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[1995] ZASCA 72
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Namdeb Diamond Corporation (Pty) Ltd. v Bester NO and Others (144/93) [1995] ZASCA 72 (31 May 1995)
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REPORTABLE CASE NO. 144/93
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the matter between:
NAMDEB DIAMOND CORPORATION (PTY)
LIMITED APPELLANT
and
L VON WIELLIGH BESTER
N.O. FIRST RESPONDENT
RAEL GORDON N.O. SECOND RESPONDENT
A A
NIEUWOUDT THIRD RESPONDENT
CORAM: JOUBERT, STEYN, F H GROSSKOPF,
NIENABER, et OLIVIER JJA
DATE OF HEARING: 3 MAY 1995
4 MAY 1995
DATE OF JUDGMENT: 31 MAY 1995
JUDGMENT
OLIVIER JA:
This is an appeal against a judgment of Van Niekerk J in the
Cape Provincial Division, dismissing with costs the appellant's claim against the first and second respondents for payment of damages in the sum of
2
R1 497 142. Leave to appeal to this Court was granted by the Court a
quo.
The appellant, formerly known as CDM (Pty) Ltd, is a mining
company which has a state diamond concession to conduct extensive diamond
recovery operations along the southern coast of Namibia. The main recovery plant
is situated at Oranjemund. As concessionary, it
becomes the owner of all
diamonds recovered within the concession area.
The first and second
respondents are the joint trustees in the estate of the third respondent, A A
Nieuwoudt, who is a farmer in the
district of Garies.
On 24 May 1985
the appellant instituted action against Nieuwoudt whose estate had then not ye*
been sequestrated. Subsequent to the
institution of the action Nieuwoudt's
estate was sequestrated. The first and second respondents were then substituted
as joint defendants.
One day after the commencement of the trial before Van
Niekerk J, Nieuwoudt made his presence known at court and applied to be joined
as a defendant on the basis of his reversionary interest in the insolvent
estate. This application was granted, he was joined as
third defendant, and for
the remainder of the trial
3
he appeared in person.
The crux of the plaintiff's case is set out in paragraph 4 of its amended
particulars of claim, which reads as follows:
"4(a) During or about 1979, the precise date being to Plaintiff unknown, and at or near Garies, Cape, Nieuwoudt orally offered to buy from one Bernardus Lambertus van Zyl, who was at the time in Plaintiff's employ as a security officer, uncut diamonds which the said Van Zyl could obtain from Plaintiff's mine at Oranjemund, South West Africa. (b) Thereafter, and pursuant to the said offer, on various occasions during the period from about 1979 or 1980 to about December, 1981, the precise date of each occasion being to Plaintiff unknown, and at or near Garies, Cape, the said Van Zyl sold and delivered to Nieuwoudt the equivalent of 23 full matchboxes and 3 half full matchboxes of uncut diamonds (which included diamonds delivered in a sock) of which uncut diamonds
4
Nieuwoudt took possession. (c) To Nieuwoudt's knowledge when he took possession thereof as aforesaid, the said diamonds had been wrongfully and unlawfully stolen from Plaintiff at its said mine at or near Oranjemund, and were the property of Plaintiff." It was further alleged that the said diamonds were sold by Nieuwoudt to one De Beer during the period from about 1979 to about the middle of 1982.
Originally the amount of damages claimed was R4807500. This was reduced
in the amended particulars of claim to R1497142.
It is important to
draw attention to the respective pleas filed by the first and second respondents
and, after his joinder, by third
respondent.
Initially, in their
first plea, dated 5 June 1986, the first and second respondents denied all
allegations made by the appellant.
In their amended plea of 21 February 1992,
however, they changed course. They admitted, in reply to clause 4 of the
appellants particulars
of claim, quoted above, that"...
5
during or about 1979 and at or near Garies, Cape, Nieuwoudt orally
offered to buy from one Bernardus Lambertus van Zyl, who was at
the time in
Plaintiff's employ as a security officer, uncut diamonds," and that ... "on
various occasions during the period from
about 1979 or 1980 to December 1981 and
at or near Garies, Van Zyl sold and delivered to Nieuwoudt certain quantities of
uncut diamonds."
The aforesaid plea was probably based on their
knowledge of certain facts, later admitted by the first and second respondents
in terms
of a pre-trial conference in terms of Rule 37, viz. that Nieuwoudt had
been charged with the theft of approximately 25 matchboxes
containing uncut
diamonds, which were the property or in lawful possession of the plaintiff over
the period December 1979 to December
1981, and that he had been convicted of the
theft of an undetermined quantity of uncut diamonds. They also admitted that
Nieuwoudt
had been charged with, and convicted of, contravention of Sec 84(1)(b)
read with sections 1, 84 and 106 of Act 73 of 1964, in that
he sold uncut
diamonds (approximately 5000 carats)during the period December 1979 to March
1982.
6
It also appears that Nieuwoudt was convicted on the aforesaid charges in
the Cape Provincial Division and that the convictions were
upheld in this Court
on 6 June 1990.
What remained in issue between the appellant and the
first and second respondents as regards the alleged theft and sale of the
diamonds
stolen from the appellant's mine were the origin of the stolen diamonds
and the quantity and value of diamonds delivered by Van Zyl
to
Nieuwoudt.
When the third respondent applied to be joined as
co-defendant he alleged, in a founding affidavit, that there were undistributed
assets of more than R4 million in his estate in which he claimed a reversionary
interest. He also averred that neither the first
and second respondents nor
their counsel had consulted him regarding the claim nor did they have any
personal knowledge of the relevant
facts. Nor had he been subpoenaed by them as
a witness. He was under the impression (correctly, it seems) that they did not
intend
to contest the claim fully.
After his application was granted, third respondent filed a plea, in which,
7
inter alia, the allegations made in paragraph 4 of the particulars
of claim were denied. This meant that the merits of the appellant's claim
were
fully and squarely put in issue.
It was common cause that when the
action commenced, Nieuwoudt was not in possession of any of the allegedly stolen
diamonds.
Van Niekerk J did not deal with the legal basis of the appellant's claim. In argument in this Court, reference was made to the condictio furtiva. the actio ad exhibendum and the actio legis Aquiliae.
In Roman law the condictio furtiva was reipersecutory, but in the event of the owner not vindicating his stolen property, the action lay against the thief or his heirs for recovery of the value thereof. In that form, the condictio furtiva survived through the medieval and Roman Dutch law. The precise nature of the action was, however, controversial. In Roman law it was not considered to be a delictual action, because it was actively and passively transmissible, unlike the Aquilian action. In Roman Dutch law it was seen as a delictual action, i.a. by Groenewegen (De legibus abrogatis C.4.17 paragraph 5). But
8
it retained a few peculiar characteristics: the owner could recover not only the value of the stolen property as at the date of the theft, but also the appreciation in its value since the theft and up to the time of institution of the action and it could be instituted for return of the property or its said value (see in general Pieter Pauw Historical Notes on the Nature of the Condictio Furtiva in 93(1976) SA Law Journal 396).
In John Bell & Co Ltd v Esselen 1954(1) SA 147(A) at 151E - H it was held that the condictio furtiva would lie against a third party, to whom a misappropriated cheque had been negotiated, if the plaintiff, the owner of the cheque, could prove that the third party knew at the time he received and cashed the cheque of the fraud practised on the plaintiff.
The condictio was seen as an enrichment action in Krueger v Navratel 1952(4) SA 405 (SWA) at 408A - 409B, but in Minister van Verdediging v Van Wyk en Andere 1976(1) SA 397 (T) it was stated that the action is a delictual one. It was noted that the action only lies against the thief or his heirs (at 400B - C). It was held that the plaintiff had to prove ownership of the stolen
9
property not only at the time of the theft but also at the time of the institution of the action (at 400H). It was held that as the plaintiff in that case had recovered the wreck of his stolen vehicle and, before institution of the action sold to it to a scrapyard, he could not succeed in the action (at 401B - F). In such a case it was said, the actio legis Aquiliae is available (at 401E). It was also held that an accessory is not liable under this action (at 402A - 403A). In our law, the actio ad exhibendum had changed its Roman characteristic of a remedy directing the possessor of property to bring it to court so as to enable the owner to launch a rei vindicatio. to a delictual action. It lies against a mala fide possessor who has alienated or consumed the owner's property (see Morobane v Bateman 1918 AD 460 at 465 - 466; John Bell & Co Ltd v Esselen. supra,at 153B - G; Leal & Co v Williams 1906 TS 554 at 558 - 559; Sorvaag v Petterson and Others 1954(3) SA 636 (C) at 640F - 641C). The action also lies against a defendant who has parted with the possession of property after he had notice of the plaintiff's claim to it (Aspeling. N.O.v Joubert 1919 AD 167 at 171: Vulcan Rubber Works (Pty) Ltd
10
v SAR & H 1958(3) SA 285(A)).
