About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2014
>>
[2014] ZANCHC 6
|
|
Superstone Mining (Pty) Ltd v Dale Lonsdale Hohne (176/12) [2014] ZANCHC 6 (1 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
CASE
NO: 176/12
DATE:
01 FEBRUARY 2014
In
the matter between:
SUPERSTONE
MINING (PTY)
LTD
............................................................
Plaintiff
AND
DALE
LONSDALE
HOHNE
....................................................................
Defendant
Coram:
Lever AJ
JUDGMENT
L
Lever AJ
1.
This
is a claim for damages arising from an alleged theft, over a period
of time, of high value rough diamonds from the plaintiff.
The
business of the plaintiff is the re-processing of mine dumps created
by the historic mines of Kimberley. The defendant was
employed by the
plaintiff as its “Final Recovery Manager”. It is common
cause that at the material time the defendant
was responsible for the
final recovery of rough diamonds at the plaintiff’s processing
plant and in particular the defendant
was solely responsible for the
final recovery and management of what is called the Upper Gem Quality
Large Diamonds (“UGQLD”).
It is alleged that the
defendant stole high value diamonds, particularly the UGQLD, from the
plaintiff and sold them on the illegal
diamond market, primarily for
his own benefit. The issue of who may have gotten a percentage of the
proceeds and what that percentage
was, is not relevant for present
purposes.
2.
There
is a long and voluminous history of associated litigation in this
matter. It will not be necessary to deal with or even refer
to all of
it. For present purposes it is important to note that the defendant
faced a criminal prosecution. In that criminal trial
the defendant
objected to certain evidence being led on the basis that it was
obtained by irregular, improper and unconstitutional
means. A trial
within a trial was held. Bertelsman J., who presided in the criminal
trial, found that the evidence was not admissible
and that certain
evidence that flowed from or followed from information that arose
from the evidence that was disallowed was also
not admissible, as
being the fruit of the poisoned tree. The prosecution thereafter
closed its case and unsurprisingly the defendant
closed his case
without leading any evidence and as the defendant had already pleaded
to the relevant charges, was in those circumstances
entitled to his
acquittal.
3.
The
admissibility of the evidence rejected in the criminal trial,
together with what appears to be certain additional evidence,
came to
the fore as a preliminary matter in the present trial. The issue was
raised by agreement in the form of a pre-trial conference
minute. It
appears that the pre-trial conference took place on the afternoon
before the present trial and that the minute was finalised
on the
morning of the trial. The relevant portion of the agreement reads:
“
1.
Both parties agree that the Plaintiff will lead and present its case
as far as the admissibility of the following
are concerned:
1.1
The
video recordings of the interview with the Defendant;
1.2
The
Defendant’s affidavit made to the SAPS on the 15 January 2010;
1.3
The
pointing out of the diamonds by the Defendant, which was found in a
toolbox at the premises of Douglas Macleod on 15 January
2010;
1.4
The
acknowledgement of debt (with annexures) signed by the Defendant on
15 January 2010;
1.5
That
should Plaintiff call a witness, the Plaintiff will lead all of the
evidence in respect of the particular witness, also in
respect of the
other disputes.
1.6
The
Defendant thereafter if necessary will call witnesses in respect of
the admissibility only;
1.7
The
Court will then be requested to make a ruling insofar as the
admissibility of the evidence is concerned.”
4.
This
matter appears to be unique, in that this appears to be the first
time where the question of admissibility of evidence rejected
as
inadmissible in the preceeding criminal trial has been raised in a
subsequent civil matter to consider the admissibility of
substantially the same evidence in such civil trial.
5.
The
question of evidence, in a civil trial, obtained in a manner that
infringes on one of the entrenched rights contained in Chapter
2 of
the Constitution
[1]
has been
considered only, quite literally in a handful of cases
[2]
.
The majority of these cases can be broadly categorised as “restraints
of trade” and “unlawful competition cases”
[3]
.
The exception being Lotter’s case, which was an unopposed
application for a sequestration
[4]
.
6.
Jumping
slightly ahead of myself, a general statement of the approach that
emerges from these authorities is that a two stage method
is used in
deciding the admissibility of such evidence. First, it is incumbent
upon the person alleging the infringement of an
entrenched
constitutional right to establish such infringement. Second, once
such infringement has been established, it is incumbent
upon the
person seeking to use the relevant evidence to convince the court to
use its discretion to admit such evidence.
7.
On the
facts of the present case, the correct point of departure would be to
consider the differences in approach required in a
criminal trial as
opposed to what is required in a civil trial. What is required in a
criminal trial is governed by section 35(5)
of the Constitution.
Section 35(5) of the Constitution reads as follows: “Evidence
obtained in a manner that violates any
right in the Bill of Rights
must be excluded if the admission of that evidence would render the
trial unfair or otherwise be detrimental
to the administration of
justice.”
8.
In
order to properly appreciate the distinction between criminal and
civil trials one must also have regard to the rights set out
in
section 35(1) of the Constitution. The rights set out in section
35(1) operate in favour of an accused person who is arrested
for
allegedly committing an offence and such person has inter alia the
right to remain silent, the right to be informed promptly
of the
right to remain silent and of the consequences of not remaining
silent as well as the right not to be compelled to make
any
confession or admission that could be used in evidence against that
person.
9.
It is
clear from the content and context of section 35(1) and section 35(5)
that they apply exclusively to criminal trials. Civil
trials are
governed by section 34 of the Constitution, where the material
portion of section 34 provides: “Everyone has the
right to have
any dispute that can be resolved by the application of law decided in
a fair public hearing before a court or,…”.
It is clear
from the provisions of section 34 of the Constitution that
considerations of “fairness” come to the fore
in this
context. The concept of “fairness” in this context will
be dealt with later on in this judgment.
10.
In the
Fedics case, Brand J. (as he then was), illustrated the importance of
and consequences that flow from the distinction between
a criminal
trial and a civil trial in two separate passages. The first
of which reads as
follows:
“
On
the other hand, there is a fundamental difference between criminal
and civil proceedings which is, in my view, of considerable
importance in the present context, namely that in a criminal case the
accused person enjoys the privilege against self –
incrimination. He has the fundamental right to remain silent. The
prosecution must prove its case without any assistance from the
accused. The accused is under no duty to disclose his defence nor is
he obliged to disclose any documents which might strengthen
the
State’s case. In civil proceedings the position is quite the
opposite. A litigant is not only obliged to disclose his
case, he is
also obliged to discover all documents which may damage his own case
or which may directly or indirectly enable his
adversary to advance
his case.”
[5]
11.
The
other passage of the Fedicks case which is instructive in the context
of distinguishing between criminal and civil trials, reads
as
follows:
“
Without
trying to formulate principles of general validity or rules of
general application, the implications of these differences
between
criminal and civil proceedings in the present context are, in my
view, twofold. On the one hand, the litigant who seeks
to introduce
evidence which was obtained through a deliberate violation of
constitutional rights would have to explain why he could
not achieve
justice by following the ordinary procedure – including the
Anton Piller procedure – available to him.
On the other hand,
the Court will, in the exercise of its discretion, have regard to the
type of evidence which was in fact obtained.
Is it the type of
evidence which could never be lawfully obtained and/or introduced
without the opponent’s co-operation,
such as privileged
communications, or the recording of a tapped telephone conversation –
or is it the type of evidence involved
in this case, namely documents
and information which the litigant would or should eventually have
obtained through lawful means?
In the latter case, the Court should,
I think, be more inclined to exercise the discretion in favour of the
litigant who seeks
to introduce the evidence than it would be in the
case of the former. It goes without saying that the Court will, in
any event,
have regard to all the other circumstances of the
particular case.”
[6]
The
importance of this passage is to illustrate the difficulty in trying
to formulate a rule of general application and this was
why Brand J
qualified this passage at the outset. It is evident that both of the
considerations he mentions cannot have application
on the facts of
the present case, because the type of evidence obtained is different
and was obtained by different means. The type
of evidence is
different from that in the Fedics case
[7]
because in the instant case it amounts to a series of admissions in
the context of a civil claim. Broadly speaking, in the instant
case,
the means by which the relevant evidence was obtained was an
interview between representatives of the plaintiff and the defendant.
