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[1990] ZASCA 119
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Mdani v Allianz Insurance Ltd. (167/1990) [1990] ZASCA 119; 1991 (1) SA 184 (AD); (28 September 1990)
LL
Case No 167/1990
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter of:
B.F. MDANI
Appellant
and
ALLIANZ INSURANCE LIMITED
Respondent
CORAM
: VAN HEERDEN, NESTADT, KUMLEBEN,
EKSTEEN JJA et GOLDSTONE AJA
HEARD
: 24 SEPTEMBER 1990
DELIVERED
: 28 SEPTEMBER 1990
JUDGMENT
VAN HEERDEN JA
:
2.
On 21 August 1983, and in the vicinity of the turn-off to Pinelands, a
collision occurred on Settlers Way, Cape Town, between a motor
vehicle driven by
one da Costa and the appellant who was at the time a pedestrian. The appellant
sustained serious injuries and later
instituted an action for damages against
the respondent with which the motor vehicle had been insured in terms of the
Compulsory
Motor Vehicle Insurance Act 56 of 1972. The appellant alleged that
the collision had been caused by the negligence of da Costa. For
the purposes of
this appeal it is unneces-sary to set out the other averments in the particulars
of claim or to refer in any detail
to the plea. It suffices to mention that the
respondent denied that da Costa had been guilty of causal negligence.
When the matter came to trial the court, at the reguest of the parties, in
terms of Rule of Court 33(4) ordered that the issue of
negligence be tried
first, the question of damages to stand over for later
3. determination if
necessary. The appellant then called two witnesses. The first was Dr Oxtoby who
testified that the appellant,
as a result of his injuries, did not have a
reliable recollection of the events imme-diately preceding the collision. The
second
witness was Sergeant Basson who went to the scene some time after the
collision. There he spoke to da Costa and iater prepared a
sketch plan, a key
thereto and a motor accident report. He had no independent recollection of his
visit to the scene and when testifying
relied entirely upon the documents
prepared by him.
It appears from Basson's evidence that Settlers Way is a
dual carriageway. In the vicinity of the turn-off to Pinelands,the western
carriageway ("the road") runs from south to north and consists of three lanes.
Basson also testified that:
1) da Costa told him that he had been driving
from south to north and that the pedestrian had walked from west to east across
the
road;
4.
2) the point of impact, as pointed out by
da Costa, was some 10 metres
from the western side of
the road, i e, on the eastern-most lane;
3) the road is 11 metres wide.
If the collision
occurred at the above spot, it follows that the appellant had very nearly
succeeded in crossing the road when he
was struck by da Costa's
vehicle.
Whilst Basson was testifying the respondent raised the objection
that any evidence relating to extra-curial admissions made by da
Costa would be
inadmissible. The court then decided that the evidence in question could be led
and that a ruling on its admissibility
would be given at a later stage. After
the appellant had closed his case, the court held the evidence to be
inadmissible. An application
for absolution from the instance having been
dismissed, the respondent closed its case. The court then granted absolution
with costs
against the appellant.
5.
In its judgment the court gave reasons for its said ruling. It went on to
conclude that once the statements made to Basson by da Costa
were excluded, the
remaining evidence was insufficient to establish a
prima facie
case. It
did, however, grant the appellant leave to appeal to this court against the
order of absolution from the instance.
Prior to 1988 the evidence relating to da
Costa's
statements (hereinafter referred to as Basson's
evidence) would have been
clearly inadmissible against
the respondent as insurer of da Costa's vehicle:
Union
and South West Africa Insurance Company Ltd v
Quntana,
N O,
1977 (4) SA 410
(A). In the court a guo the
appellant
relied, however, upon the provisions of
s 3(1)
of the
Law of Evidence Amendment Act 45 of 1988
("the Act") which reads as follows:
"Subject to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless-
(a) each party against whom
the evidence is
6.
to be adduced agrees to the admission thereóf as evidence at such
proceedings;
(b) the person upon whose credibility the
probative value of such
evidence
depends, himself testifies at such
proceedings; or
(c) the court, having regard to-
(i) the nature of the proceedings; (ii) the nature of the evidence; (iii) the
purpose for which the evidence is tendered; (iv) the
probative value of the
evidence; (v) the reason why the evidence is not given by the person upon whose
credibility the probative
value of such evidence depends; (vi) any prejudice to
a party which the admission of such evidence might entail; and (vii) any other
factor which should in the opinion of the court be taken into account, is of the
opinion that such evidence should be admitted in
the interests of justice."
