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[2016] ZAKZPHC 103
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Phakathi v S (AR195/16) [2016] ZAKZPHC 103 (11 November 2016)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR195/16
In the matter between:
NKULULEKO FREEGATE
PHAKATHI APPELLANT
vs
THE
STATE RESPONDENT
ORDER
On appeal from The
Regional Court Pietermaritzburg:
(a)
The appeal be upheld.
(b) The order of the
trial court is replaced with the following:
‘
The
appellant is found not guilty and acquitted.’
JUDGMENT
D.
Pillay J
Introduction
[1] On 19 March 2015 the
appellant was sentenced to life imprisonment in terms of Part 1 of
Schedule 2 to
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
for rape of the complainant allegedly committed six years earlier.
The state alleged that on 14 August 2009 at Sinathing in
KwaZulu-Natal
the appellant sexually penetrated the complainant
without her consent. The complainant was four years at the time and
nine years
when she testified. The appellant pleaded not guilty. In
explaining his plea he acknowledged that he knew the complainant as
his
neighbour and that she used to visit and play with other young
children at his home; but he denied raping her.
The
state’s case
[2]
With the assistance of a facilitator the complainant testified that
she was playing with children from the neighbourhood when
the
appellant called her into his bedroom, told her to undress, then
forcefully undressed her before raping her. She cried out
in pain. He
chased her away. She told her mother Ms Z that the appellant had
raped her. Ms Z took her to the hospital where a doctor
examined her.
[3]
Under cross-examination the complainant clarified that she did not
report the rape to her mother on the same day but on the
following
day because she was afraid.
[1]
She realised that if she did not tell her mother she would give her a
hiding when she eventually did tell her. The defence that
was put to
the complainant was a bare denial. It was suggested to her that
someone in her family was using her to implicate the
appellant
falsely.
[2]
Forthrightly she
replied that the appellant was lying if he denied raping her. She
acknowledged that her family and the appellant’s
family were
not on good terms, that they were always fighting and that her family
had once caused the appellant and his father
to be arrested.
[4] In
re-examination she clarified that the fight was about children from
the appellant’s homestead throwing stones on top
of her home.
However these and other altercations she persisted occurred after the
appellant had raped her.
[5] Ms
Z testified. On 14 August 2009 at about 15h30 the complainant
reported to her that she had a rash. Surmising that the complainant
was competing for attention with her younger brother Ms Z applied
Vaseline all over her body, including on her thighs, which the
complainant said were itchy. Unusually the complainant refused to eat
or even drink a water solution. The following morning she
complained
again about the rash. Ms Z examined her again and saw that there was
a rash around her vagina. She also noticed blood
there.
[6]
She took her to the doctor. Although she knew about the abuse because
she had asked the complainant who had ‘done this’
to
her
before taking her to the doctor,
[3]
she did not tell the doctor that the complainant had been raped
because the doctor had already stated that the complainant had
been
abused. The police arrived at the hospital and took Ms Z to the
police station to make a statement. There the complainant
informed
her that it was Buyile’s uncle who had raped her without naming
which of the three uncles it was.
[7] On
returning from the doctor the complainant spotted the appellant. She
started running away from him shouting that he was the
‘uncle
who inserted his black thing into her vagina’.
Instantly
Ms Z returned to the police station to report that she had identified
the perpetrator. The police did not respond to her
complaint. The
officer attending to her warned her that she would pay a fortune with
a cow if she implicated the appellant. Dejected
by this response she
returned home and her husband followed up to ensure that the matter
was prosecuted. In order to get the police
to arrest the appellant
she falsely reported that he was attacking them with a bush knife. As
a result the appellant was arrested
on the same day.
[8]
She sent the complainant away to Imbali to reside with her
grandmother. About a year later when the complainant saw the
appellant
she ran away from him because she was afraid of him.
Subsequent to the rape his family fought with Ms Z for not
approaching them
personally before going to the police.
[4]
Prior to the incident they were on good terms with the appellant’s
family.
[9]
Doctor Hall presented the medical evidence for the state. She was not
the doctor who had prepared the J88 medical report. The
preparing
doctor, Dr Van Lancial had returned to Belgium to start a family
there. She was momentarily out of the country.
[10] The
cross-examination of Dr Hall was brief. It turned on whether the
excoriation was the same wounds that Ms Z had noticed
and what could
have caused the wounds around the child’s vagina to which Dr
Hall replied that
‘
many
things … can cause excoriation or wounds around the vagina but
it is a very well protected area physiologically, anatomically
and
there is no wound that … could naturally occur other than an
attempt to penetrate with something that could cause the
combination
of the findings that we have here.’
