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[2018] ZAKZPHC 65
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Nahour and Another v Minister of Justice and Constitutional Development (6057/2007) [2018] ZAKZPHC 65 (3 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
CASE NO: 6057/2007
In
the matter between:
VISHNU
NAHOUR FIRST
PLAINTIFF
NEVILLE
MICHAEL
CHARLES SECOND
PLAINTIFF
and
THE MINISTER OF
JUSTICE &
CONSTITUTIONAL
DEVELOPMENT DEFENDANT
ORDER
On
the question of liability of the State to compensate the plaintiffs
for damages arising from their convictions and imprisonment,
I find
against the plaintiffs with costs, including the costs of two counsel
and the costs reserved in the exception.
JUDGMENT
D.
Pillay J:
[1]
The plaintiffs, Vishnu Nahour and Neville
Michael Charles, claimed compensation for damages after the Supreme
Court of Appeal (SCA)
found them not guilty and discharged them from
prosecution. Events leading to this result occurred 25 years ago. The
plaintiffs,
together with three other men, were arrested on 13
February 1993. They were charged with kidnapping and rape and
released on bail
of R200 each on 14 February 1993. Their trial in the
Durban Regional Court commenced on 24 May 1993. They denied the
charges, pleading
instead that they had had consensual sexual
intercourse, which they had procured from the complainant who was a
prostitute. On
8 April 1994 Mr T V Levitt convicted them as charged.
On 6 June 1994 he sentenced them to one year’s imprisonment for
kidnapping
to run concurrently with the sentence in the second count
of rape for which he imposed five years’ imprisonment, half of
which was suspended conditionally for five years. They appealed
against both their convictions and sentence to this division.
[2]
On 19 March 1998 the full bench of this
division (Booysen and Mthiyani JJ) dismissed their appeal, confirmed
the convictions and
increased the sentence on the rape count so that
no portion of the sentence was suspended. On 7 May 1998 the
plaintiffs applied
for leave to appeal to the SCA.
[3]
On 29 June 2001 Hurt J with Moolla AJ
concurring, granted leave to appeal to the SCA in the matter of
Myendra Naidoo, one of the
plaintiffs’ co-accused in the
regional court. The court hearing the appeal in
Myendra
Naidoo v S
Case No 504/2002 dated 13
May 2003 (unreported) (Heher AJA, Zulman JA and Mlambo AJA
concurring) (the SCA judgment) determined that
the failure by the
prosecutor to disclose to the defence the existence of statements
from the complainant and the investigating
officer that the
complainant was a
‘
practising
prostitute’, which
was at variance
with her evidence in the trial, was an irregularity. The SCA found
that the prosecutor’s withholding of these
discrepancies from
the defence was a gross breach because:
‘
cross-examination
of the complainant by an attorney so armed could,
to
put it no higher
have resulted in an adverse effect on the assessment of
her
credibility and reliability by the trial court.’
[1]
(my
emphasis)
It
found that the irregularity affected the evidence and the credibility
findings that resulted in proving the guilt of the plaintiffs
beyond
reasonable doubt. In its discretion, the court opined that leaving
out the evidence of the complainant, substantially a
single witness,
‘effectually cuts the feet from under the State case’.
[4]
However, the court considered the
alternative relief of remitting the case to trial for hearing the
evidence of the investigating
officer and further cross-examination
of the complainant because there was:
‘
some
independent support for her version in that she was heard crying for
help just before she ran from the park and that she fled
stark naked,
those facts are equally consistent with consent but a subsequent
change of mind. But whether the change occurred before
or after
consensual intercourse with the accused (or some of them) remains
speculation.’
[2]
[5]
Ms
Watt
,
whose name appeared on the police docket as the public prosecutor
overseeing though not appearing in the trial, represented the
State
in the SCA. She conceded the irregularity but
‘
expressly
disavowed any recourse to the remittal of the case’.
[3]
In
these circumstances the SCA had little option but to dispose of the
appeal on its merits on the evidence before it. After excluding
the
complainant’s testimony, the SCA could not find from the
remaining evidence and credibility findings that the prosecution
had
proved its case beyond reasonable doubt.
[4]
[6]
On
13 May 2003 the SCA set aside the convictions and sentence of the
regional court, and entered a verdict of ‘not guilty
and
discharged’ in the appeal of Mayendra Naidoo.
[5]
It also requested the Director of Public Prosecutions to bring the
contents of its judgment to the attention of the plaintiffs
to enable
them to seek legal advice as they deemed fit. On 15 December 2003 the
full bench (Booysen and Levinsohn JJ) granted the
plaintiffs leave to
appeal to the SCA. On 21 September 2004 the SCA (Heher JA and Erasmus
and Patel AJJA) without hearing the parties
simply issued an order
setting aside the convictions and sentence imposed by the magistrate
and replaced the verdict with ‘not
guilty and discharged’.
