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[2017] ZAKZPHC 13
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Griffiths v S (AR189/2016) [2017] ZAKZPHC 13 (6 April 2017)

SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NUMBER: AR 189/2016
In
the matter between:
THENJIWE
IGNATIA
GRIFFITHS
Appellant
and
THE
STATE
Respondent
JUDGMENT
MADONDO
AJP
: (Van Zӱl,
J. et Steyn, J. concurring)
[1]
During December 2014, in Pietermaritzburg High Court, Seegobin J
convicted the appellant Thenjiwe Ignatia Griffiths of the murder
of
Allan Lewis Griffiths, her husband, as well as robbery with
aggravating circumstances. He sentenced her to life imprisonment
for
murder and fifteen (15) years imprisonment for robbery with
aggravating circumstances. With the leave of the court
a
quo
the appellant now
appeals to this Court against the conviction only.
[2]
The appellant’s conviction was, first, based on the narration
of hearsay evidence by certain witnesses in that the inference
was
not drawn from the witnesses’ personal experiences but from the
statements / reports that the deceased had allegedly
made to those
witnesses. This came as a result of that the court
a
quo
was, in terms of s
3(1)(c) of the Evidence Act 45 of 1988 (the  Law Evidence Act),
of the opinion that it was in the best interests
of justice to accept
such evidence. Second, on the circumstantial evidence in the form of
a pointing out in terms of s 218(2) of
the Criminal Procedure Act 51
of 1977 (the Act), in that the police discovered the body of the
deceased as a result of the information
the appellant had  allegedly
given to them. In this regard the Court concluded that the State had
succeeded to establish a
necessary link between the conduct of the
appellant, of pointing out the body of the deceased, and the
knowledge of the commission
of the crimes charged on her part. Third,
on that the appellant shared a common purpose with the hijackers to
kill the deceased.
[3]
The appellant was arraigned before the Pietermaritzburg High Court on
the charges of murder and robbery with aggravating circumstances.
In
count 1 the State alleged that on or about 20 January 2006 and at or
near Colenso area in the district of Colenso, the accused
unlawfully
and intentionally killed Allan Lewis Griffiths, an adult male person.
[4]
In count 2 the State alleges that on the date and place mentioned in
count 1 the accused unlawfully, and with intent to rob,
assaulted
Allan Griffiths, to induce submission in the aforesaid person, and
took and stole from him a Toyota Corolla sedan motor
vehicle, the
property, or in the lawful possession of the aforesaid person and
thus robbed him of the same. The appellant pleaded
not guilty to both
counts.
[5]
Attached to the indictment was the summary of substantial facts
setting out the case that the State intended to prove against
the
appellant as follows:
‘
During
2005, the accused met the deceased, a 60 year old pensioner, who was
an alcoholic, at a club in Richards Bay. Soon thereafter,
the accused
and the deceased got married to each other.
After
some weeks, the deceased wanted to terminate his marriage to the
accused. The deceased claimed that the accused was assaulting
him and
being abusive to him.
The
deceased also took steps to end his marriage with the accused by
approaching an attorney. He obtained a domestic violence interdict

against the accused. The accused controlled the deceased to such an
extent that he had no freedom of movement. The accused prevented
the
deceased from making contact with his family.
Sometime
later, the accused decided that the deceased was to be killed. To
achieve this end, the accused procured the services of
persons to
assist her in killing the deceased.
During
the early hours of the morning of Friday, 20 January 2006, the
accused and the deceased were travelling in the deceased’s

Toyota Corolla motor vehicle from Gauteng to KwaZulu-Natal.  By
that time, the accused had arranged that the persons who were
to
assist her in killing the deceased were to pose as hitch hikers
wanting a lift on the road, which the accused and the deceased
were
travelling on.
En
route to KwaZulu-Natal, the deceased stopped the vehicle in which he
was driving to give a lift to the accomplices of the accused.
At
some point on the journey,
in
the Colenso area, the accomplices attacked and assaulted the
deceased.
In
the course of the attack upon him the deceased was strangled and
sustained injuries to the chest.  The deceased died as
a result
of asphyxia.
The
accused was dropped off on the side of the road.  The accused
made her way to the police station at Estcourt where she
made a
statement alleging that she and the deceased were the victims of a
hijacking.
After
dropping the accused, the accomplices of the accused left in the
deceased’s vehicle.  The accomplices dumped the
body of
the deceased on a deserted district road and later drove to the N3
highway where they abandoned the vehicle.
At
all material times the accused acted in concert and in the execution
of a common purpose to kill and rob the deceased.’
State
Case
The
evidence of the State in the court
a quo
can briefly be
summarised as follows:
[6]
The deceased, a 60 year old white male, and the appellant, a 25 year
old black female, first met at the adult entertainment
restaurant, Di
Capriccio, where the appellant was employed as a call-girl. The
deceased used to take her to his home for a night
at the cost of
R1 300 (one thousand and three hundred rand). A
love
relationship then developed between them and they got married to each
other on 28 April 2005.
[7]
The evidence the State presented, tended to show that the appellant
married the deceased for material things, i.e. money and
property.
According to the State as the couple were married in community of
property the appellant was entitled to half of the
deceased’s
estate. The gross value of the deceased’s estate was
R893 000.00(eight hundred and ninety-three thousand
rand). The
deceased received the pension of R4 500 (four thousand and five
hundred rand) per month. The value of the deceased’s
house at
[…] H., Veldvlei, Richards Bay,
was
estimated to be R700 000 (seven hundred thousand rand).
[8]
During the evening of 19 January 2006, the deceased and the appellant
were travelling in the deceased’s
motor
vehicle, a
Toyota
Corolla, from Gauteng to Pietermaritzburg; visiting the appellant’s
family. Whilst they were in the vicinity of Colenso
the deceased
pulled off the road and parked on the side of the road and it was at
that moment that
the
hijackers struck. The couple were hijacked. The deceased was later
found dead in the tall grass on 20 January 2006, a short
distance
away from where the hijackings had allegedly taken place. The
deceased’s cause of death was asphyxia by strangulation.
[9]
The State presented evidence to show that the appellant masterminded
the killing and robbery of the deceased for monetary and
property
gain. In order to secure conviction on the charges of murder and
robbery with aggravating circumstances, the State relied
on the
narration of hearsay evidence by certain witnesses relating to the
statements the deceased allegedly made to them as well
as the fact
that subsequent to the hijacking  incident the appellant
allegedly pointed out the body of the deceased to the
police in terms
of s 218(2) of the Act as the intermediate facts supporting the
inference that the appellant was responsible for
the death of the
deceased.
[10]
The statements the deceased had allegedly made to  the state
witnesses were to  the effect that the appellant had
physically
and emotionally abused the deceased, depriving him of his freedom of
movement by detaining him as a virtual prisoner
in his own home; she
overspent on the deceased`s Edgars  account; she depleted the
deceased`s bank account to such an extent
that it went into an
overdraft; she cleared the deceased`s house of furniture and she
violently abducted the deceased from his
house at Richards Bay to
certain premises at Midrand, Gauteng, where she held him captive
until the day he met his death.
[11]
Josias Conradie Marais, a Richards Bay attorney practising under the
name and style of Connie Marais Attorneys, testified that
on 12 May
2005 he consulted both the deceased and the appellant.
Following such consultation Marais drew up a joint will
for the
parties, as they were married in community of property, setting out
how each fifty percent of the joint estate moneys devolve
on the
death of each party. The deceased’s portion of the estate would
devolve upon his three children in equal shares. The
appellant
nominated her mother, Pauline Mthembu, of […] T. Road, Unit
[…], as the beneficiary to her estate in the
event of
predeceasing her mother. The parties returned to Marais’ office
on 18 May 2005 for signature.
[12]
On 6 June 2005 the deceased visited Marais’ office alone for
consultation purposes. During such consultation the deceased
told him
(Marais) that he intended to divorce his wife, the appellant. The
deceased went on to state that he and the appellant
had met each
other at Club Di Capriccio where the appellant was working as a
prostitute. The deceased used to pay an amount of
R1 300 (one
thousand and three hundred rand) for taking the appellant out for a
night.
[13]
The deceased narrated to Marais that the appellant was physically and
emotionally abusing him. The appellant had assaulted
the deceased by
scratching him on the arm. Dr. Gary Cloete treated the deceased for
an injury on his arm and put a bandage thereon.
The deceased told
Marais that the appellant had overspent on the deceased’s
Edgars account when making purchases at Edgars,
using the deceased’s
card. The appellant had on three occasions locked the deceased inside
his house. The appellant had taken
with her car keys, identity
document, credit cards and a cheque book. As a consequence, the
deceased had stopped the cheque book
and cancelled the credit cards.
The deceased told Marais that he sought a divorce from the appellant.
[14]
The deceased went on to say that since his marriage with the
appellant, there were persons that had moved in to stay with him
in
his house. He referred to such persons as the appellant’s
cousins and he, the deceased, stated that he was then seeking
a
restraining order against them. The deceased then undertook to
furnish Marais with the particulars and details of such persons.

