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[2020] ZASCA 27
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Nohour and Another v Minister of Justice and Constitutional Development (1139/2018) [2020] ZASCA 27; 2020 (2) SACR 229 (SCA) (26 March 2020)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1139/2018
In
the matter between:
VISHNU
NOHOUR
FIRST APPELLANT
NEVILLE
MICHAEL CHARLES
SECOND APPELLANT
and
MINISTER OF JUSTICE
AND CONSTITUTIONAL
RESPONDENT
DEVELOPMENT
Neutral
citation:
Nohour and Another v
Minister of Justice and Constitutional Development
(1136/2018)
[2020] ZASCA 27
(26 March 2020)
Coram:
PETSE DP, VAN DER MERWE and DLODLO JJA
Heard:
05
March 2017
Delivered:
26 March 2020
Summary
:
Delict – damages arising from alleged wrongful conviction –
whether wrongful conviction proved – whether evidence
established on balance of probabilities that acquittal would have
followed if no irregularity had been committed – whether
proved
that the conduct of the prosecution was the cause of conviction –
ex turpi causa non oritur actio
maxim
not applicable.
ORDER
On
appeal from:
KwaZulu-Natal Division of
the High Court, Pietermaritzburg (Pillay J sitting as court of first
instance):
‘
The
appeal is dismissed with costs including the costs of two counsel
where so employed.’
JUDGMENT
Dlodlo
JA (Petse DP and Van der Merwe JA concurring):
[1]
The appellants, Mr Vishnu Nohour and Mr Neville Michael Charlos,
together with three others were tried on charges of kidnaping
and
rape of one RM in the Durban Regional Court. They raised the defence
that they had consensual sex with the complainant whom
they described
as a prostitute. The complainant denied that she had consented to the
sexual intercourse or that she was a prostitute.
The trial ended on 8
April 1994 when the appellants were convicted. They unsuccessfully
appealed against the conviction in the
KwaZulu-Natal High Court. The
high court, upon dismissing the appeal proceeded to increase their
sentences to an effective period
of 7 years’ imprisonment.
[2]
The appellants’ applied and were granted leave to appeal by the
high court to this Court. The appeal was against both
conviction and
sentence. On 13 May 2003, this Court set aside the appellants’
conviction and sentence. By that time, consequent
upon conviction,
the appellants had served a term of imprisonment from 19 March 1998
until 23 November 2001 and from 19 March 1998
until 28 September 2012
respectively.
[3]
One Ms Monique Holzen was at all material times an employees of the
Department of Justice and Constitutional Development (Department).
She was the State Prosecutrix in the trial. It is common cause that
at all material times, she acted within the course and scope
of her
employment by the Department.
[4]
In the particulars of claim in the court a quo, it is averred that in
the course of the criminal trial Ms Holzen omitted
to disclose
facts within her knowledge to the appellants and the regional court.
Those facts she withheld were:
(a) that the complainant
(RM) had admitted to the investigating officer that she was a
prostitute;
(b) that the
investigating officer had witnessed the complainant soliciting and
plying her trade as a prostitute; and
(c) that the
complainant’s sworn statement which, in accordance with the
practice at the time was not in possession of the
appellants or their
legal representatives, materially differed from her evidence in
court.
[5]
In acting as Ms Holzen did, the appellants alleged that she breached
her common law duty to disclose to the defence any material
deviation
between the evidence given by the complainant and the contents,
statements and information in the docket. The appellants
alleged that
had the aforementioned information been disclosed by the prosecutor,
they would have been acquitted of charges against
them. The
contention by the appellants is that the withheld information was
critical in their defence of consensual sex with the
complainant
[6]
According to the appellants as the prosecutor acted with the object
to secure a conviction against them she had the necessary
animus
uniuriandi
, that is, the intention to
injure. In the alternative the appellants pleaded that the prosecutor
acted negligently. The appellants
pleaded that as a consequence of
wrongful conviction they were imprisoned for various periods
described above. They were thereafter
subjected to stringent parole
conditions which restricted their rights and freedoms until their
appeals succeeded. They were unable
to be employed in the time they
were in prison and consequently they suffered loss of earnings. They
alleged to have suffered loss
of amenities of life, loss of freedom
of movement and loss of opportunities to interact with family and
friends. They averred to
have suffered depression from which they
continue to suffer. They claimed specified amounts of money
representing general damages,
past loss of earnings etc. Save for the
special plea of prescription, the respondent unhelpfully pleaded a
bare denial of each
and every averment made by the appellants. The
special plea is not before us. It was dismissed by the high court.