[7]
In this action the plaintiffs sued the
Minister of Justice and Constitutional Development for damages
arising from their alleged
wrongful convictions and imprisonment.
Their claims arise from their imprisonment from 19 March 1998 until
23 November 2001 in
the case of the first plaintiff, and 28 September
2002 in the case of the second plaintiff; their stringent bail
conditions restricting
their rights and freedoms pending their
appeals; their loss of earnings arising from their incarceration;
their loss of amenities
of life; their loss of freedom of movement;
the loss of opportunities to interact with family and friends and,
the depression from
which they continue to suffer. Both plaintiffs
claimed R1 million in general damages and R88 000 in the case of the
first plaintiff
and R129 000 in the case of the second plaintiff for
past loss of earnings.
[8]
The defendant raised a special plea in
terms of
s 11
of the
Prescription Act 68 of 1969
on the basis that
the plaintiffs relied on conduct that occurred during 1994 and that
summons was only served on the defendant
on 21 August 2007. For the
rest, the defendant’s plea was, unhelpfully, a bare denial.
[9]
The plaintiffs excepted to the defendant’s
special plea on the ground that it failed to set out a defence in
law. The special
plea was heard on 21 April 2009. On 23 August 2011
the court (Van Zyl J) opined that the final decision on the special
plea would
only be taken at the trial after evidence was heard to
clarify certain outstanding issues. He dismissed the exception and
reserved
costs for determination by this court.
[10]
In this court, plaintiffs’ counsel
opened with a request that the matter stand down until the following
morning to enable
the defendant’s counsel to take instructions
that might shorten the proceedings. I refused the adjournment. As the
matter
had been set down for trial to commence that day the litigants
were expected to be prepared. The incident had occurred 25 years
earlier. The cause of this action arose in September 2004. Summons
had been issued on 24 July 2007. Pleadings had closed by April
2008.
If after such a lengthy passage of time and three pre-trial
conferences the parties were unable to be trial ready, then standing
down for 24 hours was unlikely to serve any useful purpose.
[11]
Disquietingly, counsel for the defendant
was apologetic throughout the proceedings as he had only recently
been briefed; the State
attorneys’ files had gone missing and
the matter had over the years passed through many hands in that
office.
Effectively, the State was on the
back foot. None of this information inspired any confidence that the
trial would be conducted
efficiently. Considering plaintiffs’
counsel’s enthusiasm for delaying the proceedings by a day, I
could not exclude
the possibility that ‘stand down until
tomorrow to take instructions’ was a proxy for capitulation by
the State at
the expense of the public purse. Consequently, I
directed that the trial should commence without further delay.
[12]
This
ruling was not made lightly. Litigation is the process in which
opposing litigants adduce evidence and argument before an independent
and impartial judge whose responsibility is to deliver a reasoned
judgment. When any side fails to participate competently, litigation
as an institution is at risk.
[6]
Litigation under such conditions jeopardises the proper development
of jurisprudence. Ill-considered settlements conceded in haste
strain
the public purse. Adjudicating in these circumstances is also unduly
burdensome on the court. Managing the tension between
executing its
broad constitutional obligation to take account of the interests of
justice
[7]
on the one hand and
deference to the separation of powers principle on the other hand, is
a struggle. The court cannot make up
for deficits in a litigant’s
capabilities without jeopardising its own adjudicative function. In
this case the State made
little effort to reconstruct its files.
Relevant documents had not been discovered and could therefore not be
used in cross-examination.
With little help from the State the court
had to navigate through the lengthy record and legal materials in
search of a just outcome.
This is both a description of the
conditions under which this judgment evolved and an explanation for
any shortcomings in it.
[13]
The defendant abandoned its special plea of
prescription and the trial proceeded on the issue of liability only.
The plaintiffs
testified briefly. The defendant closed its case
without calling witnesses.
[14]
The
plaintiffs’ claims rested not merely on the irregularity
perpetrated by the prosecutrix, which would have been simply
procedural if it did not result in substantive unfairness.
Significantly, their case was also not that they should never have
been prosecuted. Nor was it that they were wrongly prosecuted for
kidnapping and rape instead of for having unlawful carnal intercourse
or committing acts of indecency for reward
in
violation of s 20(1)
(aA)
of the Sexual Offences Act 23 of 1957 (the SOA), considering that
their brazen defence of having had consensual sex for reward
exposed
them to such a charge.
[8]
Instead, they adopted the stance that the SCA overturning the verdict
automatically rendered their convictions unlawful.
[15]
In
the criminal proceedings the State bore the onus of proving every
element of the crime beyond reasonable doubt. The plaintiffs
bore no
onus then. However, in this action they now bear the onus of proving
all the requirements for delict on a balance of probabilities.
