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[2011] ZASCA 220
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Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety and Security (749/2010) [2011] ZASCA 220; 2012 (2) SA 137 (SCA); [2012] 2 All SA 56 (SCA) (30 November 2011)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 749/2010
In the
matter between:
GIESECKE
& DEVRIENT SOUTHERN AFRICA
(PTY)
LTD
…..............................................................................................
APPELLANT
v
THE MINISTER OF SAFETY AND SECURITY
…...................................
RESPONDENT
Neutral
citation:
Giesecke & Devrient v Minister of Safety and
Security
(749/10)
[2011] ZASCA 220
(30 November 2011)
Coram:
Brand, Lewis, Cachalia, Mhlantla and Shongwe JJA
Heard:
9 November 2011
Delivered:
30 November 2011
Summary: Robbery – allegations of police involvement –
vicarious liability of the respondent – admissibility of
hearsay statements in terms of s 3(1)(
c
) of the
Law of
Evidence Amendment Act 45 of 1988
.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
South Gauteng High Court, Johannesburg (Mbha J
sitting as court of first instance):
(1) The appeal is upheld (save to the extent set out in (2)) with
costs, including the costs of two counsel.
(2) The dismissal of the appellant’s main claim for payment of
the sum of R23 914 610 is confirmed.
(3) The dismissal of the appellant’s alternative claim for
payment of the sums of R3 million and R1.2 million, is set aside
together with the trial court’s costs order in favour of the
respondent.
(4) The six statements by Mr Solomon Dube and the five statements by
Mr Richard Gumede included in the record of the proceedings,
are
admitted in evidence under
s 3(1)(
c
) of the Law of
Evidence Amendment Act 45 of 1988.
(5) The matters referred to in (3) above are remitted to the trial
court for reconsideration after the respondent has been given
the
opportunity to apply for the reopening of his case.
________________________________________________________________
JUDGMENT
________________________________________________________________
BRAND JA
(Lewis, Cachalia, Mhlantla and Shongwe JJA
concurring
)
[1] The appellant, Giesecke & Devrient Southern Africa (Pty) Ltd,
provided cash processing and security services for banks
and casinos.
One of its customers was the owner of a casino, known as Monte
Casino, in the north of Johannesburg. As part of its
services, the
appellant conducted a secure cash centre in the basement of the Monte
Casino premises where it received the cash
generated by the casino’s
activities. On Sunday 5 September 2004 at approximately 15h30 an
armed robbery took place at Monte
Casino. In the event some R24
million was stolen from the cash centre operated by the appellant.
Pursuant to its contract with
the casino owner, the appellant was
held responsible for the loss. Subsequent investigations revealed
that an employee of the casino,
Mr Solomon Dube, was involved in the
robbery. Under interrogation Dube, in turn, implicated members of the
South African Police
Services (the police).
[2] On the strength of these accusations, the appellant issued
summons in the South Gauteng High Court, Johannesburg, against the
respondent, the Minister of Safety and Security, for the loss it had
suffered in this way. In its particulars of claim the appellant’s
main claim was for the full amount that was stolen. As the basis for
this claim, the appellant relied on the allegation that the
robbery
was perpetrated with the active assistance of a policeman, Inspector
William Kgathi, of the Johannesburg Serious and Violent
Crime Unit
(SVCU) of the police. As an alternative basis for its main claim, the
appellant alleged that Kgathi at least had prior
knowledge of the
robbery; that he was present at Monte Casino at the time of the
robbery; that he could and should have prevented
the robbery; but
that he had wrongfully failed to do so. In any event, so the
appellant alleged, Kgathi acted in the course and
scope of his
employment as a member of the police for whom the respondent bears
ultimate responsibility.
[3] Apart from the main claim, the appellant also advanced an
alternative claim against the respondent for amounts of R4.2 million
in aggregate. In broad outline this claim rested on the allegation
that Kgathi and two other members of the SVCU, Captain Ravichandarn
Naidoo and Inspector Sathisagren Govender had recovered these amounts
from the robbers, but appropriated the money for themselves
instead
of paying it over to the police for the benefit of the appellant. In
all these instances, so the appellants alleged, the
three policemen
involved acted in the course and scope of their employment as members
of the police, which rendered the respondent
vicariously liable for
their wrongful conduct.
