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[2022] ZANCHC 66
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Liberty Group Ltd v Cornelius N.O and Another (1989/2020) [2022] ZANCHC 66 (28 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 1989/2020
Heard:
19 – 20 June 2022
Heads
of argument submitted: 03 August 2022
Judgment
delivered: 28 October 2022
Reportable:
NO
Circulate
to Judges: NO
Circulate
to Regional Magistrates: NO
Circulate
to Magistrates: NO
In
the matter between:-
LIBERTY
GROUP LTD
PLAINTIFF
and
JUAN
CHRISTIAAN JOHANNES CORNELIUS N.O. FIRST
DEFENDANT
STEPHANUS
JOHANNES BECKER N.O.
SECOND
DEFENDANT
JUDGMENT
Stanton
AJ
INTRODUCTION
:-
[1]
In this tragic matter, a motor vehicle accident on 7 January 2018
resulted in the
death of Mr PA Becker and Mrs DJ Becker.
[2]
Prior to Mr PA Becker’s death, the plaintiff had issued a life
insurance policy
to him in terms of which Mr PA Becker was the life
insured and Mrs DJ Becker was his nominated beneficiary.
[3]
The plaintiff made payment of the benefit under the policy to the
first defendant,
the executor in the estate of the late Mrs DJ
Becker, in the
bona fide
and reasonable belief that the
payment was due to the first defendant. Subsequent to the
payment, it came to the plaintiff’s
attention that Mrs DJ
Becker was certified as dead at 00h15 on 8 January 2018 and Mr PA
Becker was certified as dead at 03h10 on
8 January 2018.
[4]
The plaintiff’s cause of action in terms of which it now claims
repayment of
the amount of R1,379,515.72, is the
condictio
indebiti.
[5]
The only issue placed in dispute on the pleadings is whether Mrs DJ
Becker pre-deceased
Mr PA Becker. According to the first
defendant’s plea, Mr PA Becker pre-deceased Mrs DJ Becker.
[6]
The question that requires adjudication by this Court is the time of
death of each
deceased relative to one another.
[7]
The Supreme Court of Appeal in the matter of
PPS
Insurance Co Ltd And Others v Mkhabela,
[1]
confirmed the principles pertaining to the acquisition of rights to
the proceeds of an insurance policy as follows:-
"It is well
established that a nominated beneficiary does not acquire any right
to the proceeds of a policy during the lifetime
of the policy owner.
It is only on the policy owner's death that the nominated
beneficiary is entitled to accept the benefit
and the insurer is
obligated to pay the proceeds of the policy to the beneficiary.
Until the death of the policy owner, the
nominated beneficiary
only has a spes (an expectation) of claiming the benefit of the
policy - the nominated beneficiary has no
vested right to the
benefit.
It
follows that, if the nominated beneficiary predeceased the policy
owner, she would have had no right to any benefit of the policy
at
the time of her death. Put simply, when the nominated
beneficiary dies, the spes evaporates. It falls away. The
fact
that a nominated beneficiary accepts the nomination cannot change
this.
Likewise,
where, as here, the insured expressly reserves the right to change or
cancel the nomination, the nominated beneficiary
has no claim to the
benefit of the policy until the insured's death. For if the
insured subsequently chooses another beneficiary
thereby revoking the
first, the first nominee's acceptance becomes nugatory. And,
where the insured does not revoke the nomination
of the nominated
beneficiary, as in this case, the beneficiary is in exactly the same
position as if there were no revocation clause.
In other words,
until the death of the insured the nominated beneficiary has no right
to claim any benefit of the policy.
This means that, because Ms
Mkhabela died before her daughter, her spes logically expired at the
same time. There was
thus no enforceable right that was
transmissible to the Mkhabela estate. The benefit remained with
the insured, Ms Sebata,
until her death approximately two months
later, when it fell into her estate.
”
[8]
Where several people die in the same disaster (“
commorientes
”)
it may be of importance to establish who died first in order to
determine whether one inherited from the other, because
a person can
only inherit from another if he or she is alive at the other's death.
[9]
Accordingly, if Mr PA Becker pre-deceased Mrs DJ Becker, the benefit
will be payable
to the first defendant. If Mrs Becker did not
survive him, or if they died simultaneously, the benefit will be
payable to
estate late PA Becker.
