CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 292/21

In the matter between:

MAKHI KAPA Applicant

and

THE STATE Respondent

Neutral citation: Kapa v The State [2023] ZACC 1

Coram: Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J,

Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J

Judgments: Mbatha AJ (minority): [1] to [69]

Majiedt J (majority): [70] to [109]

Heard on: 11 August 2022

Decided on: 24 January 2023

Summary: Law of Evidence Amendment Act 45 of 1988 — application of

section 3(1)(c) — admission of hearsay evidence — interests of
justice
 ORDER

On appeal from the High Court of South Africa, Western Cape Division, Cape Town:

1. Condonation is granted.
2. Leave to appeal is granted.
3. The appeal is dismissed.

JUDGMENT

MBATHA AJ (Baqwa AJ and Rogers J concurring):

Introduction

[1] The applicant, Mr Makhi Kapa, was convicted of murder and sentenced to
15 years’ imprisonment by the High Court of South Africa, Western Cape Division,
Cape Town. The respondent is the State. The applicant seeks leave to appeal against
both conviction and sentence.

[2] In 2018, the applicant (accused 1 in the High Court) and six other accused
persons stood trial in the High Court for crimes seemingly forming part of vigilantism
in Khayelitsha. The applicant was charged with four counts of kidnapping, two counts
of murder, two counts of assault with intent to do grievous bodily harm, and one count
of attempted murder. The applicant was legally represented and tendered a plea of not
guilty on all counts. He offered no explanation in terms of section 115 of the Criminal
Procedure Act1 (CPA), preferring to exercise his right to remain silent. He was
convicted on one count of murder of Mr Makhuze Bungane (the deceased) and was

1
51 of 1977.

2
 MBATHA AJ

sentenced to 15 years’ imprisonment. His applications for leave to appeal against

conviction and sentence were dismissed by both the High Court and the Supreme Court
of Appeal.

[3] This matter turns on whether the High Court was correct, under section 3(1)(c)
of the Law of Evidence Amendment Act2 (Hearsay Act), to admit the statement of
Ms Bomikazi Dasi, who died before the trial.

Jurisdiction and leave to appeal

[4] In my view, whether the admission of Ms Dasi’s statement was in the interests
of justice engages our constitutional jurisdiction. This is because the statutory interests
of justice test for the admission of hearsay evidence has a constitutional dimension, and
the admission of hearsay might be so unfair as to infringe the applicant’s fair trial
rights.3

[5] If, however, this Court concludes that it was in the interests of justice for the
High Court to admit Ms Dasi’s statement, our jurisdiction would not extend to
determining whether the applicant’s conviction was justified on all the evidence.

[6] In respect of leave to appeal, the issues raised in this application are of public
importance. The events that led to the conviction of the applicant arose in a vigilante
context. Vigilantism is alarmingly common in South Africa due to, among others,
inadequate policing in low-income communities. This lack of state support leads to
self-help by residents. This Court has said, “[s]elf-help . . . is inimical to a society in
which the rule of law prevails . . . . Respect for the rule of law is crucial for a defensible
and sustainable democracy.”4 Self-help cannot be condoned by our courts, but even in

2
45 of 1988.
3
Savoi v National Director of Public Prosecutions [2014] ZACC 5; 2014 (5) SA 317 (CC); 2014 (5) BCLR 606
(CC) at para 49; S v Basson [2004] ZACC 13; 2005 (1) SA 171 (CC); 2004 (6) BCLR 620 (CC) at para 26; and
S v Ndhlovu [2002] ZASCA 70; 2002 (6) SA 305 (SCA) at para 16.
4
Chief Lesapo v North West Agricultural Bank [1999] ZACC 16; 2000 (1) SA 409 (CC); 1999 (12) BCLR 1420
at paras 11 and 17.

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 MBATHA AJ

these circumstances, it remains important to ensure that fair trial rights are upheld. It is
in the interests of justice that leave to appeal be granted.

Condonation

[7] It is in the interests of justice for condonation for the late filing of this application
to be granted. The applicant filed the application over four months late. The applicant,
however, advanced reasonable grounds for the delay in bringing the matter before
this Court. Additionally, and despite the length of time it took the applicant to bring the
application before this Court, the potential prejudice the applicant stands to suffer in the
wake of the alleged violation of his right to a fair trial if condonation is refused far
outweighs the prejudice that would be suffered by the State if condonation is granted.

Summary of evidence before the High Court

Ms Aida Bungane

[8] Ms Aida Bungane, the grandmother of the deceased, gave the following oral
evidence before the High Court. On the morning of 21 August 2016, three men,
“Azisa”, “Lazaro” and another person, arrived at her home looking for the deceased.
The three men wanted the deceased to point out certain missing items. She testified that
all the accused persons before court were known to her. She identified Lazaro as
accused 2, Mr Siviwe Mlotywa. Azisa and the third man were not before court.
The deceased left her home with the three men.

[9] Later that day, Mr Masonwabe Makoma (accused 4, also known by the
nickname “Big”) arrived at her house carrying the deceased. Mr Makoma explained
that the deceased and others had been assaulted in the applicant’s house and that he had
found the deceased at the applicant’s house. An ambulance was called. Upon its arrival,
the deceased was examined by paramedics and certified dead at 17h08.

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 MBATHA AJ

Dr Bronwyn Afton Inglis

[10] Dr Bronwyn Afton Inglis, a medical doctor and a forensic pathologist based at
Tygerberg Forensic Pathology Services, testified in relation to the deceased’s
post-mortem report. In the High Court, Dr Inglis read her report into the record:

“The following was noted on external examination of the body. Abrasions were noted
to the face and forehead. Multiple lacerations of the scalp were present. Extensive
circumferential swelling and bruising of both arms were present. Extensive swelling
and bruising of both lower legs were present. Tramline bruises were present on the
posterior and lateral aspects of the left thigh. Multiple abrasions were present on both
arms, both thighs and both legs. Multiple lacerations were present on both shins.
Extensive bruising and scattered abrasions were present on the lower back. On internal
examination of the body traumatic subarachnoid haemorrhage of the brain was present.
Haemorrhage was noted into the eighth intercostal muscle on the left . . . . All of the
organs were pale.”

[11] Dr Inglis concluded that the cause of death was consistent with extensive blunt
force injury to the head and body and its consequences. She also testified that tramline
or railway bruises were present on the body of the deceased and that wounds of this
kind are typically caused by a rod-like object, such as a broomstick.

Warrant Officer Blanche Amy Stubbs

[12] Warrant Officer Blanche Amy Stubbs, a forensic analyst stationed at the
Forensic Science Laboratory in Plattekloof, testified in relation to two DNA reports.
She confirmed that blood samples obtained from inside the applicant’s house matched
samples obtained from the deceased and Mr Monwabisi Nkayi (second deceased).

Sergeant Simphiwe Msolo

[13] Sergeant Simphiwe Msolo, the investigating officer, testified that he took
statements from, among others, Ms Dasi, Ms Bulelwa May and Mr Zukisani May.
Ms Dasi, the complainant in respect of count 9 (assault with intent to do grievous bodily
harm), died before the commencement of the trial. Ms Bulelwa May could not be

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traced. Mr Zukisani May’s evidence was expunged from the record by agreement
between the parties after he repudiated his written statement.

[14] Sergeant Msolo sought the services of Captain Joubert from the Plattekloof
Forensic Laboratory who found evidence of blood spatter that had been cleaned up on
the floor and walls of the applicant’s house.

[15] Sergeant Msolo testified that, after Ms Dasi gave her statement, she pointed out
the homes of various suspects to him. The State never applied to admit this oral hearsay
evidence.

The statement of Ms Dasi

[16] The State brought an application in terms of section 3(1)(c) of the Hearsay Act
to admit Ms Dasi’s statement. This statement was taken by Sergeant Msolo on
23 August 2016, two days after the death of the deceased. Ms Dasi spoke to
Sergeant Msolo in isiXhosa, and he reduced the statement to writing in English.
Sergeant Msolo read back an isiXhosa translation of what he had written. She
confirmed the correctness of what he had read back to her and signed the statement.