[4] When the matter came before Mbha J in the court a quo, he
dismissed both the appellant’s main claim and its alternative
claim with costs. The appeal to this court against that judgment is
with the leave of the court a quo. As to the issues arising
on
appeal, it can be said by way of introduction that a large part of
the appellant’s case rested on hearsay statements by
alleged
participants in the robbery who did not give evidence at the trial.
Hence some of the major issues turn on the admissibility
of these
hearsay statements. But a better understanding of these and other
issues requires a more detailed account of the background
facts.
Despite major factual disputes, there are large areas of common
ground. I propose to cover these areas first without necessarily
indicating the sources from which they derive.
[5] The leading role player in the saga proved to be Inspector
Kgathi. Apart from being a policeman, he turned out to be a
compulsive
gambler. The records of Monte Casino showed that between
July 2001 and November 2004 he had played the slot machines at the
casino
on no less than 618 days. Based on his regular visits and his
substantial spending, he became a platinum card holder of the casino.
One of the privileges linked to the status he thus attained was to
park in the casino’s VIP parking area. That area was in
the
basement of the casino, adjacent to the cash centre operated by the
appellant.
[6] Immediately after the robbery, the robbers removed the video
tapes from the cameras in the appellant’s cash centre, but
not
from the cameras in the VIP parking area. Analysis of the available
tapes revealed that the robbers entered the casino premises
in their
silver BMW via the VIP parking area, at 14h43 on the afternoon of the
robbery and that Kgathi arrived in the same area
four minutes
thereafter. Moreover, this footage also showed that subsequent to the
robbery Kgathi left the premises again about
four minutes after the
robbers. Later that afternoon, Kgathi returned to Monte Casino, this
time in his capacity as one of the
members of the SVCU, who were
instructed to investigate the robbery.
[7] As could be expected, the appellant’s cash centre at Monte
Casino was professionally and efficiently secured. Yet, the
security
proved not to be entirely flawless. The flaw in the system unveiled
by hindsight was that, though only employees of the
appellant were
allowed in the secure area of the cash centre, the practice was for
the appellant’s employees on duty to call
in a member of the
casino staff whenever a counterfeit note was discovered. That is what
happened on 5 September 2004. A counterfeit
note, obviously
infiltrated into the system, was discovered by one of the appellant’s
employees. The casino staff member
called to the secure area was
Dube. When the door was opened for him, he entered the secure area
with four armed robbers. In an
attempt to conceal Dube’s
complicity, he was held up at gunpoint himself. Later that same
afternoon he was, however, identified
as a suspect by members of the
SVCU.
[8] About 30 minutes after the robbery, Dube made his first statement
under oath to members of the SVCU. In that statement he disavowed
any
involvement in the robbery and claimed to be a victim instead. Two
days later, however, he made a statement to Naidoo, which
amounted to
a confession and an avoidance. According to this statement, Dube
admitted that he was a party to the robbery. He alleged,
however,
that he was forced to participate by one of the robbers, known to him
as Zulu. In this statement Dube also disclosed the
names of those
involved in the robbery, who were then interviewed by the members of
the SVCU. One of those thus implicated by Dube
was Mr Richard Gumede
who subsequently made a statement to the SVCU in which he also
admitted his involvement in the robbery.
[9] Not long after these events, rumours of misconduct by members of
the SVCU came to the notice of higher authorities in the police.
In
consequence, another police unit, known as Fedisa, was instructed to
investigate these rumours. The commanding officer of Fedisa
at the
time was Senior Superintendent Marthinus Botha who took personal
control of the investigations and who later testified on
behalf of
the appellant at the trial. According to Botha’s evidence, his
unit investigated several cases against members
of the SVCU in
general and the trio of Kgathi, Naidoo and Govender in particular.
One of these cases related to the Monte Casino
robbery.
[10] As part of the latter investigation Botha interviewed Dube, who
was in prison at the time, on 18 September 2004. Though the
interview
was conducted in English, so Botha testified, it was recorded by
another member of Fedisa, Inspector Andrews, in a statement
in
Afrikaans. This statement, which Dube confirmed under oath, started
with a confirmation of an undertaking by Botha that the
contents of
that statement would not be used against Dube in any way. According
to the statement, Dube then again admitted that
he was part of the
group of persons involved in the casino robbery. On 6 September 2004,
the day after the event, so he said, he
received a message from Zulu
that he could collect his share of the spoils at a house in Thembisa
(in the east of Johannesburg)
where it was left in a black travelling
bag. On the same day he went to the house where he collected the bag.