12.
The
next step after noting the importance of distinguishing between
criminal and civil proceedings is to consider section 34 of
the
Constitution, the relevant portion of which has already been quoted
above. It is certainly superfluous to state that section
34 applies
to all civil proceedings. Section 34 places emphasis on the
“fairness” of civil proceedings. In the broader
context
“fairness” in this section includes both the concepts of
“substantial justice” to all parties to
the dispute as
well as “procedural fairness” to be afforded to all
parties to the dispute.
13.
In the
Protea Technology case, Heher J (as he then was) issued a salient
warning that one cannot rely on the unrestrained philosophy
that the
end justified the means
[8]
.
However, he also makes it clear that “Uncovering the truth and
exposing the ungodly are not thereby relegated to unimportance.
They
are, as they ever have been, weights in the scales of justice.”
[9]
14.
Heher
J, then goes on to ask the following questions, “Is the
exercise of discretion by a court to admit evidence obtained
in
breach of a fundamental right reasonable or justifiable at all? If it
is, how should that discretion be exercised?”
[10]
Heher J answers these questions as follows: “Privacy is not an
absolute right under the Constitution. Nor can it be in practice.
That the court should retain the discretion to admit evidence which
is relevant is highly desirable provided any fundamental right
involved is given its proper weight in a judicial manner.”
[11]
15.
Heher
J also concludes, where the breach of a Constitutional right is at
play, that the common law position that in civil proceedings
all
relevant evidence is admissible no matter how it was obtained,
subject to the court’s discretion to exclude it needs
to be
formulated differently in order to remain constitutionally compliant.
He concludes that if a breach of a Constitutional right
is
established the complainant is prima facie entitled to have the
evidence obtained as a result thereof excluded, subject to the
court’s discretion to allow it. Heher J states that in
exercising this discretion the substance of section 36 (1) of the
Constitution must be applied.
[12]
16.
In my
opinion the suggestion in the Protea Technology case that the
substance of section 36(1) of the Constitution is the basis
upon
which the court should test whether to exercise its discretion to
allow evidence obtained in breach of a constitutional right
is
obiter, because I respectfully agree with Heher J that in the context
of the particular facts in the Protea Technology case,
the first
respondent in that case had no legitimate expectation of privacy.
17.
The
application of the substance of section 36(1) of the Constitution in
these circumstances has been criticised by Zeffert and
Paizes in
their work, THE SOUTH AFRICAN LAW OF EVIDENCE
[13]
.
In the circumstances of this case, it is not necessary for me to
consider this controversy.
18.
In
summary, the approach taken in the Fedics case
[14]
and the Protea Technology case
[15]
,
both contemplate a two stage approach to determining admissibility of
evidence obtained in breach of a fundamental right enshrined
in the
Constitution. The first step is to determine if the relevant
constitutional right has been breached in obtaining the relevant
evidence. At this stage of the proceedings the onus of establishing
that such evidence was obtained as the result of a breach of
a
constitutional right would rest on the person wishing to have such
evidence excluded. In these proceedings, this has to be established
on a balance of probabilities.
19.
If
such breach is established, the person seeking to rely on such
evidence must convince the court that appropriate grounds exist
for
the court to exercise its discretion to admit such evidence. This
would be so whether the basis upon which the court exercises
its
discretion is by the application of the substance of section 36(1) of
the Constitution or whether the basis upon which the
discretion
should be exercised is the weighing up of the facts and circumstances
of the relevant case against the legal convictions
of the community
as determined by the court by the application of acceptable means for
doing so. As already set out above by virtue
of the view I take of
the facts of the instant case, it is not necessary for me to consider
the second leg of this process.
20.
At
this point it is worth noting that even in criminal matters, by
virtue of the provisions of section 35(5) of the Constitution,
the
court has a discretion to allow evidence obtained in a manner that
violates a right in the Bill of Rights. In a civil trial,
and by
virtue of the manner in which the provisions of section 34 are set
out, a court will at least have a similar discretion
to the one
provided for in section 35(5) of the Constitution.
21.
In the
present case the defendant does not rely solely on alleged breaches
of his constitutional rights as the basis for excluding
the evidence
referred to in the pre-trial minute set out above. Defendant also
raises what he terms breaches of his “common
law rights”.
Even though the defendant did not raise these alleged infringements
of his common law rights in the pleadings,
I have allowed him to
canvass these issues. I have done so because I believe it is in the
interests of justice to allow the defendant
every opportunity to
raise every consideration that may impact on my discretion to
disallow the relevant evidence. Furthermore,
I do not believe the
plaintiff was prejudiced by this as the issues were canvassed with
the relevant witnesses.
22.
The
way that these alleged breaches of common law rights were presented
on behalf of the defendant was that the breach of these
rights
should, in and of themselves, preclude the plaintiff from adducing
the relevant evidence at this trial. Having regard to
the common law
rule on the admissibility of evidence in a civil trial, as discussed
hereunder, this is clearly an untenable approach.
I assume for the
benefit of the defendant that what was intended to be argued on the
defendant’s behalf was that these alleged
breaches of common
law rights constituted grounds upon which he wishes this court to
exercise its discretion to exclude the relevant
evidence, in the
manner contemplated in the case of Shell SA (Edms)Bpk en andere v
Voorsitter, Dorperaad van die Oranje-Vrystaat
en andere
[16]
as well as in the case of Lenco Holdings Ltd and others v Eckstein
and others
[17]
. These “common
law” rights and other pertinent legal submissions made on the
defendant’s behalf will be considered
later in this judgment.
23.
The
factual background against which these issues need to be considered
is fairly lengthy, but necessary for a proper consideration
of the
issues.
24.
The
defendant was employed by the plaintiff in a senior management
position. A great deal of trust was placed in the defendant by
the
plaintiff. Save for one security door referred to hereunder the
defendant held the keys for what was called “the red
area”,
that is the area where diamonds are recovered by the plaintiff. The
defendant is related to two directors of the plaintiff,
namely Mr JBL
Hohne, the Managing Director and Peter Hohne, the Marketing Director.
25.
The
defendant was responsible for the final recovery of the plaintiff’s
diamond production, in particular the UGQLD. The plaintiff’s
recovery plant is almost entirely automated and the system is
designed to try and ensure that human hands do not touch the diamonds
at any stage of the process. Through each process this plant
concentrates diamond material into ever greater concentrations.
26.
Without
going into details of the process, this culminates in a glass box
called the “glove-box”. The diamond material
is delivered
to the glove-box through sealed pipes. Access to the diamonds in the
glove box is only through means of sealed gloves.
The material that
is finally delivered to this glove box is known as “super
concentrate”. This glove-box has an upper
and a lower section.
The upper section is itself divided into two sections. The first
section deals with the smaller diamonds and
the second section deals
with the larger diamonds. Each of these sections in turn has two
stations with sealed gloves, each is
referred to as if it were an
individual glove-box. These glove-boxes (stations) on the upper level
are numbered consecutively,
from left to right when facing the lower
section of the glove-box, being glove-boxes 1, 2, 3 and 4. Different
work is carried out
at each glove-box. Each of these glove-boxes are
connected to the lower glass box by chutes. The chutes are also
numbered consecutively
from 1 to 4. Also from left to right when
facing the lower section of the glove-box.
27.
The
diamond production from each of the glove-boxes on the upper level is
delivered to the lower level by means of the chute in
each respective
glove box. The lower section of the glove box is one continuous glass
box. It also has four glove-boxes. These
“glove-boxes”
are also numbered consecutively from 5 to 8. Also from left to right
when facing the lower section of
the glove-box. Different work is
also carried out at each of these glove-boxes. For present purposes
and for reasons that will
become apparent later the UGQLD are
delivered down chute 3 into a jar at the bottom of such chute, which
is situated in glove-box
7. It was only the defendant, who was at the
material time the Recovery Manager of the plaintiff, who dealt with
the recovery of
UGQLD’s.
28.
One
side of glove-box 8 is made up of a safe, which has two doors. One of
these doors opens into glove box 8 (“the inner safe
door”).