[17] The defence opposed the admission of the statement. The High Court admitted
the statement and held:

“In the exercise of my judicial discretion I find that the interests of justice demand the
admission of the oral and written hearsay evidence of the deceased. In the result the
application is accordingly granted.”

[18] Ms Dasi’s statement reads as follows:5

5
This is the transcript of the statement as read into the record by Sergeant Msolo. The statement itself, which was
exhibit “O” in the trial court, was not part of the record in this Court. On the State’s version, the names mentioned
by Ms Dasi refer to the following people:
“Makhi” – the applicant, accused 1; “Anele” – accused 3; “Big” – accused 4; “Svegi” / “Svitch”– accused 5;
“Vubela Viwe” – accused 6; “Siyabulela” – accused 8, deceased by time of the trial; “Makhuze” – Mr Makhuze

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 MBATHA AJ

“On Sunday 21 August 2016, at about plus/minus 16h00, I did arrive at home, coming
from Gugulethu. I did heard from my mother that there were guys looking for me,
driving a white Tazz. At that moment I did see this Tazz passing on my street. I
decided to follow it. I did saw this Tazz parked on Makhi’s house. I did also go there.
I did saw Makhuze desisting [sitting]. Both hands were tied up with a rope. Also his
legs were tied up with yellow-and-black rope. They did took off his trouser. Bongane
was carrying a plank hockey stick, busy beating Makhuze on his hands. Azizo was
carrying a silver golf stick, hitting Makhuze over his head. Makhi did pull Makhuze
to other room as he was bleeding over his hedge [head] and mouth. Bongane said to
Monwabisi, Nono, the deceased, nicknaming Nono, the deceased, he must stand up.
And he said he can’t stand. Nono did ask me to pick him up to those people in dining
room. He did crawl to dining room. Anele did kicked him over his chest, and he fell
down. Anele took out a knife and stabbed Monwabisi on his hips and left side and on
right side. He also stabbed him twice on lower abdomen. Svegi did call Bulelwa as
[she] was on that room. Sakumzi did hit Bulelwa with a plank over her head. Xolani
was having a sjambok. He assaulted Bulelwa with it over her body. Anele did hit her
with a chisel over her head on the back and she fainted. They did call Zukisani. His
hands were both tied up with yellow-and-black rope and his both legs. I did assisted
him to stand up. They informed him to clean blood on dining room. He was using a
mop. Vubela Viwe, he did hit Zukisani under his feet and also hit him over his hands,
saying he will hit [him] 20 times. Big [Mr Makoma] also did came inside the room
and hit Makhuze with sjambok over his face. Makhi also hit Makhuze with golf stick
over his body. Bongane also hit Makhuze with empty bottle over his head. Anele did
stepped Makhuze on other leg twice and Anele did hit Makhuze with chisel on other
leg four times. Big did put up Monwabisi on a mat and pulled him outside. Bongane
did hit Monwabisi with a hockey stick of plank on the back of his neck. Big did put
Makhuze over his shoulders and took him back home. I was with Big to Makhuze’s
place. Bulelwa and [her] brother, I did left them there. Monwabisi was already outside.
Lazaro was also there but I didn’t see him beating anyone. Anele did also hit me with
chisel while I was trying to block him not to assault Makhuze. He hit me over the head.

Bungane, the deceased, of whose murder the applicant was convicted; “Monwabisi” / “Nono” – Mr Monwabisi
Nkayi, the second deceased, of whose murder the applicant was acquitted; “Bulelwa” – Ms Bulelwa May, the
complainant in count 7; and “Zukisani” – Mr Zukisani May, the complainant in count 8.
The other perpetrators named by Ms Dasi (“Bongane”, “Azizo”, “Mara”, “Sakumsa” / “Sakumzi”, “Andile” and
“Xolani”) were not located by the police. Ms Dasi named 12 perpetrators in total, though “Lazaro” (accused 2),
according to her, played a passive role.

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By the time I arrived, Monwabisi was already being assaulted as he was bleeding.
Siyabulela did slap Monwabisi over his face several times. Mara did kick Makhuze on
his groin several times. The role players on this matter who assaulted both deceased
and victims are Makhi, Azizo, Andile, Anele, Svitch, Sakumsa, Vubela, Xolani,
Siyabulela and Mara. All of them, they suspect that deceased and victim has stolen
music of Makhi.”

[19] At the end of the State’s case, the defence applied for a discharge in terms of
section 174 of the CPA. The applicant was discharged on counts 1 to 4 but not on
counts 5 to 9 (which included the two murder charges). After taking instructions,
counsel for the applicant closed the defence’s case. None of the accused testified.

Mr Makoma’s warning statement

[20] Mr Makoma, accused 4, gave a warning statement that contained the following:
Mr Makoma heard that people were being assaulted at the applicant’s house, so he went
there. He saw multiple victims with signs of injury, including the deceased who had
wounds on both legs. He also saw the alleged stolen items on the ground, “such as a
car radio and other things”. He took the deceased back to his grandmother,
Ms Bungane’s, house. Later on, he learnt that the deceased had died.

Admissions

[21] The applicant made the following relevant admissions in terms of section 220 of
the CPA: that the deceased was in fact Makhuze Bungane; that he was declared dead at
his grandmother’s house at about 17h08 on 21 August 2016; that Dr Inglis performed a
post-mortem on the deceased on 26 August 2016 and that her findings were noted
correctly; that the deceased did not sustain further injuries from the time the alleged
offence was committed until the post-mortem was conducted; that the cause of death of
the deceased was consistent with blunt force injury to the head and body; that the
photographs of the scene and report filed by Captain Joubert were correct; and the
correctness and contents of the chain-of-custody statements.

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High Court’s findings

[22] On the admissibility of the hearsay statement, the High Court held that Ms Dasi’s
statement was admissible under section 3(1)(c) of the Hearsay Act. It found that the
statement was “the only conduit through which . . . the accused’s actions [could] be
linked”. It found the evidence reliable because it was evidence of an eyewitness and
the other evidence “bolster[ed] the veracity of what [was] contained in Ms Dasi’s
statement”.

[23] The High Court found the applicant guilty of the murder of the deceased based
on the doctrine of common purpose. It found that the applicant actively participated in
the assault on the deceased by dragging his body and hitting him with a golf club.

[24] On the question of identification, the High Court considered the evidence of
Ms Bungane, Sergeant Msolo, the statement of Ms Dasi and the warning statements of
certain of the accused, including Mr Makoma. It concluded that, although Ms Dasi did
not point out the accused, either in a formal identification parade or otherwise, it was
sufficient that she pointed out their homes to Sergeant Msolo, who testified that the
accused were arrested on the strength of her statement. In light of the above evidence,
the High Court held that the State had proved that the accused, including the applicant,
were the persons mentioned in Ms Dasi’s statement.

[25] In relation to the applicant’s involvement in the incident, the Court considered
Ms Dasi’s statement. The High Court found that Ms Dasi’s statement was corroborated
by forensic evidence and the accused’s admissions in terms of section 220 of the CPA.

