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1996
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[1996] ZASCA 66
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Aegis Insurance Company Ltd. v Consani NO (6/95) [1996] ZASCA 66; 1996 (4) SA 1 (SCA); [1996] 3 All SA 547 (A); (31 May 1996)
IN THE SUPREME COURT OF
SOUTH AFRICA
(APPELLATE DIVISION
)
CASE NO. 6/95
AEGIS INSURANCE COMPANY LIMITED
APPELLANT
and
ERIC ADRIAN CONSANI NO
RESPONDENT
CORAM
: E M GROSSKOPF, NIENABER et SCHUTZ JJA
DATE HEARD
: 6 MAY 1996
DATE DELIVERED
: 31 MAY 1996
SCHUTZJA
2
JUDGMENT
SCHUTZ JA
I differ from my brother Grosskopf only regarding his conclusion
that the respondent has, on the probabilities, excluded suicide, and accordingly established accident. As the facts have been set
out, my
reasons for differing will be fairly brief.
Two set of facts have been presented, Verhoef in life and the
manner of his dying. These two sets are not easily weighed against one
another. But as Lord Dumedin indicated in Dominion Trust Company v New York Life Assurance Co[1919] AC 254 (PC) at 258, the dichotomy
3
is natural. "The evidence in such a case [accident versus suicide] falls
at once into two distinct divisions. There is the evidence which bears on the motives for such an act, and there is the evidence of
the facts as to
the method of death . . . ." In that case both classes of evidence pointed
the same way, to suicide. In this case they do not. There is no evidence
of a predisposition to suicide, or a weighty reason or motive for self-
destruction. Indeed the reverse. Particularly telling in this regard are
Verhoef s last recorded words, about the events of the morrow. But that
evidence does not exclude the possibility of some darkness in the soul
of the deceased of which he had told nobody, or nobody who gave
evidence. The psychiatrist called by the respondent, George, said that
quite often the ultimate reason for suicide cannot be determined, and the
4
act comes as a complete shock and surprise to the family. As to the so-
called presumption against suicide, it is a truism, which does not deter
a small minority of persons ending their own lives. The Question is
whether that is what happened here.
Not that Verhoef was unaffected by the events of the evening.
What had happened caused him to react sufficiently for someone to
appeal to Mrs van der Merwe, and for her to take him aside and talk to
him. What Garieda had done to him was not a matter of ultimate
moment. But the young are inclined to take the affronts of life more
seriously than those who have suffered them more often, and this is
reflected in the suicide figures. With that said, if only the first category
of evidence is considered, suicide seems most unlikely.
5
However, one must go on and consider how Verhoef died. I
would have expected the plaintiff, bearing the onus, to have led evidence as
to the state of the body, the state of the room, the state of the rifle,
and flowing from that such expert medical and ballistic evidence as may
have been needed to create a probability in his favour. But what do we
find? The doctor who performed the post-mortem was not called. There
was no evidence as to the wound, other than the photographs, which do
not even include one depicting or locating the entrance wound. No
police evidence was led as to what was found that morning, particularly
with regard to the path taken by the bullet after its exit. Nor was there
evidence as to whether more than one cartridge had been loaded into the
rifle. Such expert medical and ballistic evidence as was led (that of
6
Professor Smith and Mr Wolmarans) was essentially based on facts that
were not proved, and in any event led to no positive favourable
conclusion. The tenor of it was not that accident was more probable than
suicide, but that "the facts" did not allow of a conclusion that suicide was
more probable than accident. If the appellant then succeeded in
establishing, on such facts as there were, that the latter was the case, the
respondent was vulnerable.
How insufficient the respondent's evidence was to discharge an
onus, even if the facts had been proved, is demonstrated by two answers
given in evidence. First Smith:
"Professor, having read both the reports of dr. Strauss,
having viewed these photos, would you be prepared to voice an
opinion as to whether this was an intentional or accidental
shooting? ... I am not in a position to indicate this solely on the
7
evidence that has been presented to me."
Then Wolmarans:
"
Kan
u ongeluk dat hierdie 'n blote ongeluk was, uitsluit? .
. . U Edele, nadat ek by hierdie toneel was, nadat ek die wapen
ondersoek het en soos ek gese het ek het op die toneel, wel,
omtrent 'n halwe dag gespandeer, maar nadat ek die wapen deeglik
ondersoek het, het ek - kan ek vir die Hof werklik nie se of dit
selfmoord of 'n ongeluk was nie, want daar is duidelike
aanduidings dat daar ook 'n ongeluk kon gewees het."
But even before these answers are reached there is the more
general criticism of the respondent's case (as far as the method of death
is concerned) that practically nothing was proved.