[7]
The trial proceeded only on the issue of liability. The appellants
denied that they raped the complainant. The high court found
that all
the essentials of the cause of action had been established by the
evidence advanced save for the issue of causation and
damages. The
high court found that the appellants failed to discharge the onus of
proving causation. Put differently, the appellants
failed to prove
that they would not have been convicted but for the irregularity
committed by the prosecutor. Another finding made
by the high court
was that the state was not obliged to compensate the appellants on
the basis of the ‘ex turpi’ principle.
[8]
This Court is called to make a determination whether the appellants
would have been acquitted if the prosecutor had discharged
her
common-law obligations and disclosed to the defence material
deviations between the complainant’s evidence and the contents
of the docket. Additionally, perhaps, a finding is called for whether
the high court was correct in finding that the
ex
turpi causa
maxim applied to the
factual matrix of this matter.
[9]
The duty to disclose the apparent deviations by a witness from the
statement made, existed in this country even prior to the
advent of
the present constitutional dispensation. Nowadays the constitutional
values are also relevant in determining the legal
convictions of the
community.
[1]
In
R
v Steyn
,
[2]
this
Court laid down a firm rule of practice in terms of which a public
prosecutor is obligated to inform the court if a state witness
has
deviated in a material respect from the statement he made which is in
the police docket. This rule also required that the State
shall
furnish to the defence a copy of such statement in order that it be
used during the cross-examination of the relevant witness.
The
prosecutor indeed had a legal duty to disclose material discrepancies
as aforementioned.
[10]
The information that the prosecutor should have disclosed in terms of
the aforesaid duty was concisely set out by Heher JA
in this Court’s
judgment in the following terms.
[3]
‘
9.
The statement made by the complainant to the police and the contents
of the investigation diary were only brought to the attention
of the
appellant and his legal advisers in 1998 after initial appeal had
been dismissed;
10. In the police
statement apparently signed by the complainant, she is reported as
follows:
“
On
1993-02-12 at about 23:15 I was walking with my sister (Hlewye
Mkhize) down Innes Road. To visit a friend who lives in Innes
Road
but I am unable to give address at this stage…. I was
screaming and four black males came to my rescue. A fight broke
between the unknown black males and the Asian males. . . The black
male who I informed that I was raped left the scene of the Asian
males whilst I stood by the roadside”. . .
‘
11.
The appellant testified that towards the latter part of the time
which he and the other accused spent with the complainant in
the park
they became aware of the noise in the vicinity including a gunshot.
When they were hurriedly settling accounts with the
still naked
complainant two black men ran into the park and confronted him he
panicked and fled. He heard what sounded like a fight
going on behind
him. (Accused 2 testified that, indeed such fight took place
involving him, accused 3 and the black men.)
12. In the investigation
diary the investigating officer, Murugan, made the following relevant
entries:
“
93/05/14.
. . The complainant was traced and served with J32 . . . According to
the complainant, the person mentioned in her statement
H Mkhize is
not in fact her sister but a fellow prostitute . . . tried to get
hold of this prostitute but she kept avoiding me
. . .
13. In the affidavit
which supported the application to re-open the case the investigating
officer confirmed that conversation which
he had with the complainant
on 14 May 1993 and added that the source of his knowledge that she
was a practising prostitute was
not only that conversation but his
own observation of her while she was engaged in soliciting.’”
