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[2014] ZAGPJHC 395
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S v Dithlakanyane and Others (SS 43/2012) [2014] ZAGPJHC 395 (16 October 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: SS 43/2012
DATE:
16 OCTOBER 2014
JPV
2012/52
In
the matter between:
THE
STATE
And
DITHLAKANYANE,
ISAAC TEBOGO
.................................
Accused
No. 1
MOTAUNG, THABANG
SAMSON
.......................................
Accused
No. 2
MKHWANE,
HOLYNSWORTH
.............................................
Accused
No. 3
MKHWANE,
KEDIBONE SYLVIA
.
.…..................................
Accused
No. 4
KUNENE,
LAURA
.................................................................
Accused
No. 5
MCENCE,
VUYOKAZI
..........................................................
Accused
No. 6
KEKANA, JACK
LESEJA
.....................................................
Accused
No. 7
MOLEFE, KARABO
LOUIS
..................................................
Accused
No. 8
NEMATHAGA, JACKY
MASALA
….....................................
Accused
No. 9
SMITH,
MALCOLM
............................................................
Accused
No. 10
SCOTT,
RICARDO
...............................................................
Accused
No. 11
MAKENETE,
THABO BRADLEY
.........................................
Accused
No. 12
JUDGMENT
INTRODUCTION
1.
The prosecution has
brought an application in terms of section 2(2) of the Prevention of
Organised Crime Act, 121 of 1998, (POCA)
for the admission of
hearsay evidence contained in affidavits made by four witnesses who,
for various reasons, are not available
to give evidence. This
application is opposed by all twelve accused on a number of
different and overlapping grounds.
2.
Section 2(2) of POCA
provides that “the court may hear evidence, including evidence
with regard to hearsay……notwithstanding
that such
evidence might otherwise be inadmissible, provided that such evidence
would not render a trial unfair”.
3.
The indictment
alleges that a number of accounts in the South African Post
Office Bank were defrauded of funds
in a theftuous manner by
persons acting pursuant to a conspiracy and therefore as part
of ‘racketeering’ or an
‘enterprise’ as
defined in and in contravention of POCA.
4.
I have not seen the
content of the affidavits which the state seeks to lead in evidence
but, since the absent witnesses are
identified in the
indictment and mention has been made of them in the course of the
trial, I understand that
the content of those
affidavits would be more or less along the lines that each is an
accountholder, that funds were withdrawn
from such account
in a specific amount on one or more specific dates and that
such withdrawals were not made by the
accountholder or were not
authorized by them
[1]
.
However, I do not base my ruling on any suppositions or speculation
as to the content of these affidavits.
5.
Ordinarily hearsay
evidence is inadmissible for a number of reasons
[2]
.
Certain exceptions to such inadmissibility developed over the years
resulting in the enactment of the
Law of Evidence
Amendment Act 45 of 1988 (the 1988 Act) which provided
that “hearsay evidence shall not be admitted
as evidence
at criminal proceedings” unless certain factors are
taken into account which lead the court
to the opinion that such
evidence “should be admitted in the interests of
justice”.
I note
that
Savoi supra
has stated that section 2(2) of POCA “effectively
does away with the hearsay rule” on charges
under section 2(1)
of POCA. I am also mindful that there is a
filter to the admissibility of non-objectionable
hearsay in the form
of the proviso which has been appended to section 2(2).
HEARSAY
6.
The first question which I
need to decide is whether or not it is hearsay evidence (as
contemplated in terms of section
2(2) of POCA) which the state seeks
to lead in this application. If the subject matter of
this application is not hearsay
evidence then
section 2(2) cannot assist and the application must fail.
7.
The 1988 Act defines
‘hearsay evidence’ as ‘evidence, whether oral
or in writing, the probative value
of which depends on the
credibility of any person other than the person giving such
evidence”.
8.
POCA does not define
hearsay evidence. The recent judgment in
Savoi v NDPP 2014(1)
SACR 545 CC
does
not refer to any definition of hearsay but does refer to the judgment
in
Ndhlovu supra
which accepts the 1988 Act as containing the definition
applicable in South African law.
9.
I therefore approach this
present application on the basis that, for section 2(2) to come
into play, the evidence
sought to be adduced by the
state must depend for its probative value on the credibility of
someone other than the giver
of evidence in court..
10.
I understand that
this requires that the affidavit must be hearsay, that
the content of the affidavit must be
hearsay, that the
content of the affidavit must depend for its probative value on
the credibility of someone
other than a person giving evidence in
court.
11.
Advocate Vos,
appearing for the prosecution, argued that the
contents of the affidavits are hearsay because
the court will
not see the deponents to the affidavits in the witness box and cannot
assess their credibility. I now
agree with Advocate De
Vox. The court will not see the deponent and cannot
assess the credibility of the
deponent. The
deponent to the affidavit is the source of the content of the
affidavit and the probative
value of that content depends on
credibility of the deponent. The wording of the definition of
hearsay specifically
requires that that there be a
“person other than the person giving such evidence” and
that it is the credibility
of the non-evidence-giving
person which is determinative of the probative value.
