THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 1136/2018

In the matter between:

VISHNU NOHOUR
FIRST APPELLANT
NEVILLE MICHAEL CHARLES
SECOND APPELLANT

and

MINISTER OF JUSTICE AND CONSTITUTIONAL
RESPONDENT
DEVELOPMENT

Neutral citation:
Nohour and Another v Minister of Justice and Constitutional
Development (1136/2018) [2020] ZASCA 27 (26 March 2020)

Coram:

PETSE DP, VAN DER MERWE and DLODLO JJA

Heard:

05 March 2020

Delivered:

26 March 2020

Summary: Delict – damages arising from alleged wrongful conviction – whether wrongful
conviction proved – whether evidence established on balance of probabilities that
acquittal would have followed if no irregularity had been committed – whether proved that
the conduct of the prosecution was the cause of conviction – ex turpi causa non oritur
actio maxim not applicable.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg (Pillay J
sitting as court of first instance):

‘The appeal is dismissed with costs including the costs of two counsel where so
employed.’
______________________________________________________________________

JUDGMENT
______________________________________________________________________

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 kidnaping 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 7 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 employees of the Department
of Justice and Constitutional Development (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 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

1 Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) at 396G-J.
2  R v Steyn 1954 (1) SA 324 (A).

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.

[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.

3 Myendra Naidoo v The State Case no. 504/2002, unreported judgment of this Court.

[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
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 liability – it will attract liability only if the
omission was also culpable as determined by the application of the separate test that has
consistently been applied by this Court in Kruger v Coetzee, namely whether a reasonable person
in the position of the defendant would not only have foreseen the harm but would also have acted
to avert it, “namely whether a reasonable person in the position of the defendant would not only
have foreseen the harm but would also have acted to avert it.’

[12] Negligence is a discrete element of delict by omission. It must, however, be considered in
the light of all the evidence and submissions regarding the issues of causation and wrongfulness.
The test for negligence in Kruger v Coetzee5 has been followed since its formulation by Holmes
JA. The Constitutional Court confirmed the test in Steenkamp NO v Provincial Tender Board,
Eastern Cape.6 The test is that negligence is established if:
‘(a)  a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property
and causing his patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.’
The formulation of the test in Kruger v Coetzee has been extended under our Constitution. It now
includes reasonable precautions to be taken by public servants when discharging their
constitutional obligations.

4 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 441E-442B.
5 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G.
6 Steenkamp NO v Provincial Tender Board of the Eastern Cape [2006] ZACC 16; 2007 (3) SA 121 (CC)
para 39. See also the judgment by Langa CJ in NM and Others v Smith and Others (Freedom of Expression
Institute as Amicus Curiae) [2007] ZACC 6; 2007 (5) SA 250 (CC) at 100.

[13] This Court, explaining the test which courts apply to determine the element of
wrongfulness for the purpose of establishing liability, stated the following in Van Eeden v
Minister of Safety and Security; 7
‘An omission is wrongful if the defendant is under a legal duty to act positively to prevent the harm
suffered by the plaintiff. The test is one of reasonableness. A defendant is under a legal duty to
act positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant to have
taken positive measures to prevent harm. The Court determines whether it is reasonable to have
expected of the defendant to have done so by making a value judgment placed, inter alia, upon
its perceptions of the legal convictions of the community and on consideration of policy. The
question whether a legal duty exist in a particular case is thus a conclusion of law pending on a
consideration of all the circumstances of the case and in the interplay of the many factors which
have to be considered.’
The approach adopted by our courts whether the omission should be regarded as unlawful
is an open and flexible one. The court have played a policy making role.8

[14] Wrongfulness is an essential element in delict.9 The Constitutional Court held in
this regard that the element of wrongfulness acts ‘as a brake on liability’ and that conduct
is not to be regarded as wrongful if public or legal policy considerations determine that it
would be ‘undesirable and overly burdensome to impose liability’.10 In Le Roux and Others
v Dey,11 the Constitutional Court confirmed that the criterion of wrongfulness depends on
a judicial determination as to whether it would be reasonable to impose liability on the
defendants, which reasonableness has nothing to do with the reasonableness of the
defendant’s conduct or omissions. Therefore, even if it were to be found that there was
negligence herein, the mere fact of such negligence may not make the omission wrongful.
In order to prevent the ‘chilling effect’ that delictual liability in such cases may have on the
functioning of public servants, such proportionality exercise must be duly carried out and

7Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) at 395H-396BE-G.
8 Id at 396E-F.
9 Stedall and Another v Aspeling and Another [2017] ZASCA 172; 2018 (2) SA 75 (SCA) para 11.
10 Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 (1) SA 1
(CC).
11 Le Roux and Others v Dey [2011] ZACC 4; 2011 (3) SA 274 (CC) para 122.

the requirements of foreseeability and the proximity of harm to the action or omission
complained of, should be judicially evaluated.12

[15] As it had been said, the court a quo found that the elements of fault and
wrongfulness had been proved. What remained was proof of factual and legal causation.
As far as factual causation is concerned the sine qua non test applies.13  Legal causation
entails an enquiry into whether the alleged wrongful act (wrongful omission to disclose
deviations) is sufficiently closely linked to the harm for legal liability to ensue. Generally,
a wrongdoer is not liable for harm that is too remote from the conduct alleged or harm
that was not foreseeable.14 Remoteness of damage operates along with the requirement
of wrongfulness as a measure of judicial control in respect of the imposition of delictual
liability. It, therefore operates as a ‘long stop’ in cases where most right-minded people
will regard the imposition of liability in a particular case as untenable despite the presence
of all other elements of delictual liability.15

[16] Legal causation is resolved with reference to public policy. For that reason, the
elements of legal causation and wrongfulness will frequently overlap. They nevertheless,
remain conceptually distinct.16 The result is that even if conduct is found to have been
wrongful (or even negligent, for that matter), a court may still find, for other reasons of
public policy, the harm flowing therefrom to have been too remote for the imposition of
delictual liability. The traditional tests for determining legal causation (reasonable
foreseeability, adequate causation, proximity of the harm etc.) remain relevant as
subsidiary determinants. These traditional tests should be applied in a flexible manner.
They should be tested against considerations of public policy as infused with
constitutional values.17 Insofar as legal causation is concerned, every matter must be
determined on its own facts. The consideration of legal causation or wrongfulness, public

12 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) para 49.
13 See Lee v Minister of Correctional Services [2012] ZACC 30; 2013 (2) SA 144 (CC) paras 41 and 74.
14 De Klerk v Minister of Police [2019] ZACC 32; 2019 (12) BCLR 1425 (CC) para 24 and cases cited there
(majority judgment).
15 De Klerk supra para 27 and cases cited there (It is to be noted though that the Constitutional Court did
not pronounce on the relationship between wrongfulness and legal causation of the same delict).
16 De Klerk para 28 and cases cited there.
17 De Klerk paras 30, 31 and 47.

policy considerations, infused with the norms of our constitutional dispensation dictate
that even if the prosecutor suffered from negligent omission, legal liability may ensue if
the harm was foreseeable and is not too remote.

[17] Whether an act or omission is the proximate cause of harm depends on the
conclusion drawn from the available facts and the relevant probabilities. Similarly, the
conclusion as to whether a causal link exist between the wrongdoer’s conduct and the
harm alleged is drawn from the facts, the evidence before court and the relevant
probabilities in the  circumstances. In Minister of Police v Skosana,18 this Court expressed
itself regarding the test for factual causation in the following terms:
‘Causation in the law of delict gives rise to two rather distinct problems. The first is a
factual one and relates to the question whether the negligent act or omission in question
caused or materially contributed to  . . .  the harm giving rise to the claim. If it did not, then
no legal liability can arise and cadit quaestio. If it did, then the second problem becomes
relevant, viz. whether the negligent act or omission is linked to the harm sufficiently closely
or directly for legal liability to ensue or whether, as it is said, the harm is too remote. This
is basically a juridical problem in which considerations of legal policy may play a part.’
The general principle of the law of delict is that loss is recoverable only if it was factually
caused by a defendant’s wrongful and culpable conduct. One purpose of the law of delict
is to encourage those who commit delict to admit their liability and to pay damages to
their victims without the need for lengthy, divisive and prohibitive expensive litigation.19

[18] Factual causation in delict is also determined by applying the but–for test. This test
asks whether, for defendant’s negligent conduct, the plaintiff’s harm would not have
occurred.20 The but-for test requires the court mentally to eliminate or think away as much
of the defendant’s conduct as was unreasonable, and to ask hypothetically whether the
plaintiff would still have suffered the harm had the defendant acted reasonably. If the
harm would have ‘not’ been suffered factual causation is established; if the harm ‘would’

