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[2016] ZAGPPHC 923
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Ramnarain v Momentum Group Limited (34633/2010) [2016] ZAGPPHC 923 (21 October 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number: 34633/2010
Date: 26/10/2016
Reportable: No
Of interest to other
judges: No
Revised.
In the matter between:
JHRAJHRSHALALL
RAMNARAIN PLAINTIFF
AND
MOMENTUM GROUP
LIMITED DEFENDANT
JUDGMENT
TOLMAY,
J:
[1] Plaintiff instituted
a claim against Defendant based on an insurance policy which was
issued by Sage Life for the sum of R 3 000 000-00
(three
million rand) payable in the event of Plaintiff’s mother,
Chandermani Behari’s (the deceased) death. The Defendant
acquired Sage Life during September 2005.
[2] Initially the
Plaintiff and his brother, Jeenwalall Ramnarain, were nominated as
beneficiaries in terms of the policy. On 3
May 2004 a form changing
the beneficiary to the Plaintiff only was completed. Plaintiff filed
a plea in which liability was denied
on several grounds. In addition,
the issue of the authenticity of the deceased’s signature (the
disputed signature) was raised,
although the pleadings make no
specific mention of this dispute.
[3] The parties agreed
that the issue of the authenticity of the signature should be
determined as a separated issue in terms of
rule 33(4) of the Uniform
rules of Court. The agreement was that para 7 of the particulars of
claim read with para 9 of the plea
would be the only issue to be
determined at this stage.
[4] Para 7 of the
particulars of claim reads as follows:
“
During or about
3 May 2004, Chandermani Behari nominated the Plaintiff as the
beneficiary, in writing, replacing the previous beneficiary
nomination on the policy. A copy of the change of beneficiary is
annexed hereto marked “B”
.
[5] In par 9 of the plea
Defendant denies the allegations in par 7, thereby denying that a
change of beneficiary occurred. The authenticity
of the signature is
not specifically raised. The disputed signature appears in a document
called a “Nomination of beneficiary
– endorsement”.
[6] It was admitted that
the Defendant carries the
onus
to begin, the
onus
of
proof however remains in dispute.
[7] Defendant’s
counsel indicated that he would call two expert witnesses, while
Plaintiff indicated that he would call one
expert but may also
call the Plaintiff. I was assured that there would be no duplication
of evidence and that the separated
issue could be dealt with
separately conveniently without venturing into the merits of the
case. As a result the order in terms
of Rule 33(4) was granted.
[8] It is appropriate to,
at this stage already, deal with a predicament that arose during the
evidence led by the Plaintiff. Counsel
for Defendant indicated during
his opening address, that he, if Plaintiff comes to testify, may have
to canvass certain remarks
that Plaintiff had made historically, only
for purposes of determining credibility. During the cross-examination
of Plaintiff,
Mr Mundell SC for the Defendant, ventured into
aspects which fell outside the limited issue before me. Mr Khan SC
objected
to the questions and indicated that he didn’t consult
or led any evidence in chief regarding these issues and limited his
evidence to the question of the validity of the disputed signature.
He indicated that the Plaintiff would be severely prejudiced
if this
line of questioning is allowed. Mr Mundell SC however argued that the
credibility of Plaintiff is of the utmost importance
and if the
questions are not allowed Defendant would be prejudiced. It was clear
that whatever my ruling would be one of the parties
would be
prejudiced. I then proposed, in the interest of justice, and in
order not to prejudice anyone, that the parties
should consider
letting me determine the separated issue on the evidence of the
experts only. After some debate and consideration
Mr Khan
abandoned Plaintiff’s evidence, which was not completed and I
determined the matter on the evidence of the experts
only and
disregarded the evidence so far led by the Plaintiff in totality.
[9] The experts who
examined the disputed signature as well as specimens testified that
they would examine the disputed signature
and the specimens to
determine similarities and dissimilarities between the disputed
signature and the specimens in order to determine
the authenticity of
the disputed signature. They explained in their reports as well as
evidence that the examination of handwriting
is based on an analysis
of
inter alia
commencing, connecting and end strokes, quality
of writing, form and construction of letters, slant of writing, pen
lifts or hesitations,
pen pressure, basic line of writing, normal
variations, spacing of writing, size and proportion of writing,
sequence of writing
etc.
[10] The Plaintiff called
as expert witnesses Mr Bam and Brigadier Hattingh. Both of them
compared the disputed signature with three
specimen signatures that
are known to be the signatures of the deceased. Only copies of the
disputed signature and specimen signatures
were examined. The
disputed signature and the three specimens they examined are
reproduced here.
