About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2001
>>
[2001] ZASCA 120
|
|
Makhathini v Road Accident Fund (21/2000) [2001] ZASCA 120; [2002] 1 All SA 413 (A); 2002 (1) SA 511 (SCA) (14 November 2001)
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case No: 21/2000
In the matter between:
SIBONGILE WENDY MAKHATHINI
APPELLANT
and
ROAD ACCIDENT FUND
RESPONDENT
____________________________________________________________________
Coram
:
Nienaber,
Schutz and Navsa JJA
Date of hearing:
6
September 2001
Date of delivery:
14
November 2001
Summary: MVA – Whether a report by an
unidentified policeman recording a statement by a driver, since
deceased, about the
speed at which he was driving when a collision
occurred in which a child was injured, ought to be admitted in terms
of section
3 (1)(c) of the Evidence Amendment Act 45 of 1988.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NAVSA JA:
[1]
At about
midday on Saturday 26 October 1993 Mphathi Makhathini (Mphathi), then
three years old and living in Ntuzuma township,
KwaMashu in Kwa-Zulu
Natal, accompanied two older children, Mthoko Ngege (Mthoko) and
someone identified only as Phindile, to fetch
water from a communal
tap. It proved to be a fateful trip. The communal tap is situated
alongside Falezwe road, which is a narrow
tarred road. Whilst
separated from the other two children who were at the tap Mphathi was
struck and injured by a motor vehicle.
The appellant, in her
representative capacity as Mphathi's mother and guardian, instituted
an action for compensation against
the respondent, an insurer in
terms of the
Road Accident Fund Act 56 of 1996
and the statutory
successor to the Multilateral Motor Vehicle Accidents Fund.
[2]
At the
commencement of proceedings in the Durban and Coast Local Division of
the High Court the parties agreed that the question
of liability
would be tried first. Mphathi was
culpa
incapax
at the time of the collision and
therefore, apart from certain other issues flowing from the pleadings
which are no longer of any
moment, proof of any degree of negligence
on the part of the insured driver would render the respondent wholly
liable to the appellant.
Jappie J who heard the matter concluded
that there was insufficient evidence to prove that the insured driver
was negligent in
any degree and granted an order for absolution from
the instance with costs. It is against that order that the appellant
appeals
with the leave of the Court below.
[3]
The
appellant tendered in evidence a Road Traffic Collision Report ("the
report") in terms of s 3 of the Evidence Amendment
Act 45 of
1988 ("the Act"). In his judgment on the merits Jappie J
had this to say about it:
“
From the evidence before me, the
identity of the author who wrote
what
appears in this particular block is unknown. Neither had it been
established when this brief description of the collision
had, in
fact, been written out. Assuming, in favour of the plaintiff, that
it was written by the policeman who received the report
of the
collision from Zondi, it is still doubtful whether he recorded
accurately what Zondi, in fact, reported to him. It appears
that
what is recorded was the policeman's impression as to the
circumstances as related to him by Zondi. Even assuming in favour
of
the plaintiff that the contents of
Exhibit C
[the report] under these circumstances are admissible in evidence,
the value of what is contained therein is so doubtful that no
reliable inference can be drawn from its contents. All that can be
safely concluded from the existence of
Exhibit
C
is that there was a report of a collision
having occurred on 26 October 1993, and that this collision occurred
between a minor
child, Mphathi, and a motor vehicle driven by Justice
Thembelihle Zondi."
[4]
The issues
in this appeal are, first, whether the report should have been
admitted in evidence and, secondly, if so admitted, whether
the
evidence as a whole established the negligence of the insured driver.
[5]
The driver
of the insured vehicle, Mr J.T. Zondi (“Zondi”) could not
be called as a witness because he had died from
a cause unrelated to
the collision. Mthoko, nine years old at the time of the collision
and fifteen years old at the time of trial,
testified in support of
the appellant's case. He was the only witness called who was present
at the scene where the collision
occurred. I relate his version of
events. Initially Mthoko, Phindile and Mphathi were all standing
beside the communal tap whilst
a bucket was being filled. Together
the three of them crossed over to the other side of the road to
dispose of some litter. Mthoko
and Phindile then crossed back to
fetch the bucket and left Mphathi behind at a point opposite the tap.
The collision occurred
while Mphathi was separated from the other
two children. Mthoko did not see the collision. He was close to the
tap and his attention
was focused on the bucket. He last saw
Mphathi, before the collision, standing on the opposite side on the
gravel verge adjoining
the road. Mthoko could not recall hearing the
screeching of tyres or a hooter being sounded. After the collision
Mthoko saw tyre
marks on the road that were probably caused when
Zondi applied the brakes. The vehicle was still on the road.
