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[2017] ZAKZDHC 14
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Absa I-Direct Ltd v Lazarus NO and Another (8585/2016) [2017] ZAKZDHC 14 (22 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL, LOCAL
DIVISION, DURBAN
CASE
NO:
8585/2016
In
the matter between:
ABSA
I-DIRECT LTD
Applicant
and
CHERYL
LAZARUS
N.O
First
Respondent
SELVARAJAN
ANNAMALAY Second
Respondent
ORDER
(a)
The rulings
by the magistrate that the defendant may not cross-examine on
documents unless they have been proved first are reviewed
and set
aside.
(b)
It is
declared that the defendant is entitled to cross-examine on documents
which have not been proved yet, subject to proof thereof
at a later
stage.
(c)
The second
respondent (the plaintiff) is ordered to pay the costs of the review
application.
JUDGMENT
Delivered
on: 22 March 2017
PLOOS
VAN AMSTEL J
[1]
This is a review of two rulings by a magistrate in a civil trial,
which has not been concluded yet. Counsel for the defendant
in the
trial (the applicant in the review) was cross-examining the plaintiff
when she asked him about certain documents which had
not been proved
yet. The plaintiff’s attorney objected and the magistrate ruled
that she would not allow cross-examination
on the documents until
they have been proved. The applicant contends that this was a serious
irregularity which interfered with
the right to cross-examine and
that the rulings should be set aside so that the trial can proceed.
The magistrate has delivered
a notice to the effect that she does not
oppose the application and will abide by the decision of this court.
The review is however
opposed by the plaintiff.
[2]
The trial concerned a claim for compensation in terms of the
plaintiff’s insurance policy, arising out of damage to his
car
when he collided with a fence. The insurer repudiated liability,
inter alia, on the basis that the plaintiff had misrepresented
to it
in his claim that he had been the driver of the car at the time of
the incident.
[3]
During cross-examination counsel for the defendant asked the
plaintiff whether he had filled in a police accident report form
which formed part of the bundle of documents which had been handed in
without objection, and which had been discovered by the plaintiff’s
attorney. The attorney objected to the question on the basis that the
report had not been proven and that there had been no evidence
as to
who had taken the particulars down. Presumably he overlooked the fact
that the plaintiff had just been asked whether he had
filled the
report in. If the answer were affirmative the document would have
been proved. The magistrate then told counsel that
she was supposed
to prove a document before she cross-examined on it. Counsel
responded, correctly, that she had asked the plaintiff
about the
document. Rather puzzlingly, the magistrate responded: ‘You
can’t ask him, you need to prove a document’.
It would
appear that she also overlooked the fact that counsel had asked the
plaintiff whether he had filled the report in, which
was a perfectly
permissible question. After an adjournment for the matter to be
considered by the parties’ legal representatives
the attorney
placed on record that he was not prepared to accept the authenticity
of the document, and the magistrate made a ruling
that counsel could
not cross-examine on the document until she had proved it.
[4]
A while later counsel asked the plaintiff questions about a document
which he said he had obtained from Vodacom and provided
to the
defendant. The attorney again objected to the question on the basis
that the document had not been proved. Counsel placed
on record that
she intended to call the person who had generated the document. The
magistrate then told her to call the witness
from Vodacom before she
could cross-examine on the document. The witness was not available
and the magistrate then ruled that counsel
could not cross-examine on
the document until it had been proved properly.
[5]
It would appear that what the magistrate had in mind was that counsel
for the defendant should lead evidence on the authenticity
of the
document while the plaintiff’s case was still in progress,
before she could cross-examine on it. I do not follow this.
I have
never heard of such a procedure. Will the plaintiff be entitled to
respond by leading evidence to dispute the authenticity
of the
document? It sounds like some sort of a trial within a trial.
[6]
A defendant in a civil case is entitled to cross-examine on a
document which has not been proved, provided the document is proved
later. It may of course be proved by the evidence elicited by the
cross-examination. Otherwise it may be proved in the course of
the
defendant’s case. If it is not proved the evidence elicited by
the cross-examination on the document becomes inadmissible.
