Hassim v Naik

• Jurisdiction: South Africa
• Citation: 1952 (3) SA 331 (A)

Hassim v Naik
1952 (3) SA 331 (A)

1952 (3) SA p331

Citation	1952 (3) SA 331 (A)
Court	Appellate Division
Judge	Centlivres CJ, Van Den Heever JA, and Newton Thompson AJA
Heard	May 6, 1952
Judgment	May 19, 1952

Flynote : Sleutelwoorde

Document — Passport not a public document — Endorsements thereon not admissible in absence of proof that person making them did so under judicial or statutory authority — Appeal — Appellate G Division — Power of — Remittal of case for further evidence to High Court, Southern Rhodesia — Must be proof that such evidence admissible — Act 18 of 1931 (S.R.) sec. 3 (a), Chap. 10 (S.R.) sec. 7 (a) — Evidence — Passport — Not a public document — Not an exception to the hearsay rule — Endorsements therein — When admissible.

Headnote : Kopnota

H In order to prove that he was a minor at the time he signed a contract of sale, the appellant had called his mother who had produced a passport issued to her late husband containing endorsements, inter alia, of a transit visa under the signature of a police official stating that the holder of the passport was proceeding to India, and an impression by means of a rubber stamp not accompanied by any signature. A trial Court having held that such passport was not admissible, on an appeal,

1952 (3) SA p332

Held, as a passport was not a public document, that it could not be admitted in evidence.

Held, further, as there was no proof that the persons who had made the endorsements had an express authority, judicial or statutory, to make those endorsements, that they were not admissible in evidence.

A The Appellate Division has the power to remit a case to the High Court, Southern Rhodesia, for further evidence under section 3(a) of Act 18 of 1931 and Chapter 10, section 7(a), but before the appellant can ask the Court to do so he must satisfy it that the evidence which he seeks to lead is admissible.

The decision of the High Court, Southern Rhodesia, in Naik v Hassim, B 1952 (1) SA 362, confirmed.

Case Information

Appeal from a decision in the High Court; Southern Rhodesia (BEADLE, J.). The facts appear from the judgment of CENTLIVRES, C.J.

D. Gould, Q.C. (with him A. D. H. Lloyd), for the appellant: The passport tendered in evidence was admitted by respondent's counsel to be a genuine document validly issued in Southern Rhodesia and was identified at the trial by appellant's mother as the passport of his late father. It had been found amongst the effects of the deceased after his death and was therefore produced from proper custody: cf. Hubbard v. D Lees & Purden, 1 Ex. 255; Phipson, Evidence (8th ed., at p. 515). It is admitted that all the endorsements and inscriptions in the passport constitute hearsay evidence and that their admissibility must depend upon whether they fall within any of the recognised exceptions to the general exclusionary rule. The only possible exception within which the E passport might fall is that which permits the reception in evidence of public documents, which have been classified by Phipson, supra at p. 328. A passport falls under Phipson's class 4, it being an official certificate of nationality and identity; see Sachs v Dönges, N.O., 1950 (2) SA at pp. 277 - 278, 300, 303 - 304, 313, Hackworth, Digest of F International Law (Vol. III, at 435); Hyde, International Law (Vol. II, para. 399); Jones, British Nationality (at p. 289). As to the rejection by the Judge a quo of the passport on the ground that, although it was an official certificate, its reception in evidence was G not supported by direct precedent, the Court's traditional reluctance to receive official certificates under the Common Law arises from two sources, viz. (a) a misinterpretation of Omichund v Barker, 125 E.R. at pp. 1315 - 1316; see Wigmore, Evidence (3rd ed., Vol. 5, para. 1674); and (b) the fact that the reception of a certificate violates the 'best evidence' rule and is not always justified by considerations of necessity or convenience; see Phipson, supra at p. 356; Taylor, Evidence H (12th ed., sec. 1784). In any event, although the cases relating to the admissibility of certificates are neither uniform nor satisfactory, the fact remains that in a number of instances official certificates have been received in evidence under the Common Law; see cases cited in Phipson, supra at pp. 357 - 359, and in Halsbury's Laws of England (2nd ed., at paras, 731, 732). Amongst the official certificates which have been so received are passports; see Whaley v Carlisle (1866) 17 I.C.L.R. 792; Greef v. C