Since the deceased was in a hurry Marais scheduled another
consultation meeting with the deceased for 17 June 2005.
[15]
On the appointed date the deceased once again, came alone. On 17 June
2005 the deceased appeared to Marais to be more relaxed
and the
bandage on his arm had been removed. According to Marais the
deceased’s arm was black and quite badly damaged.
[16]
The reason for the deceased wanting a divorce was that the appellant
had left him all by himself on 6 June 2005 for Johannesburg
and he
had not heard from her since. At the time the deceased gave Marais
instructions for a divorce, according to Marais, he had
had something
to drink but Marais could understand him. He, the deceased, was able
to communicate properly.
[17]
Marais also acted as an executor in the winding up of the deceased’s
estate. He secured the deceased’s bank account.
The deceased
had only the First National Bank Account. He was in receipt of a
monthly pension of approximately R4 500 (four
thousand and five
hundred rand) from the Joint Municipal Pension Fund. The appellant
would by virtue of the marital regime benefit
from the fund upon the
death of the deceased. The value of the deceased’s house at […]
H.,  Velddenvlei, Richards
Bay, was estimated at R700 000
(seven hundred thousand rand).
[18]
Marais had previously received correspondence from the appellant’s
attorneys, Siva Chetty, stating that they were under
pressure from
the appellant to have the deceased’s estate wound up. They
further, stated that according to their instructions
by the
appellant,
the deceased had
communicated to Marias that his state was worth approximately R 5
million. However, Marais denied that the deceased
had said such a
thing to him.
[19]
Under cross-examination, by Mr. Matthews for the defence, Marais
conceded that he was only testifying about what the deceased
had told
him and that he could not vouch for the correctness and truthfulness
of what the deceased had told him. When Mr Matthews
put to him that
the slip for the purchase made at Edgars was generated on 6 June
2005, which was the day on which the deceased
went to Marais’
office for consultation, Marais could not provide any intelligible
answer.
[20]
To a certain extent, Marais’ evidence finds support in the
evidence of Caroline Riddle of Kloof, who testified that the
deceased
was her brother. She and the deceased had a good relationship and the
deceased confided in her a lot. The deceased had
divorced Caroline
Mallon who lived close by the deceased’s house and who was also
an employer of Doris Ntinga, the deceased’s
domestic worker.
The deceased had been in the employ of the Richards Bay Municipality
as an assistant town engineer, and he had
at the time of his death
been boarded from his employment.
[21]
Riddle stated that she first got to know about the deceased’s
marriage with the appellant when the deceased telephoned
her from his
house. According to Riddle, within two weeks of the marriage to the
appellant, the deceased asked her for help saying
that he made a
mistake by marrying the appellant. She then immediately drove to the
deceased’s house at Richards Bay and
the deceased told her what
had happened.
[22]
She found the deceased without money, food and transport. He told her
that the appellant had gone to Gauteng and that she had
taken his
wallet, identity document and a car with her. Two other women, who
were allegedly the appellant’s cousins, had
then moved in to
stay with the deceased in the house. On 6 January 2005, she, Riddle,
took the deceased to an attorney, Josias
Conradie Marais, for
consultation since he, the deceased, sought a divorce. The deceased
also intended to make a new will in which
he would bequeath his
estate to his three children. On 17 June 2006, after the
consultation, Riddle accompanied the deceased to
Empangeni
Magistrates’ Court where they both made an application for a
protection order to be issued against the appellant
and two other
women, Ayanda Mthembu and Pretty Lucia respectively. Riddle was
present during the consultation.
[23]
The deceased was not in a state of good
health and as a result Riddle
took him to a chemist for medication. The deceased was suffering from
a bipolar disorder which required
medication to control it. The
deceased had a bandage on his arm. Riddle testified that although the
deceased was not good emotionally
and physically, he was
compos
mentis
(in sound mind). She
conceded that the deceased was an alcoholic but she stated that on
the day in question he was sober.
[24]
On the same day, Riddle organized that the locks of the deceased’s
house be changed for the deceased’s protection.
Ntinga had a
set of keys to the deceased’s house in her possession to use
when she came to do her cleaning duties. The other
set of keys was
with Caroline Mallon, the deceased’s ex-wife. Riddle stated
that she kept in touch with the deceased, telephonically,
for several
weeks until his disappearance.
[25]
Mallon reported to Riddle that the deceased had disappeared from his
home and that he had abandoned his house. Riddle then
proceeded to
Richards Bay Police Station to make a missing person’s report
to Warrant Officer Taylor. From the police station
Riddle, in the
company of Taylor, proceeded to the deceased’s house. On their
arrival there, the two saw blood all over the
dining room and lounge.
The house was cleared of furniture. The other room was locked from
the inside and in order to gain entry
into that room the police
kicked its door open. The deceased had not told his sister, Riddle,
of his plan to move to Gauteng.
[26]
When Riddle later made contact with the appellant, the latter told
her to stop interfering with the deceased as he then belonged
to her.
The appellant went on to threaten Riddle saying that she knew where
she, Riddle, lived and worked.
[27]
Before her departure to overseas for a holiday, Riddle persuaded the
appellant to allow her to see the deceased. The appellant
agreed to
meet her outside Pine Town Police Station but the appellant did not
honour the appointment.  When she, Riddle, phoned
the appellant,
the latter laughed at her saying that she thought that she was stupid
if she, Riddle, indeed expected that the appellant
would meet her. On
her return from the overseas trip, Riddle heard that the deceased had
been a victim to armed robbery. Later,
Coetzee, a police officer,
told her that the body of the deceased had been discovered.
[28]
The evidence of Riddle finds corroboration in the evidence of Warrant
Officer Craig Taylor with regard to what transpired after
the
deceased had been reported missing. Taylor testified that Riddle made
a report to him that the deceased was missing. As a result,
a missing
person’s
file
was opened. Together with Riddle, he proceeded to the deceased’s
house where he observed signs of blood in the dining
room. When he
telephoned the deceased on his cellular phone the call was cut off.
When he phoned the appellant, the appellant told
him that she and the
deceased were happily married and that the deceased was fine. The
appellant furnished Taylor with their residential
address, […]
C. Road, Midcity, Midrand. Taylor then told the appellant that he had
received a missing person’s
report
and when he asked to talk to the deceased the call was terminated.
[29]
Taylor received information relating to a cheque being cleared for
payment. He then phoned the First National Bank to get the
bank to
delay clearing the cheque. However, his attempts were unsuccessful
because the bank had already cleared the cheque.
[30]
Taylor testified that he had previously met the deceased in June 2005
when he received the interim protection order to serve
on the
appellant. He went to the deceased’s house to serve it on the
appellant but she was not there. Taylor described Club
Di Capriccio
as an adult entertainment club situated in the Richards Bay CBD.
[31]
Under cross-examination, Taylor explained that there was a little
blood in the grouting of the floor tiles of the dining room
or lounge
area. He concluded that an attempt had been made to freeze the
deceased’s bank account and to stop the cheque on
the ground
that the deceased had been abducted. Taylor stated that he conveyed
the message to the bank that the deceased had been
abducted. It was
put to Taylor on behalf of the appellant, that the deceased told him
that he had not been abducted and that he
should stop fooling around
with his bank account. Taylor responded by saying that he did not
remember such a conversation taking
place.
[32]
Doris Ntombinkulu Ntinga, the deceased’s domestic worker,
testified about some of the events that preceded the disappearance
of
the deceased. She stated that she was in the employ of the deceased
at the suburb, Veldenvlei, Richards Bay since 1993. She
worked for
the deceased once a week on a Thursday. One day she met the appellant
for the first time at the deceased’s house
and the deceased was
also present. The appellant told her that she was in love with the
deceased, and that they were going to get
married. She said that in
fact they, the deceased and the appellant, were on their way to get
married. At 11h15 they returned home
and had champagne together.
[33]
The deceased took the appellant to Pietermaritzburg. When Ntinga came
to work again the following week, the deceased told her
that he and
the appellant had got married. On this occasion the deceased was in
the company of the appellant’s two sisters.
On the same day the
appellant departed, leaving the deceased in the company of her two
sisters.
[34]
On another day, when Ntinga reported for duty at the deceased’s
house, the deceased told her that the appellant had gone
away with
his car keys and his wallet including his bank cards. A month later,
whilst Ntinga was on her way home
after work, the appellant in the company of certain persons stopped
her and demanded the set of
keys to the deceased’s house which
were in Ntinga’s possession and she gave them the keys.
Subsequent to this, Ntinga
did not see the deceased again.
[35]
Ntinga returned to the deceased’s house on the following
Thursday and she found that there was no one in the house. On
the
next Thursday, she found that there was no electricity in the lounge
and that the dogs had not been fed. She went and reported
this to
Caroline Griffiths-Mallon, the ex-wife of the deceased. The partner
of the deceased’s ex-wife came to collect the
dogs. Ntinga then
left the house.
[36]
When Ntinga contacted the deceased on his cell phone, the appellant
answered the call. She, Ntinga, asked to talk to the deceased.
When
she asked the deceased where he was, the deceased responded saying
that he was in Pietermaritzburg. When she asked if the
deceased was
safe, the appellant responded saying that he was safe. When this
happened, Ntinga realised that the cellular phone
had been removed
from the deceased’s possession.
[37]
When Ntinga returned to the house, she discovered that the house had
been cleared of the furniture. The deceased had not notified
her that
the furniture would be removed. She advised the deceased’s
ex-wife of this situation. The deceased did not tell
Ntinga that he
was terminating her services, nor had the deceased advised her that
he was then moving to Gauteng. The deceased’s
sister, Riddle,
had at some stage had the deceased’s house locks changed.
Ntinga had a set of keys in her possession so to
be able to gain
entry into the house when she reported for duty.
[38]
Vishen Singh, an operations manager, in the employ of the First
National Bank attached to the City Square Branch, testified
about the
financial state of the deceased immediately before his death. He
stated that the bank statements revealed that the bank
account of the
deceased was drained until it went into an overdraft shortly before
the deceased met his untimely death. Certain
amounts of money were
withdrawn from the deceased’s bank account at the ATMS, using a
bank card. Singh testified that in
such event a customer would have
had a pin-code to use the bank card at the ATM.
[39]
Cheque number 1095 in the amount of R20 000 (twenty thousand
rand) was cashed over the counter at Richards Bay FNB Branch
on 31
October 2005. Singh testified that when a cheque is cashed, the
teller phoned the client to confirm whether he or she has
issued a
cheque. If he or she answers in the affirmative and confirms the
identity of a payee, the cheque is then made payable.
This procedure
started two or three years ago before Singh’s testimony at the
court
a quo
. Previously, if the cheque was made out cash, it
was not necessary to confirm it with the drawer or client.
[40]
Various cheques on different occasions were cashed at Richards Bay
FNB Branch until the deceased’s bank account went
into
overdraft. Singh conceded that the First National Bank had specimen
signatures of the deceased. Singh said that when an item
is cashed
and the person does not have a cheque or a card mechanism, he or she
would go to the teller and request encashment for
whatever amount it
is.
[41]
Under cross-examination Singh testified that, as it was then, it
could not be established whether the cheques in question were
cashed
by the account holder or by somebody else, to whom the deceased might
have issued a cheque since the vouchers were not available.
According
to Singh cheques are sent back to the clients for their records.
[42]
Mr Matthews for the defence put to Singh that the deceased issued a
cheque in the amount of R91 500 (Ninety one thousand
and five
hundred rand) in favour of persons from whom he had purchased a motor
vehicle. The cheque could not be paid out because
the signature
differed from the bank specimen signature. When the deceased went to
enquire into the matter the bank staff told
him that his account had
been frozen on the allegation that he, the deceased, had been
abducted. After the deceased had communicated
to bank staff that he
had not been abducted, he drew another cheque and the bank honoured
such cheque. Singh conceded that a cheque
was not paid because the
signature differed with the bank specimen signature.
[43]
Singh stated that a request for a statement or balance enquiry is
done inside the bank. One cannot make a request for a statement
or
balance enquiry on another’s bank account. Nor can one have a
card replacement if one is not an account holder. As the
primary
account holder, the deceased if he wanted a bank to issue a card to
his wife, the appellant, she would have been a second
account holder.
[44]
Ntombenhle Angel Hlophe, a constable in the South African Police
Services stationed at Estcourt Police Station, testified that
whilst
performing charge office duties on 20 January 2006 one of her
colleagues brought the appellant into the charge office, as
a victim
of a car hijacking. The colleague in question had been performing
duties at Ultra City on the N3 highway. The appellant
was clad in a
bra and a cloth which covered her lower torso (lower part of her
body) including the pubic area.
[45]
Seeing that the appellant was undressed,
constable
Hlophe took her into an office away from the public. Hlophe left the
appellant in the office with the intention of giving
her time to
regain composure, as she appeared to her to be in a state of shock.
An hour later, Hlophe commenced questioning the
appellant about what
had happened and her personal details. She, Hlophe, and the appellant
were conversing in Zulu. Hlope then
obtained the statement from the
appellant, thereafter, the appellant read the statement and she was
satisfied that her statement
had correctly been recorded. Hlophe took
the statement from the appellant at 04h33.
[46]
Captain Cronje arrived and enquired from Constable Hlophe whether
everything was in order and she answered in the affirmative.
Hlophe
then took the appellant to the female quarters at the police station,
where the appellant took a shower and Hlophe gave
her some clothes to
wear. Subsequently, Hlophe took the appellant back to the charge
office and handed her over to Captain Cronje
as she, Hlophe, was then
going off duty.
[47]
Under cross-examination Mr Mathews for the defence put to Hlophe that
the appellant would deny that the lower part of her body
was covered
with a cloth, and state that she was stark naked. Hlophe denied all
this. She also denied that the appellant was made
to sit naked in the
charge office and that the male police members in the charge office
referred to her as a prostitute from the
highway. Once again, she
denied that the appellant, when she made a statement to her, was
frightened and confused. She went on
to state that at the time when
the appellant made the statement she had fully recovered and she was
in a fully composed state.
[48]
Goodwill Madoda Nzimande, a lieutenant in the South African Police
Services attached to the Serious and Violent Crime Unit
in
Pietermaritzburg, testified that during January 2006 he was holding a
rank of a warrant officer. On 20 January 2006, he was
on duty and
whilst on duty he received a report that the appellant’s
husband, the deceased, had gone missing. At the time
the appellant
was at Colenso Police Station. Nzimande in the company of Detective
Warrant Officer Ndlela proceeded to where the
appellant was, with the
intention of interviewing her and finding out what had happened. The
appellant was then a witness to the
disappearance of her husband.
[49]
After Nzimande and Ndlela had introduced themselves to the appellant
they took her into an office at Colenso Police Station.
On
questioning the appellant Nzimande was not satisfied with what she
was saying and to him it appeared as if she had some knowledge
of the
deceased’s disappearance. At that junction Coetzee joined them,
i.e.,
Nzimande, Ndlela and the
appellant. At that point Ndlela left the office to talk on a cellular
phone outside.
[50]
On his return to the office Ndlela reported to Nzimande that he had
talked to the deceased’s sister, who made a report
to him. This
report had the effect of changing the status of the appellant from
being a complainant to that of a suspect in the
kidnapping and
disappearance of the deceased.
[51]
Nzimande then informed the appellant that she was then under arrest
on the charge of kidnapping or abduction. He subsequently
informed
the appellant of her constitutional rights. After informing the
appellant thus, Nzimande then enquired from the appellant
whether she
intended to exercise any of the rights he had explained to her. She
responded saying that she wanted an attorney and
furnished Nzimande
with the name of the attorney, Siphiwe Ngwenya.
[52]
Nzimande then gave her his cellular phone in order for her to make a
phone call to Ngwenya. The appellant talked to Ngwenya
and thereafter
Nzimande in turn talked to Ngwenya. He told Ngwenya that he had
arrested the appellant and Ngwenya stated that he
had no problem,
they (Nzimande and Ndlela) could go ahead and question the appellant.
Nzimande then told Ngwenya that the appellant
would be detained at
Loop Street Police Station.
[53]
On their way to Pietermaritzburg Nzimande and Ndlela put questions to
the appellant. To Nzimande, the appellant appeared to
be relaxed and
she was also engaged in general conversation with Nzimande and
Ndlela. As they were approaching Howick, the appellant
made a report
to Nzimande. Following such report, Nzimande stopped the vehicle in
which they were travelling, and reminded the
appellant of her
constitutional rights. Nzimande turned the vehicle and headed towards
Colenso. The appellant directed them, i.e.,
Nzimande and Ndlela, to
D52 Road. As it was then getting dark,
they
could not see the area and they travelled back to Pietermaritzburg.
The appellant was detained at the Loop Street Police cells
for the
night. In the morning on the following day, Nzimande and Ndlela
booked the appellant out of the Loop Street Police cells
and drove
her back to D52 Road.
[54]
Before taking the appellant back to D52 Road, Nzimande enquired from
her whether she was still prepared to do a pointing out.
He also
explained to her that she had the right not to point anything out,
and if she elected to point something out to them that
would be used
as evidence against her in a subsequent trial. Nzimande then afforded
her an opportunity to consult her attorney
in this regard but she
declined to have any attorney present.
[55]
On reaching D52 Road, the appellant requested Nzimande to drive
slowly. At the time the appellant was seated behind Nzimande
who was
then driving a double-cab bakkie in which the three were travelling.
Nzimande observed her looking to the right hand side
of the road. At
some point, she requested Nzimande to stop the vehicle. At the time
Nzimande could not see anything as the grass
was tall on the side of
the road. Nzimande then alighted from the vehicle, leaving the
appellant and Ndlela in the vehicle. He
then proceeded to the place
the appellant was pointing out to him.
[56]
On reaching the spot the appellant had pointed out, Nzimande
discovered the body of the deceased. He then measured the distance