The right to adduce and challenge evidence

[26] The right to a fair trial enshrined in section 35(3) of the Constitution
encompasses various fundamental rights, including the right to remain silent, and to
adduce and challenge evidence. In Molimi, this Court described the right to a fair trial
as follows:

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“[T]he right to a fair trial . . . ‘has to instil confidence in the criminal justice system
with the public, including those close to the accused, as well as those distressed by the
audacity and horror of crime’. . . . More importantly, proceedings in which little or no
respect is accorded to the fair trial rights of the accused have the potential to undermine
the fundamental adversarial nature of judicial proceedings and may threaten their
legitimacy.”6

[27] Although the concept of a fair trial is a cornerstone of our criminal law
jurisprudence, not every minor irregularity vitiates the right to a fair trial.7 In Zuma,
this Court expressed itself as follows on the nature of the irregularities that render a trial
unfair:

“The right to a fair trial . . . embraces a concept of substantive fairness which is not to
be equated with what might have passed muster in our criminal courts before
the Constitution came into force. In S v Rudman; S v Mthwana 1992 (1) SA 343 (A),
the Appellate Division, while not decrying the importance of fairness in criminal
proceedings, held that the function of a court of criminal appeal in South Africa was to
enquire—

‘whether there has been an irregularity or illegality, that is a departure

from the formalities, rules and principles of procedure according to
which our law requires a criminal trial to be initiated or conducted . . .
[A court of appeal] does not enquire whether the trial was fair in
accordance with “notions of basic fairness and justice”, or with the
“ideas underlying the concept of justice which are the basis of all
civilised systems of criminal administration”.’

That was an authoritative statement of the law before 27th of April 1994. Since that
date, section 25(3) has required criminal trials to be conducted in accordance with just
those ‘notions of basic fairness and justice’. It is now for all courts hearing criminal
trials or criminal appeals to give content to those notions.” 8

6
S v Molimi [2008] ZACC 2; 2008 (3) SA 608 (CC); 2008 (5) BCLR 451 (CC) at para 42.
7
S v Jaipal [2005] ZACC 1; 2005 (4) SA 581 (CC); 2005 (5) BCLR 423 (CC).
8
S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) at para 16. This was with reference
to section 25(3) of the interim Constitution, the predecessor of section 35 of the Constitution.

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[28] Section 35(3)(i) of the Constitution guarantees the right to adduce and challenge
evidence. In Ndhlovu, the Supreme Court of Appeal clarified that section 35(3)(i) does
not create an automatic right to cross-examine. The Supreme Court of Appeal said that:

“The Bill of Rights does not guarantee an entitlement to subject all evidence to
cross-examination. What it contains is the right (subject to limitation in terms of
section 36) to ‘challenge evidence’. Where that evidence is hearsay, the right entails
that the accused is entitled to resist its admission and to scrutinise its probative value,
including its reliability. The provisions enshrine these entitlements. But where the
interests of justice, constitutionally measured, require that hearsay evidence be
admitted, no constitutional right is infringed. Put differently, where the interests of
justice require that the hearsay statement be admitted, the right to ‘challenge evidence’
does not encompass the right to cross-examine the original declarant.”9

[29] There are instances, such as the present case, where challenging evidence
through cross-examination is impossible. In such circumstances, the notions of basic
justice and fairness demand that the admission of hearsay evidence in criminal
proceedings is done with caution, having regard to all the factors in the statutory test for
the admission of hearsay and the overriding consideration of the interests of justice.
This is particularly so where the decision on admission of the hearsay evidence is likely
to play a decisive role in whether the accused is convicted or acquitted.

Should the High Court have admitted Ms Dasi’s statement?

[30] Section 3(4) of the Hearsay Act defines hearsay as “evidence, whether oral or in
writing, the probative value of which depends upon the credibility of any person other
than the person giving such evidence”. Ms Dasi’s statement, as tendered by the State
through the oral evidence of Sergeant Msolo, is hearsay evidence. The State
successfully applied for the admission of this hearsay evidence in terms of
section 3(1)(c) of the Hearsay Act.

9
Ndhlovu above n 3 at para 24.

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[31] Section 3(1)(c) of the Hearsay Act provides as follows:

“(1) Subject to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings, unless—

...

(c) the court, having regard to—

(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon
whose credibility the probative value of such evidence
depends;
(vi) any prejudice to a party which the admission of such evidence
might entail; and
(vii) any other factor which should in the opinion of the court be
taken into account,
is of the opinion that such evidence should be admitted in the interests
of justice.”

[32] Hearsay evidence is inadmissible, unless the court is of the opinion that it is in
the interests of justice for it to be admitted, taking into account the factors referred to in
section 3(1)(c)(i) to (vii). The Supreme Court of Appeal in Ndhlovu held that
section 3(1)(c)’s criteria – which must be “interpreted in accordance with the values of
the Constitution and the ‘norms of the objective value system’ it embodies” – protects
against the unregulated admission of hearsay evidence and thereby sufficiently guards
the rights of accused.10 I turn to a consideration of the factors listed in section 3(1)(c).

The nature of the proceedings

[33] It is more likely that hearsay evidence will be admitted in civil proceedings than
in criminal proceedings – this is “because of [the] presumption of innocence, and the

10
Id at para 16.

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courts’ intuitive reluctance to permit the untested evidence to be used against the
accused in a criminal case”.11 The nature of the proceedings under appeal in this matter,
namely a criminal trial, militates against admission.

The nature of the evidence

[34] The statement contained information about the criminal acts allegedly
perpetrated by the accused; a single witness provided the statement; the statement
described a crowded and traumatic scene in which the witness was herself allegedly
assaulted; and the investigating officer who took the statement already had suspects in
mind. The cautionary rule is applicable because the statement identified the accused
and was made by a single witness. That Ms Dasi’s statement was the only evidence
which the State could tender on the identification of the perpetrators, was known at the
time the High Court was called upon to decide upon its admissibility. It was thus known
that the decision on the admission of the statement was likely to be decisive in whether
the applicant was convicted or acquitted.

[35] The cautionary rule requires that courts treat evidence as to the identity of the
accused person with caution, as eyewitness identifications are notoriously fallible and
prone to error. This is especially so in this matter because Ms Dasi was a single witness.
In Mthetwa the Appellate Division held that—

“[i]t is not enough for the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various factors, such as lighting,
visibility, and eyesight; the proximity of the witness; his opportunity for observation,
both as to time and situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility; the accused’s face, voice, build,
gait, and dress; the result of identification parades, if any; and, of course, the evidence
by or on behalf of the accused. The list is not exhaustive. These factors, or such of
them as are applicable in a particular case, are not individually decisive, but must be
weighed one against the other, in the light of the totality of the evidence.”12

11
Metedad v National Employers’ General Insurance Co Ltd 1992 (1) SA 494 (W) at 499.
12
S v Mthetwa 1972 (3) SA 766 (A) at 768. This was reiterated in S v Miggel 2007 (1) SACR 675 (C) at 678.

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[36] Ms Dasi’s statement should not have been admitted without proper application
of the cautionary rule. This rule is premised upon the accused’s right to a fair trial.
Although oral identificatory evidence is not, as a general rule, inadmissible, the
reliability of a witness testifying as to the identification of an accused must be
considered in light of the evidence as a whole. The High Court in this matter did not
take into account the circumstances under which Ms Dasi’s observations, as contained
in her statement, were made. The cautionary rule was mentioned but not applied in
respect of the evidence, as is required by law. The cautionary rule impacts upon the
assessment of the reliability and probative value of the statement under the
section 3(1)(c) enquiry. Where a single witness as to identification testifies orally, the
accused has the opportunity to test all the matters calling for caution. This opportunity
does not exist where such evidence is received in hearsay form.

[37] The High Court paid lip service to the cautionary rule. Ms Dasi’s evidence was
the only evidence identifying the applicant as an assailant. This fact was overlooked by
the High Court. The finding of the High Court cannot be the one as envisaged in
section 208 of the CPA.13 It is evident that the contents of her statement did not meet
the requirements of section 208. The deficiencies in the statement, considered
holistically, reveal a wanting version. It is difficult to get a chronological sequence as
to what exactly happened.

[38] In Lubaxa it was held that what a fair trial entails must be determined by the
circumstances of each case.14 The circumstances of this case required independent
corroborative evidence on the identification issue, in particular the presence of the
applicant when the assaults were perpetrated and his involvement therein.

13
Section 208 of the CPA reads that “[a]n accused may be convicted of any offence on the single evidence of any
competent witness”.
14
S v Lubaxa [2001] ZASCA 100; 2001 (4) SA 1251 (SCA) at para 21.

