THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 117/12
Non Reportable
In the matter between:
NOMFUSI NOMPUMZA SEYISI
APPELLANT
and
THE STATE
RESPONDENT
Neutral citation:
Seyisi
v
The
State
(117/12)
[2012] ZASCA
(28 September 2012)

Coram:
Nugent, Ponnan, Cachalia, Leach and Tshiqi JJA

Heard:

18 September 2012

Delivered:
28 September 2012

Summary: Expert evidence – once accepted as credible, constitutes prima facie
proof – onus of rebuttal on the defence.

______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from: Eastern Cape High Court, Bisho (Dhlodhlo ADJP and Kemp AJ
sitting as court of appeal):
The appeal is dismissed.
______________________________________________________________________
JUDGMENT
______________________________________________________________________

TSHIQI JA (NUGENT, PONNAN, CACHALIA AND LEACH JJA CONCURRING)

[1] The appellant was charged in the Mdantsane Regional Court, Eastern Cape, with
1025 counts of fraud, alternatively with theft, it being alleged that she caused or
facilitated unauthorised payments of social welfare grants (to fictitious persons) by
affixing her own thumb and/or toe print to payment vouchers. It was alleged that she
committed the fraud whilst she was employed as a paymaster by the Department of
Social Development, Bisho, Eastern Cape (“the department”).

[2] She was convicted of fraud on all the 1025 counts and was sentenced to five
years’ imprisonment. All the counts were taken together for the purposes of sentence.
The provisions of s 276(1)(i) of the Criminal Procedure Act 51 of 1977 were made

applicable to the sentence.1 A confiscation order in terms of s 18 of the Prevention of
Organised Crime Act 121 of 1998 (POCA)2 was, also made an order of the court. She
was ordered to pay an amount of R1 334 820 with costs to the curator bonis appointed
in terms of POCA. Her appeal to the Bisho High Court against the convictions was
dismissed. She now appeals to this court against the convictions only, leave having
been granted by the high court.

[3] The appellant was implicated in the fraud through an investigation conducted at
the instance of the department by a fingerprint expert, Mr Stassen, who was the main
State witness at the trial. The investigation revealed that the fraud had been committed
during the period between 1994 to 1996 in Bisho, Eastern Cape. It further revealed that
some of the persons reflected as beneficiaries were either dead at the time payment
was made or were recorded twice in the system, resulting in a duplication of payment to
the same beneficiaries.

1 Section 276(1)(i) of the Criminal Procedure Act 51 of 1977 provides for imprisonment from which a
person may be placed under correctional supervision in the discretion of the Commissioner of
Correctional Services or a parole board.
2 Section 18(1) of POCA provides: ‘Whenever a defendant is convicted of an offence the court convicting
the defendant may on the application of the public prosecutor, enquire into any benefit which the
defendant may have derived from
(a)   that offence;
(b)   any other offence of which the defendant has been convicted at the same trial; and
(c)   any criminal activity which the court finds to be sufficiently related to those offences,
and, if the court finds that the defendant has so benefited, the court may, in addition to any punishment
which it may impose in respect of the offence, make an order against the defendant for the payment to
the State of any amount it considers appropriate and the court may make any further orders as it may
deem fit to ensure the effectiveness and fairness of that order.’

[4] Stassen testified that before he joined the department he was a fingerprint
investigator in the employ of the South African Police Services since 1978. At the time
of the trial he was employed by the department and had been so employed since
6 September 2001. He still did fingerprint analysis on a daily basis. He found
irregularities such as several runs of prints of a then unknown person. He became
suspicious because that person had signed for more than five people and also because
there were both finger and toe prints in those instances.

[5] On 18 May 1999, Stassen received a faxed copy of a set of fingerprints bearing
the name of the appellant, Nomfusi Nompumza Seyisi. He compared the right thumb,
right forefinger, right middle finger, left thumb and left forefinger of that set of prints with
the prints that appeared on 798 payment vouchers emanating from the Peddie district
and found seven or more points of similarity on all the prints. He testified that seven
points of similarity were sufficient to establish that the prints had emanated from the
same person. He testified that the faxed copy had subsequently disappeared but
handed in the vouchers as exhibit ‘A’. He further testified that on 12 March 2003 he
received a further set of finger and toe prints from the joint anti-corruption task team
with the name of the appellant on them. He compared them with the earlier prints in
exhibit ‘A’ and found, on the same basis, that, the right thumb, right forefinger, right
middle finger and left thumb and left forefinger prints corresponded with those of the
appellant. He concluded that they had been made by her. He stated that he found
seven or more points of similarity on each print. These he handed in as exhibit ‘B’.

[6] He conducted further investigations and found further fingerprints on payment
vouchers from the Peddie district. A total of 1025 fingerprints on the payment vouchers
were similar and corresponded to the right thumb, right forefinger, right middle finger,
left thumb, left forefinger as well as the right big toe and left big toe prints appearing in
the set he had received. He also handed in a comparison chart for seven of the
vouchers. A total of 1025 payment vouchers were also handed in as exhibit ‘J’. On
8 October 2003 he took a set of fingerprints and toe prints from the appellant and
compared the appellant’s fingerprints with the fingerprints appearing in exhibit ‘B’. He
concluded that they emanated from the same person.