from where he had discovered the body of the deceased to the point at
which one turns onto D52 Road. The distance was 3.9 kilometres.

According to Nzimande there was nothing distinctive about the spot
where the body of the deceased lay.
[57]
Nzimande removed an identity document from the deceased’s
breast pocket. He compared the photograph, in the identity
document,
and the face of the deceased and he found it resembling the deceased.
The appellant was made to wait in the vehicle.
The appellant did not
appear shocked or surprised by the discovery of the body of the
deceased. It appeared to Nzimande that the
deceased had been
strangled to death by means of a rope or similar object.
[58]
Under cross-examination, Nzimande stated that the appellant had
without inducement made a report which caused them to turn
around and
return to Colenso area. In response to the appellant’s version,
that it was in fact Ndlela who spotted the body
of the deceased
whilst standing on the back of the bakkie, Nzimande stated that it
did not happen in that way. According to Nzimande
it was the
appellant who pointed to them the spot where the body of the deceased
was later discovered.
[59]
Mr. Matthews for the defence put to Nzimande that the appellant would
admit that she led Nzimande and Ndlela to the place where
the body of
the deceased was later discovered. But, according to the appellant
this happened after Nzimande and Ndlela had verbally
and physically
abused her by insulting and kicking her with booted feet on the
buttocks. Nzimande denied all this.
[60]
The evidence of Nzimande finds support in the evidence of Lieutenant
Ndlela, who was at the time a warrant officer in the South
African
Police Services attached to the same unit as Nzimande, in all
material respects.
[61]
Warrant officer Bashir Ahmed Khan, a member of the local Criminal
Record Centre stationed at Ladysmith, testified that he attended
the
scene on January 2006. He took photographs on the scene of the
crime and prepared a photo
album of the scene. The scene was on a gravel road, D52, running from
road, P294, between Colenso and
Winterton. The road in question is
used mainly by the
farming
community. The body of the deceased was found lying obscured by long
grass, approximately 4 metres away from the edge of
the gravel road.
It was not visible unless one were to observe it from an elevated
position.
[62]
Protas Lucky King, a provincial traffic inspector in the employ of
the Road Traffic Inspectorate of KwaZulu-Natal, testified
that on 22
January 2006 he was on duty and whilst performing patrol duties on
the
N3
Freeway
he
came upon a silver Toyota Corolla bearing registration letters and
number S[…]GP on the North bound carriageway of the
N3
Freeway. This point was approximately 10 km away from the bridge on
the N3 Freeway, where it crosses over P294 Road. On the
following
day, the vehicle was still on the same spot. On opening the vehicle
King discovered that the interior of the vehicle
was partially burnt.
[63]
Dr. L Badul, who performed a post-mortem examination on the body of
the deceased, found the cause of the deceased’s death
to be
asphyxia brought about by strangulation. The deceased had
strangulation marks around his neck. Some ligature had been used
to
strangle the deceased. The deceased had his 4
th
and 5
th
ribs fractured, and as a result the deceased’s left lung got
perforated. This according to Dr. Badul was indicative of
considerable
pressure being exerted to the deceased’s
chest-wall. This concludes the evidence for the State.
[64]
At the close of the State case the defence asked for the appellant’s
discharge in terms of s 174 of the Act on the ground
that the State
case entirely rested on the interpretation of the provisions of s
218(2) of the Act, relating to the pointing out.
The test was whether
there was sufficient evidence on which a reasonable man could
convict. The Court
a quo
ruled against the appellant on the
ground that in its view the State had established a
prima facie
case against the appellant which called for an answer.
Defence
case
[65]
At the close of the State case the appellant testified in her favour
that the deceased was her husband, they got married to
each other on
28 April 2005 at Richards Bay. They first met each other during 2004
in Pietermaritzburg whilst she was walking along
the road, after
attending a modelling class at Irene’s Modelling School. It was
a very hot day. The deceased stopped his
vehicle and offered her a
lift which she accepted. The deceased then enquired from the
appellant as to whether she was employed
and to which she answered in
the negative. The deceased then told her that there was an employment
which he could offer her. The
deceased and the appellant then
exchanged telephone numbers. The deceased subsequently dropped her at
Market Square.
[66]
Three weeks later, the deceased phoned the appellant. He requested
her to pay him a visit. The appellant accepted the deceased’s

request and on the following day she set out on a journey to Richards
Bay. The deceased travelling in his vehicle met her in town
at
Richards Bay and took her home. On arrival there, the appellant
discovered that the deceased was staying alone in the house.
[67]
The love relationship between the two of them then started. The two
lived together before marrying each other. Shortly, before
the
marriage the deceased phoned the appellant’s mother to tell her
that he intended to marry her and that he would pay labola
in the
amount of R20 000 (twenty thousand rand) for her. The appellant
and the deceased subsequently travelled to Pietermaritzburg
where the
deceased gave the appellant’s mother a cheque which she later
duly cashed. The deceased and the appellant returned
to Richards Bay
where they got married and lived happily together.
[68]
In the period between the appellant’s moving in with the
deceased and his death, she had only spent two nights apart
from the
deceased when she was ill. During 2005 the deceased declared that the
couple should relocate to Gauteng Province so that
they could get
away from his family members who were interfering with their
relationship and opposed to their marriage. As a result,
the couple
moved into a house in Concerto Road, Midrand, Gauteng, where they
continued living together as husband and wife.
[69]
The couple moved to Gauteng Province during October 2005. Whilst they
were still trying to put up their Richards Bay house
for sale, they
stayed at the hotel. The deceased then approached Pam Golding
properties in Gauteng for the sale of the Richards
Bay house. In
turn, the Pam Golding properties Gauteng branch communicated with a
Richards Bay Pam Golding properties branch with
regard to a sale of a
house at Richards Bay. Eventually, the couple bought a property in
Johannesburg, Midrand, house number […]
C. Road.
[70]
The deceased then decided to purchase a Renault Motor vehicle, black
in colour. After making payment for the vehicle with a
cheque, the
bank advised the deceased that there was something wrong with the
cheque. As a result, both the deceased and the appellant
proceeded to
the bank since the deceased had to come to the bank personally. Her
husband, the deceased, never told her that he
was divorcing her and
nor had he told her that he had sought a protection order against
her.
[71]
During the evening of 19 January 2006, the deceased and the appellant
were travelling in a motor vehicle from Midrand to Pietermaritzburg,

visiting the appellant’s family. They had left Gauteng between
18h30 and 19h00. It was only the two of them in the vehicle.
They
took a Newcastle route since the deceased was avoiding traffic police
as he was then driving under the influence of alcohol.
[72]
As they approached Colenso the deceased pulled off the road saying
that he had heard some noise coming from the front of the
vehicle.
Both the deceased and the appellant alighted from the vehicle. The
deceased opened the bonnet of the vehicle and attended
to a part that
he said had broken off or split. The appellant did not know what part
it was. After the deceased had put that part
together, the couple
returned to the vehicle. It was at the juncture that a 1400 white
bakkie appeared and pulled off in front
of the couple’s
vehicle. Three males alighted from the vehicle. Two of them
approached the deceased. One of the two was carrying
a 5 litre petrol
container in his hands. They approached her husband’s side of
the vehicle. Before they could say anything,
her husband said that
‘these people must be wanting petrol’. He then opened a
window. One of the assailants acted as
if he was saying something to
the appellant’s husband, the deceased. He then pointed a
firearm at the deceased’s head
and ordered him to alight from
the vehicle and get to the backseat. Also the one who was on the
appellant’s side ordered
her to alight and get into the
backseat of the vehicle. The couple followed all the instructions the
would be robbers were issuing
to them.
[73]
One of the assailants climbed behind the steering wheel of the
deceased’s vehicle and the other one got into the backseat
and
sat with the couple. The third one drove the 1400 white bakkie,
following the deceased’s vehicle. The vehicle drove off
in the
direction of the freeway. Whilst driving the petrol warning light
came on. The appellant knew that they were low on petrol,
as her
husband has said that they were going to stop at Ultra City and
refill the vehicle with petrol, before the hijacking. The
vehicle
drove until it came to the D52 Road where it stopped. One of the
assailants or would be robbers, who was seated with the
couple on the
backseat, told the appellant to take off her clothes. The appellant
complied with the instruction until she was left
with only a bra on.
The would be robber then asked the appellant to suck his penis.
[74]
The one on the driver’s seat objected to that taking place
inside the vehicle. He then told the other robber and the
appellant
to alight from the vehicle. The would be rapist took the appellant to
the back of the vehicle where he attempted to rape
her. However, he
had a problem of getting a full erection. Whilst attempting to rape
the appellant, the would be rapist was disturbed
by the light of an
oncoming vehicle. He then jumped back into the vehicle which drove
off, leaving the appellant out of the vehicle.
She then found an
opportunity to flee into the bushes. The vehicle made a U-turn,
facing the opposite direction, and it disappeared
from sight. The
appellant did not see which route it took.
[75]
Although the appellant was semi-naked she managed to make her way to
the N3 where she found a truck which took her to Ultra
City. When the
truck driver phoned the police, the latter told him that there were
members of the police attending the accident
scene at the Ultra City.
The truck driver should drop the appellant at the scene and she would
find the
police
waiting for her. There she happened to find the police who later
conveyed her to Estcourt Police Station. At this police
station she
was made to sit stark naked. The male police officers mocked and
referred to her as the prostitute from the highway.
This happened
before Constable Hlophe took the appellant to the office to make a
statement. Hlophe assisted the appellant by connecting
her with her
mother. Her mother eventually came to Estcourt Police Station
bringing the appellant clothes. The appellant together
with her
mother were later taken to Colenso Police Station.
[76]
At Colenso, Nzimande and Ndlela came and took her to the office
wherein they questioned her in an abusive manner. They assaulted
her
by kicking her with booted feet and manhandled her. Subsequently,
they took her to Pietermaritzburg. Nzimande and Ndlela also
took her
to the park where they further physically abused her until she wetted
herself. They told her that if she were to share
her money with them
they would take her back home.
[77]
As she also desired that her husband be found, the appellant agreed
to take Nzimande and Ndlela to the place where she last
saw the
vehicle in which she and her husband had been travelling, after the
hijacking. Nothing was found. They returned to Pietermaritzburg
and
she was detained at Loop Street Police Cells. On the following day,
Nzimande and Ndlela took the appellant back to the road
which she had
on the previous day pointed out to them, as the place where she had
last seen the deceased’s vehicle. The three
were travelling in
a double cab bakkie. The appellant was made to stand on the back of
the bakkie with Ndlela. Whilst the appellant,
Nzimande and Ndlela
were travelling in a bakkie along the road Ndlela spotted the body of
a person lying in the tall grass, on
the right hand side of the road.
[78]
The appellant denied taking the deceased’s car keys and bank
cards. The appellant stated that, with the permission of
the
deceased, she purchased some items at Edgars, using the deceased`s
card. However, the latter did not tell her how much money
she should
use. Her husband would sign for the purchases she had made. She did
not have signing powers. The deceased used to be
present whenever she
made purchases at Edgars as he would sign for them.
[79]
The appellant denied that she had ever been at the Club Di Capriccio
Restaurant. She also denied having any sister or cousin
with the name
of Ayanda Mthembu and Pretty Lucia.  The persons she knew as her
relatives were Ntombifuthi Mthembu and Zandile
Mthembu. They visited
her at Richards Bay. They only spent two nights with her there. She
stated that whilst under the influence
of alcohol the deceased fell
and injured his own arm.
[80]
The deceased used to refuse to talk to his sister over the phone. The
deceased’s sister then threatened to report to
the police that
the appellant had kidnapped her brother. At some stage, the
deceased’s bank account was frozen and the deceased
asked the
bank staff to unfreeze it.
[81]
The appellant pointed out to Narrainsamy Naidoo, a practising
attorney of Siva Chetty & Co, a house which she and the deceased