The
conduct of the prosecutrix in withholding these material matters from
the trial court and the defence was most certainly gross.
[11]
If the prosecutor concerned acted deliberately in omitting or failing
to disclose the aforementioned discrepancies to the court
and to the
defence, the requirement of
animus
iniuriandi
would
be established. On the other hand, if the prosecutor acted
negligently, then liability can only arise where the circumstances
give rise to a legal duty to avoid negligently causing harm. The
principles applicable to liability for negligent omission were
correctly formulated by Nugent JA in the following terms:
[4]
‘
A
negligent omission is unlawful only if it occurs in circumstances
that the law regards as sufficient to give rise to a legal duty
to avoid negligently causing harm. It is important to keep that
concept quite separate from the concept of fault. Where the law
recognises the existence of a legal duty it does not follow that an
omission will necessarily attract liability – it will
attract
liability only if the omission was also culpable as determined by the
application of the separate test that has consistently
been applied
by this Court in
Kruger
v Coetzee
,
namely whether a reasonable person in the position of the defendant
would not only have foreseen the harm but would also have
acted to
avert it, “namely whether a reasonable person in the position
of the defendant would not only have foreseen the
harm but would also
have acted to avert it.’
[12]
Negligence is a discrete element of delict by omission. It must,
however, be considered in the light of all the evidence and
submissions regarding the issues of causation and wrongfulness. The
test for negligence in
Kruger
v Coetzee
[5]
has
been followed since its formulation by Holmes JA. The Constitutional
Court confirmed the test in
Steenkamp
NO v Provincial Tender Board, Eastern Cape.
[6]
The
test is that negligence is established if:
‘
(a)
a
diligens
paterfamilias
in
the position of the defendant –
(i) would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing his patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(b) the defendant failed
to take such steps.’
The
formulation of the test in
Kruger v
Coetzee
has been extended under our
Constitution. It now includes reasonable precautions to be taken by
public servants when discharging
their constitutional obligations.
[13]
This Court, explaining the test which courts apply to determine the
element of wrongfulness for the purpose of establishing
liability,
stated the following in
Van
Eeden v Minister of Safety and Security
;
[7]
‘
An
omission is wrongful if the defendant is under a legal duty to act
positively to prevent the harm suffered by the plaintiff.
The test is
one of reasonableness. A defendant is under a legal duty to act
positively to prevent harm to the plaintiff if it is
reasonable to
expect of the defendant to have taken positive measures to prevent
harm. The Court determines whether it is reasonable
to have expected
of the defendant to have done so by making a value judgment placed,
inter alia, upon its perceptions of the legal
convictions of the
community and on consideration of policy. The question whether a
legal duty exist in a particular case is thus
a conclusion of law
pending on a consideration of all the circumstances of the case and
in the interplay of the many factors which
have to be considered.’
The
approach adopted by our courts whether the omission
should
be regarded as unlawful is an open and flexible one. The court have
played a policy making role.
[8]
[14]
Wrongfulness is an essential element in delict.
[9]
The
Constitutional Court held in this regard that the element of
wrongfulness acts ‘as a brake on liability’ and that
conduct is not to be regarded as wrongful if public or legal policy
considerations determine that it would be ‘undesirable
and
overly burdensome to impose liability’.
[10]
In
Le
Roux and Others v Dey
,
[11]
the
Constitutional Court confirmed that the criterion of wrongfulness
depends on a judicial determination as to whether it would
be
reasonable to impose liability on the defendants, which
reasonableness has nothing to do with the reasonableness of the
defendant’s
conduct or omissions. Therefore, even if it were to
be found that there was negligence herein, the mere fact of such
negligence
may not make the omission wrongful. In order to prevent
the ‘chilling effect’ that delictual liability in such
cases
may have on the functioning of public servants, such
proportionality exercise must be duly carried out and the
requirements of
foreseeability and the proximity of harm to the
action or omission complained of, should be judicially evaluated.