They
have to prove the act, wrongfulness, fault, causation and damages. As
for the first two requirements, there was no dispute
in the light of
the SCA’s judgment in their co-accused’s case. At the
time of the plaintiffs’ criminal trial
disclosure of the
statements was not compelled under s 35 of the Constitution of the
Republic of South Africa, 1996 as it subsequently
came to be.
Nevertheless the SCA found that the prosecutrix, Ms
Holtzen
,
had an ethical duty arising from the culture and practice of criminal
law to disclose the statements. Her duty to act positively
rested on
the State’s obligation to prevent the harm of subjecting the
plaintiffs to an unfair criminal trial.
[9]
The non-disclosure by the prosecutrix was, according to the findings
of the SCA, a material irregularity and therefore wrongful.
[16]
As
for proving fault, neither party attempted to secure the
prosecutrix’s evidence either by subpoenaing her or arranging
for her testimony to be adduced by agreement or in some manner
acceptable to the court. The prosecutrix was a relevant witness.
Counsel for the State explained that she had relocated to Australia.
Considering that the SCA had already pronounced upon the wrongfulness
of her non-disclosure either party could have called her to
testify.
[10]
The plaintiffs
who bore the onus of proving fault needed her evidence to show that
she had acted intentionally or negligently.
The State needed her
evidence because it bore the onus to establish justification, if any,
for her non-disclosure.
[11]
[17]
In her absence the court had no explanation
as to why she did not disclose the statements to the defence; whether
privilege informed
her decision; whether she had considered the rule
that the police docket should be disclosed to accused persons, which
had not
been constitutionally enforced at the time; whether her
non-disclosure was deliberate or inadvertent; why she conceded on the
record
that the complainant might be a sex worker; whether she had
considered her concession to be sufficient disclosure; what
discussions
she had had with the defence on the issue; whether she
reasonably foresaw that her omission would cause harm, and, whether
she
took steps to prevent such harm by, for instance, making the
concession. Without answers to questions such as these the court is
unable to assess whether there were any grounds for justification for
the non-disclosure. But no adverse inference can be drawn
against the
plaintiffs. Once wrongfulness was established the prosecutrix’s
conduct had to be either intentional (
dolus
)
or negligent (
culpa
).
Whichever it was is immaterial for the purposes of this judgment on
liability. The same cannot be said of the State’s failure
to
secure her evidence. Its failure to prove any grounds for
justification results in the plaintiffs proving fault on the part
of
the State.
[18]
All
that was left for the plaintiffs to prove then was causation and
damage. This court has to determine whether there was a cause
or
nexus between the omission to disclose the statements and the damages
the plaintiffs allegedly suffered as a result of their
convictions
and sentence to imprisonment.
[12]
Establishing nexus is a question of fact answered in the light of all
the available evidence.
[13]
My
starting point is the SCA judgment.
[19]
The SCA ‘put it no higher’ that
the effect of the irregularity would have been on cross-examining the
complainant as
to her credibility and reliability. Only her
credibility was in doubt because the SCA and the full bench before it
found other
State witnesses to be reliable and supportive of her
version. However, other witnesses were not present during the
kidnapping and
the rapes. The SCA deduced from the corroborating
evidence that the complainant had withdrawn her consent (if she had
given it
in the first place) but that there was no reliable evidence
as to whether she had done so before intercourse. Faced with
resistance
from the State’s counsel, Ms
Watt
,
to remitting the matter for fresh evidence, the SCA considered the
merits of the appeal on the evidence before it. Because the
test in a
criminal prosecution was proof beyond a reasonable doubt, the SCA
opined that without the complainant’s evidence
that threshold
was not met.
[20]
This was the reasoning of the SCA in
discharging the plaintiffs from prosecution. The SCA made no findings
of fact to suggest that
the plaintiffs had not committed the crimes
for which they were convicted; it merely found that the State had not
proved the charges
beyond a reasonable doubt. In other words, the
plaintiffs were not exonerated of wrongdoing. Furthermore the mere
fact that the
SCA contemplated the alternative remedy of referring
the matter for rehearing of evidence implied that it had found that
the plaintiffs
had a case to answer. Anticipating a rehearing implied
that their innocence and acquittal were not foregone conclusions
dispositive
of evidence to prove their delictual claims.
[21]
Considering that the senior Judge Heher J
who was also the presiding judge in
Mayendra
Naidoo
v
S
constituted the panel in this instance,
in the exercise of their discretion they unsurprisingly elected to
uphold the appeal and
discharge the plaintiffs. A differently
constituted panel in the exercise of their discretion might
justifiably have come to the
opposite conclusion. Another panel
might, for instance, have found from all the circumstances sufficient
corroboration for the
complainant’s version that she had not
consented; that the prosecutrix’s non-disclosure was immaterial
because the
trial court was aware that she might have been a sex
worker; or that the defence had failed to cross-examine her
effectively and
pertinently about a vital point in their defence,
namely that she was a sex worker. The record of the trial lays the
foundation
for such an alternative outcome. As findings of fact and
credibility are matters for determination by the trial court, another
panel might justifiably have deferred to the trial court.
