APPERTAINING TO THE JUDGEMENT:
IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN).
In the matter between:
Petrus Johannes Arnoldus Naude: First Applicant
Philip Petrus Naude: Second Applicant.
Ilze Naude: Third Applicant
Elizabeth Johanna, Maria Naude: First Respondent.
The Master of the High Court: Second Respondent.
The document purports to have been signed by J.D.Pickering, Judge of the High Court.
In this document reference is made to two handwriting experts, namely Ms Yvette Palm and Mr Cecil Greenfield who presented evidence as experts on behalf of the Applicants and the Respondents.
On the pages of the Judgement the learned Judge summarises the evidence of those two experts.
The words “Reportable/Not Reportable” appear on the top of the first page. However, a copy of the document is accessible on the Internet.
In this document I intend drawing attention to various aspects where I feel that the learned Judge has erred in his summation vis-a-vis in the evidence of Ms. Palm and me Cecil Greenfield.
In point 75 it is written – referring to Ms Palm: “She stated further that there were correspondences between the two questioned signatures where the same mistakes were made which indicated that they were made by the same author who practiced deceased’s signature over a period of time”. I agree that they were indeed made by the same person and even without an ink analysis – which should and could have been done – they appear to have been written with a very similar pen.
In Item 62 it is stated “in performing her analysis of the authentic and questioned signatures Ms Palm had regard to nine admittedly authentic signatures including the signature of the deceased on the envelope taken to him by Mr Bornman as well as his signature on Mr Bornman’s “Kliente notule” and the Will of 5 July 2013. She marked these S1 – 9. The two alleged forged Wills of 14 April 2014 and 14 October 2013 were marked by her as Q1 and Q2, respectively”
Although four signatures appear on the Will dated 5th July 2013 only one has been used by her for comparison purposes (i.e. S1B).
Regarding specimens used for comparison purposes – In Item 56 – “Ms Palm stressed also that as far as possible, like should be compared with like. In other words the specimen signatures should have been executed for much the same purpose and in much the same circumstances as the questioned signature Good specimens should mimic the circumstances and importance of the document in question”.
The original Will dated 13th September 2012, which fits into that category, was seen and examined by me at the Master’s office where it is lodged and yet the two signatures appearing thereon are not among the nine standards used by Ms Palm.
In this regard, the Will dated 5th July 2013 is the standard that would fit in to this category as it is the most contemporaneous document; the dates of the disputed signatures appearing on the documents are14th October 2013 and 14 April 2014. Furthermore it is a similar type of document.
Ms Palm uses the term “discriminating features”. “Discriminating” as an adjective, according to the Concise Oxford English Dictionary is described as “having or showing good taste or judgement”. In any event they do not fall into the category of individual characteristics i.e. characteristics that are highly personal or peculiar and are unlikely to occur in other instances.
In his book Scientific Examination of Questioned Documents the learned author Ordway Hilton states on page 160 “All the factors that identify handwriting fall into two general and somewhat overlapping groups – class and individual characteristics. Class characteristics, as the name implies, are those common to a number of writers and may result from such influences as the writing system studied, family associations, trade training, and education. Individual characteristics are more or less peculiar to a specific writer. Class characteristics, of course, have little weight in identifying a writer, as it can readily be seen that there are others with the same writing traits…. Individual characteristics, on the other hand, constitute the backbone of the identity of an identification, but if two specimens of writing were not prepared by the same writer, this can be established through significant differences in either individual or class characteristics”
The sixteen “discriminating features” occurring between the questioned and known signatures identified by Ms Palm are dealt with in detail by the learned Judge in items 64 on pages 21, 22 and 23 of the judgement.
In her first report Ms Palm identified seventeen “discriminating features”. However, during cross examination, she conceded that the pen lift that she found in the Q1 signature was in fact the misplaced missing dot between the “P” and of the “V”.
As the two questioned signatures are similar but not identical, it stands to reason that not all the 16 “discriminating features” would apply to both signatures; which is in fact the case.