[12]
[15]
As it had been said, the court a quo found that the elements of fault
and wrongfulness had been proved. What remained was proof
of factual
and legal causation. As far as factual causation is concerned the
sine
qua non
test
applies.
[13]
Legal
causation entails an enquiry into whether the alleged wrongful act
(wrongful omission to disclose deviations) is sufficiently
closely
linked to the harm for legal liability to ensue. Generally, a
wrongdoer is not liable for harm that is too remote from
the conduct
alleged or harm that was not foreseeable.
[14]
Remoteness
of damage operates along with the requirement of wrongfulness as a
measure of judicial control in respect of the imposition
of delictual
liability. It, therefore operates as a ‘long stop’ in
cases where most right-minded people will regard
the imposition of
liability in a particular case as untenable despite the presence of
all other elements of delictual liability.
[15]
[16]
Legal causation is resolved with reference to public policy. For that
reason, the elements of legal causation and wrongfulness
will
frequently overlap. They nevertheless, remain conceptually
distinct.
[16]
The
result is that even if conduct is found to have been wrongful (or
even negligent, for that matter), a court may still find,
for other
reasons of public policy, the harm flowing therefrom to have been too
remote for the imposition of delictual liability.
The traditional
tests for determining legal causation (reasonable foreseeability,
adequate causation, proximity of the harm etc.)
remain relevant as
subsidiary determinants. These traditional tests should be applied in
a flexible manner. They should be tested
against considerations of
public policy as infused with constitutional values.
[17]
Insofar
as legal causation is concerned, every matter must be determined on
its own facts. The consideration of legal causation
or wrongfulness,
public policy considerations, infused with the norms of our
constitutional dispensation dictate that even if the
prosecutor
suffered from negligent omission, legal liability may ensue if the
harm was foreseeable and is not too remote.
[17]
Whether an act or omission is the proximate cause of harm depends on
the conclusion drawn from the available facts and the
relevant
probabilities. Similarly, the conclusion as to whether a causal link
exist between the wrongdoer’s conduct and the
harm alleged is
drawn from the facts, the evidence before court and the relevant
probabilities in the circumstances. In
Minister
of Police v Skosana
,
[18]
this
Court expressed itself regarding the test for factual causation in
the following terms:
‘
Causation
in the law of delict gives rise to two rather distinct problems. The
first is a factual one and relates to the question
whether the
negligent act or omission in question caused or materially
contributed to . . . the harm giving rise to
the claim.
If it did not, then no legal liability can arise and
cadit
quaestio
.
If it did, then the second problem becomes relevant, viz. whether the
negligent act or omission is linked to the harm sufficiently
closely
or directly for legal liability to ensue or whether, as it is said,
the harm is too remote. This is basically a juridical
problem in
which considerations of legal policy may play a part.’
The
general principle of the law of delict is that loss is recoverable
only if it was factually caused by a defendant’s wrongful
and
culpable conduct. One purpose of the law of delict is to encourage
those who commit delict to admit their liability and to
pay damages
to their victims without the need for lengthy, divisive and
prohibitive expensive litigation.
[19]
[18]
Factual causation in delict is also determined by applying the
but–for test. This test asks whether, for defendant’s
negligent conduct, the plaintiff’s harm would not have
occurred.
[20]
The
but-for test requires the court mentally to eliminate or think away
as much of the defendant’s conduct as was unreasonable,
and to
ask hypothetically whether the plaintiff would still have suffered
the harm had the defendant acted reasonably. If the harm
would have
‘not’ been suffered factual causation is established; if
the harm ‘would’ have occurred anyway,
the required
causal link is absent. Courts exercised common sense when applying
this test.
[21]
Nugent
JA, in
Van
Duivenboden
,
held that the first enquiry is whether the wrongful conduct was a
factual cause of the loss. The second is whether in law it ought
to
be regarded as a cause. The same test was formulated slightly
differently by Corbett CJ in
International
Shipping
[22]
as
follows:
‘
The
first is a factual one and it relates to the question as to whether
the defendant’s wrongful act was a cause of the plaintiff’s
loss. This has been referred to as “factual causation”.