It contained a large
amount of cash. Though he counted up to R3
million, he left some of the money uncounted, which he estimated to
be about R500 000.
Thereafter he again locked the money in the
same travelling bag and left it there.
[11] The next day, Thursday 7 September 2004, Dube said, he was woken
up during the early hours of the morning by Kgathi and other
members
of the SVCU. They were particularly interested in the whereabouts of
the money that he had received. When he refused to
tell them, they
started to assault and torture him. Amongst other things, they
applied electrical shocks to sensitive parts of
his body and
smothered him with a rubber tube. By these means they eventually
established where the money was. Kgathi and others
then took him to
the house in Thembisa where he handed over the money to them. On
their way back they stopped at a place, the location
of which was
concealed, where they met with other persons who were later also
identified by Dube as members of the SVCU. When he
eventually arrived
at the police station in the company of these SVCU members, so Dube
said, he could see that the bag was much
lighter than when he handed
it to them.
[12] It was common cause that the money entered into the police
register of exhibits as having been recovered from Dube, amounted
to
only R431 000 which, on Dube’s version, left R3 069 000
unaccounted for. But three days after making his
statement to Botha,
Dube made a further statement in his own handwriting to the SVCU,
which he again confirmed under oath. In this
statement he recanted
the accusations against members of the SVCU that he made to Botha.
The averment in his statement to Botha
that he gave R3.5 million to
the police, so Dube now said, was suggested to him by Botha. As far
as he knew, he now said, all the
money that he gave to the police was
accounted for in the police register.
[13] On 23 September 2004 Dube applied for bail. In support of that
application he made a further statement under oath. This time
he
reverted to his original denial of any complicity in the Monte Casino
robbery. His explanations for his earlier statements to
the police
went along the following lines. Though he repeated his allegation
that he was tortured and assaulted by the SVCU, he
denied that he had
anything to do with the pointing out of any money. The money which
was allegedly recovered and handed in by
Kgathi and others, had
nothing to do with him. The whole purpose of the torture, so he said,
was to compel the untrue admission
that the money recovered was his.
The allegation in his statement to Botha about the sum of R3.5
million that he handed to the
police was equally untrue and suggested
to him by Botha. As to his further statement to the SVCU, he alleged
that after he was
interviewed by Fedisa, he was booked out of prison
and taken to a police station by members of the SVCU. At the police
station
he was again assaulted and tortured, this time to compel him
to divulge the contents of his statement to Fedisa. When he
eventually
told them, he was further tortured until he recanted that
statement in his own handwriting.
[14] As part of their investigation, Fedisa members also interviewed
Gumede as one of those implicated by Dube. He too made about
five
different statements, some conflicting, about his involvement in the
Monte Casino robbery. The one of real relevance, however,
is the
statement he made to members of Fedisa on 21 September 2004.
According to this statement Gumede received his share of the
loot
immediately after the robbery. He counted the money and found that it
was R1.9 million. He gave R550 000 to his girlfriend,
Ms Rachel
Lifuwa. Apart from other lesser expenditure, he bought an Audi motor
vehicle for about R195 000. He then rented
a hotel room and
placed the balance, which according to Gumede’s calculation,
amounted to R1.2 million, in the safe of the
room.
[15] Soon thereafter, so Gumede said, he was confronted by three
members of the SVCU that he later identified as including Kgathi,
Govender and Naidoo. They wanted to know where he had hidden his
share of the stolen money. When he refused to tell them, they
assaulted him until he took them to the hotel room where he had
locked the R1.2 million. There Kgathi and others opened the safe
with
the key that he gave them and took the money. It is common cause that
of the money recovered from Gumede only R607 000
was handed in
which, on Gumede’s version, left R593 000 unaccounted for.
But I must add that, according to Botha’s
testimony at the
trial, it was later discovered that Gumede apparently also paid
R250 000 for a Mercedes Benz, which he did
not mention in any
statement.
[16] Following the statement by Gumede, members of Fedisa also
interviewed his girlfriend, Ms Rachel Lifuwa. She confirmed that
she
received a large amount of money from Gumede on 6 September 2004. She
did not count the money but Gumede told her, she said,
that it was
R550 000. On 9 September 2004, she was confronted by three
policemen, whom she later identified as Kgathi, Naidoo
and Govender.