The explanations given for not calling the post-mortem doctor, dr Strauss, were that the two copies of his report were so poor in
quality
and so contradictory that the respondent could not have been expected
8
to call him: and that in any event the respondent's advisers, having been
furnished with a notice that the appellant proposed to call him as an
expert witness, expected the Appellant to call him. That done it would
be better to cross-examine him than have him on one's own side. I am
not impressed. As to the second reason, once the appellant closed its
case without calling dr Strauss, the respondent should have had no
difficulty in obtaining a re-opening of its case, particularly as it had been
entitled to expect that the appellant would call him. But no attempt was
made to re-open. The result was that we know nothing of the wound,
other than what is shown on the photographs, which, as I have said, do
not depict the entrance wound. This leads to the question whether his evidence would have tended to establish suicide, and whether
that was
9
the reason why the respondent did not call him. For instance, for all we
know, the wound could have been a contact wound, with the muzzle
against the skin, often An indication of suicide.
Concerning the poor quality of Strauss's report, I think that the
central part of it, which could not really be brought into question, is
exposed by the following question directed at Di Maio and his answer to
it:
"You see doctor why I put this to you is, I want to submit
to you at this stage that really on this report, one cannot be certain
about anything. It is such a sloppy report that one has great
difficulty, firstly ascertaining the size of the wound, secondly
ascertaining to what extent there was tattooing and thirdly to
ascertain to what extent there was really burning or soot burnt into
it, those are the three factors you mentioned not so? . . . Right, but
I'd have to respectfully disagree with you and say that while this
report is not great, it contains adequate information and in
conjunction with the photographs indicates the trajectory, that in
10
my opinion this is an intermediate range wound that was self-
inflicted, and that's a suicide."
The "great difficulties" alluded to in the question, matters of size
of wound, tattooing and burning or soot, all went to the exact distance
of the muzzle from the wound, an issue within narrow parameters. What
was important was where the entrance wound was, which is very relevant
to trajectory, the central point of what remains of Di Maio's evidence.
The trial Judge considered that the passage quoted shows how
unsatisfactory a witness Di Maio was. On the contrary, I consider that
her criticism shows that she did not fully follow the significance of what
he was saying.
Originally Di Maio's opinion that suicide was the probable cause of death was based on four things, first the weapon itself, second
the
11
location of the entrance wound (under the chin he assumed), third the
nature of the entrance wound, and fourth the trajectory of the bullet. The
second And third of these were derived from the post-mortem report. As
the report was not proved, his reliance on these things must now be
discounted, save to the extent that one or both of them can be inferred
from other evidence. The second, the location of the entrance wound,
can be inferred, at least approximately, from Di Maio's evidence as to the
trajectory. I shall return to this subject. Further as to the third, the
nature of the entrance wound, as I have indicated already it may be a
contact wound for all we know. In any event it is common cause that the distance from the muzzle to the wound could not have been
much,
and I do not think that the absence of proof in this regard particularly
12
affects Di Maio's main conclusion. As to the first point, the weapon
itself, by this Di Maio meant that it was a rifle, over a metre long, and of high velocity. These facts nre proved. Their relevance
to the accident
theory will appear later.
Dr. Di Maio was strongly criticised by the trial Judge as sticking to his opinion when the basis for it had been knocked away, and
as being
dogmatic to the point that his views amounted to no more than a bald
statement of opinion, which was of no assistance to the Court. This is
a criticism that I think goes to content rather than demeanour, and when
the content is properly understood I do not consider that the strictures on
his evidence were warranted. On the contrary, I am impressed by the
reasons which he gave for holding to his opinion, even though one or
13
two of the struts may have given way.
The main part of his evidence that in my opinion still stands is that
as to the trajectory of the huHet. Tf should be noticed that he has had
much experience both as a ballistics expert and as a pathologist. On the
other side neither Professor Smith nor Wolmarans considered that they
were able to venture an opinion as to the trajectory. Di Maio's evidence
on this score was therefore uncontradicted.
In essence Di Maio's evidence, based on the photographs and his experience, was that the bullet had travelled more or less vertically
upward from the chin, near the front of the head, leading to the upper
frontal part of the head being blown away in the manner depicted on the
photographs. It is true that in the earlier parts of his evidence he relied
14
also on the location of the entrance wound described in the post-mortem
report (as he was then entitled to do), but he also stated that on the
photographs alone he would reach this conclusion:
"Doctor are you prepared, after a body has been moved and
just by looking at this photo, to say where exactly along the head
this bullet moved? . . . Yes, I have said, I have said it, it's
straight up through the frontal region and I said that it exited in
the frontal region, I can't given you an exact point, but I am saying
it went from underneath, it went straight up because the way the
face has opened in a book-like fashion and that means that the
path was a vertical path close to the external aspects of the face."
He disputed that the same sort of wound would have been caused
by a bullet travelling backwards:
"Yes but you see Doctor, even if the bullet had travelled from here and exited at the back here, you would still have the
face opening up. . . . No. What you would have, if it comes here
and it goes back, you are going to have a large gaping wound of
the back of the head and you are going to have multiple, palpable
15
fractures of the cranial wall. You will have destruction of the
floor of the skull, but you will not have the face opened up. The
face opens up only when the path is essentially a vertical path
adjacent. Once you go back towards the vertex of the head you
get a totally different wound."