[10]
In the matter of
Nepgen,
N.O. v Van Dyk, N.O.
[2]
(“
Nepgen
”),
the Court, after confirming that no presumption of simultaneous death
exists in South African law, held that the following
approach is to
be followed when a determination is to be made about the sequence of
death:-
"Well,
we have to decide the matter in the ordinary way: we have to decide
where the balance of probabilities lies, and here
we must remember
that we are not entitled to decide the matter on mere conjecture or
even on faint probability. There must
be a preponderance of
reasonable probabilities, not conjecture or surmise."
THE
EVIDENCE:-
[11]
Sergeant Lindeni Daniel Ndwenkuku, a detective in the employment of
the South African Police
Service and Mr Daniel Tilley, an emergency
care practitioner employed by the Department of Health, Emergency
Medical Services,
Western Cape, testified on behalf of the plaintiff.
Warrant Officer Wagenaar, a police officer in the employment of
the South
African Police Service, was subpoenaed by the first
defendant to testify.
[12]
Sergeant Ndwenkuku testified that when he arrived on the scene at
approximately 00h15 on 08 January
2018, Ms DJ Becker had already been
declared dead and Mr PA Becker was being removed from the motor
vehicle. He confirmed
that Mr PA Becker was declared dead at
03h10 due to the fact that it took longer to remove Mr PA Becker’s
body from the motor
vehicle. His evidence was that the time of
certification of death does not equate to the time of death, as
certification
is only done on extraction of a deceased body from a
motor vehicle.
[13]
Mr Tilley testified that he arrived at the scene of the accident
approximately five minutes after
he received the call to attend to
the scene and that he was the first paramedic to arrive on the scene.
He observed that
the driver's side of the vehicle in which the
Beckers were travelling was lodged under the truck with which it had
collided and
that rubble or stones had fallen onto the driver’s
side. His assessment at the scene was that both Mr PA and Mrs
DJ
Becker were already deceased upon his arrival.
[14]
Under cross-examination, Mr Tilley confirmed that he would not be
able to dispute Warrant Officer
Wagenaar's version that she and her
partner were the first responders at the scene, as he was not there
at the time that she was.
He also confirmed that he would not
be able to dispute Warrant Officer Wagenaar’s statement that
she felt Mrs DJ Becker’s
pulse and that Mrs DJ Becker made
gargling sounds. When it was put to him that Mrs DJ Becker, who was
seated in the back middle
of the motor vehicle, would not have been
exposed to the same force as Mr PA Becker was exposed to, Mr Tilley's
response was that
she would not have experienced the same blunt
trauma as Mr PA Becker, but that she would have had the same force of
inertia.
He conceded that the most damage to the vehicle was
where Mr PA Becker was seated. When confronted with a statement
that
Mr PA
Becker would have died immediately but Mrs DJ Becker could still have
been alive, Mr Tilley stated that he is of the opinion
that Mr PA
Becker would have died immediately. He did not express an
opinion on whether Ms DJ Becker would probably still
have been
alive.
[15]
Warrant Officer Wagenaar’s pertinent evidence in her
examination in chief, which was confirmed
to a great extent during
cross-examination, was that:-
15.1
On her arrival at the scene at 00h20 she witnessed a motor vehicle
that had collided with a truck and that the biggest
impact was on the
driver’s side of the vehicle;
15.2
She could only see the upper side of Mr PA Becker’s head and he
never showed any reaction, he made no movement
or noise;
15.3
Mrs DJ Becker was making soft snoring noises;
15.4
She felt a pulse when she touched Mrs DJ Becker’s left arm;
15.5
When she attempted to feel the pulse again, there was none;
15.6
Certification of death only takes place once a person has been
extracted from a vehicle;
15.7
It took approximately two hours to extract Mr PA Becker from the
motor vehicle;
15.8
She spoke to the minor’s parents to ascertain whether they have
a medical aid, whereafter she accompanied the minor
to the hospital;
15.9
She opened the docket early in the morning;
15.10
She did not specify in her written statement that Mr PA Becker
was
already deceased on her arrival or that Mrs DJ Becker was still alive
on her arrival as she deemed it unnecessary for purposes
of opening
the docket. According to her, all that was required for the
opening of the docket, was that both Mr PA Becker
and Mrs DJ Becker
were deceased;
15.11
She read Mrs SC La Grange, Mrs DJ Becker’s mother’s
statement into the record. According to paragraph 4 of Mrs SC
La Grange’s statement “
The two police members who
arrived first on the scene, felt the pulse of my daughter, the
deceased, and informed me that she is
still alive.”
