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[2010] ZAGPJHC 41
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Giesecke and Devrient Sourth Africa (Pty) Limited v Tsogo Sun Holdings (Pty) Limited and Another (05/27893) [2010] ZAGPJHC 41 (25 May 2010)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO:
05/27893
In the matter between:
G
IESECKE
AND DEVRIENT SOUTH AFRICA
(PTY)
LIMITED
Plaintiff
and
TSOG
O
SUN HOLDINGS (PTY) LIMITED
First Defendant
THE
MINISTER OF SAFETY AND SECURITY
Second Defendant
J U D G M E N T
MBHA, J
:
INTRODUCTION AND BACKGROUND
[1] The
plaintiff sued the defendants for damages suffered as a result of a
loss of a substantial amount of money which was stolen
during a
robbery at the first defendant’s premises (“
Montecasino
”)
on 5 September 2004 at 15h30.
[2] The
plaintiff’s claim was initially based on the following grounds:
An
enrichment claim against the first defendant on the basis that the
robbery was perpetrated with the active assistance or
involvement
of an employee or employees of the first defendant, specifically
Solomon Dube (“
Dube
”)
who acted within the course and scope of his/their employment with
the first defendant, and that the plaintiff, under
the mistaken
belief that it was obliged to do so, subsequently made good the
loss occasioned by the robbery by making payment
of a monetary
equivalent of the loss, for the benefit of the first defendant.
Alternatively,
a delictual claim against the first defendant on the basis that the
robbery was perpetrated with the active assistance
or involvement
of Dube an employee of the first defendant, alternatively Dube and
other employees of the first defendant unknown
to the plaintiff,
who acted within the course and scope of his, alternatively, their
employment with the first defendant.
Alternatively,
a delictual claim against the
second
defendant on the basis that the robbery was perpetrated with the
active assistance or involvement of William Kgathi (“
Kgathi
”),
an inspector of the Johannesburg Serious and Violent Crimes Unit of
the South African Police Service, who was acting
within the course
and scope of his employment with the second defendant and who had
owed a statutory and constitutional duty
to prevent crime and to
protect the plaintiff.
Further
alternatively, a delictual claim against the second defendant for
theft of recovered amounts, in that Kgathi, Naidoo
and Govender,
and other employees of the first defendant whose identities are not
known to the plaintiff stole or procured
the theft of R3 million
and R1,2 million respectively, being part of the money lost during
the robbery and which at the time
of such theft had been in the
possession of Dube and other people suspected to have been either
perpetrators or involved in
the robbery.
[3] At the
commencement of the trial, the court was advised that the plaintiff
had since withdrawn its claims against the first
defendant. The
case, accordingly, only proceeded in respect of the second defendant.
[4] There was
an
agreement between the plaintiff, the first defendant and Firstrand
Bank (“
FRB
”)
in terms of which the plaintiff undertook, for reward, to:
4.1 Provide
cash processing and security services in order to process the gross
daily value of the revenue generated
by
the first defendant’s Montecasino.
Deposit the
cash collected and processed with FRB.
[5] During
the robbery on 5 September 2004, a sum of R23 914 610,00 was stolen.
[6]
Subsequent to the robbery and during police investigations that
ensued, R431 000,00 was recovered from Dube; R85 000,00 was
recovered
from Rachel Lifuwa (‘’Lifuwa’’) and R607
000,00 was recovered from Richard Gumede (“
Gumede
”).
Certain assets belonging to the suspects were procured and sold
under the auspices of the
Prevention of Organised Crime Act 121 of
1998
. The nett amount claimed against the second defendant is R22
453 642,17.
[7] The following witnesses testified on behalf of the plaintiff:
Mr J J
Viljoen – managing director of the plaintiff.
Mr J S
Pearson – loss a
djuster.
Ms A Turk –
slot machine manager at Montec
asino.
Prof L P Fatti – Professor of Statistics at the University of
Witwatersrand.
Mr J J
Kritzinger – Surveillance Investigator
at Montecasino.
Mr A Few –
Senior Manager
at
KPMG.
Senior Superintendent M Botha – SAPS.
[8] The
plaintiff would also seek to rely on affidavits or statements made by
either the perpetrators or people suspected to be
involved in the
robbery and by police investigators of the crime. As these are
essentially hearsay, reliance would be placed, for
their admission as
evidence, on section 34 of the Civil Proceedings Evidence Act No. 25
of 1965,
section 3
of the
Law of Evidence Amendment Act, 45 of 1988
,
and to a lesser extent on Rule 38(2) of the Uniform Rules of Court
and on the basis that these were informal admissions or statements
against interest.
ISSUES FOR DETERMINATION
[9] The issues that have to be determined can be summarised as
follows:
Whether the
robbery which occurred at the plaintiff’s cash processing
centre at Montecasino on 5 September 2004, was perpetrated
with the
active assistance or involvement of an employee or employees of the
second defendant, acting in the course and scope
of his/their
employment with the second defendant.
Whether an
employee or employees of the second defendant, with knowledge of
the contemplated robbery, failed in his or their
duty to prevent
the robbery.
Whether
employees of the second defendant, acting in the course and scope
of their employment with the second defendant, stole
money which
had been part of the proceeds of the robbery that had been
recovered from suspects in the robbery and others.
THE EVIDENCE
[10] Mr J J
Viljoen (“
Viljoen
”)
testified
that on 5 September 2004 he was phoned and informed of the armed
robbery that had taken place at Montecasino where a large
amount of
cash was taken. The robbery had occurred at the area known as the
cash processing centre which is situated below the
VIP parking. He
said he arrived there at approximately 15h30 and by then a large
contingent of policemen, numbering approximately
25, were already at
the scene. These included members of the Serious and Violent Crimes
Unit (“
SVU
unit
”).
Kgathi, a member of the SVU unit, arrived and after he had inspected
the scene, he went to sit at a desk which is used
for administrative
work at the cash processing centre. He said he noted that Kgathi
never interviewed anyone and neither did he
take any notes whilst he
was sitting there. Viljoen said an employee of Montecasino, Solomon
Dube, was later discovered to have
been a co-perpetrator and/or
planner of the robbery.
[11] Mr
Johnston Pearson
(“
Pearson
”)
is a loss adjuster and was employed by Lloyds Underwriters to
investigate the circumstances surrounding the loss ensuing
from the
robbery. He said he got involved with the investigation and in the
course of his liaison with the police investigators,
the following
information came to light:
Dube and one
Gumede had been arrested on suspicions of being perpetrators of the
robbery.
R1 123
000,00 had been recovered from the suspects and repaid to the
insured.
That not all
the money recovered from the robbers and/or suspects had been
officially handed in to the police authorities in
terms of the
official procedures.
That Kgathi
and other members of the SVU unit, specifically Govender and
Naidoo, were suspected of misconduct involving theft
or
embezzlement of part of the money recovered from the suspects.
As a result
of such suspicions the SVU unit was taken off the investigation.
Another
police unit called Fedisa, headed by Snr Supt Botha was assigned to
take over the investigation and was tasked to:
11.6.1
investigate
allegations of misconduct by the SVU unit specifically Kgathi,
Naidooi and Govender; and
11.6.2
investigate
circumstances surrounding the robbery.