In modern law, the actio legis Aquiliae would undoubtedly be
available to the owner against the thief and anyone who, with the necessary
intent, participates in the process
by which his property is, and continues to
be, misappropriated. As such it does not matter whether the other actions may in
addition
be appropriate remedies. What is clear is that the plaintiff has to
prove the theft of its diamonds, Nieuwoudt's complicity and the
damage suffered
by it.
Initially the respondents had also put in issue the
appellant's ownership of the diamonds recovered at the Oranjemund mine. Evidence
was led by the appellant to prove its right and title to such diamonds. The
learned judge a quo found that in the absence of contradicting
evidence,
appellant had proved, on a balance of probabilities, that it was the lawful
concessionary and owner of the diamonds recovered
at the Oranjemund mine. That
finding was correctly not attacked in the appeal.
The first issue remaining to be resolved at the trial was, therefore,
11
whether the chain of evidence offered by the appellant supported the
claim that the diamonds alleged in the pleadings were stolen
from appellant's
mine at Oranjemund, and that the very same diamonds were delivered to and
received by Nieuwoudt with full knowledge
that such diamonds were stolen. Only
if this issue is resolved in favour of the appellant, does the second issue,
viz. the quantum of the claim, arise.
As far as the first
issue is concerned, the appellant relied mainly upon the evidence of Van Zyl,
Cilliers, Otto, Willemse, De Beer
and two policemen, Captain Pool and Major
Meintjies, who took a statement, exhibit U, from Nieuwoudt. In a nutshell, the
appellant's
case is as follows:
Nieuwoudt approached Van Zyl, who
was well-known to him and who was a security officer at appellant's mine, to
procure diamonds from
the mine. As a security officer, Van Zyl did not have
access to the diamond recovery operation and thus to diamonds, but if he could
obtain diamonds within the mining area, he could take them out with impunity.
Van Zyl agreed to Nieuwoudt's proposal and in turn
approached Cilliers. Cilliers
worked as a
12
metallurgical operator in the diamond recovery plant. He had the opportunity of stealing diamonds, but could not take them out of the mining area himself. Van Zyl's proposal to Cilliers was that the latter should steal the diamonds and leave them in a convenient spot where Van Zyl could collect them and take them out of the mining area. Cilliers agreed to the scheme, and it was put into operation. A number of deliveries were made by Cilliers to Van Zyl, who in turn sold the diamonds to Nieuwoudt. Van Zyl retired from his employment at the mine and arranged for one Otto, another security officer, to take over his role in the scheme. Otto and Cilliers, occasionally assisted by one Willemse, continued to operate the scheme, Otto delivering the stolen diamonds to Van Zyl, who sold them to Nieuwoudt. It is alleged that Nieuwoudt in turn sold the diamonds to De Beer. The aforesaid allegations were all substantiated by the witnesses Van Zyl, Cilliers, Otto, Willemse and De Beer.
Nieuwoudt denies ever having conspired with Van Zyl as alleged, or of receiving or buying diamonds from him, or of selling and delivering diamonds to De Beer.
13
The onus, therefore, remained on the appellant to prove, on a
balance of probabilities according to the evidence of its key witnesses, Van
Zyl
and Cilliers, that Van Zyl sold and delivered to Nieuwoudt diamonds stolen, to
Nieuwoudt's knowledge, from the appellant's mine.
The sale of the
diamonds by Nieuwoudt to De Beer is not a necessary part of the appellant's
cause of action, but was pleaded, and
evidence was led on this aspect, with a
view to raising certain probabilities in support of the appellant's
case.
It is now necessary to refer to the evidence in more detail.
Cilliers gave evidence that, in approximately June 1980, he was appointed as a metallurgical operator in the Oranjemund plant where the diamonds were finally screened and recovered. Only then did it become possible for him to steal diamonds. According to Cilliers, he was then, in 1980, approached by Van Zyl with the proposal to steal the diamonds. At first he refused, but after a few months he agreed to the nefarious scheme. He started stealing the diamonds some time in December 1980 and delivered
14
three matchboxes full of diamonds to Van Zyl. He was paid R3000 and deposited this amount in his savings account on 17 January 1981. This was borne out by the entry in his savings book handed in as exhibit A. A second delivery of three matchboxes took place in January 1981, for which he was not paid. In February 1981 he delivered two matchboxes to Van Zyl and was paid R2000, which he deposited on 20 March 1981, as is reflected in Exhibit A. A fourth delivery took place in March or April 1981, when he delivered three matchboxes to Van Zyl and was paid R3000. He did not deposit this amount but used the money. Subsequent to this fourth delivery, Van Zyl resigned from plaintiff's employment and by arrangement Otto took his place in the conspiracy. Cilliers made a fifth delivery (the first to Otto) of four matchboxes in July or August 1981. He received R2000 which he deposited in his account on 14 September 1981 as appears from exhibit A. Cilliers made a sixth delivery (the second one to Otto) of five or six matchboxes in October 1981. He was paid R4000 for this delivery but did not deposit the proceeds in his account. On this occasion Willemse had assisted him in collecting diamonds,
15
and he gave Willemse R1000. Cilliers made a seventh and last delivery (the third one to Otto) in December 1981 of five, six or seven boxes. He received R4000, gave R500 to Willemse and banked R3500 on 11 December 1981, as appears from exhibit A.
Cilliers' evidence was corroborated by Otto. He confirmed that Van Zyl had resigned in April 1981 and that he had subsequently been asked by Van Zyl to take the latter's place in the chain of theft. He confirmed having received three deliveries from Cilliers between the time of Van Zyl's resignation (April 1981) and the resignation of Cilliers in February 1982. He cannot remember the exact number of matchboxes received from Cilliers.
Cilliers' evidence was also corroborated by Willemse, who testified that
he assisted in the theft of diamonds in the course of 1981.
Cilliers
testified that after his arrest, he was taken by detectives to Cape Town where
Otto, Nieuwoudt, De Beer and Van Zyl were
also detained. After their release on
bail and before the commencement of the criminal trial, they all attended a
braai at Van Zyl's
residence and Nieuwoudt, who was present,
16
suggested that they should all employ the same attorneys and advocates,
and that he would foot the bill for the legal costs.
Cilliers
testified under cross-examination by Nieuwoudt that he first saw the latter at
the braai at Van Zyl's house, and that Nieuwoudt
advised all of them to plead
not guilty. Nieuwoudt then put it to Cilliers that they had met at Van Zyl's
house but that Cilliers
had said that he was not guilty. Cilliers disagreed and
stated that at the braai Van Zyl had told Nieuwoudt that the stolen diamonds
had
been obtained from Cilliers and that Cilliers had supplied Van Zyl with the
diamonds. Nieuwoudt denied this conversation, but
Cilliers was adamant that Van
Zyl had made the statement and that he, Cilliers, in the presence of Nieuwoudt,
did not deny the allegation.
Cilliers also testified that at the
braai Nieuwoudt had a large amount of cash in his briefcase. Nieuwoudt had made
an offer of R60
000 cash to Cilliers if the latter would throw in his weight
with them, i.e. would testify with them, "... as ek saam met hulle stem."
Nieuwoudt put it to Cilliers that this testimony was untruthful, and that
Cilliers had never before given evidence to
17
that effect. To this Cilliers replied that he had never been asked about that particular incident; he also said that if Nieuwoudt denied having made the offer, his memory must be bad.
Willemse does not implicate Nieuwoudt, but Otto does.
Otto (who took Van Zyl's place as the recipient of the diamonds stolen by Cilliers) testified that he had always taken the diamonds to Van Zyl at Vanrhynsdorp. On one occasion he had met Van Zyl in a hotel at Vanrhynsdorp. Van Zyl had then told him that they were going to drive to the purchaser of the diamonds. They had driven to Garies and between Bitterfontein and Garies they had turned onto a gravel road. After a while Van Zyl had stopped and requested Otto to wait for him next to the road while he went to do business with the buyer. This was at night. In the head lights of the car he could see a big white shed, a cement reservoir and a homestead. He later visited the same place and ascertained that it was the farm of Nieuwoudt. Van Zyl came back, picked him up and paid him R10 000 for the diamonds he had delivered to Van Zyl. Van Zyl then told him that he was
18
selling the diamonds to Nieuwoudt.
Nieuwoudt attacked this
latter statement in the cross-examination of Otto, on the basis that Otto had
never made that statement before
in any trial or affidavit.
As
regards the observation made by Otto of the homestead, Otto confirmed that he
could not say with accuracy how far they had stopped
from the
farmhouse.
Van Zyl also confirmed the occasion on which Otto had
accompanied him to Nieuwoudt's farm but was dropped off a short distance from
the homestead. He also confirmed having told Otto that Nieuwoudt was the buyer,
but doubted whether Otto could have seen the homestead
buildings.
Otto also referred to a meeting in Cape Town of Cilliers,
Willemse, Van Zyl, Nieuwoudt and himself after they had been arrested. It
was
agreed that they would plead not guilty and Nieuwoudt would pay the legal costs.
He was later convicted and sentenced to a prison
term of five years of which
three were suspended. He couldn't remember the braai at Van Zyl's
house.