Mphathi was lying
on the road in front of and towards the right of
Zondi’s motor vehicle, on the right-hand side of the road as
Zondi was travelling.
Mthoko recognized Zondi as someone he had seen
driving around the neighbourhood.
[6]
It is common
cause and appears clearly from the photographs that there is a bend
in Falezwe road, which would have required Zondi
to turn towards the
right before he reached the collision point. Zondi would have been
proceeding downhill with the tap to his
right. Whether he could have
seen the tap before he rounded the bend depends upon the extent to
which it and its surroundings
were obscured from his view. However,
the gravel verge where Mthoko last saw Mphathi standing was clearly
visible on his left
side at some distance. The two sets of
photographs used at the trial reflect the state of the area at
different times during 1996
(it will be recalled that the collision
occurred in 1993). The photographs show vegetation on the side of
the road where Mthoko
last saw Mphathi. The vegetation consisting of
reed-like plants and grass stood beyond the gravel verge. The
appellant's photographs
show less vegetation on both sides of the
road than do the respondent's photographs. Mthoko could not recall
the state of the
vegetation at the time of the collision.
[7]
The
appellant's evidence did not take matters much further. She was in
her house when she heard the screeching of tyres. She
came out of
the house and discovered that Mphathi had been struck by a motor
vehicle. When she arrived at the scene she saw him
lying on the
gravel verge adjoining the road. She accepted that Mphathi had been
moved immediately after the collision. The appellant
saw Zondi at
the scene and recognised him as someone from the neighbourhood. His
motor vehicle was on the road. Mphathi was transported
to a clinic in
Zondi’s car. It was not disputed that when the appellant
arrived at the scene, hawkers, who usually plied
their trade beside
the road, were present.
[8]
The
appellant’s evidence that the communal tap was the only source
of water in the area in which they lived was also not
disputed. The
appellant testified that there was no vegetation alongside the road
at the time of the collision - a squad of workmen
had "cleaned
up the road". Her evidence on this aspect was not challenged in
cross-examination.
[9]
Mphathi's
father, Mr Thembinkosi Jali ("Jali") testified. In my
opinion, Jappie J was correct in largely ignoring his
evidence. He
repeatedly contradicted himself and clearly made things up as he went
along. There is, however, no reason to doubt
the following parts of
Jali's evidence: that he followed Zondi to the clinic where they
left Mphathi, that they thereafter went
to the KwaMashu police
station to report the collision and that he saw a policeman writing
whilst Zondi was speaking to him. That
evidence is important in
relation to the report. It was not disputed that the policeman and
Zondi were speaking to each other
in Zulu. Jali, however, could not
hear everything that was said.
[10]
I turn to
the report and the evidence connected to it. The relevant part of
the report reads as follows:
"Driver A was driving from northwards to southwards. He was
driving m/v with registration number NJ 13355. At about 13:50
along
unnamed road at "G" Section Intuzuma he approached the
group of children who were fetching water at the tap. He
lowered his
speed and drove at 40 km/h. The group came aside and others left on
the other side. While he was driving afore –
one of the child
from right ran to the road. He set on brakes but the child of ±
3yrs was knocked and the child fell down
but sustained slight injury
on his head. The vehicle stand still. The child was taken to Nozaza
Clinic."
The report contains Zondi’s full names, an address
and the registration number of the motor vehicle. It also records
that
the driver in question had a code 8 driving licence. The police
station recording the particulars contained in the report is stated
to be the KwaMashu Police station. The report contains an official
date stamp bearing the date 26 October 1993.
[11]
Constable
Dube ("Dube"), the investigating officer who handed in the
original of the report, testified that he was stationed
at the
KwaMashu police station at the time of the collision. The report was
in the docket. He did not recognise the handwriting
of the person
who completed the report and could not identify him. According to
Dube the report would have been completed at the
police station.
Further attempts to obtain information from Zondi before his death
proved fruitless.
[12]
Captain
Perumal Subramoney ("Subramoney") testified that he was the
acting branch commander for detectives stationed
at the KwaMashu
police station. He confirmed that the official accident register at
the KwaMashu police station recorded the collision
in question. The
date on which the collision was reported is recorded as 26 October
1993, which is the day on which, the collision
occurred. Mphathi and
Zondi’s names appear in the collision register, as does an
address under Zondi’s name. A registration
number of a vehicle
appears in the appropriate column alongside Zondi’s name. The
occurrence book at the police station
also recorded the collision.