[11]
Such findings included, for instance, the transverse diameter of the
hymen being 8 mm for a child of four years, which was
abnormal; the
normal is up to 5 mm until the age of five to six years.
[12] This concluded the
case for the state.
The
defence case
[13]
The appellant testified that the complainant was coached to testify
against him because if it had been him then the complainant
would
have identified him by his name instead of referring to him as Buyi’s
uncle. On arrest he invited the investigating
officer to take a
sample of his blood to confirm that he had not raped the complainant.
He never carried a bush knife and so did
not threaten Ms Z with one.
[14]
His legal representative did not put material aspects of his evidence
to the state witnesses. For instance it was not put that
the
complainant or Ms Z knew the appellant by name and could have
mentioned it to the police instead of referring to him as Buyi’s
uncle. It was not put that the complainant’s father would coach
her whilst they were traveling in a taxi to point the appellant
out;
and that the appellant’s late brother Phumlani was
charged for raping S. who was Ms Z’s aunt in 2006.
[5]
[15]
He acknowledged that there were no problems between their families
until his arrest; the complainant was allowed to play with
the
children from his household. He worked and resided in Oribi
returning home every fortnight. In response to questions
from the
court the appellant could not say whether the family was living in
harmony as he was not staying at home but in the town.
[16]
Mr A Phakathi, the appellant’s father testified in his defence.
He denied that there was a good relationship between
their families
to the extent that his family borrowed money from the complainant’s
family; the latter were not employed.
He refuted the appellant’s
evidence that the complainant was allowed to play with the children
of the appellant’s family.
As the appellant did not live with
Mr Phakathi he was mistaken about the complainant visiting the
children in the Phakathi household.
Mr Phakathi would lock the gate
to prevent the complainant from entering his property because she
encouraged the small children
to play with her on the street where
there were cars.
[17] The appellant
challenged his conviction and sentence on four grounds.
The
appointment of a facilitator
[18]
Ms Barnard for the appellant submitted that the trial court appointed
a facilitator without first assessing whether the complainant
would
be exposed to ‘undue mental stress or suffering’ by
testifying.
Ms Barnard correctly conceded that this was not her strongest point.
Ms Mshololo for the state drew the court’s
attention to
Kerkhoff
v Minister of Justice and Constitutional Development and Others
2011 (2) SACR 109
(GNP) at para 5 – 7 which referred to the
seminal judgment of the Constitutional Court in
Director
of
Public
Prosecutions, Transvaal
v
Minister
of
Justice
and
Constitutional
Development
and
Others
2009 (2) SACR 130
(CC) para 116
[6]
as follows:
‘
Given
the special vulnerability of the child witness, the fairness of the
trial accordingly stands to be enhanced rather than impeded
by the
use of these procedures. In my view, these special procedures should
not be seen as justifiable limitations on the right
to a fair trial,
but as measures conducive to a trial that is fair to all.’
[19]
In
Kerkhoff
the child witnesses ranged between the ages of ten and eleven. The
learned judge observed that ‘it is very unlikely that
a court
will conclude that it is not in the interest of the witness to
appoint an intermediary’ when the witnesses are of
such a
tender age. I endorse this observation. The mere
fact that the complainant is of the tender age of nine years is a
sufficient basis
for the court to infer that the complainant would be
exposed to undue mental stress or suffering unless an intermediary
was appointed
to facilitate her testimony. Upon a reading of s 170(A)
of the Criminal Procedure Act 51 of 1977 (‘CPA’) it is
the
court who must be satisfied that the witness would be subjected
to undue mental stress or suffering, not the litigants or their
representatives. However, before granting the application, the court
must hear the defence on this issue.
[20]
In
S v Mathebula
1996 (2) SACR 231
(T) the full bench
criticised the trial court for acceding to the state’s
application for the appointment of an intermediary
without giving the
unrepresented accused an opportunity of addressing the court. In this
case the defence representative declined
the opportunity to challenge
both the intermediary and the competence of the complainant to
testify. Ms Mshololo referred the court
to
S v Sydow
2003 (2)
SACR 302
(C) regarding the admissibility of sworn testimony of a
translator or interpreter; and
K v The Regional Magistrate NO and
Others
1996 (1) SACR 434
(E) at 436B – E in which the full
court found that there were ‘sound reasons’ for using
intermediaries to enable
child witnesses to ‘participate
properly in the system’. Both cases inform my judgment.