18 Minister of Police v Skosana 1997 (1) SA 31 (A) at 34E-34H.
19 See Alistair Price ‘Factual causation after Lee’ (2014) 131 SALJ 491 at 491.v
20 See Minister of Police v Skosana 1997 (1) SA 31 (A); Simon & Co (Pty) Ltd v Barclays National Bank Ltd
1984 (2) SA 888 (A).

have occurred anyway, the required causal link is absent. Courts exercised common
sense when applying this test.21 Nugent JA, in Van Duivenboden, held that the first
enquiry is whether the wrongful conduct was a factual cause of the loss. The second is
whether in law it ought to be regarded as a cause. The same test was formulated slightly
differently by Corbett CJ in International Shipping22 as follows:
‘The first is a factual one and it relates to the question as to whether the defendant’s
wrongful act was a cause of the plaintiff’s loss. This has been referred to as “factual
causation”. The enquiry as to factual causation is generally conducted by applying the so-
called “but-for test”, which is designed to determine whether a postulated cause can be
identified as causa sine qua non of the loss in question. In order to apply this test one
must make hypothetical enquiry as to what probably would have happened but for the
wrongful conduct of the defendant. This enquiry may involve the mental elimination of the
wrongful conduct and the substitution of a hypothetical course of lawful conduct and the
posing of the question as to whether upon such an hypothesis plaintiff’s loss would have
ensued or not. If it would in any event have ensued, then the wrongful conduct was not a
cause of the plaintiff’s loss; aliter, if it would not so have ensued. If the wrongful act is
shown in this way not to be a causa sine qua non of the loss suffered, then no legal liability
can arise. On the other hand, demonstration that the wrongful act was a causa sine qua
non of the loss does not necessarily result in legal liability. The second enquiry then
arises, viz whether the wrongful act is linked sufficiently closely or directly to the loss for
legal liability to ensue or whether, as it is said, the loss is too remote. This is basically a
juridical problem in the solution of which considerations of policy may play a part. This is
sometimes called “legal causation”.’
In other words, the test of the factual causation is simply whether the relevant act of
omission was a necessary condition (conditio sine qua non) of the event in question.

[19] A brief summary of the evidence presented by the prosecution before the regional
court is necessary. This under normal circumstances would not have been necessary

21 See Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SAC) para 25; Minister of
Finance v Gore NO 2007 (1) SA 111 (SCA) para 33.
22 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 9A0 700E-J.

because the appeal before us concerns a delictual claim. But the criminal proceedings
herein are foundational to this appeal. The complainant testified before the regional court
that she was walking down Innes Road with her sister when a motor vehicle occupied by
the appellants and their companions stopped. The occupants of the vehicle alighted and
one of them called out ‘hey, come here.’ the complainant and her sister ignored that call.
Then suddenly the appellants and their companions started chasing her. She told the trial
magistrate that she ran into a foyer of a block of flats situated not far from the intersection
with Umgeni Road. A locked inner door prevented any further escape for the complainant.
It was there that one of the attackers (accused 2) caught her, slapped her and he accused
her of robbing his brother. Accused 2 claimed that he was a policeman effecting an arrest
of the complainant. It is so that no police appointment certificate was exhibited to her. The
complainant was lifted off the ground and she was carried despite her muffled scream to
the waiting vehicle, which at that stage was occupied by accused 1. Her mouth was
gagged by someone’s hand, preventing her scream from having any effect. All the
occupants of the vehicle, who were initially in the vehicle (including the two appellants),
were then again in the vehicle. The complainant was forced into the back seat between
accused 3 and 5. She testified that en route she was assaulted by at least accused 3 and
5. Accused 5 undressed his jacket and it was then used to cover her head. The vehicle
stopped at the grounds described by the complainant as being dark and secluded. She
was pulled out from the vehicle. En route to the corner behind a precast wall, accused 2
threatened the complainant saying that he would shoot her if she makes noise.