[12] Pearson
confirmed in no uncertain terms that all he testified about was based
on what had been told to him by other people
involved in the
investigations, specifically Snr Supt Botha. He also said that on
one of his visits to the offices of Snr Supt
Botha he saw a chart
reflecting various calls made by and between Kgathi and some of the
suspects. He was of the opinion that there
were various leads which
should have been followed by the investigative team but that these
were deliberately overlooked.
[13] Ms A
Turk (“
Turk
”),
the slot machine manager at Montecasino, referred the court to
official documentation from this casino which showed that:
Kgathi was a
regula
r
visitor and gambler at Montecasino and held a Platinum card issued
by the casino which entitled him certain benefits, for
instance
regular VIP parking, earning redeemable points which could be
exchanged for accommodation, meals, movies and so forth;
and
13.2 That
between 23 July 2001 to 13 September 2004 he had incurred a nett loss
of approximately R970 322,00 through regular gambling
at the casino.
[14]
Prof
Libro Paul Fatti (“
Fatti
”)
gave evidence as an expert. He testified that he had looked at all
the documentary information procured from Montecasino
pertaining to
the arrivals and departure pattern of Kgathi at the casino. This
covered the period 23 July 2001 until 7 November
2004.
The purpose
of his testimony was to assist the court in deciding whether
Kgathi’s arrival and departure at the casino on 5 September
2004, at around 15h30 was merely a coincidence or chance event or
whether or not it was more likely to have been deliberate
and that
he therefore could have been aware of the robbers’ plans.
He
concluded
that the probability of Kgathi arriving at Montecasino on that
Sunday afternoon at between 14h00 and 15h00, and leaving
between 3
hours and 34 minutes later meant that Kgathi’s conduct was
pre-planned, that he knew about the planned robbery
and that his
presence at the casino prior and after the robbery had not been a
mere coincidence.
[15]
15.1
Mr
Jacob Johannes Kritzinger (“Kritzinge
r
”)
is employed at Montecasino as an investigator in the surveillance
department. He testified that after the robbery, he
reviewed all
video tapes of the camera viewings situated inside the casino. After
reviewing all the video tapes he compiled an
edit tape containing
extracts from the original tapes. He highlighted the fact that he
could not get hold of the tapes of the video
cameras situated inside
the plaintiff’s cash processing centre, where the robbery had
taken place, as these were apparently
taken by the robbers during the
robbery. All the video footage was then compiled into a single DVD
which was played to the court.
15.2
The
DVD shows a silver-coloured BMW which was apparently used by the
robbers entering the casino through the VIP entrance. Shortly
thereafter Kgathi’s vehicle is also seen arriving at the
casino. The alleged driver of the BMW is seen entering the casino
and moving around the area. He is also seen making calls on a
cellphone. Kgathi is also seen entering the casino area. Dube also
appears on the video and is seen entering the cash processing centre.
Some moments later the BMW is seen leaving the casino area.
Kgathi’s
vehicle is also seen shortly thereafter leaving the casino area.
15.3
Kritzinger
testified that he was informed by Dube that the man appearing in the
video was a robber and that this person had pointed
a firearm at him
(Dube).
15.4
Kritzinger
stated that personally he was unable to say whether or not this
person was in fact one of the robbers.
[16]
16.1 Mr Allan
Few (“
Few
”)
a senior manager at KPMG testified that on 10 November 2004 a
restraint order under Case No. 2004/27996 was granted by
this Court
compelling surrender of property in terms of section 26 of the
Prevention of Organised Crime Act, No. 121 of 1998.
The order was
against Kgathi, Naidoo and Govender.
16.2 Few
stated
that consequent to the grant of the order, he started investigating
the financial affairs of Kgathi and discovered that he and
his wife’s
monthly joint earnings came to approximately R10 000,00. He said that
he found that Kgathi was living beyond his
means, that he was in
arrears with the levies of his residence amounting to R9 000,00 and
that he could not even pay for his children’s
school fees. He
also discovered that Kgathi was a regular gambler and that his salary
could not maintain his gambling habits.
He also confirmed that over
a certain specific period, Kgathi had lost in the order of R907
000,00 through gambling at Montecasino.
[17]
17.1 Snr Supt
Marthinus Botha (“
Botha
”)
is the commanding officer of Fedisa, a unit within the SAPS that
specialises in robbery investigations. Sometime after
the robbery on
5 September 2005, the Provincial Commissioner of Police for Gauteng
called him in and instructed him to take over
the investigation
pertaining to the robbery. At the time there were allegations that
the SVU unit initially assigned to investigate
the robbery had been
involved in certain acts of misconduct. These related to recoveries
which had been made following the robbery
and that members of this
unit had misappropriated the said recoveries.
17.2 Botha
said that Fedisa’s brief entailed:
17.2.1
investigating
the circumstances of the robbery at Montecasino; and
17.2.2
investigating
acts of alleged misconduct by certain members of the SVU unit to whom
the investigation was initially assigned, specifically
Kgathi, Naidoo
and Govender.
17.3 Botha
said that soon after Fedisa had taken over the investigations, it was
discovered that an employee of Montecasino, Solomon Dube,
had since
been arrested. Members of Fedisa then went to the Johannesburg
Prison where Dube was detained to interview him.
17.4
Upon
interviewing Dube on 18 September 2004, it was discovered that he had
since given a statement to the SVU unit, specifically
to Insp Hall of
the said unit. Detective Inspector Andrews (“
Andrews
”)
of Fedisa then took another statement from Dube. Dube was assured at
the time by members of Fedisa that his statement
would not be used
against him in a subsequent trial pertaining to the robbery. Botha
said that the purpose of procuring the statement
from Dube, was to
ascertain if any members of the SVU unit were implicated in the
robbery or whether any of the members had misappropriated
any of the
money which had been recovered.
After Dube
was informed that approximately R430 000,00 had been recorded as
being recovered by the SVU unit from him, Dube then
informed Botha
that at some point members of the SVU unit, including Kgathi,
Naidoo and Govender took him to a house in Tembisa
where there was
a bag of money which contained a large amount of cash. Dube said he
had counted R3 million of the cash and
that there was approximately
R500 000,00 which was not counted. However, since it was part of
his duties at Montecasino to
count money, he was certain that the
money not yet counted amounted to R500 000,00.
In the
course of the interview Dube told Botha and other members of the
Fedisa Unit that after the money had been recovered
by members of
the SVU unit, they all proceeded to a McDonalds outlet in Fourways
where calls were made by the police officers
whereafter they all
proceeded to Alexandra Township. They later all drove to the
offices of the SVU unit in Alexandra Township.
Botha said
that
Dube was adamant that the money he had already counted was R3
million and that over and above this, there was a further
amount
of approximately R500 000,00 which had not been counted. Dube
could thus not accept that only R430 000,00 had been
recovered by
Kgathi and the other members of the SVU unit.
17.8 Botha
testified that he obtained subpoenas in terms of section 205 of the
Criminal Procedure Act No. 51 of 1977 (CPA) and
procured the
telephone records of the members of the SVU unit who were implicated
by Dube. He said the information obtained confirmed
what Dube had
told him as it showed that the said members had made various calls on
the day and time mentioned by Dube. He said
Dube had particularly
mentioned the presence of one Inspector Ackerman. The telephone
records for the day and time mentioned by
Dube confirmed the presence
of this police officer when the money was recovered from Dube.