The same
applies to an accused in a criminal case. It is entirely impractical
to expect of the defendant to prove the document
while the
plaintiff’s case is still being presented, or for an accused to
do so while the state case is still being presented.
[7]
The decision in
Van
Tonder v Kilian NO and Another
[1]
is
instructive. A magistrate in a criminal case ruled that counsel could
not cross-examine a state witness on an expert report regarding
a
motor vehicle collision until the report had been proved. He also
ruled that counsel could not cross-examine another witness
for the
state on pleadings which had been filed in a civil case until the
pleadings had been authenticated. This was in spite of
counsel
informing the court that he intended to prove both the expert report
and the pleadings in the course of the defence case.
The matter was
taken on review and the court held that there was no rule that a
document which an accused or defendant had not
yet proved could not
be put to a plaintiff or the State’s witnesses. The court held
that in our accusatory legal system an
accused or defendant had
perforce to prove his case and his documents after closure of the
case for the State or the plaintiff
and that it was mandatory that
documents which had not yet been proved should be put to the
plaintiff or State witnesses, subject
to later proof thereof, since
an accused or defendant was obliged to put his case to the opposing
side fully and completely. The
magistrate’s rulings were held
to be a misdirection which had materially prejudiced the applicant in
the continuation of
the trial, and that the irregularity could not,
after a possible conviction, be corrected on review or appeal. The
rulings were
accordingly set aside. I am in full agreement with the
court’s reasoning. Also see the discussion on this topic in
Schmidt,
Bewysreg.
[2]
[8]
It was submitted on behalf of the plaintiff that the review should
not be entertained until the trial had been concluded. The
difficulty
with that approach is that if the irregularity is only corrected at
the stage of a review or appeal after judgment had
been delivered by
the magistrate the order made by her will have to be set aside and
the matter be referred back to the trial court.
The claim is not
substantial (some R69000) and that will involve costs on both sides
that can be avoided if I deal with the matter
at this stage. I also
take into account that cross-examination is a fundamental part of a
trial and that the magistrate’s
rulings constituted a serious
limitation on this right.
[9]
There is regrettably a further matter on which I feel obliged to
comment. This concerns the manner in which the magistrate spoke
to
counsel at the trial. She said, inter alia: ‘Please don’t
put words into my mouth’; ‘Be careful of what
you submit
to the court’; ‘All right, sit down’; ‘Seems
to me that the defence doesn’t even know
why, what kind of
claim they defending at court’; ‘Do you not know what it
means to prove a document?’; ‘Have
you asked your
colleague’s advice on how to prove a document?’ It is
important that presiding officers treat legal
representatives who
appear before them with courtesy and respect. This is part of the
right of access to courts which is guaranteed
in our Constitution. A
litigant who sees his legal representative being treated with
disrespect by a presiding officer may well
feel that he is not
getting a fair hearing or form the perception that the presiding
officer is not as impartial as she should
be. This has the potential
to erode the confidence of the public in our courts. There are very
few problems in court that cannot
be dealt with firmly but politely.
[10]
The order that I make is as follows:
(d)
The rulings
by the magistrate that the defendant may not cross-examine on
documents unless they have been proved first are reviewed
and set
aside.
(e)
It is
declared that the defendant is entitled to cross-examine on documents
which have not been proved yet, subject to proof thereof
at a later
stage.
(f)
The second
respondent (the plaintiff) is ordered to pay the costs of the review
application.
_______________________
Ploos
van Amstel J
Appearances:
For
the Applicant
:
J Nicholson
Instructed
by
:
Shepstone & Wylie Attorneys
Durban
For
the Second Respondent
:
C S A Smart
Instructed
by
:
Ash Haripersad & Partners
Durban
Date
Judgment Reserved
: 23
February 2017
Date
of Judgment
: 22
March 2017
[1]
Van Tonder v Kilian NO and Another
1992 (1) SA 67 (T)
[2]
Bewysreg, Schmidt and Rademeyer, 4
th
ed at 339.