12.
Advocate Vos than
submitted that the giver of the evidence is the person, whether
a member of the SAPS or the Post Office,
who received or
commissioned (or perhaps even wrote down) the affidavit.
The taker of the statement gives
evidence whilst the probative value
of that evidence depends on the credibility of someone else –
namely the deponent
to the affidavit.
13.
The recipient
or commissioner of the affidavit cannot give evidence as to the
content of the affidavit.
All he or she can say is that a
statement was written down (by him or her or someone else),
that the maker of the statement
took an oath that this was a true
statement, that such oath was given before a commissioner of
oaths, that the maker
of the statement signed the document in
the presence of the commissioner. In other words, once there is
a written document
such as an affidavit sought to be adduced into
evidence, the only evidence which the third party can
give pertains
to the circumstances of the making of the affidavit and
not the content of the affidavit. The third party
who
attends at court is a conduit witness who gives evidence but the
probative value of the evidence depends on the credibility of another
– the signatory/deponent to the affidavit.
14.
Once the deponent has
signed the document and sworn an oath that this is a true and correct
statement, then the
deponent has made the statement
his or her own. It is not the statement of anyone else.
The deponent
has accepted responsibility for the contents of
the affidavit. Although someone else may have been
present when
it was written by the deponent, may even
have written out the document, may have translated from
one language
into that in which the document is written, once the
deponent signs the statement and once the deponent swears to the
truth of
the contents of the statement, then the
affidavit and its contents belong to the deponent and the contents
stand or
fall on the credibility of the deponent and no one else.
15.
Advocate Vos correctly
pointed out the anomaly if such affidavits were not
held to be hearsay. On
the one hand, where a
witness comes to court and testifies that another person made a
verbal statement to him
or her, such witness would be giving
hearsay evidence. It would be hearsay because the probative value of
the evidence would
depend on the credibility of the absent
person who told something to the witness in court.
Such evidence
might or might not be admissible in terms of
section 2(2) of POCA. On the other hand,
as in the present
case, where a witness comes to court and
attempts to hand in a statement signed and sworn to by an absent
person it
would be absurd for such witness not to be
permitted to hand in such affidavit. Such absurdity
relies on
the grounds that the probative value of the
written document/affidavit depends on the credibility of
another
person, the deponent/signatory to the
affidavit. Hearsay may be contained in a written
document.
16.
In the result, I
rule that the affidavits of Messrs and Mesdames Davison Nkomo,
Mphepu Maringa, Masechaba Mafatle
and Norman Sikhosana are hearsay
evidence and are subject to consideration in terms of
section 2(2) of POCA.
THE PROVISO
TO SECTION 2(2)
17.
The proviso to subsection
(2) requires that the admission of hearsay evidence “would not
render a trial unfair”.
18.
In
Savoi
supra
,
the Constitutional Court remarked
[1]
that the approach in section 2(2) ‘effectively does
away with the hearsay rule’ on certain charges
subject to
protection of the fair trial right whilst the 1988 legislation
‘retains the exclusionary rule’ but
permits the
admission of hearsay evidence only under certain circumstances.
19.
It is for the trial court
to determine where the admission ‘would be so unfair as to
infringe an accused’s fair trial
right’.
Included in the issues
[2]
to be considered are the nature of the evidence, its reliability or
lack of it, its probative value and prejudice to the
accused.
20.
In the present case I have
regard to the following:
a.
This court does not
know who interviewed each of the persons who made the affidavit
sought to be led in evidence (other
than Mrs Sylvia van der
Merwe in the case of Mr Davison Nkomo) and the circumstances under
which each affidavit was commissioned.
b.
The court does not know
what particular or pertinent prejudice, if any, will result and
the nature and degree of such prejudice
if the admission is
admitted. In other words, the court knows
only that the signatory/deponent cannot be
cross-examined by the
defence but does not know the nature of the evidence nor the impact
upon the accused if the hearsay is admitted
into evidence.
21.
The defence objections to
the admissibility of these affidavits are firstly:
a.
The State has failed
to conclusively prove that Nkomo and Maringa are deceased.
I am satisfied that the
state has produced the best evidence
available.
b.
The State has failed to
take adequate steps to procure the attendance at court of Mafatle and
Sikhosana. I am satisfied
that Mafatle is no longer
at the address given by her to the Post Office and is believed
to be in Lesotho but that
the Embassy of Lesotho has not provided any
assistance in tracing her. I am satisfied that Sikhosasna can
be contacted telephonically
but his physical whereabouts are unknown
and he is unwilling to give evidence and because he cannot be found,
he cannot be subpoenaed
or otherwise brought to court.