occupied in the Midrand, Gauteng area. Naidoo confirmed that the
appellant showed him the house number […] C. Road. He took

photographs of the property and later compiled a photograph album of
the property concerned. Naidoo testified that it was the agent
of Pam
Golding of Roodepoort branch who was involved in the purchase of the
property in Gauteng as well as the sale of the Richards
Bay house.
The deceased wanted Pam Golding to sell the Richards Bay house on 18
November 2005.
[82]
The appellant’s evidence finds corroboration in her mother’s
evidence, Nothi Pauline Mthembu, with regard to the
appellant’s
meeting with the deceased, the payment of labola and her emotional
and physical abuse by Nzimande and Ndlela
at Colenso Police Station.
Pauline Mthembu testified that the treatment meted out to her
daughter not only caused her to cry but
also other female police
officials stationed at Colenso, who were present there. She saw the
police assaulting her daughter by
kicking her with booted feet. This
had been preceded by a cry emanating from the officer where the
appellant, Nzimande and Ndlela
were.
[83]
Simphiwe Ngwenya, a practising attorney of Siva Chetty & Co,
testified that he could recall the hijacking incident involving
the
appellant. The appellant phoned him from Colenso Police Station about
the matter and he informed her that he would come to
Colenso Police
Station, and that she should not say anything to the police until he
arrived. Subsequently, Ngwenya learnt from
a certain Nomtesha that
the police had taken the appellant to Loop Street Police Station with
them. On the following day, Ngwenya
proceeded to Loop Street Police
Station to see the appellant but he could not find her there, and her
whereabouts were unknown.
[84]
Under cross-examination, Ngwenya denied that he told Nzimande and
Ndlela that he would have no problems should they go ahead

interviewing the appellant in his absence. He added, saying that as
an attorney he would have liked to be present at the time the
police
were interviewing the appellant. This concluded the evidence for the
defence.
Findings
by the court
a quo
[85]
The court
a quo
rejected the version of the appellant as false beyond all reasonable
doubt and accepted the evidence of the State witnesses; Marais
and
Riddle of a hearsay nature and the direct evidence as being reliable,
truthful and more probable. It took the
view
that it was in the best interests of justice to accept such hearsay
evidence in terms of section 3(1)(c) of the law of Evidence
Act, as
it was relevant to prove the facts in issue. When it made the
ruling on the admissibility of hearsay
evidence, the court
a quo
stated that it would give reasons later in the judgment. But,
unfortunately, such reasons are not found in the four corners of
its
judgment. It might have been due to an oversight that the court
omitted to give reasons for its ruling on the admissibility
of
hearsay evidence.
[86]
Also, in convicting the appellant the court
a quo
relied much
on the provisions of s 218(2) of the Act in that the police
discovered the body of the deceased as a result of the
information
the appellant had given to them. The court
a quo
found that
the appellant was involved in the killing of the deceased and robbery
of the deceased and that the motive for the killing
on the part of
the appellant was to get money as an estate late of the deceased, as
her husband. The court rejected the appellant’s
version that
she and the deceased both fell victim to hijackers and that she
managed to escape. The court found that the appellant
shared common
purpose with the hijackers of the deceased’s vehicle.
[87]
The learned judge of the court
a quo
found that the only
reason the appellant married the deceased, who was much older than
her and an alcoholic, was to get money.
As the appellant and the
deceased were married in community of property the appellant was
entitled to half of his estate. The deceased
received a pension of
R4 500 (four thousand and five hundred rand) per month. By 3
January 2006 the deceased’s account
was overdrawn by R3 764.78
(Three thousand and seven hundred and sixty-four rand and
seventy-eight cents). The bank statements
revealed that numerous ATM
cash withdrawals were made on a daily basis from the deceased’s
account. The court
a quo
found that by the time of the
deceased’s death on 19 January 2006 his account had severely
been depleted.
[88]
The court ruled the pointing out by the appellant admissible mainly
on the ground that Nzimande and Ndlela as seasoned police
officers
would not have opened themselves up to criminal liability by
viciously assaulting the appellant at a police station, which
was not
their normal headquarters, in full view of witnesses. Neither the
appellant nor her attorney or her mother took any steps
to lay any
complaints against both the police officers in this regard.
[89]
Further, the court, in this regard, held that the policemen were
concerned about finding the deceased alive  due to the
missing
person’s report which was put out by his family. By her own
admission under cross-examination the appellant herself
was anxious
to find the body of the deceased and she accordingly agreed to take
them to the place where she had last seen the deceased’s

vehicle. It was the appellant who directed the police to the area.
The court concluded that the voluntariness on the part of the

appellant when such pointing out was made had been proved.
[90]
The court
a quo
went on to hold that a striking feature of
Nzimande evidence was that when he informed the appellant that he had
found the deceased
he observed that she showed no surprise or shock
whatsoever. The court took the view that her reaction seemed to
confirm that she
knew all along that the body of the deceased was
lying somewhere in the area to which she directed the police
officers. Accordingly,
it concluded that the discovery of the
deceased’s body would never have taken place without the help
from information presented
by the appellant. In the premises, the
court
a quo
found it reasonable to infer that she bore
knowledge all along as to what happened to the deceased during the
evening of 19 January
2006.
[91]
The court
a quo
rejected the version of the appellant that she
and the deceased were hijacked and that the hijackers drove off with
the deceased
after an attempt to rape her had aborted as being false.
The court found it improbable that the hijackers after driving off
with
the deceased, they would then kill him and come back to dump his
body in the immediate vicinity from where he had been abducted.
The
court found that the deceased and the appellant were never hijacked.
But, the deceased’ death was a consequence of a
highly
elaborate and well thought out plan to get rid of him.
Discussion
[92]
Hearsay evidence can be defined as evidence of communication by a
non-witness tendered to prove the truth of that which the
non-witness
intended to communicate. Hearsay evidence was redefined in s 3(4) of
the Law of Evidence Act to mean 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.
[93]
Evidence is admissible when it has to be taken into account by the
court in determining whether the facts in issue have been
proved or
not. The basic rule is that to be admissible evidence it must be
relevant. Section 210 of the Act provides
‘
no
evidence as to any fact, matter or thing shall be admissible which is
irrelevant or immaterial and which cannot conduce to prove
or
disprove any point or fact at issue   in criminal proceedings.’
[94]
Generally, hearsay evidence is not admissible. The primary reason for
the exclusion of hearsay evidence is its general unreliability
simply
on the ground that it rests, for its evidential value, on the
untested memory, perception sincerity and narrative capacity
of a
declarant or actor who was not subjected to the oath,
cross-examination or any other procedural devices.
[95]
However, s 3(1)(c) provides an exception to the general exclusionary
rule of hearsay evidence provided the requirements set
out in
paragraphs (a), (b) or (c) are satisfied. In terms of s 3(1)(c) the
court has a discretion to receive hearsay evidence whenever
it is ‘of
the opinion that such evidence should be admitted in the interests of
justice’. The admissibility of all
hearsay evidence rests on
two basis; trustworthiness and necessity. To put it differently the
evidence in question must carry the
‘hallmark of truthfulness
and reliability’ for its reception to be doubtlessly justified;
see
S v Mokoena and others
2006 (1) SACR 29
(W) at 47f.
Section
3(1)(c)
[96]
Section 3(1)(c) enjoins the court to take into account both the
probative value and the prejudicial effect of an item of hearsay

evidence in determining its admissibility. In determining whether it
is in the interests of justice to admit hearsay evidence,
the court
must have regard to the factors mentioned in s 3(1)(c). The section
requires the court to consider at least six factors
specified in
paragraph (c) before making a finding in terms of that paragraph. The
court would only after it has given regard to
each of the factors
specified in s 3(1)(c) cumulatively, be in a position to decide
whether or not it is in the interests of justice
to admit the hearsay
evidence; see
S v Shaik and others
2007 (1) 240 (SCA) para
170;
S v Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
(CC) paras 35 to 38.
[97]
Hearsay evidence will be admissible if the court having regard to the
factors set out in paragraph (c) is ‘of the opinion
that such
evidence should be admitted in the interests of justice’.
However, it is not open to an appeal court to exercise
its discretion
to receive hearsay evidence under this section; see
S v Ndlovu and
another
1993 (2) SACR 69
(A) at 73a-c.
[98]
Factors that have to be considered under s 3(1)(c) of the Law of
Evidence Act are: the
nature of
the proceedings; the nature of the evidence; the purpose for which
the evidence is tendered; the probative value of the
evidence; the
reason why the evidence is not given by the person upon whose
reliability the probative value of such evidence depends;
any
prejudice to a party which the admission of such evidence might
entail and any other factor which should in the opinion of
the court
be taken into account; see also
Savoi
and others v National Director of Public Prosecutions and another
2014 (1) SACR 545
(CC) para
49.
(i)
The nature of the proceedings
[99]
Being criminal proceedings the onus was on the State to prove the
appellant’s guilt beyond a reasonable doubt in a fair
trial
which in terms of the Constitution entails the right to challenge the
evidence (s 35). However, the right to challenge evidence
does not
always encompass the right to cross-examine the original declarant;
see
S v Ndhlovu and others
2002 (2) SACR 325
(SCA)
para 24;
S v Shaik and
others
[2006] ZASCA 105
;
2007 (1) SA 240
(SCA) para 171. In the criminal proceedings the presumption of
innocence and the right to challenge evidence (which are now
constitutionally
recognised features of the broader right to a fair
trial) put a brake on reception of hearsay evidence in criminal
trials against
the accused.  See s 35(3) (h) and s 35(3)(i) of
the Constitution of the Republic of South Africa, 1996 (the
Constitution).
(ii)
The nature of the evidence
[100]
Since in the case of hearsay evidence the witness is not subjected to
the trial devices designed to identify, assess and eliminate
those
aspects of the evidence that render it potentially unreliable, it is
important for a court to (a) understand what the potential
dangers are; (b) consider the extent
to which those dangers actually arise in the case before it; and (c)
identify factors that
tend to reduce or even eliminate those dangers.
The dangers which a court must be alert to are: (i) insincerity on
the part of
the absent declarant or actor; (ii) erroneous memory;
(iii) objective perception and (iv) adequate narrative capacity. It
is only
after considering these factors that the court is in a
position to determine whether the hearsay evidence is sufficiently
reliable
to warrant its reception (subject to other factors in s
35(c)).
(iii)
The purpose for which the evidence is tendered
[101]
In
Hlongwane and others v Rector, St. Francis College and others
1989 (3) SA 318
(D) at 324E-F the court considered the fact that
hearsay evidence was tendered to establish a fundamental issue as
opposed to a
subordinate or side issue to be a fact that weighed
against reception. In
S v Mpofu
1993 (2) SACR 109
(N) at
116h-j Alexander J took the view that evidence that otherwise
relevant should be admitted if it carries ‘the hallmark
of
truthfulness and reliability’. In
S v Ramavhale
1996 (1)
SACR 639
(A) at 649a-e Schutz JA said:
‘
[A
court] should hesitate long in admitting or relying on hearsay
evidence which plays a decisive or even significant part in
convicting
an accused, unless there are compelling justifications.’
(iv)
The probative value of the evidence
[102]
Legal relevance is a function of two variables, the probative value
of the evidence and its prejudicial effect, and evidence
may only be
said to be legally relevant if the first outweighs the second. Legal
relevance is a necessary condition of admissibility.
­
(v)
The reason why the evidence is not given by the person upon whose
liability the probative value of such evidence depends
[103]
The declarant may not testify simply because he or she has passed
away or is unavailable. The admissibility of all hearsay
evidence is
rested on the two pillars of trustworthiness and necessity. In
S
v Ndhlovu and others
2002
(2) SACR 325
(SCA) para 44 the court found high probative force in
the powerful way in which all the evidence interlinked and completed
the
mosaic of the State case. In
Skilya
Property Investments (Pty) Ltd v Lloyds of London Underwriting
2002
(3) SA 765
(T) at 804C-D the court took into account the manner in
which the hearsay reinforced the other evidence and supported the
basis
of a suspicion.
(vi)
Any prejudice to a party which the admission of such evidence might
entail
[104]
The hearsay declarant or actor does not testify in open court subject
to the careful scrutiny of a judge, triers of fact,
adversary,
counsel and spectators; there is no oath; no factual platform
established from which to infer a capacity and an opportunity
for
accurate description; he or she does not speak in response to
questions which give shape to his
or
her testimony and lend to it both context and coherence; and, perhaps
most significantly, there is no cross-examination to clarify