The entry appears to have been made at 23h40 on 26
October 1993. It contains a
cross-reference to the collision register. Subramoney did not
identify the person who completed the
report and took the statement
from Zondi.
[13]
Counsel
representing the appellant submitted that since the requirements for
admissibility in terms of s 3(1)(c) of the Act had
been met, Jappie J
erred in not admitting the report as evidence. The appellant's
principal purpose in tendering the report was
to rely on that part of
it which records Zondi's extra-curial statement to a policeman that
the speed at which he was traveling
at the time of the collision was
40 kmph. It was submitted that in all the circumstances that speed
was excessive.
[14]
Counsel for
the respondent opposed the admission of the report on several
grounds. The first ground was that the report was patently
inaccurate. So, for example, the report contained a statement that
the child with whom Zondi collided came from the right-hand
side of
the road whereas the evidence established that he had come from the
left. Furthermore, since the driver could obviously
not have seen
the tap before he rounded the bend in the road he could not have seen
"[t]he group came aside and others left
on the other side"
as recorded in the report. Secondly, it was submitted that the
recording of the statement was clearly
unreliable. The idiom and the
grammar used in the report were such as to indicate that the
policeman's command of English was
poor and reflected negatively on
the reliability of the report. Thirdly, and most importantly, he
submitted that the report did
not comply with the requirements of s 3
(1)(c) of the Act.
[15]
Section 3(1) of the Act and part VI of the Civil
Proceedings Evidence Act 25 of 1965 are statutory interventions
permitting the
reception of statutorily defined hearsay evidence, if
the respective statutory preconditions are satisfied. Section 3(1)
and s
3(2) of the Act provide:
"
3. Hearsay
evidence.
– (1) 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 to be
adduced agrees to the admission thereof 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.
(2) 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."
Hearsay
evidence and "party" are defined respectively in s 3(4) as
follows:
"(4) For the purposes of this section –
'hearsay evidence' means evidence, whether oral or in
writing, the probative value of which depends upon the credibility of
any
person other than the person giving such evidence;
'party' means the accused or party against whom hearsay
evidence is to be adduced, including the prosecution."
[16]
In
Mdani
v Allianz Insurance Limited
1991(1) SA
184(A)
at
189 H-190 A
this Court, in dealing with the testimony of
a policeman (A), that an insured driver (B) made admissions to him,
held, with reference
to s 3 of the Act, that such evidence is not
hearsay if tendered for the purpose of determining whether such an
admission was made.
Whether B in fact made the
admission
(in the absence of testimony by B) depends on A’s credibility
and could be tested by cross-examination. The Court held further,
that the
content
of
the admission, if it is to be used to establish the truth of what was
said, constitutes hearsay within the definition of hearsay
in s 3(4)
of the Act as that question depended upon B’s credibility. At
190 B
the following
was said:
"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)-(vii), it was of the opinion
that it
should be admitted in the interests of justice."
[17]
The Court
in
Mdani's
case
held (at
190 C
) that
the Court below had misread
Union &
South West Africa Insurance Co Ltd v Quntana N.O.
1977
(4) SA 410(A)
and had wrongly concluded that
it was precluded from admitting the driver’s admissions against
the defendant third party insurer
on the basis that they constituted
inadmissible vicarious admissions. Van Heerden JA in the
Mdani
case said the following at
188
I-J
:
"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."
At
190 C-E
he
said the following:
“
As a result of its wrong view of the law the
trial Court did not apply its mind to the question whether Basson's
[the policeman's]
evidence should have been so admitted. …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.”
[18]
The
Quntana
case was decided before the advent of the
Act. The conclusions reached in the
Mdani
case were critisised by Professor David
Zeffertt in the
1991
Annual
Survey
at
537–539
.
He submits that the Court
a quo
in the
Mdani
case
was justified in its reading of the
Quntana
judgment. The learned author goes on to
contend that the
Mdani
decision
could have ramifications far beyond what the draughtsman of s 3
may have imagined and that
the
law of evidence may never look the same again
.
[19]
In
Botes v Van Deventer
1966 (3) SA 182(A)
Williamson
JA dealt with vicarious admissions and said the following at
197
B
:
"Extra-judicial declarations or admissions by a party to a civil
action which are relevant to an issue raised in the action
are
generally receivable against him in evidence. Such declarations or
admission by others are generally inadmissible on the ground
that
they are hearsay."
There are three exceptions to this rule.
In Schmidt and Rademeyer's
Bewysreg
,
(4
th
ed) at
509
the learned authors set them out:
"…naamlik, waar die party die derde magtig om namens hom
te praat, waar hy die derde se verklaring as sy eie oorneem
of dit
ratifiseer en waar, weens die identiteit van hulle belange, die derde
se verklaring as die ekwivalent van sy eie beskou
word."