They wanted to know from her where the money was that she received
from Gumede. When she refused to tell them, they
took her to the
police station where they assaulted and tortured her severely.
Eventually she took them to where the money was
and she handed it to
them. It is common cause that on this occasion only R85 000 was
accounted for in the exhibit register
of the police which, on the
joint version of Lifuwa and Gumede, left another R465 000
unaccounted for.
[17] On 11 October 2004, the National Director of Public Prosecutions
sought and obtained an order from the South Gauteng High
Court,
Johannesburg, under s 26 of the Prevention of Organised Crime
Act 121 of 1998 (POCA) against Kgathi, Naidoo, Govender
and their
spouses as respondents. In terms of the order a curator bonis was
appointed to take control of their assets pending a
confiscation
order under the Act. The application relied on a supporting affidavit
by Botha. It referred not only to the casino
robbery, but also to
other cases where the trio of Kgathi, Naidoo and Govender were
allegedly involved in alleged criminal conduct.
Broadly stated, their
alleged modus operandi in all these cases was to target individuals
suspected of theft or robbery. They then
approached these suspects on
the pretext of investigating a crime. In the process they forced the
suspects, usually by means of
torture and assault, to disclose the
whereabouts of the spoils. They then seized the stolen money or goods
but only accounted for
part of it in the police exhibit register. The
rest they retained and appropriated for themselves. As far as the
Monte Casino incident
was concerned, Botha’s statement relied
mainly on the statements of Dube, Gumede and Lifuwa to which I have
referred. In
his statement Botha also pointed out that the lifestyle
and assets of Kgathi, Naidoo and Govender reflected incomes way above
those
earned by them and their spouses.
[18] In his evidence before the court a quo, Botha confirmed the
contents of his affidavit in the POCA application, including the
fact
that Dube made the statement to him which Andrews recorded in
Afrikaans. He also denied Dube’s subsequent handwritten
statement to the SVCU that the crucial part of the earlier statement
did not come from Dube but from him. Botha further testified
that, as
part of his investigations, he obtained the cell phone records, inter
alia of Kgathi and those who could possibly have
been involved in the
Monte Casino robbery. His analysis of these records revealed three
telephone calls made by the suspect Zulu
to Kgathi on 7 September
2004, that is, two days after the robbery, which all lasted longer
than five minutes. These records, however,
revealed no contact
between Kgathi and any other suspect preceding the robbery. Further
evidence of relevance by Botha was that
during his investigations, he
was threatened with assault and even death by members of the SVCU,
including Kgathi, Naidoo and Govender.
[19] Subsequent to the attachment order under POCA, so Botha
testified, Kgathi, Naidoo and Govender were charged with some of the
crimes referred to in his POCA affidavit, including those resulting
from the Monte Casino incident. They were convicted on two
of those
charges and sentenced to 15 years’ imprisonment. On the Monte
Casino charges, they were, however, acquitted. The
reason for the
acquittal was that Dube, who was on bail at the time, absconded
before he could be called as a witness in the criminal
trial. Though
Gumede started to give evidence at that trial, he also disappeared
during an adjournment, before the completion of
his cross-examination
on behalf of the three accused. Because the criminal charges arising
from the Monte Casino incident relied
almost entirely on the
statements by these two witnesses, an acquittal at the end of the
State’s case on these charges, was
a foregone conclusion.
[20] Another witness called on behalf of the appellant at the trial
was an expert, Professor Paul Fatti who is a statistical consultant.
The import of his evidence was that, though Kgathi was a gambler who
visited Monte Casino regularly, it was highly unlikely that
he would
be present at the casino during the exact period of the robbery. As a
statistical probability Fatti expressed the chance
of that happening
as no more than .32 per cent or 3.2 in 1 000. This suggests, so
he testified, that from a statistical point
of view Kgathi’s
presence during that precise period was the result of premeditation
or design rather than a matter of coincidence
or pure chance.
[21] The appellant also called a number of other witnesses. However,
I think it is fair to say that the relevant part of their
testimony
is reflected under the rubric of what was common cause. I conclude my
recordal of the factual background by stating what
is perhaps obvious
but nonetheless fundamental, namely that the appellant closed its
case without calling Dube, Gumede and Lifuwa.