17.9
Botha
testified that after Fedisa had interviewed Dube, members of the SVU
unit proceeded to procure a further statement from Dube.
Botha also
said he was aware that at some point Dube went to make out a pointing
out concerning the recoveries of money allegedly
misappropriated by
members of the SVU unit. Botha said that statements were also
procured from Gumede and Lifuwa about their involvement
in the crime.
However, Botha said he was not present when these statements were
taken.
17.10 Botha
testified that in his initial statement to the SVU unit Dube denied
any involvement altogether in the crime. However,
on 7 September
2004 he made a second statement to the same unit in which he
confessed that he was involved. Botha said that nowhere
in the
confession did Dube implicate Kgathi or any other members of the unit
in any wrongdoing or involvement in the crime. Botha
said he likewise
studied statements made by other people implicated in the robbery and
which were also given to members of the
SVU unit. He confirmed that
no member of the SVU unit was implicated in those statements.
17.11
Botha
said he subsequently recorded all his findings in an affidavit. He
confirmed however that all that was contained therein
was based on
what had been told to him by Dube and others. Botha was adamant that
based on his investigations, Kgathi and other
members of the SVU unit
had not been involved in the planning or execution of the robbery. In
his view had Kgathi known about the
robbery, he would have known
where the money was hidden.
He concluded
that Kgathi was not in any way linked to the robbery. He said Dube
had given other statements to Fedisa members,
specifically to Insp
Lemmer, wherein he expressly stated that neither Kgathi nor any
other member of the SVU unit had been
involved in any misconduct.
17.
13
Botha was specifically referred to a part of Dube’s statement
procured from him on 18 September 2005, wherein Dube is
recorded to
have stated that it was Botha who actually approached him and told
him that he had information that R3,4 million was
recovered from him
but that money that was declared to the State was only R436 000,00.
Botha was adamant that this was not correct
and denied vehemently
that he made any such suggestion to Dube. Botha also confirmed that
Gumede similarly made a statement to
him in which he alleged that
members of the SVU unit had recovered part of the stolen money but
had omitted to hand all of it into
the SAP13 as was required in terms
of the rules.
[18]
Mr
Tyson Moyo (“
Moyo
”)
is currently employed as the complex duty manager at Montecasino. He
testified that on the day of the robbery he was not
on duty. He said
that on Tuesday 7 September 2005 at approximately 05h00 Kgathi and
other members of the police came to his house
where they conducted a
search looking for the money. They also asked about the whereabouts
of his half-brother Howard Hlabangani.
Neither the money nor Howard
could be found and the police took him to a house where his sister
Nomsa Khumalo stayed together
with his other half-brother, Zulu who
is also known as Heavens Magalela. When they got there they found
one of his younger brothers
Fana. He said the police took him and
Fana to Montecasino where Howard was arrested. All three were taken
to the Alexandra Police
Station where they found Solomon Dube in the
company of Insp Hall and other police officers. Fana and Howard were
taken to one
room whilst he and Dube were taken to a separate room.
Whilst they were there, Kgathi arrived and told Dube that Nomsa
Khumalo
had phoned and told him that they had given him (Dube) his
share of the robbed money. Kgathi then demanded to know where he
(Dube)
had hidden the money. Dube replied that the money was hidden
in Temibsa. Thereafter Kgathi and other members of the police took
Dube in a white Toyota Corolla to go and fetch the money from the
hiding place. On their return Dube came to where Moyo and Howard
were and at that point Insp Hall confronted Dube telling him he could
not believe that he was put through the whole ordeal of the
robbery
for a mere R400 000,00. Moyo said that at that point Dube insisted
that he was certain that he gave Kgathi between R3
million and R4
million.
[19] Adv
Cook, appearing for the plaintiff, informed the court that the
plaintiff wished to rely on a number of documents, which
contain
hearsay evidence, as part of its case. This included:
19.1
Affidavits
deposed to by Senior Superintendent Botha;
19.2
Affidavits
deposed to by Dube;
19.3
Affidavits
deposed to by Richard Gumede; and
19.4
Affidavits
deposed by Rachel Lifuwa.
Thereafter the plaintiff closed its case.
[
20]
I was called upon by counsel for the second defendant, to rule on
the admissibility of the documentary evidence referred to
above,
being statements by Dube, Gumede, Lifuwa and Botha. Adv Cook
submitted that the statements ought to be admitted into evidence
and
their probative value to be assessed at the conclusion of the trial
together with the rest of all the evidence.
[21
]
I was unable to agree with Adv Cook in this respect. In my view the
question of the admissibility of the statements had to be
dealt with
at this point. The plaintiff having closed its case, the defendant is
entitled to know what case it has to meet.
[22] This
position was adequately addressed by Cameron JA in the case of
S
v Ndhlovu and Others
2002 (2) SACR 325
(SCA) at 338B-C where, in dealing with
section 3
of
the
Law of Evidence Amendment Act 45 of 1988
, he said the following:
“
Third,
an accused cannot be ambushed by the late or unheralded admission of
hearsay evidence. The trial court must be asked clearly
and timeously
to consider and rule on its admissibility. This cannot be done for
the first time at the end of the trial, nor in
argument, still less
in the court's judgment, nor on appeal. The prosecution, before
closing its case, must clearly signal its
intention to invoke the
provisions of the Act, and, before the State closes its case, the
trial Judge must rule on admissibility,
so that the accused can
appreciate the full evidentiary ambit he or she faces.
”
Cameron JA
referred, with approval, to the case of
S
v Ramavhale
1996 (1) SACR 639
(A) and said (at page 338g-i):
“
Ramavhale
makes clear that unless the State obtains a ruling on the
admissibility of the hearsay evidence before closing its case,
so
that the accused knows what the State case is, he or she cannot
thereafter be criticised on the basis of the hearsay averments
for
failing to testify. It also suggests, rightly, that unless the court
rules the hearsay admissible before the State closes
its case,
fairness to the accused may dictate that the evidence not be received
at all. (This does not preclude the State in an
appropriate case
from applying to re-open its case.)
”
In
S
v Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
(CC), at 86D-E, Nkabinde J confirmed the correctness
of the approach of
S
v Ndhlovu
that:
22.
1
The reception of the hearsay evidence must not surprise the accused.
22.2 The
reception should not come at the end of the trial when the accused is
unable to deal with it.
22
.3
The accused must understand the full evidentiary ambit of the case
against him or her.
It follows
that unless the accused – the second defendant in this case –
knows what
case he has to meet, he is left to “
range
around vaguely
”
on the question of the ambit of the admitted evidence.
[23] During
argument Adv Cook submitted that the cases just referred to concerned
the aspect of the fairness of a criminal trial
to the accused. I am
unable to agree with this submission.
[24
]
Section 3(1)
of the
Law of Evidence Amendment Act, 45 of 1988
expressly provides that the rules governing the admission of hearsay
evidence apply equally to criminal and civil proceedings.
What has
been said above, albeit in criminal cases, applies equally to civil
proceedings. The second defendant likewise is entitled
to know what
case he has to meet at the time the plaintiff has closed its case.