This door has two keys and a combination lock. The other safe door
(“the outer safe door”) opens into
another area on the
other side of a wall. This area is also secured by a locked steel
security door. The safe also has a magnetic
switch which only allows
one of the safe doors to be opened at any one time. This magnetic
switch is contained in an orange box
that sits on top of the safe
inside the recovery room.
29.
The
external door which secures the area where the outer safe door is
situated cannot be opened by the defendant. In opening this
door the
defendant needs the assistance of a security officer employed by the
plaintiff.
30.
The
defendant’s duties were, in part, to sort the larger diamonds
in glove boxes 3 and 4 and deliver them through chutes 3
and 4 to
glove-boxes 7 and 8 respectively. The UGQLD were dealt with in
glove-box 3 and delivered through chute 3 to a jug at the
bottom of
such chute in glove-box 7. Large diamonds of low quality were dealt
with in glove-box 4 and delivered through chute 4
to the jar at the
bottom of such chute in glove-box 8. The evidence was that it was
rare to find a diamond fitting this description
and if one was found
it was invariably what was described as boart, which I understand to
be an industrial diamond.
31.
The
large and small diamonds are then combined and washed and rinsed in
solvent jars, called “click-clack” jars. The
diamonds are
then sized through a hand sieve. Diamonds that do not fall through
the hand sieve are weighed and diamonds of two
and a half carats or
more are individually recorded in a register that is kept outside of
the glove-box, together with a basic
description of each diamond.
This was the plaintiff’s standard operating procedure at the
material time and all diamonds
that fell within the said category had
to be individually recorded in the register as set out above.
32.
The
large and small diamonds were again co-mingled and placed together in
a special export container that had a facility for affixing
a seal.
The diamonds in the sealed container were exported from the glove box
through the safe. It was the plaintiff’s standard
procedure
that all diamonds had to be exported in this way with the exception
of very large and very valuable diamonds, which were
dealt with on an
ad hoc basis. The exception to the general practice is not relevant
on the facts of the present matter and save
for the fact that in the
process of dealing with very large and very valuable diamonds the
defendant was also placed in a position
of trust by the plaintiff no
more need be said about the exception to the rule.
33.
The
only way of getting things into and out of the glove-box was through
the safe. The contaminated solvent and water in the click-clack
jars
was also removed through the safe. Fresh solvent and water was also
brought into the glove-box through the safe.
34.
The
defendant was a trusted employee and he himself purchased the
click-clack solvent jars that were in use at the material time
by the
plaintiff, from Game in Kimberley. He purchased them with his
personal credit card and claimed the purchase price back from
the
plaintiff’s petty cash. The relevant supporting documents were
adduced at the hearing hereof and were not disputed. These
click-clack jars had a special feature that was not present in the
solvent jars that they replaced. The click-clack jars had a
removable
diaphragm that sealed the lid of the click-clack jar. This removable
diaphragm created a space between the lid of the
click-clack jar and
the diaphragm, in which things could be concealed.
35.
The
plaintiff’s diamond recovery plant is within a secure fenced
area. Access is controlled by way of a locked gate. Both
the inside
of the recovery room and the outside of the recovery room building
are covered by multiple CCTV cameras. The glove-box
itself is covered
by multiple CCTV cameras.
36.
The
feed from the CCTV cameras is monitored by a security officer. The
defendant was aware of the CCTV security cameras as he was
part of
the group responsible for placing the CCTV cameras and the
commissioning of the CCTV system that operated at the material
time.
37.
On the
7
th
January 2010 JBL Hohne received a telephone call from a security
officer, Glenda Goldstein, while he was away on a business trip
in
Johannesburg. Ms Goldstein informed him that she had some video
images of the defendant that were of concern to her. JBL Hohne
telephoned his brother and co-director Peter Hohne to go and view the
video footage. Shortly thereafter Peter Hohne phoned JBL
Hohne back
and expressed high levels of concern over what he had observed in the
video footage. It was then decided to monitor
the defendant and
obtain further evidence.
38.
After
JBL Hohne returned from his business trip he reviewed video footage
dating back to the 4
th
December 2009.
39.
A
meeting of the directors of the plaintiff was called. This meeting
was also attended by the plaintiff’s legal advisor Ms
Lloyd. It
was decided at this meeting that they would try to catch the
defendant red handed in the act of stealing diamonds from
the
plaintiff.
40.
Various
extracts of the CCTV footage showing the defendant’s conduct in
the glove-box were shown to the court. It showed the
defendant on
various occasions picking up a diamond out of a Tupperware dish,
examining it, but without recording it in the register
as required by
the plaintiff’s standard operating procedure, replacing it in a
corner of the Tupperware dish. This process
of examining individual
diamonds was often repeated. Then defendant would place another
Tupperware dish over the first Tupperware
dish, thus concealing the
diamond or diamonds he had handled in the lower dish. He would then
move the sandwiched Tupperware dishes
to glove-box 8.
41.
Defendant
would open the inner safe door and work facing toward the safe.
Possibly defendant believed that his shoulder would block
the view of
the CCTV camera. However, unbeknownst to the defendant, the plaintiff
had the lens on the CCTV camera that covered
the safe replaced with a
more powerful lens and slightly repositioned it to the extent that
plaintiff thought would not be noticed
by the defendant.
42.
In the
relevant CCTV video clips, the court observed, that: The sandwiched
Tupperware dishes were placed in the safe; the defendant
would appear
to manipulate something with his hand inside the safe; one of the two
click-clack jars would be placed inside the
safe without any
hesitation; the second click-clack jar would have its lid manipulated
and its diaphragm removed; defendant would
again reach into the safe;
it appeared as if he retrieved something or things from inside the
safe and placed them inside the cavity
in the lid of the click-clack
jar; the diaphragm would be replaced onto the lid of the click-clack
jar and the lid of the click-clack
jar would be closed; the second
click-clack jar would be inserted into the safe and the Tupperware
dishes would be returned to
the glove-box; the safe would then be
locked. This behavior would occur contemporaneously with the ordinary
and legitimate preparations
for the export from the glove-box of the
plaintiff’s diamond production for the relevant period.
Thereafter, the defendant
initiated the process for exporting the
diamonds and the click-clack jars from the safe.
43.
On the
15
th
January 2010 the security officer informed JBL Hohne by telephone
that the defendant started preparations for the export of diamonds
at
approximately 11 am. The plan was that JBL Hohne would telephone the
defendant once he had received confirmation that the defendant
had
locked the click-clack jar containing diamonds concealed in its lid
in the safe. JBL Hohne wanted to lure the defendant away
from the
evidence locked in the safe on the pretext that the defendant was to
come to the office of JBL Hohne in order to discuss
the defendant’s
annual salary increment. JBL Hohne planned to meet the defendant
downstairs and then ask defendant to accompany
him to his home.
44.
In
anticipation of this arrangement JBL Hohne had purchased a new video
camera which he had set up at his home. The explanation
given for the
breaks in the video recording, referred to hereunder was that this
camera recorded on an internal hard drive and
JBL Hohne did not know
the recording capacity of this hard drive.
45.
Ms
Goldstein had telephoned JBL Hohne to inform him that the defendant
had phoned her to ask her to come and assist with and witness
the
export procedure with the key to the door that secured access to the
outer door of the safe. JBL Hohne asked Ms Goldstein to
try and delay
the process of exporting diamonds from the safe. Ms. Goldstein
reported back that the defendant was not leaving the
area outside the
recovery room and appeared restless. JBL Hohne decided to send Peter
Hohne to the defendant in order to request
the defendant to accompany
him.
46.
Peter
Hohne testified that when he approached the gate of the red area, the
defendant saw him and rushed back inside the recovery
building. Peter
Hohne was delayed by the locked gate that controls access to the red
area where the recovery room building is situated.
47.
What
then transpired was observed from CCTV footage. The defendant rushed
through two security doors and down to glove box 8, flipped
the
magnetic switch allowing him to open the inner door of the safe, he
then opened the multiple locks on the safe, including a
combination
lock, grabbed one of the click-clack jars from the safe, removed the
diaphragm from the lid, removed certain objects
from the lid and
placed them in a jug at the bottom of chute 4 in glove-box number 8.
These objects were recovered some days later
and they turned out to
be large high value diamonds (UGQLD’s). The evidence was that
these types of diamonds would never
be recovered from chute 4 in
glove-box 8.
