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[2012] ZASCA 144
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Seyisi v S (117/12) [2012] ZASCA 144 (28 September 2012)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
117/12
Non Reportable
In
the matter between:
NOMFUSI NOMPUMZA
SEYISI
......................................................................
APPELLANT
and
THE STATE
..................................................................................................
RESPONDENT
Neutral citation:
Seyisi v The State
(117/12)
[2012] ZASCA 144
(28 September 2012)
Coram:
Nugent,
Ponnan, Cachalia, Leach and Tshiqi JJA
Heard:
18 September 2012
Delivered:
28 September 2012
Summary: Expert
evidence – once accepted as credible, constitutes prima facie
proof – onus of rebuttal on the defence.
______________________________________________________________________
ORDER
______________________________________________________________________
On
appeal from: Eastern Cape High Court, Bisho
(Dhlodhlo
ADJP and Kemp AJ sitting as court of appeal):
The appeal is dismissed.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
TSHIQI
JA (NUGENT, PONNAN, CACHALIA AND LEACH
JJA
CONCURRING
)
The appellant was
charged in the Mdantsane Regional Court, Eastern Cape, with 1025
counts of fraud, alternatively with theft,
it being alleged that she
caused or facilitated unauthorised payments of social welfare grants
(to fictitious persons) by
affixing her own thumb and/or toe
print to payment vouchers. It was alleged that she committed the
fraud whilst she was employed
as a paymaster by the Department of
Social Development, Bisho, Eastern Cape (“the department”).
She was convicted of
fraud on all the 1025 counts and was sentenced to five years’
imprisonment. All the counts were taken
together for the purposes of
sentence. The provisions of
s 276(1)
(i)
of the
Criminal
Procedure Act
51
of 1977
were made applicable to the sentence.
1
A confiscation order in
terms of s 18 of the Prevention of Organised Crime Act 121 of 1998
(POCA)
2
was, also made an order
of the court. She was ordered to pay an amount of R1 334 820 with
costs to the curator
bonis
appointed in terms of
POCA. Her appeal to the Bisho High Court against the convictions was
dismissed. She now appeals to this
court against the convictions
only, leave having been granted by the high court.
The appellant was
implicated in the fraud through an investigation conducted at the
instance of the department by a fingerprint
expert, Mr Stassen, who
was the main State witness at the trial. The investigation revealed
that the fraud had been committed
during the period between 1994 to
1996 in Bisho, Eastern Cape. It further revealed that some of the
persons reflected as beneficiaries
were either dead at the time
payment was made or were recorded twice in the system, resulting in
a duplication of payment to
the same beneficiaries.
Stassen testified that
before he joined the department he was a fingerprint investigator in
the employ of the South African Police
Services since 1978. At the
time of the trial he was employed by the department and had been so
employed since 6 September
2001. He still did fingerprint
analysis on a daily basis. He found irregularities such as several
runs of prints of a then unknown
person. He became suspicious
because that person had signed for more than five people and also
because there were both finger
and toe prints in those instances.
On 18 May 1999, Stassen
received a faxed copy of a set of fingerprints bearing the name of
the appellant, Nomfusi Nompumza Seyisi.
He compared the right thumb,
right forefinger, right middle finger, left thumb and left
forefinger of that set of prints with
the prints that appeared on
798 payment vouchers emanating from the Peddie district and found
seven or more points of similarity
on all the prints. He testified
that seven points of similarity were sufficient to establish that
the prints had emanated from
the same person. He testified that the
faxed copy had subsequently disappeared but handed in the vouchers
as exhibit ‘A’.
He further testified that on 12 March
2003 he received a further set of finger and toe prints from the
joint anti corruption
task team with the name of the appellant
on them. He compared them with the earlier prints in exhibit ‘A’
and found,
on the same basis, that, the right thumb, right
forefinger, right middle finger and left thumb and left forefinger
prints corresponded
with those of the appellant. He concluded that
they had been made by her. He stated that he found seven or more
points of similarity
on each print. These he handed in as exhibit
‘B’.
He conducted further
investigations and found further fingerprints on payment vouchers
from the Peddie district. A total of 1025
fingerprints on the
payment vouchers were similar and corresponded to the right thumb,
right forefinger, right middle finger,
left thumb, left forefinger
as well as the right big toe and left big toe prints appearing in
the set he had received. He also
handed in a comparison chart for
seven of the vouchers. A total of 1025 payment vouchers were also
handed in as exhibit ‘J’.
On 8 October 2003 he took
a set of fingerprints and toe prints from the appellant and compared
the appellant’s fingerprints
with the fingerprints appearing
in exhibit ‘B’. He concluded that they emanated from the
same person.
Stassen was asked in
cross-examination to explain the seven points of similarity. He said
that he could not do so there and then
but would be able to do so if
he was given an opportunity to stand down. The cross-examiner did
not press the matter further.
The second state witness
was Mr Rasussen. He testified that he requested Stassen to conduct
the investigation. He was informed
by Stassen that he had found many
irregularities such as runs of finger and toe prints on the vouchers
already paid out. He explained
that the irregularities resulted in
various kinds of loss for the department.
The evidence of Rasussen
was followed by that of Mr Townsend. He testified that he was
employed by the department and was responsible
for the prevention,
detection and investigation of fraudulent activities within the
department. He elaborated on all the several
irregularities he found
during his investigation. During cross examination he agreed
that he could not link the irregularities
to the appellant.