[20] She testified, in the magistrate court, that she believed that she would indeed had
been shot because during the journey something resembling a gun had been pointed at
her temple. She added though that she never managed to identify what she perceived
was the firearm because she believed there was a firearm and that she would be shot,
she calculated in deciding whether to flee through the hole in the wall or not. She was, in
any event, further hampered by an injured knee sustained during a fall in the initial flight
into the foyer. She testified how she was forcibly undressed and instructed to lie down.
She exhibited some reluctance to comply but was forcefully ‘dropped’ to the ground. This
was followed by sexual intercourse by accused 2 in two positions after which he whistled

for accused 3, 4 and 5. At a point two accused persons would hold her whilst one of them
was vaginally penetrating her. At one stage one of the assailants placed his penis into
her mouth. There was a stage when there was a jostling for sexual intercourse with her
by all accused. In her evidence they all had sexual intercourse with her against her will.
She never consented. She testified that it was even possible that some of her assailants
had sexual intercourse with her more than once.

[21] When she heard voices of people conversing and laughing, emanating from the
direction of the road, she cried out and this led to the termination of the assault upon her.
She testified that this caused the accused persons to flee the scene. She thereupon fled
naked through the hole in the wall. She met up with a man, later on established to be
Msomi, to whom she reported, ‘Indians are raping me’. Msomi referred her to a woman
nearby for assistance. When this lady realised how naked the complainant was, she gave
her an oversized jersey to hide her nakedness and suggested that they go into a room.
The complainant who was still fearful, declined and they hid rather in the garden. They
remained there until satisfied that those calling her were in the company of the police.
The complainant was conveyed to the police station after pointing out the scene of rape
and her statement was taken. The complainant was subjected to grilling cross-
examination by the accused’s’ legal representative. Her evidence was unshaken by that
cross-examination. Importantly she denied the version of the accused that they had
sexual intercourse with her with her consent. She denied further that she was a prostitute.
Dr Vawda, on examining the complainant, concluded that sexual intercourse most
probably took place. He confirmed as well that the complainant’s left knee had suffered
abrasions. The complainant also told the magistrate that she suffered abdominal pain
particularly to the groin and also in the legs. Additionally, she stated that her vagina bled
during the attack.

[22] Mr Michael Msomi and Mr Sipho Hadebe testified for the State. Hadebe, was
together with Msomi when they heard a female crying at about 00h30. Both exited the
room to investigate. They stood about 20 meters from the boundary wall to the park in
order to discern the direction of the cry. A naked complainant appeared from the gap in

the wall. She was ‘crying excessively’. She reported that she had been raped by five men.
She was referred to a lady living nearby for some clothing to cover her nakedness. Msomi
was still trying to see what he could do there at the scene of rape when he came across
accused 1 putting on his trousers whilst his underwear was just above his knees. When
Msomi was grabbing accused 1, the other accused persons appeared from the trees and
prevented Msomi from grabbing accused 1. Msomi was hit by accused 3 in the face
despite the fact that he produced his appointment certificate in an endeavour to identify
himself. The evidence is that then all the accused persons fled towards the motor vehicle.
Msomi had already recorded the registration number of the motor vehicle before it drove
away with the accused persons.

[23] Whilst Msomi and Hadebe were conversing the vehicle returned. The occupants
disembarked. Msomi realised he was in danger as the group of accused advanced
towards him after disembarking from their motor vehicle. Msomi fled and accused 3 gave
chase. Msomi outran accused 3 and he telephoned the charge office from his residence.
He requested that they contact radio control and send reinforcements. The flying squad
responded promptly. That is how the accused were arrested. The occupants of the
accused vehicle had already attacked and injured Hadebe. He told the court that when
accused vehicle returned, its occupants alighted, struck and stabbed him on the head,
cheekbone and left kidney. Hadebe was rushed to hospital by the police. Msomi recalled
that when he was in the company of a female constable a search revealed the
complainant and her good Samaritan hiding amongst some shrubbery. On being
interviewed by the female constable, the complainant pointed out some of her property in
the accused vehicle. At the scene complainant’s shoe, brassier and a knife were
discovered.