22.
The prosecution has
submitted that, absent admission into evidence of these
affidavits, the accused (where the indictment
relies upon these
four account holders) would probably be acquitted on
certain counts because the accountholder
cannot be called to
personally give evidence in relation to those counts.
That may well be correct
– but I have already placed on record
that I do not know the content of the affidavit nor the probative
value which
is capable of being placed thereon.
23.
The state has further
argued that there is public interest that a court should hear
all evidence against an accused.
I would prefer to phase the
interest somewhat differently. Public interest requires justice
to be done; justice
can only be done when a court
has been furnished with the fullest possible range of
available and admissible
evidence; justice then requires
full and proper scrutiny and assessment of all such evidence.
Justice
requires fairness to both the accused and to the
public but only information obtained and tendered
and
filtered “in a constitutionally compliant manner”
should be admitted into evidence.
24.
The defence objections to
the admissibility of these affidavits are secondly:
a.
The obvious prejudice to
the accused is that, without admission of these affidavits,
there can be no convictions on certain
counts. Absent
these affidavits, the state’s case is bound to fail.
I cannot know this.
I do not know this. I
have not seen the contents of the affidavit and none of the defence
has asked that I do
so.
b.
I am told that the
admission of these affidavits would go to ‘the
heart of the matter’. I do not know
that this is the
case. I doubt very much that the affidavits point to any one of
the accused. That is the’ heart’
of the case.
c.
In one instance,
accused 11 has made an admission in terms of section 220 of the CPA
to the effect that Mafatle did
not request the withdrawal
from the relevant account. I am told that
this is the only corroboration
of that whichis contained in the
affidavit. It is argued that admission of such
affidavit would constitute
‘trial by ambush’
because, absent this admission, there would have been no
evidence (other than the
affidavit) of the existence of this
offence. It is argued that the section 220 admission was only
made because it was
anticipated that the accountholder,
including Mafatle, would give evidence.
d.
It has been argued that
admission into evidence of these affidavits would put the accused on
their defence and may compel or propel
them into giving evidence.
I cannot see that this can be the case. There are many
counts against each accused
[3]
.
The case against each accused is not limited to only these four
accountholders. They are in exactly
the same
position vis a vis these accountholders as they are in relation to
all the other accountholders. They may elect
or not to give
evidence; they may elect or not to dispute the alleged
lack of consent by the accountholders to
the withdrawals.
All that these affidavits may or may not do is provide
(no more than) hearsay evidence
that an offence has been perpetrated
– I do not know.
25.
In the circumstances,
I cannot see that the admission of the affidavits of these
accountholders would be so unfair as
to infringe the fair trial
rights of any accused. The evidence is of the
nature of an affidavit – at the
end of the day I may make no
greater a finding than that a person made a statement under oath
which deponent cannot be questioned
or challenged.
The reliability of the statement is, at this stage, unknown –
at the end of the day having heard
evidence of the circumstances
surrounding the taking of the affidavit or having
assessed any corroborating evidence
or perhaps even having
heard from the accused, I may determine there is some or
no reliability to the affidavit.
It will only be at the end of
the trial, when all the evidence is scrutinized and assessed
that I will be in a position to
determine if these affidavits have
any probative value at all and if so, what.
26.
At the present
time, the only prejudice to an accused of which I am aware is
that to accused 11. I have
asked if it is open to accused
11 to withdraw his section 220 admission, have been informed that he
cannot so do and my reading
of the legislation suggests that accused
11 has no remedy.
27.
Accordingly, I take
the view that:
a.
The affidavit of Mafatle
is not admissible in evidence against accused 11.
b.
The affidavits of Nkomo,
Maringa, Mafatla and Sikhosana are admissible in evidence
against all other accused in terms
of section 2(2) of POCA.
c.
The probative value, if
any, of these affidavits falls to be determined at the end of the
trial and in the context of all the evidence.
DATED AT
JOHANNESBURG ON THIS DAY THE 16
TH
OF OCTOBER 2014
k satchwell
For the
State: Advocate A. Vos
For Accused
1: Advocate K. Lawlor
For Accused
2: Advocate M. Baloyi
For Accused
3, Accused 5, & Accused 8: Advocate S. Nobangule
For Accused
4, Accused 6, Accused 10 & Accused 12: Advocate A. Roestorf
For Accused 7
& Accused 9: Attorney C. Pillay
For Accused
11: Advocate J. Van Wyk
Date of
Argument: 13
th
and 14
th
October 2014
Date of
Judgment: 16
th
October 2014
[1]
I have heard the evidence of
nearly 30 accountholder witnesses to this effect.
[2]
Pertinently summarized in
S
v Ndhlovu and Others 2002(2) SACR 325 SCA
at
paragraph 13.
[3]
[3]
Over 120 counts in total against
all the accused.
[1]
At paragraph [47]
[2]
At paragraph [49]