Hassim v Naik

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Van Den Heever JA, and Newton Thompson AJA
• Judgment Date: 19 May 1952
• Court: Appellate Division
• Citation: 1952 (3) SA 331 (A)
• Docket Number: Case No. 3
• Hearing Date: 06 May 1952
• Date: 19 May 1952

Centlivres, C.J.:

The respondent sued the appellant in the High Court of Southern Rhodesia in an action in which he claimed transfer of a certain D piece of land in terms of a deed of sale dated November 21st, 1945. The appellant pleaded that he was a minor at the time when he signed the deed of sale and that the deed did not receive the authorisation of the Court in terms of sec. 92 of the Administration of Estates Act (Chap. 47).

E The appellant's mother stated in evidence that she married her late husband, who died in 1943, in Porbandar in India. Two and three quarter years after her marriage her husband left India but she remained behind in Porbandar. He returned to Porbandar after nine years and about ten months after his return she gave birth to the appellant. The witness F found a passport (which was shown to her in Court and identified by her) among her husband's effects after his death. Appellant's counsel sought to put in the passport as evidence to show when the appellant's father left Southern Rhodesia to go to India and when he arrived in India. Respondent's counsel objected to the production of the passport G but admitted that it was a genuine Southern Rhodesian passport, issued in Southern Rhodesia and bearing the signature of the Governor of Southern Rhodesia.

BEADLE, J., who heard the case, ruled that the passport was inadmissible in evidence. At the conclusion of the case he gave judgment for the respondent in terms of his claim on the ground that the appellant had H not discharged the onus of proving that he was a minor at the time when he signed the deed of sale.

In the appellant's heads of argument it was contended that the learned trial Judge had erred in finding on the evidence, which was given, that the appellant had not discharged the onus which rested on him but Mr. Gould, who appeared for the appellant at the hearing of the appeal, informed the Court that he would not raise that contention and that he would confine himself to contending

Centlivres CJ

that the trial Court had erred in holding that the passport was inadmissible in evidence.

The evidence provided by the passport to show when the appellant's father arrived in India would be hearsay. As a general rule hearsay A evidence is inadmissible and the question at issue is whether this is one of those exceptional cases where hearsay evidence of the nature of that which is sought to be given is admissible. To determine this question recourse must be had to English law, for sec. 30 of the Civil Evidence Act (Chap. 30) of Southern Rhodesia provides that:

B 'No evidence which is of the nature of hearsay evidence shall be admissible in any case in which such evidence would be inadmissible in any similar case depending in the Supreme Court of Judicature in England.'

At the outset I must point out that the appellant is faced with the initial difficulty that in the trial Court it was sought on his behalf C to produce only such evidence as was provided by the passport and the endorsements it contained in order to prove the date when his father arrived in India. This could only be done by admitting in evidence certain endorsements in the passport. By consent the passport was handed in from the Bar. The relevant endorsements are as follows: -

1.

D A transit visa under the signature of a police official at Beira, dated June 25th, 1924, which stated that the holder of the passport was proceeding to India.

2.

An impression by means of a rubber stamp as follows '12th July 1924 Bombay Police'. This impression was not accompanied by any signature.

E Even if the passport were admissible in evidence, the endorsements referred to would not prove themselves. None of the endorsements were authenticated and it is clear that without authentication none of them could be admitted in evidence. The passport was rejected by the trial F Court not on the ground of lack of authentication but on the wider ground that it contained hearsay evidence and that this was not one of those exceptional cases where hearsay evidence is admissible. Mr. Gould contended that, had the issue of lack of authentication been raised, the appellant might have obtained a postponement for the purpose of G obtaining the necessary evidence and that, if this Court were to hold that the passport with its endorsements is admissible in evidence, it should allow the appeal and remit the matter to the trial Court for evidence of authentication.

There is a further difficulty in the path of the appellant. He had no evidence available in the trial Court to prove the circumstances under H which the endorsements were made. The most material endorsement was the impression made by a rubber stamp which purported to show that the appellant's father was in Bombay on July 12th, 1924. As I have pointed out this impression was not accompanied by any signature. The impression could not have been authenticated under the simple procedure prescribed by Order 32 of the Rules of the High Court of Southern...