The enquiry as to factual causation is generally conducted
by
applying the so-called “but-for test”, which is designed
to determine whether a postulated cause can be identified
as
causa
sine qua non
of
the loss in question. In order to apply this test one must make
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and the
substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis plaintiff’s
loss would
have ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of the plaintiff’s
loss;
aliter
,
if it would not so have ensued. If the wrongful act is shown in this
way not to be a
causa
sine qua non
of
the loss suffered, then no legal liability can arise. On the other
hand, demonstration that the wrongful act was a
causa
sine qua non
of
the loss does not necessarily result in legal liability. The second
enquiry then arises, viz whether the wrongful act is linked
sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote. This
is
basically a juridical problem in the solution of which considerations
of policy may play a part. This is sometimes called “legal
causation”.’
In
other words, the test of the factual causation is simply whether the
relevant act of omission was a necessary condition (
conditio
sine qua non
) of the event in question.
[19]
A brief summary of the evidence presented by the prosecution before
the regional court is necessary. This under normal circumstances
would not have been necessary because the appeal before us concerns a
delictual claim. But the criminal proceedings herein are
foundational
to this appeal. The complainant testified before the regional court
that she was walking down Innes Road with her
sister when a motor
vehicle occupied by the appellants and their companions stopped. The
occupants of the vehicle alighted and
one of them called out ‘hey,
come here.’ the complainant and her sister ignored that call.
Then suddenly the appellants
and their companions started chasing
her. She told the trial magistrate that she ran into a foyer of a
block of flats situated
not far from the intersection with Umgeni
Road. A locked inner door prevented any further escape for the
complainant. It was there
that one of the attackers (accused 2)
caught her, slapped her and he accused her of robbing his brother.
Accused 2 claimed that
he was a policeman effecting an arrest of the
complainant. It is so that no police appointment certificate was
exhibited to her.
The complainant was lifted off the ground and she
was carried despite her muffled scream to the waiting vehicle, which
at that
stage was occupied by accused 1. Her mouth was gagged by
someone’s hand, preventing her scream from having any effect.
All
the occupants of the vehicle, who were initially in the vehicle
(including the two appellants), were then again in the vehicle.
The
complainant was forced into the back seat between accused 3 and 5.
She testified that en route she was assaulted by at least
accused 3
and 5. Accused 5 undressed his jacket and it was then used to cover
her head. The vehicle stopped at the grounds described
by the
complainant as being dark and secluded. She was pulled out from the
vehicle. En route to the corner behind a precast wall,
accused 2
threatened the complainant saying that he would shoot her if she
makes noise.
[20]
She testified, in the magistrate court, that she believed that she
would indeed had been shot because during the journey something
resembling a gun had been pointed at her temple. She added though
that she never managed to identify what she perceived was the
firearm
because she believed there was a firearm and that she would be shot,
she calculated in deciding whether to flee through
the hole in the
wall or not. She was, in any event, further hampered by an injured
knee sustained during a fall in the initial
flight into the foyer.
She testified how she was forcibly undressed and instructed to lie
down. She exhibited some reluctance to
comply but was forcefully
‘dropped’ to the ground. This was followed by sexual
intercourse by accused 2 in two positions
after which he whistled for
accused 3, 4 and 5. At a point two accused persons would hold her
whilst one of them was vaginally
penetrating her. At one stage one of
the assailants placed his penis into her mouth. There was a stage
when there was a jostling
for sexual intercourse with her by all
accused. In her evidence they all had sexual intercourse with her
against her will. She
never consented. She testified that it was even
possible that some of her assailants had sexual intercourse with her
more than
once.