In the
Botes
judgment,
supra
,
Williamson JA at
206 F-G
referred
to a number of decisions in which it was held that there was no
privity of interest between a driver of a vehicle and a
third party
insurer but, because he was dealing with a master and servant
relationship he did not find it necessary to comment
on the
correctness of those decisions.
[20]
It is true
that in the
Quntana
case,
after referring to the judgment of Williamson JA in the
Botes
case and after examining the then
prevailing statutory framework providing statutory insurance to
motorists, Corbett JA said the
following at
426
E-F
:
"For these reasons, therefore, I am of the view that, in
general, and certainly in this particular case, the admission of
the
driver of the insured vehicle is not admissible against the
registered insurer, in an action under Act 29 of 1942, on the ground
of privity or identity of interest or obligation; and that, in the
absence of some other ground of admissibility, such as the admission
forming part of the
res gestae
or having been authorized by
pre-appointment or reference or by subsequent adoption, the admission
is not receivable in evidence
at all. Earlier cases in the
Provincial or Local Divisions in which a contrary decision was
reached must be regarded as having
been incorrectly decided."
It does
not follow that such a statement by a driver of an insured motor
vehicle which does not fall within the exceptions referred
to in
paragraph [19] cannot now be admitted if the requirements in terms of
s 3(1)(c) of the Act have been satisfied. The
Mdani
case
settled that question. Schmidt and Rademeyer in
Bewysreg
,
supra
, in dealing with that case state the following at
509-510
:
"Die hof gaan voort en bevind dat 'n middellike erkenning nie
voortaan meer uitgesluit sal word bloot omdat dit nie gemaklik
inpas
in een van die drie gemeenregtelike uitsonderingsgronde nie. Slegs
hoorsê is ter sprake, en enige middellike erkenning,
of dit nou
behoort aan 'n gemeenregtelike uitsonderingsgrond of nie, se
toelaatbaarheid sal bepaal word aan die hand van artikel
3(1) van Wet
45 van 1988. Dit beteken natuurlik nie dat die gemeenregtelike
posisie geheel irrelevant raak nie. Die gemeenregtelike
reëling
bly steeds hoogs relevant, want ons howe sal dit uit die aard van die
saak in ag neem wanneer hulle hul diskresie
ingevolge artikel 3
(1)(c) uitoefen."
Du Toit
et al
in their
Commentary on the Criminal Procedure Act
make the following comment (at
24-70 A)
:
"It may be simpler, however, to put aside labels which have
outlived their usefulness and to view the admissibility of such
admissions purely in the light of the general principles relating to
relevance and hearsay."
[21]
I
consider that this latter comment correctly reflects an important
aspect of the decision in
Mdani's
case (even though the
judgment does not spell it out in detail). Section 3 of the Act
defines hearsay evidence and whilst retaining
the common law's
caution about the reception of such evidence, it altered the rules
governing when it is to be received and when
not. The particular old
rule under discussion – extra-curial "admissions" by
a "stranger", the admissibility
of which was determined by
the absence or presence of "privity of interest" (an
essentially foreign concept derived from
substantive law) - has now
been supplemented by notions of relevance, weight and the interests
of justice. A reading of the analysis
that had to be undertaken by
Corbett JA in
Quntana's
case under the old hearsay
rules demonstrates one of the respects in which those rules were
deficient, at least if the privity
there envisaged finally determined
admissibility or inadmissibility. The statutory preconditions for
the reception of hearsay
evidence are now designed to ensure that it
is received only if the interests of justice dictate its reception.
In their application
the common law justification for the reception
of admissions will not be forgotten. It was, in the words of Parke B
in
Slatterie v Pooley
(1840) 6 M & W 664
[1840] EngR 227
; ,
151 ER
579
,
that "what a party himself admits to be true may
reasonably be presumed to be so". That will remain so and will
be placed
in the scale when the factors (i) to (vii) are weighed.
That will also remain so if the declarant is not the party himself,
but
his agent or privy in the common law sense, so that one may still
speak of an admission by the party. But when one has a case such
as
the one before us in which a "stranger" (Zondi) makes a
statement, the effect of which is adverse to a party, there
can be no
more talk of an admission. But the fact that it is not an admission
does not mean for that reason it must always be
excluded. And that
is what the effect of
Mdani
was. This Court did not
decide that the statement there in question should be admitted. What
it did do was to consider whether
the content of the statement made
to the policeman constituted hearsay evidence as defined. After
deciding that question in the
affirmative, it left it to the trial
court to decide whether the statements should be admitted after
having regard to the factors
listed in s 3(1)(c)(i)-(vii).