Di Maio's evidence establishes, in my view, that the trajectory of
the bullet was vertical. In order to reach this conclusion it is not
necessary to refer to the evidence, or rather lack of it, as to what was
found in the ceiling. But at least the evidence of Wolmarans that there were marks there suggesting that bits of something had been
prized out,
was not inconsistent with the conclusion.
Because of the length of the rifle Di Maio was of the opinion that
Verhoef was erect when the shot went off. If that be so the question
arises how this happened so that the bullet passed upwards through his
16
head. The chief suggestion for the respondent was that Verhoef had
tripped on an irregularity in the carpet, that the rifle was pointing
upwards towards his chin, and that for some reason such as his getting
his hand on the trigger, it had discharged. Of this theory Di Maio had
the following to say:
"You would have to say that this man somehow slipped and
as he slipped instead of trying to break his fall, as does all human
normal people do, he somehow pulled, he did something which
was abnormal, and pulled the gun towards him, and then he had
to arch his head this way and then the gun had to be under his
chin and then he had to somehow depress the safety and fire it, or
depress the trigger and fire it. So what you are having is three
things that are very atypical and which together add up to be an
absurdity. A fall where you don't try to break it, a head arched
backward, and a hand coming down and hitting the trigger off
safety. So you have got three things."
As he explained more fully elsewhere in his evidence, if one trips
17
the natural reflex action is for one's hands to go out to break the fall and
protect the face, and for the chin to be tucked in. The reference to the
safety catch being put off is to Wolmarans's recognition of this problem,
which he suggested might be overcome by an hypothesis that the rifle
had been bumped against a cupboard. In addition, a hand also had to
reach the trigger. There seems to me to be weight in Di Maio's argument
that such a concurrence of three unnatural things was most unlikely. 1
would add one other factor, that there had to be a cartridge loaded into
the breach of a rifle not intended to be fired. There are people who
behave in this foolish way, but it is not usual.
The respondent has no real counter to this argument, other than a
suggestion that the trigger may have been pulled not by the hand of
18
Verhoef but the paw of his dog. This Di Maio conceded was a
possibility, but not a likelihood. He added that in all his experience he
had never seen anyone accidentally shoot himself under the chin.
Near the end of his evidence Di Maio remarked that however
much one dislikes a finding of suicide, on the evidence it was the only
probable cause of death. Of other possibilities he said, "The others are
possible but you have to keep putting all these facts and you have to
keep stretching. This one (suicide) you don't have to stretch." A freak
accident indeed.
Looking at the method of death I agree with his conclusion. It
remains to weigh it against the first class of evidence concerning
Verhoef s apparent state of mind. When one does that, it seems to me
19
that whereas the first class makes it unlikely that he would end his own
life, the second, the circumstances of his death, clearly indicate that he
My conclusion, reached with regret, is that it is clearly more likely
that Verhoef committed suicide than that he died by accident. The
respondent therefore did not discharge the onus that rested on him.
The appeal is allowed with costs
The order of the Court below is replaced with the following:
"Absolution is granted against the plaintiff with costs."
W.P. SCHUTZ
JUDGE OF APPEAL
NIENABER JA) CONCURS
Case number 6/95
IN THE SUPREME COURT OF
SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
AEGIS INSURANCE COMPANY LIMITED Appellant
and
ERIC ADRIAN CONSANI NO
Respondent
CORAM
: E M GROSSKOPF, NIENABER et
SCHUTZ JJA
DATE OF HEARING : 6 MAY 1996
DATE OF JUDGMENT : 31 MAY 1996
JUDGMENT
E.M. GROSSKOPF J A/
2
E.M. GROSSKOPF JA :
On 18 January 1992 a young man, James Verhoef (the
deceased), died as a result of a rifle wound to his head.
In terms of an insurance policy the appellant company had
undertaken to pay compensation to the deceased's estate
in an amount of one million rand in the event of his
suffering bodily injury caused by accidental, violent,
external and visible means and dying therefrom directly
and independently of all other causes. The appellant
repudiated liability on the ground that the deceased's
death was not accidental but was suicide. The
respondent, being the executor in the deceased's estate,
successfully sued the appellant in the Cape Provincial
Division for payment in terms of the policy. With the leave of the court a quo (Traverso J) the matter now
comes on appeal before us.
There was some argument before us about the
incidence of the burden of proof and for that reason it
3
is necessary to take a closer look at the pleadings. The
particulars of claim include the following averment:
"On or about 18 January 1992 and at Beaufort West,
when a firearm accidentally discharged and a
projectile fired from such firearm struck [the
deceased] visibly and violently in the head, he
suffered a bodily injury which directly and
independently of all other causes led to his death
on the said date."
The appellant pleaded to this as follows:
"Save to deny that [the deceased's] death was caused
accidentally, defendant admits the allegations in
this paragraph."
Later in its plea the appellant raised a further
defence as follows:
"4.1.1 In terms of the policy defendant is not
obliged to pay any compensation in respect of death by suicide.
4.1.2
[The deceased] committed suicide.
4.1.3
In the premises defendant is not liable
to pay any compensation as a result of
[the deceased's] death."