confusion, expose dishonesty or error or extract information
favourable to the adversary which might act as a counter-weight to

the original  information.
(vii)
Any other factor which should in the opinion of the court be taken
into account
[105]
A court is under s 3(1)(c) required to consider all these dangers, as
well as other factors set out in that paragraph, before
deciding
whether it is in the interests of justice to admit the evidence.
Since these factors overlap it is more reasonable and
advisable to
give effect to their combined weight than to regard each as a
separate determination of admissibility; see
Makhathini
v Road Accident Fund
2002
(2) SACR 511
(SCA)
at 522C-D;
Skilya Property
Investments (Pty) Ltd v Lloyds of London Underwriting
2002
(3) SA 765
(T) at 800I – J.
Constitutionality
of section 3(1)(c)
[106]
The reception of hearsay evidence on the ground that it is in the
interests of justice to do so must also pass the constitutional

muster relating to the fairness of the trial. In
S v Ndhlovu and
others
2002 (2) SACR 325
(SCA) the constitutionality of s 3 was
at issue and the Supreme Court of Appeal found that the scheme and
the formulation of the
section were consonant with the Constitution
in that account had to be taken of the nature of the proceedings, and
importance of
a fair trial in determining whether it was in the
interests of justice to receive hearsay evidence against an accused
person in
a criminal trial. The admission of hearsay evidence against
an accused did not violate the accused’s right to challenge the

evidence by cross-examination, since the Constitution did not
guarantee an entitlement to subject all evidence to
cross-examination;
it contained the right (subject to limitation) to
‘challenge the evidence’. Where that evidence is hearsay,
the accused
is entitled to resist its admission and scrutinise its
probative value but, if the interests of justice require its
reception,
the accused does not have the right to cross-examine the
original declarant.
Court
a quo
`s Reception of Hearsay Evidence
[107]
The court
a quo
ruled the hearsay evidence by Marais, and
Riddle, which the State had tendered in order to prove the truth of
the reports/statements
the deceased had allegedly made to these
witnesses, admissible in terms of s 3(1)(c) of the Law of Evidence
Act on the grounds
that it was in the best interests of justice to do
so. The court
a quo
then undertook to provide reasons for its
ruling later in the judgment, which it failed to do. The result is
that the court
a quo
did not advance any reasons for its
acceptance of the hearsay evidence. This Court has no power to
advance reasons for the reception
of the hearsay evidence on behalf
of the court
a quo
. But, this Court has power to assess and
analyse the evidence presented in the court
a quo
and decide
whether the acceptance of the hearsay evidence in the present case
was justified. In any event, allowing hearsay evidence
will always be
prejudicial to the party against whom it is allowed. That is so,
because the original declarant cannot be cross-examined;
see
S v
Mokoena and others
2006 (1) SACR 29
(W) at 47f.
[108]
The State had tendered the evidence of Marais, and Riddle in order to
prove the truth of the reports/statements the deceased
made to them.
These statements were to the effect that the appellant had physically
and emotionally abused the deceased; deprived
him of his freedom of
movement; overspent on the deceased’s Edgars account; removed
furniture from the deceased’s house
and that she ultimately
abducted the deceased to Gauteng where she held him captive until he
met his death, on 20 January 2006.
[109]
For the reports/statements to be accepted as being truthful and
reliable, the court must be satisfied that at the time the
deceased
made such reports/statements he was in full possession of his senses.
The deceased had been diagnosed as being bipolar
and he was on
medication for such reason. Riddle testified that when she came to
the deceased’s house on 6 June 2005 the
deceased was not in a
good state of health and he had not taken medication for some days.
It was against that background she took
him to the chemist and bought
him medication. No medical evidence was ever tendered as to what
impact the lack of medication for
some days on the part of the
deceased would have had to his mental condition. The only evidence
tendered in this regard was that
of Marais and Riddle who expressed
an opinion that the deceased was of sound mind. No reliance can be
placed on such an opinion
by Marais and Riddle since they were not
qualified to express such an opinion. Marais testified that the
deceased was an alcoholic
and that even on the day of the
consultation he had had something to drink though according to Marais
he was not intoxicated. This
was once again Marais’ opinion as
it could not be said with certainty what the alcohol content in the
blood was, and ultimately
what his, the deceased’s, mental
capacity was. In the premises, the truthfulness, the correctness and
the reliability of
the reports/statements he made to these witnesses
could not be guaranteed.
[110]
On 6 and 17 June 2005 respectively, Riddle claimed to have been
present during the consultation between Marais and the deceased.

Whereas Marais states that on these two occasions the deceased was
alone. This creates a serious doubt as to whether Riddle had
even
been present during the consultation meetings between the deceased
and Marais. With regard to the appellant’s alleged
overspending
on the deceased’s Edgars account, it was not in dispute that
the slip for the purchases made was generated on
6 June 2005; this
was the day of the consultation. The deceased told Marais and Riddle
that the appellant had gone to Johannesburg
some time ago. Further,
Riddle testified that on the day in question she was with the
deceased from the time she arrived at the
deceased’s home until
they both went to Marais’ office for consultation. This would
mean that the deceased could not
be with the appellant at Edgars to
authorise purchases she had allegedly made, as it was always the case
when the appellant were
to make purchases on the deceased`s Edgars
account.
[111]
After Riddle had reported the deceased missing to Taylor, both Riddle
and Taylor proceeded to the deceased’s house.
On their arrival
there, they found blood all over the lounge and dining-room even
though they did not agree on the quantity thereof
and the area where
it was in the house. Under cross-examination, Taylor conceded that in
his initial police statement he made no
mention of that there was
blood in the dining room and the lounge of the deceased. Taylor could
reasonably have been expected to
have recorded this in his statement,
as it was still fresh in his mind. More so, Taylor conceded that he
did not involve the local
criminal record centre in order to have
blood, allegedly found in the deceased’s house, analysed.
Therefore, it could not
be said whether the blood in question was of
an animal or human being, let alone it being the blood of the
deceased. By the evidence
relating to the presence of blood in the
deceased house, the State intended to show that the deceased had
violently been abducted
from his house. No such proof was tendered.
[112]
By tendering the evidence that the deceased, when he came to Marais’
office for consultation, had an injury to his arm,
the State intended
to prove that the appellant was physically abusing him. Marais’
evidence as to how the deceased got injured
to his arm could not find
any corroboration from the evidence of Riddle, who could not tell how
the deceased sustained an injury
to his arm. Nor was the medical
practitioner, who allegedly treated the deceased for such an injury,
called to testify. In the
premises, it could not be said that the
explanation the appellant proffered that the deceased sustained such
injury when he fell
down during his intoxication, was improbable let
alone being false beyond reasonable doubt.
[113]
By the evidence of Marais that the deceased had complained to him
that his wife had on three occasions locked him inside his
house, the
State intended to show that the appellant deprived the deceased from
freedom of movement and kept him
captive in his own house. However, that the deceased told Marais that
on the third occasion the
appellant locked him outside the house,
detracts seriously from the truthfulness and correctness of the
statement that the appellant
deprived the deceased freedom of
movement since locking the deceased outside the house was not
consistent with the intention to
deprive the appellant of his
freedom.
[114]
The evidence by Doris Ntinga that the appellant, before the
disappearance of the deceased, removed the keys to the deceased’s

house from her possession constituted an assertion by implication
that the appellant was responsible for the subsequent removal
of the
furniture from the deceased’s house. In my view, this evidence
was legally irrelevant, due to its unreliability, to
be accepted as
accurate proof that it was the appellant who had removed furniture
from the deceased’s house either before
or after the deceased’s
alleged abduction.
[115]
With regard to the evidence tendered to support the allegation that
after abduction the appellant kept the deceased captive
on a certain
premises at Midrand, Gauteng, Riddle gave Taylor the contact number
of the deceased, in order to assist in tracing
the deceased.
Subsequent to that, Taylor had a telephonic conversation with the
deceased on 17 November 2005. He also received
a message from the
appellant that she and the deceased were happily married and that
they were then residing at […] C. Road,
Midrand, Gauteng.
However, he, Taylor, made a feeble attempt to verify the alleged
physical address of the appellant and the deceased
at Midrand. He
only contacted Sergeant Kwesi of Midrand Police Station to look for
the physical address in question. Kwesi allegedly
looked for the
place in the map and said that it did not exist. Nor did Taylor take
any further steps to verify the alleged physical
address. Nor did he
contact Pam Golding or the deceased’s daughter, who was by then
also resident in Gauteng, to help in
this regard. Sergeant Kwesi did
not testify as a witness. Riddle had been given a contact number of
the Pam Golding agent who was
then selling the property to the
appellant and the deceased at Midrand. There was nothing to show that
such agent was ever contacted
to verify the whereabouts of the
appellant and the deceased at Midrand.
[116]
It is unlikely that the appellant having abducted and kept the
deceased captive on a certain premises at Midrand, before his
death,
she would allow him to have telephonic conversations with persons
like Ntinga and Taylor. The evidence shows that shortly
after the
disappearance of the deceased, Ntinga contacted the deceased
telephonically and enquired from him his whereabouts and
after the
state of his health. The deceased responded, saying that he was in
Pietermaritzburg and that he was in a good state of
health. Taylor
also had a telephonic conversation with the deceased and he later
received a message from the appellant that she
and the deceased were
happily married and residing at 1387 Concerto Road, Midrand, Gauteng.
It was only Riddle that the appellant
disallowed telephonic contact
with the deceased. This could be consistent with the appellant’s
version that the deceased
did not want to have contact with the
members of his family, for fear that they would interfere with their
marriage.
[117]
Whilst in Gauteng the couple, the deceased and the appellant, still
had contact with the Pam Golding Branch in Gauteng and
Pam Golding
Richards Bay Branch. It was a Pam Golding agent who helped the couple
to acquire property at Midrand. They also telephonically
contacted
Pam Golding at Richards Bay to put up their house at H. for sale in
order for them to be able to purchase property in
Gauteng. This is
evident in the testimony of Riddle that on enquiring about the sale
of the house at Richards Bay, the Pam Golding
staff advised her that
they had received a telephone call from Mr Griffiths to put the house
up for sale. A member of Pam Golding
then furnished Riddle with the
contact number of a Pam Golding agent in Gauteng who was then helping
the appellant and the deceased
to acquire property in Gauteng.
[118]
More so, Taylor tried in vain to freeze the deceased’s bank
account or to stop a cheque at Midrand First National Bank
on the
allegation that the deceased had been abducted. The deceased
personally proceeded to the bank and told the bank staff that
he had
not been abducted, and as a consequence the cheque was cleared. In a
telephonic conversation between the deceased and Taylor,
the former
told the latter that it must get into his head that he was not
abducted and to stop fooling with his bank account. Taylor
said that
he did not remember that conversation taking place. It could be that
the conversation did take place between the two
but Taylor could not
remember. In the premises, the possibility of such conversation
taking place could not be excluded.
[119]
The State in its evidence in this case failed to exclude the
possibility of the deceased being of unsound mind when he allegedly

made the reports/statements to the State witnesses, Marais and
Riddle, in particular, which to a certain extent not coherent, as

outlined above. Absent proof that the deceased was indeed of sound
mind when he made the statements to the witnesses, the evidence

