The advocate was looking a little green around the gills, and Judge Eloff suggested that the parties spend more time preparing closing arguments. I objected, saying that my clients had no more money to travel back to Pretoria again, and that we should proceed. So we did.
I launched into my closing argument, throwing in a few legal terms. Judge Eloff stopped me again, when I was in mid-flow. ‘Doctor,’ he said, ‘what is your case?’
‘What do you mean?’ I asked him, my heart skipping a beat.
‘Are you coming to me in contract or in delict?’ he wanted to know.
Slightly flustered, I replied, ‘Neither, my lord; it’s a sort of mixture.’
He raised an eyebrow at me, and I rattled on. ‘It’s mainly delict, and about the way in which these people were lied to. It’s also about equity, and we are arguing this matter in terms of the SAFEX Rules, as this allows your lordship a wide scope in terms of equity.’
‘Well, yes, that is so,’ he replied, hauling out the SAFEX book, in which he already had some pages flagged. After reading from some of the pages, Judge Eloff announced that he would not give his judgment that day.
The Wentzels were unhappy, as they wanted an answer, having waited so long. I pointed out to them that if Judge Eloff had wanted to rule against them, he would have done so immediately. The fact that he wanted time to think about his ruling was a positive sign.
A week later, on 25 April 2008, the judgment was faxed through to my office. Judge Eloff had blown the delictual basis of my argument right out of the water, but he found for the Wentzels in the contract. The verbal contract had overridden the written contract. Irrespective of what the Wentzels had signed, the verbal discussion that they had had with Strydom took preference and was binding. This meant that there was no contributory negligence on their part. The Wentzels were to be paid back R244 557.71, plus interest at 15.5 per cent per annum, and all costs were to be paid by the defendant, Dynamic Wealth.
Judge Eloff is a man of great fairness, with the highest degree of integrity, and this case serves as a warning to investment companies.
Interestingly, because this was a legal issue and I was acting as an imitation lawyer, I could not charge a fee for my services. For me, the case had been great fun, and I learnt something new. Lawyers often get so wrapped up in their own jargon that they forget they are dealing with real people with straightforward needs. And everything has a simple answer at the end of the day if you cut through the clutter.
In yet another example of the arrogance of big business, I challenged Sanlam in the case of Leonard Louw, an unfortunate client who found that his investment had mysteriously ‘shrunk’.
When Louw, a mining engineer, left his employer in 2001, he invested his pension payout – R613 000 – with Sanlam. He was advised by his broker, Eugene van Eeden, to invest 80 per cent in gilt funds and the balance in a Sanlam Money Market account.
Initially, Louw was very happy with the progress of his investment. He received regular updates from Van Eeden, and at one point his investment had apparently grown to R793 000.
Some time later, Louw and his wife divorced. Finding that he owed her half of his pension payout, in April 2003 he notified Sanlam to make the payment to his ex-wife, expecting the sum to be around R400 000.
The letter that he received came as a huge blow: Louw’s investment was now worth only R306 711, roughly half of what he had originally invested. He tried in vain to obtain explanations from Sanlam, but felt as if he were running into a stone wall. The company’s call centres were not able to give him any explanation and nobody returned his calls. His wife became suspicious of him, so he approached me to ask me to investigate.
I called Sanlam and eventually managed to get through to one of the senior members of the investment fund in question. ‘Look,’ I said to her, ‘you’ve got twenty-four hours to find me somebody who carries the can and is answerable to the public on this particular issue.’
I subsequently received a phone call from a Mr de Villiers. ‘Does the buck stop with you?’ I asked him.
‘Ja,’ he said, ‘it stops with me. In fact, it lives on my desk!’
I wrote a letter to Sanlam on behalf of Louw, in which I asked some rather cheeky questions. The letter appeared in Noseweek magazine in September 2004, in an article ironically titled ‘Happily Ever After’.
How is it that a company of your size and reputed expertise, of which I am constantly reminded in the media, can manage to lose half this client’s money in so short a time? … Who advised the client to invest his money in this way? … Why is it that your company, despite the disastrous advice given to this client, still debits the man with a fee? I have come across some shameful acts, but this one must surely take the cake.
I received a letter back from Sanlam reprimanding me for the tone of my letter, but also informing me that Louw’s investment had been switched four times within a month in mid-2002. This, they wrote, probably explained the sad state of affairs, particularly because of the ‘switch fee’ and broker’s commission, which would have been deducted on each occasion. According to them, Louw had authorised these switches. They enclosed copies of each of the signed mandates.
I examined these documents, and it soon became apparent that they were all forged: all the signatures were identical – they were merely photocopies of each other. So I wrote another cheeky letter to Mr de Villiers, in which I alleged that the signed mandates were all forgeries and that they clearly were not signed by my client.
This naturally created a small panic within Sanlam, and they rushed off to find another handwriting expert, hoping to prove me wrong. Their expert was a retired brigadier from the police force’s handwriting division. As I expected, he reached exactly the same conclusion that I had reached. The principles of forensic science are rigorous and unbending: again they proved that, by challenging information and cutting through the confusion, the truth can be ascertained.