On the pleadings the appellant accordingly had two
strings to its bow. It denied that the deceased's death
was caused accidentally, and it relied on a provision in
4
the policy whereby death by suicide was excluded.
This duality continued during the pre-trial
conference in terms of rule of court 37. The first two
paragraphs of the minute of the meeting read as follows:
"1.
THE ISSUES IN DISPUTE
It was agreed between the parties that the
only issues to be considered by the Honourable
Court were as follows:
1.1
Was the death accidental, or;
1.2
Was the death as a result of suicide.
2.
ONUS
It was agreed that the onus to prove
accidental death rests with the Plaintiff and
the onus to prove that the death was as a
result of suicide rests with the Defendant."
When the matter came to trial the parties accepted,
on the basis of the judgment of Murray J in Griessel N O
v 5 A Myn en Algemene Assuransie Edms Bpk 7
952 (4) SA 4
73
fTj, that the two issues could not be kept separate. In
that case the following was said (at 477C to 478G):
"It is common cause that the plaintiff has to prove,
and I think prove on the ordinary balance of
probabilities, that the occurrence falls within the
terms of the policy and is, therefore, an accident
causing death. The question now arises what is the
5
defendant's position in this case. The defendant
has alleged that this is suicide
It is not necessary to consider all the
authorities that have been quoted to me, but it
seems clear, and I quote from Halsbury Laws of
England
, Vol 18 para 846 (Hailsham Ed):
that there must be an accident causing
personal injury to the assured, and the result
of the injury must be his death or
disablement. The word 'accident' excludes the
operation of natural causes, and implies the intervention of some cause which is brought
into operation by chance, and which can
therefore be described as fortuitous'.
[It] seems to me to follow that where the
injury itself is the result of some deliberate act
on the part of the deceased person, where he acts
consciously and intends to bring about disablement
or death, it speaks for itself that this is not
accident but is the deliberate result of the
deceased person's own activities. The result of
that is, I think, that whether or not there is this
provision ... which excludes suicide or attempted
suicide or self-injury, it is really not a matter of
defence for the insurer that such provision arises.
It: is, in my view, inherent in the idea of an
accident that there must not be the deliberate
bringing about of the result by the deceased person
or the injured person of his own volition. That
seems to me to be in accord with authority.
I was referred to a passage in MacGillivray's
Insurance Law at p
1143,
where the learned author
deals with 'Clauses excepting injuries intentionally
inflicted by the assured or some other person' and
he there states that:
^ in so far as this exception relates to
injuries intentionally inflicted by the
assured upon himself itis not really an
exception because it is not accidental and
6
therefore would not fall within the general
risk.'
.... in the present case ... the risk against which
the deceased was insured was an accident causing
either death or injury. It is, therefore, incumbent
on the plaintiff to prove as an essential initial
step that the event in which the insurance is
payable, viz. an accident of the above character, did occur. It is not sufficient for him to prove
merely the death or the injury, and to leave it to
the insurer, by establishing either the probability
or the certainty of suicide or self-injury, to disprove the accident as the cause of death or
injury. It may well be, for example, in a case
where there are no eye witnesses of the fatal event
that prima facie proof of the occurrence of an '
accident' may be found in the circumstances of the
case, without requiring the insured or his
representative to give positive proof eliminating
suicide or self-injury; it may also be that the
normal improbability of intention to kill or maim
oneself favours the course of attributing the death
or injury to accident. But as I see the present
position ... the plaintiff must at the outset
convince the Court on a balance of probability, and
having regard to all the evidence led, that the
deceased died as a consequence of an accident, and not of his own conscious intention to kill or maim
himself."
At the trial both parties accepted that this passage
was correct. So did the court a quo. It held that the
respondent had discharged the onus of establishing that
7
the deceased's death had been caused by an accident. In
the circumstances this entailed proving that this was not
a case of suicide.
On appeal before us Mr Modes, on behalf of the
respondent, contended that the trial court had erred in
burdening the respondent with the onus of proof. There were two legs to his argument. He contended first that
the parties had agreed in the pre-trial conference that
the onus of proving suicide rested on the appellant. The
trial court, he said, was bound by this agreement even if
it did not agree with it. For this argument he assumed
the correctness of Griessel's case. There is no
substance in this contention. In the first place, if Griessel's case is correct, the agreement was clearly
based on a common mistake as to the applicable legal
principles. As I have shown, to prove accident in a case
like the present a plaintiff has, on the authority of
Griessel's case, to exclude suicide. It is therefore
8
nonsensical to place the onus of proving accident on one party and the onus of proving suicide on the other. When
it came to the trial the parties realized the
inappropriateness of their agreement and fought the case
on the correct basis.
But in any event this argument is misconceived. The incidence of the onus of proof in a particular case is a
matter of law. See, e g, During N O v Boesak and Another
7
990 (3) SA 661
(A) at 672 H-I and S v Nkwanyana and
Others 7990 (4) SA 735 (A)at 743 H-I. The parties to
legal proceedings cannot, by their agreement, compel the
court to decide the case on an incorrect legal basis.
