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[2021] ZANCHC 9
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Baikai and Others v Minister of Police (901/2017) [2021] ZANCHC 9 (22 January 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 901/2017
Heard: 28/07/2020
-
30/07/2020
Argued: 11/11/2020
Delivered
on:
22/01/2021
In
the matter between:
MICHAEL
ITHUSANG BAIKAI
First Plaintiff
DANIEL
SAREL STONE
Second Plaintiff
FREDDY
POTSO MODISAEMANG
Third Plaintiff
DANIEL
TSHETLHO
Fourth Plaintiff
TLOTLOYAONE
PETER BAREKI
Fifth Plaintiff
and
THE
MINISTER OF POLICE
Defendant
Quorum:
Mamosebo, J
JUDGMENT
MAMOSEBO
J
[1]
The plaintiffs instituted a delictual claim for damages against the
defendant,
the Minister of Police, in the amount of R500,000.00 (Five
Hundred Thousand Rand) each for the alleged unlawful arrest and
detention.
[2]
The issue that falls for determination is whether their arrest and
detention
were unlawful; if so, whether the Minister is liable to
compensate them for the period of their detention from 30 December
2016
to 03 January 2017.
[3]
The
Constitutional Court has, in
De
Klerk v Minister of Police
[1]
articulated
the specific requirements that claimants have to meet in a claim for
actio
iniuriarum
for
unlawful arrest and detention as follows:
“
a)
the
plaintiff
must
establish
that
their
liberty
has
been
interfered
with;
(b)
the plaintiff must establish that this interference
occurred
intentionally. In claims for unlawful arrest, a plaintiff need only
show that the defendant acted intentionally in depriving
their
liberty and not that the defendant knew that it
was
wrongful
to do
so;
(c)
the deprivation of liberty must be wrongful, with the onus falling
on the defendant to show why it
is
not; and
(d)
the plaintiff must establish that the conduct of the defendant
must have caused, both legally and factually, the harm for which
compensation
is
sought.”
See
also
Minister
of
Law
and
Order
and
Others
v
Hurley
and
Another
[2]
.
The
defendant’s case
[4]
The defendant’s witnesses testified first by virtue of the
onus
reposed on the Minister. The actual arrest and detention are
mainly common cause. On Friday 30 December 2016 Sgt Thusho Nkadimang,
a member of the South African Police Service (SAPS) attached to the
Stock Theft Unit, and the arresting officer, was on duty at
Kuruman
on a joint operation when he received an instruction from Brig Baloyi
to attend to an assault complaint at Kuruman Hospital
where he met Mr
Selumi who confirmed to him that he had brought Mr Willie Moagi who,
at that stage, was receiving medical attention.
Sgt Nkadimang left a
J88 medical form for completion by the medical personnel. He returned
to the police station and waited for
Mr Selumi and Mr Moagi.
[5]
Mr Selumi and Mr Moagi later met Sgt Nkadimang at the police station.
Sgt Nkadimang
testified that Mr Moagi reported to him that he went to
his workplace on 29 December 2016 where he met his employer, Mr
Freddy
Potso Modisaemang, the third plaintiff, to collect his wages
as his services had been terminated. Mr Modisaemang was in the
company
of four unnamed male persons. Mr Modisaemang instructed the
four men to force Mr Moagi into a kombi. They drove him to the cattle
post outside the village. There, they forced him to sit on top of hot
burning rocks while being accused of having stolen Mr Modisaemang’s
sheep. He denied the accusation.
[6] After
the assault they returned to Mr Selumi’s place. Mr Daniel
Tshetlho
(the fourth plaintiff) informed Mr Selumi that they were
looking for their lost sheep in his kraal. Sgt Nkadimang was informed
that present at that stage were Mr Tshetlho, Mr Modisaemang, Mr
Moagi, Mr Michael Baikai (the first plaintiff), Mr Tlotloyaone Bareki
(the fifth plaintiff) and Stouter (full names not provided), who is
Mr Daniel Sarel Stones’ shepherd, who wasalso accused
of theft.
Permission was granted by Mr Selumi for them to search the kraal but
they drew a blank.
