Steeped in Blood (9 page)

CIGNA brought in an expert called Dr Newton, who was from Burgoynes, a company of consulting forensic scientists and engineers in the UK, to conduct the investigation. I accompanied him, drove him around and showed him the evidence, and he came to the same conclusion that I had. I wrote a report to CIGNA and said that Dr Newton had investigated and it was a case of I came, I saw, I concurred (a wordplay of mine on the old Julius Caesar statement ‘
veni
,
vidi
,
vici
’ – I came, I saw, I conquered). My little joke was lost on the insurers. But, once more, the simple truth stood the test of scientific scrutiny, and the case was concluded accordingly.

Another pertinent case that illustrated insurers resorting to any means to avoid paying out a claim involved a farmhouse that burnt down. The incident left the owner outraged – not only by the loss of his property, but also by the attitude of the insurers. The owner, Piet Sandberg, a farmer from the Leeu-Gamka district, had returned home one evening, in the middle of a huge thunderstorm, to find his house on fire. He had a collection of handmade rifles in a safe in the house, and had stood until daybreak with a hosepipe trying to douse the flames to protect his safe. He believed that lightning had caused the fire.

The insurance loss adjusters dragged their heels for six months. An exasperated Sandberg came to see me to ask me to assist. I thought it only right to inform the insurance company, SA Eagle, which was also a client of mine, that I was about to embark on a matter against them.

I called the claims manager, Wynand van Vuuren, and was taken aback by his response. ‘David,’ he said, ‘I think you should know about your client. He is a bomb-maker who worked for the
security police. Furthermore,’ he added, ‘I can prove that the house was not set alight by lightning.’ Van Vuuren then told me that he had enough evidence to ‘bring fraud charges’ against my client.

I decided to examine the house anyway, and it was clear that the cause of the fire had been lightning. I also obtained the contents of the report made to the insurers by their own appointed expert, who had informed them that the cause was indeed lightning.

During some protracted correspondence with the man heading up the insurance company, it transpired that there had been no question of fraud relating to this unfortunate man. What the claims manager had told me was incorrect. The claim was paid and Piet Sandberg went on to rebuild his life.

I suppose that is where I should have left it, but I was outraged by what I had been told by Van Vuuren. The day after the claim had been settled, I phoned him and said, ‘You, as a man and as a company, place a high value on integrity, so please explain to me why you misinformed me on the Sandberg matter. Please tell me why your clients should not lie to you when you are nothing more than a common liar.’

I don’t think Van Vuuren was accustomed to such a direct approach, and he stalled me for two days, on the pretence of locating the files. Predictably, he never came back to me, so I continued the debate with Denis Burton, a more senior man at the company. Denis fenced with me for about three months, until I called him to ask what had been done about this matter. He replied that he had debated the issue with Van Vuuren, and that my version differed from Van Vuuren’s. I was piqued by his suggestion that I was lying.

The answer was simple: I asked Denis to listen to the tape recording of the original conversation between Van Vuuren and me. That is where it ended.

One has to understand that the style of some companies in this country is that of totalitarian dictatorship, which seems to be tolerated within the broader political landscape. The so-called ‘captains of industry’ are sometimes little more than robber barons
who will bear no criticism. This fails to allow for many subtle positions in between the two extremes.

After this, Denis immediately issued a banning order preventing anyone in the company from using my services. They could not control me, and they didn’t like that. Ironically, about a year later, they needed me to give evidence in a case that I had investigated previously. I called them and said, ‘You fellows have banned me. I rather like my banning, and I shall stay banned. Furthermore, you can go and give your own evidence in court.’ They did not like this one bit (see
Appendix C
).

The pool from which an expert witness can draw paying clients is rather small and, to some degree, you are at the mercy of the larger firms, who like to call the shots. I have been extremely fortunate in that, in the eighties, when I was starting out as a pyroforensic expert, I had a number of strings in my bow. At the time, the country was in a state of total onslaught and the police and the army were behaving atrociously. There was simply no one else to call to assist the attorneys acting for the families of people who had been shot by the police or who had been mistreated in other ways. I was regularly briefed by the legal representatives of these people, and I gained experience beyond my years and beyond my station. To some degree, therefore, I was immune to the whims of the big insurers, although I did accept them as clients on numerous occasions.

Sooner or later, an expert witness who falls into the trap of accepting the patronage of the insurance companies to the exclusion of all others will be placed in a compromising position. It is not worth it, because eventually it is akin to drinking from a poisoned chalice. The secret is to stay true to yourself in your profession, always.

‘“
Entia non sunt multiplicanda preater necessitatum.
”
Entities should not be multiplied beyond necessity, or, all things being equal, the simplest theory is the one to be believed.’

– OCCAM’S RAZOR, WILLIAM OF OCCAM,

English Franciscan friar and scholastic philosopher

Cases are won or lost based on the evidence provided by the experts. An expert is defined by his or her credentials, but this is not always infallible.

I recall the case of the expert who never was. A huge horse-and-trailer vehicle worth a considerable amount of money had been parked overnight on the premises of a garage in Kimberley. The following morning, it had vanished into thin air.

An insurance claim was lodged with Mutual & Federal Insurance Company, who claimed that they were not liable to pay the claim because there was no sign of forced entry. However, after protracted negotiations, they agreed that if the owner of the vehicle could
show that the lock had been picked, this would count as a forcible entry.

The insurance company employed the services of Mr Sneeuberger, an expert locksmith, who testified that he had many, many years of experience: he designed locks; he lectured to the locksmith academy; what there was to know about locks that he didn’t know really wasn’t worth knowing at all.