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The purpose for which the evidence was adduced

[39] The State tendered the evidence to link the accused to the crime. In other words,
the evidence was adduced for purposes of proving the guilt of the accused in
circumstances where, but for the hearsay evidence, the accused would have been
acquitted. The absence of other eyewitness evidence indicates a failure by the State to
discharge its onus. The fact that the State does not have such evidence is not a
justification for allowing the admission of hearsay evidence. It is of no legal
significance, in considering whether to admit evidence, how important a party regards
a piece of evidence for the bolstering of its own case.

The probative value of the evidence

[40] The Supreme Court of Appeal in Ndhlovu defined “probative value” in the
following terms:

“‘Probative value’ means value for purposes of proof. This means not only, ‘what will
the hearsay evidence prove if admitted?’, but ‘will it do so reliably?’ In the present
case, the guarantees of reliability are high. The most compelling justification for
admitting the hearsay in the present case is the numerous pointers to its truthfulness.”15

[41] The enquiry also encompasses the extent to which the evidence is considered to
be reliable as well as the exercise of balancing the probative value of the evidence
against its prejudicial effect.

[42] There are a host of factors relevant to the reliability question, namely: (a) any
interest in the outcome of the proceedings by the witness; (b) the degree to which it is
corroborated or contradicted by other evidence; (c) the contemporaneity and
spontaneity of the hearsay statement; and (d) the degree of hearsay.16

15
Ndhlovu above n 3 at para 45.
16
Schwikkard and van der Merwe Principles of Evidence 4 ed (Juta & Co Ltd, Cape Town 2016) at 298.

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[43] Ms Dasi’s statement only accounts for a short period of time on the day in
question. The deceased was fetched from his grandmother’s house on the Sunday
morning. According to Ms Dasi’s statement, she got home around 16h00 and followed
the white car to the applicant’s house, where she would have arrived a little after 16h00.
The deceased was declared dead at 17h08. Before then, accused 4 had to carry the
deceased from the applicant’s house to Ms Bungane’s house, and the ambulance had to
be called. Therefore, on Ms Dasi’s version, she would only have been observing events
at the applicant’s house for about half an hour, say from 16h15 to 16h45. Though
the State did not prove the exact time that the deceased was fetched in the morning,
there are a number of hours that are unaccounted for before Ms Dasi arrived and during
which the deceased is likely to have been in the hands of community members.

[44] The post-mortem report does not exclude, as a reasonable possibility, that the
fatal wounds were administered before Ms Dasi arrived on the scene. If that is a
reasonable possibility, there is no evidence that the applicant was present or made
common cause with the persons who perpetrated the fatal assault. In the circumstances,
and even if it is assumed that Ms Dasi’s observations were honest and reliable, her
statement was not calculated to establish that the applicant (or any other persons whom
Ms Dasi named) were the persons responsible for the deceased’s death.

[45] The reliability of the statement in respect of identification is questionable.

Sergeant Msolo already had the applicant’s name as a suspect when he interviewed
Ms Dasi. On his own admission, Sergeant Msolo did not test the reliability of her
version, particularly as it related to the identification of the accused persons. He did not
establish whether there was sufficient lighting to enable Ms Dasi to observe events
clearly (for example, whether the door and curtains were open) or whether Ms Dasi had
previous knowledge of the accused persons.

[46] Ms Dasi was not an independent witness. She was the deceased’s girlfriend and
the complainant in count 9. She had an interest in the outcome of the proceedings. On
its own, this cannot vitiate the reliability of her evidence. I have had the benefit of

15
 MBATHA AJ

reading the judgment of my Brother Majiedt J (second judgment). I agree that there is
nothing untoward about a victim seeking justice for themselves and their loved ones.
However, Ms Dasi’s independence is a relevant consideration in the enquiry into the
probative value of her statement and, taken together with the other factors, militates
against a finding of reliability.

The reason evidence was not given by Ms Dasi

[47] Ms Dasi died before the commencement of the trial. We cannot speculate
whether she would have confirmed, disavowed or corrected her statements materially
if she had survived to testify. We do know, however, that the only other alleged
eyewitness, Mr May, repudiated his statement, and his evidence was thus expunged.

Prejudice to the applicant

[48] Ms Dasi’s statement must be weighed against the prejudice occasioned to the
accused person, if admitted. I accept that the mere fact that evidence strengthens the
prosecution’s case does not render it prejudicial to an accused. Ndhlovu states:

“A just verdict, based on evidence admitted because the interests of justice require it,
cannot constitute ‘prejudice’. . . . Where the interests of justice require the admission
of hearsay, the resultant strengthening of the opposing case cannot count as prejudice
for statutory purposes, since in weighing the interests of justice the court must already
have concluded that the reliability of the evidence is such that its admission is necessary
and justified. If these requisites are fulfilled, the very fact that the hearsay justifiably
strengthens the proponent’s case warrants its admission, since its omission would run
counter to the interests of justice.”17

[49] However, the Court in Ndhlovu emphasised that—

17
Ndhlovu above n 3 at para 50.

16
 MBATHA AJ

“prejudice is always present when hearsay is admitted. It must be weighed against the
reliability of the hearsay in deciding whether, despite the inevitable prejudice, the
interests of justice require its admission.”18

[50] The prejudice occasioned to the applicant by the admission of Ms Dasi’s

statement is significant – it played a decisive role in his conviction. This is clear because
all evidence, apart from the hearsay statement, applied equally to the murder of the
second deceased, of which the applicant was acquitted. Further, although the right to
adduce and challenge evidence does not create an automatic right to cross-examine,
Ms Dasi’s statement was, for the reasons outlined in the discussion on its probative
value, of a sort that would have been susceptible to significant challenge under
cross-examination. This increases the prejudice occasioned to the applicant by the
statement’s admission.

Any other factor

[51] The applicant also raised an objection to the admissibility of Ms Dasi’s statement
on another ground – what I term “the language issue”. He argued that Ms Dasi’s
statement did not comply with regulation 2(1)(a) of the Regulations19 promulgated in
terms of section 10 of the Justices of the Peace and Commissioners of Oaths Act.20 This
regulation states that a deponent must be able to confirm that she “knows and
understands the content of the declaration”. The contention here is that, because there
was no qualified interpreter when the statement was taken, it is unclear that the English
recordal is an accurate statement of what Ms Dasi said in isiXhosa or of what
Sergeant Msolo translated back to her in isiXhosa.

[52] As an independent objection to the validity of the statement, this argument is of

no moment. Although Ms Dasi’s statement may not qualify as a valid affidavit in light
of the regulation in question, the admissibility of the hearsay statement does not depend

18
Id at para 49.
19
Regulations in terms of section 10, GN R1258 GG 3619, 21 July 1972 (as amended).
20
16 of 1963.

17
 MBATHA AJ

on whether or not Ms Dasi’s statement qualified as a valid affidavit. The hearsay

evidence was in fact Sergeant Msolo’s testimony as to what Ms Dasi told him and that
testimony does not depend on whether Ms Dasi’s statement was a valid affidavit.

[53] However, for the purposes of assessing whether or not the statement should have
been admitted, the language issue becomes relevant. It is unsettling that Ms Dasi’s
statement was recorded in a language that she did not understand. Her signing of the
statement was not, in the circumstances, a satisfactory guarantee of her adoption of the
English version recorded by Sergeant Msolo.

The interests of justice

[54] A court must be of the opinion that it is in the interests of justice for the hearsay
evidence to be admitted. The provisions of section 3(1)(c) each require consideration
in order to limit prejudice to the accused, and all the factors must be considered
cumulatively.

[55] Section 3 of the Hearsay Act is qualified by the opening words of the section
which provide that it is “subject to the provisions of any other law”. Therefore, the
ordinary rules of evidence apply. It is clear that the case brought against the applicant
in the High Court was based on the uncorroborated identificatory evidence of a single
witness, Ms Dasi.