The second leg to Mr Hodes's argument was that Griessel's case was wrongly decided. He referred to a
number of cases and textbooks for the proposition that in
English, American and Commonwealth law there is a
presumption against suicide. The reason for this
presumption is, according to M
acGillivrav and Parkington
9
on Insurance Law, 8 ed (1988)
p 831 para 1848 "that the
law will not assume that the insured committed a crime".
The learned authors continue: "... it is submitted that
the presumption should still apply even though suicide is
no longer a crime, since there is inevitably a certain moral or social stigma that attaches to a person who commits suicide".
Other reasons have also been advanced for the presumption. Thus it has been said that " [the] presumption against suicide is
based on the nearly
universal human characteristics of love of life and fear
of death" (Evans v Provident Life & Accident Insurance Co
875 P 2d 550
(Supreme Court of Kansas, 1991) at 555) .
See also Dominion Trust Company v New York Life Assurance
Co
[1919] AC 254
at 259 where Lord Dunedin referred to "... the inference drawn from the experience of mankind
that self-destruction, being contrary to human instincts,
is unlikely to have occurred."
10
The sources quoted to us demonstrate clearly that a
presumption against suicide is widely recognized. What
is less clear is the status or effect of this
presumption. Thus the presumption is sometimes invoked
where an insurer relies on an exception clause, e g,
where suicide is excepted in a life policy. So, for
instance, the respondent's references to
Colinvaux's Law
of Insurance, 6 ed (1990)
p 267 para
16-11
and
Hardy
Ivamv, General Principles of Insurance Law, 6 ed (1993)
446 were to passages dealing with proof that the loss
falls within an exception. In that regard the rule,
according to Colinvaux loc cit is:
"The burden of proving that a loss falls within an
excepted peril always falls upon the insurers."
In this context the presumption against suicide would not
affect the incidence of the onus of proof, which is in
any event on the insurer. The presumption could
accordingly play a role only in determining the weight or
effect of the evidence adduced. An example of such a
11
case is The London Z,Life Insurance Company v Chase
[1963]
SCR 207
where the Supreme Court of Canada held on appeal
(at p 211) that the lower court had correctly adopted the
standard
"of weighing the probabilities and improbabilities
of the plaintiff's case against those of the case
for the defendant and that having due regard to the
seriousness of the allegation of suicide and the
complete absence of motive they concluded that the
preponderance of evidence weighed in the plaintiff's
favour".
We were also referred to a number of cases where
accident insurance was involved. Here various dicta were
quoted to us which suggest that the presumption has a
bearing on the onus of proof. Unfortunately it is seldom
made clear what is meant by onus of proof, and for the
most part the courts concerned seem to be saying no more
than that some evidence is required to displace the
presumption. And in his heads of argument the respondent
accepted "that the presumption against suicide is a
presumption of fact, bringing with it an evidentiary
12
burden to adduce evidence to combat a prima facie case
made by one's opponent". Reference was made to
Hoffmann
& Zeffertt, The South African Law of Evidence, 4 ed (1988)
at 496 which makes it quite clear that an
evidentiary burden of this sort does not affect the onus
of proof in its true sense i e, "the duty which is cast
on the particular litigant, in order to be successful, of
finally satisfying the Court that he is entitled to
succeed on his claim, or defence, as the case may be"
(Pillar v Krishna and Another
1946 AD 946
at 952-3. See
also South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty) Ltd
1977 (3) SA 534
(A) at 548
A-C).
In his oral argument Mr Hodes went further and
contended that the effect of the presumption against suicide was to displace the true onus. In a claim on a
policy in respect of accidental death, he contended, the
plaintiff need prove only a death by violent, external
13
and visible means. If suicide is in issue, the insurer
would have to prove it. This seems contrary to
principle. Normally a plaintiff has to prove that the
risk in respect of which he claims is covered by the
policy. In an accident policy he must therefore prove
accidental death or injury. If, in a particular case,
this requires him to disprove suicide, then so be it. In
this regard it seems to me the logic of Griessel's case is unassailable. And no authority has been quoted which in my view casts any
doubt on its correctness.
I consider therefore that the attitude adopted in
the respondent's heads of argument is basically correct.
Suicide is, for the reasons discussed above, an
inherently unlikely act and this should be borne in mind
when assessing the evidence. Griessel's case accepts
this - Murray J mentions (at 478F) "the normal
improbability of intention to kill or maim oneself".
Whether one calls this a presumption or an inference does
14
not matter. The weight to be accorded to this
presumption or inference would of course depend on the
circumstances. Ultimately, when all the evidence has
been considered and due effect given to the unlikelihood
of suicide, the plaintiff fails in his action if he has
not established that the death was accidental. See in
this regard also the judgment of Rand J in the Canadian
case of New York Life Insurance Co v Schlitt
[1945] 2 DLR
209
at 223 to 225.
I turn now to the merits of the dispute between the
parties. It was common cause that the deceased died from
a gunshot wound to his head which was consistent only
with accident or suicide. In its attempt to disprove suicide the respondent led the following classes of
evidence:
1.
