THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 831/2015

In the matter between:

DALE LONSDALE HOHNE

APPELLANT

and

SUPER STONE MINING (PTY) LTD

RESPONDENT

Neutral citation:
Hohne v Super Stone Mining (Pty) Ltd (831/15) [2016] ZASCA
186 (30 November 2016)
Coram:
Shongwe, Leach, Petse and Willis JJA and Nicholls AJA

Heard:
4 November 2016

Delivered:
30 November 2016

Summary:
Delictual claim : theft of diamonds from employer : admissibility of
confessions to the acts in question and admission of the quantum : threat of criminal
prosecution and adverse publicity : not contra bonos mores : the creditor not
exacting or extorting something to which it was not otherwise entitled : evidence
admitted : claim enforceable : appeal dismissed with costs.

ORDER

On appeal from: The Northern Cape Division of the High Court, Kimberley (Lever
AJ sitting as the court of first instance).
The appeal is dismissed with costs, including the costs of two counsel.

JUDGMENT
___________________________________________________________________
Shongwe JA:  (Nicholls AJA concurring)

[1] I have had the benefit of reading the judgments prepared by Willis and Leach
JJA. I agree with Leach JA that it is possible to reach a correct conclusion in this
matter without reference to the issues raised by Willis JA in paragraphs 19 – 30 of
his judgment. Willis JA took a view that the concept of legally recognized duress
required greater attention.

[2] The issue identified was primarily that of the admissibility of the video-taped
interviews with the appellant and it would have been sufficient to only deal with the
matter on this basis.   However, having said that, I cannot fault Willis JA in his
reasoning and interpretation of the law on duress and enforceability, both locally and
in foreign jurisdictions.

[3] They both arrive at the same conclusion, albeit following different routes. I
therefore confirm the mutually agreed order that the appeal be dismissed with costs,
including the costs of two counsel.

_____________________

J B Z SHONGWE

Judge of Appeal

Willis JA:
[4] The appellant, Mr Dale Hohne, was the defendant in the trial court. The
respondent, Super Stone Mining (Pty) Ltd (Super Stone), succeeded as plaintiff in a
delictual action for damages arising from the theft of high-value rough diamonds. The
trial court awarded Super Stone R6,015 million plus interest and costs. The appellant
appeals to this court with the leave of the trial court.

[5] The case turns on two related issues: (a) the admissibility of evidence that
was video-taped and transcribed during an interview between the appellant and
representatives of his employer and (b) documentation signed by the appellant, after
that interview. In both the recording of the interview and the documentation, it is clear
that the appellant admitted having stolen diamonds from his employer as well as the
value of what he had stolen. Although the appellant belatedly attempted faintly to
argue that the quantum of Super Stone‟s damages was not proven, Mr Kemp, who
appeared on his behalf, accepted that if the evidence in question was admitted, then
not only was the appellant‟s liability established but also the quantum of Super
Stone‟s damages, as awarded by the trial court.

[6] Super Stone reprocesses mine dumps in Kimberley in order to find and then
sell rough diamonds. The appellant had been employed by Super Stone as its „Final
Recovery Manager‟. In this position he was a senior and trusted employee, solely
responsible for the recovery and management of certain large diamonds that Super
Stone‟s processes had yielded. Two of Super Stone‟s directors, Mr Jahn Hohne and
Mr Peter Hohne, are relatives of the appellant.

[7] During early January 2010 a security officer, watching CCTV footage featuring
the appellant, became suspicious that he was stealing diamonds. The matter was
reported to Mr Jahn Hohne. Further monitoring of CCTV footage confirmed the
opinion of the security officer and Messrs Jahn and Peter Hohne that the appellant
was indeed stealing diamonds having a high value from Super Stone.

[8] On 15 January 2010 the appellant was requested by Mr Peter Hohne to
accompany him to the house of Mr Jahn Hohne and there he was confronted with
the allegation that he had been stealing diamonds. Also present at this meeting were
Mr Noel Wewege, one of Super Stone‟s security consultants and Ms Catherine
Lloyd, Super Stone‟s attorney. Later, a police officer, Inspector Van Zyl arrived at the
meeting as well. The confrontation was videotaped, with the appellant‟s permission.
This video and the transcript of the meeting formed part of the evidence before the
court a quo.

[9] Although at the commencement of the recorded interview the appellant
initially denied any involvement in the theft, he later admitted that he had done so
over a ten month period and that he had received payments of R5 million in respect
thereof. This took place after the so-called „dirty dozen‟ exhortation to which I shall
later refer. He disclosed that he still had R500 000 of the proceeds kept in a safe at
his father-in-law‟s house, that there were still stolen diamonds hidden in a locked box
at the same location and that he had R30 000 of the tainted money at his own
house. He signed an acknowledgement of debt for R5 million. Attached to the
acknowledgement of debt were annexures.