It is at this point that the plaintiff must clearly
signal its
intention to invoke the provisions of
section 3
of the
Law of
Evidence Amendment Act 45 of 1988
when it seeks to have hearsay
evidence admitted. If this were not to happen, the second defendant
would be left to “
range
around vaguely
”
and would clearly be prejudiced in the conduct of its defence. This
position has been affirmed in the case of
Mdani
v Allianz Insurance Ltd
[1990] ZASCA 119
;
1991 (1) SA 184
(A) at 190 where the Appellate Division remitted a
matter to the trial court so that it could exercise its discretion
whether or
not to admit the hearsay evidence in terms of
section
3(1)(c)
of the
Law of Evidence Amendment Act, 45 of 1988
and if it
was admitted, for the respondent to consider re-opening its case.
[25] After
having heard argument by both counsel, I ruled as follows:
2
5.1
The statements of Solomon Dube, Richard Gumede and Rachel Lifuwa and
the annexures thereto are inadmissible evidence.
2
5.2
The evidence and statements of Senior Superintendent Botha, based on
the aforesaid statements of Solomon Dube, Richard Gumede
and Rachel
Lifuwa and the conclusions derived therefrom, are inadmissible
evidence.
I
indicated
that my reasons would follow later. These are my reasons.
[26] After my
aforesaid ruling, the second defendant elected to close its case
without leading any further evidence.
[27] The
documents which the plaintiff wished to rely on as part of his case
include:
27
.1
Statements of witnesses and suspects in relation to the
investigation of the case as attached to the affidavit of Senior
Superintendent
Botha given on 9 November 2004.
27
.2
Six statements made by Solomon Dube which can be found in Volume 2
of the bundle at:
page 447 – dated 5 September 2004;
page 471 – dated 7 September 2004;
page 553 – dated 18 September 2004;
page 581
– dated 21 September 2004;
27.2.5
page
616 – dated 14 October 2004;
27.2.6
page
603 – dated 23 September 2004.
27
.3
Five statements made by Richard Gumede which are also found in
Volume 2 of the bundle on page 495 dated 15 September 2004.
27
.4
Statements made by Rachel Lifuwa in Volume 2 at pages 523, 528 and
640 and in Volume 5 of the bundle at pages 1778 and 1783.
[
28]
The plaintiff sought to persuade the court to admit the documentary
evidence in order to establish, essentially, the following:
28.1
That
the investigation by the Serious and Violent Crime Unit (“
the
SVU unit
”)
into the Montecasino robbery was irregular and improper.
28.2
That
Kgathi, Naidoo and Govender, and other members of the SVU unit, used
a scheme or
modus
operandi
to steal cash or items of substantial value from persons involved in
or connected to criminal activity.
28.3
That
part of the
modus
operandi
employed by Kgathi and others was to recover goods during a police
investigation, and to retain the goods or a portion thereof
for
themselves.
28
.4
That Dube handed to Kgathi and other members of the SVU unit a bag
containing an amount of approximately R3,5 million, of which
only an
amount of R431 000,00 was accounted for and returned to the
plaintiff.
28
.5
That Gumede handed to Kgathi and other members of the SVU unit an
amount of approximately R1,2 million of which only a sum of
R607
000,00 was accounted for and returned to the plaintiff.
28
.6
That Lifuwa handed to Kgathi and other members of the SVU unit an
amount of R550 000,00 of which only an amount of R85 000,00
was
accounted for and returned to the plaintiff.
28
.7
That the booking of money recovered during the course of the
investigation into the Montecasino robbery, was irregular and that
an
incorrect procedure was followed.
[29
]
The plaintiff also sought to have admitted the
viva
voce
evidence of Moyo while conceding that it was essentially hearsay in
nature. In this regard it was submitted that Moyo corroborated
the
assertions made by Dube in his statements to the effect that a sum of
approximately R3,5 million was contained in the bag handed
to Kgathi
and his colleagues. Furthermore, it was submitted that Moyo’s
evidence showed that Dube had spontaneously reacted
to Hall’s
assertion that Dube’s friends had put him in his predicament
for a mere R400 000,00, to which Dube had spontaneously
responded
that the amount he had handed to police was not R400 000,00, but was
between R3 million to R4 million.
[30] In
addition, the plaintiff wished to rely on the interpretation placed
by Botha in an affidavit on the different affidavits
deposed to by
Dube, Gumede and Lifuwa.
[31
]
It is common cause that the documents which the plaintiff wishes to
have admitted were made by persons who were all suspects
in the
robbery at Montecasino. Both Pearson and Botha told the court that
Dube and Gumede had absconded. Furthermore, it is trite
that during
the criminal trial of Kgathi, Govender and Naidoo which served before
Snyders J, in which judgment was handed down
on 4 April 2006, Gumede
was, on request of the State, duly warned in terms of
section 204
of
the
Criminal Procedure Act 51 of 1977
. By his own admission, Gumede
was involved in the robbery at the Montecasino on 5 September 2004.
[32] In her
judgment, Snyders J stated that Gumede had started giving evidence on
Wednesday 8 March 2006, that his evidence-in-chief
was completed just
before the lunch adjournment, but that he never returned to court for
the continuation of his cross-examination.
[33] There is
no doubt about the hearsay nature of the documentary evidence of
Botha, Dube, Gumede and Lifuwa and to a large extent
that of Moyo.
[34] During
argument the plaintiff relied, for the admission of that hearsay
evidence, on:
3
4.1
Section 34 of the Civil Proceedings Evidence Act, 25 of 1965
(“
Evidence
Act
”);
34.2 Section
3(1) of the Law of Evidence Amendment Act, 45 of 1988 (“
Evidence
Amendment Act
”);
and
34
.3
To a lesser degree on the principle governing the informal
admissions and statements against interest of a party.
Although it
was indicated during the plaintiff’s opening address, that
reliance would also be placed on Rule 38(2) of the
Uniform Rules of
Court, this route was abandoned during argument.
[35] Before I
proceed to examine the basis upon which plaintiff relied to have the
hearsay evidence admitted, I deem it appropriate
to state the
well-known fundamental rules governing hearsay evidence and the
exceptions to the general rule.
[36] The
general rule is that evidence presented in the course of proceedings
must be the best available evidence. In trial proceedings,
this rule
generally entails that the person upon whose credibility the
probative value of the evidence depends, not only gives
the evidence
but is also available for cross-examination.
[37] There
are however exceptions to this general rule. The principles
underlying these exceptions are usually twofold:
37
.1
That there must be a good reason why the witness cannot give
evidence in person, such as death, impracticality or that the witness
is untraceable.
37
.2
The evidence is nonetheless reliable (that is the fact that the
evidence cannot be tested by cross-examination does not substantially
undermine its probative value).
[38] It is
trite that the rule concerning the inadmissibility of non-testimonial
evidence is more relaxed in civil proceedings
than in criminal
proceedings. In
S
v Ndhlovu (supra)
at p 337A-B Cameron JA highlighted the fact that the Evidence
Amendment Act (section 3(1)(c)(i)) requires that specific account
be
taken of the “
nature
of the proceedings
”.
The learned judge noted that this specific part of the Act alludes
“
…to
the distinction not only between application and trial proceedings,
but more pertinently to that between civil and criminal
proceedings
”.
He noted further that the overriding feature of criminal proceedings
was that the State bears the
onus
of
establishing the guilt of the accused beyond reasonable doubt and
that this would always weigh heavily not only in the admission
of
hearsay evidence, but also on the weight the court accorded it.