[22]
A point that neither counsel brought to the
attention of the court was the following observation of the
magistrate as early as in
the third paragraph of his judgment:
‘
Arguing
for the conviction of all five as charged on count one on the basis
of common purpose, and of accused No 2 to No 5 on count
two, also as
charged, the
prosecutrix
seemed
to think that the probabilities favoured the finding that the
complainant was indeed a prostitute, a fact she [complainant]
vehemently
denied,
but pointed out that even if this was so no significant damage to the
prosecution case would inevitably follow.
’
[14]
[23]
As
the complainant would have rendered herself vulnerable to prosecution
if she admitted to being a sex worker, her denial was predictable
and
the prosecutrix’s concession, insightful. The magistrate was
aware that the complainant might have been a prostitute
and that if
she denied this she might be lying. He would also have been aware of
possible reasons for her lying namely, to protect
herself from
prosecution for exchanging sex for reward and incurring the
disapproval by society and the bench. A witness who is
untruthful
about something is not necessarily untruthful about everything.
[15]
[24]
Furthermore, once the magistrate had
factored in the probability that she was a prostitute the issue was
no longer of great importance;
the magistrate had already disbelieved
her on this issue.
That he did factor this
probability into his reasoning is evident from his comments when
sentencing the plaintiffs:
‘
There
have been allegations that the complainant was a lady of ill-repute
and of course you would have the court believe, as you
have
throughout this trial that she had offered herself to you for reward.
Even if that be the case she is still entitled to the
protection of
the law.’
[16]
[25]
The
defence had urged the magistrate to find that the plaintiffs had made
‘a good impression’.
[17]
Instead, the magistrate, after considering ‘the evidence of
each accused separately and individually’, in the light
of
S
v Mgedezi & others
[18]
found that on
‘
an
unfragmented assessment of the evidence, the true picture… in
line with all the probabilities… goes to show beyond
a
reasonable doubt the falsity of the defence version…’
[19]
The
magistrate made this adverse credibility finding against the
plaintiffs after the prosecutor had alerted him to the probabilities
of the complainant being a prostitute.
[26]
In assessing credibility the magistrate’s
observation of the witnesses did not assist the plaintiffs in their
assertion that
they should never have been convicted. Of the
plaintiffs, the magistrate observed that:
‘
solidarity
of their version was not unexpected and could almost be said to have
been rehearsed… The defence made little headway
in
cross-examination neither of the police witnesses nor for that matter
in cross-examination of Msomi and Hadebe.’
[20]
[27]
In contrast, his observation of the
complainant was as follows:
‘
The
complainant subjected to a lengthy and repetitive questioning on
three appearances held up well, exhibiting natural and expected
moments of tearfulness from time to time.
’
And
of the other State witnesses:
‘
The
court can find no suggestion of untruthfulness in the unified version
of Msomi and Hadebe, both independent witnesses, that
their attention
was drawn by the plaintive cry for help which sounded to have
emanated from the complainant.’
[21]
[28]
Despite finding contradictions in the
evidence of the complainant, the police witnesses and the first
plaintiff, the magistrate
preferred the evidence for the State. In
sentencing the accused he had this to say:
‘
You
have committed serious crimes. The crime of kidnapping itself is one
which is not treated lightly. The crime of rape is particularly
serious and more so under the circumstances in which it was
perpetrated here. It was accompanied by acts of indecency upon the
complainant.’
[22]
So
it was not the lack of consent alone that had rendered their conduct
reprehensible but also the way in which they had treated
the
complainant.
[29]
Despite knowing that the complainant might
have been a sex worker and that she might have been committing crimes
under the SOA,
the magistrate’s empathies lay with the
complainant as evident in the following extract:
‘
Although
it was late at night when she was accosted and removed from where she
was walking, one should not lose site of the fact
that it should be
perfectly safe for anyone, in particular a lady, to walk around at
any time of the night or day, and that no
blame can be laid at the
door of the complainant for being where she was at that particular
time.’
[23]
[30]
Helpfully, the magistrate recorded his
observations of the complainant of how she not only withstood
protracted cross-examination
but also how she composed herself over
time:
‘
The
effect of this incident on the complainant has not been determined
with any degree of accuracy. . .During the complainant’s
testimony you will recall that she broke down from time to time and
had to compose herself. . . .As time went on and the complainant
was
called back to the stand the court noted an improvement in her
composure and she was able to withstand questioning to a better
degree. She did not fortunately suffer any serious injuries and in
your favour the Court will find that although the memories of
this
night will always scar her mind, that it is something from which she
has been able to physically recover.’
[24]
[31]
Then there were the following pieces of
evidence that conflicted with the defence’s version that sexual
intercourse was consensual:
(a)
The
complainant suffered abrasions on her left knee.
