[137] It is obviously so that Tuckett had an interest in the outcome of the
case. That is not unusual at all. The matter concerns his personal liability and
also affects his professional reputation. This does not mean that his evidence
must be treated with suspicion, much less disregarded or discounted. It must
still be dealt with on its merits, bearing in mind his interest.45

[138] He was also criticised for downplaying the size of the swell on the
Geldsteen on the day in question. His evidence in this respect is, however,
consistent with the evidence of everyone else who was aboard either Shark
Team or Shark Fever and who testified. There is no suggestion – much less
evidence of – a conspiracy between all of these witnesses.

[139] Evidence of the swell size must also be viewed in its proper context.
Throughout Tuckett‟s evidence he was at pains to say, when asked to
estimate the size of a swell, that he found it difficult to do this, that he was
taking an educated guess and that his estimates came with no guarantee of

43 H C Nicholas „Credibility of Witnesses‟ (1985) 102 SALJ 32 at 35.
44 Nicholas (note 43) at 35.
45 Nicholas (note 43) at 37-38.

accuracy. All of the witnesses with sea-going experience confirmed that it is
extremely difficult to estimate swell sizes, particularly from photographs and
videos, and that the result may not be accurate. Not surprisingly, in the
circumstances, the estimates of the size of the swell varied considerably from
witness to witness: at one stage, Smuts, whose evidence was accepted and
relied upon, spoke of an eight metre swell but his estimate was shown to be
based on an erroneous assumption.

[140] I have read the evidence of Tuckett – and re-read parts of it more than
once – and I can see no proper basis for its rejection. To say, as Freund AJ
did, that he has a propensity to mislead is, with respect, neither borne out by
the evidence as a whole and nor is it fair. He may be subject to criticism in
certain respects, but his evidence was supported in all material respects, and
not only regarding swell size, by a number of witnesses who were aboard
Shark Team and Shark Fever. I do not understand why that evidence
apparently counted for naught and was rejected.

[141] If a reason for the rejection of the evidence of those who supported
Tuckett‟s version is discernible, it appears to have been their supposed
interest in a favourable outcome for the defendants, or sympathy for or loyalty
towards Tuckett. This is especially so in respect of Towner, Tuckett‟s partner.
I could find nothing in the record that established any hint of these forms of
bias on the part of Laird, Hewitt, Scholtz, Towner, Dix and Willcox. In addition,
Laird and Dix had had nothing to do with Tuckett for a number of years and
Willcox did not even know him. Even if criticism could be levelled against
some of the witnesses in some respects, their evidence taken as a whole
constitutes an impressive, consistent and weighty edifice.

[142] Freund AJ accorded far too much weight to the evidence of the
Meyers, and far too little weight to its deficiencies and their fairly made
concessions. They spoke of windy conditions whereas every other witness
spoke of a slight wind blowing. Their lack of sea-going experience made their
evidence of deteriorating conditions worth little, even though I do not doubt
their honesty. Their evidence of the conditions was vague. They conceded,

fairly, that the crew would have had a better understanding of the conditions
than them. Interestingly, Ms Meyer first thought that she had noticed
conditions deteriorating when she was on the viewing deck where, because of
its height above the deck she had been on, the movement of the boat is likely
to have been exaggerated. Every other person aboard Shark Team did not
experience any marked deterioration, and testified about a long, lazy swell, no
breaking swells and no indications of peaking or feathering swells.

[143] This evidence is largely consistent with the weather forecast for the
area for 13 April 2008 and with the observations of Christina Rutzen and
Chivell from the shore. Every witness who went from Kleinbaai to the
Geldsteen that day spoke of it being a pleasant and easy trip. The evidence
accords too with the conditions that Michael Rutzen encountered shortly after
the capsize and that Dix spoke of at the precise spot of the capsize for about
half an hour after the event. Zietsman‟s research reveals that if there was any
deterioration in conditions it was marginal and would not have been
discernible to the skippers at the time. The photographs taken after the
capsize, particularly those depicting the rescue, show a calm sea.

[144] What precisely was the evidence of Smuts and Coetzee? Smuts was at
anchor for sufficient time to complete shark viewing. He was probably about
150 metres away from Shark Team. Swallow lay astern of and north-east of
Barracuda which lay in a spot which Tuckett had felt was too rough. Smuts
testified that the swell was bigger than he had anticipated but said that
conditions were „threatening‟ but not dangerous. The threat was the dropping
tide, which as I have discussed above was factually incorrect. He saw no
swells breaking, although he spoke of some swells peaking. It would appear
from his evidence that he believed there to have been a deterioration in the
conditions in the five to ten minutes before the capsize. The threatening
conditions could not have been a serious concern for him or else he would not
have anchored and allowed shark viewing for nearly an hour and a half.
Swallow was still at anchor when the capsize occurred.