[10] The appellant volunteered to hand over to Super Stone the stolen diamonds
that were at his father-in-law‟s house. At this stage, a police officer, Inspector Van
Zyl was called.  The appellant, Mr Peter Hohne and Super Stone‟s security
consultant, Mr Noel Wewege, then went to the house of the appellant‟s father-in-law.
There, the appellant pointed out a large toolbox from which the stolen diamonds
were subsequently uncovered at the diamond and gold branch of the South African
Police Service, when the box was opened in the presence of one Inspector Gideon
Van Zyl. A small plastic container holding 23 uncut diamonds was found in one of the

locked drawers of the toolbox. The appellant was then dropped off at the police
station where he was alone with a senior police officer, Lieutenant Colonel
Vermeulen. Before this officer, and after his rights had been explained to him, the
appellant gave a full and comprehensive statement in Afrikaans in which he admitted
in detail to his theft of valuable diamonds from Super Stone, as well as their value.
Later that evening, Mr Peter Hohne telephoned the appellant and asked him to
deliver the money which the appellant had recouped from the safe of his father-in-
law. On that same evening the appellant did so, making over a payment to Mr Peter
Hohne of R500 000.00 for which Mr Hohne issued a receipt.

[11]   The next day, 16 January 2010 the appellant delivered a further R30 000.00
that he said had been at his own home. He was issued with a receipt signed by Mr
Peter Hohne. The receipts issued on 15 and 16 January 2010 were also produced in
evidence at the civil trial. After a week-end, on Monday 18 January 2010, Mr Peter
Hohne requested the appellant to bring him a copy of his statement made to the
police. Not only did the appellant agree to do so but also consented to an additional
interview, which was also recorded.

[12] Mr Kemp submitted that the cumulative effect of the following, indicated that
the appellant‟s confession had not been freely made:
(i) He had been asked to hand over his cellular telephone at the commencement
of the interview on 15 January 2010;
(ii) He had been transported to the house of Mr Jahn Hohne in the motor vehicle
of Mr Peter Hohne on 15 January 2010; and
(iii)  During the interview on 15 January 2010, shortly after it had begun, Mr Jahn
Hohne said the following to the appellant, after he had initially denied any
wrong-doing:
„All right here are the two options. OK, I have no choice but to offer you these two options:
the one is you reconsider the question and you tell us everything and the other is I
implement the dirty dozen. Here is the list of the dirty dozen and before we walk out of here I
am going to make six phone calls and six groups of people are going to meet me there and
afterwards I am going to make another six phone calls and I will continue with them and
these are the phone calls I am going to make: I am going to phone the South African police
the chief of police, I am going to phone the diamond and gold branch in fact other people are

going to phone it for us there are people standing by the director of DPCT the director of
priority crime investigation that‟s the new Hawks, De Beers security our private PI who has
been contracted to do this investigation and criminal attorneys from Johannesburg who will
come and assist with the total procedure after that we will be calling the following six people:
SA Revenue services of tax and VAT investigations, the DFA and The Star, the polygraph
guy again, the Kimberly club, the Diamond Board Mr Ernie Blom and ETV to assist us in
spreading our findings around the world. Dale, if we go to that safe now and I find something
in that lid from what I am going to do here you are going to be a very sorry man you probably
going to sit in jail tonight – I am going to ask you the question again and I am going to give
you two options – one you can go to denial and we use this system and the other is you be
honest and you tell me everything. You lied to me once in this conversation already. It was
my only question and you lied. Dale, what is in the lid of the solvent canister in the safe?‟
This became known, during the course of argument as „the dirty dozen‟ portion of the
interview. For convenience, I shall adopt this epithet in the judgment.

[13]  Immediately after this, the appellant, to use a colloquial expression, „spilled
the beans‟. For him, it was „downhill‟ all the way thereafter. Mr Kemp eventually
conceded that the handing over of the cellular telephone and the appellant having
been transported to the home of Mr Jahn Hohne by Mr Paul Hohne were
„makeweights‟. The case turns on what one makes of „the dirty dozen‟ exhortation in
the particular context in which it occurred.

[14] Opinions may vary as to quite how „relaxed‟ the interview on 15 January 2010
had been. There is no doubt, as counsel for Super Stone concedes, emotions had
run high. The sense of betrayal and disappointment by the other Hohne family
members was palpable. It was the „family connection‟ that had been the main reason
that the appellant had been given the position of trust in Super Stone. The directors
admitted to having felt angry and betrayed. When Mr Jahn Hohne was cross-
examined as to whether the representatives of Super Stone had been aggressive, he
replied: „I don‟t like the term aggressive. I‟d prefer “firm and professional”.‟ The
recording of the interview confirms the accuracy of Mr Jahn Hohne‟s description. The
appellant‟s sense of guilt, shame and embarrassment was also obvious. As the trial
judge emphasised in his judgment, at no stage during that confrontation had the
appellant been threatened with physical violence or anything unlawful at common
law.

[15] The appellant was prosecuted in a criminal trial before Bertelsmann J on 5
and 6 December 2011. The charges included not only the theft of the diamonds but
also money-laundering in terms of the Prevention of Organised Crime Act 121 of
1998 and the contravention of certain provisions of the Diamonds Act 56 of 1986.
The State had sought to rely on the statement that the appellant had made to
Lieutenant Colonel Vermeulen as well as the pointings-out of the diamonds and the
cash. The appellant had challenged the admissibility thereof. A trial-within-a-trial
concerning the admissibility of the statement and the pointings-out was then held.