relating to the reports/statements the deceased allegedly made to the
state witnesses was not legally relevant to be accepted as
the truth
of what actually transpired and that such events had connection with
the death of the deceased.
[120]
The general rule is that all the facts relevant to the issue in legal
proceedings may be proved. The facts in issue in a criminal
case are
determined on the basis of the elements of the crime in question. The
facts relevant to the facts in issue must be logically
connected with
the facts in dispute. In the present case, the State failed to
establish any logical connection between the allegations
of the
physical abuse of the deceased by the appellant, the appellant’s
overspending on the deceased’s Edgars account,
detention of the
deceased in his own house, abduction and the holding of the deceased
captive at a certain premises in Gauteng
by the appellant and the
death of the deceased.
Circumstantial
evidence
[121]
In convicting the appellant the court
a
quo
solely relied on
circumstantial evidence in the form of hearsay evidence relating to
the alleged physical abuse of the deceased;
detention of the deceased
in his own house; siphoning of his money from his bank account;
abduction and ultimately
holding
of the deceased captive in Gauteng by the appellant as well as the
alleged pointing out of the deceased’s body to
the police by
the appellant as the intermediate factors supporting the inference
that the appellant was responsible for the death
of the deceased.
Cardinal
rules of reasoning by inference
[122]
In
R v Blom
1939 AD 188
at 202-203 the Appellate Division laid
two cardinal rules of reasoning by inference as follows:
(a) The inference to be drawn must be
consistent with all the proved facts, if it is not, then the
inference cannot be drawn;
(b) The proved facts should be such
that they exclude every reasonable inference from them save the one
sought to be drawn. If they
do not exclude other reasonable
inferences, then there must be a doubt whether the inferences sought
to be drawn is correct.
[123]
Circumstantial evidence, of course, rests ultimately on direct
evidence and there must be a foundation of proved or probable
fact
from which to work; see
R v
Mtembu
1950 (1) SA 670
(A)
at 679-680, as per Schreiner JA. The hypotheses of physical abuse,
holding of the deceased captive at his own house, siphoning
of his
money, overspending, abduction and ultimately detention of the
deceased at the premises in Gauteng by the appellant (as
the
intermediate facts to the appellant`s guilt of the crimes charged),
should be proved beyond reasonable doubt before any inference
can be
drawn from them. Therefore, it follows that the appellant could not
be found guilty of murder and robbery unless such hypotheses
had been
proved beyond reasonable doubt; see
Chamberlain
and Another v The Queen [No.2]
[1984] HCA 7
;
(1984)
153
CLR
521.
Each of these facts must be proved beyond reasonable
doubt; see
R v de Villiers
1944 AD 493
at 508.
[124]
The court
a quo
identified certain situations, as demonstrated
above, where in its view intermediate facts constituted indispensable
links in the
chain of reasoning toward an inference of guilt. The
court is not permitted to convict an accused if there is a reasonable
doubt
as to his guilt, no mode of reasoning can be countenanced that
yields a result at odds with this policy.
[125]
The intermediate facts are essential to the proof of guilt. The
proved facts should be such as to render the inference sought
to be
drawn more probable than any other reasonable inference. The facts as
a whole must exclude all other inferences. The proof
of intermediate
facts must be consistent with a finding that the onus has, at the end
of the day, been discharged by the party
bearing it. The proof of
intermediate facts can only in this way be regarded as a link in the
chain of inferences. At the court
a quo,
in the present case,
the evidence the State presented in this regard had too many holes,
as indicated above, to exclude a reasonable
doubt as to the
appellant’s guilt in the commission of the crimes charged.
[126]
In order to justify the inference of guilt the exculpatory factors
must be incompatible with the innocence of the accused,
and incapable
of explanation upon the reasonable hypothesis than that of guilt; see
S v
Thwala
2014
(1) SACR 414
(KZP);
Wills
Principles of Circumstantial Evidence
7
th
ed (1936) edited by VRN Gathis and Kushna Machiriat at 320. The
question follows in the present case is whether there was evidence

before the court
a quo
from which inference could be drawn which would have the effect of
excluding the alternative hypothesis of innocence on the part
of the
appellant.
[127]
As a general rule, all facts that are relevant to the issue in legal
proceedings may be proved. A fact is relevant when an
inference can
properly be drawn from it as to the existence of a fact in issue; see
R v Trupedo
1920 AD 58.
In which event, the inference
the court draws will be a reasonable one and therefore relevant to
the facts in issue. For
evidence to be admissible in this regard, it
must at least afford a reasonable inference as to the principal
matter in dispute.
In other words, evidence which does not meet at
least this minimum requirement is simply irrelevant, and is
inadmissible on that
ground. In the present case, the evidence the
State presented did not meet this minimum requirement and as a
consequence, the inference
sought to be drawn was incorrect. As there
were no proved facts it is not necessary to inquire into whether or
not the proved facts
were such as to exclude other inferences. The
evidence was therefore inadmissible as no inference could properly be
drawn from
it.
Proof
as to the appellant’s guilt
[128]
In a murder case, the State had to prove that the accused
intentionally and unlawfully “killed” the deceased in
the
sense that she was responsible in law for the
conduct which the law regards
as having caused the death of the deceased; see
The
South African Law of Evidence (formally Hoffman and Zeffert)
(2003)
DT Zeffert et al at 98. Proof of intermediate facts, namely that the
appellant physically abused the deceased; kept him as
a virtual
prisoner in his own house; overspent on his Edgars account; abducted
the deceased and held him captive in Gauteng and
that she depleted
his bank account immediately before his death, the State tendered as
a
conditio
sine qua non
of a finding that the appellant was guilty of the crimes charged, did
not exclude a reasonable doubt as to the guilt of the appellant.
Nor
did the State present any evidence tending to implicate the appellant
directly in the commission of murder and robbery with
aggravating
circumstances.
­Appellant`s
alleged pointing out of the deceased’s body
[129]
Instead, in order to sustain a conviction on the charge of murder
against the appellant the State relied on the appellant’s

alleged pointing out in terms of s 218(2) of the Act of the body of
the deceased to the non-commissioned police officers; Nzimande
and
Ndlela. Section 218(2) of the Act provides:
‘
Evidence
may be admitted at criminal proceedings that anything was pointed out
by an accused appearing at such proceedings or that
any fact or thing
was discovered in consequence of information given by such accused,
notwithstanding that such pointing out or
information forms part of a
confession or statement which by law is not admissible in evidence
against such accused at such proceedings.’
[130]
With regard to the appellant’s alleged pointing out of the body
of the deceased to the police, the learned judge concluded
by saying
‘we accordingly conclude that the discovery of the deceased’s
body would never have taken place without the
help from information
provided by the accused. It is thus reasonable to infer that she bore
knowledge all along as to what happened
to the deceased during the
evening of the 19 January 2006’.
[131]
It was common cause that the pointing out was part and parcel of an
inadmissible confession made to non-commissioned police
officers,
Warrant Officer Nzimande and Detective Warrant Officer Ndlela. The
voluntariness of the confession the appellant allegedly
made to the
non-commissioned police officers was not proved through a
trial-within-a trial. Nor was it known, what the appellant
had said
to the police officers which led to the pointing out of the
deceased’s body.
[132]
Section 218(2) entitles the prosecution to adduce evidence of the
pointing out of a thing or the discovery of a fact, and
to that end
an accused is precluded from objecting to such evidence on the ground
that the pointing out or information forms part
of an inadmissible
confession. However, this does entitle a prosecutor to lead evidence
of an inadmissible confession, for that
would be to emasculate the
provisions of s 217. Nor does s 218(2) authorise the production of a
confession in the guise of a pointing
out. In
S v Mbele
1981
(2) SA 738
(A) at 743B-C Kotze JA said
:
‘
Hierdie
artikel wettig slegs die aanwysings en nie die voorlegging van ‘n
bekentenis onder die skyn van ‘n aanwysing
nie.’
See
also
S v Magwaza
1985 (3) SA 29
(A) at 36.
[133]
The fact that a pointing out forms part of an inadmissible confession
is, by virtue of s 218(2) irrelevant to the question
of its
admissibility. Subsection (2) allows a court to receive evidence that
something was either pointed out by the accused or
discovered as a
result of information given by him, even if the pointing out or
information forms part of an inadmissible confession
or statement by
him.
[134]
In
R v Samhando
1943
AD 608
the appellant had been convicted of murder. The prosecution
tendered evidence of an admission, made by the appellant after the
application of considerable violence, and evidence that he had
pointed out to his interrogators an orange tree where the blood
stained clothing of the deceased had been concealed. He also pointed
out an axe about five hundred yards away from this tree. The
court
a
quo
excluded the evidence
of the admission but received the evidence of the pointing out. The
Appellate Court held that the evidence
had been correctly received
since the appellant’s knowledge of where these items had been
concealed was highly relevant to
his guilt.
Samhando’s
case then became the authority for the
proposition that evidence that something had actually been discovered
as a result of an involuntary
pointing out was admissible in our law.
At the time of this decision evidence of pointing out was governed by
s 274 of the Criminal
Procedure and Evidence Act 31 of 1917, the
precursor of s 218 of the present Act.
[135]
In
R v Duetsimi
1950
(3) SA 674
(A) the court held that where an accused makes a
statement, which did not amount to confession the fact that it was
not made freely
and voluntarily would not prevent the prosecution
from providing (1) things discovered as a result of the statement and
(2) the
fact that the accused had pointed them out. That something
had actually been discovered as a result of an involuntary pointing
out was admissible in our law.
[136]
However, in
R v Duetsimi
case at 677A-B
Samhando’s
case was distinguished and Schreiner JA said:
‘
It
seems to be clear that all the pointing out was part of a single
course of contract, and if it was an elaboration of an inadmissible