Mr Louw was a happy man – Sanlam injected R343 961 into his investment, placing him in the same position in which he would have been had these fraudulent switches not taken place.
Also interesting was that I found out during my investigation that the broker who had sold Louw the investment, Van Eeden, had been arrested for fraud at a South African airport in April 2003 while trying to flee the country with his family. Sanlam did not disclose this to me when I called them the first time.
It is the dirty dealings in the above cases that I find so interesting. Certain companies happily seem to gamble with people’s money, dressing their business up with fancy advertisements, smartly clothed employees and, often, false promises. One needs reminding of what Ambrose Bierce, a famous American columnist, wrote about business: ‘The gambling known as business looks with austere disfavour upon the business known as gambling.’ You have to be careful when dealing with these big companies, especially when it comes to your money. They are quick to take your savings but very slow to rectify any damage they do, even if it loses you money. My approach does not make me a favourite among these large companies – but then again, you can’t make friends with everybody in the world.
CHAPTER 23
TOO GOOD TO BE TRUE
‘The time will therefore come when the sun will shine only on free men who know no other master but their reason.’
– MARQUIS DE CONDORCET,
French philosopher, mathematician and political scientist
There are times when the facts seem to be too obvious. It is easy to jump to conclusions based on incorrect data or the sway of a specific context. On occasion, people’s lives hang in the balance, thus the correct investigation and interpretation of facts is imperative. One such case in which I was involved was the matter of the insecticide and the sangoma.
In the late 1990s I was enlisted by Legal Aid, which was acting on behalf of a sangoma who lived in the then Western Transvaal. The sangoma was about to be found guilty of murder, and, to the attorney’s credit, he felt that something might
be amiss.
An elderly man had been ill and went to consult a doctor. He was diagnosed with pneumonia and prescribed tetracycline, a broadspectrum antibiotic, which he duly took. Not feeling any better, he decided to consult the local sangoma, who mixed him a potion that, she said, would heal him. On his way out, the man said that he was thirsty and asked the sangoma for something to drink. She filled an empty two-litre Coca-Cola bottle with water and gave it to him, and he drank it. The old man died later that afternoon.
His family was very distressed. They contacted the police, who took possession of the Coke bottle for analysis. At the post-mortem, they found minute quantities of organophosphate insecticide both in the Coke bottle and in the body. The sangoma was charged with murder. By the time I was called in, the state and defence had already closed their cases and were awaiting judgment and sentencing.
I looked at the facts and realised that the organophosphates could never have been the cause of death. We knew that in order to be lethal, a gram of that particular organophosphate would have to be consumed, and also that the chemical has a foul smell. If the old man had consumed a whole gram, he definitely would have noticed the odour. Calculating the amount of the substance found in his body, we realised that it was at least 5 000 times less than what would have been needed to kill him. We went to court just as sentence was about to be passed.
The magistrate was grumpy, as he wanted the case closed. The sangoma’s attorney argued the matter, however, and persuaded the magistrate to reopen the case. After I’d presented my evidence, the prosecutor stood up to cross-examine me. As luck would have it, both the prosecutor and the magistrate were keen gardeners, so as soon as I mentioned the trade name of the organophosphate, they recognised it, and were aware of the foul smell that it emits. They knew that one could never make a man drink enough of it to kill him. The case turned around by 180 degrees, and the sangoma walked out a free woman.
The truth was that the old man had died of pneumonia, which can kill old and young people very quickly if not properly treated. He had had fluid in his lungs, which is symptomatic of organophosphates, but also of pneumonia. During the post-mortem, the state had jumped to a conclusion without examining any further.
Ironically, one of the problems with modern forensic science is that the equipment is so sensitive that it can detect traces of elements that could not possibly have a physiological affect, yet they are nevertheless present.
This is often a problem in the horse-racing industry, where, every now and then, a horse tests positive for a drug that could have been obtained naturally. Stinkblaar (Datura stramonium), for example, is a big problem, as it contains scopolamine, an alkaloid drug. It is sometimes found in animal feed. If a horse inadvertently eats a few leaves, the drug can be detected in the horse’s system and the owner will be charged.
Another problem can occur in athletics, where all kinds of drugs can be detected in quantities far below their ability to affect sporting performance. If you eat a roll with poppy seeds sprinkled on top, for instance, the instruments will detect the opiates in these seeds despite the fact that they cannot affect you in any way. Because of the sensitivity of today’s equipment, the interpretation of results is critical.
The importance of the accurate interpretation of test results was illustrated in another case on which I worked, in Willowmore, in 1998. A farmer’s house had burnt down, and the attorney representing the farmer called me in. Finding my fee to be too high, he sourced another forensic scientist to work on the matter. The scientist concluded that it was a case of arson and switched sides to work for the insurance company.