[56] Ms Dasi may have been honest but, in the absence of cross-examination, the
High Court was not in a position to assess her honesty. However, and assuming that
she was honest, there were still major shortcomings in her statement.
The Supreme Court of Appeal, in Shaik, reasoned that although the accused whose
hearsay evidence was under consideration in that case was unreliable or dishonest in
general, it did not follow that they were unreliable or dishonest in respect of the content
of the hearsay statement in that case.21 Ms Dasi’s statement did not deal with the

21
S v Shaik [2006] ZASCA 105; 2007 (1) SA 240 (SCA) at para 174.

18
 MBATHA AJ

visibility at the scene (perhaps because Sergeant Msolo did not ask her) nor whether she
had sufficient opportunity to observe the events, given the number of role players in the
room. The statement says that she was assaulted with a chisel on her head.
Sergeant Msolo’s evidence in this regard contradicted Ms Dasi’s. He said that she had
no injuries when he interviewed her. Because Ms Dasi’s statement falls short on the
aforementioned safeguards, her evidence lacks reliability. The utility of the statement
was limited to further investigation by Sergeant Msolo.

[57] Notwithstanding the extensive references to what each accused person did to the
deceased, it is doubtful that she could have had the opportunity to observe about
12 people and be precise about each and everyone’s role in the assault in a highly
charged scene in which she was allegedly assaulted. That the recollection of the names
of the assailants was made with such precision, in the absence of an explanation of how
she knew them, is questionable. In her statement, Ms Dasi stated that by the time she
arrived the second deceased was already being assaulted and was bleeding. She gave a
blow-by-blow account of the assault on both of the deceased by various persons. Her
ability to closely observe these simultaneous assaults was not explained. Furthermore,
it was never established how close in proximity she was to the deceased persons, as it
appears that there were many assailants in the room. These are among the matters which
a cross-examiner would have explored, and quite probably exploited to good effect, had
Ms Dasi survived to give oral evidence.

[58] Courts are generally hesitant to admit hearsay evidence that is decisive in
convicting an accused. The Supreme Court of Appeal in Ndhlovu stated that “admitting
or relying on hearsay evidence which plays a decisive or even significant part in
convicting an accused” should only be done “if there is compelling justification for
doing so”.22 Ms Dasi’s statement played a decisive role in convicting the applicant. It
ascribed an active role to the applicant in respect of the murder of the deceased, but did
not do so in respect of the murder of the second deceased. It was on this basis that the

22
Ndhlovu above n 3 at para 39, relying on S v Ramavhale [1996] ZASCA 14; 1996 (1) SACR 639 (SCA) at 649.

19
 MBATHA AJ

High Court acquitted the applicant of the murder of the second deceased. In other
words, the presence of bloodstains, the DNA evidence of the second deceased’s blood
in the applicant’s house, and the fact that the applicant did not testify were not regarded
by the High Court as justifying the applicant’s conviction on count 6.

[59] Implicit in the provisions of section 3(1)(c) is that there should be a cumulative
consideration of all the factors in arriving at a conclusion as to whether it is in the
interests of justice to admit the hearsay. This was confirmed by this Court in Molimi.23
In the absence of direct evidence, the trial court ought to have been alive to the dangers
posed by the admission of the hearsay evidence.

[60] The High Court relied upon what Ms Dasi allegedly told Sergeant Msolo about
where the various persons mentioned in her statement resided, when he was taking her
home. There was, however, no section 3(1)(c) application brought by the State to admit
this hearsay evidence. Therefore, Ms Dasi’s pointing-out evidence should not have
been considered at all. The alleged pointing-out did not amount to corroboration of
Ms Dasi’s statement.

[61] Ms Bungane’s testimony is of no assistance as to the identification of the

applicant as he was not amongst the persons who fetched the deceased. Ms Bungane
knew all the accused persons before the High Court and could have identified the
applicant if he was amongst those who fetched the deceased from his home.

[62] It appears that the High Court did not have regard to Mhlongo24 when it relied
on the warning statements of the applicant’s co-accused as corroborative evidence.
This Court held that extra-curial admissions of an accused person are inadmissible
against their co-accused and that such an admission violates the co-accused’s rights to
equality before the law and equal protection of the law.25

23
Molimi above n 6 at para 35.
24
S v Mhlongo; S v Nkosi [2015] ZACC 19; 2015 (2) SACR 323 (CC); 2015 (8) BCLR 887 (CC).
25
Id at para 44. See also Litako v S [2014] ZASCA 54; 2015 (3) SA 287 (SCA) at paras 53-4.

20
 MBATHA AJ

[63] The DNA evidence established two undisputed facts: that the blood samples
taken from the applicant’s house were a match to the two deceased persons and that the
assault took place at the house of the applicant. However, the mere presence of the
deceased persons’ blood in the applicant’s house is not enough to conclude that the
applicant was present during the assault or participated in the assault in furtherance of
a common purpose. The true issues at the trial concerned the identification of the
perpetrators, and not the fact that the two deceased persons were assaulted at the
applicant’s house.

[64] In the second judgment, emphasis is placed on the fact that the deceased’s body
had tramline injuries consistent with the applicant having hit the deceased with a
golf club. The second judgment opines that Ms Dasi “would have to have had direct
knowledge (or received peculiarly accurate second-hand information) of the kinds of
wounds sustained by the deceased for the narrative in her statement to accord in such
significant detail with the post-mortem report”. In my view, this observation overstates
the extent to which the post-mortem report corroborates Ms Dasi’s statement. The
second judgment assumes that Ms Dasi did not see the effects of the injuries suffered
by her boyfriend. However, her own statement says that she accompanied accused 4 to
Ms Bungane’s house, where the deceased was certified dead at 17h08. So she could
quite plausibly have seen what injuries the deceased sustained. Furthermore, her
statement identifies several persons who allegedly assaulted the deceased with stick-like
objects. At different times, according to her, “Azizo” and then the applicant struck the
deceased with a “golf stick” while on another occasion “Bongane” struck the deceased
with a hockey stick. And ultimately, the question is not whether the statement could
reliably prove that the deceased was struck with a rod-like object but whether it could
reliably prove that the perpetrators of those particular assaults were the persons she
named.

21
 MBATHA AJ

Failure to testify

[65] The High Court found that the applicant’s failure to testify in the face of the
prima facie evidence against him, led that evidence to be proof beyond a reasonable
doubt. Before the advent of the Constitution, the Appellate Division expressed itself as
follows in Mthetwa, which was quoted with approval in Chabalala:

“Where . . . there is a direct prima facie evidence implicating the accused in the
commission of the offence, his failure to give evidence, whatever his reason may be
for such failure, in general, ipso facto tends to strengthen the State’s case, because there
is nothing to gainsay it, and therefore less reason for doubting its credibility or
reliability.”26

[66] Similarly, in Boesak,27 this Court, having stated that an accused person who
chooses to remain silent in the face of evidence calling for an explanation runs the risk
that the court may well be entitled to conclude that the evidence is sufficient for a
finding of guilt, warned that whether such a conclusion is justified will depend on the
weight of the evidence.28

[67] The right to a fair trial includes the right “to be presumed innocent, to remain
silent, and not to testify during the proceedings”.29 Accused persons have the right not
to testify but, if they elect not to, they run the risk of leaving the State’s case unrebutted.
However, “[t]he failure to testify does not relieve the prosecution of its duty to prove
guilt beyond reasonable doubt”.30 In Hlongwa, it was held that “the accused’s silence
adds nothing to the strength of the prosecution case. What it does is no more than to

26
Mthetwa above n 12 at 769D quoted with approval in S v Chabalala 2003 (1) SACR 134 (SCA) at para 20.
27
S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC).
28
Id at para 24.
29
Section 35(3)(h) of the Constitution.
30
Osman v Attorney-General, Transvaal [1998] ZACC 14; 1998 (4) SA 1224 (CC); 1998 (11) BCLR 1362 (CC)
at para 22.