[22]
To
sum up: Hearsay evidence is not as a general rule admissible. A
long recognised exception to the rule occurs where the contested
hearsay statement amounts to an admission made by a party to the
litigation and, by extension, by someone who has an identity of
interest with such a party. The driver of an insured vehicle who had
made an admission which, if admitted in evidence, would be
held
against an insured who is a party to the litigation does
not
have
such an identity of interest with the insured. Section 3 of the Act
introduced a general statutory exception to the general
rule. It
follows that an admission by an insured driver, otherwise hearsay,
would only be admissible in evidence if it complies
with the
preconditions prescribed by s 3 of the Act. Before the advent of the
Act statements made by strangers to a suit, which
were construed as
admissions, were not admissible unless they fell within the
exceptions, referred to in paragraph [19]. Now such
statements are
examined to see whether they fall within the statutory definition of
hearsay evidence. If they do they are then
measured against the
requirements set out in s (3)(1)(c)(i)-(vii) and are admitted if they
pass muster - that is the true effect
of
Mdani's
case.
[23]
Once
one approaches the matter in this way there is no reason in principle
for excluding the driver's extra-curial statement, and
particularly
not because it is not an admission. In principle his extra-curial
statement as to his speed is no different to that
of his passenger
who had his eye on the speedometer just before the collision. Once
one is beyond the barrier of principle it
may be that in a particular
case the driver's statement, contrary also to his own interest, may
carry more weight than the passenger's,
but one cannot generalize.
Whether statements of this kind should be admitted at all, and if so,
what weight should be given them
must depend upon the outcome of the
application of the statutory tests to the facts.
[24]
The fears
expressed by Professor Zeffertt about the possible consequences of
the approach adopted in the
Mdani
case,
as described in paragraph [18], do not seem to have been realised in
the ten years that have passed since then. The cases
referred to
later in this judgment illustrate that courts have been heedful to
admit hearsay evidence only if the statutory preconditions
have been
met. There has been a consistent concern about a too ready reception
of untestable hearsay evidence. Equally, there
has been a concern to
admit hearsay evidence where the interests of justice demands its
reception
[25]
In the
present case Dube (A), testified that the report was in a police
docket and must have been completed by a policeman (B),
at the
KwaMashu police station. The statement in question is a statement by
Zondi (C), to the unidentified policeman, about the
speed at which he
was driving. Zondi was not a party to the litigation and could not
testify. The policeman did not testify.
It is clear that in respect
of the statement recorded by the policeman, unlike the position in
the
Mdani
case,
supra,
(where the
policeman testified about an admission made to him by the driver of
the insured motor vehicle),
the
evidence by Dube is hearsay evidence as defined in s 3(4) of the Act.
Dube could have been cross-examined about the provenance
and
authenticity of the report. As it happens the respondent
s
legal representative did not do so. In so far as the truth of the
content of the statement is concerned, that depends on the
credibility of Zondi and it is upon the truth of the content that the
appellant relies. If the statement is admitted then the appellant
has to surmount a second hearsay hurdle, namely, the acceptance that
the recordal by the unidentified policeman reflects what Zondi
said.
This is what is called double hearsay. Obviously, the more hearsay
is piled on hearsay the more unreliable it becomes.
But double
hearsay is not precluded by s 3 provided its requirements are met.
In
Magwanyana and Others v Standard General
Insurance Company Ltd
1996(1) SA 254
(D)
at
257 H
,
the Court, in dealing with the admissibility of a statement tendered
in terms of s 34(1) of the Civil Evidence Proceedings Act
and in
terms of section 3(1)(c) of the Act, admitted double hearsay but
considered its evidential value, in the totality of the
circumstances
of that case, to be minimal, particularly when seen against the
direct evidence of three witnesses. In due course
I will deal with
the evidential value of the statement before us. As will become
apparent, the nature of the double hearsay statement
in this case
differs substantially from that examined in the
Magwanyana
case,
supra,
and
described in the judgment at
256 E-G
and
at
257B-G
.