[145] Coetzee‟s evidence of deteriorating conditions is similarly sparse.
Boiled down to its essentials, it is confined to four large swells that came past
White Shark shortly before the capsize and persuaded him and Lennox to
abort their trip. Before that the vessel lay at anchor for about half an hour and
was still at anchor when the wave struck Shark Team.

[146] It is not necessary, in my view, for the evidence of Smuts, Coetzee and
Lennox to be rejected in order to accept the evidence of Tuckett and the
witnesses who supported him. I say this because the evidence of Smuts,
Coetzee and Lennox concerned conditions where Swallow and White Shark
lay, some distance away from Shark Team and Shark Fever; and everyone
accepted that conditions in the two locations could be different. By the same
token, the evidence about the conditions they experienced cannot be taken to
be evidence of the conditions that Tuckett, Scholtz and their crew and
passengers experienced. In my view, Freund AJ erred when he held that
despite the evidence, the probabilities pointed to conditions being much the
same in the two different spots.

[147] The only evidence adduced by the plaintiff of conditions where Shark
Team and Shark Fever lay was that of Colyn who believed conditions to have
been safe, even though he estimated the swell to have been about four
metres in height. He never saw any breaking swells. He remained in the area
of the capsize for about half an hour. He intended to put his cage down and to
view sharks. The only reason why this did not happen, according to both
Colyn and Dix, was that no one felt like viewing shark after the tragedy that
befell Shark Team, not because it would have been dangerous to do so.

[148] In my view, for the reasons that I have set out, the evidence of Tuckett
and those who supported his version should not have been rejected by the
court below. The rejection of this body of evidence constituted a misdirection.
Once that evidence is accepted, as it should have been, it establishes that
there were no signs, in the position where Shark Team lay, that would have
alerted a reasonable skipper to the possibility of danger.

Swell size and foul ground
[149] In my view, Freund AJ‟s starting point was an incorrect formulation of
the test to be applied as to the foreseeability of harm when he stated that
„[t]he swell conditions were sufficiently large and threatening that Tuckett
should have foreseen that a wave breaking over Shark Team was a
reasonable possibility‟.46 Earlier in his judgment he had said that the question
was not „whether the defendants could reasonably have foreseen a wave as
large as the wave which actually capsized Shark Team‟ but whether „the
conditions were such that the skipper could reasonably have been expected
to foresee the risk of a wave breaking over Shark Team‟.47

[150] In the light of the facts of this case, and in line with the flexible
approach advocated by this court in Sea Harvest,48 a more precise
formulation of the harm that should have been foreseen by Tuckett is
required. He should, in order to be held culpable, have foreseen the possibility
of a wave breaking that was sufficiently large to capsize a boat of the size of
Shark Team. That, according to Zietsman, could not have been achieved by a
south-westerly swell on its own: in the prevailing conditions such a swell could
not achieve the required size.

[151] The incorrect formulation led Freund AJ to focus on the swell size as
the determinant of foreseeable harm. All of the evidence of those with sea-
going experience was that swell size on its own is not the problem: shark
boats could work in big swells as long as they were long swells, as was the
case on 13 April 2008. The danger lies in the swells breaking. The signs that
this may happen ─ and that the potential for danger is present ─ are either
swells starting to feather or to peak.

[152] The focus on swell size led Freund AJ to take a swell size of four
metres as some sort of safety cut-off. He then proceeded, on the basis of

46 Judgment of the court below, para 188.
47 Judgment of the court below, para 65.
48 Note 16, paras 22-24.

Zietsman‟s conclusions as to the significant wave height49 to find that the four
metre cut-off was exceeded, not on the basis of the significant wave height
(which he had calculated to be in the region of three metres) but the assumed
maximum wave height of twice the significant wave height. By doing this, he
reduced what is really a matter of judgment by experienced skippers with local
knowledge who take into account a range of factors, into a simplistic,
formulaic process ─ when the swell is four metres, it is time to leave. What is
worse, he calculated the cut-off according to the maximum wave height,
rather than the significant wave height. In other words, on this approach,
shark boats should return home if the significant wave height is two metres
because the maximum wave height will be about double that. This is entirely
unrealistic: if this were the standard that skippers had to adhere to, the shark
boats would never put to sea. It is also unconnected to the foreseeability of
any harm eventuating: some of the witnesses testified that one can have a
dangerous sea with a small swell and a perfectly safe sea with a much larger
swell. It will often depend on the period of the swell (and other factors like
wind).