The rather distressed plaintiff came to see me. He brought the lock with him and asked, ‘Can this lock be picked?’ The other expert had stated categorically that the lock could not be picked, but I was so ignorant about locks that I said, ‘Well, as far as I’m concerned, any lock can be picked.’

I asked him to give me a weekend to see if I could pick the lock. I called various locksmith supply companies and discovered that there is a wonderful device called a pick gun, which enables one to pick locks rather more simply than by using more conventional methods.

Armed with this device and other lock-picking equipment, I settled down for the weekend. I clamped the lock in a vice and sprayed a little Q20 into the lock, and set to work with my pick gun. After about fifteen minutes, lo and behold, the lock sprang open. I tried it again, and I was faster: the more I practised, the better I got. While we were waiting for the day of the court case to arrive, I used it to practise and as a bit of a party trick. By the time we got to court, I was quite adept at picking the lock.

My expert summary was a very interesting construction. In the teeth of the expert summary from the locksmith, the true expert, I said, ‘Look, I know very little about locks and I am, in fact, a medical biochemist, trained as a chemist, but I say this lock can be picked for the simple reason that I can pick it.’ I got into the witness box in the Kimberley Court, armed with my lock-picking set, my lock, a little vice and some Q20, and proceeded to tell the judge the story of how I could pick the lock. At the end of my
evidence in chief, I asked him, ‘Would your lordship like to see it picked?’

‘Yes,’ he said.

So I screwed the vice to the bench in the witness box. I clamped the lock, and after a few seconds the lock was open, much to the astonishment of everybody – particularly Mutual & Federal.

It was time for me to be cross-examined, but it was also tea time, so my cross-examination was put on hold until after tea. The counsel for the other side asked me one question before the break, however, which meant that I couldn’t talk to anybody during tea time because I was technically under cross-examination. I was left alone with the court orderly in the courtroom. I got bored after a while and I thought, well, I wonder if I can pick any other locks in the building? I leapt up and looked around, and saw that the door to the judge’s chamber had a Yale lock on it. I said to the orderly, ‘Should I see if I can pick that one?’

‘Yes!’ he replied.

So I climbed over the bench to where the judge sits, and within thirty seconds I was in the judge’s chambers. Fortunately for me, he had gone to tea as well. I unpicked the lock and relocked the door.

After tea, everyone trooped back into court and counsel proceeded to complete cross-examining me: ‘Doctor, that was a very impressive demonstration of your lock-picking abilities,’ he said.

‘Yes, thank you. It is kind of you to say so,’ I replied.

‘Doctor, have you practised on this lock?’ he then asked me.

‘Yes, indeed I have, my lord,’ I responded. ‘I’ve practised a great deal on this lock. In fact, it has become a bit of a party trick.’

‘Thank you for your candour, Doctor,’ he said to me, and then added, ‘I’d like to put to you that the only reason you could open this lock with such facility is that you have practised a great deal on this lock, and that you would not be able to pick any other lock.’

I replied, ‘Well, my lord, that’s a nice theory, but unfortunately, during the tea break, I was able to pick the lock into your lordship’s
chambers, which took me about thirty seconds. I unpicked it to relock the chambers.’

The judge’s eyebrows shot sky-high! There was no doubt about the way in which the case was going to go: since the lock could so clearly be picked, the insurers would have to pay out on the basis of forced entry. Cases can be won in the most surprising ways, and experts can be so wrong with their dogmatic statements – a fact illuminated by the story of the lock-picker and the expert who never was!

The idea that ‘experts’ are defined as such by their credentials leaves much to be desired if one considers the so-called ‘lie-detector’ or polygraph test. This was brought home to me in a case in which a young man’s car was damaged when he swerved to avoid a taxi. His tyres had worn bare, so about two weeks later, he went to have them replaced. He was told that he had bent the struts of his car, and that this would cost a sizeable amount to fix.

He decided to submit an insurance claim, and the insurance company paid for the repairs. However, his insurance policy included a clause saying that the insurers could put him through a lie-detector test, using a polygraph. The insurers insisted on this, and the young man ‘failed’ the test: the insurance company wanted their money back from him. He came to see me.

What made this so ludicrous is that a lie-detector test is a farce, and is not accepted in South African law. I called the man who had administered the test, and pretended that I needed a test done on a client. I asked what his qualifications were, and was told that he had completed a stunning six-week course at the Maryland Institute of Criminal Justice and had a master’s degree in theology from the Rhema Church!

A polygraph is all about psycho-physiology, a field that requires an understanding of psychology and physiology. This depth of understanding and knowledge cannot be obtained in a mere six weeks. Electrophysiology is a subtle component of the process, and
I doubt that any of the so-called polygraphers have a clue about any of this.

I then called the insurance company and asked them if they
really
wanted to run their case on these qualifications: a man who has completed a six-week course in physiology, psychology and other pertinent elements, which takes other people years to study. There answer was, ‘Talk to our lawyers.’ Well, I do not talk to lawyers, so I contacted journalists from
Business Day
and
Carte Blanche
and suggested that they contact the insurance company to get the story.

The next day my client called me and said that the insurance company had decided not to pursue the matter. They were great bully-boys, it seems, until there was a chance that their story would become public knowledge.

A polygraph measures a number of elements, including your blood pressure, heart rate, breathing speed and perspiration. In theory, if you lie, you heart rate will increase, you will perspire or you will demonstrate one of the other signs that the machine measures. But these are all based on a false premise, as people differ from each other. These physiological conditions can change for a variety of reasons – reasons that may not reflect dishonesty. Many factors can cause a positive spike on the polygraph, and the measurement of human honesty has not been verified by this method.