In the case of Giesecke & Devrient v Minister of Safety and Security (Supreme Court of Appeal of South Africa) the main issue was admissibility of hearsay as evidence as per s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988. Giesecke & Devrient was the appellant while Minister of Safety and Security was the respondent. In the case, it was ruled that hearsay could not be admitted as evidence.
The appellant was involved in the provision of cash processing as well as security services for a number of clients including banks and casinos. One of its clients was the owner of a casino. The appellant maintained a secure cash center in the basement of the casino where cash received in the casino was kept. One day, a robbery took place in the secure cash center operated by the appellant which resulted in a loss of R24 million. Pursuant to the terms of contract with the owner, the appellant was held responsible for the loss of cash. Investigations conducted showed that one of the casino employee, a Mr. Solomon Dube, took part in the armed robbery. Upon interrogation, Dube alleged that police were involved in the robbery. On learning that police were involved, the appellant issued summons to the Minister of Safety and Security, the respondent, for the losses it had suffered. The appellant sought full remedy for the loss from the respondent on grounds that Kgathi, the policeman alleged to have been involved in the robbery incident, was acting within the scope of his employment as a member of the police and for that reason the respondent was responsible. Besides the main claim of R24 million, the appellant also made another claim from the respondent amounting to R4.2 million. The claim was based on the allegation that Kgathi in collusion with two other members of the police, Naidoo and Govender, recovered the stolen money from the robbers but took part of it instead of handing it over to the appellant. According to the appellant, the respondent was vicariously liable for the acts of the policemen.
After presenting evidence, the main claim and alternative claim made by the appellant were dismissed. The claims were dismissed on the grounds that the major part of the appellant’s case relied on hearsay statements provided by people who were alleged to have participated in the robbery. Further, the alleged participants did not participate in giving evidence at the time of trial. Investigations conducted through another agency, Fedisa, and led by Botha resulted in the imprisonment of the police officers, Kgathi, Naidoo, and Govender. However, in the casino robbery incident, they were acquitted. They were acquitted because Dube and Gumede, the two witnesses who were to give evidence, were not present during the trial. It was therefore held that because the casino incident largely relied on the statement of the two witnesses, the three policemen could not be convicted.
The appellant went ahead to invite other witnesses to testify. Without Dube’s, Gumede’s, and Lifuwa’s testimony, the courts found that the appellant was relying on the hearsay statements which were made by the three witnesses to Fedisa. Following the respondent’s request to the court to make a ruling on admissibility, the courts held that the hearsay statements could not be admitted thus dismissing appellant’s main and alternative claims.
The grounds for admissibility of hearsay evidence is provided for in the Evidence Act s3 in the Law of Evidence Amendment Act 45 of 1988. In this case, the rule against inadmissibility of the hearsay statements was based on a number of reasons. First, the appellant was of the view that the courts would have made the ruling at the end of the case, and upon hearing all the evidence. But the judge viewed that it would not have made any difference in matters of principle. Based on proceedings of the previous case, the judge held that presentation of unheralded or late admission of hearsay evidence amounts to ambushing of the accused. Not only is the court supposed to be given time but the circumstances under which it need to rule on the admissibility of hearsay need to be clearly stated. It was therefore expected that the prosecution should have made their intention of invoking the provisions of s3 of the Law of Evidence Amendment Act 45 of 1988 before closing its case and also before the State brings its case to an end.
s3 (1) of the Hearsay Act was referred in the ruling of the admissibility of hearsay evidence. Upon examining subsections 1(a) and 1(b) of s3, the court found that it had no bearing on the case. Further, the court also found that hearsay statements were inadmissible as per s3 (1) (c). Firstly, the hearsay Act s3 (1), the Act made reference to the conditions of admissibility of hearsay statements. Admissibility of hearsay is excluded if it is found out that it is inadmissible under any other law. Given that it has been found to be inadmissible under the Evidence Act, it was equally not admissible as per s3. The court could not consider the circumstances are appearing in s 3(1) (c) (iv) because the witnesses who were expected to give evidence did not appear during the trial and there was no reasonable or sufficient explanation as to why they could not attend the trial. Under s 3(c) (v), the hearsay statements are inadmissible, and even if they were to be admissible, they lacked any probative value. For example, although Gumede and Dube made statements, their statements were so inconsistent to the extent that they could not be relied upon as evidence. Moreover, Gumede’s and Dube’s statements did not implicate the three members of the police in their statements. Even if the alternative avenue of admissibility of hearsay statements was there, it could not rule out the interest of justice as outlined in s 3(1)(c).
With reference to s 3(1) (b) Gumede and Dube failed to turn out to provide evidence, an act which made them fugitives of justice. The police were incapable of locating their whereabouts. Lifuwa, too could not be located. With reference to the provisions of s3 (1) (c), the hearsay statements lacked probative value and therefore they were inadmissible. If a hearsay statement is not admissible under the provision, the evidence is rendered irrelevant, and there is no point to inquire about its probative value. However, the reasons given by the court are not consistent with the provisions of s3. The two witnesses, Gumede and Dube, recorded statements under oath, and they implicated the policemen. The purpose of recording the statement under oath was for the purposes of serving justice. That they could not be traced alone cannot be a good ground to render hearsay statements as inadmissible. It appears the courts were quick to dismiss hearsay evidence upon learning that the respondent was going to suffer. Admissibility of hearsay would have advanced appellant’s case, and subsequently, the respondent could have been held responsible for the main claim and alternative claim. Upon considering all the circumstances surrounding the robbery incident, and upon applying reason and logic, the appellant should have been given a chance to present hearsay evidence as per the statements issued by Dube and Gumede.
Again, on the issue of the main claim, and even with the admissibility of hearsay, the appellant had little proved that the responded should be held reliable. When the mere presence of Kgathi at the scene of robbery is considered, the statistical evidence, poor record of recovered cash, Botha’s evidence of the intentions of Kgathi and two other police to harm him, and Kgathi’s lifestyle, the appellant’s main claim was fairly dismissed by the court. However, in the alternative claim, the appellant has a right to be compensated if it is found that the police acted in a dishonest manner in the course of performing their duties.
Works Cited
The Supreme Court of Appeal of South Africa. Giesecke & Devrient v Minister of Safety and Security (749/10) [2011] ZASCA 220 (30 November 2011). Web. 10 April 2016. < http://www.justice.gov.za/sca/judgments/sca_2011/sca2011-220.pdf >