Paragraph
5 of Mrs SC La Grange’s statement reads“…
they
removed me from the car and later my grandchild (Elandie Cornelius).
After her, they went to assist my daughter, who
still had a
weak pulse. Minutes later the paramedics declared her deceased.”
[16]
Under cross-examination, Warrant Officer Wagenaar conceded that she
had recorded the time of
the accident incorrectly on the accident
report and that she did not mention the fact that she felt Mrs DJ
Becker’s pulse
or that she had heard her make a sound. She,
however, adamantly stated that she did feel Mrs DJ Becker’s
pulse, despite
the fact that she did not include this aspect in her
written statement.
[17]
When questioned on why Warrant Officer Wagenaar refused to speak to
the plaintiff, but continued
speaking to the first defendant's legal
team, she said that after receiving numerous telephone calls from the
respective legal
representatives of the parties, she obtained advice
from the South African Police Service’s legal department and
informed
the legal representatives that she would only testify if
subpoenaed to do so.
[18]
At the end of the second day of the trial, the first defendant
brought an application in terms
of the provisions of section 3(1)(c)
of the Law of Evidence Amendment Act, Act 45 of 1988 (“Law of
Evidence Amendment Act”),
for the admission of a statement
given under oath by Ms SC La Grange, dated 21 March 2018. Mrs
SC La Grange passed away on
09 August 2018.
[19]
Section 3(1)(c) of the Law of Evidence Amendment Act, provides that:-
“
Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless
(a)
...
(b)
...
(c)
the court, having regard to –
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the
probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail;
and
(vii)
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."
[20]
Section 3(1)(c) of the Law of Evidence Amendment Act 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 introduces a high degree of
flexibility to the admission
of hearsay evidence with the ultimate
goal of doing what the interests of justice require.
[3]
[21]
Zeffert and Paizes,
[4]
with
regard to the evaluation of the factors set out in section 3(c), warn
that:-
"Since
the person upon whose credibility the probative value of the evidence
depends is, in the case of hearsay evidence, not
subjected to the
curial devices designed to identify, assess and eliminate those
aspect of the evidence that render it potentially
unreliable, it is
important for a court to (a) understand what the potential dangers
are; (b) consider the extent to which those
dangers actually arise in
the case before it; and (c) identify factors that tend to reduce or
even eliminate those dangers. Only
then will a court be in a
position to determine the extent of the prejudice caused to an
adversary by the denial to that party
of the benefit. The
dangers to which a court must be alert are (a) insincerity on the
part of the absent declarant or actor;
(b) erroneous memory (c)
defective perception; and (d) inadequate narrative capacity."
[22]
In
S
v Ramavhale
,
[5]
the
Court held that a Judge should “
hesitate
long in admitting or relying on hearsay evidence which plays a
decisive or even significant part in convicting an accused,
unless
there are compelling justifications for doing so"
[23]
According to the plaintiff, Mrs SC La Grange’s statement
should, in the interest of justice,
not be admitted for the following
reasons:-
23.1
The statement was given approximately seven weeks after the accident,
which has an impact on the reliability of the evidence;
23.2
The collision was a tragic event for Ms SC La Grange and as such her
recollection of the accident would have been impaired;
23.3
The statement was given at a time when the family was already
embroiled in a dispute as to which estate is entitled to
the payment
of the benefit, and could possibly not be truthful as Mrs SC La
Grange would have wished that her grandchildren (Mrs
DJ Becker’s
children) benefit from the payment;
23.4
The statement constitutes "
double hearsay
" as Mrs SC
La Grange relays what she was told by the unnamed police officers on
the scene; and
23.5
The plaintiff’s inability to cross-examine Mrs SC La Grange is
prejudicial and affects the probative value of the
evidence.
[24]
I agree with Mr Ismail’s submission that the evidence is not
tendered for a direct purpose
to establish that Mrs SC La Grange had
observed that Mrs DJ Becker was alive after the impact, but rather to
confirm Warrant Officer
Wagenaar‘s evidence.