[24] The claim by the appellants that if the information contained in the docket had been
made available to them they would have used it such that they would have been acquitted
goes too far. In the first instance it is unknown what explanation would have been given
by the complainant on why in her oral testimony she disputed the assertion that she was
a prostitute when it appears that in her police statement she had so stated. The appellants

are in no position to say that their cross-examination in this regard would have yielded
the result they contend for. The trial magistrate would still have a duty to evaluate her
evidence. It is of significance that the magistrate was made aware that the complainant
was alleged to be a prostitute. The prosecution in addressing the court did tell the court
so. Consequently, the magistrate remarked as follows:
‘There have been allegations that the complainant was a lady of ill-repute and of course
you would have the court believe, as you have throughout this trial that she had offered
herself to you for reward. Even if that be the case she is still entitled to the protection of
the law.’
It appears from this statement that, in evaluating the complainant’s evidence, the trial
magistrate took into account that she might have been a prostitute.

[25] The evidence of the complainant did not stand alone. When she screamed
excessively on being sexually assaulted this attracted the attention of Msomi and Hadebe
whose evidence forms part of the summary above. The defence of the appellants was
that the sexual intercourse was consensual and that the complainant was a prostitute.
The complainant suffered abrasions on her left knee. This militates against consensual
sexual intercourse. The appellants’ testified that the complainant was either lying on her
back or was seated when sexual intercourse took place. The injury she sustained is
unlikely to have occurred if sexual intercourse took place with her consent. Only one of
the complainant’s shoes was found in the appellants’ motor vehicle together with her
brassier as stated in the summary of evidence above. A police officer found her
‘hysterical – hiding in the shrubbery’ with a woman (the good Samaritan) who was
comforting her. The difficulty for the appellants is that all of the above is not reconcilable
with consensual sex, whether for reward or otherwise. The aforegoing is independent of
the prosecutor’s omission to disclose statements indicating the complainant as a
prostitute. How in these circumstances could the prosecutor’s omission be a factual cause
of the appellants’ conviction?

[26] Turning to the case presented by the appellants before the high court, no evidence
exists as to what the response of the complainant would have been, for instance, had she

been confronted by way of cross-examination as to why, having admitted this fact to the
investigating officer, she denied that she was a prostitute in her viva voce evidence before
the trial court. It might well be that there was a compelling and an understandable
explanation for this. Nobody knows. One could only speculate on this score. Having
responded in whatever manner she would have chosen, nobody knows for a fact how the
presiding magistrate would have found in the evaluation of the complainant’s evidence.
Again one can only speculate. However, courts work on the basis of evidence from which
facts are established and not conjecture. It remains speculation, as well, on the part of
the appellants to advance an argument that had the prosecutor disclosed to the defence
the content of the complainant’s statement contained in the docket, cross-examination on
that score of the complainant would have resulted in their acquittal. There is no factual
basis for such an argument. Nobody knows how the magistrate would have decided. It is
not uncommon for instance that the witnesses’ statements are different from the viva voce
evidence. Witnesses often explain such differences satisfactorily whenever confronted on
such differences. But, as already indicated, the trial magistrate had due regard to the fact
that the complainant might have been a prostitute when he evaluated the evidence
presented before him in its totality. The appellants bore the onus of proving all
requirements for delict including factual causation on a balance of probabilities.

[27] The magistrate made the following observations concerning the complainant:
‘The complainant subjected to a lengthy and repetitive questioning on three appearances held up
well, exhibiting natural and expected moments of tearfulness from time to time.’ The magistrate
expressed himself as follows regarding the evidence by other witnesses:
‘The court can find no suggestions of untruthfulness in the unified version of Msomi and Hadebe,
both independent witnesses, that their attention was drawn by the plaintiff cry for help which
sounded to have enacted from the complainant.’ The magistrate observed further:
‘Arguing for the conviction for all as charged on count one on the basis of common purpose, and
of accused 2 to 5 on count two, also as charged, the prosecutrix seemed to think that the
probabilities favoured the finding that the complainant was indeed the prostitute, a fact she (the
complainant) vehemently denied, but pointed out that even if this was so no significant damage
to the prosecution case would inevitably follow.’

Even though the prosecutrix omitted to disclose to the defence the fact that the
complainant admitted in her police statement that she was a prostitute, the same
prosecutrix did inform the trial magistrate about this. This may not have been at
appropriate stage of the criminal hearing, but the fact is, the magistrate was made aware
of this. He expressed his views about this. The submission that the appellants would
never have been convicted but for the prosecutor’s non-disclosure lacks substance.
There are no facts established by evidence advanced that support the assertion that they
would have been acquitted but for the omission by the prosecution. They failed the test
for factual causation which is the condition sine qua non. The appellants have thus failed
to produce evidence that the prosecutor’s conduct ‘caused or materially contributed to’
the harm suffered. The wrongful act on the part of the prosecution has not been proved
to be linked sufficiently closely or directly to the loss alleged to have been suffered by the
appellants. There is no causal link proved. The appeal must clearly fail. The ex turpi causa
non oritur actio maxim, accepting that it is part of our law, had no application on the facts
of this case. But having regard to the conclusion to which I have come, nothing more need
be said about it.