Furthermore the learned Judge omits to mention that many of those so called “discriminating features” did in fact occur among the available specimens of the late Mr Naude; particularly among the most contemporaneous standards i.e. the acknowledged Will dated 5th July 2013; my Charts 3 refer. He also fails to mention that the corresponding features among the standards were pointed out, one by one, during the cross examination by Advocate Smuts and during the cross examination of myself. Access to the record would confirm this to be so.
Pictorial demonstrations during Ms Palm’s evidence, presented in Court with an overhead projector, were based on two specific standards i.e. S5 and S1D. When in cross-examination those very discriminating features could be identified and could be matched with her standards and some of mine, she remained adamant that they did not fall into the category of natural variation.
With respect, in dealing with my evidence the learned Judge almost entirely ignores the valid points I mentioned in my reports and demonstrated on my Charts and instead, with the assistance of Mr de la Harpe the opposing Counsel, spends much of the Judgement castigating me.
He fails to mention that I drew attention in my reports, and during the cross examination, to the generally accepted indicators of genuineness that occur in authentic signatures i.e. the good line quality, even pressure pattern, similar line direction and stroke sequence, flying starts and finishes; all of which are manifested in the questioned signatures.
He also fails to mention my evidence regarding the absence of hesitation and tremor within the line as well as the absence of inappropriate pen lifts; classic features normally associated with forgeries.
Notwithstanding the above in item 102, he states… “I have no hesitation in accepting the evidence of Ms Palm and in rejecting the utterly unreliable evidence of Mr Greenfield to the contrary. In my view Ms Palm’s evidence establishes beyond any reasonable doubt that the differences between the specimen signatures and the questioned signatures which are apparent from her charts were indeed fundamental differences, and not merely natural variations”.
In the learned Judge’s Judgement more time is spent in dealing with me rather than with the valid points that I made in my reports and in my evidence in chief.
In Item 81 he states that “I am satisfied that he (Greenfield) has sufficient expertise to be accepted as an expert. Obviously the weight to be attached to his evidence is a different matter with which I will deal hereunder”.
Added to this the learned Judge deals at length with the Judgement regarding my involvement in the matter Diehl and others vs The Master of the High Court, Pretoria and others (2008) 4 All SA 430 (T). In my view this was a deliberate attempt to discredit me further and to put a smokescreen around my evidence in the Naude matter. As it so happens in the Diehl case both the late Brig F Fourie, a former National Unit Commander of Questioned Document Unit of the SAPS for many years, and me presented evidence of forgery which was sound. In her heads of argument Senior Counsel Ms Ruth Kuper, the Counsel for the plaintiff, points out where the learned Judge had erred in his Judgement regarding the signatures. Leave to appeal was granted; however, because the Plaintiff was not in the financial position to do this, it was not done.
I understand that leave to appeal was not applied for by The First Respondent in the Naude matter for the same reason.
The same tendency used “to play the man and not the ball”, had been used in the matter Oosman & Another vs Khan & Others Case.249/06:237/06 KZN; however in that case the learned Judge C Nicholson did not allow this to cloud his judgement.
Items 29 and 30 relate to the Testator’s heavy drinking. However, neither Ms Palm nor I deal with this subject in our reports. Alcohol would have an effect on the writer’s signature, but I found no evidence which suggests this to be the case in regard to the questioned Wills. The subject is dealt with by Ordway Hilton (pages 322 and 323) in the relevant chapter of his book “Scientific Examination of Questioned Documents” a book referred to by Ms Palm.
My methodology, which is in keeping with international standards, is set out in my Resume which has remained more or less at the same for many years. I am however, along with an IT specialist, engaged in the creation of a program which incorporates the occurrence frequency of some 30 rhythm and form components between the questioned and acknowledged signatures. The worksheets that I did for the Naude matter were, inadvertently, included in the Court bundle. In any event the results were consistent with those produced using my usual methodology.
I can accept the learned Judge’s personal castigation although I think that it is unfounded, however based on the evidence I am still of the opinion that Ms Palm has not proved “beyond any reasonable doubt” or even on the balance of probability that the disputed signatures are forgeries.