[16]   In the light of the evidence of Inspector Van Zyl concerning the confrontation
that had taken place at the home of Mr Jahn Hohne, Bertelsmann J decided that the
statement had not been freely and voluntarily made in terms of the requirements of
the Criminal Procedure Act 51 of 1977 (the CPA) and therefore could not be
admissible. Relying on the „fruit of the poisoned tree‟ doctrine, Bertelsmann J found
that the evidence of the pointings-out would also be inadmissible. The State and
appellant then closed their respective cases, without leading any further evidence.
No evidence as to the CCTV footage was lead. In the result, the appellant was
acquitted in the criminal trial on 6 December 2011.  The appellant may consider
himself to have been fortunate.

[17] The civil trial, with which this appeal is concerned, commenced on 13 August
2013. By agreement between the parties, the civil trial was divided into two parts: the
first to deal with the question of admissibility and the second to deal with the merits.
As the court a quo noted in its judgment concerning admissibility, this appears to
have been the first time in South Africa where the question of the admissibility of
evidence rejected as inadmissible in the preceding criminal trial was raised in a
subsequent civil trial such that the court hearing the civil matter would have to
consider the admissibility of substantially the same evidence.

[18] On 28 February 2014 the court a quo issued a ruling in which it determined
that the video recordings of the meeting with the appellant at the house of Mr Jahn
Hohne on 15  January 2010, the statement to Lieutenant Colonel Vermeulen, the

pointings-out and the acknowledgement of debt (together with annexures) were
admissible.

[19]  The trial then proceeded on the merits.  On 15 May 2015, the court a quo
delivered its judgment that the appellant pay Super Stone the sum of R6,015 million
plus interest and costs. The difference between the amount in the acknowledgement
of debt (R5 million) and the amount in the order (R6,015 million) arises from the fact
that the appellant‟s statement to the police and the transcript of the meeting on 15
January 2010 support the higher figure.

[20]  During the trial, detailed evidence of the CCTV footage, implicating the
appellant in the theft of diamonds, was put before the judge. This evidence was
supported by the real evidence of the so-called „click-clack‟ jars, which the appellant
had handled. This evidence was not challenged by the appellant at all. The appellant
elected not to testify either during the trial-within-a trial concerning the question of
the admissibility of his acknowledgment of liability and the quantum thereof. The
same applied in the trial concerning the merits.

[21] In its judgment on the merits, the court a quo recognised that a distinction
exists between the admissibility of an acknowledgement of debt and its
enforceability.1 The two are not coextensive. I shall consider the question of
admissibility of the acknowledgement of debt and, if admissible, its enforceability, in
turn. Nevertheless, in view of the concession made by counsel for the appellant, Mr
Kemp that the case turns on the question of admissibility, the significance of
enforceability in this case may have been subsumed. This notwithstanding,
enforceability raises policy considerations not far removed from those relating to
admissibility. Accordingly, it may be useful to examine this issue, in order to ensure
fairness to both parties.

[22] In s 2 of the Civil Proceedings Evidence Act 25 of 1965 it is provided as
follows:

1  See Arend & another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 313A-B and Gruhn v M.
Pupkewitz & Sons (Pty) Ltd 1973 (3) SA 49 (A) at 57B, although these two cases are not directly in
point.

„No evidence as to any fact, matter or thing which is irrelevant or immaterial and cannot
conduce to prove or disprove any point or fact in issue shall be admissible.‟
Apart from cases dealing with hearsay evidence, there has been a dearth of
authority, both in South Africa and England, dealing with the admissibility of evidence
in civil cases. The rationale for excluding hearsay evidence has been its
unreliability.2 The reason for this paucity of authority may lie in the fact that,
historically in England, from which so much of our law of evidence derives, relevance
was the overriding consideration on any question concerning the admissibility of
evidence. In this regard, it is instructive to read a paper by Nigel Cooper QC, „The
Fruit of the Poisoned Tree – The Admissibility of Evidence in Civil Cases‟.3 In that
paper he summarises the position in England at present as follows:

„1. Unlawfully obtained evidence is prima facie admissible in civil proceedings.

2. Such evidence may be excluded by the judge exercising the discretion conferred on him
by CPR [Civil Procedure Rules] Part 32. However, in practice that discretion is generally
exercised in favour of admitting this evidence.

3. In addition, evidence may be excluded by the court exercising its inherent discretion to
prevent the court‟s process being abused or brought into disrepute.