19
Nieuwoudt put it to Otto that in the trial of Van Zyl he, Otto, had
testified that Van Zyl had offered to pay the legal costs. Otto
then conceded
that he could be wrong in testifying that Nieuwoudt was going to pay the legal
costs.
During the cross-examination of Van Zyl by Nieuwoudt it came
out that the initial deposit for legal costs was paid by Van
Zyl.
Otto also testified that he had made a false statement as
regards the case to the attorney Burger. This version was made up, according
to
him, by Van Zyl and Nieuwoudt. As far as he could remember this false story was
concocted in Cape Town in a cafe.
Nieuwoudt put it to Otto that in
the criminal trial of Van Zyl he had said that the story had been made up by Van
Zyl during a trip
to Citrusdal. The point was made that he did not then
implicate Nieuwoudt. Otto responded that at that stage he had not been giving
evidence against Nieuwoudt; in any event this was what he now could
remember.
Van Zyl testified that he had been approached by Nieuwoudt with the proposal to commit theft towards the end of 1979. He in turn approached
20
Cilliers late in 1979; perhaps November or December 1979. Cilliers at first refused to participate but after a few days he agreed. Van Zyl disputed Cilliers' version, saying that the latter had not waited for months before agreeing to participate. He also disagreed with Cilliers that the first transaction occurred at the end of 1980 or early 1981. He testified it was much earlier, and the period of the transactions between Cilliers and himself was longer than the four months testified to by Cilliers. Van Zyl could remember the number of deliveries to him of diamonds stolen by Cilliers, but testified that there had been at least five occasions and he had received fewer than 15 matchboxes. These deliveries had taken place before he had resigned in April 1981 and arranged with Otto and Cilliers for Otto to take his place; all in all he had received about 23 matchboxes.
Van Zyl was adamant that he had always delivered all the diamonds stolen by Cilliers to Nieuwoudt on the latter's farm, and was paid there by Nieuwoudt, except on one occasion when the latter could not pay him immediately. They had always weighed the diamonds on a small scale kept
21
by Nieuwoudt in his office. This scale was calibrated in grammes, which
were then converted to carats, and the purchase price was
calculated
accordingly. He thought that he was paid R70 per carat; in total he had received
about R250 000. He had never kept any
of the diamonds received from Cilliers for
himself. When he was arrested, together with Otto, Cilliers, Nieuwoudt, De Beer
and Willemse,
his legal costs in the sum of R20 000 had been paid by Nieuwoudt.
He had been convicted and sentenced to 12 years imprisonment.
In
cross-examination he testified that he had received stolen diamonds from
Cilliers five times and from Otto on four occasions.
Nieuwoudt put
it to Van Zyl that he had lent him the aforementioned R20 000. Van Zyl denied
this allegation - in fact, his evidence
was that at that stage, he had
considered changing his plea to one of guilty, but Nieuwoudt had paid him R20
000 to persist in his
defence.
De Beer, a businessman from Margate, testified that he had been introduced to Nieuwoudt towards the end of 1979. The latter had told him that he was in possession of uncut diamonds and enquired whether De Beer was
22
interested in buying. Nieuwoudt had not disclosed the source of the diamonds. De Beer knew that the diamonds were not lawfully in Nieuwoudt's possession. Several transactions had then taken place - he had also, inter alia, gone to Nieuwoudt's farm in the Garies district. Nieuwoudt had searched him for hidden tape recorders. In total he had received ± 5000 carats from Nieuwoudt. Sometimes Nieuwoudt had delivered the diamonds in Durban, sometimes he had collected diamonds from Nieuwoudt's farm. The last transaction had taken place ± April 1982; the transactions between them had come to a standstill because he owed ± R30 000 to Nieuwoudt. He had paid ± R500 000 in total to Nieuwoudt; he had paid between R100 and R300 per carat and in some cases even more. Nieuwoudt had told him that he possessed a gramme scale and had to convert the gramme weight of the diamonds to carats. De Beer conceded that he did not know whether the diamonds that he had purchased from Nieuwoudt emanated from Oranjemund.
In his evidence-in-chief Nieuwoudt denied having instigated Van Zyl to
23
steal diamonds, or of having received or dealt in stolen diamonds. He
denied having tried to convince or having paid Cilliers to testify
falsely. He
admitted, however, being in his company at Van Zyl's house. He also denied
having dictated a false statement to Otto.
As far as Van Zyl's
evidence is concerned Nieuwoudt testified that Van Zyl had falsely accused him
in order to shield his own family;
that all along he had had the idea of falsely
implicating Nieuwoudt. It was put to Nieuwoudt in cross-examination that he had
never
made this accusation of Van Zyl while he, Nieuwoudt, was cross-examining
Van Zyl.
Nieuwoudt admitted having had a scale calibrated in grammes
which he kept in a box in his office on the farm, as testified by Van
Zyl. He
said Van Zyl could have seen the scale when he and his brother had come to visit
Nieuwoudt on the farm, because he used it
to weigh the grit in kaolin which he
was then mining.
He admitted that he had been trapped in the middle of 1980 in the illicit sale of diamonds but had been acquitted in court. One Walters was the
24
ostensible purchaser. He then in cross-examination added an
incomprehensible explanation:
"Ek kan nie stry dat dit diamante dalk van die eiser was nie want ek kan mos getuig dat daardie tyd toe ek dit verneem het, het Boetie Walters en Frikkie de Beer saam besigheid gehad, bote gehuur, en dit is vandag my vermoede dat hulle toe al besigheid gedoen het en dat toe Boetie met die diamante gevang word toe kom hy ook maar oordat ek daardie tyd prospekteer het seker nou maar vir my kom sê of die polisie het dit vir hom gesê. Ek het sy verklaring daar, U Edele, wat hy gesê het. Ek dink ons kan dit maar los."
He denied having sold diamonds to De Beer at all.
Asked why De Beer would falsely and gravely implicate him, he accused Captain
Pool
of instigating De Beer to give fraudulent evidence.
He said De
Beer did visit him on his farm, but merely with the object of buying options. De
Beer had come for the first time in May
1980, just after the first trap
occurred.
Nieuwoudt admitted having been the trap in which De Beer
was caught and which had led to his conviction. Pool had first asked him
to
co-operate one evening when he, Nieuwoudt, was the object of a trap in which Van
Zyl
25
had participated on his farm Rondawel and the police had turned up. That
incident had occurred in June 1982. It was not disputed that
he paid Van Zyl
R5400,00, which the latter handed to the police. Nieuwoudt maintained that it
was a loan. The diamonds had been found
buried beneath his lawn after he had
suggested to the police where Van Zyl may have hid them before approaching him
for the loan.
He had then promised to co-operate with the police. He had
promised to go and see the police in Cape Town.
Pool had later
phoned him and he had gone to Cape Town where he had made an informant's
statement implicating De Beer. Pool had started
talking to him and Meintjies
later joined them. He had still not felt under any obligation to co-operate with
the police, but had
decided to do so. He also said a large sum had been offered
to him to make the statement.
He, however, said that every word in the statement, exhibit U, was
false. The relevant parts of the statement read as follows:
"GESPREK TUSSEN MNR A A NIEUWOUDT. MAJOOR MEINTJIES
EN KAPTEIN POOL
Kept P: Dit is vandag, Donderdag die 29ste Julie 1982 om 12h00
26
middag in my kantoor te Kaapstad. Teenwoordig mnr Adriaan Nieuwoudt, majoor Meintjies, kaptein Pool, Adriaan jy kan nou maar vir ons vertel N: Ek net so 'n jaar na my kennis Frikkie de Beer ontmoet deurdat hy in my omgewing na opsies om diamante te prospekteer kom soek het en so net ek met hom bevriend geraak. Ek het op 'n stadium opsies aan hom aangebied en ons het in 'n vertrouens posisie geraak waar ons in 'n later stadium begin het om ... eh ... besigheid te doen met diamante.
Maj M: Jou bron van diamante - is jy bereid om dit aan ons
te
gee of openbaar? N: Waar ek daaraan gekom het? Maj M: Wat jy
ontvang het en verskaf het N: Ja, kyk dit is mos nou - daar is mos nou
nie meer
so iets
nie Maj M: So ons aanvaar dat met Van Zyl se afsny - beteken
dit
dat jou toevoer ook daardeur afgesny is? N: Ja, kyk ek wil darem
nou noem daar nog, ek vermoed
daar is nog 'n saak aan die gang, en ek wil nou nie graag
bale daaroor uitwei nie Maj M: Ja N: Die aangeleentheid nie maar, ek kan jou dit nou belowe
dat as ... eh ... die feit dat ek nou bereid is om nou
die
kontak van my nou eintlik weg te gee behoort aan
julle
voldoende te wees om te aanvaar dat ek alle bande
hoegenaamd (onduidelik)
Maj M: Adriaan, as ek jou mag vra jou, jou belangrikste bron N: Ek wil nou nie, daai is verby
27
Maj M: Maar ons aanvaar dit waiter myn, watter myn sou jy
reken?
N: Ek sou reken nie, dit kom
seker van Oranjemund af
Maj M: Oranjemund?