[7] Sgt
Nkadimang, in private, observed that Mr Moagi had whip marks on his
back, with blisters or burn wounds and his skin was excoriated. The
said injuries were depicted on photos 1, 2 and 3 under CAS
210/12/2016. Sgt Nkadimang obtained the complainant’s statement
on the same date (29 December 2016) and registered the docket
at
Mothibistad Police Station.
[8]
Sgt Nkadimang obtained the physical address of Mr Modisaemang from Mr
Selumi.
Sgt Nkadimang was in the company of four Public Order
Policing Unit members and four members of the Tactical Response Unit.
He
introduced himself to Mr Modisaemang and explained the
purpose of his visit which was to arrest him for the assault with
intent to cause grievous bodily harm to and kidnapping of Mr Moagi.
Sgt Nkadimang asked him who was in his company when certain
incidences are said to have occurred. He identified Baikai, Stone,
Tshetlho and Bareki (the plaintiffs). Modisaemang was then arrested
and placed at the back of the van. They drove to the other
plaintiffs' residences and arrested them after their rights were
explained.
All of them elected to remain silent.
[9]
Mr Selumi confirmed to Sgt Nkadimang that the plaintiffs, at the back
of the
police van, were the ones present at his home the previous
day. They did not deny it. Mr Moagi was also invited to identify the
men at the back of the police van. He positively identified them as
the perpetrators. Sgt Nkadimang detained the plaintiffs at
Kuruman
Police Station. The docket was handed over to the Mothibistad
detectives. W/O Schalk was the investigating officer.
[10] Sgt
Nkadimang refuted the claim in the plaintiffs’ Particulars of
Claim
that he had acted on false information provided by those who
had implicated them, alluded to above. He also disavowed the averment
that he had acted without reasonable or probable cause because he had
acted on witness statements alleging assault with intent
to cause
grievous bodily harm and kidnapping which he accepted to be true. The
Minister pleaded that the offences committed fall
under Schedule 1
and that Sgt Nkadimang had reasonable suspicion that the plaintiffs
had committed the alleged offences and wanted
to secure their
attendance in court.
[11]
It is common cause that the arrests were without a warrant. The
plaintiffs
were arrested on Friday, 30 December 2016 and their first
court appearance was scheduled for Tuesday 03 January 2017. W/O
Schalk
took the docket to court. The plaintiffs were also brought to
court on 03 January 2017 at 08:30 by Cst Keet as recorded under
Serial
Number 97. Sgt Nkadimang learned later that despite the
plaintiffs having been taken to court they did not appear before a
magistrate
as the matter was not enrolled on the court roll.
[12]
After the arrest and before detention of the plaintiffs Sgt Nkadimang
completed a “
Notice of Rights Form”
for all the
plaintiffs having explained s 35 of the Constitution to them. The
form shows the full names and signatures of the detainees,
and of the
person who had explained the rights as well as the date, time and
place of signature. There is also a statement regarding
“
Interview
With Suspect Form”
attached. The plaintiffs were
interviewed the following day, Saturday 31 December 2016. They all
declined to make statements and
opted to give an explanation in
court.
[13]
The
complainant, Mr Willie Moagi, was not called to testify but his
statement
made to the police, which formed part of the docket, was handed up by
agreement between the parties, and on which evidence
witnesses were
cross-examined. Adv MJ Merabe, counsel for the defendant, applied for
the statement to be admitted by court in terms
of s 3(1)(c) of the
Law of Evidence Amendment Act
[3]
.
Adv GI Mothibi, counsel for the plaintiffs, objected to its admission
on the basis that its admission will be prejudicial to the
plaintiffs' case. The basis upon which the statement was handed in by
consent was merely to show that it was faithfully recorded
and not as
proof that its contents purveys the truth of what had transpired. Mr
Moagi was not called as a witness because counsel
for the Minister,
Adv Merabe, informed Court
that
he
was
suffering
from
a
mental
instability
and
was
incoherent
during
consultation.
I
admitted
the
evidence
in
the
interests of justice.
[14]
A copy of the investigation diary, Part 'C' of the docket, was part
of the documents
handed in. The entries in the diary are quoted in
full because they form the crux of the dispute:
The
top entry is, as explained by Sgt Nkadimang, made by the Branch
Commander and addressed to the Public Prosecutor (PP). He wrote:
“
1.
Case docket to court for first appearance;
2.
Investigation is not complete;
3.
Witnesses'
statements
and
completed
J88
is outstanding.