confession the whole of it should have been excluded.’
[137]
In
R v Nhleko
1960
(4) SA 712
(A) the court held that s 218(2) allows nothing more to be
proved than the pointing out of a place or thing.  In
S
v Nkwanyana
1978 (3) SA 404
(N) at 405H Hoexter J defined ‘pointing out’ as an ‘overt
act whereby the accused indicates physically to the
inquisitor the
presence or location of something or someplace actually visible to
the inquisitor.’ The mere pointing out
is not sufficient by
itself to prove his knowledge of the thing pointed out in some fact
connected with it. The element of discovery
does not provide absolute
guarantee of the trustfulness of the inadmissible confession.
[138]
In
S v Sheehama
[1991] ZASCA 45
;
1991
(2) SA 860
(A) the Appellate Court moved away from the
Samhando
decision by holding that the pointing
out should be viewed as admissions by conduct and that their
admissibility should be governed
by the provisions of s 219A and 217
of the Act relating to admissibility and confessions respectively. In
other words, the pointing
out must have been freely and voluntarily
made. This is based on two deep rooted principles of our law: first,
that involuntary
statements made by an accused are inadmissible
against him. Not only because they are untrustworthy as evidence but
mainly because
in a civilised society it is vital that persons in
custody or charged with offences should not be subjected to
ill-treatment or
improper pressure in order to extract confessions
and, second, that no one can be compelled to give evidence
incriminating himself.
[139]
Section 219A(1) provides:
‘
Evidence
of any admission made extra-judicially by any person in relation to
the commission of an offence shall, if such admission
does not
constitute a confession of that offence and is proved to have been
voluntarily made by that person, be admissible in evidence
against
him at criminal proceedings relating to that offence ...’
In
S v Khumalo
1992
(2) SACR 411(N)
the court took the view that the decision in
Samhando
was rendered inapplicable by the
combined operation of s 219A and the decision in
Sheehama
that a pointing out is an
admission by conduct.
[140]
In
S v Jordaan
1992
(2) SACR 498
(A) the court held that the discovery of weapons as a
result of a pointing out by the accused constituted ‘ʼn
uitsonderings
geval waar `n gedwonge uitwysings in elke geval
toelaatbaar sou wees.’ For this proposition the court relied on
the decisions
in
Samhando
and
Sheehama
cases. In
Jordaan
the accused had not alleged that the
pointing out had been induced by force or undue influence.
[141]
In
S v Mokahtsa
1993 (1) SACR 408
(O), the court held that the
supplying of information which led to the discovery of something
which was involved in the commission
of the offence amounted to an
admission by conduct, at least in so far, as it indicated knowledge
on the part of the accused of
the incriminating object. Since the
accused had supplied this information under duress, the admission had
not been voluntarily
made and was accordingly inadmissible.
[142]
Section 218 creates no special immunity to the general conditions for
the admissibility of admissions and confessions set
out in ss 219 and
217. In
S v January;
Prokureur-General, Natal v Khumalo
1994
(2) SACR 801
(A) Van Heerden JA found that the
Samhando
exception was overridden by the
provisions of s 219A (1). In this case, the Appellate Division held
that proof of a pointing out
by an accused which is involuntary by
reason of something said or done by a person in authority is
inadmissible in a criminal trial
even if something relevant to the
charge is discovered as a result thereof. The admissibility of the
statement and pointing out
was contested by the appellant on the
grounds that it had been induced by an assault on him.
[143]
Section 218(2) expressly provides that the evidence is admissible
even if the fact is discovered against the ‘wish or
will’
of the accused. In
S v Ismail and others (1)
1965 (1) SA 446
(N) at 450H Milne JP pointed out that the words refer to the actual
discovery of the fact sought to be led in evidence and not
the
confession containing the information which led to the discovery.
[144]
The section is now to be read as meaning that a pointing out that
forms part of an inadmissible admission or confession may
be received
if it is not otherwise inadmissible and if it is not otherwise, among
other things, that the pointing out was not freely
and voluntarily
made and it is appropriate, in the first place, to view it as
constituting an admission or a confession. In a case
of a pointing
out the probative value of the pointing out depends, to some extent,
on the credibility of the accused. There is
a need to exclude
involuntary admissions in order to preserve the fairness of the
trial, the integrity of the judicial process
and interests of
justice.
[145]
Section 217(1)(a) provides:
‘
Evidence
of any confession made by any person in relation to the commission of
any offence shall, if such confession is proved to
have been freely
and voluntarily made by such person in his sound and sober senses and
without having been unduly influenced thereto,
be admissible in
evidence against such person at criminal proceedings relating to such
offence: Provided-
(a)
that
a confession made to a peace officer, other than a magistrate or
justice, or, in the case of a peace officer referred to in
section
334, a confession made to such peace officer which relates to an
offence with reference to which such peace officer is
authorized to
exercise any power conferred upon him under that section, shall not
be admissible in evidence unless confirmed and
reduced to writing in
the presence of a magistrate or justice’.
[146]
Accused cannot by waiver or consent render admissible a statement
which the legislature has expressly and unconditionally
declared to
be inadmissible, see
R v
Perkins
1920 AD 307
at 311.
There are two separate, but related, enquiries that have to be
carried out in determining the admissibility of a confession
or
admission: first, whether the requirements of ss 217 and 219A have
been satisfied, and, second, whether, in all the circumstances,
the
accused has had a fair trial. In
S
v Nombewu
1996 (2) SACR 396
at (E) 420c-d the court held:
‘
If
the court finds that the accused acted freely and voluntarily and
that the evidence is relevant it shall allow such evidence;
unless,
separately, it exercises its general discretion to exclude it in the
interests of a fair trial.’
[147]
In
S v Naidoo and another
1998 (1) SACR 479
(N) the court held that evidence that had been
obtained by the State as a result of a deliberate and conscious
violation of constitutional
rights should be excluded. The evidence
which is obtained in an illegal manner can be excluded on two
grounds: namely; (a) the
accused cannot be compelled to provide
evidence against himself; and (b) evidence which is obtained by
duress from the accused
cannot be used against him; see
also
S
v Nel
1987 (4) SA 950
(W).
[148]
The exclusion of evidence arose from the “need to ensure the
fairness and integrity of the criminal process at least
from arrest
up to and including the trial”; see
S
v Melani and others
1996
(1) SACR 335
(E) at 351b. “Illegally obtained evidence”
refers to evidence gathered as a result of a gross violation of a
person’s
rights which may render the perpetrator or State
liable, whilst improperly obtained evidence may result from some
deceit which
may be unfair or improper without bearing the additional
taint of being illegal; see Zeffert
et
al
The
South African Law of Evidence
(2003)
at 625.
[149]
In
S v Nombewu
1996
(2) SACR 396
(E) the court held that there was a judicial discretion
to exclude admissible statements when the probative value was
out-weighed
by the prejudicial effects and possibly, that the power
existed to exclude such evidence when it would be unfair to admit it.
The
right not to be compelled to make an admission or confession has
been elevated to constitutional right in s 35(1)(c) of the
Constitution.
The Constitutional Court in
Ferreira
v Levin NO and others; Vryenhoek and others v Powell NO and others
1996 (1) SA 984
(CC)
accepted that there was a general discretion to exclude improperly
obtained evidence; see
S
v Magwaza
2016 (1) SACR 53
(SCA).
[150]
Section 35(5) of the Constitution provides:
‘
Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would
render the
trial unfair or otherwise be detrimental to the administration of
justice.’
Section
35(1)(c) provides that every person who is arrested for allegedly
committing an offence has the right not to be compelled
to make any
confession or admission that can be used against that person: such a
person has also a right to remain silent as well
as to be informed
promptly of that right and of the consequences of not remaining
silent (s 35(1)(a)(b)), in a language that person
understands (s
35(4)). A detained person has a right ‘to choose, and to
consult with, a legal practitioner, and not to be
compelled to give
self-incriminating evidence (s 35(3)(j)).’
[151]
In
S v Matlou and another
2010 (2) SACR 342
(SCA) para 30 the Supreme Court of Appeal was
confronted with a situation where the trial court had taken into
account the fact
that the appellant, in a murder trial, had pointed
out the deceased’s body and a firearm to the police, even
though the pointing
out had been induced by an assault on him by the
police. At para 22, Bosielo JA found that there was a direct clash
between ss
218(2) and 35(1)(a)(b) and (c) read with s 35(5) of the
Constitution. He concluded that the admission of the evidence would
not
only render the trial unfair but would involve the judicial
process in a moral defilement, compromise the integrity of the
judicial
process and dishonour the administration of justice; see
also
S
v Mthembu
[2008] ZASCA 51
;
2008 (2) SACR 407
(SCA) para
36. The pointings
out were excluded because they were
not freely and voluntarily made.
[152]
The onus rests on the State to prove beyond a reasonable doubt that a
confession was freely and voluntarily made. In the present
case, it
was common sense that the pointing out was part and parcel of an
inadmissible confession made to non-commissioned police
officer;
Warrant Officer Nzimande and Detective Warrant Officer Ndlela, who
were Peace Officers, but not Justices of the Peace.
A Justice of the
Peace is a commissioned officer of the South African Police Service
who holds
a rank of lieutenant
or higher, and is in terms of s 4 of the Justices of the Peace and
Commissions of Oath Act 16 of 1963 read
with the First Schedule of
the Act,
ex officio
a justice of the peace and therefore
entitled to take a confession according to the underlying rationale
of s 217 (1) (a) of the
Act.
[153]
A confession made to a peace officer should not be admissible into
evidence unless confirmed and reduced
to writing in the presence of the magistrate or justice of the peace.
If a confession does
not comply with the requirements of s 217(1)(a)
of the Act, in that a confession statement was made to a peace
officer but not
reduced to writing and confirmed as required in s
217, it can only be admissible as an admission.
[154]
In the
Sheehama
case, the court held that a pointing out is essentially a
communication by conduct, and it amounts to an extra-curial admission

as embodied in s 219A of the Act.  “Pointing outs are not
per se admissible but must be made freely and voluntarily;
and where
this is in issue, such admissibility should be proved by the State in
a trial-within-a-trial
Mhlongo
v S
[2015] ZAKZPHC 9.
[155]
The evidence of a pointing out in terms of s 218(2) in the present
case amounted to an admission. However, it should be made
freely and
voluntarily. For, it is a basic principle of our law that an accused
cannot be forced to incriminate himself against
his will. Forced
pointing outs are not admissible as admissions are subject to the
rules of admissibility relating to admissions
because their reception
runs counter to our legal policy that no one should be forced to give
evidence incriminating himself. If
the court finds that the accused
acted freely and voluntarily and that the evidence is relevant, it
shall allow such evidence,
unless, separately, it exercises its
general discretion to exclude it in the interests of a fair trial.
[156]
The evidence that was obtained in a manner that violates the Bill of
Rights and its admission would render the trial unfair
or be
otherwise detrimental to the administration of justice runs counter
to the provisions of s 35(3) and (5) of the Constitution,
in
particular. In the present case, according to the appellant, she
pointed to the police the place where she last saw the hijacked
motor
vehicle. Whereas the police officers, Nzimande and Ndlela, stated
that the appellant pointed out to them the spot where the
body of the
deceased was later found. On that basis, the court
a quo
imputed knowledge of the commission of the crime of murder on her. It
then concluded that all along the appellant had known that
the body
of the deceased was lying on the spot where it was discovered.
[157]
Before such conclusion was drawn, the court
a
quo
did not focus on the
voluntariness of the pointing out that
the appellant allegedly made.
The appellant stated that prior to her taking the police officers to
the spot where the pointing out
was allegedly made the police
officers, Nzimande and Ndlela, assaulted her by kicking her with
booted feet on the buttocks and
they verbally abused her. Simply
because the appellant said that she was also anxious to have the body
of her husband, the deceased,
found, the court
a
quo
concluded that she had
pointed out the spot in question to the
police
offices freely and voluntarily without any proof to that effect.
Voluntariness on the part of the appellant had never been
determined
through a trial-within-a-trial, let alone that she had knowledge of
the commission of the crimes charged. The reasonable
doubt of the
appellant’s innocence was not excluded. Whether an accused
pointed out the place where a crime had been committed,
and whether
the accused was implicated in the commission of the crimes charged
depended entirely on the facts of the present case.
The State relied
on the hypotheses of an assault on the deceased, abduction,
overspending on an Edgars account, holding of the
deceased captive in
Gauteng and depletion of the deceased’s bank account allegedly
by the appellant as the strong indicators
that the appellant was
responsible for the death of the deceased. The court
a
quo
found the fact that as
a result of the information given by the appellant to the
non-commissioned police officers the body of the
deceased was found
as a guarantee of truthfulness and reliability of the information
allegedly given.
[158]
The Court
a quo
found that the appellant had no income of her own. She was completely
dependent on the deceased, financially. Her conduct from
the
inception of her relationship with the deceased, according to the
court
a quo
,
suggested that she was not really interested in him but in his money
and the material things he could provide her.
The
court
a quo
seemed to have been carried away with the hearsay evidence that
the State had tendered that the
appellant was a young, capricious call-girl who married the deceased
for material things i.e. his
money and property, and as a result it
gave inadequate consideration to the weight to be attached to the
evidence that
the
State had tendered in this regard.
[159]
The voluntariness of the confession the appellant allegedly made to
the non-commissioned police officers was not proved through
a
trial-within-a-trial. Nor was it known what the appellant had said to
the police officers which led to the pointing out of the
deceased’s
body. If the report the appellant made to the police officers was an
admission, not a confession, there was nothing
preventing the State
from tendering evidence relating to the contents thereof in terms of
s 219A. The State would only prove that
the appellant had made such
extra-judicial admission, in relation to the commission of the crimes
of murder and robbery with aggravating
circumstances, freely and
voluntarily. However, the State did not tender any such evidence.
[160]
What is admissible in terms of s 218 of the Act, is the evidence of a
fact discovered in consequence of information derived
from a
confession or other statement (including the
pointing out). However,
evidence of knowledge on the part of the accused is not admissible.
In
January
case
Van Heerden JA said (see pages 808I – 809A):
‘
Hence
s 218(1) also does no more than to declare admissible evidence of a
fact
discovered,
or of which knowledge was obtained, in consequence of information
given (whether by conduct or otherwise), by the accused,
and not also
of the information so given.  In other words, the subsection
does not permit proof of a link between the accused
and the discovery
or knowledge gained of such a fact.’
[161]
Section 218(1) provides:
‘
(1)
Evidence may be admitted at criminal proceedings of any fact
otherwise admissible in evidence, notwithstanding that the witness