Evidence concerning the deceased's nature and
background;
2.
Evidence of the events during the evening in
1.
15
question;
3. Expert ballistic and medical evidence on the
cause of death.
The effect of this evidence was as follows. The
deceased was born on 10 July 1969. He was accordingly 22
years old when he died. His father was a prominent
businessman. The deceased was the youngest of three children born of his father's first marriage. In 1983
his parents were divorced.
The deceased passed his standard eight at the Camps
Bay High school. He then wanted to make a change and
attended another school, Boston College. At that stage
he went through a rebellious stage and did not pass
matric. After school he did his military service. He
was first stationed in Heidelberg. He had some trouble
there. According to his father he did not get on with a
corporal and was not allowed to sleep. There is also a
suggestion that he was court-martialled for refusing to
16
obey an order and was confined to barracks. Be that as
it may, the deceased's house doctor, Dr Edelstein,
testified that the deceased saw him on 13 May 1988. The
deceased complained that he was unhappy and depressed, that he had not been allowed to sleep for 4 8 hours or
something to that effect. Dr Edelstein advised him to go
back, see his superior officer and if necessary ask to be
referred to the army doctor. No medication was
prescribed. Dr Edelstein did not see him again for
depression. Other evidence establishes that the deceased
managed to secure a transfer to Cape Town, where he lived
with his mother, and later to Oudtshoorn. He then had no
further difficulty with his military training.
The deceased's father was the part owner of the farm
Highlands in the Beaufort West district. The deceased
was an enthusiastic hunter and had often gone on hunting
expeditions with his father. He was keen to develop this
farm as a game farm and to organize hunts. Moreover he
17
wanted to establish walking trails. After his release
from the army he lived on the farm from 1990 to manage
it. During 1991 the deceased's father bought out his co-
owner. The deceased was delighted at this and persuaded
his father to extend the area of the farm. Shortly
before his death he had the first hunting party on the
farm. This was a great success.
There was a good relationship between the deceased
and his family, more particularly his parents and his sister Gina. Gina visited him on the farm the weekend
before his death. He was happy and excited, and enjoyed
the work on the farm.
His positive state of mind was confirmed by his
cousin, Andrew Morton, who lived on the farm with him and
helped with the work. At the time of his death the
deceased was looking forward to a visit by his father
which was due in the near future.
The deceased had a number of girl friends over the
18
years. Some months before his death he entered into a
relationship with a Beaufort West girl called Garieda
(also spelt Gerida) Smit. A number of witnesses
testified that this was a fairly casual relationship.
Moreover there was evidence that the deceased had decided
to end it but did not want to do so immediately. His
reason was that they had agreed to attend a wedding with
some other people a week later and he did not want to
disrupt the plans.
A psychiatrist, Dr George, gave evidence that, on
the information before the court, there were no
indications of suicidal tendencies on the part of the
deceased. He was strenuously cross-examined on this, but
stuck to his view. Although the appellant had given
notice of an intention to call a psychiatrist itself, it
did not in the end do so. Dr George's evidence consequently stands uncontradicted.
I now turn to the events of the day before the death
19
of the deceased. Morton and the deceased went into
Beaufort West on the morning of 17 February 1992. They
were to attend a party to be given that night by Mr van
der Merwe, a local attorney, and his wife. The two young
men bought supplies for the farm, and then had lunch at
a local restaurant. The owner of the restaurant showed
them a tree which had fallen over, and they decided to
cut it up. The deceased went to fetch labourers and
started to cut up the tree. Morton went to help Mrs van
der Merwe with the preparations for the party.
Later that evening the deceased went to the party.
It is common cause that during the evening Garieda Smit
broke off her relationship with the deceased. Mrs van
der Merwe gave the following evidence in this regard:
"U het hom wel later die aand gesien, toe net hy met
u gesels nadat hy en Gerida blykbaar 'n uitval of
iets gehad het.
Korrek.
Wat was die probleem?
Dit was ongeveer elfuur
die aand gewees en as ek reg onthou het iemand vir
my gese maar ek moet kyk, Jamie lyk nie so gelukkig
nie. Toe het ek na Jamie toe gegaan, ek het horn
gaan opsoek. Ek net ook gesien daar is iets wat
20
krap aan horn. Ek het horn bultentoe geneem en vir
horn gese ons moet nou 'n bietjie daar op die gras
sommer hier by die stoep se deur sit en ek het horn
gevra wat fout is.
Wat was sy ongelukklgheid, wat was sy klagte gewees?
Dit was 'n kwessie tussen horn en Gerida. Die
verhouding is be
indig deur Gerida so 'nrukkie voor
ek met horn in gesprek getree het en hy was nie
gelukkig oor die wyse waarop dinge toe verloop het
nie.
Het hy ooit aan u te kenne gegee dat hy nou jammer
is dat hy 'n liefde verloor het, dat dit die rede
was hoekom hy ongelukkig was?
Nee.
Wat het hy gese wat is die rede dan waaroor hy
ongelukkig was?