48.
After
placing these diamonds in the jug under chute 4, the defendant
returned the diaphragm to the lid of the click-clack jar. He
then
closed the click-clack jar and returned it to the safe. Defendant
then closed and relocked the safe and exited the recovery
building
and met Peter Hohne just outside the recovery building. From the
video footage it was established that the defendant accomplished
the
whole process set out above, opening two security doors, opening the
safe removing the click-clack jar, removing the diaphragm,
removing
the incriminating diamonds from the cavity in the lid of the
click-clack jar, placing the diamonds in the jug at the bottom
of
chute 4, replacing the diaphragm onto the lid of the click-clack jar,
closing the click-clack jar, returning it to the safe,
locking the
safe and exiting the recovery building in two minutes. Despite the
defendant’s one mistake in returning the UGQLD’s
to the
wrong jug at the bottom of the wrong chute, this was a remarkable
feat to observe by any standards.
49.
Peter
Hohne’s evidence was that he requested the defendant to
accompany him. The two of them were then joined by Noel Wewege
(“Wewege”), the plaintiff’s security consultant.
Peter Hohne took the defendant’s cellphone and they all
climbed
into Wewege’s club cab bakkie and proceeded to JBL Hohne’s
House.
50.
On
arrival at JBL Hohne’s house the evidence was that the
defendant was told that he had been brought to JBL Hohne’s
house to discuss certain security concerns and he was asked off
camera whether he would consent to the interview that was about
to
take place being videotaped. This question was repeated on camera
almost at the beginning of the interview. The defendant consented
to
the interview being videotaped.
51.
The
plaintiff’s witnesses described this interview as an internal
company enquiry. The tone and content of this interview
will be
discussed insofar as it may be necessary later on in this judgment.
52.
The
video recording of this interview is not one continuous recording.
There were a number of breaks in the recording. Most of these
breaks
in the recording are of comparatively short duration. One of these
breaks is for slightly more than half an hour.
53.
The
parties have agreed that the transcript of this interview is a
correct reflection of the interview in so far as it goes. The
parties
have also agreed that the video clips themselves are a correct
reflection of the interview, insofar as they go. The defendant
maintains that during these breaks in the recording certain threats
were made to him relating to himself and the welfare of his
family.
To this extent the defendant maintains the transcript and the video
recordings are not a complete record of what transpired
at this
interview.
54.
The
first question JBL Hohne asked the defendant was, what would be found
in the lid of the click-clack jar in the safe if they
if they went
back to the safe to recover the said click-clack jar. To which the
defendant replied “nothing”. The evidence
was that at
that stage the directors and representatives of the plaintiff were
not aware of the fact that the defendant had removed
the diamonds
from the click-clack jar after seeing Peter Hohne approach the “red
area”. The directors and plaintiff’s
representatives
became aware of this fact when defendant disclosed it later on in the
interview. This was also subsequently confirmed
by the CCTV footage
and the recovery of UGQLDs in the jar at the bottom of the chute in
glove-box 8.
55.
The
defendant’s initial answer led JBL Hohne to make what was
referred to as the “Dirty Dozen speech”. The context,
content and tone of this speech is a material part of many of the
arguments submitted on behalf of the defendant. For present purposes
it suffices to note that this speech essentially adopted the “carrot
and a stick” approach. At this point it also needs
to be noted
that both the “carrot” and “the stick”
offered to the defendant in the “Dirty Dozen speech”
were
attacked in the submissions and arguments made on behalf of the
defendant.
56.
The
interview continued and as set out above it was recorded in various
segments with breaks in between such segments. In short,
the
defendant admitted to taking and selling the plaintiff’s
diamonds. He also stated that he was paid approximately five
million
Rand for the diamonds he removed from the plaintiff over a period of
approximately 10 months.
57.
The
defendant also disclosed that he spent the money on cars, vehicles
and household goods. Defendant then discloses that he still
has
approximately five hundred thousand Rand at his disposal with which
he can repay the plaintiff.
58.
In the
video recording of the interview the defendant discloses that the
five hundred thousand Rand is kept in a safe at his father-in-laws
house, who happens to be his next door neighbour.
59.
The
defendant also makes a list of the assets he purchased with the money
received from the sale of the relevant diamonds. This
list forms an
annexure to an acknowledgment of debt referred to hereunder.
60.
In one
of the breaks in the video recording the defendant signed an
acknowledgement of debt in the amount of five million Rand plus
interest. This is the item of evidence referred to in paragraph 1.4
of the pre-trial minute set out above.
61.
Defendant
also discloses that there are still diamonds hidden in a locked tool
box situated in a store room in his father-in-laws
house and that
they used part of the cash proceeds of the sale of the diamonds to
buy “other” diamonds. Defendant estimated
that there were
some 5 or 6 “other” diamonds involved. It is clear that
these “other” diamonds were not
removed by the defendant
from the plaintiff’s plant.
62.
The
defendant drew a diagram of his father-in-laws house showing the
location of the storeroom where the relevant toolbox was kept.
The
defendant volunteered to give these diamonds to the plaintiff. A
police officer by the name of Neef Van Zyl was summoned to
JBL
Hohne’s home. An arrangement was made whereby the defendant
took Peter Hohne and Noel Wewege to his father-in-laws house.
The
police officer Van Zyl did not participate in this recovery of the
tool box but the evidence was that he remained in the background
and
although it is not clear where he was it is evident that he followed
the proceedings to some extent as Peter Hohne testified
that when
they transported the tool box to the offices of the SAPS diamond and
gold branch he observed Van Zyl following them.
63.
Peter
Hohne testified that when they arrived at the house of the
defendant’s father-in-law they found the gate locked. The
defendant attracted the attention of the father-in-laws gardener who
opened the gate for them. He further testified that the door
of the
house itself was open and that the defendant led them directly to the
storeroom and pointed out the relevant toolbox. The
defendant could
not find the keys to the toolbox and it was decided to remove the
toolbox to the offices of the SAPS gold and diamond
branch. The
defendant assisted Peter Hohne and Noel Wewege to remove this large
tool box on castors from his father-in-laws house
and assisted in
loading this toolbox onto Noel Wewege’s bakkie. He and Peter
Hohne then climbed on the back of the bakkie
and secured the toolbox
to prevent it from rolling around while Noel Wewege drove to the
offices of the SAPS gold and diamond branch.
64.
Defendant
then assisted in getting the toolbox into the SAPS offices where in
the presence of Van Zyl the locked drawers of the
tool box were
broken open until they found a small white plastic bottle which
contained 23 diamonds.
65.
The
process of recovering the relevant tool box is the pointing out
evidence referred to in paragraph 1.3 of the pre-trial minute
set out
above.
66.
A
further police officer, being Superintendent Wilmo Vermeulen, was
summoned to the offices of the SAPS diamond and gold branch.
Vermeulen and the defendant left Van Zyl, Wewege and Peter Hohne and
went to another part of the building where the defendant made
and
deposed to a statement in front of Vermeulen. Peter Hohne testified
that after the defendant left, in the company of Vermeulen,
he and
Noel Wewege left to go home. Peter Hohne then testified that at about
8:30pm he received a phone call to collect the defendant
from the
offices of the diamond and gold branch, which he did and returned the
defendant to his vehicle which was still on the
mine premises.
67.
This
statement made to Vermeulen is the evidence referred to in paragraph
1.2 of the aforementioned pre-trial minute set out above.
68.
Peter
Hohne testified that at about 9:30pm on the 15
th
January 2010 he telephoned the defendant and asked him to return the
five hundred thousand Rand that defendant acknowledged in
the video
interview that he kept in the safe at his father-in-laws house. About
20 minutes later the defendant arrived at Peter
Hohne’s house
with the five hundred thousand Rand in a box which defendant handed
to Peter Hohne. Defendant then signed a
document which acknowledged
that the five hundred thousand Rand was the proceeds of illegal
diamond sales.
69.
Peter
Hohne then testified that early the next morning he phoned the
defendant and asked the defendant to deliver to him the thirty
thousand Rand that defendant acknowledged in the video interview was
in the safe at his own home. The defendant arrived some 15
to 20
minutes later with the thirty thousand Rand. Defendant then signed a
similar document to the one he signed on the previous
evening. The
admissions made in the two documents acknowledging receipt of the
five hundred thousand and the thirty thousand Rand
respectively were
not contested at any stage during the hearing.