In the view of the court a
quo
Basson's
evidence could not be admitted in terms of
this
subsection. The reasoning of the court may be thus
summarised. The
rule in
Quntana
is not concerned
merely with the question whether or
not hearsay
7. evidence should be admitted, but relates also to the
inadmissibility of vicarious admissions and other extra-curial statements.
In
our law such admissions and statements are generally inadmissible. It is true
that s 3(1) of the Act permits the court to admit
hearsay evidence, but that
subsection does not impinge upon the rule that vicarious extra-curial admissions
and statements are as
a rule not admissible. That much is indeed borne out by s
3(2) which states that the provisions of subsection (1) shall not render
admissible any evidence which is inadmissible on any ground other than that such
evidence is hearsay evidence. In
casu
Basson's evidence related to
extra-curial statements of da Costa who was not a party to the suit, and they
were therefore inadmissible
also because of their vicarious nature. (A similar
conclusion was reached by Berman J in his as yet unreported decision in
Stevens and Another v South African Eaqle Insurance Company Limited
,
Cape
8. Provincial Division, 4 May 1990.)
In this court counsel for the
appellant contended, rightly in my view, that the ruling of the court a
quo
and that of Berman J in
Stevens
rest upon a misreading of the
judgment in
Quntana
. In that case a pedestrian had also suffered serious
injuries as a result of a collision between him and a motor lorry. Subsequently
his wife, in her capacity as duly appoint-ed
curatrix-ad-litem
to her
husband, instituted an action for damages against the defendant, the registered
insurer of the lorry in terms of. the Motor
Vehicle Insurance Act 29 of 1942.
She claimed damages as compensation for the injuries and resultant loss suffered
by her husband.
She alleged that the defendant was liable because the collision
had been caused by the negligence of the driver of the lorry. The
trial court
found that the collision had been due to the negligence of both parties involved
and awarded the plaintiff one-half of
the assessed damages. The
9. evidence
led by the plaintiff in regard to how the accident occurred was extremely
sparse. In fact, the plaintiff's case depended
almost entirely upon the evidence
of the police officer, who had investigated the accident, as to a statement made
to him by the
driver of the lorry. According to the police officer the driver
stated that the pedestrian had crossed the street from his (the driver's)
right
to left. This evidence was admitted by the trial court and its finding on the
issue of negligence rested primarily on the driver's
statement.
On appeal
this court held that the statement was inadmissible. At the outset Corbett JA
emphasized that the question at issue was
the admissibility of evidence given by
a witness (A) as to an extra-curial statement made to him by the driver of the
insured vehicle
(B), where such evidence is tendered against another party, viz
the registered insurance company, as defendant in order to prove
the truth of
the content of
10. B's statement. It was then pointed out (at p 419) that
such evidence by A falls into the category of hearsay evidence and that
it is,
therefore, inadmissible unless it comes within the ambit of one of the
exceptions to the hearsay rule. Corbett JA proceeded
to deal with two such
exceptions, viz, statements forming part of the
res gestae
and
extra-curial admissions made by a party to an action. Finally he turned to the
question whether under our law extra-judicial
admissions by strangers are
receivable against a party to the action. His conclusions were:
1)
That an extra-judicial
admission by a stranger to a suit is admissible against a party thereto if there
was at the time a privity
or identity of interest or of obligation between the
stranger and the party (p 420).
2)
That there
was no such privity or identity between the defendant, as insurer of the lorry,
and the driver thereof (p
424).
11.
The court a
quo
seems to have been under
the
impression that in
Quntana
the statement
was held to be inadmissible because it was hearsay
and
because of the
lack of the necessary privity or identity of interest or obligation between a
stranger (the driver) and a party to
the suit (the defendant). That, however, is
not what this court decided. It is quite clear from the judgment that the
statement in
question was held to be inadmissible on a single ground, viz, that
it was hearsay. It was only in the context of discussing exceptions
to the
hearsay rule that Corbett JA dealt with the admissibility of so-called vicarious
admissions. He concluded that such admissions
may in certain circumstances be
admissible as falling within the ambit of one of the exceptions to the hearsay
rule, but that that
exception did not apply because the driver of the lorry was
not "in privity" with the defendant. It follows that the only reason
for the
exclusion of the driver's admission was its hearsay
12. nature. It was not
also
excluded because it had been made by a stranger to the
suit.