The farmer then employed me, and with a new legal team, we sued the insurance company in an effort to get them to pay the claim. I examined the facts and concluded that the problem was that the analyst working for the insurance company had seen a run mark outside the window. Analysis showed the substance to contain toluene, which is present in petrol. Based on this, he came to the conclusion that the farmer had doused the house with petrol and set it alight.
Petrol, however, contains toluene as well as many other substances. The sample contained only toluene. What the analyst hadn’t realised was that there were a number of foam mattresses in the house, and that when these burnt, toluene was produced. The reason for this is that the mattresses were made of polyurethane, which is a combination of toluene and isocyanurate, among other things. When the mattresses burnt, they produced toluene in a thick, gooey consistency. This is what had run out of the windows.
In this case, the full impact of the chemistry results and fire patterns were not taken into account, and quick – incorrect – conclusions were reached. The use of analytical tools is wonderful, but they must be used with care when interpreting results. If the forensic scientist fails to do so, he or she creates scope for glaring errors.
Many years ago, I worked on a case involving Mandrax, in which the analysis of the samples was just too good to be true – all seven samples were identical. I have conducted many analyses over the years, so experience taught me to question the result – most people would simply have accepted it. It turned out that the analyst had run the laboratory test seven times on the same sample instead of testing seven different samples (see graphs).
Sometimes, even the most innocent of comments can lead to people reaching the wrong conclusions. In 1997, I worked on a pyroforensics case near Kimberley. One night, the owner of a hotel woke up to flames and smoke – his hotel was ablaze. He called the fire brigade, and they excitedly rushed to the scene – they were operating on a voluntary basis and were thrilled to have a real-life fire to put out.
At some point, for reasons unknown, the owner of the hotel went to the head of the fire brigade and said, ‘Listen, chaps, here’s R1 000 each, now bugger off home.’ The head of the fire brigade was offended that he should be asked to give up the one good opportunity of putting out a fire. Instead of taking the R1 000, he refused it and reported the incident to the insurance company, who promptly repudiated the hotel owner’s claim.
My involvement came some two years later, when I acted on behalf of the hotel owner. An analytical chemist with very limited expertise in forensic chemistry had been called in to investigate the fire. On analysis, he had found traces of lead in the samples he had scratched out of the flooring, off the walls and from underneath the skirting boards. He drew the conclusion that, since petrol contains lead, the presence of lead in the sample meant that petrol must have been used to start the fire. He failed to understand that the lead in petrol is a very specific, organic kind of lead: it is either tetraethyl or tetramethyl lead rather than plain lead. Petrol was only one of the possibilities that would give rise to the presence of lead in the debris of this particular fire.
I was briefed to appear as a witness for the plaintiff, but this was not ultimately necessary, as counsel cross-examined the expert to such an extent that he conceded the point that there were twenty or thirty different sources to which the lead found in the debris could be attributed – for instance pewter, solder, some printing inks or even paint, which, in the old days, contained an oxide of lead. The expert failed to demonstrate that the lead he had identified was tetraethyl or tetramethyl lead, which meant that he could not say whether or not the lead in the fire had come from petrol. His conclusion, therefore, was erroneous.
Just before counsel posed the last question to the witness, court proceedings closed for the day. The next morning, as we started in court at nine o’clock, counsel posed the final question to the witness: ‘Sir, of the thirteen conclusions that you drew yesterday in your expert summary, are there any to which you wish to adhere?’
‘No,’ replied the expert. (Counsel in this matter was Henri Viljoen, who will appear later in this book.)
The insurance claim was paid out and the owner of the hotel left court without a blemish on his character.
Whether it is a case of life or death, or something less dramatic, it is vital to make sure that your results a
re seen in the right context. Jumping to easy conclusions can prevent you from getting as close to the truth as possible and can seriously pervert the course of justice.
Justice was well served in a case on which I worked a few years ago, in which I acted as an assessor. In January 2003, a train collision occurred between the Muldersvlei and Kraaifontein train stations in the Western Cape, resulting in the death of ten commuters. The train driver, Mervyn Matthee, was charged with culpable homicide. It was a frightening accident: it was alleged that Matthee had been negligent, as he had not stopped at three red-light signals between the two stations. The brakes on the train had been in perfect working order.
The magistrate wanted someone to assist her with the technical aspects of the case, and I was approached to fill that role.
Matthee was a man in his sixties whose wife had died from cancer some eighteen months previously. He had never really recovered from her death, and was having regressions and blackouts. It transpired at the trial that he was depressed and had sought help from his employer, but they had offered little sympathy or support. In fact, their approach to him had been uncaring and callous.
It was a fact that Matthee had driven the train and caused the accident. I wanted to know more about his state of mind, however, so I posed a number of questions relating to this from the bench. The state brought in a psychiatrist, and I asked him whether it was possible that Matthee could have serious disassociative conditions resulting from the loss of his wife – in other words, times when he could be cognitively disassociated from the reality around him. The psychiatrist replied in the affirmative, saying that this was common. I also wanted to find out if it was possible for Matthee to be unaware of this condition. According to the psychiatrist, the train driver could have been completely oblivious to it.
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