70.
The
final piece of evidence whose admissibility is challenged by the
defendant is the video recorded interview referred to in paragraph
1.1 of the pre-trial minute set out above.
71.
The
video tape interview also includes an interview with the defendant
that took place on the following Monday 18
th
January 2010. Where defendant was requested to bring a copy of his
statement to the SAPS to JBL Hohne. Ms Lloyd was also present
at this
interview. The defendant made his way to JBL Hohne’s house
under his own steam for this interview.
72.
It
emerges from the heads of argument filed on the defendant’s
behalf that the defendant alleges that the rights enshrined
in
sections 12(1)(a), (b), (c), (d) and (e) as well as those enshrined
in sections 14 (c) and (d) were violated by representatives
of the
plaintiff.
73.
As set
out above, the defendant bears the burden of establishing on a
balance of probabilities that these rights have been infringed
in
acquiring the four items of evidence subject to my ruling on
admissibility by virtue of the agreement between the parties set
out
above.
74.
Section
12 of the Constitution reads as follows:
“
12(1)
Everyone has the right to freedom and security of the person, which
includes the
right –
(a)
not to
be deprived of freedom arbitrarily or without just cause;
(b)
not to
be detained without trial;
(c)
to
be free of all forms of violence from either public or private
sources;
(d)
not to
be tortured in any way; and
(e)
not to
be treated or punished in a cruel, inhuman or degrading way.”
75.
The
relevant portions of section 14 of the Constitution read as follows:
“
14
Everyone has the right to privacy, which includes the right not to
have –
(a)…
(b)…
(c)
their possessions seized; or
(d)
the privacy of their communications infringed.”
76.
In
dealing with the defendant’s contention that his rights under
section 12(1), (a), (b), (c), (d) and (e), I am driven to
the
conclusion that defendant simply adopted a shotgun approach hoping
that something might work in his favour. The defendant in
formulating
his argument uses terminology loosely. This is illustrated by the
manner in which the submissions made on behalf of
the defendant have
been articulated. In the heads of argument filed on behalf of the
defendant, the argument was formulated as
follows:
“
59.3
It is equally clear that his constitutional right to freedom of
movement (section 12 (1)(a), (b), (c), (d) and
(e) of the
Constitution of the Republic of South Africa, Act 108 of 1996) was
seriously infringed by the plaintiff and its representatives.
(Removing a man from his workplace, his friends, his family and his
legal representatives for a period of some nine hours whilst
he is
badgered and bullied into admissions and concessions must be seen in
a very dark light by this Honourable Court.”
[18]
77.
The
submissions made on behalf of the defendant appear to conflate the
rights in section 21(1) and section 12 of the Constitution.
Despite
the introduction, clearly the defendant intends to confine his
arguments to section 12 of the Constitution.
78.
In
the context of the interview that took place on the 15
th
January 2010 the “freedom” of the defendant must be
tested in terms of whether the defendant exercised a choice as
to
whether he wished to accompany Peter Hohne and Noel Wewege to the
meeting at JBL Hohne’s house. In addition the court
will have
to consider whether the defendant retained this right of choice
during the three and a half hours that this interview
continued. Also
the court will have to consider whether the defendant retained the
right of choice when the diamonds were pointed
out and recovered from
the defendant’s father-in-laws house. The same applies to the
statement that was given to the police.
The defendant himself would
have been the best person to have given evidence on his state of mind
at the material times of this
process. The defendant chose not to
testify. Accordingly, these questions will have to be decided on the
facts as established and
the probabilities they reveal.
79.
The
evidence was that on the 15
th
January 2010 JBL Hohne telephoned the defendant after it had been
confirmed that the process for exporting the diamonds had been
completed and that the defendant had phoned the security officer to
request her assistance in finalising the procedure for exporting
the
diamonds from the glove-box. In this telephone conversation JBL Hohne
invited the defendant to come to his office in order
to discuss the
defendant’s annual salary increment. JBL Hohne admitted that
this was a ruse to draw the defendant away from
the incriminating
evidence that was then in the locked safe. The ruse did not work, the
security officer reported to JBL Hohne
that the defendant was not
leaving the vicinity of the recovery room building and that the
defendant was looking anxious. JBL Hohne
then implemented a back-up
plan and asked Peter Hohne and Noel Wewege to go and ask the
defendant to accompany them.
80.
Peter
Hohne testified that on approaching the red area he came around a
dump and saw the defendant peeping around the corner of
the building.
Once the defendant caught sight of him, the defendant rushed into the
recovery building. Peter Hohne was delayed
at the gate of the red
area.
81.
Some
two minutes later Peter Hohne met the defendant in the red area and
asked the defendant to accompany him as JBL Hohne had some
questions
for him.
82.
Clearly,
the defendant had concealed diamonds in the cavity of the lid of the
click-clack jar. This conclusion is supported by the
following facts:
The plaintiff’s process of recovering diamonds was designed to
exclude human hands touching the diamonds;
The super concentrate of
diamond material was delivered to the glove-box; The elaborate
processes adopted by the defendant and
witnessed in the CCTV footage
would make no sense if the defendant was not removing diamonds from
the plaintiff; The defendant’s
action in rushing back and
removing the incriminating evidence from the lid of the click-clack
jar confirms that the defendant
was taking the plaintiff’s
diamonds; and diamonds were recovered from the place where the
defendant said they would be found
which was confirmed by the CCTV
footage.
83.
Furthermore,
later on in the evening of the 15
th
January 2010 and on the morning of the 16
th
January 2010 the defendant returned five hundred thousand Rand and
thirty thousand Rand to Peter Hohne. On both occasions the defendant
signed a document that stated that he was returning the respective
amounts “…from the proceeds of illegal diamond
sales…”
[19]
. The
said documents indicate that Peter Hohne received such sums as the
representative of Ekapa Mining. The evidence was that Ekapa
Mining is
the plaintiff’s holding company. The defendant never disputed
his signature on these documents nor did defendant
claim at any stage
that these documents were inadmissible. The question that arises from
these documents is why would the defendant
return the respective sums
of money to the plaintiff and acknowledge that the funds he returned
to the plaintiff via its holding
company were the proceeds of illegal
diamond sales if he had not taken diamonds from the plaintiff. The
cumulative effect of all
of these facts shows that on the
probabilities, the defendant was stealing diamonds from the
plaintiff.
84.
With
the background fact established on the probabilities that defendant
was taking the plaintiff’s diamonds, the defendant’s
reaction to the sight of Peter Hohne clearly shows that the defendant
was no longer under the misapprehension that he was going
to JBL
Hohne’s office to discuss his annual salary increment. A
director of a company does not come to collect an employee
for
discussions on his annual salary increment. Also, from the manner in
which Peter invited the defendant to accompany him, being
that JBL
Hohne has some questions for him, the defendant must have known that
it was no longer about his annual salary increment.
The presence of
Noel Wewege, the plaintiff’s security consultant, at the
material time must have indicated to the defendant
that his
activities were at least arousing suspicion. The alternative of
refusing to accompany Peter Hohne to JBL Hohne would have
confirmed
any suspicions the plaintiff may have had and the defendant must have
appreciated that any such refusal would have had
consequences.
85.
There
was no question of physical force being used to force the defendant
to accompany Peter Hohne and Noel Wewege and this was
not even
suggested to Peter Hohne during his extensive cross-examination by Mr
Pretorius on behalf of the defendant. On the probabilities
the only
reasonable inference that can be drawn from these facts was that the
defendant suspected that his activities had been
discovered and
believing that he had disposed of the immediately incriminating
evidence he decided to accompany Peter Hohne and
Noel Wewege to see
how much the plaintiff knew and possibly talk his way out of any
difficulty.
86.
At no
stage during the recorded portion of the interview did the defendant
indicate that he wished to leave. The witnesses who testified
on
behalf of the plaintiff all testified that the defendant was not
forced to remain at the interview. They all testified that
if the
defendant had asked to leave he would have been free to do so. This
evidence was not materially undermined in cross-examination.