who gives evidence of such fact, discovered such fact, or obtained
knowledge of such fact only in consequence of information given
by an
accused appearing at such proceedings in any confession or statement
which by law is not admissible in evidence against such
accused at
such proceedings, and notwithstanding that the fact was discovered or
came to the knowledge of such witness against
the wish or will of
such accused.’
This
means that even if an admission or confession is inadmissible, facts
discovered as a result of information in the statement
are receivable
in evidence. But the admission or confession itself remains
inadmissible even though its genuines may be said to
have been
confirmed by the facts discovered.
[162]
In
R v Tebetha
1959 (2) SA 337
(A) at 343A-B the court held
the provisions of s 218(1) did not permit proof of a link between the
accused and the discovery or
knowledge gained by a fact discovered.
The fundamental reason for excluding admission by an accused is that
it is untrustworthy
as testimony. That would lead to admission or
otherwise inadmissible confession.
[163]
In the
Tebetha
case, at 346C-D, with regard to a pointing out, Hoexter JA said the
following:
‘
When
a person points out a thing, the pointing out is his act and proves
that he has knowledge of some fact relating to that thing.
In the
case of the discovery by the police of a thing, there is no proof of
knowledge of any fact in relation to that thing on
the part of the
person under trial unless there is proof that the discovery was made
in consequence of information given by such
person . . .’
[164]
In the present case, it was in dispute whether the body of the
deceased was pointed out by the appellant or by the police.
The
information the appellant had allegedly given to the police was not
disclosed and it therefore remained unknown what she had
said, let
alone that what she said, she had said it feely and voluntarily. All
this, could only have been established through a
trial-within-a-trial
proceedings, which in the present case did not take place.
[165]
In the premises, no knowledge of the discovered body of the deceased
could legitimately have been imputed on the appellant.
In the
circumstances, the version of the appellant that she only pointed to
the police a general area where she had last seen the
hijacked
vehicle could not be said to be improbable that it could not be
reasonably possibly be true.
Proof of the link between the commission of the crime of murder and
the pointing out of the
body of
the deceased, should have been established through a
trial-within-a-trial. The pointing out must have been made freely and

voluntarily for it to be admitted as evidence before court; see
Sheema
case
at 877G-H.
[166]
The confession, from which the information resulted in the discovery
of the body of the deceased, was itself inadmissible.
Even if it can
be said to have been made freely and voluntarily, it is inadmissible
on the ground that it was made to non-commissioned
police officers
and it was not reduced to writing or confirmed before a magistrate as
s 217(1)(a) of the Act directs.; see
S
v Ismail and others (1)
1965
(1) SA 446
(N). This will remain the position even if it can be said
that the body of the deceased was discovered as a result of the
information
the appellant had given to the police and that the
discovery of the body provided a guarantee of truthfulness and
reliability of
the information given. The same applies where it is
said that following the information the appellant gave to the police,
she pointed
out the body of the deceased to the police.
[167]
The onus was on the prosecution to prove beyond a reasonable doubt
that the knowledge allegedly demonstrated by the appellant
could only
have been acquired through her participation in the commission of the
crimes charged; see
S v Gwevu and another
1961 (4) SA 536
(E)
at 537E-F;
S v Shabalala
1986 (4) SA 734
(A) at 748I-J. The
evidence in the present case cannot be said that it is such that the
appellant could only have acquired the
knowledge of the killing of
the deceased through her participation in the commission of the
crimes charged. The appellant was present
when the robbers hijacked
the vehicle and when the robbers drove a vehicle with the deceased in
it, leaving her on the scene. The
State did not tender any evidence
to the contrary. The innocent explanation of knowledge on the part of
the appellant could not
be said that it was at odds with the evidence
tendered before the court
a quo
.
[168]
An accused has a right to a fair trial, which is to be conducted in
accordance with the “notions of basic fairness and
justice”,
and the admission of a confession in the absence of a
trial-within-a-trial in the circumstances of the present
case offends
such notions. The court admitted the evidence for its testimonial
value rather than its circumstantial value. The
underlying rationale
of s 217(1) is the fundamental principle that no inducement or
coercion is
to
be brought to bear on an accused person to confess. The evidence that
the State tendered in this regard did not exclude this
possibility of
inducement or coercion on the part of the police officers.
[169]
The court
a quo
held that the argument advanced by the State
was one of those cases where the accused was enmeshed by the web of
circumstances
which were cohesively linked to each other calling for
a truthful response which she just failed to forward. The court
a
quo
was of the view that the State had succeeded in establishing
a network of facts around the accused which were so coherent in their

texture that they afforded no opportunity for her to break through
them. According to the court
a quo
a glaring motive ran like a
golden thread though out the State case. It was a thread of greed,
manipulation and deception on the
part of the appellant which
culminated in the killing of the deceased.
[170]
The analysis of the evidence in this case shows that the link of the
chain of reasoning by inference which might have been
existing
between the intermediate facts and the guilt of the appellant broke
when the State failed to prove beyond reasonable doubt
the hypotheses
of an assault on the deceased, his detention in his own house as a
virtual prisoner, overspending on Edgars account,
abduction of the
deceased and ultimately holding him captive in Gauteng by the
appellant, as a
conditio
sine qua non
the
appellant’s guilt of murder and robbery with aggravating
circumstances. As these facts could not be proved beyond reasonable

doubt no inference could properly have been drawn from them. The
State had tendered such evidence for no other purpose than proving

the truth of its contents. For such facts to form a foundation from
which an inference of the appellant`s guilt is
to be drawn they must have been
proved beyond all reasonable doubt. As these were assertive
statements or facts, the danger of insincerity
could not be excluded
on the part of the deceased as a declarant.
[171]
The probative value of most of the evidence relating to the
intermediate facts, as outlined above, depended much on the
credibility
of the deceased as a declarant and the truthfulness of
his statements to hearsay witnesses. A witness`s credibility means
not only
his or her honesty but also his or her power of perception;
memory and accuracy of narration. The statements the State relied on

for its case were not made under oath, and the appellant had
therefore been deprived of the opportunity to question the deceased

as the maker of most of the statements in order to clarify confusion,
express dishonesty or error on the part of the deceased.
As a
consequence the court failed to probe and assess the danger of
hearsay evidence. More so,
the
State did not tender any independent corroborative evidence tending
to support its version and hence to enhance the reliability
of the
deceased’s account to hearsay witnesses. The appellant was once
again deprived of the opportunity, through cross-examination,
to cast
doubt on the reliability and the truthfulness of the deceased, as a
declarant.
[172]
The evidence relating to the physical abuse of the deceased,
deprivation of his freedom of movement, abduction and ultimately

holding of the deceased captive on certain premises in Gauteng by the
appellant, as intermediate facts to the appellant’s
guilt, and
the alleged pointing out by the appellant of the body of the deceased
to the non-commissioned police officers, Nzimande
and Ndlela, had
little probative value and at the same time a strong potential to
prejudice the appellant. This evidence was therefore,
logically
relevant but legally irrelevant as potential for prejudice to the
appellant outweighed its probative value. In the premises,
it should
not have been accepted as evidence tending to prove the guilt of the
appellant.
[173]
Given the nature of the evidence the State led in so far as to the
appellant’s conduct from the outset was concerned,
the court
a
quo
did not consider the State’s failure to lead evidence
with regard to certain serious allegations, as contained in the
indictment
and in its summary of substantial facts, to be of any real
consequence. The State failed to establish any logical connection
between
the intermediate facts and the killing and robbery of the
deceased. The State did not tender any evidence to the effect that
the
appellant conspired with certain persons to kill the deceased.
Nor did it prove that the appellant unlawfully and intentionally

killed the deceased or that she, in any manner, participated in the
killing of the deceased.
[174]
The evidence the State tendered to prove the appellant`s guilt of the
crimes charged varied greatly from the allegations the
State made in
its
summary of substantial
facts. In this regard, the court
a
quo
held that the purpose
of the summary of substantial facts was merely to inform an accused
person about the nature of the case he
or she is facing by setting
out material facts on which the prosecution relies. For its decision,
the court
a quo
relied on
S v Van Vuuren
1983 (1) SA 12
(A) at 21E. Also s 144(3) of the Act makes it plain
that the Attorney-General (Director of Public Prosecutions) is not
bound by
the contents of the summary.
[175]
Though in the
Van Vuuren
case the court held that the State is not required to set out exactly
what evidence will be led to prove the allegations against
the
accused, the fact that the evidence the State presented is at great
variance with the summary of substantial facts raises eyebrows.
In
S
v Kgoloko
1991 (2) SACR
203
(A) at 206B
the
Appellate Division held that ‘there is, however, no reason why
a court should not, in assessing the weight to be attached
to the
State case compare the evidence actually led with the summary of what
the State intimated it intended to prove’; see
also
S
v
Fhetani
2007
(2) SACR 590
(SCA) para 4. Further, in my view, the fact that the
evidence the State presents, differs markedly from the summary of
substantial
facts may impact negatively on the fairness of the trial.
In preparing for trial an accused will expect to meet the case the
State
has foreshadowed in the summary of substantial facts, only to
find that on the trial date the State presents a different case
altogether.
That will prejudice the accused in various ways.
[176]
The court
a quo
found the version of the appellant not
explicable on any credible basis why the deceased would have sought a
divorce and would
have gone to the lengths that he did obtain interim
protection order against the appellant and her relatives if not for
the reason
that he was being abused, materially deprived of his
freedom and completely controlled by the appellant. This finding had
the effect
of imposing an onus on the appellant to prove her
innocence, which in law she did not have.
[177]
On the whole the court
a quo
found that the State had succeeded to prove the guilt of the
appellant beyond all reasonable doubt. It then took the view that
it
was well established that the State was not required to plug every
loophole or counter every speculative argument and parry
every
defence which can be conceived by imaginative counsel without sharp
evidence to substantiate it. The court
a
quo
stated that it was
enough that the State presented a strong
prima
facie
case which called for
a reasonable and truthful response. According to the court
a
quo
the various pieces of
evidence presented by the State fitted into each other like a jigsaw
puzzle. The court
a quo
then concluded by holding that the only reasonable inference to be
drawn from all the established facts was that the appellant,
acting
in concert and in execution of a common purpose with persons unknown,
was involved in the killing and robbing of the deceased
during the
night of 19/20 January 2006.
[178]
In evaluating and weighing up the evidence, the correct approach is
to weigh up all the elements which point towards the guilt
of the
accused against all those which are in indicative of his innocence,
taking proper account of inherent strengths and weaknesses,

probabilities and improbabilities on both sides and, having done so,
to decide whether the balance weighs so heavily in favour
of the
State as to exclude a reasonable doubt about the accused’s
guilt; see
S v Chabalala
2003 (1) SACR 134
(SCA) at para 15.
[179]
The court
a quo
stated that the evidence must be considered in
its totality; the guilt of the appellant was to be inferred from the
cumulative
effect of all the facts and that it was not necessary that
each individual piece of evidence must be proved beyond reasonable
doubt.
The court
a quo
was of the view that it was trite law
that it was entitled to find that the State had proved a fact beyond
reasonable doubt if
a
prima facie
case had been established
and the appellant failed to gainsay it. It concluded by saying that
there was no obligation on the State
to close every avenue of escape
which might be open to the appellant. It went on to criticise the
testimony of the appellant as
having contradictions relating more
particularly to the alleged rape on the appellant. The court
a quo
then found the appellant to be a mendacious and cunning person.
[180]
Though such criticism against the appellant’s testimony is
legitimate and valid the State had not succeeded to establish
a
prima
facie
case against the appellant. The State did not tender any
direct evidence tending to prove that the appellant had unlawfully
and
intentionally robbed and killed the deceased at all. Nor did it
prove that she in any way participated in the commission of the

crimes charged. Therefore, I have not found it necessary to numerate
contradictions in the appellants’ testimony and to reject
it as
false beyond reasonable doubt.
[181]
The court
a quo
failed to exclude the hearsay evidence which
the State had tendered to prove the truth of what the deceased had
told the State
witnesses Marais, Riddle and Ntinga, as having little
probative value and prejudicial to the appellant. The court
a quo
thereby failed to prevent the appellant from being unfairly
prejudiced by the reception of such evidence.
[182]
The court
a quo
also misdirected itself by failing to exclude the evidence of the
pointing out which had emanated
from an
inadmissible
confession. In failing to do so, the court
a
quo
acted irregularly.
Further, there was no admissible evidence against the appellant
justifying her conviction on the charges of
murder and robbery with
aggravating circumstances. In my judgment the misdirection and
irregularities, as detailed above, resulted
in a serious failure of
justice. As a consequence, conviction should not be allowed to stand.
Order
[183]
In the result, the appeal against conviction on both counts is
upheld. Consequently, both conviction and sentence imposed
by the
court
a quo
are hereby set aside.
_________________
MADONDO
DJP
I
agree
_________________
VAN
ZŸL J
I
agree
_________________
STEYN
J
APPEARANCES:
For
Appellant

:
S MATTHEWS
(Instructed
by Narain Naidoo & Associates Ref: N Naidoo/Desiree/G10 - 033
3458146)
For
Respondent
:
D A PAVER
(Instructed
by DPP Pietermaritzburg)
Date
argued

: 25 November 2016
Delivered

: 6 April 2017