[21]
When she heard voices of people conversing and laughing, emanating
from the direction of the road, she cried out and this led
to the
termination of the assault upon her. She testified that this caused
the accused persons to flee the scene. She thereupon
fled naked
through the hole in the wall. She met up with a man, later on
established to be Msomi, to whom she reported, ‘Indians
are
raping me’. Msomi referred her to a woman nearby for
assistance. When this lady realised how naked the complainant was,
she gave her an oversized jersey to hide her nakedness and suggested
that they go into a room. The complainant who was still fearful,
declined and they hid rather in the garden. They remained there until
satisfied that those calling her were in the company of the
police.
The complainant was conveyed to the police station after pointing out
the scene of rape and her statement was taken. The
complainant was
subjected to grilling cross-examination by the accused’s’
legal representative. Her evidence was unshaken
by that
cross-examination. Importantly she denied the version of the accused
that they had sexual intercourse with her with her
consent. She
denied further that she was a prostitute. Dr Vawda, on examining the
complainant, concluded that sexual intercourse
most probably took
place. He confirmed as well that the complainant’s left knee
had suffered abrasions. The complainant also
told the magistrate that
she suffered abdominal pain particularly to the groin and also in the
legs. Additionally, she stated that
her vagina bled during the
attack.
[22]
Mr Michael Msomi and Mr Sipho Hadebe testified for the State. Hadebe,
was together with Msomi when they heard a female crying
at about
00h30. Both exited the room to investigate. They stood about 20
meters from the boundary wall to the park in order to
discern the
direction of the cry. A naked complainant appeared from the gap in
the wall. She was ‘crying excessively’.
She reported that
she had been raped by five men. She was referred to a lady living
nearby for some clothing to cover her nakedness.
Msomi was still
trying to see what he could do there at the scene of rape when he
came across accused 1 putting on his trousers
whilst his underwear
was just above his knees. When Msomi was grabbing accused 1, the
other accused persons appeared from the trees
and prevented Msomi
from grabbing accused 1. Msomi was hit by accused 3 in the face
despite the fact that he produced his appointment
certificate in an
endeavour to identify himself. The evidence is that then all the
accused persons fled towards the motor vehicle.
Msomi had already
recorded the registration number of the motor vehicle before it drove
away with the accused persons.
[23]
Whilst Msomi and Hadebe were conversing the vehicle returned. The
occupants disembarked. Msomi realised he was in danger as
the group
of accused advanced towards him after disembarking from their motor
vehicle. Msomi fled and accused 3 gave chase. Msomi
outran accused 3
and he telephoned the charge office from his residence. He requested
that they contact radio control and send
reinforcements. The flying
squad responded promptly. That is how the accused were arrested. The
occupants of the accused vehicle
had already attacked and injured
Hadebe. He told the court that when accused vehicle returned, its
occupants alighted, struck and
stabbed him on the head, cheekbone and
left kidney. Hadebe was rushed to hospital by the police. Msomi
recalled that when he was
in the company of a female constable a
search revealed the complainant and her good Samaritan hiding amongst
some shrubbery. On
being interviewed by the female constable, the
complainant pointed out some of her property in the accused vehicle.
At the scene
complainant’s shoe, brassier and a knife were
discovered.
[24]
The claim by the appellants that if the information contained in the
docket had been made available to them they would have
used it such
that they would have been acquitted goes too far. In the first
instance it is unknown what explanation would have
been given by the
complainant on why in her oral testimony she disputed the assertion
that she was a prostitute when it appears
that in her police
statement she had so stated. The appellants are in no position to say
that their cross-examination in this regard
would have yielded the
result they contend for. The trial magistrate would still have a duty
to evaluate her evidence. It is of
significance that the magistrate
was made aware that the complainant was alleged to be a prostitute.
The prosecution in addressing
the court did tell the court so.
Consequently, the magistrate remarked as follows:
‘
There
have been allegations that the complainant was a lady of ill-repute
and of course you would have the court believe, as you
have
throughout this trial that she had offered herself to you for reward.