4. Even if neither of those „discretions can be invoked, there may nevertheless be an
alternative remedy available to a party can establish a breach of confidence, he should be
entitled to an injunction restraining the use of the unlawfully obtained material.‟

[23] In  Shell SA (Edms) Bpk & andere v Voorsitter, Dorperaad van die Oranje-
Vrystaat en & andere, it was held that, in a civil case, a court has a discretion to
refuse to admit evidence that had been improperly obtained („op „n onbehoorlike

2 See for example S v Molimi [2008] ZACC 2; 2008 (3) SA 608 (CC) and DT Zeffert and AP Paizes
The South African Law of Evidence 2 ed (2009) at p385-388.
3 „The Fruit of the Poisoned Tree – The Admissibility of Evidence in Civil Cases‟ by Nigel Cooper QC
www.bgja.org.uk/wp-content/uploads/2014/02/NigelCooper.pdf. (Accessed on 10 November
2016).

wyse‟).4 This judgment was approved by the Constitutional Court in Ferreira v Levin
NO & others; Vryenhoek & others v Powell & others.5

[24]   The admissibility of evidence in a criminal trial stands on a different footing
from a civil dispute and is adjudicated according to somewhat different criteria for
reasons that are not hard to understand. In the first place, the Criminal Procedure
Act 51 of 1977 (CPA) contains express provisions relating to the free and voluntary
nature of written admissions and confessions before these may be admitted in
evidence.6 There is no equivalent provision in our law of civil procedure. The
Constitutional Court has recognised that, in certain important respects, civil and
criminal proceedings have a different character.7 This relates, in particular, to the
manner in which evidence is given and obtained.8 Most importantly, by way of
background, a criminal matter is a contest in which the might of the State is pitted
against an individual. In a contest of this kind, a bad result for an accused person
may lead to a loss of freedom. Such a consequence is incomparably different from
any outcome in a civil dispute.

[25]  Moreover, s 35(5) of the Constitution expressly addresses the question of
evidence obtained in violation of the Bill of Rights and provides that evidence „must
be excluded‟ from a criminal trial if it would render the trial unfair or would otherwise
be detrimental to the administration of justice. Contrastingly, s 34, which extends to
civil matters as well, contains no equivalent guarantees, providing merely that
everyone has the right to have civil disputes decided „in a fair public hearing before a
court‟. There is no provision regarding the exclusion of evidence. In civil litigation
„fairness‟ is seldom, if ever, located in a „one-way street‟.

4 Shell SA (Edms) Bpk & andere v Voorsitter, Dorperaad van die Oranje-Vrystaat en & andere 1992
(1) SA 906 (O) at 916H-917G.
5 Ferreira v Levin NO & others; Vryenhoek & others v Powell NO & others 1996 (1) SA 984 (CC) para
148. See also the judgment of Brand J in Fedics Group (Pty) Ltd & another v Matus & others; Fedics
Group (Pty) Ltd & another v Murphy & others 1998 (2) SA 617 (C) para 75.
6  Section 217 of the CPA provides that a confession relating to an offence may be admissible in
criminal proceedings if it is „proved to have been freely and voluntarily made by such person in his
sound and sober senses and without having been unduly influenced thereto.‟ Section 219A provides
for the admissibility of extra-judicial admissions in relation to the commission of an offence that are
proved to have been made „voluntarily‟.
7 See  Bernstein v Bester NO & others 1996 (2) SA 751 (CC) paras 107-123. See also Fedics Group
(Pty) Ltd & another v Matus & others; Fedics Group (Pty) Ltd & another v Murphy & others 1998 (2)
SA 617 (C) para 90.
8 Ibid.

[26] In the United States of America, in United States v Janis,9 the Supreme Court
had to consider whether to extend this exclusionary rule to civil proceedings in
circumstances where a state criminal law enforcement officer had obtained evidence
in good faith but nevertheless unconstitutionally. The majority held that the „prime
purpose‟ of the rule was to deter „unlawful police conduct‟ and that any „additional
marginal deterrence provided by its extension in cases like this one does not
outweigh the societal costs of excluding concededly relevant evidence.‟10 That case
dealt with a tax dispute and not one between two private litigants. As far as I have
been able to ascertain, the reasons relied upon by the appellant to exclude evidence
of the kind in question, which relates to liability and the proof of quantum in a civil
case, have succeeded nowhere in the world.

[27]   In Janit v Motor Industry Fund Administrators (Pty) Ltd11 this court carefully
left open the question of whether a civil court had a discretion to exclude otherwise
relevant evidence, which was unlawfully obtained. For reasons that follow, the
evidence in this case was not unlawfully obtained and it is therefore not necessary
for this court to decide the point left open in Janit.

[28] As this court said in Medscheme Holdings & another v Bhamjee,12  „in general
terms, an undertaking that is extracted by an unlawful or unconscionable threat of
some considerable harm, is voidable‟.13 The evidence of the quantum of the theft
may not have been freely and voluntarily obtained within the meaning of the CPA in
order to prove his guilt but, insofar as proving the amount of his liability is concerned,
it was not extracted unlawfully or „by the threat of some considerable harm.‟ Other
than donations, civil liability is rarely „volunteered‟. Moreover, an employer is not only
entitled to confront an employee about an allegation of wrongdoing, but is also

9 United States v Janis, 428 U.S. 433 (1976).
10 At 443.
11 Janit & another v Motor Industry Fund Administrators (Pty) Ltd 1995 (4) SA 293 (A) at 306H-307C.
12 Medscheme Holdings (Pty) & another v Bhamjee 2005 (5) SA 339 (SCA).
13 Para 6.

obliged to do so, even before a formal disciplinary hearing is convened.14 It is part of
the time-honoured „audi‟ principle.15

[29] It is a well-established principle of our law that if a party wishes to avoid
liability on the basis that he assented to an agreement by reason of duress, the onus
is upon him who makes that allegation.16 The same applies where a litigant claims
that evidence was obtained in breach of his constitutional rights.17 The appellant
alleged that he had signed the acknowledgement and the statement before the
police under duress but did not testify. Although care must be taken not to confuse
the relevant principles in claims founded in delict and those based on contract, it is
not always impermissible to borrow principles from the one type of causa and apply
them to another.18 We are dealing here with a written acknowledgment of both
liability and the amount in question. The closeness of the facts in this case to those
ordinarily featuring in contractual claims, in my opinion justifies a general
examination of when legally recognised duress may be found to exist in situations
other than delict. I turn now to consider the question of enforceability in our law.