Klaarblyklik het, nadat sy dit
nou aan horn gestel het dat sy nou die verhouding
beeindig, het sy binnetoe gegaan en aan 'n hele
klompie mense dit bekend gemaak dat sy nou vir
Jamie, soos sy dit stel, gelos het. Hy het gevoel
dit is nie nodig gewees nie, dat dit eintlik 'n
private aangeleentheid was en dat sy nie nodig gehad
het om daarop uit te brei hier voor ander mense nie.
Nadat u met horn gesels het toe, wat was u indruk van
horn?
Heeltemal kalm."
It had earlier been agreed that the deceased and
Horton would spend the night with Garieda. In view of
the changed circumstances the Van der Merwes offered to
put them up. The deceased preferred to return to the
farm since he intended to finish the job of cutting up
the tree the next corning and had co bring the labourers
21
from the farm. If he slept in Beaufort West he would
have to drive out to the farm to fetch the labourers at
7 a m.
The two young men left the party at about midnight
and drove back to the farm. The deceased had not had
much to drink. Horton was tired and sleepy. They did
not talk much. Horton said that the deceased "looked
angry ... he was brooding about something." Later he
qualified this: "I wouldn't say angry ...something was
niggling him ...he was quiet, he was contemplating". On
their arrival at the farm Horton wanted to make coffee
and offered some to the deceased. The deceased was in
his room. He said that he did not want coffee, but asked Horton to wake him with a cup of coffee the next morning
and said something about having to pick up the labourers.
Horton continued to the kitchen, which was about 100
metres from the deceased's room. About a minute to a
minute and a half after the deceased had spoken to him
22
Morton heard a shot. He rushed to the deceased's room
and found him dead.
The rifle which fired the fatal shot was kept in the
deceased's room. Horton said that it used to hang on the
bed post, or was propped against the bed itself or
against a chair. The deceased would sometimes take it
with him when doing game counts. The evidence also shows
that, although the deceased had a lot of experience of
firearms, he was careless in his use of them, and was
generally unconcerned about his own safety.
What I have said above represents the effect of the
evidence led on behalf of the respondent. Although
conflicting versions were put to some of the witnesses,
these were denied. No contradictory evidence was in the
result adduced by the appellant, and the above facts were
held by the trial court, correctly in my view, to have
been proved.
Before dealing with the technical evidence about the
23
shooting itself I should indicate the basis upon which
the appellant opposed the respondent's claim. The
appellant repudiated liability in a letter of 25 January
1993 in which the following allegations, inter alia, were
made (I have numbered them for convenience and add my
comment):
1 . "At the time of his death the insured was
extremely tense, worked up and depressed." On
the evidence this is, at best, a gross
exaggeration.
2. "That evening the insured and his girlfriend
had an argument at a party at Mr van der
Merwe's house and they split up. The cause of
the argument was the fact that his girlfriend,
Garieda Smit, had attended the party with her ex-boyfriend Mr Hattingh. The insured stormed
out of the party at midnight very upset." No
evidence was led as to the cause of the
24
argument, and the evidence does not support
the last sentence.
3. "The morning of his death insured damaged the rear differential of the farm's four wheel
drive vehicle. The insured was extremely
upset about this. On a previous occasion the
insured and his father were in an argument
about damage to this vehicle. So much so that
the insured decided he would not tell his father about the incident and pay for the
damage himself, due to the strained relationship with his father." The
uncontradicted evidence is that the accident
occurred some days before the deceased's
death, that he was not particularly concerned
about it, and that he telephoned his father to
tell him about it. According to the
deceased's father ha (i e, the father) "just
25
laughed about it because he's always breaking
things".
4 . "The rifle did not have a very light trigger."
This will be dealt with later.
5.
"The first safari was not a success. The
organisation and catering facilities did not
turn out as expected. The hunting party made
it known that they would never return to the
farm. This incident upset the insured who
knew the information would reach his father."
The evidence set out above was to the contrary.
6.
"The tests undertaken by our assessor showed
the rifle could not be fired accidentally."
No such evidence was adduced.
7.
Reference was also made to "an individual" who
heard the deceased's father stating that he
could not understand why the deceased had
5.
26
committed suicide, and another individual who
could confirm that the deceased threatened to
take his own life if his girl friend, Garieda
Smit, terminated their relationship. No
evidence was led to substantiate either of
these averments.
That then brings me to the pleadings. In the
respondent's request for further particulars for trial
the appellant was asked for full particulars of the facts
relied on in support of the allegation that the deceased
committed suicide. The answer was as follows:
"Plaintiff is referred to the summaries of the
evidence of Drs Strauss, Klatzow, O'Neill-Kerr and Di Maggio (sic - it should be Di Maio)... Based on
the facts and the expert opinions of the
aforementioned witnesses defendant contends that
James Verhoef committed suicide".
However, after the respondent closed its case, the
appellant led only the evidence of Dr Di Maio. None of
the other named experts, nor, for that matter, any lay
witness, was called.
