Nohour and Another v Minister of Justice and Constitutional Development

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Petse DP, Van Der Merwe JA and Dlodlo JA
• Judgment Date: 26 March 2020
• Court: Supreme Court of Appeal
• Hearing Date: 07 March 2017
• Citation: 2020 (2) SACR 229 (SCA)
• Counsel: TN Aboobaker SC (with M Bahdur) for the appellants. CAS Jennings (with SH Ngcobo) for the respondent.
• Docket Number: 1139/2018 [2020] ZASCA 27

Dlodlo JA (Petse DP and Van der Merwe JA concurring):

[1] The appellants, Mr Vishnu Nohour and Mr Neville Michael Charlos, together with three others, were tried on charges of kidnapping and rape of one RM in the Durban Regional Court. They raised the defence that they had consensual sex with the complainant whom they described as a prostitute. The complainant denied that she had consented to the sexual intercourse or that she was a prostitute. The trial ended on 8 April 1994 when the appellants were convicted. They unsuccessfully appealed against the conviction in the KwaZulu-Natal High Court. The High Court, upon dismissing the appeal, proceeded to increase their sentences to an effective period of seven years' imprisonment.

[2] The appellants' applied and were granted leave to appeal by the High Court to this court. The appeal was against both conviction and sentence. On 13 May 2003 this court set aside the appellants' conviction and sentence. By that time, consequent upon conviction, the appellants had served a term of imprisonment from 19 March 1998 until 23 November 2001 and from 19 March 1998 until 28 September 2012, respectively.

[3] One Ms Monique Holzen was at all material times an employee of the Department of Justice and Constitutional Development (the department). She was the state prosecutrix in the trial. It is common cause that, at all material times, she acted within the course and scope of her employment by the department.

[4] In the particulars of claim in the court a quo, it is averred that in the course of the criminal trial Ms Holzen omitted to disclose facts within her knowledge to the appellants and the regional court. Those facts she withheld were:

(a)

That the complainant (RM) had admitted to the investigating officer that she was a prostitute;

(b)

that the investigating officer had witnessed the complainant soliciting and plying her trade as a prostitute; and

(c)

that the complainant's sworn statement which, in accordance with the practice at the time, was not in possession of the appellants or their legal representatives, materially differed from her evidence in court.

[5] In acting as Ms Holzen did, the appellants alleged that she breached her common-law duty to disclose to the defence any material deviation between the evidence given by the complainant and the contents, statements and information in the docket. The appellants alleged that, had the aforementioned information been disclosed by the prosecutor, they would have been acquitted of charges against them. The contention by the appellants is that the withheld information was critical in their defence of consensual sex with the complainant

[6] According to the appellants, as the prosecutor acted with the object to secure a conviction against them, she had the necessary animus uniuriandi, that is, the intention to injure. In the alternative the appellants pleaded that the prosecutor acted negligently. The appellants

Dlodlo JA (Petse DP and Van der Merwe JA concurring)

pleaded that, as a consequence of wrongful conviction, they were imprisoned for various periods described above. They were thereafter subjected to stringent parole conditions which restricted their rights and freedoms until their appeals succeeded. They were unable to be employed in the time they were in prison and consequently they suffered loss of earnings. They alleged to have suffered loss of amenities of life, loss of freedom of movement and loss of opportunities to interact with family and friends. They averred to have suffered depression from which they continue to suffer. They claimed specified amounts of money representing general damages, past loss of earnings, etc. Save for the special plea of prescription, the respondent unhelpfully pleaded a bare denial of each, and every averment made by the appellants. The special plea is not before us. It was dismissed by the High Court.

[7] The trial proceeded only on the issue of liability. The appellants denied that they raped the complainant. The High Court found that all the essentials of the cause of action had been established by the evidence advanced, save for the issue of causation and damages. The High Court found that the appellants failed to discharge the onus of proving causation. Put differently, the appellants failed to prove that they would not have been convicted, but for the irregularity committed by the prosecutor. Another finding made by the High Court was that the state was not obliged to compensate the appellants on the basis of the 'ex turpi' principle.

[8] This court is called to make a determination whether the appellants would have been acquitted if the prosecutor had discharged her common-law obligations and disclosed to the defence material deviations between the complainant's evidence and the contents of the docket. Additionally, perhaps, a finding is called for whether the High Court was correct in finding that the ex turpi causa maxim applied to the factual matrix of this matter.

[9] The duty, to disclose the apparent deviations by a witness from the statement made, existed in this country even prior to the advent of the present constitutional dispensation. Nowadays the constitutional values are also relevant in determining the legal convictions of the community. [1] In R v Steyn [2] this court laid down a firm rule of practice in terms of which a public prosecutor is obligated to inform the court if a state witness has deviated in a material respect from the statement he made which is in the police docket. This rule also required that the state shall furnish to the defence a copy of such statement in order that it be used during the cross-examination of the relevant witness. The prosecutor indeed had a legal duty to disclose material discrepancies as aforementioned.

Dlodlo JA (Petse DP and Van der Merwe JA concurring)

[10] The information that the prosecutor should have disclosed in terms of the aforesaid duty was concisely set out by Heher JA in this court's judgment in the following terms. [3]

'9.

The statement made by the complainant to the police and the contents of the investigation diary were only brought to the attention of the appellant and his legal advisers in 1998 after initial appeal had been dismissed[.]

10.

In the police statement apparently signed by the complainant, she is reported as follows:

"On 1993 – 02 – 12 at about 23:15 I was walking with my sister (Hlewye Mkhize) down Innes Road. To visit a friend who lives in Innes Road but I am unable to give address at this stage . . . . I was screaming and four black males came to my rescue. A fight broke between the unknown black males and the Asian males. . . . The black male who I informed that I was raped left the scene of the Asian males whilst I stood by the roadside . . . ."

11.

The appellant testified that towards the latter part of the time which he and the other accused spent with the complainant in the park they became aware of the noise in the vicinity including a gunshot. When they were hurriedly settling accounts with the still naked complainant two black men ran into the park and confronted him he panicked and fled. He heard what sounded like a fight going on behind him. (Accused 2 testified that, indeed such fight took place involving him, accused 3 and the black men.)

12.

In the investigation diary the investigating officer, Murugan, made the following relevant entries:

"93/05/14 . . . The complainant was traced and served with J32 . . . According to the complainant, the person mentioned in her statement H Mkhize is not in fact her sister but a fellow prostitute . . . tried to get hold of this prostitute but she kept avoiding me . . . ."

13.

In the affidavit which supported the application to re-open the case the investigating officer confirmed that conversation which he had with the complainant on 14 May 1993 and added that the source of his knowledge that she was a practising prostitute was not only that conversation but his own observation of her while she was engaged in soliciting.'

The conduct of the prosecutrix in withholding these material matters from the trial court and the defence was most certainly gross.

[11] If the prosecutor concerned acted deliberately in omitting or failing to disclose the aforementioned discrepancies to the court and to the defence, the requirement of animus iniuriandi would be established. On the other hand, if the prosecutor acted negligently, then liability can only arise where the circumstances give rise to a legal duty to avoid

Dlodlo JA (Petse DP and Van der Merwe JA concurring)

negligently causing harm. The principles applicable to liability for negligent omission were correctly formulated by Nugent JA in the following terms: [4]

'A negligent omission is unlawful only if it occurs in circumstances that the law regards as sufficient to give rise to a legal duty to avoid negligently causing harm. It is important to keep that concept quite separate from the concept of fault. Where the law recognises the existence of a legal duty it does not follow that an omission will necessarily attract...