[25]
The first plaintiff testified that the complainant had sexual
intercourse when she was either lying on her back or was seated;
he
could not explain how she came to have abrasions on her knees.
[26]
He had no response to the question as to why the complainant would
fabricate a rape charge if the plaintiffs had paid her.
[27]
He owed an explanation considering his evidence that he had
negotiated a price of R30 per client but nothing close to R30 let
alone R120 was found on or within the vicinity of the complainant.
(b)
Only one of the complainant’s shoes
was found in the first plaintiff’s motor vehicle along with
other items of her clothing.
(c)
Constable
Michael Msomi testified that the complainant was ‘crying
excessively when she reported that she had been raped by
five
men’.
[28]
She was half
naked.
(d)
Constable
Thompson found a ‘hysterical complainant’.
[29]
(e)
Witness
Sipho Hadebe found the complainant hiding in the shrubbery with a
woman who comforted her.
[30]
[32]
Furthermore,
there was the evidence of independent State witnesses regarding the
conduct of the plaintiffs at the scene. The plaintiffs,
amongst other
accused, prevented Constable Msomi from grabbing hold of accused one
even though he produced his appointment certificate
to identify
himself as a policeman. The second plaintiff hit him in the face with
a t-shirt before fleeing. They returned and on
seeing their demeanour
and the position of their arms, Constable Msomi fled. The second
plaintiff and another person gave chase.
Constable Msomi managed to
contact his charge office. Reinforcements arrived just as the first
plaintiff’s vehicle was reversing
to leave.
[31]
Mr Hadebe testified that the occupants of the first plaintiff’s
vehicle struck and stabbed him on his head, cheek and left
kidney. He
recovered in hospital.
[32]
[33]
On 1 April 1993 Ms
Watt
wrote a note to the investigating officer informing him of the trial
date from 21 to 24 May 1993 and requested that subpoenas be
served on
all the witnesses. Having studied the docket she remarked:
‘
This
is an excellent case and merits an adequate opportunity to trace the
complainant. Should she be traced please find a statement
from her
sister and warn her for court provided of course the complainant
knows her whereabouts.’
[33]
[34]
In this action, notwithstanding the
evidence of the proceedings in the criminal prosecution summarised
above, the plaintiffs contended
that but for the irregularity by the
prosecutrix, they would never have been convicted because they had
consensual sex with a prostitute.
In other words, the irregularity
alone was instrumental in their convictions. However, to pass the
‘but for’ test they
had to prove that, discounting the
irregularity, the State’s case was so unmeritorious that they
would never have been convicted.
In other words if they had been
convicted on any basis, they would have had a civil claim for
damages.
[35]
In my view, against the weight of the
evidence on record, excluding the complainant’s testimony, the
plaintiffs had a compelling
case to answer. They have failed to
discharge the onus of proving that but for the irregularity of the
prosecutrix’s non-disclosure
of the statements, they would not
have been convicted. Disclosure might not have affected their
convictions at all considering
that the trial magistrate was aware
that the complainant might have lied; a differently constituted panel
of judges at the SCA
might have dismissed the appeal or insisted that
it be referred for fresh evidence. As pointed out above their
acquittal by the
SCA was not proof of their innocence but the
inadequacy of the evidence for the State, which in the opinion of the
particular panel
that constituted SCA bench did not satisfy the
threshold of proof beyond reasonable doubt. Considering that in this
world and especially
in litigation nothing can be said to be certain,
except death and taxes, the plaintiffs’ confidence in their
acquittal is
breathtakingly audacious.
[36]
This finding that the plaintiffs failed to
discharge the onus of proving causation is dispositive of the action.
For completeness,
I turn to the final leg of the enquiry: the
plaintiffs’ entitlement to damages.
[37]
The
plaintiffs’ defence of having procured sexual intercourse to
avoid a conviction of rape amounted to an admission to committing
another crime, namely that of having unlawful carnal intercourse, or
committing an act of indecency with another person for reward.
[34]
The State did not raise the plaintiffs’ defence in the criminal
case as a cause or contributory cause of the damages they
claimed.
Counsel for the plaintiffs submitted that as it had not been pleaded
it was not an issue before court. I indicated to
the parties that I
intended to consider the plaintiffs’
defence
in their prosecution to determine the issue of liability and gave
both the witnesses and counsel an opportunity to address
my concerns.
[38]
My concern was that
while they were entitled to raise
their defence in the criminal proceedings, should they be allowed to
profit from their criminal
conduct in a civil claim for damages?
Assuming that fault on the part of the prosecutrix caused or
contributed to the losses or
harms suffered by the plaintiffs, were
they entitled to compensation despite their conduct constituting
crimes that violated both
legal and moral rules? Did the maxim
ex
turpi causa non oritur actio
(a claim
cannot be
founded
on
a
wrong
committed
by the
claimant)
apply?