[30] In Machanick Steel & Fencing (Pty) Ltd v Wesrhodan (Pty) Ltd; Machanick
Steel & Fencing (Pty) Ltd v Transvaal Cold Rolling (Pty) Ltd19 Nestadt J gave a
comprehensive review of the law relating to threats of prosecution, including the well-
known case of Arend & another v Astra Furnishers (Pty) Ltd,20 in which Corbett J
delivered the judgment of the full court. Nestadt J dealt with whether the duress in
question was induced by actual violence or reasonable fear of the threat of an
imminent or imminent considerable evil and then concluded that two vital questions
need to be asked: (i) was the threat contra bonos mores and (ii) did the creditor

14 See for example Old Mutual Assurance Co Ltd v Gumbi (2007) 28 ILJ 1499 (SCA) paras 5-10.
15 „Audi‟ is lawyers‟ shorthand for audi alteram partem, which means „hear the other side‟. See for
example Old Mutual Assurance Co Ltd v Gumbi (supra) paras 5-10 and Boxer Superstores Mthatha &
another v Mbenya (2007) 28 ILJ 2209 (SCA) paras 6-7.
16 Rothman v Curr Vivier Incorporated & another 1997 (4) SA 540 (C) at 551G-J; Paragon Business
Forms (Pty) Ltd v Du Preez 1994 (1) SA 434 (SE) at 439E-G;  Savvides v Savvides & others 1986 (2)
SA 325 (T) at 330A-C and Machanick Steel & Fencing (Pty) Ltd v Wesrhodan (Pty) Ltd; Machanick
Steel & Fencing (Pty) Ltd v Transvaal Cold Rolling (Pty) Ltd 1979 (1) SA 265 (W) at 275H.
17 See for example Protea Technology Ltd v Wainer & others 1997 (9) BCLR 1225 (W) at 1227.
18 See for example Fourway Haulage SAA (Pty) Ltd v South African National Roads Agency Ltd
[2008] ZASCA 134; 2009 (2) SA 150 (SCA) in which Brand JA, delivering the unanimous judgment of
this court, applied  contractual principles relating to pure economic loss  in a delictual claim.
19 Machanick Steel & Fencing ibid at  271B-273H.
20 Arend & another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C).

thereby exact or extort something to which he was not otherwise entitled?21
Machanick Steel dealt with an acknowledgment of debt that was used in evidence in
support of an application for the winding-up of a company. The acknowledgement
had been obtained by threatening a prosecution of the directors. Nestadt J held that
the onus was on the respondents to make out a case of operative duress. He found
that they had failed to do so and a provisional order of liquidation in each instance
was justified.22

[31] Arend v Astra Furnishers dealt with a contractual claim.  Having come to the
conclusion that „generally speaking a contract induced by the threat of criminal
prosecution is unenforceable on the ground of duress‟, Corbett J went on to say, in
that case:
„It is not necessary to express a positive view on whether this rule obtains where the party
threatened in fact owes a liquidated amount to the party making the threat and the
agreement involves merely the payment of this amount.‟23
It is fundamentally important to bear in mind that in Arend v Astra Furnishers what
the court was dealing with and set its face against was extortion or what is commonly
known as „blackmail‟.24 One cannot threaten to lay a criminal charge against
someone for an act irrelevant to that for which payment has been attempted to be
secured.25  The same applies in respect of embarrassing but not criminal acts that
have no bearing on the claim in question.26 As Corbett J noted, without actually using
the colloquialism, is that under the influence of English law, „blackmail‟ has long been
recognised as a crime in our law and, accordingly, it has correspondingly been our
law since the nineteenth century that an agreement concluded as a result of such
blackmail is void for its illegality.27 In deciding matters of the kind in question it seems
that, ultimately, it is policy considerations that are determinative. A consideration of
whether or not a threat was contra bonos mores is precisely one of policy.28

21 At  271B-D and  272C-D.
22 At 275C-277E.
23 At 311G-H.
24 See especially at 307B-308F.
25 See for example at 308E-F.
26 At 307F-308A. It was in Green v Fitzgerald & others 1914 AD 88 at 102 and 119-120 that this court
decided that adultery, as a crime, was obsolete in our law.
27 At 308F-G.
28 See for example Gbenga-Olowatoye v Reckitt Benckiser South Africa (Pty) Ltd & another [2016]
ZACC 33 (15 September 2016) para 9.