J88 will be
collected from the
hospital;
4.
Criminal Profiles for suspects requested from the LCRC.”
[15]
The prosecutor recorded the following response in the investigation
diary:
“
Case
not
enrolled.
1.
Complainant
single
witness
.....
testify
against
4 unknown
males;
2.
Identity in dispute
-
the complainant in A1 para 6 state
doesn’t know those men, that he would not be able to identify
them even if he can see them
later;
3.
Obtain J88 and witnesses’ statements;
4.
Investigate and bring case for decision."
The
“
complainant
in
A1
para 6”
at
2 above is Mr Willie Moagi.
[16]
The second witness to testify for the defendant is Mr Selumi. He was
not at his home when a group of people arrived but was later
summoned. Mr Tshetlho informed him that they were in pursuit of
stolen
sheep belonging to a woman who was in their company. He
explained to her that his sheep stay in the kraal and are nottaken
out
to graze. He permitted them to enter his kraal to search for her
sheep. Though she entered the kraal with Stouter (the shepherd)
and
searched for the lost sheep none were found. They left with Stouter
and Moagi.
[17] The
following morning Mr Selumi saw Mr Modisaemang driving a minibus with
passengers
towards the veld. He immediately asked his neighbour, Mr
Sebolao, to accompany him to Mr Modisaemang’s cattle post for
feedback.
He recognised Mr Stone and Mr Modisaemang but the other
male person was unknown to him. Modisaemang reported to him that
Moagi
and Stouter undertook to compensate him for the missing sheep.
He and Mr Sebolao then departed.
[18] Later
that same day he was called to Mr Sebolao’s residence where he
found Mr
Moagi lying on his stomach across the bed and exhibited to
them burn marks on his thighs and buttocks. He also had whip weals on
his back. He was taken to hospital. Moagi reported to him that the
men who had come to his residence searching for their sheep
had
inflicted those injuries.
[19]
The last witness to testify for the defendant was W/O Schalk, the
then investigating
officer who later resigned from the South African
Police Service (SAPS). He testified that the docket was taken to
court but was
not enrolled for the reasons stated in the
investigation diary. He confirmed that the suspects were taken to
court and released
by the court orderly after the·public
prosecutor had decided not to enrol the case. The suspects were
informed that the
case required further investigation. He did not
complete the investigation because he left the SAPS. He confirmed
that the plaintiffs
were taken to the Kuruman court holding cells to
appear in court. The defendants’ case was closed on this note.
The
plaintiffs’ case
[20]
All five plaintiffs testified. Their case is that they were each
arrested at their residences
on 30 December 2016. Mr Freddy
Modisaemang testified first. He says Mr Moagi arrived at his home and
reported that there was no
water at the cattle post and that some
sheep had died. He demanded to be placed in possession of the
carcasses or skins of the
dead sheep or to be shown where the
carcasses were buried to satisfy himself. Accompanied by Mr Daniel
Stone, his wife and Mr Moagi
they headed to the cattle post in his
kombi. Thereat, Moagi failed to answer or show him the remains. He
also demanded to see the
missing lambs. Moagi explained that they
were buried but could not exhibit them.
[21] Modisaemang
phoned Tshetlho to join them at the cattle post. Tshetlho arrived
with Baikai
and Bareki. Modisaemang persistently interrogated Moagi
about the whereabouts of his sheep and lambs. Stouter, who was
present,
suggested that Moagi should tell them where they normally
take the sheep to. The entourage then boarded the kombi and headed to
Mr Selumi’s residence as directed by Moagi. Tshetlho
telephonically contacted Selumi to return to his home since he was
absent. On arrival Selumi was given a full report. They searched
Selumi’s premises but did not find anything. Moagi offered
to
pay compensation for the missing sheep. Modisaemang transported the
two shepherds back to the cattle post.
[22]
On 29 December 2016 Modisaemang was joined by Stone at the cattle
post. They found Stouter
but Moagi was missing. Selumi arrived at the
cattle post and enquired about the progress and informed Modisaemang
that Moagi is
his employee. On Friday 30 December 2016 Modisaemang
and Stone discovered that the shepherds had disappeared from the
cattle post.
The SAPS members arrested Modisaemang at home. He
directed the police to the residences of the other plaintiffs who
were also arrested
and placed in a police vehicle.