Counsel for the respondent submitted that in
casu
da Costa had
made admissions to Basson, and that although an extra-curial
statement
may be admitted in terms of s 3(1)(c) of the Act, s 3(2) precludes the reception
in evidence of an extra-judicial
admission
. It suffices to say that in
Quntana
Corbett JA dealt specifically with the admissibility of an
extra-curial admission which, as I have said, was held to be inadmissible
on no
other ground than that it constituted hearsay.
The court a
quo
also relied, as did counsel
for the respondent in this court, on the following
passage in Hoffmann and
Zeffert,
The South African Law
of Evidence
, 4th ed, at p
195:
"If the driver gives evidence, his admissions may be put to him in
cross-examination and if necessary proved against him as previous
inconsistent
statements. The possibility now arises that the statements may be
admitted
13.
under
s 3
of the
Law of Evidence Amendment Act 1988
; but, as has been submitted
above, the rule that admissions are not vicariously admissible still obtains,
and, consequently, the
reception of the evidence under the Act would mean that
it would be admissible against the declarant and not the
Fund."
The phrase "as has been
submitted above"
refers to what is said at p 175. There the authors
deal with the effect of
s 3(4) of the Act. That
subsection defines "hearsay evidence" as "evidence,
whether oral or in
writing, the probative value of
which depends upon the credibility of any
person other
than the person giving evidence". According to the
authors
the words "depend upon" should be given the
meaning of "to rest primarily upon" or "to be governed
by". They then conclude:
. "If a witness testified that X had admitted something to him, the probative
value of his testimony would depend to some extent
on the credibility of X; but
it would usually rest primarily upon the credibility of the witness, or be
governed by it. In other
words, its probative value would not 'depend upon' a
person other than the person who is giving the evidence and, therefore, would
not
14.
be hit by s.3 [of the Act]."
If I understand this
passage correctly, the authors appear to be of the view that the probative value
of hearsay evidence given by
a witness depends primarily upon the credibility of
that witness, and that, having regard to the definition of "hearsay evidence"
in
s 3(4), evidence given by a witness as to extra-judicial admissions by another
person therefore cannot be admitted under s 3(1).
Apart from the fact that on
this view s 3(1)(c) would have little, if any, practical significance, there is
a basic flaw in the authors'
reasoning. I say so because in my view the passage
confuses two different questions, i e whether an extra-curial admission was made
and whether its content is true. If A testifies that B made such an admission,
A's evidence in itself is clearly not hearsay. Whether
B in fact made the
admission, depends upon A's credibility and can be tested by cross-examination.
What is hearsay, is the content
of the
15.
admission if it is to be used to establish the truth of what was said. And
whether the content is true or not, depends entirely upon
B's credibility.
(Indeed s 3(1)(b) makes it perfectly clear that the witness giving hearsay
evidence is not "the person upon whose
credibility the probative value of such
evidence
depends".)
Accordingly, in the postulated example A's evidence as to the content of B's
admission falls within the definition of "hearsay evidence"
in s 3(4) of the Act
and may therefore be admitted in terms of s 3(1)(c) of the Act. It follows that
the court a
quo
was not precluded from admitting Basson's evidence if,
having regard to the provisions of s 3(1)(c) (i) to (vii), it was of the opinion
that it should be admitted in the interests of justice.
As a result of its wrong view of the law the trial court did not apply its
mind to the question whether Basson's evidence should have
been so admitted.
16.
Its ruling that the evidence could not be admitted in terms of s 3(1)(c)
resulted in the respondent closing its case without leading
any evidence. If we
were now to hold that in the proper exercise of its discretion the court should
have admitted Basson's evidence,
it would be difficult to draw an adverse
inference from the respondent's failure to call da Costa as a witness. (See
Galante v Dickinson
1950 (2) SA 460
(A) 465, and
Marine and Trade
Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) 30, 37, 40 and 48.) In
the result counsel agreed that - and this appears to be the fairest solution -
the matter should be remitted
to the trial court so that it can exercise its
discretion whether or not to admit the hearsay evidence in terms of s 3(1)(c) of
the
Act. If it is admitted, the respondent will have to consider whether it
wishes to apply for leave to re-open its case.
The appeal succeeds vith costs and the trial court's order is set aside. The
matter is remitted to
17. that court in order to decide whether the hearsay
evidence should be admitted in terms of
s 3(1)(c)
of the
Law of Evidence
Amendment Act 45 of 1988
and to
make such further rulings as may be necessary to bring the trial to a
conclusion.
H.J.O. VAN HEERDEN JA NESTADT JA
KUMLEBEN JA
CONCUR
EKSTEEN JA
GOLDSTONE AJA