22
 MBATHA AJ / MAJIEDT J

leave the prosecution case undisturbed by any evidence that either challenges it or
explains it away.”31

[68] The High Court held that the evidence showed that the applicant’s house was the
scene of the crime and required an answer from him. However, the basis on which the
Court placed the applicant at the scene of the crime and concluded that he had made
common purpose with the deceased’s assailants was Ms Dasi’s statement. If the
admission of Ms Dasi’s statement was incorrect (as is my view), the remainder of the
evidence presented by the State against the applicant was insufficient to prove the guilt
of the applicant beyond a reasonable doubt. The State’s counsel made a guarded
concession to this effect during the hearing. The applicant’s election not to testify,
therefore, cannot be detrimental to his case.

[69] Accordingly, had I commanded the majority, I would have upheld the appeal and
set aside the conviction and sentence.

MAJIEDT J (Kollapen J, Madlanga J, Mathopo J, Mhlantla J and Tshiqi J concurring):

[70] I have had the pleasure of reading the judgment of my Sister, Mbatha AJ
(first judgment). I agree on the granting of condonation. Save for what I say in relation
to the appeal against sentence, I agree that the appeal against the applicant’s conviction
engages our jurisdiction and that the interests of justice require that we grant leave to
appeal. In respect of the appeal against the conviction, this Court’s jurisdiction is
engaged on the basis that there is sufficient evidence on record to suggest, prima facie,
that there may have been a serious breach of section 35 of the Constitution.32 In
addition, I am of the view that it is in the interests of justice for this Court to hear the
appeal against the conviction. This is because the question of when it is in the interests

31
S v Hlongwa 2002 (2) SACR 37 (T) at para 45.
32
Compare S v Van der Walt [2020] ZACC 19; 2020 (2) SACR 371 (CC); 2020 (11) BCLR 1337 (CC) at para 15.

23
 MAJIEDT J

of justice to admit hearsay evidence in terms of section 3(1)(c) of the Hearsay Act – the
central issue in this case33 – is clearly of sufficient interest beyond those of the parties
in this case. In this case, that admissibility question concerns, in the main, the probative
value of Ms Dasi’s statement.

[71] As regards the application for leave to appeal against sentence, it is clear from
this Court’s judgment in Van der Walt that in order for the Court to entertain an appeal
against sentence, the appeal must either raise a constitutional issue or it must raise an
arguable point of law of general public importance which the Court ought to consider.34

[72] The main thrust of the applicant’s argument is that the High Court should have
deviated from the prescribed minimum sentence due to his personal circumstances
which, according to him, mitigated against imposition of the prescribed minimum
sentence. The applicant argues that the High Court, instead, “[paid] lip service to the
Zinn triad”.35 This is so, according to the applicant, because the High Court
overemphasised the seriousness of the crime, the applicant’s role in the commission of
the crime, and failed to consider the interests of society. The sum of the applicant’s
argument, thus, is that the High Court did not evaluate and weigh the facts or evidence
placed before it in a satisfactory manner.

[73] It is clear from the above that the appeal against the sentence does not raise an
arguable point of law, let alone one of general public importance which this Court ought
to consider. Consequently, the Court’s extended jurisdiction is not engaged and nothing
more needs to be said on that score. The question becomes whether it engages
the Court’s constitutional jurisdiction.

33
The first judgment correctly confines its deliberations to this aspect. The other grounds argued for the setting
aside of the conviction were all unmeritorious and require no consideration at all.
34
Van der Walt above n 32 at paras 18-21.
35
In S v Zinn 1969 (2) SA 537 (A) at 540G, the Court held that what has to be considered, when determining the
suitable sentence in each circumstance, is “the triad consisting of the crime, the offender and the interests of
society”.

24
 MAJIEDT J

[74] In Bogaards, this Court held that:

“[A]bsent any other constitutional issue, the question of sentence will generally not be
a constitutional matter. It follows that this Court will not ordinarily entertain an appeal
on sentence merely because there was an irregularity; there must also be a failure of
justice. Furthermore, this Court does not ordinarily hear appeals against sentences
based on a trial court’s alleged incorrect evaluation of facts. For instance, this Court
will not, in the ordinary course, hear matters in relation to sentence merely because the
sentence was disproportionate in the circumstances. Something more is required.”36
(Emphasis added.)

[75] The Court, albeit in a footnote, then states that “[s]ome irregularities are
considered per se failures of justice. These are irregularities which are so gross a
departure ‘from established rules of procedure that it can be said that the appellant was
not properly tried’.”37 As is clear from the applicant’s argument as summed up above,
he simply takes issue with the High Court’s evaluation of the facts; there is no indication
or a suggestion of a failure of justice, actual or otherwise. Consequently, the appeal
against sentence does not engage the Court’s constitutional jurisdiction and leave to
appeal against the sentence falls to be refused. I discuss next the merits on conviction.

[76] My Sister has set out the material facts in substantial detail and I gratefully adopt
that exposition. For purposes of emphasis and context, I may repeat some of them or
elaborate, where necessary. The first judgment correctly accepts that this incident
emanated from an apparent act of vigilantism. Plainly, the High Court convicted
the applicant primarily on the strength of Ms Dasi’s statement. This view is supported
by the following:

36
S v Bogaards [2012] ZACC 23; 2013 (1) SACR 1 (CC); 2012 (12) BCLR 1261 (CC) at para 42. The “any other
constitutional issue” must be an issue relating to sentence as was the case in Bogaards. See also Van der Walt
above n 32 at paras 18-21.
37
Bogaards id at fn 41.

25
 MAJIEDT J

(a) The only evidence that pertinently related to the role that the applicant
directly played in the murder of the deceased and in the death of the
second deceased was the statement of Ms Dasi.

(b) Ms Dasi’s statement attributed an active role to the applicant in the death
of the deceased and little to no role at all in the death of the
second deceased.

(c) As a result, and notwithstanding the fact that both deceased persons’
blood was found at the applicant’s house and that both were suspected of
having stolen the applicant’s property, the Court found the applicant
guilty of the murder of the deceased and acquitted him in respect of the
murder of the second deceased.

[77] The provisions of section 3(1)(c) of the Hearsay Act have been set out in the
first judgment. The factors listed in section 3(1)(c) must be viewed holistically and
weighed collectively in determining whether it is in the interests of justice to admit the
hearsay evidence.38 The factors that bear consideration when a court is determining
whether it is in the interests of justice for the statement to be admitted are:

(a) the nature of the proceedings;

(b) the nature of the evidence;
(c) the purpose for which the evidence is tendered as evidence;
(d) the probative value of the evidence;
(e) the reason why the evidence is not given by Ms Dasi;
(f) any prejudice which the admission of the evidence might entail for the
applicant; and
(h) any other factor which should, in the opinion of the court, be taken into
account.

38
Schwikkard and van der Merwe above n 16 at 298.

26
 MAJIEDT J

Nature of the proceedings

[78] It is has been suggested that the likelihood of hearsay evidence being admitted
in civil application proceedings is greater than in criminal trial; and it is least likely to
be admitted in criminal proceedings.39 Here, the nature of the proceedings self-
evidently militates against admission.

Nature of the evidence

[79] In essence, the enquiry under this rubric is, first, the extent to which the evidence
can be considered reliable; and, second, the weighing of the probative value of the
evidence against its prejudicial effect.40

[80] There are a number of factors relevant to the reliability question, namely:

(a) any interest in the outcome of the proceedings by the witness;

(b) the degree to which it is corroborated or contradicted by other evidence;
(c) the contemporaneity and spontaneity of the hearsay statement; and
(d) the degree of hearsay.41

[81] In Savoi, this Court explained that courts’ aversion to hearsay evidence stems
from its general unreliability as it is not subject to the reliability checks applicable to
other evidence – such as cross-examination – and as its nature makes it difficult for a
party to effectively counter inferences drawn from it.42 This Court noted, however, that
notwithstanding hearsay evidence being untested, and despite the possibility of risks of
faulty memory or erroneous perception, insincerity or ambiguities in narration, hearsay
evidence may prove to be reliable.43

39
Id at 296. This is “because of the presumption of innocence, and courts’ intuitive reluctance to permit the
untested evidence to be used against the accused in a criminal case”. See also Ndhlovu above n 3 at para 16.
40
Schwikkard and van der Merwe above n 16 at 298.
41
Id.
42
Savoi above n 3 at para 38, quoting Ndhlovu above n 3.
43
Savoi id at paras 42-6.