[23] The
police went to Selumi’s place. Selumi identified all the
detainees who had engaged
with him, Moagi and Stouter. It is common
cause that they were detained from 30 December 2016 to 03 January
2017. They were taken
to Mothibistad court cells where they remained
until just after 10:00 on the morning of 03 January 2017. All five of
them were
informed by a SAPS member that they can go home. They never
entered the court room. They denied ever assaulting or kidnapping
Moagi.
[24]
The second to testify was the second plaintiff; Mr Daniel Stone. His
evidence accords with that of Modisaemang in so far as it relates to
him and his wife Lizzy. He adds that he had opened the kraal
for his
own sheep to graze as Stouter had not opened for them before he
disappeared. He then left with the sheep to the veld leaving
everyone
at the cattle post. He spent the whole day in the veld. The shepherd
was absent again on 29 and 30 December 2016. He spent
the entire day
of the 30
th
at his home where he was arrested. He denies
having witnessed or participated in any assault or kidnapping of
Moagi. In essence
he pleads an alibi.
[25]
Mr Tlotloyaone Bareki was the third to testify. On Wednesday, 28
December 2016,
Tshetlho arrived at his home and informed him that
Modisaemang had problems at his cattle post. He and Baikai
accompanied Tshetlho
to the said cattle post where a report was made
to them by Modisaemang regarding the missing sheep and the failure by
Moagi to
account for them. Otherwise his account dovetails that of
Modisaemang except where he added that Selumi had hit Stouter twice
on
his head with a hosepipe and was reprimanded by members of the
community. The entourage left his premises and later parted ways.
On
Friday 30 December 2016 he was arrested at his home. Bareki denies
ever assaulting or kidnapping Moagi.
[26]
Mr Daniel Tshetlho, the fourth plaintiff, says he was telephonically
contacted
by Modisaemang who invited him to his cattle post
complaining about his missing livestock. All five plaintiffs and
Lizzy converged
at the cattle post. Moagi and Stouter (the shepherds)
were present. The shepherds were interrogated about the missing sheep
and
lambs. Stouter suggested to Moagi that he disclose their
whereabouts. The entire party went to Kagung to the given address,
which
was Selumi's home. Selumi permitted them to search his kraal.
After Stouter had hinted where the sheep might be Selumi grabbed him
by his head, threw him to the ground, took a hosepipe and hit him. He
was reprimanded by members of the community. They did not
find what
they were looking for and left. Tshetlho says he never left his home
on 29 December 2016 where he was arrested on Friday
30 December 2016.
[27]
The last witness to testify was Mr Michael Baikai, the first
plaintiff. His
narrative broadly followed that of the other
plaintiffs who testified before him as regards to what had transpired
at both the
cattle post and Selumi's premises. He is silent on
Stouter’s alleged assault by Selumi. He remained homebound on
Thursday
29 December 2016 where he was arrested on Friday, 30
December 2016.
Applicable
legal principles
[28]
The
remarks by Langa CJ in
Zealand
v Minister of Justice and Constitutional Development and Another
[4]
are
apposite:
“
[24]
...
The
Constitution enshrines the right to freedom and security of the
person, including the right not to be deprived of freedom arbitrarily
or without just cause, as well as the founding value of freedom.
Accordingly, it was sufficient in this case for the applicant
simply
to plead that he was unlawfully detained. This he did. The
respondents then bore the burden to justify the deprivation
of
liberty, whatever form it may have taken.”
See
also
Minister
of
Law
and
Order
and
Others
v
Hurley
and
Another
[5]
.
[29]
The
plaintiffs argued that their detention was unreasonable and
unjustifiably infringed upon their rights under s 12
(1)(a)
and (b) of
the
Constitution
[6]
which stipulate:
“
(1)
Everyone
has
the
right
to
freedom
and
security
of
the
person,
which
include
the right
-
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial.”
[30]
In summary, therefore, the plaintiffs’ case is that they were
arrested
without a warrant on trumped up charges of assault with
intent to do grievous bodily harm and kidnapping registered under
Case
Number 210/12/2016, Kuruman Police Station. They further alleged
that as a result of the wrongful and unlawful arrest and detention
they suffered harm in respect of which they seek to hold the Minister
of Police liable for the entire period of their detention
(30.12.2016
- 03.01.2017). They argued that the unlawful arrest and detention and
the failure by the Minister to bring them before
court had caused
them to suffer damages in the amounts set out in their
respective Particulars of Claim.