87.
Peter
Hohne testified that the defendant was not forced to accompany
himself and Noel Wewege to the house of his father-in-law to
point
out and recover the tool chest containing the diamonds that had not
yet been disposed of.
88.
Peter
Hohne also testified that the defendant was not forced to accompany
them to the offices of the SAPS gold and diamond branch.
89.
The
statement was made to a senior police officer. The defendant was
alone with the police officer when he made such statement.
Peter
Hohne testified that when the senior police officer and the defendant
left their presence he and Noel Wewege went home. He
only returned
when he was asked to come and fetch the defendant. In these
circumstances there was nobody compelling the defendant
to make that
statement. What is more the defendant on the following Monday when
asked by JBL Hohne to bring him a copy of the statement
to the police
the defendant under his own steam brought the statement to JBL Hohne
and consented to a further video interview.
90.
As
already indicated above the defendant bears the onus of establishing
that this constitutional right has been violated. The argument
tendered by Mr Pretorius on behalf of the defendant was that the
defendant was offered two choices either co-operate and the plaintiff
will seek immunity from prosecution on behalf of the defendant or
fail to be honest and fail to co-operate and be prosecuted and
accept
all the consequences that flow from such prosecution.
91.
The
witnesses who testified on behalf of the plaintiff testified that the
defendant was not deprived of his freedom and he was not
detained.
They testified that if he had asked to leave he would have been free
to do so. Their evidence was that defendant never
asked to leave at
any stage. They testified that defendant’s cell phone was taken
to stop him contacting the persons he was
selling diamonds to, as the
plaintiff intended to trap them in a sting operation and they didn’t
want the defendant to warn
such persons that the game was up.
92.
The
plaintiff’s witnesses testified that if the defendant wished to
use his cell phone he would have been allowed to do so.
The assertion
made on behalf of the plaintiff was substantiated by the fact that at
some point in the day the defendant’s
girlfriend sent defendant
an SMS. Peter Hohne testified that at the time the defendant’s
cell phone was in his possession,
that he asked the defendant to
retrieve the SMS and saw it was the defendant’s girlfriend
enquiring about the defendant’s
whereabouts. Peter Hohne
suggested that the defendant telephone his girlfriend and inform her
that he had problems at work. The
defendant duly took this
opportunity to phone his girlfriend under the supervision of Peter
Hohne.
93.
As
already stated, the defendant chose not to testify. This evidence
given on behalf of the plaintiff was not materially shaken
when the
plaintiff’s witnesses were cross-examined. The evidence given
on behalf of the plaintiff cannot be said to be inherently
improbable.
94.
When
considering the defendant’s contentions that his constitutional
rights set out in section 12 of the Constitution were
infringed it is
also important to bear in mind that at the time of the interview on
the 15
th
January 2010 the plaintiff had reasonable grounds to believe that the
defendant was stealing diamonds from the plaintiff. The defendant
as
an employee had an obligation to account to his employers and the
plaintiff had a corresponding right to call the defendant
to account.
95.
The
transcript of the interview which took place on the 15
th
January 2010 and the short sequel that took place on the 18
th
January 2010, must be read as a whole and in its proper context.
Despite the threat and initial harsh words contained in the “Dirty
Dozen speech”, if it is read in this manner I do not believe
that, in and of itself, such transcript establishes the alleged
breaches of the defendant’s constitutional rights under section
12 of the Constitution in acquiring the disputed evidence.
96.
In
dealing with the alleged infringement of defendant’s rights
under section 14(c) and (d) of the Constitution, the defendant
made
the following submission:
“
59.4
His right to privacy (section 14(c) and (d)) was also seriously
infringed in that the Superstone quartet forced
him under threat of
disemboweling him financially to illegally sign away all the
possessions he had, in that PJH (Peter Hohne)
determined who the
Defendant would phone, how he would and even what he was to say to
the person when he phoned. In addition, PJH
arrogantly and in total
disrespect of the Defendant and his pregnant girlfriend’s right
to privacy, sat and listened to the
conversation, thereafter
immediately removing the cell phone from the defendant.”
[20]
97.
Whatever
the defendant’s Counsel meant in the above submission the
alleged breach of the defendants section 14(c) and (d)
constitutional
rights can be dealt with by simply noting that the defendant never
established that the alleged breach of the these
rights ever played
any role in acquiring any one of the 4 pieces of evidence referred to
in the relevant pre-trial minute.
98.
In the
first leg of the enquiry set out above relating to the admissibility
of evidence attained as a result of a breach of a constitutional
right, the defendant bears the onus of establishing such breach of
the relevant constitutional right. This includes establishing
that
the relevant evidence was attained as a result of such breach. In the
instant case, the defendant has not discharged that
onus. In these
circumstances it is not necessary to proceed to the second leg of the
enquiry related to the alleged breach of the
defendant’s
constitutional rights.
99.
In the
arguments submitted on behalf of the defendant there was a great deal
of overlap between constitutional rights and common
law rights and
often very little effort to distinguish between them. The substantive
consideration of rights already dealt with
in the context of the
alleged infringements of constitutional rights will not be repeated
in the context of considering the defendant’s
common law
rights.
100.
The
defendant argued that his common law rights had been infringed. The
defendant identified these common law rights as follows:
100.1.
The
right to remain silent;
100.2.
The
right not to incriminate himself;
100.3.
The
right to an attorney; and
100.4.
The
right to contact someone to assist him.
101.
The
plaintiff’s witnesses characterised the interview with the
defendant that took place on the 15
th
January 2010 as an internal company enquiry. The defendant tried to
colour this interview as something much more sinister. The
point is
that in relation to considering whether the common law rights
referred to in paragraphs 100.1 to 100.4 actually exist
and if they
were infringed or not, the only evidence available is that such
interview was an internal company enquiry. The alleged
common law
rights and breaches thereof have to be considered in that context.
102.
The
right to remain silent and the right not to incriminate oneself need
to be considered in relation to the fact that defendant
was a senior
employee of the plaintiff who worked in a position where the
plaintiff placed a great deal of trust in the defendant.
The very
nature of this contractual relationship between the plaintiff and the
defendant gives the plaintiff the right to call
the defendant to
account. This contractual relationship between the plaintiff and the
defendant imposes upon the defendant a corresponding
obligation to
account to his employer. There is thus no obligation on the employer
to explain to the employee that he has the right
to remain silent or
not to incriminate himself. This does not mean that the defendant
cannot remain silent if he so chooses. In
which case the defendant
must accept the consequences that would flow from not accepting the
opportunity to explain his actions
to the plaintiff, the employer.
103.
At the
stage of the interview, the plaintiff had reasonable grounds to
believe that the defendant was stealing high value diamonds
from it.
In these circumstances I find that the plaintiff had a right to call
the defendant to account, there was no obligation
on the plaintiff to
explain to the defendant that he had the right to remain silent and
not to incriminate himself. This was not
a criminal proceeding, it
was not even a disciplinary proceeding and the defendant could choose
to remain silent and not incriminate
himself if he wished. This was
not a right at common law under those particular circumstances.
104.
The
alleged right to an attorney and the right to contact someone to
assist the defendant also falls to be considered in the context
of an
internal company enquiry. In these circumstances there is no common
law right to an attorney or even to contact someone to
assist him.
105.
Mr
Pretorius contended on behalf of the defendant that any admissions
the defendant made had to be freely and voluntarily made.
It was
argued on behalf of the defendant that the admissions made by the
defendant in the relevant sources of evidence were not
freely and
voluntarily made as a result of the infringement of the defendant’s
common law rights and the duress the defendant
was placed under.
106.
I
requested Mr Pretorius to provide me with authority for the
contention that in civil proceedings admissions against one’s
interest must be voluntarily made. No direct authority was provided
on behalf of the defendant. What was submitted on behalf of
the
defendant was an argument by way of analogy. This argument went as
follows: An acknowledgement of debt is essentially an admission
and
it has to be entered into voluntarily. Therefore, he submitted, all
admissions made in civil proceedings have to be made voluntarily.
This argument ignores the fact that an acknowledgement of debt is a
contract and it is subject to the law relating to contracts.
The law
of contract is not applicable to ordinary admissions made against
interest, which may be relevant to civil proceedings.