[32] Here, we are dealing with a delict. In Machanick Steel the underlying causa
for the acknowledgment was a misappropriation of money - in other words, what was
also a delict.  The facts and the issues in this case are so similar to those that were
relevant in Machanick Steel that I conclude that the experience of the appellant and,
more particularly, what was said to him immediately before he began to confess to
his theft, was not contra bonos mores. Furthermore, it did not result in Super Stone
exacting or extorting something to which it was not otherwise entitled. The contrary is
true. Moreover, the conduct of  Super Stone was not otherwise unlawful, never mind
illegal.

[33] The appellant has also sought to rely on the following passage from Ilanga
Wholesalers v Ebrahim & others29 in which Milne J said as follows:
„Where, however, the creditor does not know and probably cannot establish (and a
fortiori where he knows he cannot establish), the amount of the debtor‟s indebtedness it
seems to me an improper use of his rights to threaten to prosecute the debtor unless the
debtor undertakes to pay an amount which the creditor more or less arbitrarily estimates to
be due. No doubt even where the plaintiff does not know the exact amount stolen he is fully
within his legal rights in threatening to prosecute the debtor but to use the threat of such
proceedings to extort an undertaking to pay an amount which he knows he cannot prove to
be due in a Court of law constitutes, in my view, an abuse of his legal rights.‟30
Ilanga Wholesalers seems to operate against the appellant, rather than in his favour.
Super Stone did not use any threats in order to extort an undertaking to pay an
amount which it knew it could not prove. Even in our law of criminal procedure an
exhortation to tell the truth will not exclude a confession.31 Not even a threat of the
probability of arrest constitutes undue influence.32 After all, the test is whether there
is „any fair risk of a false confession.‟33

[34]  Moreover, the uncontested evidence of the CCTV footage alone is sufficient
circumstantial evidence to justify the conclusion that the appellant did, in fact, steal

29 Ilanga Wholesalers v Ebrahim & others 1974 (2) SA 292 (D)
30 At 297G-298B.
31 See for example R v Afrika 1949 (3) SA 627 (O) at 634-636, approved in S v Kearney 1964 (2) SA
495 (A) at 498H.
32 See for example R v Magoetie 1959 (2) SA 317 (A) at 325B.
33 See for example Kearney (supra) at 498H.

the diamonds. The statement to the police, which contained the evidence of
damages upon which the court a quo relied, was not „extorted‟ by Super Stone. It
was made by the appellant when he was alone with Lieutenant Colonel Vermeulen.

[35] The appellant failed to discharge the onus that rested upon him. The appellant
did not give or show any evidence as to operative, or legally recognised, duress
which could prevent the acknowledgement of debt from being enforced against him.
The evidence is admissible because it is relevant and the uncontested evidence of
Super Stone does not suggest a reason why it should be otherwise be excluded.
Furthermore, there is no compelling policy consideration either why the evidence in
question should be excluded or the admission of liability and quantum unenforced.
On the contrary, in the absence of any legally recognised duress, policy
considerations favour the admission of the evidence and the enforceability of the
claim where a person has stolen millions of rands from another.

[36]  In summary, the appeal cannot succeed for the following reasons: both the
theft and the evidence of the quantum of Super Stone‟s damages had been
established in documents in which the appellant had acknowledged his wrongful
acts, his liability and the amount in question. This evidence was both admissible and
enforceable against the appellant because it had been obtained without there being
any duress, recognised in law.

[37]  The following order is made:
The appeal is dismissed with costs, including the costs of two counsel.

______________________
N P WILLIS
Judge of Appeal

Leach JA: (Petse JA concurring)
[38] I agree with Willis JA that the appeal be dismissed. My reasons for doing so
differ somewhat from his, and he deals with issues that I find unnecessary to
comment upon. Hence this judgment.
[39]   The respondent is a diamond mining company which had employed the
appellant in a senior position described as the „final recovery manager‟.  The
appellant, however, stole diamonds from the respondent. Of that there can be no
doubt. Closed circuit television coverage proves that to be the case, albeit in regard
to diamonds which were not the subject of the claim that lies at the heart of this
appeal which related solely to diamonds allegedly stolen from mid-February 2009
until December that year. After a hearing in the Northern Cape Division of the High
Court, Kimberley, the respondent obtained judgment in its favour against the
appellant in the sum of R6,015 million being the value of diamonds the court found
the appellant had stolen from the respondent during that period, as well as interest
and costs. It is against that judgment that the appellant appeals to this court with
leave of the court a quo.
[40] As set out by my colleague Willis JA in paragraph 2 of his judgment, the
appeal turns on the admissibility of certain evidence: first, the video-recording of
interviews conducted with the appellant, and second, certain documents signed by
the appellant – in particular a confession made to a police officer and a written
acknowledgement of debt the appellant had signed in Kimberley on 15 January 2010
in which he admitted being liable for and held himself bound to the respondent in an
amount of R5 million in order to secure loss it suffered as a result of his having
stolen diamonds. Both the interview and these documents show clearly that the
appellant admitted having stolen diamonds from his employer. Indeed counsel for
the appellant, quite correctly, admitted in this court that the appeal had to fail, both in
regard to the merits of the claim and the quantum of the respondent‟s damages, if
his contention that this evidence was the product of duress was not accepted.
Accordingly his argument was directed solely at that issue.