[11]
The disputed signature:
[NB:
Refer to PDF download for images]
[12]
The specimen signature:
[NB:
Refer to PDF download for images]
[13] Mr Bam after
examining the disputed signature and the specimen signatures raised
certain aspects in his report which, according
to him indicate that
the disputed signature was probably a forgery. These points were also
confirmed in his evidence. He noted
the following:
1. In the disputed
signature the letter “C” is formed with a straight
downward stroke, a sharp angle at the bottom and
the final stroke
ending higher from the writing line than in the specimen signatures.
In the specimen signature
the letter “C” is formed with a normal curve and without
any angularity at the bottom.
2. In the disputed
signature the commencing stroke of letter “B” is a short,
almost horizontal line where it enters
the stem of the letter.
In the specimens the
commencing strokes of letter “B” are formed with a long
diagonally upward stroke entering the stem
of the letter.
3. The slant of the top
loop of letter “B’ is much more upright in the specimen
signatures than in the disputed signature.
4. In the specimen
signatures the commencing stroke of letter “e” is formed
more or less from the stem of letter “B”.
It is long and
straight.
In the disputed signature
the commencing stroke is much shorter and curved.
5. The spacing between
letters “B” and “e” is about 3 to 4 times
wider in the specimen signatures than in
the disputed signature.
6. In the disputing
signature the connecting stroke between letter “a” and
“r” are formed angularly
and is lifted from
the baseline.
In the specimen signature
the commencing strokes are formed close to the baseline and are
curved at the start.
7. There is a probability
that there is a pen-lift in the connecting stroke between letters “a”
and “r”
in the disputed signature, but because of the
photocopy it cannot be determined without any doubt.
[14] Brigadier Hattingh
raised the following dissimilarities which according to him point to
a conclusion that the disputed signature
was probably a forgery:
1. The body of the letter
“C” in the disputed signature is formed with a vertical
stroke at the left and a sharp turn
to the right at the bottom giving
the body an almost square appearance. In the specimen signatures the
“C” is formed
with a rounded body.
2. In the lower portion
of the body of the “B” an irregular movement occur with a
slight arched movement on the rounded
movement. In the specimen
signatures the movements are rounded.
3. The spacing between
the letters “B” and the following “e” is
extremely small while in the specimen signatures
the spacing is very
wide.
4. The loop of the letter
“e” is formed with an almost vertical slant with the
curve to the right at the bottom. In
the specimens the loop is formed
with a pronounced slant and a curve formed at the left.
5. The spacing between
the letter “e” and the following letter “h”
is formed smaller in the disputed signature
than in the specimen
signatures.
6. The letter “h”
is formed with a loop at the upper portion of the stem as indicated
by the wide stroke while in the
specimen signatures no such loop is
formed.
7. The body of the
letter “h” ends with a sharp curve at the end. A
horizontal stroke to the right is formed before
the stroke turns
upward in the disputed signature. In the specimens the curve is
rounded.
8. An abnormal movement
in the connecting stroke between the “h” and “a”
occur, indicating a hesitation
or lifting of the pen in the disputed
signature which does not occur in the specimen signatures.
9. The stem of the letter
“a” in the disputed signature is formed with a curved
movement in the form of a ”S”
while in the specimen
signatures the stem of the “a” is straight.
10. An abnormal movement
occurs in the connecting stroke between the “a” and “r”
indicating a hesitation
or lifting of the pen in the disputed
signature which does not occur in the specimen signatures.
[15] Mr Bam and Brigadier
Hattingh concluded that there is a 80% probability that the disputed
signature is not that of the deceased
based on the dissimilarities
between the disputed signature and the specimens examined by them.
[16] Despite Mr Bam and
Brigadier Hattingh relying on certain pen lifts in their evaluation
of the signatures they conceded that
you can’t determine pen
stops, pen lifts and hesitations on copies. This must be seen in the
context that they only had copies
to work from. As a result I can’t
find on a balance of probabilities that pen stops, pen lifts and
hesitations occurred.
[17] Although Brigadier
Hattingh conceded that original signatures are preferable, if
available, he said that copies can be used
and can still contain
identifiable characteristics. Mr Bam was not willing to concede that
originals are better. Brigadier Hattingh
conceded that the greater
the number of times a document have been photocopied the lesser
the propensity that an accurate
finding will be made. He also
conceded that the documents that were examined by him and Mr Bam had
been copied on several occasions.
He, as far as the preferability of
original samples is concerned, testified that to compare genuine
signatures with a disputed
signature of poor quality serves no
purpose. He conceded that the disputed signature was a copy of poor
quality.