[153] In fixing on the size of the swell as the determinant of imminent danger,
he appeared to ignore the obvious safety measure of skippers making sure
that their boats lie in sufficiently deep water. The rule of thumb of the shark
boat skippers was that anything deeper than nine metres was good enough
and considered safe. He also ignored the evidence that at the spot where the
capsize occurred, no swells had broken that day or looked like breaking, and
generally did not break, except in very big seas, when nobody would be at
sea anyway.
.
[154] He attributed a great deal of importance to the Barracuda video in
particular. It showed a limited number of big swells astern of Barracuda and a
bit of feathering on one of them. This video has limited value because
Barracuda was probably about 120 metres astern of Shark Team: the fact that

49 Significant wave height is a concept used to describe the sea state. It is the average of the
one-third highest swells over a period.

the vessels astern of her may have seen danger signs, does not mean that
Tuckett should and could have, being some distance ahead of Barracuda.

[155] On the other hand, Freund AJ made no mention of the fact that on both
the Barracuda and Shark Team videos one sees passengers and crew
moving around with ease and comfort, and a stable deck. Despite referring to
the affidavit of the videographer who made the Barracuda video stating that
the two big swells visible in the video appear more dramatic than they were,50
he simply discounted this evidence51 and relied on the video as a primary
piece of evidence of deteriorating conditions. My colleagues and I have also
viewed the video and do not share Freund AJ‟s observations.

[156] Freund AJ made much of the assertion that the Geldsteen is inherently
dangerous because it is foul ground. In this he read too much into the concept
of foul ground. As a number of witnesses testified, it signifies an uneven sea
floor that creates difficulties for anchoring but if a skipper places his or her
boat in a sufficient depth of water and is careful to anchor properly, it poses
no dangers. He also read too much into the evidence that breaking waves are
experienced all over the Geldsteen in bad conditions. In the type of
circumstances when the waves break all over the Geldsteen, no one puts to
sea.

Conclusion
[157] The evidence establishes that at the spot where the capsize occurred,
there were no danger signs that would have alerted a reasonable skipper to
the need to depart in order to avoid the harm of a sufficiently large wave
breaking, capsizing the boat and causing the death of a person. To this must
be added the evidence of Zietsman that the south-westerly swell on its own
could not have produced the type of wave that could have capsized Shark
Team. Negligence on the part of Tuckett has thus not been established in this
respect.

50 Judgment of the court below, para 144.
51 Judgment of the court below, para 159.

[158] Even if the evidence of Smuts and Coetzee as to warning signs of
danger is accepted, then another issue arises. According to both witnesses,
the deterioration occurred over a short period – what Chivell and Zietsman
would regard as impossibly short periods. Both Smuts and Lennox had
decided, in the light of the warning signs they had just seen, to leave. They
had not had time even to weigh anchor when the capsize occurred. If they are
taken as the epitome of the reasonable skipper, then the warning signs came
too late for Tuckett. Even if he had the same knowledge as them, the wave
would have struck Shark Team before he could have weighed anchor. He
could not have avoided the catastrophe. So, on these facts, which are
favourable to the plaintiff, causation would not have been established.

[159] The evidence establishes that no one knew of the pinnacles, that it
would have taken sheer chance for anyone to find them with a single-beam
fish finder, that all of the skippers believed from past experience that where
Shark Team lay was safe and that no signs of danger were seen there at the
time or before. On this basis, a reasonable skipper would have believed that
he or she was lying in a safe spot: the depth where Shark Team lay was 11
metres and there were no indications of shallower water, and nor would there
have been as a result of the depth, size and shape of the pinnacles. It would
have made no difference if Tuckett had motored into the swell – in a south-
westerly direction. The pinnacles lay to his west and as the swell was not
coming from that direction, no danger could reasonably have been foreseen
from that quarter.

[160] The evidence establishes, thus, that a reasonable skipper in Tuckett‟s
position would not have known of the pinnacles, would have had no way of
knowing about them and would have believed himself or herself to be safe in
the position where Shark Team lay. He or she would have done no more than
Tuckett had done in motoring around his or her chosen spot with the fish-
finder on, and would have had no reason to explore further to the west where
the pinnacles were. Consequently, negligence on the part of Tuckett has not
been established in this respect either.

[161] Furthermore, the evidence of Zietsman was that the wave that
capsized Shark Team was so big that it would have broken in the deeper
water whether the pinnacle was there or not. That establishes an absence of
causation, even if negligence had been established.