Nonetheless, it was
clear at that stage that the appellant would seek to rely on the
hearsay statements by these three witnesses
to Fedisa. In consequence
the respondent asked the court to rule on the admissibility of these
statements at that stage of the
proceedings. Despite counter
arguments by the appellant that the ruling should stand over until
the end of the case, the court
a quo acceded to the respondent’s
request. It then ruled the hearsay statements inadmissible. Following
upon that ruling,
the respondent closed his case without calling any
witnesses. What then happened is history: the court a quo dismissed
the appellant’s
claims, both in the main and the alternative,
with costs.
Admissibility of hearsay statements
[22] In their heads of argument counsel for the appellant confronted
the issues raised by the exclusion of hearsay statements at
the
outset. In the argument before us, they proposed, however, that we
deal with the merits of the main claim first, without reference
to
the hearsay statements. Since the main claim is not supported by the
contents of the hearsay statements, the approach proposed
by counsel
was not difficult to understand. But I find the proposal untenable.
Simply stated, I think it would be inappropriate
to decide the main
claim without reference to evidence which may prove to be admissible
and which may prove to destroy that claim.
Hence I shall start with
the issues of admissibility.
[23] Under this heading the first question arising results from the
appellant’s objection against the timing of the court
a quo’s
ruling on admissibility. According to this objection, the court
should have considered this ruling only at the end
of the case, after
hearing all the evidence and not as it did at the end of the
appellant’s case. I do not think the answer
to the question
thus raised would make any difference to the outcome of the appeal.
Yet, as a matter of principle, it is not entirely
insignificant. I
shall therefore venture an answer. But in the circumstances, I
propose to do so without unnecessary elaboration.
In criminal
proceedings the issue raised by the appellant’s objection had
been answered. That answer appears from the following
statement by
Cameron JA in
S v Ndhlovu
2002 (2) SACR 325
(SCA) para 18:
‘
. . .
[A]n 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 [s 3 of the
Law of
Evidence Amendment Act 45 of 1988
], 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.’
(See also
S v Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
(CC) para 17.)
[24] The court a quo held that the position should be no different in
civil proceedings. The appellant’s contention was,
however,
that the court had erred. The difference between the two, so the
appellant’s argument went, is that in criminal
proceedings
effect must be given to the constitutional right of an accused person
to a fair trial, in particular, the presumption
of innocence and the
right to challenge evidence (in
s 35(3)(
h
) and 35(3)(
i
)
of the Constitution of the Republic of South Africa, 1996). But as I
see it, the argument loses sight of s 34 of the Constitution
which also entitles both parties to civil proceedings to a fair
public hearing. That right is given effect to, inter alia, by the
Uniform Rules of Court. In terms of rule 39 the defendant is afforded
the right, where the plaintiff bears the onus, to apply for
absolution from the instance at the end of the plaintiff’s case
or to close its own case without leading any evidence if
the
plaintiff has failed to establish a case which requires an answer. As
I see it, it is essential for a proper exercise of these
rights that
the defendant should know whether the court considers the hearsay
evidence relied upon by the plaintiff, admissible
or not. Stated
somewhat differently, in order to decide whether the plaintiff has
made out a case to answer, a defendant is entitled
to know the
constituent elements of that case. It follows that rulings on the
admissibility of hearsay evidence in civil proceedings
should also be
made at the end of the plaintiff’s case.
[25] The appellant’s application for the admission of the
hearsay statements rested on two statutory enactments, to wit Part
VI
(sections 33-38) of the Civil Proceedings Evidence Act 25 of 1965
(the Evidence Act) and s 3 of the Law of Evidence Amendment
Act
45 of 1988 (the Hearsay Act). The court a quo started its enquiry
into the merits of the appellant’s application with
reference
to the detailed provisions of the Evidence Act. It then came to the
conclusion that the hearsay evidence tendered had
failed to clear
several of the hurdles put up by those provisions. I do not find it
necessary to quote the detailed provisions
of the Evidence Act nor to
repeat the analysis by the court a quo as to whether those provisions
had been satisfied on the facts
of this case. This is because I
believe that the admissibility issue can be resolved in terms of
s 3(1) of the Hearsay Act.
Suffice it therefore to say that,
though I am not in agreement with every one of the court a quo’s
findings in applying the
Evidence Act, I tend to agree that the
hearsay statements tendered were not admissible under that Act.
[26] This brings me to what I regard as the crux of the admissibility
issue, which turns on s 3(1) of the Hearsay Act. The
relevant
part of this section provides:
‘
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at 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 interests of
justice.’