[18] Brigadier Hattingh
testified that a person never signs his signature in exactly the same
way, but what is referred to as a
master pattern is followed. This
master pattern can be placed in a circle of variation which is
allowable for a person. As soon
as something falls outside that
circle it is no longer a variation but a difference. Although
Brigadier Hattingh explained that,
a difference falls outside the
range of variation allowed in a signature, he could not
satisfactorily explain how one would differentiate
between a
variation and a difference. According to him to determine the
difference is a question of training, expertise and
common sense.
[19] Mr Irving, the
expert for the Plaintiff, testified and concluded that the disputed
signature is probably authentic. He said
the fact that he had 14
specimens available 7 of which were originals placed him in a better
position to evaluate the authenticity
of the disputed signature. He
examined the deceased’s signature on her last will and
testament and certain specimens’
some of which were originals
during 2011 on request of the Plaintiff. During that investigation he
concluded that the signatures
on the will were indeed authentic. It
is common cause between the parties that the 14 specimens examined by
him are indeed signatures
of the deceased.
[20] During
cross-examination of Mr Irving it transpired that he examined the
originals during his 2011 investigation and did not
for purposes of
this case examine them again. Mr Irving was satisfied that, as he
still had access to his notes and report pertaining
to the 2011
investigation, he could rely on his evaluation and inferences
pertaining to the original signatures. He and the other
witnesses
were satisfied that, despite the poor quality of the disputed
signature, they could come to a conclusion about the authenticity
of
the disputed signature.
[21] Mr Bam and Brigadier
Hattingh both said that they have, subsequent to filing their
reports, examined the specimens available
to Mr Irving but still
stand by their view that the disputed signature was probably a
forgery.
[22] The disputed and
specimen signatures examined by Mr Irving are reproduced here.
The
disputed signature:
[NB: Refer to PDF
download for images]
The
specimen signatures:
[NB:
Refer to PDF download for images]
[23] The original
signatures on the deceased’s last will and testament are still
available at the Masters’ Office in
Durban. None of the other
originals are still available.
[24] Mr Irving dealt with
his own analysis as well as those of Mr Bam and Brigadier Hattingh
and concluded that the points of difference
between the disputed
signatures and the specimen signatures pointed out by Mr Bam and
Brigadier Hattingh can be addressed by comparing
these variations to
similar variations that occur in the specimens examined by him. On a
perusal of the specimens it would seem
to me that similar variations
occur in the broader spectrum of specimens examined by Mr Irving.
[25] The only variation
that Mr Irving could not sufficiently explain is the spacing between
the “B” and “e”.
Mr Irving remarked
that despite the fact that the spacing between these two letters are
very small in the disputed signature the
spacing between the “B”
and “e” varies a lot in the specimen signatures. He
conceded however that the small
spacing does not re-occur in any of
the specimens.
[26] A comparison of the
specimens examined by Mr Irving show a wide range of variation in the
way that the deceased executed her
signatures. Mr Irving
contended that the dissimilarities which could be identified were
within the expected range of variation
of the deceased’s
signature. Mr Bam and Brigadier Hattingh were however of the view
that the dissimilarities were not within
the expected range of
variation but constitute differences which point to a conclusion that
the disputed signature was a forgery.
[27] The Court is faced
with the conflicting opinions of the experts, and their views on what
would constitute a variation within
the accepted range and what would
constitute a difference. At the end it is still not clear to me how
that distinction should be
made. After considering the evidence and
the disputed signature I am of the view that, but for the spacing
between the “B”
and “e” all the other
variations pointed out by Mr Bam and Brigadier Hattingh also occur
within the broader spectrum
of specimens considered by Mr Irving. I
am also of the view that the spacing between the “B” and
“e” varies
a lot and that one cannot on this alone found
that the signature is a forgery. The deceased’s signature
varied a lot and
on an examination of the disputed signature and
specimens I am of the view that the variations in the disputed
signature
fall within the range of variation and does not point to a
difference which may point to a forgery.
[28] There was a dispute
pertaining to who carries the
onus
of proof. In the pre-trial
minute Plaintiff admits that it bears the onus to proof an
entitlement to avoid the policy. Plaintiff’s
counsel argued
that, Defendant conceded that it carries the
onus
. This
admission has got nothing to do with the nomination of the
beneficiary but deals with the misrepresentations allegedly made
by
the Plaintiff and, if proven, would render the policy void. Therefore
I can’t find that Defendant has conceded that it
carries the
onus
of proof.