[162] The wave was extraordinarily large. Its origin, it would appear, was not
the south-westerly swell but the confluence of that swell, when it had attained
a critical height, and the south-easterly wind, when it had attained a critical
velocity, resulting in a wedging effect – a relatively rare occurrence and one
that was unknown to even the most experienced of the skippers who testified.
From the evidence of Zietsman, a civil and ocean engineer of immense
experience, who identified the phenomenon with some difficulty, it may be
concluded that a reasonable skipper in the position of Tuckett could not have
been expected to know of this phenomenon, would not have known when the
sea swell and wind had reached a critical height and velocity respectively, and
would not have been able to recognise the signs of the phenomenon, let
alone guard against the risk it posed. On that account, negligence on the part
of Tuckett has not been established in relation to this issue either.

[163] As a result of my conclusions on the negligence issue, it is not
necessary to deal with the second issue, whether or not White Shark Projects‟
liability was limited in terms of s 261(1)(a) of the Merchant Shipping Act.

[164] The appeal must, accordingly, succeed.

The order
[165] I make the following order:
1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the court below is set aside and replaced with the following
order:
„(a) The plaintiff‟s action is dismissed.
(b) The plaintiff shall pay the defendants‟ costs, including the costs of two
counsel and the qualifying expenses of:
(i) Dr John Zietsman;

(ii) Mr Michael Fiontann Hartnett;
(iii) Professor Michael Tipton;
(iv) Dr Cleeve Robinson;
(v) Mr Robert Fine;
(vi) Mr Wilfred Chivell; and
(vii) Dr Linda Liebenberg.‟

__________________
C M Plasket
Acting Judge of Appeal

APPEARANCES:
For Appellants:

M Wragge SC (with him D Cooke)
Instructed by:
Edward Nathan Sonnenbergs, Cape Town
Webbers, Bloemfontein

For Respondent:

D Melunsky
Instructed by:
Webber Wentzel, Cape Town
McIntyre & Van der Post, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

31 March 2016

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

MV ‘Shark Team’ v Tallman (190/2015) [2016] ZASCA 46 (31 March 2016)

MEDIA STATEMENT

Today the Supreme Court of Appeal (SCA) upheld the appeal by MV ‘Shark Team’, Mr Grant Tuckett
and White Shark Projects CC (the appellants) against a judgment of the Western Cape Division of the
High Court, Cape Town, and accordingly dismissed the claim of Ms Sarah Tallman (the respondent),
who had sought to hold them liable in delict for damages arising out of the death of her husband, Mr
Christopher Tallman, who had drowned at sea while on a shark cage diving expedition operated by
the appellants.

In April 2008, the MV ‘Shark Team’, a ski-boat carrying tourists on a shark cage diving trip, capsized
at sea after being hit by a large wave.  As a result, three passengers drowned, including Mr Tallman.
This is the first and only incident of its kind in the history of the industry in the area.  Ms Tallman
sought to hold the appellants liable for inter alia loss of support arising from the death of her husband,
on the basis that his death had been caused by the negligence of the skipper of Shark Team, Mr
Tuckett.

The issue before the SCA was whether the death of Mr Tallman was caused by the negligence of Mr
Tuckett, and whether the appellants should accordingly be held liable for the damages suffered by Ms
Tallman.

The factual points in dispute included the conditions at sea on the day in question, whether Mr
Tuckett had acted with sufficient care in going shark cage diving given those conditions, whether he
had taken adequate care to find a safe place to anchor while conducting the diving, whether the

conditions deteriorated during the course of the trip, and whether he accordingly should have halted
the trip earlier (ie before the capsize occurred).

The trial in the court a quo had lasted 52 days, and both appellants and respondents had called
numerous witnesses and led extensive expert evidence.

After a comprehensive review of this evidence, the SCA concluded that on the day in question, Mr
Tuckett had not acted negligently in choosing the anchoring spot he did, and there were no warning
signs which would have alerted a reasonable skipper in his position to leave in time to avoid the wave
in question.  The capsize was caused by a wave that was abnormally large for the area, far larger
than the average swell for the day, and which was the product of a rare cross-sea.  This phenomenon
occurred less than two per cent of the time, and was where a strong south-easterly wind produced
swells which combined at irregular intervals with the ordinary south-westerly sea swells, with the
result that certain waves were much larger than would otherwise be expected.  As there was only one
witness aware of this phenomenon, who was a highly qualified expert on oceanography, the SCA
held that Mr Tuckett could not have been expected to know of it and taken it into account.

On the facts then, the SCA held that the respondent had failed to prove that the death of Mr Tallman
was caused by the negligence of Mr Tuckett, and accordingly upheld the appeal.

--- ends ---