[26]
It is clear
that at best for the appellant only s 3(1) (c) of the Act applies to
the facts of the present case. The nature of
a decision on the
admissibility of evidence in terms of s 3 of the Act and the power of
a court of appeal to set aside a decision
wrongly arrived at is dealt
with in
McDonald’s Corporation v
Joburgers Drive-Inn Restaurant (Pty) Ltd and Another and two related
cases
1997 (1) SA 1(A)
where
this Court said the following at
27 D-E
:
“
It was contended that the Court
a
quo
exercised a discretion in refusing to
allow the evidence under section 3 of the Act, and that its decision
in this regard may be
set aside only if the Court of appeal considers
that the discretion was not judicially exercised. I do not agree. A
decision
on the admissibility of evidence is, in general, one of law,
not discretion, and this Court is fully entitled to overrule such a
decision by a lower court if this Court considers it wrong. There is
in my view nothing in s 3 of the Act which changes this situation.”
[27]
The purpose
of the Act is to allow the admission of hearsay evidence in
circumstances where justice dictates its reception. In
Metedad
v National Employers
General Insurance Co Ltd
1992 (1) SA
494
(W)
it was stated as follows at
498 I-499 G
:
"It seems to me that the purpose of the amendment was to permit
hearsay evidence in certain circumstances where the application
of
rigid and somewhat archaic principles might frustrate the interests
of justice. The exclusion of the hearsay statement of an
otherwise
reliable person whose testimony cannot be obtained might be a far
greater injustice than any uncertainty which may result
from its
admission. Moreover, the fact that the statement is untested by
cross-examination is a factor to be taken into account
in assessing
its probative value. …There is no principle to be extracted
from the Act that it is to be applied only sparingly.
On the
contrary, the court is bound to apply it when so required by the
interests of justice."
In each
case the factors set out in s 3(1)(c) are to be considered in the
light of the facts of the case. The weight to be accorded
to such
evidence, once it is admitted, in the assessment of the totality of
the evidence adduced, is a distinct question.
[28]
The factors
set out in s 3(1)(c)(i)-(vii) should not be considered in isolation.
One should approach the application of s 3(1)(c)
on the basis that
these factors are interrelated and that they overlap. See
Hewan
v Kourie NO and Another
1993(3) SA 233
(T)
at
239 B - C
and Schmidt and Rademeyer's
Bewysreg
,
supra
, at
481
where the learned authors state:
“
Soos reeds uit die voorafgaande bespreking van
die afsonderlike faktore sou blyk, behoort 'n hof nie die faktore
onafhanklik, en
sonder inagneming van die ander, in ag te neem nie.
Die afsonderlike faktore hou tot 'n hoë mate op verskillende
vlakke met
mekaar verband, en elkeen kan gevolglik net effektief in
aanmerking geneem word indien die hof, in die oorwegingsproses, die
impak
en invloed van die ander ook in die weegskaal plaas.”
[29]
I
turn to consider the application of s 3(1)(c) to the facts of the
present case. Section 3(1)(c)(i) requires a consideration
of the
nature of the proceedings. Section 3(1) of the Act makes it clear
that it applies to both criminal and civil proceedings.
Section
3(1)(c)(i) requires a consideration in the widest sense, of the
nature of the proceedings, for instance whether they be
civil or
criminal or trial or motion proceedings. One may then consider the
other factors in s 3(1)(c) in relation to the nature
of the
proceedings. For example, if the proceedings are motion proceedings,
whether the party against whom the evidence is sought
to be adduced
will be prejudiced, or whether allowing further sets of affidavits or
resorting to any other procedural or evidentiary
means may balance
matters. If the matter is a civil trial a court may consider the
absence of the testing power of cross-examination
which will always
be attendant when hearsay evidence is admitted, but may nevertheless
admit hearsay evidence if the party against
whom it is sought to be
admitted can counter the effect of such evidence by other means. If
one is dealing with a criminal trial,
with its attendant
consequences, the effect of the introduction of hearsay evidence may
be such that an accused person may suffer
prejudice of a kind such
that it would not be in the interests of justice to admit the
evidence. In the present case we are dealing
with a civil trial.
[30]
Section
3(1)(c)(ii) requires that the nature of the evidence be considered.
Schmidt and Rademeyer in
Bewysreg
,
supra
, at
477-478
suggest that this requirement relates mainly to the reliability of
the evidence sought to be introduced. Reliability is perhaps
more
pertinent to the enquiry in terms of s 3(1)(c)(iv), but as stated
earlier in this judgment, the various factors are interrelated.
In
my view what is required by s 3(1)(c)(ii) is a characterisation
of the evidence sought to be introduced. In the present
case the
strong probability is that a policeman at the KwaMashu police station
who was performing official duties obtained the
information in the
report from Zondi. It ties in with the evidence by Mphathi's father
that he accompanied Zondi to the police
station to report the
collision. The dates in the occurrence book and in the collision
register which were not contested, tie
in with the date stamp on the
report, which reflects, at least on the face of it, that it was
completed on the day of the collision.