[27] Subsections 1(
a
) and 1(
b
) of s 3 clearly have
no bearing on the issues in this matter. The court a quo found that
the hearsay statements were also
inadmissible under s 3(1)(
c
).
In broad outline the court’s reasons for this finding appear to
be threefold:
The introductory phrase ‘[s]ubject to the provisions of any
other law’ in s 3(1) excludes any hearsay evidence
which
is found to be inadmissible under any other law. Since the hearsay
statements under consideration have been found to be
inadmissible
under the Evidence Act, they are likewise excluded by s 3.
No sufficient or reasonable explanation was given why the persons
upon whose credibility the probative value of the evidence
depends,
were not called as witnesses. Hence the court was unable to consider
the factor contemplated by s 3(1)(
c
)(iv).
Since the hearsay statements are inadmissible they can have no
probative value for purposes of the consideration contemplated
under
s 3(
c
)(v). In any event, the statements would have very
little, if any, probative value. This is so, the court held, because
both Dube
and Gumede made a number of conflicting statements in
which they did not implicate the three policemen. The suspicion is
unavoidable,
so the court a quo held, that Dube and Gumede had a
motive to minimise their own involvement in the robbery by
implicating Kgathi
and his two companions.
[28] I consider all these reasons to be flawed. As to the
consideration in (a), the flaw lies, as I see it, in the meaning
which
the court attributed to the phrase ‘[s]ubject to the
provisions of any other law’. According to my understanding,
the
phrase does not mean that a negative ruling on admissibility in
terms of some other law, such as the Evidence Act or the common
law,
also rules out the admission of the evidence under s 3. That,
after all, would leave s 3 with rather limited, if
any, scope
for application where hearsay evidence would be admissible only under
the section when it is already allowed by some
other law. As I see
it, the ‘other laws’ referred to in the phrase are merely
alternative avenues to admissibility
and do not rule out the
reception of the evidence in the interests of justice under s 3(1)(
c
)
(see eg also D T Zeffertt A P Paizes A St Q Skeen,
The South
African Law of Evidence
(2003) at 382). As explained in
S v
Ndhlovu
(supra) para 15, the very purpose for the introduction of
s 3(1)(
c
) was to ‘supersede the excessive rigidity
and inflexibility – and occasional absurdity – of the
common law position’
by creating another avenue for the
admission of hearsay evidence which turns on what the interests of
justice require. Moreover,
I find support for this understanding in
the approach adopted by our courts, at least by implication if not
yet explicitly, that
we are dealing with alternative avenues of
admissibility (see eg
Skilya Property Investments (Pty) Ltd v
Lloyds of London Underwriting Syndicate Nos 960, 48, 1183 and 2183
2002 (3) SA 765
(T) at 800E-G; 804I-J).
[29] As to the consideration in (b) the clear and uncontested
evidence was that both Dube and Gumede had absconded in circumstances
which rendered them fugitives from justice. The police were unable to
locate them, not only as accused persons in their own trial,
but also
as state witnesses in the trial against Kgathi and his two
companions. This was sufficient evidence from which to draw
the
conclusion that it was not reasonably practical to secure the
attendance of these witnesses. I can find no justification for
placing the onus on a private litigant, like the appellant, to secure
the attendance of witnesses in circumstances where the police
had
clearly been unable to do so for purposes of criminal proceedings. As
to Lifuwa, on the other hand, it was conceded on behalf
of the
appellant that there was no information about her whereabouts.
[30] The first of the two considerations in (c) with reference to the
probative value of the hearsay statements, namely that the
statements
had no probative value because they were inadmissible, took the court
on a circuitous route. The real enquiry into the
probative value of
the proposed hearsay evidence must assume that the evidence will be
admitted under the section. If it is not,
the evidence is simply
irrelevant. The enquiry into its probative value does not even arise.
The court a quo’s second consideration
referred to in (c),
which pertains to the conflicting statements by Dube and Gumede is a
valid one. Yet, I do not believe that
these conflicts render their
allegations against Kgathi and the other two policemen without any
probative value at all. On the
contrary, while there are obvious
reasons for their denial of any complicity in the robbery, I can see
no reason why they would
falsely implicate the three policemen. The
court a quo found that their motive could have been to minimise their
own involvement
in the robbery by implicating the two policemen. But
I fail to see the logic in this line of reasoning. It begs the
rhetorical
question as to how the two admitted robbers could minimise
their role in the robbery by alleging that the police had taken away
the spoils.