N: Ja - ek
vermoed ook
Maj M: Want jou bron is nou afgesny sou ons
aanvaar....
N: Ja - afgesny
Maj M: Adriaan, sal jy sê jy net uit jou vrye wil vanoggend hier aangekom
N: Ja, ja, definitief, dit is vrye
wil
Maj M: Wanneer het jy tot daardie sienswyse gekom
N: Nee, ek het, het met my vrou daaroor gepraat en ons het besluit, ons eh is tog nou uit die besigheid, enne, ek kan maar net sover eh my kant moet bring dat 'n mens weer 'n bietjie goed kan gaan - dat ek weg van die boeke af kom enne ek wil hom darem ook help dat hy dit ook maar los (onduidelik) so dit is dan nou sover as ek kan se -verder kan ek omtrent niks se nie - ek kan, kan nie dink dat ek nog lets wil sê nie
Kapt P: Ja, ek dink dis seker nou maar genoeg - majoor?
N: Julie het my mos nou op geen manier gedreig om iets te sê wat ek gese het nie, oor ek nou eerlik gevoel het dat ek kan mos nou geen oneertike ding met die Polisie saam werk nie
Kapt P: Nee, jy's aan die regie kant Adriaan (Onduidelik)
Maj M: Hou dit so ...
N: Dis 'n sleg ding daai man, ek lê in die nag, jy weet nooit wanneer kom hier 'n man na jou toe (onduidelik)"
28
Pool and Meintjies were called by the plaintiff to confirm the
correctness of the transcription.
At the end of the trial, Van
Niekerk J granted absolution from the instance with costs. The crux of the trial
judge's decision appears
from the following words at the end of his judgment:
"The third defendant, Nieuwoudt, had the easier task in that his version was
a
denial of the evidence presented. However, on every vital and important aspect
of the plaintiff's case, the evidence in this court,
taken with evidence given
earlier, of unsatisfactory witnesses had to be weighed up against the evidence
of Nieuwoudt whose version,
in my view, was as probable as that of the witnesses
who testified against him."
Van Niekerk J found Cilliers to be a reliable witness.
On the other hand Otto was described by the trial judge as unhelpful, unimpressive and vague. It was found that the veracity of his evidence was clearly suspect. His evidence was found to be unreliable and substantiated only to the limited extent to which Van Zyl could do so.
29
This criticism was based mainly on the following aspects. In the trial it
was his evidence that he had opened some of the matchboxes,
whereas in Van Zyl's
trial he had testified that he had opened all of them. He could not remember
having ever before testified that
Van Zyl had identified Nieuwoudt to him as the
purchaser of the diamonds. He also contradicted his evidence in a previous trial
as
to where Nieuwoudt and Van Zyl had coached him in giving a false statement.
There is also a contradiction with his evidence at Van
Zyl's trial that it was
the latter who had offered to pay the legal costs of the criminal trial. Finally
it was also held against
him that he was one of the prisoners who were given
"home leave" by Pool and Meintjies before testifying against Nieuwoudt, the
implication
being that his evidence is tainted and consequently unreliable. His
evidence concerning the visit to Nieuwoudt's farm was said to
be hardly
credible.
Van Zyl came in for heavy criticism by the trial judge. It
was found that his memory of the dates of the various transactions and
the
number of matchboxes, was vague. He had to be reminded that in another trial he
had
30
described how he had transferred diamonds from three matchboxes to two
because of the volume of gravel in the boxes. It was only under
cross-examination that he was prepared to concede that he had had illicit
diamond transactions with his brother-in-law. He admitted
having previously made
a statement to a magistrate in which he denied that he had ever sold diamonds to
Nieuwoudt, and that he had
given similar evidence before a judge in a criminal
trial. It was also held against him that in the statement he had made at
Citrusdal
on 28 January 1983, he had confirmed that he had never sold diamonds
to Nieuwoudt. His denial of the correctness of that statement
was, by
implication, rejected by the trial judge. He was also criticized for not being
able to remember whether the discussion between
himself and Nieuwoudt at the
prayer meeting took place on the front or the back stoep or in the garden or
even whether it took place
on a Sunday.
Van Zyl was also criticised
for a further contradiction. In the present trial he testified that he had been
paid R250 000 for the
diamonds by Nieuwoudt, whereas he had previously made a
statement in which he put the
31
figure at R120 000.
The trial judge also remarked that Van Zyl was one of the prisoners given
"home leave" by Pool and Meintjies; only thereafter did
he implicate Nieuwoudt.
His evidence contradicted that of Cilliers as regards the date and number of
transactions; he had also in
the course of various criminal trials given
different versions as to the number of matchboxes received from
Cilliers.
De Beer made a better impression as witness on the trial
judge, but it was held against him that it was only after the "home leaves"
that
he started implicating Nieuwoudt. His estimate of the number of carats supplied
to him by Nieuwoudt, i.e. some 5000, does not
accord with the evidence of
Cilliers or Van Zyl. He was, so it was held, extremely vague about the alleged
transactions. His evidence
was held to be unreliable at best.
Pool came in for particularly severe criticism. His participation in the "home leave" scheme for Otto, De Beer and Van Zyl was sternly censured. It was also held that his explanation of how the statement, exhibit U, was taken, was unacceptable. The trial judge noted that Pool had testified that he
32
had only exchanged greetings with Nieuwoudt, before Meintjies came to his
office and the statement was taken. But the statement begins
in such a way that
it is clear that some discussion must have taken place previously. Pool was also
criticised for not remembering
that he had stated at Van Zyl's trial that, when
the latter had been trapped, he had not even been aware of the role played by
Otto.
In the present trial he had testified to the contrary. Pool's statement
that prior to the taking of the statement, exhibit U, he
had been unaware of the
role played by De Beer was also disbelieved. The trial judge stated that he was
not impressed by Pool as
a witness and found him to be
evasive,
Meintjies was also criticised for a contradiction between
his present testimony and that given in a previous trial as to whether he
had
seen Otto in person in gaol. This allegation, like Pool's that he did not know
of De Beer's activities before taking the statement,
exhibit U, was also
disbelieved. The trial judge stated that he was not impressed by Meintjies as a
witness.
As far as the evidential value of exhibit U is concerned, the trial judge
33
rejected the contention put forward by counsel for the plaintiff that the
statement corroborated the plaintiff's version. The judge
stated: "One thing
Exhibit U does not show is that any diamonds emanated from the plaintiff's
mine." The trial judge also rejected
the argument that the information in
exhibit U could only have come from Nieuwoudt's own personal knowledge. His
reference to Van
Zyl could, if I understand the trial judge's reasoning
correctly, have emanated from news which he, being a native of the area, must
have heard, of Van Zyl being trapped in the first half of 1982. The suggestion
is that Nieuwoudt falsely implicated Van Zyl.
In this Court, counsel
for the appellant accepted the trial judge's findings in regard to Cilliers. The
rest of the trial judge's
findings were subjected to concerted
criticism.
The power of this Court to intervene on appeal on
findings of fact is limited to situations where there appears to be a
misdirection
on fact by the trial judge, e.g. where he is shown to have
overlooked facts and probabilities negating the reasons given for the
judgment.
In such an event this Court will
34
be able to disregard the trial judge's findings on fact, even though
based on credibility, in whole or in part, and so come to its
own conclusion on
the matter (R v Dhlumayo 1948(2) SA 677 (A); Taljaard v Sentrale Raad
vir Koöperatiewe Assuransie Bpk 1974(2) SA 450 (A) at 451E -
H).
Counsel for the appellant argued that the trial judge had
misdirected himself in respect of various factual findings. I will deal
with the
more substantive submissions in this respect.
(1) It was argued that
the trial judge had misdirected himself in finding that Nieuwoudt was not
implicated by Cilliers, the one witness
who was accepted as truthful and
reliable. It was submitted that Cilliers' evidence implicated Nieuwoudt in
respect of the braaivleis
meeting. Cilliers stated that at that meeting
Nieuwoudt said that they must all plead not guilty, that they must all tell the
same
story, that they must all employ the same advocates and attorneys and that
he, Nieuwoudt, would pay the costs. They were all co-accused
at that
stage.
In his evidence Cilliers said that at the braaivleis in the presence of
35
Nieuwoudt Van Zyl had said that Cilliers was was the person who supplied
the diamonds, which Cilliers did not then deny. This evidence
is significant,
because when Nieuwoudt cross-examined Cilliers as to how he could advise him how
to plead not guilty when he didn't
know whether he was guilty or not guilty,
Cilliers had responded by saying that in Nieuwoudt's presence Van Zyl had said
that he,
Cilliers, was the person who had supplied them with
diamonds.
If this evidence of Cilliers is accepted as truthful - as
it was by the trial judge - the inference can only be that Nieuwoudt was
implicated in the thefts and, in order to save himself, he had to ensure the
co-operation of his accomplices. That is why it was
necessary for Van Zyl to
assure Nieuwoudt that Cilliers was a participant in the removal of the diamonds,
whose cooperation was indispensable
and whose costs had to be paid by Nieuwoudt.
