A concession on an issue of law is however different. It is not binding if it is not properly or correctly made.
The rationale for this position is obvious. A court cannot be bound by a concession on the law if such concession is not correct in terms of the law. This principle is based on public policy. Public policy demands that a court must be enabled to make a correct determination of the issues before it based on the correct law applicable and not on some incorrect concession made by one of the parties. It is for this reason that a question of law may be advanced, even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is raised. Where it is not clear that the point has been fully investigated, the court will not, as a general rule, allow a new point of law to be taken for the first time on appeal. The court will however allow such a point where the point is canvassed in the pleadings, there is no unfairness to the other party, the facts are common cause, and there is no basis for considering that other or further evidence would have been produced that could have had an effect on the point in question.
In De Beers Holding v Commissioner for Inland Revenue 1986 (1) SA 8.33 CORBETT JA considered the effect of a concession on a question of law not supported by the undisputed facts and which was wrongly made. The learned judge concluded…,:
“Mr. Welsh, although contending that the concession was rightly made, did not suggest that it stemmed from anything other than an erroneous appreciation of the legal position. He therefore could not suggest that this court was precluded from dealing with the matter on the basis of the undisputed facts. Accordingly, there is no reason why this court should not give what it considers to be the right decision on the facts….,.”
In B.S.N.L. and Others v M/S Subash Chandra Karchan and Another 2006 (8) SCC 279, a decision of the Supreme Court of India, dated 13 September 2006, the Court remarked:
“A concession made by such an advocate is binding on the party whom he represents. If it is binding on the parties, again, subject to just exceptions, they cannot at a later stage resile therefrom. The matter may, however, be different if a concession is made on a question of law. A wrong concession on legal question may not be binding upon his client.” (sic)
In (1) Minister of Local Government, Rural and Urban Development N.O. (2) Chairperson of the Disciplinary Committee, City of Harare, Munamato Mutevedzi N.O. v Silas Machetu (2) Maxwell Katsande (3) Paul Gorekore (4) Johnson Zaranyika SC34-12, this Court made much the same remark. It stated…,.:
“…,. The court erred in interpreting the evidence before the second appellant…,. It also erred in relying on a concession which was improperly made by counsel for the appellants…,.”
The position must therefore be accepted as settled in this jurisdiction that a wrong concession on a point of law is neither binding on the party that made it nor on the court hearing the matter.