[31] This leads me to the unavoidable conclusion that the court a quo
failed to exercise the discretion bestowed upon it by s 3(1)(
c
)
properly, if at all. The section requires that the court should have
regard to the collective and interrelated effect of all the
considerations in paras (i) – (iv) of the section and any other
factor that should, in the opinion of the court, be taken
into
account. The section thus introduces a high degree of flexibility to
the admission of hearsay evidence with the ultimate goal
of doing
what the interests of justice require.
[32] I find it unnecessary to test the facts of this case against
each one of the six named factors individually. I think it is
safe to
say that none of them specifically militate against the admissibility
of the hearsay statements concerned. The nature of
the evidence
consists of statements under oath; the purpose for which it is
tendered is to prove the appellant’s case, there
is no hidden
agenda; the reason why the makers of the statements were not called
is because they could not be found; and so forth.
The only real
consideration offending against the introduction of these statements,
as I see it, is the prejudice that the respondent
will suffer. By
that I do not mean, of course, that the contents of the statements
will advance the appellant’s case and
at the same time be
detrimental to the respondent’s case. Interests of justice
require the right answer. It does not matter
in whose favour the
right answer might be. The respondent’s prejudice lies in the
fact that he will be deprived of the opportunity
to test this
evidence through cross-examination, which is undoubtedly a real
disadvantage. On the other hand, that disadvantage
can to some extent
be reduced by calling Kgathi and the other two policemen involved to
give evidence. Moreover, the respondent’s
disadvantage must be
weighed against the prejudice that the appellant will suffer if the
evidence is disallowed.
[33] In evaluating the appellant’s prejudice I find a number of
indicators in the evidence placed before the court a quo
that the
contents of these statements may well be true. I shall name but a
few.
(a) All three policemen lived way beyond their means.
(b) These three policemen and other members of their unit were
prepared to threaten Botha, who is a very senior police officer,
with
harm and even with death for continuing with his investigation.
(c) According to Botha’s testimony, recoveries of money by
Kgathi and his two companions were not dealt with in compliance
with
police procedure.
(d) I see no real benefit for Dube and Gumede in antagonising these
three policemen, who were known not to be averse to violence,
through
false accusations. Botha promised Dube and Gumede no benefits. It is
true that he undertook not to use Dube’s statement
against him.
But that, as I see it, would hold no greater benefit for Dube than to
say nothing at all.
(e) Members of the SVCU unit saw fit to take a subsequent statement
from Dube which essentially accused a senior policeman of obstructing
the ends of justice and which bears the clear hallmark of being
contrived.
(f) The respondent’s own department found the statements which
the appellant seek to introduce against them of sufficient
weight and
probity to form the basis of an application under POCA and of
criminal charges against the three policemen.
[34] In performing the balancing act between the conflicting
interests of the parties, I conclude that the hearsay statements by
Dube and Gumede should have been admitted. I do not think the same
can be said of Lifuwa. The appellant tendered no explanation
why she
was not called as a witness. In the circumstances I can see no cogent
reason why the respondent should suffer the prejudice
of not being
able to test her evidence in cross-examination if she was readily
available as a witness.
The main claim
[35] This brings me to the next enquiry. It pertains to the impact of
the admission of the hearsay statements by Dube and Gumede
on the
substance of the appellant’s claims. In this regard the
appellant’s primary contention was that, even without
reference
to the hearsay statements, its main claim should succeed. As I have
already pointed out, however, that is the wrong question.
The right
question is whether in the light of all the evidence, including the
hearsay evidence which has now been found admissible,
the appellant
had succeeded in proving its main claim on a balance of
probabilities. The appellant’s counsel submitted that
he did.
In support of this contention they relied on a number of factors
which, in the submission of counsel, indicated that even
if Kgathi
did not partake in the robbery, he at least knew beforehand that it
was going to occur. These factors, according to counsel,
included the
following:
(a) Kgathi’s presence at the precise time of the robbery;
(b) The statistical evidence of Prof Fatti that the chances of Kgathi
being present during the precise period of the robbery, was
no more
than 3.2 in 1 000;
(c) The recoveries of money were not recorded in the register
according to police procedure;
(d) Botha gave evidence of a scheme or modus operandi which fitted in
with Kgathi’s involvement in the robbery;
(e) Botha was threatened by Kgathi and his companions; and
(f) Kgathi’s lifestyle exceeded the joint income of him and his
wife.