27
 MAJIEDT J

[82] Ms Dasi arguably had an interest in the deceased’s killers being brought to
book,44 which in principle adversely affects the reliability of her evidence. However,
that interest must be viewed in the context of seeking justice for a loved one. There is
nothing untoward in seeking justice in those circumstances, indeed it is to be expected.
Attributing any measure of potential bias to her as a factor adverse to the probative
value of her statement is based purely on conjecture and is misplaced. Furthermore,
there is corroboration of her evidence, an aspect to be addressed presently.

[83] In respect of the contemporaneity and spontaneity of the hearsay statement, it

must be borne in mind that the statement was taken two days after the events occurred.
Like reliability, probative value is enhanced by the existence of admissible evidence
which is consistent with the hearsay evidence.45 Ms Dasi’s statement has significant
probative value to the extent that it is corroborated by circumstantial evidence.
However, it is true that, given that hers is the only version of the assault itself, its
probative value diminishes in this respect.

The purpose of the evidence

[84] Ms Dasi’s statement was the only available eyewitness account. One eyewitness
inexplicably disappeared. The other recanted his statement while testifying. Ms Dasi’s
statement fulfils two main important functions. In the first instance, it serves to identify
the parties that were involved. In the second, it serves to tell the court the role that each
party played in the assault and murder of the victims. It thus plays a significant part in
the matter.

The probative value of the evidence

[85] In Ndhlovu, “probative value” was defined in the following terms:

44
The deceased, Mr Bungane, was her boyfriend.
45
Schwikkard and van der Merwe above n 16 at 299.

28
 MAJIEDT J

“‘Probative value’ means value for purposes of proof. This means not only, ‘what will
the hearsay evidence prove if admitted?’, but ‘will it do so reliably?’ In the present
case, the guarantees of reliability are high. The most compelling justification for
admitting the hearsay in the present case is the numerous pointers to its truthfulness.”46
(Emphasis added.)

[86] In order for Ms Dasi’s statement to be reliable or for it to have probative value
in its entirety, it is not required that every material aspect of the statement must be
corroborated. The requirement is that there must either be corroboration of every
material aspect of the statement or corroboration of a significant number of material
aspects. In the latter instance, all the aspects of the statement that have not been
corroborated by other pieces of evidence, first, cannot contradict other objectively
proven facts and, second, must fit into the picture that has been established by all of the
other objectively proven facts. The fact that Ms Dasi’s statement is corroborated by
other witnesses’ testimony and the objective medical evidence point to its truthfulness,
reliability, and probative value.

[87] Ms Dasi’s account of events is based on first-hand experiences – she was present
at the scene and she alleged that she was one of those being assaulted. This is
undisputed. This was an extraordinary event and of considerable importance to her; she
witnessed her boyfriend being seriously assaulted and she was allegedly also on the
receiving end of the assault. This would have impressed upon her the importance of
noting who did what and to whom at the scene.

[88] The corroboration of her first-hand account, outlined in the impugned statement,
consists of other compelling circumstantial evidence:

(a) Ms Bungane’s testimony, to the extent that she recalls Mr Makoma’s

admission of having collected the deceased from the applicant’s house;
(b) Mr Makoma’s statement recording some knowledge of assaults occurring
at the applicant’s house; seeing multiple victims there with signs of

46
Ndhlovu above n 3 at para 45.

29
 MAJIEDT J

assault and that the deceased had been collected from the applicant’s
house;
(c) the post-mortem report;
(d) the blood spatter evidence; and
(e) the DNA evidence confirming that the blood found at the applicant’s
house belonged to the deceased.

[89] I commence with the extracts from the post-mortem report. The pathologist
report of Dr Inglis records:

“The following was noted on external examination of the body. Abrasions were noted
to the face and forehead. Multiple lacerations of the scalp were present. Extensive
circumferential swelling and bruising of both arms were present. Extensive swelling
and bruising of both lower legs were present. Tramline bruises were present on the
posterior and lateral aspects of the left thigh. Multiple abrasions were present on both
arms, both thighs and both legs. Multiple lacerations were present on both shins.
Extensive bruising and scattered abrasions were present on the lower back. On internal
examination of the body traumatic subarachnoid haemorrhage of the brain was present.
Haemorrhage was noted into the eighth intercostal muscle on the left.”

As a result of her observations, Dr Inglis then concludes that—

“the cause of death was consistent with extensive blunt-force injury to the head and
body and the consequences thereof.”

[90] Dr Inglis testified:

“[T]he bruises noted to the arms and the legs and the lower back as well as the
lacerations on the scalp and then all the multiple abrasions . . . these are all consistent
with the application of a blunt force to the body. There were two wounds that were a
bit different in their pattern . . . . [These are described in the report] as tramline bruises
or they’re also known as a railway bruise. . . . [A] tramline bruise is typically two
parallel bruises with a centre that is spared in the middle. And these wounds are

30
 MAJIEDT J

typically caused as a result of a rod-like object. An everyday example would be the

top part of the stick of the broom.”

[91] The injuries and the objects that may have caused them, as described by Dr Inglis
in her report and oral testimony, are consistent with the events described by Ms Dasi in
her statement. Ms Dasi’s statement in relevant part, reads:

“I did saw Makhuze [the deceased] desisting [sitting]. Both hands were tied up with a
rope. Also his legs were tied up with yellow-and-black rope. They did took off his
trouser. Bongane was carrying a plank hockey stick, busy beating Makhuze on his
hands. Azizo was carrying a silver golf stick, hitting Makhuze over his head. Makhi
[the applicant] did pull Makhuze to other room as he was bleeding over his hedge
[head] and mouth. . . . Big also did came inside the room and hit Makhuze with sjambok
over his face. Makhi also hit Makhuze with golf stick over his body. Bongane also hit
Makhuze with empty bottle over his head. Anele did stepped Makhuze on other leg
twice and Anele did hit Makhuze with chisel on other leg four times.”

[92] In respect of the blood spatter at the applicant’s house, Sergeant Msolo testified
that:

“I requested Captain Joubert from the Plattekloof lab to go to [the applicant’s house]
. . . where the alleged offence took place. I requested him to go and see whether there
was any blood or anything that he might [find] there. He did go there during one night.
. . . Captain Joubert told me that he did find some blood on the tiles on the floor and
also on the walls were red that was also already washed off.”

[93] Captain Joubert, in a report headed “Bloodstains and bloodstain patterns

observed at the scene”, concluded:

“17.1 The mechanisms responsible for the deposition of these bloodstains, B1 to B7,
when considered contextually, the bloodstains may have been created due to
the following mechanisms and/or a combination thereof. Impact resulting
from force applied to a blood source or sources, like wounds of the victim,
expirated bloodstains when the victim exhaled blood from the victim’s
respiratory system (mouth and nose) during the incident, which resulted in

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blood being deposited onto the living room wall, or projected an object covered
with the victim’s blood, blood projected from an object in motion which
resulted in blood being deposited onto living room wall.

17.2 Diluted bloodstains documented in bathroom, B8, B9, B10, may indicate the
following. Area cleaned after blood-shedding events and/or blood was
transferred from the soles of a shoe or shoes or other objects contaminated with
blood, which resulted in blood being deposited or transferred onto bathroom
floor and/or diluted blood accumulated on tile areas.”