27
The failure of the appellant to call these experts
led to a most unusual situation. Dr Strauss, stated to
be an expert to be called by the appellant, was the
district surgeon of Beaufort West. He performed the
autopsy on the deceased. Two post mortem reports by him
were available. One was handwritten, and was, according
to the evidence, difficult to read. There was no copy of
this report in the record. Then Dr Strauss signed a
typed report. At the pre-trial conference between the
parties the status of the report was considered. The
following was recorded:
"The Plaintiff does not admit the correctness of the
post mortem examination conducted by Dr Strauss ...
The nature of the wound and the distance between the
firearm and the wound at the time of discharge
remain in dispute."
Dr Di Maio has both medical and ballistic qualifications.
His evidence was limited to the conclusions to be drawn
from the technical evidence. On the respondent's behalf
evidence of a similar type was given by a pathologist, Dr
28
Smith, and a ballistics expert, Mr Wolmarans. None of
these witnesses had examined the body of the deceased.
They based their opinions purely on the evidence given or
to be given by others. In particular they relied on the
post mortem reports of Dr Strauss. A great deal of
criticism was directed at these reports, inter alia that
they differed in important respects and did not provide
sufficient particulars to found reliable opinions. As
stated above, in the end Dr Strauss did not testify, with
the result that his report was not before the court at
all.
In the absence of evidence by Dr Strauss there is
very little evidence about the nature of the wound.
Photographs of the body were handed in, but although they
demonstrate that the deceased had suffered a severe head
wound, they do not show the entrance wound or the exit
wound. There is accordingly no reliable indication of
where exactly the two wounds were. Nor was there
29
evidence of the size and appearance of the entrance
wound. Such evidence was necessary to determine how far
the firearm was from the deceased when it was discharged.
Wolmarans did testify that, when he inspected the
deceased's room, he saw a mark on the ceiling which he was told had been caused by pieces of bullet or skull.
This evidence was accordingly hearsay, but in any event
one can at best infer from it that the bullet went
upwards. We do not, however, know from where.
The absence of Dr Strauss's evidence is particularly
important in respect of the evidence of Dr Di Maio. Dr
Di Maio expressed the view that the deceased's death was
suicide. He based this on four factors. One was the
weapon itself, two was the location of the wound, three
the nature of the wound and the fourth the* protectory (or
trajectory) of the bullet. The nature of the weapon was
important, he said, because its calibre was 6 mm. The
wound was 30 by 10 cm with black, curled edges and some
30
tattooing around it. The size of the wound, compared to
the calibre of the rifle, indicated a close-range wound.
This, Dr Di Maio continued, was confirmed by the nature of the wound. Now the size and nature of the wound were derived from Dr Strauss's
report. In the absence of the report these conclusions would have no basis.
The further factor relied upon was the trajectory of
the wound. Here Dr Di Maio relied on the position of the
wound, as described by Dr Strauss, plus the injuries
showed by the photographs. Once again there was, in the
absence of Dr Strauss's report, no evidence as to the
position of the wound. This factor also therefore lacks
a factual foundation.
Even on the basis of his findings Dr Di Maio
accepted that accident was possible although unlikely. We do not know what his view would have been if he had
disregarded the post mortem report.
The respondent's expert witnesses Dr Smith and Mr
31
Wolmarans also assumed the correctness of the post mortem
report. Even on that assumption they disagreed with Dr
Di Maio. Their conclusion was that the known facts
(including the post mortem reports) did not show that
suicide was a more likely Inference than accident.
Mr Wolmarans also examined the rifle and came to
certain conclusions. There were defects in the rifle
which could cause it to fire without the trigger being
pulled. Mr Wolmarans considered it unlikely that this
happened in the present case, but this view might also be
influenced by the content of the post mortem report.
Moreover the trigger adjustment screw was loose. It
could move as a result of vibration (e g by being
conveyed over bumpy farm roads) which could result in a very light trigger resistance. In this regard it should
be noted that Morton described it as having a "hair
trigger".
In my view, in the absence of Dr Strauss's evidence,
32
the technical evidence is of very little assistance. The
trial court in any event preferred the evidence of the
respondent's witnesses to that of Dr Di Maio. I do not
have to consider whether it was correct in doing so.
When all the evidence in the case is weighed I
consider that the following conclusions are justified.
The deceased did not have a depressed or suicidal personality. He was on close terms with his immediate
family and would not want to inflict pain on them. He was very happy in his work and had many plans for the
future. The incident with Garieda Smit happened during
the evening and he was somewhat upset by it but there was
no indication that it had a deep or profound effect upon
him. Immediately before his death he was still making
arrangements for the next morning.
The rifle was normally kept in his bedroom but was
not always in the same place. It would not be unusual
for the deceased to handle it and even to be somewhat
33
careless in doing so. There were defects in the rifle
which could cause it to go off without the trigger being
touched. In any event it had a very light trigger. One
can only speculate on how exactly the wound was inflicted.
In all these circumstances I consider it unlikely
that the deceased committed suicide. I would dismiss the
appeal with costs, including the costs of two counsel.
E.M. GROSSKOPF
JUDGE OF APPEAL
/al