[36] It should, however, be apparent by now that the factors referred
to in (c) to (f) are more consistent with the appellant’s
alternative claim – that Kgathi and others stole part of the
money they recovered from the robbers – than his main
claim –
that Kgathi was involved in the robbery. Hence only the factors in
(a) and (b) can be looked upon as pointers to
the main claim. I do
not believe, however, that standing on their own these two
considerations, which are entirely reliant on a
statistical model,
can sustain any case on their own. Of great importance to the
statistical model is that Kgathi was there during
exactly the same
period as the robbers. But assuming that Kgathi was party to the
robbery, such exact timing would appear to be
of no consequence
unless Kgathi actually took part in the robbery itself which,
according to the video cameras in the casino, he
did not. As a fact
these cameras showed that during that period, Kgathi was playing the
slot machines in another part of the building.
[37] Moreover, there are two considerations emanating from the
hearsay statements which seem to militate against the appellant’s
main claim. First, it is unlikely that Kgathi would partake in an
assault upon his accomplices in the robbery and thereby run the
risk
that they may disclose his involvement. Second, I can think of no
reason why Dube and Gumede would decide to implicate Kgathi
but at
the same time continue to conceal his involvement, particularly after
he had tortured them and taken away their share of
the loot. The
answer given by the appellant’s counsel to these difficulties
was that Dube and Gumede could have been unaware
of Kgathi’s
involvement. That, however, seems to take us even deeper into the
realm of pure speculation which is entirely
devoid of any factual
foundation. It follows that, in my view, the appellant’s main
claim was rightly dismissed by the court
a quo.
The alternative claim
[38] Quite the opposite holds true of the appellant’s
alternative claim which is directly supported by the allegations
contained
in the hearsay statements. Yet it appears to me that the
respondent may have some evidence to rebut the statements which he
decided
not to adduce when the hearsay statements were excluded by
the court a quo. Since that possibility cannot be excluded, it seems
fair to adopt the procedure followed in
Mdani v Allianz Insurance
Ltd
[1990] ZASCA 119
;
1991 (1) SA 184
(A) at 190B-E by referring the matter back to
the court a quo. That will allow the respondent the opportunity to
apply for leave
to reopen his case.
[39] To complete the picture I may add that if the appellant should
succeed in establishing the allegations it relies upon for
its
alternative claim, namely that Kgathi and the two other policemen had
failed to account for the money they recovered from the
robbers,
vicarious liability on the part of the respondent should raise no
difficulty. It would mean that the policemen were doing
what they
were employed to do, that is to investigate the robbery and to
recover the money, but that they were doing so in a dishonest
way.
This would put the case on the same side of the dividing line as, for
instance,
Minister van Veiligheid en Sekuriteit v Japmoco BK h/a
Status Motors
2002 (5) SA 649
(SCA) para 16 – where the
Minister was held vicariously liable – rather than, for
example, on the side of
Minister van Veiligheid en Sekuriteit v
Phoebus Apollo Aviation Bk
2002 (5) SA 475
(SCA) para 15, where
he was not.
[40] For these reasons:
(1) The appeal is upheld (save to the extent set out in (2)) with
costs, including the costs of two counsel.
(2) The dismissal of the appellant’s main claim for payment of
the sum of R23 914 610 is confirmed.
(3) The dismissal of the appellant’s alternative claim for
payment of the sums of R3 million and R1.2 million, is set aside
together with the trial court’s costs order in favour of the
respondent.
(4) The six statements by Mr Solomon Dube and the five statements by
Mr Richard Gumede included in the record of the proceedings,
are
admitted in evidence under s 3(1)(
c
) of the Law of
Evidence Amendment Act 45 of 1988.
(5) The matters referred to in (3) above are remitted to the trial
court for reconsideration after the respondent has been given
the
opportunity to apply for the reopening of his case.
______________
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
APPELLANTS: A O Cook SC
A D Stein
Instructed by Norton Rose South Africa, Sandton
Webbers, Bloemfontein
RESPONDENTS: B Roux SC
M W Dlamini
Instructed by The State Attorney, Johannesburg
The State Attorney, Bloemfontein