[28] In the result, the following order is made:
‘The appeal is dismissed with costs including the costs of two counsel where so
employed.’

_________________
DV Dlodlo
Judge of Appeal

APPEARANCES:

For Appellant:

T N Aboobaker SC and M Bahadur
Instructed by:

Justice Reichlin Ramsamy, Durban

Webbers Attorneys, Bloemfontein

For Respondent:

CAS Jennings and SH Ngcobo
Instructed by:

The State Attorney, Durban
The State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Nohour and Another v Minister of Justice and Constitutional Development
From:
The Registrar, Supreme Court of Appeal

Date:
26 March 2020

Status:
Immediate
Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.
Today the Supreme Court of Appeal (SCA) dismissed the appeal by the appellants with costs.
The appellants in this case, Mr Vishnu Nohour and Mr Neville Michael, were tried on charges of
kidnaping and rape of one RM in the Durban Regional Court. They raised the defence that they had
consensual intercourse with the complainant whom they described as a prostitute. The complainant
denied that the intercourse was consensual or that she was a prostitute. 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
7 years’ imprisonment. 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.
In the court a quo, it is averred that Ms Holzen (the Prosecutor) omitted to disclose facts that were
within her knowledge to the appellants and the regional court. The facts she withheld were that the
complainant (RM) had admitted to the investigating officer that she was a prostitute; that the
investigating officer had witnessed the complainant soliciting and plying her trade as a prostitute and
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. By doing this, the appellants alleged that Ms Holzen 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. Further, they allege that such information would
have led to their acquittal.
The appellants pleaded that as a consequence of wrongful conviction they were imprisoned for
various periods. They were thereafter subjected to stringent parole conditions until their appeals
succeeded. The high court found that the appellants failed to prove that they would not have been

convicted but for the irregularity committed by the prosecutor. Further, it held that the state was not
obliged to compensate the appellants on the basis of the ex turpi causa non oritur actio maxim
(referring to the fact that no action may be founded on illegal or immoral conduct).
This Court was called to determine 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. This court held that
the prosecutor had a legal duty to disclose material discrepancies. If the prosecutor concerned acted
deliberately in omitting or failing to disclose the discrepancies to the court and to the defence, the
requirement of animus iniuriandi (intention to injure) would be established. On the other hand, if the
prosecutor acted negligently, then liability could only arise where the circumstances gave rise to a
legal duty to avoid negligently causing harm. Therefore, even if it were to be found that there was
negligence herein, the mere fact of such negligence would not make the omission wrongful. The
consideration of legal causation or wrongfulness, public policy considerations, infused with the norms
of our constitutional dispensation dictated that even if the prosecutor suffered from negligent
omission, legal liability could ensue if the harm was foreseeable and was not too remote. The general
principle of the law of delict is that loss is recoverable only if it was factually caused by a defendant’s
wrongful and culpable conduct.
Factual causation in delict is also determined by applying the but–for test. This test asks whether, for
defendant’s negligent conduct, the plaintiff’s harm would not have occurred.  If the harm would have
‘not’ been suffered factual causation is established; if the harm ‘would’ have occurred anyway, the
required causal link is absent. This Court held that the appellants bore the onus of proving all
requirements for delict including factual causation on a balance of probabilities. They failed the test for
factual causation which is the condition sine qua non (without which it could not be). Further, the
appellants failed to produce evidence that the prosecutor’s conduct ‘caused or materially contributed
to’ the harm suffered. The wrongful act on the part of the prosecution was not proved to be linked
sufficiently closely or directly to the loss alleged to have been suffered by the appellants. There was
no causal link proved. In the result, this court dismissed the appeal with costs and the ‘ex turpi’
principle, accepting that it is part of our law, had no application on the facts of this case. But having
regard to the conclusion to which the court came to, nothing more need be said about it.