[41] In paras 20-27 of his judgment, Willis JA deals, inter alia, with the discretion of
a court to admit improperly or unlawfully obtained evidence, and in doing so deals
with authorities both in this country and in foreign jurisdictions. However, as the
respondent had limited the issue to duress and counsel for the respondent therefore
essentially confined himself to that issue, interesting as my colleague‟s discourse in
those paragraphs may be, it is in my view irrelevant to the issues at hand and needs
not be dealt with by this court.
[42] In arguing that the appellant‟s utterances were the result of duress, reliance
was placed firstly upon the common law rules, including in particular those set out  in
Arend & another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 305H-306C and
309B-F (relating to the distinction between a lawful threat of prosecution and the
unlawful use of such a threat to extract a benefit from a suspected thief) and,
secondly, on the contention that to allow evidence obtained by duress offended the
right to a fair public hearing as envisaged by s 34 of the Constitution. But in doing so
counsel conceded that the only factor upon which he could rely in support of any
allegation of duress was the so called  „dirty dozen‟ threat contained in the passage
quoted by Willis JA in para 9 above.
[43] It is of importance for that passage to be viewed in its context. At the outset,
an attorney who was present, representing the interests of the respondent, asked the
appellant whether he would consent to the taking of a video of the meeting and of
„your statements made here‟, to which he agreed. A representative of the respondent
then told the appellant that the respondent had entered into a substantial security
investigation arising out of certain information received, and that they had learned
from this both that the appellant had become „quite a high-rolling gambler‟ and that
some drunk individuals had boasted as to how they had obtained „goods‟
(presumably diamonds) from the appellant. This had led to the respondent installing
substantial new technology on the mine relating to security. The interviewer then
concluded this introduction thus:
„I have a question for you but before I ask you the question I need to remind you that we are
of the same blood we are of the Hohne family and there has been an immense amount of
trust laid on you by us and we expect today at this meeting that that trust continues that
every question you will answer 100% honestly ─ you need to know that I know a lot and if at

any point in time I believe you are lying to me you are going to be given two options which I
will relate to you just now ─ but here‟s the question answer it honestly for once and please
do not test my patience ─ if you and me had to go to you safe in the glove box now what will
I find in the lid of the solvent canister?‟
[44] In response, the appellant stated that nothing would be found in the solvent
canister.  On being given the opportunity to think about the matter, he again replied
that there was nothing there. This then led to the „dirty dozen‟ portion of the interview
which concluded once more with the question „what is in the lid of the solvent
canister in the safe?‟ It was after this that the appellant confessed there would be
diamonds and that he had taken them out and put them back in the glove-box earlier
that day. When asked why he had had diamonds in the lid of the canister, his reply
was „I don‟t know‟. This ridiculous answer led to the following exchange:
„Dale honestly I‟m telling you don‟t let me go to plan B ─ the ball is in your court now for plan
A ─ plan A the following is also with plan A if you give us 100% honest questions on
everything that I ask and we ask you today we will not prosecute you if you lie any further
you will go thought the full prosecution ─ I know a lot more than you do Dale I know when
you lie and trust met I need to be 99.999% sure that every answer you give me is true. You
need to give me the whole bang shoot speel and we will give you an assurance of none
prosecution. But I want everything otherwise I am sorry my boy it is the dirty dozen
immediately and I will push it hard from every corner and you know how I deal with projects
hey ─ so you did put diamonds into the lid?
DH
(nodding his head)
JBL
When did you take them out?
DH
Today
JBL
Where are those diamonds you put into the lid today?
DH
They in the glove-box
JBL
The glove-box or the safe?
DH
No in the glove-box ─ that canister on the coarse side
JBL
Be more specific please where are those diamonds exactly in the glove-box?
DH
The number 4 glove-box the concentrate pipe that bucket its in there
JBL
How many diamonds are in there?
DH

JBL
How big are they approximately?
DH
Probably about 3 ─ 3 carats each

JBL
Just keep answering honestly hey don‟t let me down I don‟t want to do this but if I

have to I have to I have a complete obligation for the company to resolve this thing

100% what were you going to do with those diamonds?
DH
We were going to try and sell them?
JBL
Try and sell them or have you got a buyer lined up?
DH
Try and sell them
JBL
Dale how many times have you done this before ─ careful of the answer here Dale
be
very careful of the answer you have to be honest with me how many times have you