It was submitted that the trial judge's acceptance of Cilliers' evidence,
necessarily
implied that Nieuwoudt was implicated, and this in turn would have
changed the trial judge's whole perspective on the case.
36
The consistent application of the aforementioned implications, so it was
argued, would also inevitably have changed the assessment
by the trial judge,
not only of the part played by Nieuwoudt before and after his arrest, but also
of the quality of the evidence
given by Otto (who said that Van Zyl and
Nieuwoudt had prepared a story for him to tell to the attorney) and Van Zyl (who
testified
that Nieuwoudt had paid him R20 000 towards his costs in the criminal
trial).
It was argued that, if these facts had been taken into
account by the trial judge, he could not have concluded that Nieuwoudt's denial
of any involvement in buying or selling diamonds "... was as probable as that of
the witnesses who testified against him."
(2) It was argued that the
trial judge misdirected himself in finding that exhibit U did not show that
Nieuwoudt had acquired diamonds
emanating from plaintiff's mine. I have quoted
the relevant passages from exhibit U. These passages show that Nieuwoudt
mentions
Van Zyl as the source of the diamonds. Nieuwoudt never explained why he
mentioned Van Zyl's name,
37
apart from saying that the whole of exhibit U was false. It was argued
that that evidence in itself was totally false (a matter to
which I will return
presently) but, even so, why did Nieuwoudt falsely refer to Van Zyl as the
source of the diamonds? There was
no reason for him to implicate Van Zyl falsely
- on the contrary, he made the statement after he knew that the police had
caught
Van Zyl and there was all the more reason not to implicate Van Zyl
falsely.
(3) It was argued that the trial judge misdirected himself
on the question whether exhibit U was true or false. The clear implication
is
that Nieuwoudt was believed on this score. But, so it was argued, the trial
judge failed to take all the facts into consideration:
that many of the matters
mentioned in exhibit U - e.g. his contacts with De Beer, the letter's movements,
his place of residence,
etc. were not false. Furthermore, as he was clearly
trying to win the goodwill of the police, why make a completely false statement?
It was argued that there is a ring of truth in the statement. Furthermore, what
is said in the statement accords with De Beer's evidence.
On what basis can it
be said that the statement is false, if all the facts and
38
surrounding circumstances are taken into account?
(4) It was
argued that the trial judge misdirected himself as to the evidence of Pool and
Meintjies concerning the taking down of
the statement, exhibit U.
In
this regard it was argued that the learned judge completely misconstrued the
evidence of Pool in regard to what had occurred on
29 July 1982. The learned
judge found that Nieuwoudt, after the full discussion had been taped, then
refused to make a statement.
Instead, the evidence was, and the court should
have found, that after the discussion between Pool, Meintjies and Nieuwoudt,
which
discussion was not recorded, Nieuwoudt had refused to make an affidavit,
but consented to give his version on a tape recording, which
was then done. In
Exhibit U, he was reiterating what he had already told the two policemen and it
was left to him as to how he was
to set about this. The learned judge failed, so
it was submitted, to take into account that once Nieuwoudt had already explained
De Beer's role in the transactions to Meintjies and Pool, he would start off the
taped conversation by telling them
39
where he had met De Beer for the first time. It was argued that the
judge's impression that, because of the way the statement started,
the two
policemen must have been aware of De Beer's existence before the meeting, is a
wrong conclusion.
A Court of appeal will not go out of its way to
find or construe misdirections of fact in a judgment of a court a quo.
Trial judges have the unenviable task of digesting, under great pressure of
work, a large number of contradictory facts and diametrically
opposed versions.
Regrettably, in the present case, having anxiously scrutinised the record, I
have to agree with the submissions
made by counsel for the appellant. In my
view, the trial judge took a wrong view of the facts placed before him, for the
reasons
set out in the submissions summarized above.
Consequently, the evidence must be evaluated as it appears from the
record.
An evaluation of the evidence given in the Court a
quo should proceed from three rather obvious observations.
40
The first is that it has not been illustrated or argued that any of the
plaintiff's witnesses had, or could have had, the slightest
reason or interest
in falsely testifying in the present matter. Cilliers had given the same
testimony before in the criminal trials
of Van Zyl and Nieuwoudt. Otto,
Willemse, Van Zyl and De Beer were all prosecuted and convicted and served terms
of imprisonment.
Likewise, Nieuwoudt was also sentenced and convicted. The
plaintiff's witnesses had no reason falsely to implicate Nieuwoudt, nor
would
they stand to benefit from such conduct.
On the other hand,
Nieuwoudt certainly had a substantive interest in the outcome of the case. As
appears from his affidavit in the
application for intervention, there was an
undistributed asset of more than R4 million in his estate, to which he would, by
virtue
of his reversionary interest, have a claim. Furthermore, he was not
convinced, according to the affidavit, that the trustees were
conducting a
virilis defensio. He regarded his interest in the matter as so
substantive that he intervened in person, obviously with an eye on the R4m
undistributed
asset in his insolvent estate. I do not intend to say that he
did
41
not act properly; on the contrary. But there can be no doubt that he
intervened eventually to gain a substantial benefit.
One should,
therefore, in evaluating his evidence, keep this fact in mind. The absence of an
incentive to give false evidence on the
part of the plaintiff's witnesses and
the opposite in the case of Nieuwoudt was not given sufficient weight by the
court a quo.
The second preliminary observation is that there
is no reason to differ from the evaluation of Cilliers' evidence by the trial
Court.
He was found to be a truthful and reliable witness. The trial court,
despite the aforesaid finding, failed to give sufficient weight
to the evidence
of Cilliers where it implicates Nieuwoudt.
The third preliminary
observation is that the untruthfulness of Nieuwoudt is rather obvious. His
denial of having bought diamonds
from Van Zyl must be a patent lie, in the light
of the passages quoted above from exhibit U. Just prior to the making of exhibit
U, Van Zyl was trapped by the police and used as a trap against Nieuwoudt on his
farm Rondawel. This led to his making the
42
statement recorded in exhibit U. When he says in exhibit U that his
source of diamonds has been cut off, it is perfectly true. When
he says he sold
to De Beer, that is also true. When he says Van Zyl was his source, that is also
true. Not only is the truth of the
latter statement borne out by Van Zyl's
evidence, but also by Nieuwoudt's involvement in the defence of the criminal
charges and
his offer to stand in for the legal costs, as appears at least from
the evidence of Cilliers. In particular, therefore, the learned
judge a
quo was wrong when he found that"... one thing Exhibit U does not show is
that any diamonds emanated from Plaintiff's mine." Exhibit
U proves, in my view,
just that.
For the reasons stated, I hold the view that the
testimony of Nieuwoudt should be rejected as false, and that of Cilliers, Van
Zyl,
De Beer, Otto and Willemse accepted as basically truthful and correct.
There are other examples of the untruthfulness of Nieuwoudt
which need not be
traversed here.
I have stated that the evidence of Cilliers, De Beer, Otto and Willemse should be accepted as basically truthful and correct. As far as Cilliers is
43
concerned, his evidence has not been questioned and it was, in my view,
correctly accepted by the court a quo as truthful and
reliable.
As far as Otto is concerned, I consider his evidence as
regards his participation in the theft to be correct, corroborated as it is
by
the evidence of Cilliers.
The same goes for Willemse.
I have some doubts
whether Otto's evidence of his identification of Nieuwoudt's farm on the
occasion when he accompanied Van Zyl is
reliable. His evidence in a previous
trial stands in stark contradiction of this evidence in the present case and it
would be unjustified
to rely on this part of his
testimony.
Willemse's evidence relating to his participation in the
thefts must, in my view, also be accepted as there is no valid criticism
against
it.
There is no reason to reject De Beer's evidence. It is true that
his evidence as to the details of the transactions with Nieuwoudt
is vague, but
then it must be remembered that the events took place approximately 11
years
44
before the present trial. It was argued that the events to which he
testified were important and decisive in his life; that he had
testified to them
before, and that they must have been uppermost in his mind over the years. This
may be true, but it loses sight
of the natural inclination to forget facts,
especially when they have an unpleasant or painful connotation.
He
was also criticised for coming forward to implicate Nieuwoudt after enjoying the
benefits of "home leave." I consider this aspect
to have been over-emphasized by
the judge a quo. It has not been illustrated that De Beer was asked to
implicate Nieuwoudt before he was convicted, nor that he refused to do so
then.
It was never shown that the "home leaves" had the effect of his giving false
evidence against Nieuwoudt.
But, be that as it may, the one
outstanding factor that should convince one that De Beer was basically truthful,
is Nieuwoudt's statement,
exhibit U, in which he confirms De Beer's evidence in
essence. As I have indicated, Nieuwoudt's denial that the said statement was
correct is patently false. The falseness of his evidence on this vital point
corroborates De Beer's evidence
45
(R v Simon 1929 TPD 328).
What we have then is the following:
1. Persuasive proof that Cilliers stole diamonds from plaintiff's mine, sometimes assisted by Willemse. 2. These diamonds were delivered to Van Zyl, either directly or, on one occasion, via Otto. 3. Nieuwoudt sold diamonds to De Beer.
