Hohne v Super Stone Mining (Pty) Ltd

The appellant, Mr Dale Hohne, was employed by Super Stone Mining (Pty) Ltd as its Final Recovery Manager, a senior position with responsibility for recovery and management of large diamonds. He was a trusted employee and relatives of his were directors of the company. In January 2010, CCTV footage revealed the appellant stealing high-value rough diamonds from his employer over a ten-month period. On 15 January 2010, the appellant was confronted by company representatives at the home of one of the directors. During a video-recorded interview (conducted with his permission), after initially denying wrongdoing, the appellant admitted to stealing diamonds worth R5 million after being given what became known as the "dirty dozen" warning - essentially being told he could either tell the truth and cooperate or face the full force of criminal prosecution and publicity. He signed an acknowledgement of debt for R5 million, pointed out stolen diamonds hidden at his father-in-law's house, handed over R500,000 in cash that evening and R30,000 the next day, and gave a voluntary statement to police. He was criminally prosecuted but acquitted when Bertelsmann J found his police statement inadmissible under the Criminal Procedure Act. Super Stone then brought a civil delictual claim for damages.

• Whether video-recorded admissions and signed acknowledgement of debt obtained through threat of criminal prosecution and adverse publicity were admissible in civil proceedings
• Whether such evidence was obtained through unlawful duress rendering it contra bonos mores
• Whether admission of such evidence would violate the constitutional right to a fair hearing under section 34 of the Constitution
• The distinction between admissibility standards in criminal versus civil proceedings
• Whether a creditor threatening prosecution to recover what is legitimately owed constitutes duress or extortion

The appeal was dismissed with costs, including the costs of two counsel. The High Court's judgment awarding Super Stone Mining R6,015 million plus interest and costs was upheld.

The binding legal principles established are: (1) Evidence ruled inadmissible in criminal proceedings under the CPA may nonetheless be admissible in subsequent civil proceedings, as different standards apply. (2) In civil proceedings, for evidence to be excluded on grounds of duress, the party alleging duress must prove: (a) the threat was contra bonos mores (against public policy), and (b) the creditor thereby exacted or extorted something to which it was not otherwise entitled. (3) A threat of lawful prosecution and publicity in order to recover what is legitimately owed does not constitute unlawful duress or operate contra bonos mores. (4) An employer lawfully confronting an employee about suspected theft and offering a choice between cooperation or prosecution does not constitute duress where no unlawful threats are made. (5) The test for admissibility of evidence in civil proceedings is relevance, subject to a discretion to exclude evidence obtained unlawfully or in a manner offensive to public policy. (6) Where a person has stolen property and is confronted with that fact, admissions made in the face of threatened (lawful) prosecution are both admissible and enforceable in civil proceedings. (7) The party alleging duress bears the onus of proving it, and failure to testify on this issue permits adverse inferences to be drawn.

Willis JA made several non-binding observations: (1) He noted there has been a general dearth of authority in South Africa and England on admissibility of evidence in civil cases (apart from hearsay), with relevance historically being the overriding consideration. (2) He suggested that in Shell SA v Voorsitter, Dorperaad (approved in Ferreira v Levin), the recognition of a discretion to exclude improperly obtained evidence in civil cases may require further development. (3) He observed that as far as he could ascertain, arguments of the kind advanced by the appellant to exclude evidence of liability and quantum in civil cases "have succeeded nowhere in the world." (4) He noted that apart from donations, civil liability is rarely "volunteered" and an employer is not only entitled but obliged to confront an employee about wrongdoing before disciplinary action. (5) He commented that although care must be taken not to confuse principles from delict and contract, "it is not always impermissible to borrow principles from the one type of causa and apply them to another." Leach JA observed that Willis JA's discourse on the discretion to exclude improperly obtained evidence and foreign authorities, while interesting, was unnecessary to determine the appeal since the respondent had limited the issue to duress. He also noted Kriegler J's observation in S v Dlamini that hard choices faced by suspected criminals do not render resulting statements offensive to fair trial rights merely because the person faced an election whether to speak.

This case is significant in South African jurisprudence for several reasons: (1) It clarifies the fundamental distinction between admissibility standards in criminal versus civil proceedings, particularly regarding confessions and admissions obtained under pressure. (2) It is apparently the first South African case where a court had to consider admitting in a civil trial evidence that had been ruled inadmissible in a preceding criminal trial involving the same facts. (3) It provides important guidance on the boundaries of lawful duress, distinguishing between legitimate threats of prosecution to recover what is owed versus unlawful extortion or blackmail. (4) It confirms that an employer's right to confront an employee about wrongdoing, even firmly, does not constitute duress if no unlawful threats are made. (5) It demonstrates that constitutional fair trial rights under section 34 do not extend to excluding relevant evidence in civil proceedings to the same degree as section 35(5) does in criminal matters. (6) The case reinforces that policy considerations in civil litigation must balance fairness to both parties, not operate as a "one-way street" favoring only the wrongdoer. (7) It confirms that the onus of proving duress rests on the party alleging it, and failure to testify on this issue attracts adverse inferences.