It is consistent with the
evidence of Dube and Subramoney. In a nutshell, the evidence sought
to be introduced can be characterised
as a recording by a policeman
of a report of a collision given to him by a driver of a motor
vehicle on the day on which the collision
occurred.
[31]
Section
3(1)(c)(iii) requires scrutiny of the purpose for which the evidence
is tendered. The appellant's main purpose is to prove
the speed at
which Zondi was travelling, from which his negligence may then be
inferred. As such it is a central issue. Schmidt
and Rademeyer in
Bewysreg
,
supra
, at
478
refer to
S v
Dyimbane
1990 (2) SACR 502
(SE)
,
Hlongwane and Others v Rector, St Francis
College, and Others
1989(3) SA 318(D)
and
Hewan v Kourie
,
supra
, where it was
suggested that where the evidence sought to be admitted bears on the
central issue in the case a court should be
slow to admit it. The
learned authors also refers to a different view as stated in
S
v Mpofu
1993 (2) SACR 109(N)
at
116 i
:
"So far as the purpose for which the evidence is tendered I
cannot, with respect, agree that the importance of the evidence
is an
aspect militating against its admission. Evidence that is otherwise
relevant should not depend for its reception on its
importance in the
case. If the evidence sought to be led carries the hallmark of
truthfulness and reliability then its reception
is doubtless
justified."
In
S v Ramavhale
1996(1) SACR 639(A)
,
a criminal case, the following appears at
649
c – d
:
"I do not wish to enter into the
debate whether s 3(1)(c) should or should not 'be lightly applied'
(see eg
Metedad's
case
above at 499E-F), but I would agree with the remarks in this and
other cases, the effect of which is that a Judge should hesitate
long
in admitting or relying on hearsay evidence which plays a decisive or
even significant part in convicting an accused, unless
there are
compelling justifications for doing so."
[32]
Section
3(1)(c)(iv) requires that the probative value of the evidence be
considered. Evidence sought to be introduced in terms
of s 3(1)(c)
may be such that its probative value, even at first blush is minimal
and in those circumstances the enquiry will end
there. Questions of
relevance and reliability arise in the application of this
subsection: see
S v Ramavhale
,
supra
, at
649
e – 650 a
. The policeman who received
the report was an impartial outsider. The statement about speed
would have been deliberately made
and deliberately received. One can
readily accept that a driver reporting a collision would not be prone
to overstate his speed.
The overwhelming probability is that the
statement was made on the day of the collision a short while after
Mphathi was left at
the clinic to receive medical treatment. Regard
being had to these factors one is led to the conclusion that the
report sought
to be admitted has relevance and probative value.
[33]
Section
3(1)(c)(v) of the Act requires that a court enquire into the reason
why the evidence is not given by the person upon whose
credibility
the probative value of such evidence depends. Neither Dube nor
Subramoney could identify the policeman who completed
the report.
Counsel for respondent criticized the appellant for failing to place
evidence before the trial court about the steps
taken to trace the
whereabouts of the policeman who completed the report. In my view it
is a legitimate point of criticism against
the appellant that the
enquiry as to the identity of the policeman who took the statement
was not pursued with greater urgency
by her legal team, but is not,
in itself, decisive.
[34]
Section
3(1)(c)(vi) requires a consideration of prejudice to the party
against whom the evidence is sought to be adduced. The
inability on
the part of the respondent to test by cross-examination the accuracy
of the statement recorded by the policeman is
obviously prejudicial
but prejudice of that nature is implicit when hearsay evidence is
admitted. That, as was stated in
S v
Ramavhale
, supra,
at
649
j
is one of "the perils of hearsay
evidence" which must be faced whenever it is sought to introduce
evidence in terms of
s 3(1)(c) of the Act. It is the degree of the
prejudice that must in each case be taken into account to determine
whether an injustice
will be done to the party against whom it is
sought to be adduced and that, as has been stated earlier, is a
matter of fact to
be determined in the circumstances of each case.
In my view this is a borderline case. One must not forget that the
onus throughout
is on the appellant. On the other hand, there is a
warrant of reliability to be found in the probabilities, particularly
those
discussed in paragraphs [30] and [32].
[35]
Finally, in
terms of s 3(1)(c)(vii) of the Act the court is required to take into
account any other factor, which must refer to
any relevant factor not
yet covered by any of the preceding categories. I can think of no
others.