THE EVIDENCE ACT
[39] Section
34 of the Evidence Act provides as follows:
“
34.
Admissibility
of documentary evidence as to facts in issue.-
(1) In any
civil proceedings where d
irect
oral evidence of a fact would be admissible, any statement made by a
person in a document and intending to establish that
fact, shall on
production of the original document be admissible as evidence of that
fact, provided -
the person who made the statement either:
had
personal knowledge of the matters dealt with in the statement; or
where the
document in question is or forms part of a record purporting to be
a continuous record,
made the
statement (insofar as the matters dealt with therein are not within
his personal knowledge) in th
e
performance of a duty to record information supplied to him by a
person who had or might reasonably have been supposed to have
personal knowledge of those matters; and
(b) the
person who made the statement is called as a witness in the
proceedings unless he is dead or unfit by reason of his bodily
or
mental condition to attend as a witness or is outside the Republic,
and it is not reasonably practicable to secure his attendance
or all
reasonable efforts to find him have been made without success.
(2) The
person presiding at the proceedings may, if having regard to all the
circumstances of the case he is satisfied that undue
delay or expense
would otherwise be caused, admit such a statement as is referred to
in subsection (1) as evidence in those proceedings
-
notwithstanding that the person who made the statement is
available but is not called as a witness;
notwithstanding
that the original document is not produced, if in lieu thereof there
is produced a copy of the original document
or of the material part
thereof proved to be a true copy.
(3)
Nothing in the section
shall
render admissible as evidence any statement made by a person
interested at the time when proceedings were pending or anticipated
involving a dispute as to any fact which the statement might tend to
establish.
(4) A
statement in a document shall not for the purposes of this section be
deemed to have been made by a person unless the document
or the
material part thereof was written, made or produced by him with his
own hand, or was signed or initialled by him or otherwise
recognised
by him in writing as one for the accuracy of which he is responsible.
(5) For
the purpose of deciding whether or not a statement is admissible as
evidence by virtue of the provisions of the section,
any reasonable
inference may be drawn from the form or contents of the document in
which the statement is contained or from any
other circumstances, and
a certificate of a registered medical practitioner may be acted upon
in deciding whether or not a person
is fit to attend as a witness.
”
SECTION 34(1
)
[40] In my
view, Botha’s affidavit in particular, falls foul of this
provision, specifically section 34(1)(a)(i), which requires
personal
knowledge of the matters dealt with in the statement. Botha’s
affidavit contains his interpretation of the contents
of statements
by the suspects in the robbery namely Dube, Gumede and Lifuwa. Apart
from the fact that this in a way amounts to
the usurping of the
function of the court, Botha himself conceded under cross-examination
that his knowledge about the facts relating
to this case, as
contained in his affidavit, was wholly based on what he had learnt
from others. Clearly he has no personal knowledge
of the matters
dealt with in his affidavit.
[4
1]
Regarding the other affidavits of Dube, Gumede and Lifuwa, these, in
my view, fall foul of the provisions of section 34(1)(b)
which
requires that the author of the statement be called as a witness in
the proceedings, alternatively, it be shown to the satisfaction
of
the court that it was not reasonably practical to secure his or her
attendance or that all reasonable efforts to find him or
her have
been made.
[42] No
satisfactory evidence was led regarding the present whereabouts of
the makers of these statements. As far as Dube and
Gumede are
concerned, the court was merely advised that they had absconded. As
I mentioned earlier, Gumede disappeared during
the trial before
Snyders J in 2006. No information was placed before the court in
relation to specific steps that were taken to
try and locate either
Dube and Gumede.
[43] As far
as Lifuwa is concerned, no iota of evidence was led about what steps,
if any, were taken to try and locate her. It
will be noted that in
all her affidavits she gave a specified residential and work address
as well as her personal identification
number. For all intents and
purposes she might still be residing at the given address within the
Johannesburg area.
[44] As I am
not persuaded that any diligent steps were taken to trace any of the
suspects, I find that the request to admit these
documents should
fail purely on the basis of non-compliance with the provisions of the
section under review.
[45] With
regard to the provisions of section 34(1)(a)(ii), the documents that
are sought are not “
a
continuous record … in the performance of a duty to record
information
”
such as bank statements and like documents.
The documents
concerned are merely affidavits by the suspects and do not fall into
the category of being a continuous record. Even
if I am wrong in
this respect, it would be necessary for their admissibility that the
persons who took down the statements are
called as witnesses in the
proceedings. Botha testified that some of Dube’s statements
were taken down by Insp Andrews.
The court specifically asked why
was the said Andrews not called as a witness but no reasonable
explanation was furnished. The
other affidavits of the other suspects
were also taken down by other police officers and, similarly, these
officers were never
called.
[46] The
remarks of Erasmus J in
Schimper
and Another v Monastery Corp and Another
1982 (1) SA 612
(O) at 614H are particularly appropriate. He said the
following:
“
Even
if the affidavit falls within the scope of ss (1)
(a
)(ii),
it is also necessary for its admissibility that the person who made
the statement is called as a witness in the proceedings.
Pruis is not
a witness in these proceedings and the discretion the Court has in
terms of s 34(2)
(a
)
can neither to my mind be exercised in respect of the affidavit in
terms of s 34(3) …
”
As
will
be shown later, section 34(2)(a) gives the court a discretion to
admit a document if, having regard to all the circumstances
of the
case, the court is satisfied that undue delay or expense would
otherwise be caused notwithstanding that the person who made
the
statement is available but is not called as a witness.
[47] As I
have already indicated, no reasonable or plausible explanation was
advanced about the whereabouts of the suspects nor
was any attempt
made to persuade the court that undue delay or expense would be
caused by calling any of the relevant witnesses.
[
48]
Having regard to section 34(1)(b), the court was called upon to find
that the statements may be admitted if the witness “
is
dead or unfit by reason of his bodily or mental condition to attend
as a witness or is outside the Republic, and it is not reasonably
practicable to secure his attendance or all reasonable efforts to
find him had been made without success
”.
[49] Where no
evidence is tendered to show that it was not reasonably practicable
to secure the witnesses’ attendance at
court and that all
reasonable efforts had been made without success, this, in my view
amounts, to fatal non-compliance with the
provisions of the section
and as such the statements concerned cannot be admissible. Southwood
J aptly captured the position when
he remarked as follows in the case
of
Skilya
Property Investments (Pty) Ltd v Lloyds of London
2002
(3) SA 765
(T) at 800B-D:
“
In
the present case some of the witnesses are in Mozambique and some of
the witnesses are in South Africa, but there is no evidence
that it
is not reasonably practicable to secure their attendance at Court or
that all reasonable efforts have been made to find
them without
success. In these circumstances it cannot be found that the
requirements of s 34(1) have been satisfied and that the
statements
are admissible. … there is no evidence to show that undue
delay or expense would be caused by calling any of
these witnesses.
”
[50] Finally,
section 34(1) requires the production of the original document.
Counsel for the plaintiff submitted that the court
has a discretion
with regard to all the circumstances, to admit an affidavit or
statement even if the original document is not
produced, so long as a
true copy of the original document is furnished.