[25]
Subparagraph 3(1)(c)(vi) requires a consideration of the prejudice to
the plaintiff, which the
admission of the hearsay evidence might
entail. If the evidence is tendered to establish that Mrs CJ
Becker was alive after
the impact, this is a fundamental issue. The
plaintiff’s inability to cross-examine Mrs SC La Grange is
highly prejudicial.
Cross-examination, rather than Mrs SC La
Grange's version of events, would have been the only effective tool
to ascertain
the truth.
[26]
In my view there is little doubt that the plaintiff would be
prejudiced if Mrs SC La Grange’s
written statement is admitted
into evidence. In weighing up all the relevant features
referred to in section 3(1)(c) of the
Act, I can come to no other
conclusion than to find that Mrs SC La
s
Grange’s
statement constitutes hearsay evidence and should therefore not be
admitted into evidence.
[27]
The plaintiff requested me to admit into evidence by way of affidavit
the post-mortem examinations
of the bodies of Mr PA Becker and Mrs DJ
Becker for the purpose of establishing that the injuries suffered by
Mrs CJ Becker were
comparable to, if not worse than, the injuries
suffered by Mr PA Becker.
[28]
In support of its request, the plaintiff relied on section 22 of the
Civil Proceedings Evidence
Act, Act 25 of 1965 (“the CPEA”)
that provides:-
"(1)
Whenever any fact ascertained b
y
any
examination or proce
s
s
requiring any skill in bacteriology, biology, chemistry, physics,
astronomy, anatomy or pathology is or may become relevant to
the
issue in any civil proceedings, a document purporting to be an
affidavit made by a person who in that affidavit alleges that
he is
in the service of the Republic or of a province or in the service of
or attached to the South African Institute for Medical
Research or
any university in the Republic or any other institution designated by
the Minister for the purposes of this section
by notice in the
Gazette, and that he has ascertained such fact by means of such
examination or process, shall, subject to the
provisions of
subsections (
2
)
and (3), on its mer
e
production
by any party in such proceedings be admissible in evidence to prove
that fact.
(2)
No such affidavit shall be so admissible unless a copy thereof has
been delivered by the party desiring
to avail himself thereof to
ever
y
other
party to the proceedings at least seven days before the date of
production thereof
.
(3)
The person presiding at such proceedings may, upon the application of
any party thereto, order that
the person who made such affidavit be
called to give oral evidence in the proceedings or that written
interrogatories be submitted
to him, and any such interrogatories and
any reply thereto purporting to be a reply from such person, given on
affidavit, shall
likewi
s
e
be admissible in evidence in such proceeding."
[29]
The first defendant opposed the application on various grounds,
namely that the pathologist is
not a public officer, that the
documents are not public documents and that it contains hearsay
evidence.
[30]
Mr J Swanepoel, counsel for the first defendant, relied on the
judgment of
Northern
Mounted Rifles v O’Callaghan,
[6]
where the Court pronounced that:
“
I
understand a public document there to mean a document that is made
for the purpose of the public making use of it and being able
to
refer to it. It is meant to be where there is a judicial, or
quasi-judicial, duty to inquire, as might be said to be the
case with
the bishop acting under the writs issued by the Crown. That may
be said to be quasi-judicial. He is acting
for the public when
that is done; but I think the very object of it must be that it
should be made for the purpose of being kept
public, so that the
persons concerned in it may have access to it afterwards."
Those, then, are the characteristics
of a public document,
according to Lord BLACKBURN. It must be made by a public
officer in the execution of a public duty,
it must be intended for
public use, and the public must have a right of, access to it. Nor,
I think, does the last characteristic
cease to be a true one, because
it is subject to certain exceptions. There are, of course,
cases where, for reasons of State,
documents which undoubtedly in
their nature are public documents are privileged from production.
But that is an exception,
and it does not affect, the
correctness of the definition of "public document" to which
I have referred.”
[31]
According to the first defendant, a pathologist is not a public
officer as the contents of a
post-mortem report is not in the public
interest and it is not intended for public use.