The appellant testified
in her own defence. She admitted that she was employed by the
department as a paymaster at the time the
irregularities were
committed but denied that she was involved in any wrongdoing. She
specifically denied that her finger and
toe prints were on the
vouchers. During cross-examination she admitted that as the
paymaster she was indeed responsible for keeping
both the money and
the vouchers. She further admitted that she would keep all the money
and the vouchers that remained after
payments had been made until
she handed over everything at their office in Bisho. She also
admitted that as the paymaster she
was the head of the pay team and
that it was her responsibility to ensure that everything was
properly administered.
The main issue on appeal
is whether the fingerprints on the various vouchers indeed emanated
from the appellant. The only evidence
contradicting that of Staasen
was a denial by the appellant that the prints on the vouchers were
hers.
In
Gentiruco
AG v Firestone SA (Pty) Ltd
1972
(1) SA 589
(A)
the
court, referring to
Wigmore
on
Principles of
Evidence
(3ed)
Vol VII para 1923 stated that ‘the true and practical test of
the admissibility of the opinion of a skilled witness
is whether or
not the Court can receive “appreciable help” from that
witness on the particular issue ….’
3
Expert witnesses are in
principle required to support their opinions with valid reasons. But
no hard-and-fast rules can be laid
down. Much will depend on the
nature of the issue involved and the presence or absence of an
attack on the opinion of the expert.
4
Where the expert has
personally conducted experiments it is easier for the court to
follow the evidence, accept it and rely on
it in deciding the
issue.
5
In this matter Stassen
compared the finger and toe prints of the appellant to the prints
uplifted from the payment vouchers and
went further to explain his
findings to the court. Other than a bare denial the appellant led no
rebuttal evidence. Effectively
the trial court was faced with the
prima facie evidence of the expert. There was no challenge to the
manner in which he had conducted
his investigation, nor to his
evidence that in each case there were seven points of similarity,
nor was it contested that seven
points were sufficient to establish
that the prints had emanated from the same person. The court found
the evidence acceptable
and in its judgment stated:
‘
If we have an expert, he is
conceded to be an expert and his evidence is credible before the
Court then the Court must at the very
least accept his evidence as
being
prima facie
proved and this is where then an onus rests on the defence to dispute
facts that are
prima facie
proved before the Court. So if the expert tells the Court here are
seven points and these are similar seven points on this next
photograph and one can see that they are pointing to exactly the same
area as the specific points on them then there at least rests
a duty
on the defence to have asked the witness what are these points, if he
wanted to know what they were so that he could place
them in dispute
at some stage. It is quite clear that the witness told the Court that
he is able to tell the Court what they are
and the witness told us
that he is able to point out the seven points of similarity on all
the 1 025 vouchers that have been presented
to the Court.
This has not been done by the defence
so therefore the evidence must stand then as undisputed evidence. Our
law is quite clear that
if evidence is
prima facie
evidence
and it is not discredited or placed in dispute by the defence in any
manner then it must be accepted as proven evidence.
I have had
occasion to look through all of the 1 025 vouchers and if one looks
through these and compares them to what has been
presented on these
particular charts then one can see the similarities in general
regarding these particular points and it is in
particular the right
forefinger which has quite a unique pattern on it which is seen
throughout the Exhibits ….’
In argument before us it
was submitted that the magistrate ought not to have accepted the
evidence of Stassen without first having
an explanation of the
points of similarity and satisfying himself personally that the
prints corresponded. I do not think that
is correct. As pointed out
above a court is entitled to be guided by the evidence of an expert.
In the absence of a challenge
to expert evidence that prima facie
establishes the relevant facts a court is entitled to rely upon it
to convict. In this case
there was no challenge to his expertise, or
to the grounds upon which he expressed the opinion that the prints
corresponded.
Indeed, at the conclusion of Stassen’s evidence,
counsel appearing for the appellant specifically recorded that he
wished
to reserve further cross examination until he had
consulted with his own fingerprint expert to ascertain whether he
disputed
Stassen’s conclusion. Stassen was never recalled for
further cross examination, and the reason for this failure is
obvious. There is therefore no merit in the appeal.
The appeal is
accordingly dismissed.
_______________________
Z L L TSHIQI
JUDGE OF APPEAL
APPEARANCES:
For Appellant: PW Nel
Instructed by Justice
Centre
King William’s Town
Justice Centre,
Blomfontein
For Respondent: C de Kock
Instructed by
State
Attorney
King William’s Town
State Attorney,
Bloemfontein
1
Section
276(1)
(i)
of the
Criminal Procedure Act 51 of 1977
provides
for imprisonment from which a person may be placed under
correctional supervision in the discretion of the Commissioner
of
Correctional Services or a parole board.
2
Section
18(1)
of POCA provides: ‘Whenever a defendant is convicted of
an offence the court convicting the defendant may on the application
of the public prosecutor, enquire into any benefit which the
defendant may have derived from
(a)
that
offence;
(b)
any
other offence of which the defendant has been convicted at the same
trial; and
(c)
any
criminal activity which the court finds to be sufficiently related
to those offences,
and, if the court finds
that the defendant has so benefited, the court may, in addition to
any punishment which it may impose
in respect of the offence, make
an order against the defendant for the payment to the State of any
amount it considers appropriate
and the court may make any further
orders as it may deem fit to ensure the effectiveness and fairness
of that order.’
3
Wigmore
Evidence
Vol
VII, 3
ed (2004);
Gentiruco AG v Firestone SA (Pty)
Ltd
1972 (1) SA 589
(A) at
616;
Schwikkard and Van der
Merwe
Principles of
Evidence
2ed (2002) 79 at
89.
4
S
v Ramgobin
1986 (4) SA 117
(N) 146 D-G;
S v Mthimkulu
1975 (4) SA 759
(A).
5
S
v Van As
1991 (2) SACR 74
(W).