[7] Stassen was asked in cross-examination to explain the seven points of similarity.
He said that he could not do so there and then but would be able to do so if he was
given an opportunity to stand down. The cross-examiner did not press the matter
further.

[8] The second state witness was Mr Rasussen. He testified that he requested
Stassen to conduct the investigation. He was informed by Stassen that he had found
many irregularities such as runs of finger and toe prints on the vouchers already paid
out. He explained that the irregularities resulted in various kinds of loss for the
department.

[9] The evidence of Rasussen was followed by that of Mr Townsend. He testified
that he was employed by the department and was responsible for the prevention,
detection and investigation of fraudulent activities within the department. He elaborated
on all the several irregularities he found during his investigation. During
cross-examination he agreed that he could not link the irregularities to the appellant.

[10] The appellant testified in her own defence. She admitted that she was employed
by the department as a paymaster at the time the irregularities were committed but
denied that she was involved in any wrongdoing. She specifically denied that her finger
and toe prints were on the vouchers. During cross-examination she admitted that as the
paymaster she was indeed responsible for keeping both the money and the vouchers.
She further admitted that she would keep all the money and the vouchers that remained
after payments had been made until she handed over everything at their office in Bisho.
She also admitted that as the paymaster she was the head of the pay team and that it
was her responsibility to ensure that everything was properly administered.

[11] The main issue on appeal is whether the fingerprints on the various vouchers
indeed emanated from the appellant. The only evidence contradicting that of Staasen
was a denial by the appellant that the prints on the vouchers were hers.

[12] In Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) the court, referring
to Wigmore on Principles of Evidence (3ed) Vol VII para 1923 stated that ‘the true and
practical test of the admissibility of the opinion of a skilled witness is whether or not the
Court can receive “appreciable help” from that witness on the particular issue ….’3
Expert witnesses are in principle required to support their opinions with valid reasons.
But no hard-and-fast rules can be laid down. Much will depend on the nature of the
issue involved and the presence or absence of an attack on the opinion of the expert.4
Where the expert has personally conducted experiments it is easier for the court to
follow the evidence, accept it and rely on it in deciding the issue.5 In this matter Stassen
compared the finger and toe prints of the appellant to the prints uplifted from the
payment vouchers and went further to explain his findings to the court. Other than a
bare denial the appellant led no rebuttal evidence. Effectively the trial court was faced
with the prima facie evidence of the expert. There was no challenge to the manner in
which he had conducted his investigation, nor to his evidence that in each case there
were seven points of similarity, nor was it contested that seven points were sufficient to
establish that the prints had emanated from the same person. The court found the
evidence acceptable and in its judgment stated:
‘If we have an expert, he is conceded to be an expert and his evidence is credible before the
Court then the Court must at the very least accept his evidence as being prima facie proved and

3 Wigmore Evidence Vol VII, 3 ed (2004); Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at
616; Schwikkard and Van der Merwe Principles of Evidence 2ed (2002) 79 at 89.
4 S v Ramgobin 1986 (4) SA 117 (N) 146 D-G; S v Mthimkulu 1975 (4) SA 759 (A).
5 S v Van As 1991 (2) SACR 74 (W).

this is where then an onus rests on the defence to dispute facts that are prima facie proved
before the Court. So if the expert tells the Court here are seven points and these are similar
seven points on this next photograph and one can see that they are pointing to exactly the same
area as the specific points on them then there at least rests a duty on the defence to have
asked the witness what are these points, if he wanted to know what they were so that he could
place them in dispute at some stage. It is quite clear that the witness told the Court that he is
able to tell the Court what they are and the witness told us that he is able to point out the seven
points of similarity on all the 1 025 vouchers that have been presented to the Court.
This has not been done by the defence so therefore the evidence must stand then as
undisputed evidence. Our law is quite clear that if evidence is prima facie evidence and it is not
discredited or placed in dispute by the defence in any manner then it must be accepted as
proven evidence. I have had occasion to look through all of the 1 025 vouchers and if one looks
through these and compares them to what has been presented on these particular charts then
one can see the similarities in general regarding these particular points and it is in particular the
right forefinger which has quite a unique pattern on it which is seen throughout the Exhibits ….’

[13] In argument before us it was submitted that the magistrate ought not to have
accepted the evidence of Stassen without first having an explanation of the points of
similarity and satisfying himself personally that the prints corresponded. I do not think
that is correct. As pointed out above a court is entitled to be guided by the evidence of
an expert. In the absence of a challenge to expert evidence that prima facie establishes
the relevant facts a court is entitled to rely upon it to convict. In this case there was no
challenge to his expertise, or to the grounds upon which he expressed the opinion that
the prints corresponded. Indeed, at the conclusion of Stassen’s evidence, counsel

appearing for the appellant specifically recorded that he wished to reserve further
cross-examination until he had consulted with his own fingerprint expert to ascertain
whether he disputed Stassen’s conclusion. Stassen was never recalled for further
cross-examination, and the reason for this failure is obvious. There is therefore no merit
in the appeal.

[14] The appeal is accordingly dismissed.

_______________________
Z L L TSHIQI
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

PW Nel

Instructed by Justice Centre
King William’s Town

Justice Centre, Blomfontein

For Respondent:

C de Kock

Instructed by State Attorney
King William’s Town

State Attorney, Bloemfontein