The link in the chain
between Cilliers and Nieuwoudt is Van Zyl. The basic question to be answered is:
did Van Zyl deliver the diamonds stolen by Cilliers to
Nieuwoudt?
There are strong indications that Van Zyl's evidence,
that he delivered all the diamonds emanating from Cilliers to Nieuwoudt, is
essentially correct. A major part of his evidence, relating to the source of the
diamonds and how he acquired it, is truthful: this
is corroborated by Cilliers
and Otto. The criticism of his evidence, viz. that his memory was vague, and
that he had testified differently
on some minor points in other trials, is, for
the reasons
46
already stated, not really conclusive. The statement that he made at
Citrusdal on 28 January 1983, in which he said that he had never
sold diamonds
to Nieuwoudt was, as he testified, patently false, it being inspired and
dictated by Nieuwoudt in order to shield him
as a co-accused.
More
importantly, his evidence is corroborated by Cilliers who implicated Nieuwoudt
as the recipient of the diamonds.
Further, there is the
identification by Nieuwoudt himself of Van Zyl as his source of diamonds in
exhibit U, and Nieuwoudt's false
denial of the correctness of exhibit
U.
Finally, taking all the facts into consideration, there are the
general probabilities. If it is accepted as fact that Cilliers delivered
stolen
diamonds to Van Zyl; that Van Zyl says he sold them to Nieuwoudt; and that De
Beer bought uncut diamonds from Nieuwoudt; why
should Van Zyl be held to be
untruthful? The probabilities are that he was the link in the chain between
Cilliers and Nieuwoudt.
But the matter is somewhat more complicated, because three
47
substantive points have been raised in argument before this Court which,
if sound, throw doubt on the reliability of Van Zyl.
First and
foremost are the contradictions, already noted, between the evidence of Cilliers
and Van Zyl and, as far as it may be relevant,
those of De Beer as regards the
dates of the theft and the sales of the diamonds, and the quantities
involved.
Next, there is the matter of the 327 diamonds recovered by plaintiff. In
its amended particulars of claim plaintiff set out
the calculation of its gross loss
and then explained that certain
amounts must be subtracted so as to arrive at
its net loss. One of
the deductions relates to 327 diamonds. Paragraph 7(b)
of the
amended particulars of claim reads as follows:
"The sum of R69 470,00 being the value of 327 diamonds with a mass of 278,9 carats stolen from plaintiff's mine but recovered by plaintiff falls to be deducted from the said sum of R1 566 612,00 to arrive at plaintiff's claim which is accordingly the sum of R1 497 412,00."
The respondents requested further particulars to this paragraph, to which appellant replied that the diamonds had been recovered on 17
48
September 1981; that they had been returned to appellant after conclusion
of the magistrate's court case No. 79/81, Garies, and that
they were part of the
diamonds sold by Van Zyl to Nieuwoudt.
On these skimpy details the
parties proceeded to trial, in the course of which the matter was never really
cleared up. No particulars
of the magistrate's court case were furnished, nor of
the circumstances under which they were recovered. What did transpire is that,
according to appellant's expert witness, a diamond valuator named Heale, the 327
diamonds were delivered to him on 12 August 1980
for valuation. Their mass was
278,9 carats and he had valued these diamonds at R69 470,00. The same
particulars were given in the
rule 36(9)(b) notice relating to his expert
evidence. Heale was not cross-examined on this point.
On behalf of
the respondents it was argued that, if Heale had already received the 327
diamonds on 12 August 1980, and because it
was the appellant's case (as was
expressly stated on the pleadings) that these diamonds had emanated from Van
Zyl, it demonstrates
that Van Zyl must
49
have obtained at least these diamonds from a source other than Cilliers.
According to Cilliers he stole the first diamonds near to
the end of 1980.
Heale's evidence tends to destroy the chain between Cilliers and Van Zyl. This
problem in appellant's case, so it
was argued, must be seen in the light of the
abovementioned contradictions between the evidence of Cilliers, Van Zyl and De
Beer
relating to the dates of the thefts and the further
transactions.
Finally, there is Otto's evidence that he once removed
two diamonds from the matchboxes emanating from Cilliers before delivering
the
remainder to Van Zyl. He revealed this fact to Van Zyl and Van Zyl arranged for
the sale of one of these diamonds. Otto, in trying
to sell that diamond , was
trapped by the police. The two diamonds which he removed from the matchboxes
were recovered by the police
and, presumably, later handed back to the
plaintiff. The plaintiff deducted their value, R14361, from its
claim.
The implication of this evidence, so it was argued, is that
once again the chain of evidence between Cilliers and Nieuwoudt is broken.
Otto
admits having removed two diamonds, but were there not more? And who can
say
50
that Van Zyl did not follow the same modus operandi with respect
to other diamonds delivered to him?
The point in issue is not
primarily one of quantum. It relates, more importantly, to the
credibility of Van Zyl, plaintiff's key witness. On behalf of the respondents it
was argued
that the discrepancies mentioned above, in particular between
Cilliers and Van Zyl and the date of recovery of the 327 stones as
testified by
Heale, cast doubt on the truthfulness and reliability of Van Zyl. If one accepts
Cilliers' evidence, Van Zyl cannot
be correct as to the period during which he
obtained diamonds from Cilliers. But that he did obtain and deliver diamonds in
a period
prior to the inception of deliveries by Cilliers, is apparently borne
out by Heale's evidence just mentioned.
There is force in the argument and if the standard had been proof beyond a reasonable doubt it might well have carried the day. But of course that is not the requisite standard of proof in a civil matter and at the lower level of proof on a preponderance of probabilities there is a wealth of material which points to Nieuwoudt's direct involvement in the scheme of things. All the
51
witnesses implicate him. There are numerous instances of cross-corroboration in their evidence; no convincing reason has been suggested why they should have been prepared, at this late stage, to conspire together to perjure themselves to implicate Nieuwoudt. Nieuwoudt implicates himself in several respects: by his actions during the trap at his farm Rondawel (his "discovery" of the diamonds on the lawn, the unlikely "loan" of R5 400,00 to Van Zyl); by his remarks during the subsequent interview with Pool and Meintjies which were recorded and in which he mentions Van Zyl; by his conduct towards De Beer (searching him at their first meeting) and his willingness to participate in the trap set for the latter who, according to Nieuwoudt's testimony, was innocent of any illicit diamond dealing. And if Nieuwoudt was not the link between Van Zyl and De Beer, who was? No other person or persons who could have fulfilled that linking role have been suggested by anyone during any of the various trials, including this one. There are simply too many disparate points scattered throughout the evidence, linking Nieuwoudt to the theft of the diamonds, to be attributable to coincidence or conspiracy. True,
52
there are the contradictions between plaintiff's witnesses mentioned earlier, notably between Cilliers on the one hand and Van Zyl and De Beer on the other, as to the period when the deliveries were supposed to have occurred. Discrepancies such as these were to be expected and allowance must be made for the lag of some 11 years between event and testimony. Moreover, except for Cilliers who turned state witness, all of the witnesses were convicted thieves who, at some stage or another, were prepared to lie under oath to save their own skins. That is particularly true of Van Zyl. These are not perfect witnesses. And finally, apart from Cilliers' deposit book, there was a complete dearth of documentary evidence which could serve as reminders of or support for their evidence. That is one of the reasons why Cilliers' evidence, supported as it is by his deposit book, is to be preferred to that of Van Zyl and De Beer. But as was pointed out if Cilliers is right about the period Van Zyl and De Beer must be wrong. One possibility is that they may simply have been mistaken. Another is that all three of them may indeed have been truthful on that score but that Van Zyl may have been lying on another
53
i.e. that, contrary to his evidence, he may indeed not have obtained diamonds only from Cilliers. For all one knows he might have been receiving diamonds from Cilliers' predecessor at the recovery plant and he may have been lying consistently in order to protect that source. But if Van Zyl was lying about his source of diamonds before Cilliers became involved it does not necessarily follow that he was also lying about the diamonds he received after Cilliers became involved. Falsum in uno, falsum in omnibus is not part of our law. Cilliers' involvement with Van Zyl is proved by Cilliers' own evidence; Nieuwoudt's involvement with Van Zyl is proved, on a balance of probabilities, by the factors detailed earlier. The plaintiff's case is based only on the diamonds Cilliers stole and passed to Van Zyl and which Van Zyl in turn delivered to Nieuwoudt. That route has been established by the probabilities mentioned earlier. Any deliveries of diamonds prior to Cilliers' advent on the scene is strictly irrelevant to the plaintiff's case. The recovery of the 327 diamonds in August 1980 is also explicable on the hypothesis that Van Zyl, prompted by Nieuwoudt, was active in his smuggling of diamonds before
54
Cilliers was. But even if that hypothesis is too speculative to be convincing, the 327 diamonds referred to in the plaintiff's pleadings, read with Heale's evidence that the diamonds were given to him to value in August 1980, cannot serve to self-destruct the plaintiff's case. Heale's evidence on the date was given, as it were, in passing. Its significance in the light of Cilliers' evidence was plainly not appreciated by anyone involved in the trial at the time. It was not referred to in the judgment of the court a quo. Heale was not confronted with Cilliers' evidence and Cilliers was not recalled to deal with Heale's evidence. The date might simply have been a slip of the tongue and the concession in the plaintiff's pleadings, that the value of those diamonds is to be deducted from the plaintiff's claim, may have been incorrectly made. That one fact alone, unexplored and unexplained as it is, does not, in my view, weaken the remainder of the plaintiff's case to such an extent as to neutralise the general probabilities that Nieuwoudt was a knowing participant in the theft of the diamonds collected by Cilliers.