[51
]
I interpose to state that prior to the commencement of the trial,
the parties agreed as follows:
“
The
second defendant agrees that the documents in the bundle are what
they purport to be, that copies can be used but maintains
that the
correctness of the contents remain in dispute.
”
Although the
aspect of originality is satisfied, the documents concerned still
fall foul of the other provisions of section 34(1)
of the Evidence
Act as I have already demonstrated.
SECTION 34(2
)
[52] A
further requirement for admissibility under this section, is that the
court must be satisfied that undue delay or expense
would otherwise
be caused if the statements are not admitted. Clearly there is a
discretion to allow documents under this section
when the court is
convinced that undue delay or expense would otherwise be caused if
the appearance of the declarant or the production
of the original
document were insisted upon.
[53] In my
view no facts were placed before the court in order to determine
whether there would be an undue delay or expense if
the statements
are not admitted. I have already alluded to the fact that the court
was merely told that Dube and Gumede have absconded
and that nothing
was said about any efforts made to try and locate Lifuwa.
[54] In the
circumstances I find that the prerequisites laid down in section
34(2) have not been met nor was there any basis laid
for the
admission of the affidavits.
SECTION 34(3
)
[
55]
This subsection expressly provides that:
“
Nothing
in this section shall render admissible as evidence any statement
made by a person interested at a time when proceedings
were pending
or anticipated involving a dispute as to any fact which the statement
might turn to establish.
”
Clearly,
inadmissibility would follow if statements were made by a person
interested “
at
a time when proceedings were pending or anticipated
…”.
In
Butterworths “
Law
of Evidence
”
at page 18-31 the word “
anticipated
”
is interpreted as follows:
“
The
words ‘were anticipated’ introduce a subjective element.
Even if no case is pending, it is possible that the declarant
anticipates a subsequent action, as may well be the case where,
shortly after an accident, one of the drivers makes a statement
to a
police official. …
”
[
56]
In
United
Tobacco Ltd v Goncalves
1996 (1) SA 209
(W) at 212F-I, Van Blerk AJ confirmed that even if
the question of admissibility would only arise in a subsequent civil
action,
the fact that the statement was made in criminal proceedings
in which the declarant gives evidence as an accused, was sufficient
to exclude the statement. Furthermore, it was also only necessary
that proceedings be pending, not necessarily the proceedings
in which
the evidence was adduced.
[57
]
In
Da
Mata v Auto, NO
1972
(3) SA 858
(A), at 882A, the court confirmed that proceedings are
“
anticipated
”
within the meaning of section 34(3) when they are regarded as likely
or as reasonably probable.
[58
]
It was submitted on behalf of the plaintiff, that as far as Dube,
Gumede and Lifuwa are concerned, it was doubtful that they
anticipated any proceedings and that no proceedings were pending at
the time when their statements were taken. It was further
submitted
that even if one would assume that they had anticipated proceedings
being instituted against Kgathi and others, it could
not seriously be
contended that anyone of them would have had any interest in those
proceedings or the outcome thereof.
[59] I am
unable to agree with this submission. In my view there can be no
doubt that Dube made his statement in anticipation of
the criminal
trial that was to follow after the robbery. There can also be no
doubt that the statements by Gumede and Lifuwa,
all of whom were in
fact arrested for the robbery, fall in the same category. It must be
remembered that when Botha obtained further
statements from Dube,
Gumede and Lifuwa, it was clearly anticipated that members of the SVU
unit would be investigated for the
possibility of prosecution in
relation to theft of monies allegedly retrieved from the suspects.
In this regard Botha testified
that the mandate of Fedisa which he
led was twofold, firstly, the robbery at Montecasino and secondly, to
“
investigate
the conduct of the SVU Unit
”.
[60] From
Botha’s evidence, it was clear that his investigation pertained
to the loss of money and that the statements which
he obtained from
the suspects were for purposes of bringing criminal proceedings
against Kgathi and others. In fact, the suspects
were advised that
their statements would not be used against them on condition that
they cooperated to supply evidence against
Kgathi and others.
[61] It is
common cause that Kgathi and others were in fact prosecuted for the
theft of monies and that they were acquitted by
Snyders J of the
theft of monies pertaining to the Montecasino robbery. Clearly the
statements were obtained for prosecution purposes.
According to
Botha, Gumede gave evidence at the trial of Kgathi, Naidoo and
Govender but Dube,who was supposed to give evidence,
absconded. It is
clear that the statements by suspects were taken for purposes of
criminal proceedings. It follows that the statements
are
consequently inadmissible by virtue of the provisions of section
34(3).
[62] I am
unable to agree with the plaintiff’s contention that the
suspects i.e. Dube, Gumede and Lifuwa were not “
interested
persons in the proceedings
”.
In this regard the plaintiff submitted that a “
person
interested
”
must not be confused with a person being “
prejudiced
”.
There was an attempt to rely, in this respect, on the decision in
Colgate-Palmolive
(Pty) Ltd v Elida-Gibbs (Pty) Ltd
1990 (2) SA 516
(W) where it was highlighted that there were
difficulties in interpreting the phrase “
person
interested
”. It
is however noteworthy that no attempt was made in that case to define
the meaning of the phrase. Significantly the
court only dealt with
what was not encompassed by the phrase. The court merely stated that
a person interested is not a person
who was prejudiced.
[63] Adv Cook said that the
facts in this case were plainly distinguishable from
United
Tobacco Co Ltd v Goncalves (supra
).
In that case, the court found that the statements concerned were
made by a person who had an interest in putting the blame on
the
defendant (his employee) to ensure that the defendant rather than he
was prosecuted.
[64] In my view, the facts in
United Tobacco Co Ltd
are on all fours with
the present case. Clearly Dube’s interest was to try and shift
the blame onto Kgathi and his colleagues
to ensure that they, rather
than he was prosecuted. It accordingly follows that Dube and the
other suspects clearly had an interest
when they made those
statements. The suspects’ statements therefore fall foul of
the provisions of section 34(3) and are
accordingly rendered
inadmissible.
SECTION 34(4
)
[65] This section requires that
the document must be made or produced by the witness with his own
hand or signed and initialled
by him as a statement for the accuracy
of which he is responsible. Clearly this cannot be done without
calling the interpreter
who interpreted when the statement was made.
It is clear from the statements taken by the SVC unit that
interpreters were used
to take those statements. For example when
statements of Dube Gumede were taken one, police official by the name
of Miya acted
as an interpreter.
[66] Insofar as the statements
taken by Fedisa are concerned, it is clear that Dube, according to
Botha, could speak English well.
His statement, however, appears in
Afrikaans and the person who took that statement i.e. Andrews also
translated the statement
into Afrikaans. For that purpose Andrews
fulfilled the function of the interpreter for the taking down of
those statements which
are recorded in Afrikaans. In my view the
failure to call interpreters falls foul of the provisions both of
section 34(4) and
section 34(1). The position was aptly captured by
Broome DJP, in the case of
Magwanyana
and Others v Standard General Insurance Co Ltd
1996 (1) SA 254
(D) at 257A-G where he said the following:
“
Mr
Patel
contended
that the requirements of s 34(1) were not fulfilled because the
interpreter, Constable Mlambo, was not called as a witness.
This, he
argued, created a double hearsay situation. I accept this argument.