[39]
Counsel for the plaintiffs submitted that
their defence in their criminal prosecution was irrelevant to their
claim for delictual
damage in their civil action. He cited as an
example that a person who was injured in a motor collision would be
allowed compensation
even if she were transporting marijuana
illegally.
[40]
The question whether the plaintiffs’
admitted crime should entitle them to damages elicits intuitively a
moral response to
a socially repugnant proposition. But this is not
enough to deny the plaintiffs compensation. What follows is a brief
account of
the application of the
ex
turpi
principle, the court’s
powers to raise the principle of its own accord and the implications
of the application of the principle
for the doctrine of legality and
the rule of law. An exhaustive exposition of each these three
headings is for another time; for
now an overview will have to do.
[41]
The
common law position was that anything done illegally was considered a
nullity. Several exceptions to this general rule emerged.
The
rationale for the exceptions was that ‘greater inconveniences
and greater impropriety would follow on the actual rescission
of the
things done, than attend the actual thing done contrary to the
laws’.
[35]
Difficulties
in unravelling an illegal contract illustrates the purpose of the
exceptions.
[36]
[42]
The
use of the doctrine of
ex
turpi causa
to prevent abuse and misuse of the judicial process is well
established in contract law and insurance law, where it provokes less
controversy than in delict. The general approach was that courts
should be allowed to bar recovery in delict on the ground of the
claimant’s immoral or illegal conduct only in very limited
circumstances because such claims are for compensation for personal
injury or loss.
[37]
[43]
I
have not found any South African cases in which the
ex
turpi
principle has applied to a civil claim for damages (
iniuria
)
in which the turpitude was a crime committed by the claimant. For the
first time in 1993, the Canadian Supreme Court considered
the
principle in a civil claim for damages arising from a motor collision
in which both litigants acted unlawfully and contributed
to their own
and each other’s damages. It was typically a case in which the
ex
turpi
defence applied. Usually the defence required joint illegal conduct
by the parties. If a claimant’s conduct resulted in its
injury,
it may well be found guilty of contributory negligence or of being
the author of its own misfortune. However, being a wrongdoer
did not
automatically disqualify it from receiving remedies at law for harm
done to it.
[38]
[44]
A
broad application of the
ex
turpi
principle was open to debate. Whatever the controversy was about the
application of the
ex
turpi
principle to claims for damages, evidenced for instance in the split
decision in the Canadian court, when the turpitude was the
commission
of a crime there was little debate.
[39]
A narrow expression generally endorsed the position that people
should not be able to benefit from a crime they have committed.
[40]
The Canadian court held that criminal conduct on the part of an
injured claimant negated any reasonable expectation of compensation
for such injuries.
[41]
Underlying the principle is the law of illegality that applied to
claims arising from acts that were against the public law of
the
State and engaged the public interest.
[42]
[45]
As
a rule of law, the illegality defence is not a matter of mere
discretion and balancing of the respective merits; it is a matter
of
public policy.
[43]
Therefore
because
‘
the
public has its own interest in conduct giving rise to the illegality
defence. . .the
judge
may
be
bound
to
take
the
point
of
his
own
motion,
contrary
to
the
ordinary
principle
in
adversarial
litigation.’ Consequently, the State’s failure to plead
the illegality was no bar to this court taking the
point of its own
accord.
[46]
Raising the illegality of the plaintiffs’
conduct went both to the heart of the consistency of the
jurisprudence and to upholding
the dignity of the court. The United
Kingdom Supreme Court summarised the position thus:
‘
But
in general, although described as a defence, it is in reality a rule
of judicial abstention. It means that rather than regulating
the
consequences of an illegal act … the courts withhold judicial
remedies, leaving the loss to lie where it falls …
The
ex
turpi causa
principle precludes the judge from performing his ordinary
adjudicative function in a case where that would lend the authority
of the state to the enforcement of an illegal transaction or to the
determination of the legal consequences of an illegal act …
this rule of abstention was sometimes expressed as a principle
protecting the innocence or dignity of the court against
defilement.’
[44]
[47]
Jurisprudentially, the rationale for the
rule of abstention is this:
‘
It
would put the courts in the position of saying that the same conduct
is both legal, in the sense of being capable of rectification
by the
court, and illegal. It would, in short, introduce an inconsistency in
the law. It is particularly important in this context
that we bear in
mind that the law must aspire to be a unified institution, the parts
of which -- contract, tort, the criminal law
-- must be in essential
harmony. For the courts to punish conduct with the one hand while
rewarding it with the other, would be
to "create an intolerable
fissure in the law's conceptually seamless web”…We thus
see that the concern, put at
its most fundamental, is with the
integrity of the legal system.’
[45]
(Footnotes
omitted)
[48]
Compensatory
damages for injuries or harms suffered are more easily
distinguishable from damages as profit from an unlawful act
that
amounts to a crime. This is so because it can be inferred more easily
that the claimant is the sole cause of its injuries
and the law owes
it no duty of care or protection for harms it brought upon
itself.