In my view the appellant has accordingly succeeded, on a balance of
55
probabilities, to prove Nieuwoudt's involvement and hence his
accountability for the plaintiff's loss. Credit was correctly given
for the two
diamonds which Otto kept back and which were recovered by the police and handed
back to the appellant. Appellant is also
bound by the credit given in the case
of the 327 diamonds.
The conclusion arrived at also disposes of the
basic problem of ascertaining the quantum of the appellant's claim. One
must take the evidence of Cilliers as the point of departure, and calculate the
appellant's claim accordingly.
To the extent that counsel for the appellant in
argument before this Court made an adjustment in the respondents' favour where
Van
Zyl testified to a lesser amount, I shall follow a similar course, (i)
The number of matchboxes containing diamonds that were removed from the
appellant's mine, and the dates of the thefts
One can summarise
Cilliers' evidence in this regard as follows:
December 1980 -
January 1981 : 3 matchboxes.
January 1981 : 3 matchboxes.
56
February 1981 : 2 matchboxes.
March/April 1981 : 3
matchboxes.
July/August 1981 : 4 matchboxes.
October
1981 : 5 or 6 matchboxes.
December 1981 : 5, 6 or 7
matchboxes.
Taking Cilliers' lowest figure, this would give 25
matchboxes. Van Zyl puts the figure at 22, and I will take that figure, (ii)
How many of the matchboxes were full?
According to Cilliers,
three of the matchboxes were not full. Van Zyl testified that about two-thirds
of the boxes were not full;
the other boxes being half to three-quarters full.
Once again, it would not do an injustice to the respondents to accept Van Zyl's
figure. (iii) The range of stone sizes of the diamonds
taken
Cilliers was consistent in his evidence on this aspect
also. In February 1992 he indicated the smallest diamond fell into the +9
category;
in 1986 he placed it in the +9 to +11 category. Otto said the smallest
diamond was in the
57
+11 category.
One would not do an injustice to the
respondents if one accepted that the smallest diamonds taken fell into the +9
category.
As regards the largest size taken, Cilliers' evidence was
that he had taken nothing larger than stones weighing 15,9 carats, and the
largest stones were between 6,4 and 15,9 carats. This evidence derives support
from Nieuwoudt's statement in exhibit U, viz. that
the largest stones he sold to
De Beer were 15 carats. Otto estimated the larger stones to range from 6,4 to
12,5 carats.
A conservative assumption would be that the largest
stones taken weighed 10 carats. (iv) The value of the diamonds in the
matchboxes
In regard to the computation of the value of the
diamonds in the matchboxes, the appellant called Prof Barr, an Associate
Professor
in the Department of Economic and Mathematical Statistics at the
University of Cape Town. He was requested to assess statistically
the value of
the diamonds
58
stolen from the appellant.
From his evidence it appears that
the mine at Oranjemund produced and sold its diamonds according to production
cycles. These cycles
were usually of approximately one month duration, but the
prices obtained for each cycle differed, hence the calculation becomes
very
intricate if one has to calculate the value of diamonds stolen over a period of
time.
In the period relevant to the Cilliers thefts, i.e. December 1980 to
December 1981, there were 10 such cycles.
Another complicating
factor is that the average weight of diamonds taken from the mine would differ
from cycle to cycle. He calculated,
therefore, the number of carats per cycle
that would emanate from each size of diamond. He illustrated that, based on the
production
figures of the mine, one cycle would give 237 carats from 10 carat
stones, while the next only gave 183 carats from 10 carat stones,
etc.
Next he calculated the weight of a matchbox full of diamonds if
it consisted only of one size, e.g. 10 carats, or 9 carats, etc. This
was done
by
59
a method known as a computered simulation. It amounts to this: the
computer will select in a random way out of the approximately 250
000 diamonds
produced in a particular production run, the target size (e.g. 10 carats) and,
theoretically, fill a matchbox with stones
of that size. The computer has been
fed the weight, the value and the space taken up by a diamond of that size. The
computer can
then work out the total value of the matchbox full of diamonds.
This value, per size, was calculated over the relevant production
periods,
according to the value of that particular size per production cycle. This was
repeated 1000 times per size per cycle to
give a reliable figure.
He
then calculated the value of the matchboxes if they did not contain diamonds of
one size only, but a spread of sizes, for example
from +9 to 10 carats, etc.
What the computer did was to simulate, 1000 times, the behaviour of an
individual gathering diamonds of
the postulated weight per production cycle. In
each repetition, the computer was programmed to select (at random) diamonds in
the
postulated range to fill a matchbox. Each repetition thus
60
supplies one possible total value of the weight removed. By replicating
the process a large number of times a representative range
of possible values
was obtained and probabilities for each of the values in the range were
ascertained.
This calculation enables one to calculate the value for
all different mixes of diamond sizes matchbox filled with diamonds taken during
the period of any production cycle. If more than one matchbox is taken from any
particular cycle, the value can be determined by
multiplying the average value
of the particular mix of diamonds by the relevant number of boxes. If one
assumes that half, or any
other fraction of a matchbox was taken, one would
simply multiply by such a fraction. Moreover, if there is doubt as to when
matchboxes
were taken, an average can be obtained for any given period
consisting of more than one production cycle.
Having regard to the
uncertainties as to the exact dates upon which the diamonds were taken, one can
rather calculate the value of
the diamonds by applying an average value, with
reference to the calculations of Prof Barr, over
61
the period that the thefts occurred.
In my view, the basis of
the calculations used by Prof Barr seems to be valid and, in fact, conservative.
Under the circumstances,
where the diamonds were stolen before they could be
identified and weighed by the appellant, the method used seems to be the best
one available.
Based on Prof Barr's figures, one could calculate the
appellant's damage as follows:
(i) Weighted (over cycles) average of
one matchbox full, containing a
mixture of +9 to 10 carats, over the
period 14 November 1980 to 21
December 1981 : US$ 77 266.
(ii) 22 matchboxes, 2/3 of which were full,
giving a total dollar value of : U8$ 1 416 535.
(iii) Average exchange rate over said period
in US$per Rand :
1.168
62
(iv) Rand value of diamonds stolen : R1 212 787.
From this amount the following deductions must be made, as agreed
between the parties or proved by the appellant's
witnesses Heale, Gie and
Lincoln, whose evidence was not materially
contested:
(i) Value of diamonds recovered:
2 diamonds recovered via Otto and properly valued: R14 361
327 diamonds recovered, as per Heale's evidence and
properly valued: R69 470
R83 831 (ii) Costs of marketing and valuation saved, according to the
evidence of Gie, i.e. 10% of value of diamonds not
recovered: R112 896
(iii) Publicity costs saved on value of diamonds not recovered,
according to the evidence of Lincoln: R294,00
63
(iv) Sorting costs saved as per the evidence of Lincoln: R2920
(v) Insurance saved as per evidence of Lincoln: R248
(vi) Export duty saved as per the evidence of Lincoln, i.e. 1/11th of value of diamonds not recovered.
R102 632
(vii) Packaging saved, as per agreement between the
parties: R50
Total deductions: R302 871
Deducted from the total gross loss of R1212 787, this leaves a balance of R909 916 which amount is due and payable by the first and second respondents out of the insolvent estate of the third insolvent.
64
The following orders are made:
1. The appeal succeeds with costs, including the costs of two counsel, the said costs to be paid by first and second respondents out of the insolvent estate of the third respondent in the order of preference provided for by the Insolvency Act 24 of 1936. 2. The order of the court a quo is set aside. Substituted for it is the following order:
"There shall be judgment for plaintiff in the sum of R909 916 and costs, such costs to include the costs of two counsel and the qualifying fees of the expert witnesses employed by plaintiff. The said sum and costs shall be paid by the first and second defendants out of the insolvent estate of the third defendant in the order of preference provided for by the Insolvency Act 24 of 1936."
P J J OLIVIER
JUDGE OF
APPEAL
JOUBERT JA )CONCUR
NIENABER JA )CONCUR
F H GROSSKOPF JA:
I have had the benefit of reading
the judgment of my learned colleague Olivier, and although I agree with his
conclusion in respect
of most of the issues I am constrained to disagree with
him on one small but crucial aspect of the case. In my judgment the appellant
has failed to prove how many stolen diamonds van Zyl in fact sold to the third
respondent ("Nieuwoudt").