[29] Determining the
onus
if proof is not a simple issue, it has been eloquently stated as
follows:
“
The
law of evidence is well known for its power both to fascinate and
perplex. Even in this arcane field, however, the onus of proof
stands
out for its extraordinary ability to tantalise the legal mind. Few
subjects that are so important a part of the practical
workings of a
legal system can, at the same time, remain so mysterious, enigmatic
and elusive to the questioning mind. It is a
concept that seems to
recede the harder it is pursued and that resists any effort to define
and contain it. It is as if sometimes
one is chasing shadows and as
if any attempt at coming to grips with the subject can never yield
anything of substance”.
[1]
[30]
It is with the aforesaid in mind that I proceed cautiously to
consider the question of who carries the
onus.
The
general rule is that he/she who asserts must prove and not he who
denies (ei.
incumbit
probatio qui dicit, non qui negat
).
[2]
This on the face of it, simple rule, however opens the door to an
interesting and often complex legal debate. The question of what
needs to be proven by the one who asserts is not always easy to
determine. It is trite that the Plaintiff needs to prove his cause
of
action. The difficulty arises when a defence is raised which falls
outside the ambit of what would constitute the cause of action.
Such
a special defence ground, which falls outside the confounds of the
cause of action, must be proven by the party who relies
on it.
[31] In Schmidt,
Bewysreg: the following is said:
“ …
Die
feit dat die eiser al die vooverseistes vir die verweerder se
aanpreeklikheid moet bewys beteken egter nie dat die eiser noodwendig
elke betwiste feit moet bewys nie. Indien die verweerder ‘n
feit in geskil plaas wat verhoed het dat die beweerde regshandeling
regsgeldig of afdwingbaar word (in Duitsland soms ‘n
‘rechtshindernde Tatsache’ genoem) soos
handelingsonbevoedgheid,
ongeoorloofdheid, bedrog, ensovoorts, dan is
dit die verweerder wat die bewyslas dra. Dié word gesien as
feite waarop die
verweerder steun en wat buite die eiser se
aksiegrond val. Dit is spesiale verweersgronde wat deur die
verweerder in geskil geplaas
word”.
[3]
[32]
It has been found that the
onus
of
proof rests on the person that alleges that a will is invalid,
[4]
that a contract was entered into,
[5]
and that person was
non
compos mentis
.
[6]
These are but some examples of instances where the
onus
was
determined to rest on a specific party irrespective of whether the
relevant party was the plaintiff or defendant.
[33] In my view, although
Plaintiff carries the
onus
to prove his claim, Defendant
disputes a fact that places the legality of the change in nomination
in dispute and must consequently
prove that the signature is a
forgery. This aspect, in my view, falls outside the Plaintiff’s
cause of action and constitutes
a special defence ground. The
Defendant needs to prove the special defence ground on a balance of
probabilities.
[34] In the light of all
the facts of this case I am not satisfied that the Defendant proved
on a balance of probabilities that
the signature is a forgery.
[35] Consequently I make
the following order:
35.1 It is declared
that the disputed signature is not a forgery and is an authentic
signature of the deceased; and
35.2 The Defendant is
ordered to pay the costs of the hearing in terms of Rule 33(4).
_______________
R G TOLMAY
JUDGE OF THE HIGH
COURT
DATE OF
HEARING:
12 – 15 AUGUST 2016
DATE OF
JUDGMENT:
26 OCTOBER 2016
ATTORNEY FOR
APPLICANT: RAJESH HIRALALL ATTORNEY
ADVOCATE FOR
APPLICANT: KHAN (SC) et R HIRALALL
ATTORNEY FOR DEFENDANT:
KEITH SUTCLIFF & ASSOCIATES
ADVOCATE FOR DEFENDANT: T
MUNDELL (SC) et K SUTCLIFF
[1]
The South African Law of Evidence, D T Zeffert A P Paizes, a A StQ
Skeen, 2003, p 46
[2]
Smith’s Trustee v Smith
1927 AD 482
, 485; Pillay v Krishna,
1946 AD 946
on 952; Mobil Oil southern Africa (Pty) Ltd v Mechin
1965(2) SA 706 (A) 711
[3]
Schmidt & Rademeyer, 4e uitgawe p 38-39 t.a.v. bedrog sien
Malherbe v Ackerman
1944 OPD 91
on 93
[4]
Kunz v Swart
1924 AD 618
p 692; Tregea v Godard
1939 AD, 16
; Bowes v
Friedlander NO 1982(2) SA 504 (K) 509
[5]
Stocks & Stocks (Pty) Ltd v Daly & Sons (Pty) Ltd
1979(3) SA 754 (A) 762; Da Silva v Janowski 1982(3) SA 205 (A)
[6]
Pheasant v Warne
1922 AD 481
; Ken Barnard Motor & Bandediens
(Edms) Bpk v Pretorius 1970(4) SA 712 (T)