[31] In
the Minister’s plea the arrest and detention are admitted but
liability is
avoided by alleging that Sgt Nkadimang had a reasonable
suspicion that the plaintiffs had committed the offences of assault
with
intent to cause grievous bodily harm and kidnapping. It is
accordingly denied that the arrest and detention were unlawful.
[32]
Sgt Nkadimang testified that at the time of effecting the arrests on
all the plaintiffs
at their residences he had identified himself and
the unit he was attached to. He informed them individually of the
purpose of
his visit: being to arrest them in connection with the
assault and kidnapping charges levelled by Mr Moagi. He asked Mr
Modisaemang,
who was arrested first, in whose company he had been. He
named the other four plaintiffs and took him to their residences
where
the same process was followed before their arrests.
[33]
Sec
40(1)(b) of the Criminal Procedure Act
[7]
(CPA) empowers a peace officer to arrest, without a warrant, any
person whom he reasonably suspects of having committed an
offence referred to in Schedule 1, other than the offence of escaping
from lawful custody.
Van
Heerden
JA
made this pronouncement
in
Duncan
v
Minister of Law and Order
[8]
:
“
If
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection,
i.e, he
may arrest the suspect. In other words, he then has a discretion as
to whether or not to exercise that power (cf Holgate-Mohammed
v Duke
[1984] All ER 1054
(HL) at 1057). No doubt the discretion must be
properly
exercised.
But the
grounds of which the exercise of such a discretion can be questioned
are narrowly circumscribed. Whether every improper
application of a
discretion conferred by the subsection will render an arrest
unlawful, need not be considered because it does
not arise in this
case.”
[34]
After their arrest and detention at the police station all the
plaintiffs elected to state
their case in court. They had the
constitutional right to remain silent and no adverse inference can be
drawn from their election.
[35]
Harms
DP made the following remarks in
Minister
of Safety and Security v Sekhoto:
[9]
“
[42]
While it is clearly established that the power to
arrest
may
be
exercised only for the purpose of bringing the suspect to justice,
the arrest is only one step in that process. Once an arrest
has been
effected, the peace officer must bring the arrestee before
a
court
as
soon
as
reasonably
possible; and at least within
48
hours,
depending on court hours. Once that has been done, the authority to
detain, that is inherent in the power to arrest , is
exhausted. The
authority to detain the suspect further is then within the discretion
of the court.”
[36]
I
endorse the reasoning expressed by Marais AJ in
Zweni
v Minister of Police and Another
[10]
where
he said:
“
[25]
Whether further investigation
is
warranted
before
an
arrest
is
effected must surely depend on the facts of each
case.
An
objective assessment of the three statements available indicates
there were reasonable grounds to arrest without the need for
further
investigation.
[26]
The requirement is that the arresting officer only has
to form
a suspicion. I agree with Jones J when he said, “This is not
to
say
that the information at his disposal must be of
sufficient high quality and cogency to engender him a conviction
that the suspect is in fact guilty. The section requires suspicion
but not certainty.”
[37]
There is no gainsaying the fact that the third plaintiff, Mr Freddy
Pitso Modisaemang,
was the chief protagonist in this whole episode.
He is responsible for inviting or assembling the four other
plaintiffs at his
cattle post or was instrumental in such assembly.
He transported Mr Willie Moagi (the assault and kidnap victim), Mr
Daniel Stone
(second plaintiff), and Mr Stone’s wife (Lizzy) to
his cattle post. He specifically phoned Mr Daniel Tshetlho (fourth
plaintiff)
to join him at the post. All other plaintiffs were fully
briefed and were present when Moagi and Stouter were interrogated.
All
of them went to Selumi’s house and summoned him to his
(Selumi’s) house. They all knew that one or both shepherds had
implicated Selumi in the theft of Modisamang’s sheep.
[38]
All the plaintiffs deny that they had assaulted Moagi or had
witnessed his
assault. The injuries to Moagi are described as follows
by Sgt Nkadimang to whom Moagi had complained: He observed (in
private)
whip weals on his back; blisters or burn wounds and that his
skin was excoriated. The injuries were also depicted on photos 1, 2
and 3 which photos are exhibits. In light thereof that the J88 Form
was not produced, evidently never collected from hospital,
it is
necessary to use photos 1 and 2 to depict the horrendous injuries to
his buttocks. See Appendix “A” to this judgment.