This is not a case where monetary damage has been suffered and where it is necessary for the court to assess the amount and make the best use it can of the evidence before it (Hersman v Shapiro & Co 1926 TPD 367 at 379-380; Earn Standard S A (Pty) Ltd v Katz 1981(1) SA 964(A) at 969H-970H). The appellant has in my view proved its loss. The appellant's difficulty is that it has to rely on the unsatisfactory evidence of van Zyl to complete the vital link in the chain. Van Zyl, who had been convicted, inter alia, of stealing diamonds from the appellant, was the person who allegedly sold all those stolen diamonds to Nieuwoudt. The question is whether the appellant has proved that
3
all the diamonds stolen by Cilliers and handed to van Zyl, were sold by van Zyl to Nieuwoudt. And if not, whether the appellant has proved how many diamonds van Zyl in fact sold to Nieuwoudt.
Counsel for the appellant made it quite clear in the course of his argument in this court that despite the allegations in the particulars of claim, the appellant's claim related only to those diamonds which Cilliers had stolen from the appellant's mine at Oranjemund during the period December 1980 (or January 1981) to December 1981, and not to any other diamonds which van Zyl may have obtained prior to December 1980, or from other sources at the appellant's mine.
According to Cilliers' evidence he handed 11 matchboxes containing diamonds to van Zyl on four different occasions during the period December 1980 (or January 1981) to April 1981, when van Zyl resigned. Thereafter, and on three different occasions during the period July to December 1981, Cilliers handed between 14 and 17 matchboxes of diamonds to Otto, who in turn was supposed to hand them to van Zyl. All those diamonds had been stolen from
4
the appellant's mine at Oranjemund. Cilliers' evidence relating to dates are corroborated by official entries of deposits in his savings account. The first deposit of R3 000 was made on 17 January 1981, while the last deposit of R3 500 was made on 11 December 1981. Cilliers made "a very favourable impression as a witness" on the learned trial judge, who also found his evidence to be "satisfactory and reliable". Counsel for the appellant accepted that rinding as correct and relied heavily on the evidence of Cilliers.
Van Zyl's evidence on the other hand differs substantially from that of Cilliers in certain material respects. It is of course true that the witnesses had to testify about events which had occurred more than ten years before, and one should therefore make some allowance for faulty recollections. It should, however, also be borne in mind that van Zyl had the opportunity to refresh his memory at the time of his own criminal trial in 1984, and later when he testified at Nieuwoudt's criminal trial.
Van Zyl testified that he first spoke to Cilliers towards the end of 1979 about stealing diamonds at the mine. The first transaction was concluded
5
in that same year when Cilliers, according to van Zyl, handed him one matchbox of diamonds which van Zyl in turn sold to Nieuwoudt. This version of van Zyl differs in material respects from that of Cilliers who said that when van Zyl first raised the topic at the beginning of 1980, he told van Zyl that he was not interested. Van Zyl approached him on several occasions thereafter, but it was only towards the end of 1980 that Cilliers agreed to steal diamonds at the mine and to hand them to van Zyl. According to Cilliers the first theft took place in December 1980 (or January 1981), whereafter he handed van Zyl three matchboxes of diamonds, and not one as van Zyl alleged.
Van Zyl's evidence is that he received diamonds direct from Cilliers on approximately five occasions from 1979 until his resignation in April 1981, in other words five transactions over a period of about 16 months. Van Zyl could recall that he had received five matchboxes of diamonds on the last occasions before his resignation in April 1981, and that Cilliers had handed him not less than 15 matchboxes of diamonds altogether. These matchboxes were not always full. About one out of three would be only half full. Cilliers on the
6
other hand testified that over a period of not more than five months he handed 11 matchboxes of diamonds to van Zyl on four different occasions. The important difference between these two versions is that on Cilliers' evidence van Zyl got diamonds about once every month while on van Zyl's evidence Cilliers handed him diamonds only once every three months. Inasmuch as Cilliers' evidence in this regard is to be accepted, it is clear that van Zyl was not a very reliable witness.
When van Zyl resigned from the mine in April 1981 it was agreed that Otto would take his place. Cilliers testified that he handed diamonds to Otto on three different occasions: four matchboxes in July or August 1981 (which Otto later handed back to Cilliers in a sock, and which Cilliers then delivered to van Zyl); five or six matchboxes in October 1981; five, six or seven matchboxes in December 1981. Van Zyl testified that he could specifically recall an occasion when Otto came to his house in Brackenfell. They went to a hotel where Otto gave him two matchboxes of diamonds. On Cilliers' evidence Otto must have received at least five matchboxes of diamonds,
7
but on van Zyl's testimony Otto handed him only two matchboxes. There is no explanation as to what could have happened to the other matchboxes. It is common cause that Otto on one occasion retained two diamonds for himself before handing the others to van Zyl. Those diamonds were subsequently recovered by the appellant and due allowance has been made for their value in calculating the appellant's loss.
Van Zyl testified that after his resignation in April 1981 he received about 8 matchboxes of diamonds, while Cilliers' evidence is that he handed Otto between 14 and 17 matchboxes of diamonds. There is again nothing to show what happened to the other 6 to 9 matchboxes of diamonds. There is certainly a distinct possibility that Otto kept some of those diamonds for himself. Another possibility is that van Zyl was not truthful about the number of matchboxes which he had received from Otto. In my view these inconsistencies cannot simply be attributed to faulty recollection on the part of van Zyl.
There are, therefore, serious discrepancies between the reliable evidence of Cilliers on the one hand and the testimony of van Zyl on the other.
8
These discrepancies relate in particular to the dates on which the thefts took place, and to the number of diamonds stolen and eventually handed over to van Zyl. It does not avail the appellant merely to say that in calculating the appellant's loss they have made all the necessary adjustments in the respondents' favour, and have used the lesser number of matchboxes referred to by van Zyl in his evidence. The inconsistencies of van Zyl's version show how unreliable his evidence is, and how dangerous it is to rely on his evidence to determine the extent of the respondents' liability.
The unreliability of van Zyl's evidence is further borne out by the following evidence. Van Zyl testified that he received diamonds from Cilliers and Otto on nine different occasions, and that he sold all those diamonds to Nieuwoudt and to nobody else. He denied that he retained any of those diamonds for himself. As soon as he received a parcel of diamonds he would go to Nieuwoudt and sell it to him before taking delivery of a new parcel. Only on the last occasion before his resignation did he sell the parcel in two batches to Nieuwoudt. He explained that Cilliers handed him Ave matchboxes of
9
diamonds on that occasion and that he sold only half of those diamonds to Nieuwoudt straight away. He buried the other diamonds and sold them to Nieuwoudt on a later occasion.
On his own version van Zyl therefore sold diamonds to Nieuwoudt on ten different occasions. Yet later in his evidence van Zyl testified that he and Nieuwoudt had concluded no more than five diamond transactions. One of those transactions did not involve diamonds stolen by Cilliers and should therefore be excluded from the five transactions mentioned by van Zyl. (This was the transaction which, according to the appellant, took place between van Zyl and Nieuwoudt before 12 August 1980, ie before Cilliers came into the picture, but where the appellant recovered the 327 stolen diamonds.) In the result we have two contradictory versions by van Zyl. According to the one version he concluded only four diamond transactions with Nieuwoudt during the relevant period when Cilliers provided the stolen diamonds. According to the other version there were ten different occasions on which he sold diamonds, stolen by Cilliers, to Nieuwoudt. These conflicting versions suggest that not all
10
the stolen diamonds which van Zyl had received from Cilliers and Otto were in fact sold to Nieuwoudt.
Apart from being a totally unreliable witness, van Zyl also proved himself to be a lying witness. He testified that Cilliers and Otto were the only persons from whom he ever received diamonds, yet the 327 diamonds sold by van Zyl, and recovered by the appellant before 12 August 1980, could not have emanated from either Cilliers or Otto. Van Zyl also conceded that the statement (exhibit "Bl") which he signed on 13 April 1983, and prior to his criminal trial, was false in material respects.
Van Zyl was also prepared to change his evidence when it suited him to do so. While he was still an accused he said in a statement to the police that he had received a total amount of R120 000 from Nieuwoudt in respect of all their transactions. In the present trial he increased that amount to R250 000 without being able to give any explanation for doing so.
In my judgment van Zyl was such a poor and unreliable witness that the Court can place no reliance at all on his evidence as to the quantity of
11
stolen diamonds which he had sold to Nieuwoudt.
The sale of
diamonds by Nieuwoudt to de Beer cannot in my view take the matter any further.
Those transactions took place over a much
longer period of time and not only
during the period when Cilliers stole diamonds from the appellant. There is
further no evidence
to show that all those diamonds which Nieuwoudt sold to de
Beer emanated from the appellant's mine at Oranjemund.
In the result I conclude that the appellant has failed to prove this vital aspect of its case. I would accordingly dismiss the appeal with costs, the costs to include the costs of two counsel appearing for first and second respondents.
F H GROSSKOPF
Judge of Appeal
Steyn JA Concurs