[94] DNA analysis was later conducted on the blood samples collected at the scene
and the results revealed that the blood in question belonged to the two deceased.

[95] As regards the post-mortem report, in particular, Ms Dasi would have to have
had direct knowledge (or received peculiarly accurate second-hand information) of the
kinds of wounds sustained by the deceased for the narrative in her statement to accord
in such significant detail with the post-mortem report. That report, supporting
Ms Dasi’s statement, concomitantly undergirds, to a large extent, Ms Dasi’s version as
it lends credence to her being at the scene during the alleged assault of the deceased and
honestly and reliably having witnessed the events. In fact, Ms Dasi’s statement is
uncontroverted. The only respect in which the statement is not directly supported by
other evidence is in identifying the applicant as present at the scene of the alleged crime.
That appears to be the principal basis on which the first judgment holds that the
applicant’s conviction is legally unsound.

[96] As I understand it, the first judgment holds that Ms Dasi’s statement has limited
probative value that is confined to the fact that—

(a) the deceased was assaulted at the home of the applicant (corroborated by
the forensic evidence); and
(b) that the deceased was assaulted with a golf club or similar blunt
instrument (corroborated by the post-mortem report).

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[97] The first judgment also holds that Ms Dasi’s statement does not reliably prove
that the applicant was the assailant; or that the applicant actively associated with other
assailants in the assaults; or even reliably places the applicant at the scene of the assaults
at the relevant time. It also finds that Ms Dasi’s evidence is defective in a further
respect, that her statement only accounts for a small portion of the time during which
the deceased was away from home.

[98] In this approach, the first judgment impermissibly evaluates the probative value
of the statement in a piecemeal fashion. It should instead apply a holistic approach,
assessing whether on the whole the statement was of adequate probative value in light
of all of the other circumstantial evidence taken together. Approached in this way, the
outcome must be different.

The reason why the evidence is not being given by Ms Dasi

[99] The reason the State seeks to rely on the statement is because Ms Dasi sadly
passed on before the trial commenced.

The prejudice occasioned to the accused

[100] The prejudice occasioned to the applicant as an accused person by the admission
of the hearsay evidence is significant. The accused was deprived of an opportunity to
cross-examine the witness, which could have shed light on the credibility and reliability
of the witness, her powers of observation, and so forth.

[101] The Supreme Court of Appeal in Ndhlovu considered whether the admission of
hearsay evidence in itself violates the constitutional right to challenge evidence as
entrenched in section 35(3)(i) of the Constitution and, consequently, the right to a
fair trial. The Court held that the criteria in section 3(1)(c) – which must be “interpreted
in accordance with the values of the Constitution and the ‘norms of the objective value
system’ it embodies” – protects against the unregulated admission of hearsay evidence

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and thereby sufficiently guards the rights of an accused.47 The Supreme Court of Appeal
emphasised:

“The Bill of Rights does not guarantee an entitlement to subject all evidence to
cross-examination. What it contains is the right (subject to limitation in terms of
section 36) to ‘challenge evidence’. Where that evidence is hearsay, the right entails
that the accused is entitled to resist its admission and to scrutinise its probative value,
including its reliability. The provisions enshrine these entitlements. But where the
interests of justice, constitutionally measured, require that hearsay evidence be
admitted, no constitutional right is infringed.”48

[102] It bears emphasis that the fact that the evidence in question evidently strengthens
the prosecution’s case does not render the evidence prejudicial to an accused. In this
regard, the Supreme Court of Appeal in Ndhlovu held:

“The suggestion that the prejudice in question might include the disadvantage ensuing
from the hearsay being accorded its just evidential weight once admitted must however
be discountenanced. A just verdict, based on evidence admitted because the interests
of justice require it, cannot constitute ‘prejudice’. Where the interests of justice require
the admission of hearsay, the resultant strengthening of the opposing case cannot count
as prejudice for statutory purposes, since in weighing the interests of justice the court
must already have concluded the reliability of the evidence is such that its admission is
necessary and justified. If these requisites are fulfilled, the very fact that the hearsay
justifiably strengthens the proponent’s case warrants its admission, since its omission
would run counter to the interests of justice.”49 (Emphasis added and footnotes
omitted.)

[103] There can hardly be any doubt that the applicant is being substantially prejudiced
by the admission of the statement as he is deprived of the opportunity to cross-examine
the deponent. But that is not the only consideration – the Court must also consider the
fact that the witness is deceased, and the overriding consideration of the interests of

47
Ndhlovu above n 3 at para 16.
48
Id at para 24.
49
Id at para 50.

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justice. Ultimately, the question is whether there are adequate pointers of truthfulness,
reliability, and probative value for the statement to be admitted as evidence.

The interests of justice

[104] It is a well-established principle that a trial court’s decision must be based on the
totality of evidence available to the court.50 In respect of the applicant’s conviction, the
High Court reasoned, based on the section 220 admissions, the forensic evidence,
Ms Dasi’s statement, and Sergeant Msolo’s testimony, that “there is no disputing that
[the applicant’s] house was the crime scene”.51 No direct inference can, however, be
drawn between the crime scene at the applicant’s house and his participation in the
events that led to the death of the deceased. The High Court relied entirely on Ms Dasi’s
statement to place the applicant on the scene and to establish his involvement in the
fatal assault. Ms Dasi’s statement, therefore, plainly played a decisive role in the
conviction of the applicant.

[105] On the indisputable or, at least, undisputed version advanced by the State:

(a) Prior to the incident in question, some of the applicant’s possessions had
gone missing, including his car radio.
(b) People who were apparently regarded as suspects in the disappearance of
these items were being rounded up in the township – so too, the deceased,
who was fetched at his house.
(c) The deceased was severely assaulted at the applicant’s house.

50
In S v Trainor [2002] ZASCA 125; 2003 (1) SACR 35 (SCA) at para 9, Navsa JA said:
“A conspectus of all the evidence is required. Evidence that is reliable should be weighed
alongside such evidence as may be found to be false. Independently verifiable evidence, if any,
should be weighed to see if it supports any of the evidence tendered. In considering whether
evidence is reliable, the quality of that evidence must of necessity be evaluated, as must
corroborative evidence, if any. Evidence, of course, must be evaluated against the onus on any
particular issue or in respect of the case in its entirety. The compartmentalised and fragmented
approach of the magistrate is illogical and wrong.”
See further Savoi above n 3 at para 55; Doorewaard v S [2020] ZASCA 155; 2021 (1) SACR 235 (SCA)
at para 133; and Maemu v S [2011] ZASCA 175.
51
S v Kapa, unreported judgment of the Western Cape Division of the High Court, Cape Town, Case No
SS45/2017 (30 May 2018) at 60.

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(d) The deceased died, as a result of the assault, shortly after being returned
to his grandmother’s house.
(e) The statement of Ms Dasi not only places the applicant at the scene of the
assault, but directly implicates him as one of the perpetrators of the severe
assault upon the deceased.

[106] In the face of this damning prima facie evidence directly implicating him in the
fatal assault on the deceased, the applicant elected to leave the evidence unanswered.
That of course does not provide any corroboration of the State’s case, nor does it attract
an adverse inference for the applicant’s case qua accused.52 But it does leave the State’s
compelling case unanswered.

[107] I take the view that the impugned statement is reliable and is sufficiently
corroborated by the circumstantial evidence. The State has established a strong
prima facie case that the applicant was not only present at the scene where the deceased
was severely assaulted, but that he actively participated in that assault by beating the
deceased with a blunt object. The conviction is sound in law and the appeal against
conviction ought to be dismissed.

[108] For these reasons, leave to appeal should be granted, but the appeal dismissed.

Order

[109] The following order is made:

1. Condonation is granted.
2. Leave to appeal is granted.
3. The appeal is dismissed.

52
Osman above n 30 at para 22.

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For the Applicant: W Booth and E L Goliath instructed by
William Booth Attorneys

For the Respondent: S M Galloway instructed by the Director

of Public Prosecutions, Western Cape