done this before?‟
(The initials DH in this transcript refer to the appellant.)
It was after this that the appellant proceeded to make a clean breast of things and
described in detail how he had stolen diamonds and what he had done with them.
[45] Those present then agreed that they would all go to the home of Mr Dougie
McLeod, described in the record both as being the appellant‟s brother-in-law and his
father-in-law (quite what the relationship is between them is immaterial). This they
did where, in a storeroom, the appellant pointed out a red toolbox. It was locked and
its keys could not be found so it was loaded onto the back of a bakkie and taken to
the South African Police Diamond and Gold branch offices where it was forced open.
Inside was found a container in which there were 23 large rough diamonds. After
these diamonds were photographed, the appellant was taken away whereafter he
voluntarily gave a statement to a police officer.
[46] At about 20.30 that evening the police telephoned the marketing director of
the respondent, Mr Peter Hohne to say they were finished with the appellant. Mr
Hohne went and fetched the appellant and took him to the mine where his motor
vehicle was. An hour or so later he called the appellant on his cellphone and asked
him to bring the sum of R500 000 that he had said was at the home of Mr Dougie
McLeod. This the appellant promptly did, the money being delivered to him in a
cardboard box. At this, Mr Hohne gave him a receipt for the money which contained
the words „proceeds of illegal diamond sales‟ and which the appellant voluntarily
signed. The following morning, after Mr Hohne had spoken to him on his cellphone,
the appellant brought and handed over a further R30 000 in cash which he had been
keeping in a safe at his home. He was again issued with a similar receipt.

[47] It is in the light of these background facts that the question of duress has to be
considered. In doing so it is important to bear in mind, as Kriegler J pointed out in S v
Dlamini; S v Dladla and others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC)
paras 93-97, that hard choices often have to be faced by people facing allegations of
criminal conduct. And the mere fact that a suspected criminal is faced with an
election whether or not to make any statement relating to allegations of criminality
levelled against him or her does not render any statement  he or she decides to
make offensive to the right to a fair trial if it is thereafter introduced into evidence. As
appears from what I have said, the respondent‟s representatives gave the appellant
the option of co-operating with them by making a clean breast of things. He was told
that in that event, although they could not grant him immunity from prosecution, they
would request it. But their attitude in that regard was dependent upon his being
truthful and answering their questions. If he failed, the full might of the law would be
set in train.
[48] I do not see this as having been either unlawful or contra bonos mores34 (or
as it has been put an „unconscionable threat of some considerable harm‟35), being
elements which would have to be established to avoid a contract on the grounds of
duress. Nor in my view would evidence of anything he said or did as a result render
his subsequent trial unfair. The appellant had a choice to make. He took what was in
fact the soft option. He decided to confess and co-operate in the hope that he would
obtain the benefit of possible immunity.  By no stretch of the imagination can this be
regarded as being the product of duress of an unlawful nature.
[49] Moreover, there is no evidence that the appellant in fact acted under duress.
Objectively viewed, in the light of what I have said above, there was no threat of any
unlawful evil being done to him if he did not cooperate with the respondent. His
counsel had stated in cross-examination of the respondent‟s witnesses that the
appellant would deny that he had made the admissions freely and voluntarily, and
would testify that during breaks in the recording he had been further threatened and
told that his and his family‟s lives, including those of his parents who were employed
by the respondent, would be destroyed, and that if he did not admit to provide the

34 Compare Arend v Astra Furnishers at 306A-C.
35 Medscheme Holdings & another v Bhamjee 2005 (5) SA 339 (SCA) para 6.

information required he would be imprisoned for life. However, notwithstanding this
and despite the unusual protection afforded by the trial-within-a-trial procedure that
was adopted, the appellant failed to give evidence. That, too, was a decision he was
entitled to take. But actions have consequences, and one of the consequences that
flows from the respondent‟s failure to testify is the inference that his evidence was
likely to damage his case.36
[50] The appellant bore the onus of establishing the necessary duress or coercion
which either rendered the incriminating evidence against him inadmissible or
breached his constitutional right to a fair trial if it was admitted. In my view, in the
light of what I have said, including the appellant‟s failure to testify, he clearly failed in
that task. On this limited basis alone the appeal must fail.
[51] For these reasons I agree that the appeal be dismissed with costs, such costs
to include those consequent upon the employment of two counsel.

_____________________
L E LEACH
Judge of Appeal

36 The authorities in this regard are well-known and do not require repetition.

APPEARANCES:

For Appellant:

KJ Kemp SC (with him B Pretorius)
Instructed by:
Roelofse Meyer Inc, Port Elizabeth
Kramer Wehmann & Joubert, Bloemfontein

For Respondent:

D Unterhalter SC (with him S Budlender)
Instructed by:
Haarhoffs Inc, Kimberley
Honey Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal
DATE

30 November 2016
STATUS

Immediate

Please note that the media summary is for the benefit of the media and does
not form part of the judgment.

Hohne v Super Stone Mining (Pty) Ltd (831/16) [2016] ZASCA 186 (30 November
2016)

This morning, in two separate judgments, the Supreme Court of Appeal (SCA)
unanimously dismissed an appeal by Mr Dale Hohne against a decision of the
Northern Cape Division of the High Court, Kimberley (Lever AJ), sitting as the court
of first instance.  Mr Hohne’s employer, Super Stone Mining (Pty) Ltd had instituted a
civil claim against him for the theft of diamonds. The case turned on the admissibility
of the appellant’s confessions to the acts in question as well as the quantum of loss.
The appellant had been threatened with a criminal prosecution and adverse publicity
in respect of the theft.

The SCA held that the high court had correctly found that there had been no unlawful
duress and that the confessions were admissible. Accordingly, the appeal was
dismissed with costs, including the costs of two counsel.

---ends---