Even if that be the case she is still entitled to the
protection of
the law.’
It
appears from this statement that, in evaluating the complainant’s
evidence, the trial magistrate took into account that
she might have
been a prostitute.
[25]
The evidence of the complainant did not stand alone. When she
screamed excessively on being sexually assaulted this attracted
the
attention of Msomi and Hadebe whose evidence forms part of the
summary above. The defence of the appellants was that the sexual
intercourse was consensual and that the complainant was a prostitute.
The complainant suffered abrasions on her left knee. This
militates
against consensual sexual intercourse. The appellants’
testified that the complainant was either lying on her back
or was
seated when sexual intercourse took place. The injury she sustained
is unlikely to have occurred if sexual intercourse took
place with
her consent. Only one of the complainant’s shoes was found in
the appellants’ motor vehicle together with
her brassier as
stated in the summary of evidence above. A police officer found her
‘hysterical – hiding in the
shrubbery’ with a
woman (the good Samaritan) who was comforting her. The difficulty for
the appellants is that all of the
above is not reconcilable with
consensual sex, whether for reward or otherwise. The aforegoing is
independent of the prosecutor’s
omission to disclose statements
indicating the complainant as a prostitute. How in these
circumstances could the prosecutor’s
omission be a factual
cause of the appellants’ conviction?
[26]
Turning to the case presented by the appellants before the high
court, no evidence exists as to what the response of the complainant
would have been, for instance, had she been confronted by way of
cross-examination as to why, having admitted this fact to the
investigating officer, she denied that she was a prostitute in her
viva voce evidence before the trial court. It might well be
that
there was a compelling and an understandable explanation for this.
Nobody knows. One could only speculate on this score. Having
responded in whatever manner she would have chosen, nobody knows for
a fact how the presiding magistrate would have found in the
evaluation of the complainant’s evidence. Again one can only
speculate. However, courts work on the basis of evidence from
which
facts are established and not conjecture. It remains speculation, as
well, on the part of the appellants to advance an argument
that had
the prosecutor disclosed to the defence the content of the
complainant’s statement contained in the docket,
cross-examination
on that score of the complainant would have
resulted in their acquittal. There is no factual basis for such an
argument. Nobody
knows how the magistrate would have decided. It is
not uncommon for instance that the witnesses’ statements are
different
from the viva voce evidence. Witnesses often explain such
differences satisfactorily whenever confronted on such differences.
But,
as already indicated, the trial magistrate had due regard to the
fact that the complainant might have been a prostitute when he
evaluated the evidence presented before him in its totality. The
appellants bore the onus of proving all requirements for delict
including factual causation on a balance of probabilities.
[27]
The magistrate made the following observations concerning the
complainant:
‘
The
complainant subjected to a lengthy and repetitive questioning on
three appearances held up well, exhibiting natural and expected
moments of tearfulness from time to time.
’
The
magistrate expressed himself as follows regarding the evidence by
other witnesses:
‘
The
court can find no suggestions of untruthfulness in the unified
version of Msomi and Hadebe, both independent witnesses, that
their
attention was drawn by the plaintiff cry for help which sounded to
have enacted from the complainant.’
The
magistrate observed further:
‘
Arguing
for the conviction for all as charged on count one on the basis of
common purpose, and of accused 2 to 5 on count two, also
as charged,
the prosecutrix seemed to think that the probabilities favoured the
finding that the complainant was indeed the prostitute,
a fact she
(the complainant) vehemently denied, but pointed out that even if
this was so no significant damage to the prosecution
case would
inevitably follow.’
Even
though the prosecutrix omitted to disclose to the defence the fact
that the complainant admitted in her police statement that
she was a
prostitute, the same prosecutrix did inform the trial magistrate
about this. This may not have been at appropriate stage
of the
criminal hearing, but the fact is, the magistrate was made aware of
this. He expressed his views about this. The submission
that the
appellants would never have been convicted but for the prosecutor’s
non-disclosure lacks substance. There are no
facts established by
evidence advanced that support the assertion that they would have
been acquitted but for the omission by the
prosecution. They failed
the test for factual causation which is the
condition
sine qua non
.