[32]
Mr J Swanepoel argued that a post-mortem report contains information
of an intensely private
nature, and if it be regarded as a public
document, any person would be of right to ask for the document, which
would infringe
on a person's constitutional right to privacy as
encompassed in section 14 of the Constitution. In support of
his argument,
he referred me to Regulation
s
14(1) promulgated in terms of the National Health Act, Act 61 of
2003
[7]
regarding the rendering
of forensic pathological services, which reads:
“
The
person in charge of a designated facility must set up control
measures in order to ensure that only authorised persons hav
e
access
t
o
records relating to post mortem examinations and to the storage
facility in which records are kept."
[33]
Furthermore, Regulation 14(2)(m) provides that unauthorised persons
who access any type of information
about the death investigative
process shall be guilty of an offence.
[34]
I am not persuaded that a post mortem report has the characteristics
of a public document. The
two post-mortem reports were, on the
mere production thereof, accordingly not admitted into evidence.
EVALUATION
OF THE EVIDENCE:-
[35]
It is trite that the plaintiff bears the overall onus to prove its
case, on a balance of probabilities.
[8]
[36]
This matter stands to be adjudicated according to Warrant Officer
Wagenaar’s direct evidence.
[37]
Mr Ismail submitted that Warrant Officer Wagenaar’s evidence
was unsatisfactory as she
could not explain why she noted less
important facts, yet failed to record crucial ones. Mr Ismail
contended that Warrant
Officer Wagenaar was in all probability
mistaken regarding the crucial facts pertaining to the pulse she felt
and the noises made
by Mrs DJ Becker; and that her evidence was
tainted by “
the family war",
pressure and
"bullying".
Mr Ismail contended that I should regard her evidence as
unreliable in view of the fact that the time of the accident was
incorrectly captured on the accident report.
[38]
In dealing with instances where a single witness testifies directly
about a particular fact,
I am guided by the following remarks by the
Appellate Division’s remarks in
S
v Sauls
[9]
:-
“…
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of RUMPFF JA in
S v W
ebber
1971 (3)
SA
754
(
A
)
at 758). The trial Judge will weigh his evidence, will consider
its merits and demerits and, having done so, will decide
whether it
is trustworthy and whether, despite the fact that there are
shortcomings or defects or contradictions in the testimony,
he is
satisfied that the truth has been told."
[39]
I was favourably impressed by Warrant Officer Wagenaar, who presented
her version in a forthright
manner without deviating from the essence
thereof, notwithstanding thorough cross-examination. It was
noticeable that she
did not endeavour to pad her version and that she
correctly made relevant concessions with regard to the contents of
her written
statement. Her explanation for not including
crucial facts was satisfactory. In my view, Warrant Officer’s
evidence
was consistent, credible and reliable.
CONCLUSION:-
[40]
On a proper evaluation of the evidence, I can come to no other
conclusion than to find that the
deaths were not simultaneous, but
that Mr PA Becker pre-deceased Mrs DJ Becker. Mrs DJ Becker
accordingly had an enforceable
right that was transmissible to her
estate.
ORDER:
In
the result the following order is made:-
The
plaintiff’s claim is dismissed, with costs.
STANTON,
A
ACTING
JUDGE
On
behalf of plaintiff:
Adv. R Ismail (o.i.o Van de Wall Incorporated)
On
behalf of defendant:
Adv.
J Swanepoel (o.i.o Haarhoffs Incorporated.)
[1]
2012 (3) SA 292
(SCA) paragraphs 7 and 8.
[2]
1940 E.D.L., 123
at page 130. Confirmed in Ex Parte Graham
[1963] 4
All SA 45
(D) at page 47.
Also
see
Greyling
NO v Greyling NO en Andere
[1978]
2 All SA 35
(T) at page 40.
[3]
Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of
Safety and Security
2012 (2) All SA 56
(SCA) para 31.
[4]
The
South African Law of Evidence, Second Edition, page 401.
[5]
1996 (1) SACR 539
(at 649 d).
[6]
1909 TS 174
at 177. See also S v Karge & Another
1971 (3) SA 470
(T) and
Tselentis
Mining (Pty) Limited and Another v Mdlalose and Others
1998
(1) BCLR 104
(N)
at page 114.
[7]
Government Notice 359, published in Government Gazette dated 23
March 2018.
[8]
Govan
v
Skidmore
[1952] 1 All SA 54
(N) page 57.
[9]
S
v Sauls
[1981]
4 All SA 182
(AD)
page 186. See also
Doorewaard
and another v S
[2020] JOL 49054
(SCA) at paragraph [22].