It is clear that the statement … is a statement
contemplated
by s 34(4). It was signed by David Sithole and it was on oath. It
must therefore have been recognised by him as one
'for the accuracy
of which he is responsible'. I agree that the statement does in fact
depend for its admissibility in terms of
s 34(1) on the evidence of
the interpreter, Constable Mlambo, that he interpreted what David
Sithole said to him. There is no evidence
that Constable Mlambo was
not available or that all reasonable efforts to find him had been
made
without
success. In these circumstances there is, I find, a missing link,
that link being the evidence of the interpreter to the
effect that he
correctly interpreted to Constable Buckle what David Sithole had
said.
On my reading of s 34(1),
it requires proof that the statement in the document in question was
made by the person in question. Here
the statement in the document in
question is essentially a statement by the interpreter of what David
Sithole told him. See
R
v Mutche
1946 AD
874.
Constable Buckle's evidence is in effect, 'I wrote down what
Constable Mlambo told me', which, coming from Constable Buckle, is
hearsay
(a)
as
regards the implication that Constable Mlambo said to Constable
Buckle that he had correctly interpreted to Constable Buckle
all that
David Sithole had said, and
(b)
as regards the
truth of what David Sithole told Constable Mlambo. If Constable
Mlambo had testified, 'I translated to Constable
Buckle what David
Sithole told me', that, coming from Constable Mlambo, would eliminate
the hearsay referred to in
(a)
above but it would
be hearsay as regards
(b)
above. It would be
admissible under s 34 if
Constable
Mlambo had so testified, the hearsay being only that mentioned in
(b)
above. In these
circumstances, I consider that there is this missing link, which
means that it does not qualify to be admitted under
the provisions of
s 34(1).
”
[67] In my view the failure to
call Andrews and the interpreters causes the “
missing
link
” referred
to by Broome DJP resulting in the statement of Dube, Gumede and
Lifuwa not qualifying to be admitted under the
provisions of section
34(1) and section 34(4). I accordingly find that the statements by
Botha, Dube, Gumede and Lifuwa all fall
foul of the provisions of
section 34 of the Evidence Act and are accordingly inadmissible.
THE EVIDENCE AMENDMENT ACT
[68] Section 3 of the Evidence
Amendment Act provides that:
“
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence in criminal or civil proceedings,
unless
–
each party against whom the
evidence is to be adduced agrees to the admission thereof as
evidence at such proceedings;
the person upon whose
credibility the probative value of such evidence depends, himself
testifies at such proceedings; or
the court, having regard to –
the nature of the proceedings;
the nature of the evidence;
the purpose for which the
evidence is tendered;
the probative value of the
evidence;
the reason why the evidence
is not given by the person upon whose credibility the probative
value of such evidence depends;
any prejudice to a party
which the admission of such evidence might entail and
any other factor which should in the opinion of the court be
taken into account;
is of the opinion that such evidence should be admitted in the
interest of justice.
(2) The provision of
sub-section (1) shall not render admissible any evidence which is
inadmissible on any ground other than such
evidence is hearsay
evidence.
(3) Hearsay evidence may be
provisionally admitted in terms of sub-section (1)(b) if the court is
informed that the person upon
whose credibility the probative value
of such evidence depends, will himself testify in such proceedings:
Provided that if such
person does not later testify in such
proceedings, the hearsay evidence shall be left out of account unless
the hearsay evidence
is admitted in paragraph (a) of sub-section (1)
or is admitted by the court in terms of paragraph (c) of that
sub-section.
(4) For the purpose of this
section – ‘hearsay evidence’ means evidence,
whether oral or in writing, the probative
value of which depends upon
the credibility of any person other than the person giving such
evidence;
‘
party’ means the
accused or party against whom hearsay evidence is to be adduced,
including the prosecution.
”
[69] A simple reading of section
3(1) reveals that the Evidence Amendment Act can only come into
operation “
subject
to the provisions of any other law
”.
As I have already ruled that the statements concerned are
inadmissible in terms of the Evidence Act, it follows that the
statements could never be considered admissible under the Evidence
Amendment Act.
[70] As I have already ruled
that the statements by Dube, Gumede and Lifuwa are inadmissible,
Botha’s subsequent statement
can thus be seen in its proper
perspective. Clearly his entire evidence is hearsay. It will be
recalled that he told the court
in no uncertain terms that he has no
personal knowledge of the facts therein contained. Clearly his
evidence and statements are
based on the inadmissible statements of
others and as such is double hearsay and of no value. Part of his
evidence is an interpretation
of that which he had heard, clearly a
function of the court and not of a witness who is only allowed to lay
the facts before a
court.
[71] Botha’s evidence and
statements do not fall into the two recognised exceptions I have
referred to above. His evidence
is totally inadmissible as it is
entirely based on what was told to him. Undoubtedly it falls foul of
the provisions of section
3 of the Evidence Amendment Act.
[72] Without dealing with each
and every aspect of section 3 of the Evidence Amendment Act, it is
quite apparent that the probative
value of the evidence is weak, it
being based on inadmissible evidence. No sufficient or reasonable
explanation was supplied why
the persons upon whose credibility the
probative value of the evidence depends, were not called in order to
place the court in
a position to determine the factors set out in
sections 3(1)(c), 4 and 5 of the Evidence Amendment Act. It suffers
the same problems
with the statements referred to above.
[73] I accordingly come to the
conclusion that it would not be in the interests of justice to admit
the hearsay based on inadmissible
hearsay evidence nor the opinions
of Botha which remain inadmissible. Furthermore the evidence of
Botha also falls to be disallowed
insofar as that evidence is based
on the statements of other witnesses.
[74] It is trite that the
crucial enquiry in circumstances as in the present is to what extent
the value of the evidence sought
to be admitted, depends on the
credibility of the absent witness and also to what extent the dangers
of relying on that evidence
are outweighed by indications of
reliability. Factors that have to be taken into consideration to
determine the probative value
of the evidence include:
the relationship, if any,
between the absent witness and the other parties;
the possibility of a motive for making false allegations (usually
flowing from (a);
the spontaneity of what was said and whether it was said without any
particular object in mind;
the circumstances in which the
absent witness made the allegation;
the reputation for honesty of the absent witness;
the lapse of time between the event and the statement made about it
to the witness testifying in court;
the opportunity the absent
witness had for observation of the event, and any other factors
possibly influencing the reliability
of that observation (as for
example nearsightedness or dim light); and
the manner in which the information was conveyed (particularly
whether oral or written).
[75] In this case Dube, Gumede
and Lifuwa who were suspects in a robbery were used as witnesses to
make a case against other police
officers, specifically Kgathi and
others. The suspicion is clearly unavoidable that the suspects would
have a motive to minimise
their own involvement in the robbery. In
the same vein consideration has to be given to the fact that Dube
only implicated Kgathi
and others of any wrongdoing in the subsequent
statements, having omitted to do so in his initial statement. It
must also be borne
in mind that Botha was confronted, during
cross-examination, with one statement wherein it was alleged that he
had in fact suggested
to Dube that greater amounts had been recovered
by the SVU unit for him.