The appellants have thus failed to produce evidence that the
prosecutor’s conduct ‘caused or materially contributed
to’ the harm suffered. The wrongful act on the part of the
prosecution has not been proved to be linked sufficiently closely
or
directly to the loss alleged to have been suffered by the appellants.
There is no causal link proved. The appeal must clearly
fail. The
ex
turpi causa non oritur actio
maxim,
accepting that it is part of our law, had no application on the facts
of this case. But having regard to the conclusion to
which I have
come, nothing more need be said about it.
[28]
In the result, the following order is made:
‘
The
appeal is dismissed with costs including the costs of two counsel
where so employed.’
_________________
DV Dlodlo
Judge of Appeal
APPEARANCES:
For
Appellant: T N Aboobaker SC and M Bahadur
Instructed
by: Justice Reichlin Ramsamy, Durban
Webbers
Attorneys, Bloemfontein
For
Respondent: CAS Jennings and SH Ngcobo
Instructed
by: The State Attorney, Durban
The
State Attorney, Bloemfontein
[1]
Van
Eeden v Minister of Safety and Security
2003
(1) SA 389
(SCA) at 396G-J.
[2]
R
v Steyn
1954
(1) SA 324 (A).
[3]
Myendra
Naidoo v The State
Case
no. 504/2002, unreported judgment of this Court.
[4]
Minister of Safety
and Security v Van Duivenboden
2002
(6) SA 431
(SCA) at 441E-442B.
[5]
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E-G.
[6]
Steenkamp
NO v Provincial Tender Board of the Eastern Cape
[2006]
ZACC 16
;
2007
(3) SA 121
(CC) para 39. See also the judgment by Langa CJ in
NM
and Others v Smith and Others (Freedom of Expression Institute as
Amicus Curiae)
[2007]
ZACC 6
;
2007
(5) SA 250
(CC) at 100.
[7]
Van
Eeden v Minister of Safety and Security
2003
(1) SA 389
(SCA) at 395H-396BE-G.
[8]
Id at 396E-F.
[9]
Stedall
and Another v Aspeling and Another
[2017]
ZASCA 172
;
2018 (2) SA 75
(SCA) para 11.
[10]
Country
Cloud Trading CC v MEC, Department of Infrastructure Development,
Gauteng
2015
(1) SA 1 (CC).
[11]
Le Roux and Others v
Dey
[2011]
ZACC 4
;
2011 (3) SA 274
(CC) para 122
.
[12]
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001
(4) SA 938
(CC) para 49.
[13]
See
Lee
v Minister of Correctional Services
[2012]
ZACC 30
;
2013 (2) SA 144
(CC) paras 41 and 74.
[14]
De
Klerk v Minister of Police
[2019]
ZACC 32
;
2019
(12) BCLR 1425
(CC)
para
24 and cases cited there (majority judgment).
[15]
De
Klerk
supra
para 27 and cases cited there (It is to be noted though that the
Constitutional Court did not pronounce on the relationship
between
wrongfulness and legal causation of the same delict).
[16]
De
Klerk
para
28 and cases cited there.
[17]
De
Klerk
paras
30, 31 and 47.
[18]
Minister of Police v
Skosana
1997
(1) SA 31
(A) at 34E-34H.
[19]
See
Alistair
Price ‘Factual causation after Lee’
(2014) 131
SALJ
491
at 491.
v
[20]
See
Minister
of Police v Skosana
1997
(1) SA 31
(A);
Simon
& Co (Pty) Ltd v Barclays National Bank Ltd
1984
(2) SA 888 (A).
[21]
See
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SAC) para 25;
Minister
of Finance v Gore
NO
2007 (1) SA 111
(SCA)
para 33.
[22]
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
9A0 700E-J.