[46]
[49]
Two questions help to clarify the
application of the
ex turpi
principle for claims in delict:
(a)
Does the act constitute turpitude?
(b)
What
is the connection between the turpitude and the claim?
[47]
If
the turpitude is instrumental to the claim, compensation should be
disallowed.
[50]
In this instance, the plaintiffs’
illegal and immoral act of having sex with a prostitute constituted
turpitude. Legislation
that declared sex for reward to be unlawful is
a coalescence of society’s expression of its moral repugnance
for prostitution.
Their turpitude led to their conviction and
imprisonment for rape, which are now the cause of their claim for
damages. The basis
of the plaintiffs’ civil claim in this case
was distinguishable from counsel’s example above. To avert a
conviction,
the plaintiffs had to prove that they had committed the
crime of paying for sexual intercourse. To succeed in this action
they
have to prove that their admitted commission of the crime would
have succeeded in averting their convictions for rape. Their crime
was therefore instrumental to their victory in both proceedings. In
contrast, the turpitude of transporting marijuana was immaterial,
unconnected and incidental to the claim for compensation. Such
compensation is damages for personal physical and mental injuries
and
not profit for the illegal or immoral act of transporting marijuana.
To say that but for transporting the marijuana the claimant
would not
have been injured in the collision is a test so far removed that most
claims would fail. The marijuana example is distinguishable
because
the crime in that instance is not instrumental to the claim for
damages is the crimes of the plaintiffs was.
[51]
Whether
the plaintiffs knew that they were committing a crime is irrelevant.
It was an offence for which strict liability applied.
A
‘customer who engages in sex for a reward commits an offence at
common law and in terms of the provisions of the Riotous
Assemblies
Act’. The ‘practice of the police and the prosecutors …
to target the “merchants” and
not the “customers”’
pointed to ‘a flaw in the application of the law …’
[48]
Criminalising and stigmatising the conduct of prostitutes as the
recipient of reward was ‘a social attitude and not the result
of the law’.
[49]
Irrespective of whether unfairness originated in the practice, social
attitudes or the law it was discrimination against prostitutes,
most
of those targeted being women.
[52]
This case classically epitomised how the
application of the law entrenched the unfair discrimination grounded
in sex, gender and
socio-economic status in the psyche of the
litigants. The complainant had to deny that she was a prostitute to
avoid prosecution
but the plaintiffs could brazenly raise their
participation in the crime as a defence to a charge of rape without
the risk of being
prosecuted for procuring sex.
[53]
In
my view the plaintiffs’ turpitude was compounded by their
attempt at snatching an advantage from a discriminatory practice
through this action. If they had not known in 1993 that they had
committed an offence then they certainly should have known by
2002
when
S
v Jordan & others (Sex Workers Education and Advocacy Task Force
& others as Amici Curiae)
had been published.
[50]
If
neither they nor the SCA judges who set aside their convictions were
aware of
Jordan
at the time, then they ought to have known about it when they
instituted this action.
[54]
In these circumstances, if the court were
to recognise a right to compensation for their convictions and
consequential harms it
would be vindicating their crime and their
opportunism in snatching an advantage from the unfair application of
the law. This would
be antithetical to all our constitutional values.
[55]
This
action oozes with cynicism for our constitutional values. In times
gone by it might have been considered 'scandalous and
impertinent'.
[51]
Contingency
fee arrangements are meant to help indigent litigants to exercise
their rights to access to justice; it was not meant
to convert the
hallowed halls of the courts into gambling dens in which
unmeritorious cases are ventilated on a whim and a hope
that the
plaintiffs and their representatives might ‘strike it lucky’.
Commoditising litigants comes with risks. Unsuccessful
litigants who
have contingency fee arrangements may not have to pay legal fees to
their lawyers but they cannot avoid the risk
of paying the other
side’s costs.
[56]
Accordingly, on the question of liability
of the State to compensate the plaintiffs for damages arising from
their convictions and
imprisonment, I find against the plaintiffs
with costs, including the costs of two counsel and the costs reserved
in the exception.
D Pillay
Judge of the High Court
of KwaZulu-Natal
APPEARANCES
Counsel
for the plaintiff: L. Pillay SC
Instructed
by: Justice Reichlin Ramsamy Attorneys
c/o
Surendra Singh & Associates
Ref:
RN/mm/N1491
Tel:
(033) 345 6719
Counsel
for the respondent: C.A.S Jennings
Instructed
by: State Attorneys (KZN)
c/o
Cajee Setsubi Chetty Inc.
Ref:
166/000688/05/N/P18
Tel:
(033) 345 6719
Date of Hearing: 18 June
2018, 21 June 2018
Date of Judgment: 3
August 2018
[1]
Mayendra
Naidoo v S
case no 504/2002 delivered 13 May 2003 (the SCA judgment).