1952 (3) SA p333

Verreaux, 1 Men. 151. Subject only to the question whether public access to an official certificate is a condition of its admissibility, which is dealt with infra, the reception of a passport is, when grounds of necessity or convenience exist, justified in principle. The fundamental A rule governing the admissibility of all public documents is that the statements contained therein must have been made by authorised agents of the public in the course of their official duty, the principle underlying the rule being found in the presumption that when it is part of the duty of a public officer to make a statement as to a fact coming B within his official cognisance, the great probability is that he does his duty and makes a correct statement, see Wigmore, supra, paras. 1632, 1633; Baker, The Hearsay Rule (at pp. 133, 135); Phipson, supra, at pp. 328, 356; Rex v de Villiers, 1944 AD 493. A passport duly issued by an authorised official under the Royal Prerogative complies C with this fundamental rule and its underlying principle. It is true that passports, unlike public registers, are, by remaining in private custody after issue, more liable to fraudulent alteration; see Wigmore, supra, para. 1674. But these considerations are relevant only to questions of proof and cannot operate to deprive a passport of its D essential or public character. Nor do Statutes passed to authorise the reception of certificates, e.g. analysts' certificates not admissible by Common Law by reason of the fact that the officials concerned have no express authority to make such certificates affect the point in issue; cf. Wigmore, supra, para 1674. As to the rejection by the Judge a quo of E the passport on the ground that it was not a public document by reason of its being inaccessible to the public, the rule that, in order to qualify as a public document for purposes of admissibility in evidence, an official document must be accessible to and subject to the inspection of the public is of comparatively recent origin. The genesis of the rule is to be found in the statement of LORD BLACKBURN in Sturla v Freccia F (1880) 5 A.C. at pp. 643, 644. Prior to this the rule governing the reception of public documents was based upon the presumption of fulfilment of official duty by authorised public officers, and public access was not regarded as essential; see Doe v Arkwright, 2 A. & E. G 183; Daniel v Wilkin, 7 EX. 429, 437; Wigmore, supra, para. 1634; Baker, supra, pp. 133 - 135. It is also significant that none of the other members of the House of Lords in Sturla's case, supra, based their judgment on that ground. The statement of LORD BLACKBURN has, however, been followed in England in a number of cases since 1880, with the result that the rule requiring public access to public documents as a H condition of their admissibility has become established in English Law; see Mercer v Denne, 1904 (2) Ch. 534; 1905 (2) Ch. 538; Attorney-General v Horner (2), 1913 (2) Ch. at p. 155; Heyne v Fischel, 30 T.L.R. 190; Pettit v Lilley, 1946 (1) A.E.R. 593; Wigmore, supra, para. 1634; Baker, supra, pp. 135 et seq., and cf. Northern Mounted Rifles v O'Callaghan, 1909 T.S. at p. 177; Rex v Hoffman, 1941 OPD at p. 71. The rule

1952 (3) SA p334

has, however, been severely criticised as being based on a misunderstanding of what is meant by a 'public document' and as being contrary to principle; see L.Q.R., Vol. 63, p. 271; Wigmore, supra, para. 1632; Baker, supra, at 137. Nevertheless the English decisions A enunciating the rule are binding on Southern Rhodesian Courts; see Civil Evidence Act, Chap. 20, sec. 30. The question, however, arises whether the rule was intended to apply to all classes of official documents or only to official registers and such like which are kept in official custody. The latter possibility was suggested in Lilley's case, B supra at p. 597. The principle underlying the rule appears to be that where an official document is subject to public inspection, the facility and certainty with which errors would be exposed and corrected furnishes a separate and additional guarantee of its accuracy; see Wigmore, supra, at p. 516. Apart from the inherent weakness of this C hypothesis, which is emphasised by Wigmore, ibid, and Baker, supra at p. 137, the rule can have no logical application to official certificates. In public registers and the like, statements may seemingly sometimes be properly made by officials without full investigation; see Baker, supra at pp. 142 et seq. and cf. Rex v de Villiers, 1944 AD D 493; Phipson, supra at p. 332. In such event the requirement of the check of public access and inspection might find some theoretical justification. In the case of official certificates, however, more particularly official certificates of such high importance as passports, where it is part of the duty of the officials responsible for their issue to satisfy themselves as to the truth of the statements recorded E therein, the requirement of...