[36]
When all of
the factors enjoined to be weighed are taken together I think that it
is in the interests of justice to admit the version
of the person
most immediately concerned, when we may assume with some confidence
that he was not overstating his speed. The deficiencies
in the
report must obviously be taken into account when the ultimate
question to be determined is what reliance, if any, can be
placed on
the contents thereof. Bearing all these factors in mind, I have come
to the conclusion that the report should have been
admitted by the
Court
a quo
. And if
that had been done, there was sufficient support in the probabilities
for it to have relied on the admission about the
speed at which the
insured driver had travelled at the time of the collision in
determining whether he was negligent or not.
[37]
Even if one
accepts that there may have been some misunderstanding between the
policeman recording the report and Zondi, one can
with a reasonable
measure of safety accept that the statement about Zondi's speed was
accurately recorded. There is every indication
in the remainder of
the report that the policeman who completed the report was numerate.
On the probabilities I accept that the
policeman correctly recorded
what Zondi told him about his speed.
[38]
Having
regard to Zondi's knowledge of the area and the condition of the
road, a speed of 40 kmph was excessive in the circumstances.
The
children would have been visible to him if he had been keeping a
proper lookout. There are only two possibilities. The first
is that
when Zondi came round the bend he was not keeping a proper lookout
and did not see the children in the vicinity of the
road until it was
too late to stop. The second is that he did see the children when he
was rounding the bend but that his speed
was excessive, so that he
could not stop in time.
[39]
In
Levy
N.O. v Rondalia Insurance Corporation of SA Ltd
1971(2)
SA
598
(A)
at
599
H – 600 C
the following is stated:
"As a general proposition it is well settled, and it accords
with humanity and common sense, that a motorist approaching young
children near the edge of the road ought to drive with a degree of
special care and vigilance because of their tendency sometimes
to
dash heedlessly across the road. To hold otherwise would be to put
an old head on young shoulders, and to assume that they
will look
before they leap. But the rule must not be applied as a fixed
principle without reference to the facts. The foreseeability
of
reasonably possible collision, and the degree of special care
required, will vary according to the particular circumstances
of each
case, for example, the visibility of the children; their apparent
age; their proximity to the edge of the road and to
the path of the
vehicle; their immobility or liveliness; the indications, if any,
of an intention to cross the road; the extent
of their supervision
by a responsible person; the apparent awareness of the latter, and
of the children, of the approach of the
motorist; the available
width of road; and the stopping power of the vehicle in relation to
speed, brakes and road surface.
Such factors (and the list is not
exhaustive) are interrelated and not individually decisive. Their
cumulative effect must be
considered. Similarly, the particular
circumstances will dictate the reasonable steps in relation to
matters such as hooting,
berth, swerving, slowing down or pulling up,
with a view to guarding against the occurrence of collision, the
reasonable possibility
of which was foreseeable."
[40]
In either
of the possible scenarios previously sketched by me Zondi was
negligent. He ought to have foreseen that there might
have been
pedestrians, including children, in the vicinity of the tap. He must
have known that there were potholes in the road
and that the road was
therefore not smoothly trafficable. In these circumstances he ought
to have regulated his speed to enable
him to stop to avoid such
pedestrians that might have been crossing the road. If he had seen
the children, who were all very young
and unsupervised, earlier
rather than later, he ought to have reduced his speed and ought to
have applied his brakes sooner than
the brake marks indicate he did.
There was every possibility that the unsupervised children, including
Mphathi, would dash heedlessly
across the road. The brake marks on
the road suggest a sudden braking and that Zondi saw the children too
late. Because of the
speed at which he was traveling he could not
stop in time or take other evasive action. The evidence suggests
that he did not
sound his hooter. If he had done so at least one of
the witnesses in the vicinity would in all likelihood have heard it.
Zondi
failed to take such care as could have been expected of a
reasonable motorist in his position.
[41]
In the
light of the totality of the admissible evidence the Court below
ought to have concluded that Zondi was negligent and ought
to have
held the respondent liable for such damages as may have been
sustained by the appellant in her representative capacity.
[42]
In the
result I make the following order:
1. The appeal
is upheld with costs.
2. The order of the Court below is set aside and there
is substituted for it the following:
(a) It is declared that the Defendant is liable to
compensate the Plaintiff in her capacity as the mother and guardian
of the minor
child, Mphathi Advice Makhathini, for damages suffered
as a result of injuries sustained by the said minor in the collision
which
occurred on 26 October 1993;
(b) the further hearing of the trial is
postponed to a date to be arranged with the Registrar for the hearing
of evidence
as
to the
quantum
of
damages;
(c) the costs of trial thus far incurred are reserved.
MS NAVSA
JUDGE OF APPEAL
CONCUR
NIENABER JA
SCHUTZ JA