[2]
SCA
judgment para 15.
[3]
SCA
judgment para 16.
[4]
SCA
judgment para 15.
[5]
Case
number 504/2002, heard 5 May 2003, delivered 13 May 2003.
[6]
LL
Fuller and KI Winston ‘The Forms and Limits of Adjudication’
(1978) 92(2)
Harv.
L. Rev.
353 at 357 http://www.jstor.org/stable/1340368 (accessed on
13/09/2010); R Bone 'Lon Fuller's Theory of Adjudication and the
False Dichotomy between Dispute Resolution and Public Law Models of
Litigation' (1995) 75
Boston
U. L.J.
1272
at 1276.
[7]
Section
173 of the Constitution of the Republic of South Africa, 1996.
[8]
S
v Jordan & others (Sex Workers Education and Advocacy Task Force
& others as Amici Curiae)
[2002] ZACC 22
;
2002 (6) SA 642
(CC) para 14.
[9]
J
Neethling and JM Potgieter Neethling - Potgieter - Visser
Law
of Delict
6 ed (2010) at 57;
Shabalala
v Attorney-General of Transvaal & another
[1995] ZACC 12
;
1995 (2) SACR 761
(CC) paras 44-46; see also
Van
Breda v Media 24 Ltd & others
2017 (5) SA 533
(SCA) paras 54–55.
[10]
Hoffman
and Zeffertt
The
South African Law of Evidence
4 ed at 604;
Elgin
Fireclays
Limited
v
Webb
1947
(
4
)
SA
744
(A) at 749-750.
[11]
Neethling
and Potgieter fn9 at 83.
[12]
Neethling
and Potgieter fn9 at 175-177.
[13]
Neethling
and Potgieter fn9 at 175-177.
[14]
Levitt’s
judgment record at 513.
[15]
R
v Kumalo
1916
AD 480
at 484.
[16]
Levitt’s
judgment record at 572 L24.
[17]
Levitt’s
judgment record at 513-512.
[18]
S
v Mgedezi & others
1989
(1) SA 687
(A) at 703E-F.
[19]
Levitt’s
judgment record at 526.
[20]
Levitt’s
judgment record at 524 L6.
[21]
Levitt’s
judgment record at 524
[22]
Levitt’s
judgment record at 572.
[23]
Levitt’s
judgment record at 572 L15.
[24]
Levitt’s
judgment record at 572-573.
[25]
Record
at 518.
[26]
Record
at 371.
[27]
Record
at 372.
[28]
Record
at 518.
[29]
Record
at 522.
[30]
Record
at 520.
[31]
Record
at 519.
[32]
Record
at 519-520.
[33]
Record
at 736.
[34]
Section
20(1)
(aA)
of the Sexual Offences Act 23 of 1957.
[35]
Voet
Commentarius
as translated by Gane 1 3 16 at 44 and 46.
[36]
Eg
Kylie
v CCMA & others
2010
JOL 25578
(LAC
);
2010 (7) BLLR 705
(LAC);
2010 (4) SA 383
(LAC);
9
Lawsa
3 ed paras 334 and 338.
[37]
Hall v Hebert
[1993]
2 S.C.R. 159
at 168-169 (see the majority judgment of McLachlin J
with which La Forest, L’Heurex-Dubé and Iacobucci JJ
concurred);
R
(on
the
application
of
Best)
v
Chief
Land
Registrar
(Secretary
of
State
for
Justice,
interested
party)
[2015]
4 All ER 495
para 43 (see Sales LJ’s judgment).
[38]
Hall v Hebert
fn37.
[39]
Hall v Hebert
fn37;
Les
Laboratoires Servier & another v Apotex Inc & others
[2015]
1 All ER 671
paras 14 and 23;
R
v
Chief Land Registrar
fn37 paras 43, 54, 58.
[40]
R
v Chief Land Registrar
fn37 para 43;
Les
Laboratoires
Servier
fn39
para 13.
[41]
Hall v Hebert
fn37.
[42]
R
v Chief Land Registrar
fn37
para 57.
[43]
R
v Chief Land Registrar
fn37 para 57;
Les
Laboratoires
Servier
fn39
para 23.
[44]
Les
Laboratoires Servier
fn39
paras 23-24.
[45]
Hall
v
Hebert
(1993) 101 DLR (4th) 129 at 165 (or fn37 at 175-176); cited
with approval in
Les
Laboratoires Servier
fn39
para 24.
[46]
Hall
v
Hebert
fn37 at 170-171.
[47]
Les
Laboratoires Servier
fn39
para 22.
[48]
S
v Jordan
fn8 para 19.
[49]
S
v Jordan
fn8
para 16.
[50]
S
v Jordan
fn8.
[51]
Laboratoires
Servier
fn39
para
24 citing
Everet
v
Williams
(1725)
(noted at
(1893) 9 LQR 197).