107.
The
requirements in relation to admissions in civil and criminal
proceedings have been considered and set out by Zeffert and Paizes
in
their work THE SOUTH AFRICAN LAW OF EVIDENCE
[21]
.
The learned authors state that there are four requirements for
admissions to be received as evidence. These requirements are:
Firstly, all informal admissions have to be relevant in the legal
sense; Secondly, the admission must be made by the person against
whom it is tendered; Thirdly, in the context of criminal trials only,
there must be compliance with the relevant statutes such
as the
Criminal Procedure Act and the common law; Fourthly, also in the
context of criminal trial only, there must be compliance
with
constitutional provisions relating to criminal trials such as those
contained in section 35 of the Constitution. The learned
authors make
it clear that the first two requirements relate to both criminal and
civil proceedings and the last two relate only
to criminal
proceedings. There is accordingly no general requirement that
admissions against interest in a civil trial must be
shown to have
been voluntarily made.
108.
Furthermore,
Mr Pretorius argued on behalf of the defendant that once the threat
of prosecution (the stick) and the promise that
plaintiff would seek
indemnity for the defendant (the carrot) had been put before the
defendant, the defendant’s conduct
in relation to creating all
of the above sources of evidence should be seen as one continuous act
where the defendant acted under
the same threat, which constituted
duress.
109.
As set
out above, in and of itself, duress is not a ground to exclude an
admission in a civil trial. Nonetheless, it will go into
the scales
when I consider whether the defendant has made an appropriate case
for me to exclude the relevant evidence under the
common law.
110.
It
was also submitted on behalf of the defendant that the promise of
non-prosecution was contra bonos mores on the grounds that
it
constituted compounding on the authority of the case of AREND AND
ANOTHER v ASTRA FURNISHERS (PTY) LTD.
[22]
Mr. Pretorius in making this submission relied on a selective reading
of the transcript of the video footage and in particular
singled out
the promise made by JBL Hohne that if the defendant was 100% honest
the plaintiff would not prosecute him. Within a
page of this first
promise made to the defendant Ms Lloyd made it clear to the defendant
that the final decision on immunity from
prosecution lay with the
prosecuting authority. JBL Hohne repeated the promise of
non-prosecution and Ms Lloyd also repeated her
clarification to the
defendant. The police officer Van Zyl also made it clear that the
prosecutor had the final say on whether
the defendant would be
offered immunity. Reading the transcript as a whole I do not believe
that it constitutes compounding. In
the circumstances I do not regard
the offer made to the defendant to be contra bonos mores.
111.
In
relation to the acknowledgement of debt specifically, it was
contended that this agreement was void ab initio on two grounds.
Firstly, that it was entered into by the defendant under duress.
Secondly, that it contained provisions in such agreement that
amounted to parate executie.
112.
Although
it was not articulated in that way, I assume for the benefit of the
defendant that that the emphasis on the acknowledgement
of debt being
void ab initio is that if that were the case it could be argued that
the acknowledgement of debt is not relevant
and therefore
inadmissible. This would in my opinion not be the case if the
contract was merely voidable at the instance of the
injured party.
113.
Christie
[23]
deals with when a contract can be considered void ab initio. On the
authority of Voet 4 2 1 the learned author states that it is
only
when it can be said that vis absoluta was applied that the contract
would be void ab initio. The learned author states that
vis absoluta
would be very rare and that he could not find a case in our modern
law which was decided on vis absoluta. It is clear
that on the facts
of the present case that vis absoluta does not apply. Accordingly,
the acknowledgement of debt in the present
case would be voidable at
the instance of the defendant. Therefore, for present purposes the
acknowledgement of debt is relevant
and is also therefore admissible.
This does not mean that the defendant cannot seek to have the
acknowledgement of debt declared
unenforceable at the appropriate
time in these proceedings.
114.
Clearly
then the first ground set out above being duress, vis absoluta being
absent, does not render the acknowledgement of debt
void ab initio.
115.
Dealing
with the second ground on which the defendant submits the
acknowledgement of debt is void ab initio, being that certain
provisions of the acknowledgement of debt amount to parate executie,
the doctrine of parate executie would render the offending
portions
of the acknowledgement of debt agreement unenforceable. It would not
render the entire agreement void ab initio.
116.
It was
also argued on behalf of the defendant that in entering into the
acknowledgment of debt in the manner that it did, the plaintiff
attained some advantage that it was not entitled to.
Dealing with this ground, Mr Pretorius relied on the authority
of
AREND AND ANOTHER v ASTRA FURNISHERS (PTY) LTD
[24]
.
The Court in the ARENDS case did not consider the question of
admissibility at all. It considered the question of enforceability
in
the context of an application for summary judgment. Even if the
plaintiff received some advantage which it was not entitled
to from
the defendant signing the acknowledgement of debt, that in and of
itself does not render the acknowledgement of debt inadmissible
It
might render the acknowledgement of debt unenforceable, but that
question is not before me now.
117.
Defendant
also criticised the conduct of Ms Lloyd in the manner in which she
secured the defendant’s signature on the acknowledgement
of
debt and other documents. The other documents are not relevant to the
present enquiry by virtue of the terms of the pre-trial
agreement set
out above. Ms Lloyd was criticised for not advising the defendant to
obtain the assistance of his own attorney before
signing the
acknowledgement of debt. She was also criticized for not explaining
the terms of and consequences that flow from the
said acknowledgment
to the defendant. The acknowledgement of debt was signed during one
of the breaks in the video recording. Ms
Lloyd testified that she did
explain the terms of the acknowledgement of debt to the defendant. As
stated the defendant did not
testify. In my view the complaints
against Ms Lloyd have no direct relevance to the question of the
admissibility of the acknowledgement
of debt.
118.
The
defendant’s attorney filed a rule 36(10) notice on the 19
th
July 2013 in respect of the video recording of the interview with the
defendant and the transcript of such video recording. Mr
Pretorius
was explicitly asked to deal with this issue and he was informed that
prima facie, on the court’s reading of this
rule, as the
plaintiff had not objected and the court held the view that it did
not matter which party produced the evidence of
the video tape or
transcript thereof, it would be received into evidence upon its mere
production under the provisions of Rule
36(10)(b).
119.
In
fact the last paragraph of the defendant’s Rule 36 (10) notice
indicates that the defendant’s attorney must also
have read the
Rule in the same way. The relevant paragraph of the said notice reads
as follows:
“
BE
PLEASED TO TAKE NOTICE FURTHER that failing receipt of plaintiff’s
notice of its objection to the production of the video
footage of the
interview with Dale Hohne (2 disks) and the transcription of the
video footage of the interview, within 10 (TEN)
days from receipt
hereof, the video footage of the interview with Dale Hohne (2 disks)
and the transcription of the video footage
of the interview
shall
be received in evidence upon their mere production and without
further proof thereof.”
(my emphasis)
120.
I deal
with the defendant’s Rule 36(10) notice at this stage of the
proceedings, because while I believe it is a relevant
consideration,
in circumstances where breaches of constitutional and common law
rights are alleged, I believe the correct point
of departure is to
deal with the substance of the claims relating to the infringement of
constitutional and common law rights first,
before considering the
implications of notices issued by a party under the Rules.
121.
In
respect of the video footage of the said interview and the transcript
thereof, the defendant’s Rule 36 (10) notice by implication
contains the following admissions: that the defendant admits the
accuracy and authenticity of the video footage and the relevant
transcript as far as they go, even if he contends that due to the
breaks in the recordings it is not a complete record; that the
defendant accepts that the video footage and the transcript thereof
are relevant to the proceedings at hand; and that the defendant
accepts that the video footage and the transcript thereof are
admissible in these proceedings.
122.
The
defendant did not bring an application to withdraw the admissions
implicit in his Rule 36(10) notice.
123.
On
behalf of the defendant Mr Pretorius made two submissions. Firstly,
that the relevant Rule 37 minute of the pre-trial meeting
held on the
12
th
August 2013 superseded the defendant’s Rule 36(10) notice. In
support of this submission Mr Pretorius argued by agreeing
to the
said Rule 37 minute the plaintiff acknowledged that the admissibility
of the video footage and the transcript were in issue.