[76] Regard must also be paid to
the fact that the statements are from robbers, some of whom
originally denied any involvement
in the robbery and only later,
with a promise from Botha and others that their statements would not
used against them, made a volte
face and deposed to statements in
which they implicated Kgathi and others. There is no question that
these statements are not
spontaneous. It is reasonable to conclude
that these statements were made in order to exonerate themselves and
implicate members
of the South African Police in the crime.
[77] In the light of all what
has been stated, I have come to the conclusion that neither the
statements of the suspects who did
not testify nor the hearsay
evidence of Botha based thereon should be admitted in evidence.
INFORMAL ADMISSIONS AND STATEMENTS AGAINST INTEREST
[78] An attempt was made by
plaintiff to have admitted in evidence the statements made by Botha.
It was submitted that Botha’s
statements (and of the other
investigators) were made by agents of the defendant in furtherance of
their duty to investigate corrupt
activities and crime within the
police force and were made under oath in circumstances which
justified their reception into evidence.
It was thus submitted that
as Botha was the investigating officer specifically tasked with the
authority to investigate the matters
in question and as his
statements were made within the course and scope of performing these
functions, his statements thus fell
to be admitted into evidence.
[79] I am unable to agree with
the submission. As I have already found, the contents of Botha’s
statements were entirely
based on what had been told to him by the
suspects. This was his unqualified testimony in court. In the
circumstances the statements
concerned cannot be admissible on the
basis suggested.
[80] I now turn to consider the
merits with regard to the remainder of the evidence.
[81] There is no doubt that the
plaintiff sustained a loss of a substantial amount of cash during the
robbery. The quantum of the
plaintiff’s loss is not disputed.
It was submitted on behalf of the plaintiff that the robbery occurred
with the participation,
active or otherwise, of Kgathi, that Kgathi
knew that the robbery was going to occur, and that Kgathi, who had a
constitutional
duty as a police officer to prevent the robbery from
happening, failed to do so. The plaintiff conceded that there was no
direct
evidence implicating Kgathi in the robbery. However, it was
submitted that, based on all the facts and circumstances of the case,
an inference could be drawn about Kgathi’s involvement in the
robbery.
[82] Reliance was placed on
Kritzinger’s evidence, taken together with the DVD footage that
was played in court. It was submitted
that the fact that Kgathi
arrived a few minutes before the arrival of the robbers at
Montecasino, combined with the fact that he
left shortly after the
robbers had left, was sufficient basis for the conclusion that
Kgathi had participated in the robbery.
[83] Kritzinger assumed that
that the man in the white shirt appearing on the video had
disembarked from the silver coloured BMW
seen on the video driving
into Montecasino. However, this is not what was actually seen on the
video. Kritzinger testified that
he was merely told by Dube that this
man had come from that BMW. Significantly, Kritzinger said he had no
personal knowledge whether
this person was in fact one of the
robbers.
[84] The video footage itself
merely shows Kgathi, the person in a white shirt and Dube mingling
around the gambling area. As the
three are seen using their
cellphones, I was then asked to draw an inference that they were
communicating with one another. I
am unable to come to that
conclusion in the absence of any other evidence. It must be
remembered that Kritzinger never even said
that he could identify the
face of the person in the white shirt. So all of his evidence is
based on speculation.
[85] Reliance was also placed on
Prof Fatti’s evidence that Kgathi’s presence at the
casino on that Sunday afternoon
was not a mere coincidence and that
it had been pre-planned. However, Ms Turk the slot machine manager
at Montecasino produced
documentary evidence showing that Kgathi was
a regular, if not a compulsive gambler at Montecasino. Records
showed that Kgathi
was a Platinum cardholder at the casino and that
between 23 July 2001 to 13 September 2004 he regularly came to
Montecasino, even
on Sundays. Prof Fatti’s evidence thus does
not assist the plaintiff.
[86] I was asked to consider
Kgathi’s bad character on the basis that this was a species of
similar evidence, and to admit
that into evidence. In this regard it
was submitted that Kgathi, Govender and Naidoo all had a
modus
operandi
of stealing
recoveries made from suspects in robberies. In this regard reliance
was placed on the fact that Kgathi is presently
serving a prison term
albeit for an unrelated conviction involving theft of money or goods
recovered during a police investigation.
This submission is clearly
misconceived as I do not know all the facts of the case on which
Kgati has been convicted.
[87] Quite importantly, Kgathi
was charged criminally of theft of monies from Dube and the other
suspects but was subsequently
acquitted of all those charges by
Synders J. I am accordingly unable to admit into evidence Kgathi’s
alleged bad character
and that he had a propensity to commit the acts
complained of by the plaintiff.
[88] I am fortified in this
conclusion in particular by Botha’s evidence. It must be
remembered that Botha, who was in a
way the plaintiff’s main
witness, testified that he investigated Kgathi in relation to his
suspected participation in the
robbery at Montecasino. He stated that
after those investigations he was satisfied that Kgathi was not
involved in the robbery.
In his view if Kgathi had been involved in
the robbery, he would have known where the money had been stashed.
[89] In the absence of any
direct evidence implicating Kgathi, (something which was conceded by
the plaintiff,) I am constrained
to reject Botha’s evidence
that Kgathi not involved in the robbery. Because of my finding as
aforesaid, it is unnecessary
to consider whether Kgathi’s
alleged omission to prevent the robbery was within the course and
scope of his employment with
the second defendant.
[90] The court was asked, in the
alternative, to infer from certain facts and circumstances of the
case, that Kgathi and others
had stolen money form Dube, Gumede and
Lifuwa. The basis for this inference is that Kgathi and others had a
modus operandi
of stealing money from the robbers. Reliance was placed on Botha’s
hearsay testimony that Dube had told him that Kgathi
had
misappropriated about R3 million from him. It will be recalled that
Botha had testified that Dube had told him about the presence
of one
Inspector Ackerman who was allegedly present when the money was
recovered from Dube.Ackerman was never called as a witness.
I was
never informed whether there was any attempt made to subpoena
Ackerman to come and testify on behalf of the plaintiff.
[91] The court was also asked to
infer that Gumede, one of the suspects, must have been conveniently
instructed by the SVC unit
to “
disappear
”.
There is no evidence to support such a finding.
[92] The plaintiff tried to rely
on the evidence of Moyo, namely that one Inspector Hall had
confronted Dube in his presence saying
that Dube had allowed himself
to be put through the ordeal of a robbery for a mere R400 000,00.
This was not corroborated in any
way. The court was not informed if
there was any attempt made by the plaintiff to subpoena Inspector
Hall to come and testify
on behalf of the plaintiff .
[93] Having considered all the
evidence carefully, I am unable to find that Kgathi stole monies
which were part of the recoveries
made from the robbery at
Montecasino. On the proven facts, I find it unnecessary to consider
whether Kgathi did so in the course
and scope of his employment.
[94] In the circumstances I make
the following order:
The plaintiff’s claim is dismissed with costs, such costs to
include the employment of two counsel.
_____________________________
B
H MBHA
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR PLAINTIFF: Adv. O.
Cook S C
Assited by Adv.
A.Stein
INSTRUCTED BY: Deneys Reitz
Attorneys
COUNSEL FOR SECOND DEFENDANT:
Adv. W.L. Wepener S C
Assisted by Adv. M.W. Dlamini
INSTRUCTED BY: State Attorney
DATES OF HEARING: 11,12,15-18
February 2010
DATE OF JUDGMENT: 25 May 2010