Photo 3
is a blown-up (close-up) picture and is too graphic and invasive to
annex hereto because it shows his private parts and
is therefore
omitted.
[39]
It is unquestionable that Moagi was uninjured before his
interrogation by the plaintiffs. There
can be no doubt that he was
injured whilst they kept him captive and that they had inflicted all
the injuries. The evidence of
Selumi is devastating against the
plaintiffs. He found Moagi sprawled on the bed seriously injured. He
wasted no time in conveying
him to hospital where he received
treatment. Brig Baloyi promptly ordered an investigation. The
plaintiffs must suffer the
same fate because they conspired to
protect each other and opted not to explain how Moagi had received
multiple injuries in their
presence. No outsider would have done so.
[40]
It is clear from the testimony of Sgt Nkadimang, being a peace
officer, that the arrest
was effected upon a reasonable suspicion
that an offence falling under Schedule 1 had been committed. The
decision to arrest them
therefore was for the purpose of bringing the
plaintiffs before court, which was done. He arrested the plaintiffs
in the exercise
of his discretion. I did not discern in the papers or
from the oral evidence that Sgt Nkadimang had acted arbitrarily or
irrationally
in the exercise of such discretion. Essentially, all the
four jurisdictional factors alluded to in
De Klerk
v
Minister of Police
referred to in para 3 of this judgment (above)
were established by the defendant.
I
therefore find that the arrest was lawful.
[41]
The 30
th
December
2016 was a Friday and Monday, 02 January 2017, was a public holiday.
The earliest court day after the arrest was 03 January
2017. What
stands for determination is whether under those circumstances the
detention for that period was arbitrary or without
just cause in
terms of s 12(1)(a) of the Constitution. The following remarks by
O’Regan J in
S
v
Coetzee
and
Others
[11]
are
poignant:
“
[There
are] two different aspects of freedom: the first is concerned
particularly with the reasons for which the state may deprive
someone
of freedom [the substantive component]; and the second is concerned
with the manner whereby
a
person
is deprived of freedom [the
procedural
component].
Our
Constitution
recognises
that both aspects are important in
a
democracy:
the state may not deprive its citizens of liberty for reasons that
are not acceptable, nor when it deprives citizens
of freedom for
acceptable reasons, may it do so in
a
manner
which is procedurally
unfair.”
[42] Since
the earliest available date to appear was 03 January 2017 the
encroachment on
the plaintiffs’ physical freedom cannot be said
to be arbitrary or without just cause. Consequently, based on
Sekhoto
and Zweni
in paras 36 and 37 above, the defendant cannot be held
liable for the unlawful arrest and detention of the plaintiffs. The
head
of damages claimed must therefore also fail.
[43]
On the question
of costs.
There is no reason why costs
should not follow the result.
[44] In
the result the following order is made:
The
action is dismissed with costs.
MC
MAMOSEBO
JUDGE
OF
THE HIGH COURT
NORTHERN CAPE DIVISION
For
the 1st to 5th Plaintiffs:
Adv v GI Mothibi
Instructed
by:
Mjila & Partners
For
the Defendants:
Adv MJ Merabe
Instructed
by State:
Attorney
[1]
[2019] ZACC 32
;
2020 (1) SACR 1
(CC);
2019 (12) BCLR 1425
(CC) at
para 14
[2]
1986 (3) SA 568
(A) at 589E - F
[3]
45 of
1988
Sec
3(1)(c)
provides:
(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.
[4]
[2008] ZACC 3
;
2008 (4) SA 458
(CC) at 468 para 24
[5]
1986 (3) SA 568
(A) at 589E
[6]
The Constitution of the Republic of South Africa, 1996
[7]
51 of 1977 as amended
[8]
1986 (2) SA 805
(A) at 818 H - J
[9]
2011 (5) SA 367
(SCA) at 383 para 42
[10]
(
2629/2003)
(2016
[11]
[1997] ZACC 2
;
1997 (3) SA 527
(CC);
1997 (1) SACR 379
(CC);
1997 (4) BCLR 437
(CC)
at para 159