Secondly, that
defendant issued the Rule 36(10) notice for the purpose of proving
his case in respect of the breaches to his constitutional
and common
law rights.
124.
Dealing
with the first issue raised by Mr Pretorius, I believe that on a
proper reading of the relevant pre-trial minute, what the
plaintiff
agreed to was that the court would rule on the admissibility of the
four disputed sources of evidence after consideration
of all of the
relevant facts and circumstances, including the defendant’s
Rule 36(10) notice.
125.
Dealing
with the second submission made by Mr Pretorius, a piece of evidence
once admitted as evidence in any proceedings is evidence
for all
relevant purposes in those proceedings. In the ordinary course the
defendant cannot pick and choose the purposes for which
evidence he
accepts as admissible should be used. Accordingly, this submission
has no substance.
126.
While
some might argue that the Rule 36(10) notice is by itself decisive.
In the circumstances of this case I will not approach
it in that way.
It will merely be one more factor placed in the scales when I
consider whether to exercise my discretion as to
whether I should
exclude the disputed evidence or not.
127.
Before
considering the discretion under the common law that this Court has
to exclude the relevant evidence, there is one more piece
of evidence
that I must refer to. JBL Hohne testified that there had been a major
crash in the European and Indian diamond markets
around December
2008. That the plaintiff had to restructure or face bankruptcy. There
was a meeting of all the staff and they were
asked to forego their
year-end bonuses and take an across the board ten percent cut in
salary, which they did. The plaintiff also
called for volunteers for
retrenchment and twenty three percent of the plaintiff’s staff
took voluntary retrenchment under
these circumstances. The defendant
on his own admission started taking diamonds from the plaintiff in
February 2009.
128.
The
defendant in his plea also contends that the admissions that appear
from the disputed evidence are made up and inaccurate. Reference
is
made to one passage in the transcript of the video interview where
the defendant says words to the effect let me tell you the
other half
and forget everything before. The defendant does change his version,
but only in respect of how he came to be involved
in the first place
and who the middlemen were and how the relationship between himself
and the middleman and the buyers worked.
Defendant did not at this
point change his versions of his modus operandi. Similarly, other
elements of the defendant’s story
as set out in the video
interview were not materially changed.
129.
Nevertheless,
important and material admissions made in the video interview were
corroborated. The pointing out of the unsold diamonds
at his
father-in-law’s house is important corroboration of the
defendant’s statements. The physical evidence of the
click-clack jars themselves is corroborated by the CCTV footage and
confirms the modus operandi disclosed by the defendant in the
video
interview. The behavior of the defendant witnessed from the CCTV
footage when he caught sight of Peter Hohne approaching
the red area
corroborates portions of the video interview. The defendant in this
“new version” disclosed in the video
interview did not
change his estimate of the amount of money he received as a result of
the sale of these diamonds. In these circumstances
I find there is no
substance to the defendant’s plea that he made up all of the
admissions set out in the transcript of the
video footage and his
statement to the police.
130.
The
defendant has the onus of establishing grounds for this Court to
exercise its discretion under the common law.
131.
In
weighing up the discretion this Court has, I take into account that
the Managing Director of the plaintiff, JBL Hohne candidly
admitted
that he threatened the defendant in the “Dirty Dozen speech”.
I weigh this against the fact that defendant
was committing a delict
against his employer. Evidence external to the disputed evidence
exists to show on a balance of probabilities
that the defendant was
stealing high value diamonds from the plaintiff. In this regard I
refer to the CCTV footage of what transpired
in and around the
glove-box in the plaintiff’s recovery room. Together with the
acknowledgments the defendant signed when
he returned both the five
hundred thousand Rand and the thirty thousand Rand to Peter Hohne.
The defendant does not contest these
acknowledgements nor does he
contend that they should also be inadmissible. Furthermore, the
defendant never contested the evidence
given by JBL Hohne that the
plaintiff was under severe financial pressure at the end of 2008.
Defendant must have known of
these financial difficulties
experienced by the plaintiff. Defendant was employed in the
management of the plaintiff. The evidence
was that a meeting was
called by the plaintiff to discuss the financial difficulties of the
plaintiff with all of the staff. The
defendant never contested this
evidence.
132.
On
these facts I do not believe that the legal convictions of the
community compel me to exercise my discretion to exclude the disputed
sources of evidence under the common law. Accordingly, on the facts
and circumstances of this case I will not exercise such discretion
in
favour of the defendant.
In
the circumstances I make the following ruling and Order:
1)
The
video recordings of the interview with the defendant are admissible.
2)
The
defendant’s affidavit made to the SAPS on 15
th
January 2010 is admissible.
3)
The
evidence of the pointing out of the diamonds by the defendant found
in a toolbox at the premises of Douglas Macleod on 15 January
2010 is
admissible.
4)
The
acknowledgement of debt (with annexures) signed by the defendant on
the 15
th
January 2010 is admissible.
5)
The
question of the cost of these proceedings to date are reserved to be
considered together with the other outstanding issues in
this matter.
Lawrence
Lever AJ
Dates
of hearing: 13 – 22 August 2013, 30 September 2013 and 11
November 2013
Date
of Judgment: /02/2014
APPEARANCES:
Counsel:
For
the Plaintiff:
F.W.A. DANZFUSS SC
For
the Defendant:
B. PRETORIUS and T.N. PRICE
Attorneys:
For
the Plaintiff:
HAARHOFFS INC.
For
the Defendant:
VAN DE WAAL & PARTNERS
[1]
Act 108 of 1996
[2]
Fedicks Group (Pty) Ltd and Another v Matus and others
1997 (9) BCLR
1199
(C); Protea Technology Ltd and Another v Wainer and Others
1997
(9) BCLR 1225
(W); Tap Wine Trading CC and Another v Cape Classic
Wines (Western Cape) CC and Another
1999 (4) SA 194
(C); Lotter v
Arlow and Another
2002 (6) SA 60
(T); Waste Products Utilisation
(Pty) Ltd v Wilkes and Another 2003 (2) SA 515 (W).
[3]
Protea Technology case, supra.; Fedicks case, supra.; Waste Products
case, supra.;
[4]
Supra.
[5]
Fedics case., supra., p. 1219., para. 90.
[6]
Fedics case., supra., p. 1220., para. 92.
[7]
Supra.
[8]
Protea Technology case., supra., at 1239 D.
[9]
Protea Technology case., supra., at 1242 E – F.
[10]
Protea Technology case., supra., at 1242 F.
[11]
Protea Technology case., supra., at 1242 H.
[12]
Protea Technology case., supra., at 1241 J – 1242 D.
[13]
Zeffert & Paizes., THE SOUTH AFRICAN LAW OF EVIDENCE., 2
nd
Ed., Lexis Nexis., pages 773 – 774.
[14]
Supra.
[15]
Supra.
[16]
1992 (1) SA 906 (O).
[17]
1996 (2) SA 693 (N).
[18]
The defendant was permitted to file 2 sets of heads of argument. The
passage quoted above appears in the heads that are entitled
DEFENDANT’S ADDITIONAL HEADS OF ARGUMENT RE COMMON LAW AND
CONSTITUTIONAL LAW INFRINGEMENTS OF THE DEFENDANT’S RIIGHTS
DURING THE INCIDENT OF 15 JANUARY 2010.
[19]
Bundle A., pp. 86 – 87.
[20]
The defendant was permitted to file 2 sets of heads of argument. The
passage quoted herein appears in the heads that are entitled
DEFENDANT’S ADDITIONAL HEADS OF ARGUMENT RE COMMON LAW AND
CONSTITUTIONAL LAW INFRINGEMENTS OF THE DEFENDANT’S RIIGHTS
DURING THE INCIDENT OF 15 JANUARY 2010.
[21]
Zeffert & Paizes., THE SOUTH AFRICAN LAW OF EVIDENCE., supra at
pp. 479-480.
[22]
AREND AND ANOTHER v ASTRA FURNISHERS (PTY) LTD 1974 (1) SA 298 (C)
[23]
RH CHRISTIE, THE LAW OF CONTRACT IN SOUTH AFRICA., 3
rd
Ed., pp. 337-338.
[24]
1974 (1) SA 298
(C).