[21]
Furthermore nothing in the record in this case suggested that the
intermediary contaminated or distorted the evidence of the
child in
any way. Additionally as the defence counsel would have understood
isiZulu, if the intermediary misinterpreted or miscommunicated
any
evidence to or from the complainant he would have been alive to it
and could have objected then and there.
[22] The appellant’s
objection to the use of a facilitator is unfounded.
J88:
Inadmissible hearsay
[23]
Ms Barnard contended that the J88 medical report should be rejected
because Dr Van Lancial who compiled it did not testify.
It is
hearsay. The prosecution ought to have applied specifically for the
J88 to be admitted as hearsay after explaining why Dr
Van Lancial
could not testify personally. Ms Mshololo turned to s 222 of the CPA
read with s 34(1)(b) of the Civil Proceedings
Evidence Act 25 of 1965
(‘CPEA’) to have the J88 admitted in evidence on the
basis that
the
person who made the statement was outside the Republic, and it was
not reasonably practicable to secure her attendance.
[7]
[24]
For documentary evidence to be admitted in criminal proceedings under
s 222 of the Criminal Procedure Act 51 of 1977
(CPA) read with
s 33 – 38 of the CPEA the document must first be authenticated.
If it is an original document then it is
admissible on its mere
production provided that the person who made the statement is called
to testify as a witness, unless it
is not reasonably practical to
secure that person’s attendance.
[8]
If the presiding officer is satisfied that undue delay or expense
would be caused, she may admit the document as evidence in the
proceedings, ‘notwithstanding that the person who made the
statement is available but is not called as a witness’
and
notwithstanding that the original is not produced but a copy of the
original is proved to be a true copy.
[9]
[25]
Notwithstanding the admission of documentary evidence under s 34, s
35 nevertheless requires the presiding officer to estimate
the weight
to be attached to the document having regard to all the circumstances
from which any inference can reasonably be drawn
as to the accuracy
or otherwise of the statement, whether it was made contemporaneously
with the occurrence and whether or not
the person who prepared the
document had any incentive to conceal or misrepresent facts.
[10]
This second hurdle relates to not only the weight to be attached to
the admissibility of the document but also the admissibility
of its
contents.
[26]
When seeking to admit documents into evidence then the first hurdle
to overcome is to prove the authenticity of the document.
Thereafter
its content has to be proved as true. Even if s 222 enables a party
to have a document admitted as evidence that party
will nevertheless
have to overcome the rule against the admission of hearsay in s 3(1)
of the Law of Evidence Amendment Act.
[27]
In this case the admissibility of the J88 was not debated in the
trial court. Whether it was reasonably practical to secure
the
attendance of Dr Van Lancial was not canvased nor was the originality
of the document in issue. However, s 34(2) allows the
state to
overcome the first hurdle of proving the authenticity of the
document. Furthermore, Dr Hall attested to its authorship.
As for the
truth of the contents of the J88, that must still be filtered through
s 3 of the Law of Evidence Amendment Act.
[28]
As a general rule hearsay is inadmissible unless certain requirements
are met.
[11]
Subsection
(a) requires the parties to agree to the admission of hearsay.
Ideally in this case
the
trial court ought to have enquired whether the
appellant
consented to the admission of the J88. In the absence of consent the
state should have applied formally setting out fully
the reasons why
hearsay should be admitted.
[12]
However,
in S v
Molimi
[2008] ZACC 2
;
2008
(2) SACR 76
(CC) the omission by the trial court to rule clearly on
the admission of hearsay to enable the accused to appreciate fully
its
evidentiary ambit was held not to be unfair because the admission
of the co-accused’s extra-curial statements was in the
interests of justice. Thus notwithstanding sub-sec (a), sub-sec (c)
enables the court to admit hearsay in the interest of justice
after
considering the 7 factors in sub-sec (c).
[29]
Even if hearsay is admitted its probative value depends on
inter
alia
,
the nature of the proceedings and the evidence, the purpose for which
it is tendered and importantly, the prejudice to the accused.
[13]
These criteria apply equally when considering not only whether
hearsay should be admitted but also its probative value after it
is
admitted. Hence s 3(1) is an application of a rule of law, not an
application of judicial discretion. A misapplication of the
rule is
therefore appealable.
[14]
[30]
The nature of the proceedings being criminal, the onus to prove the
guilt of the accused beyond a reasonable doubt rests on
the state.
These are factors that weigh heavily against both the weight to be
attached to the decision to admit the hearsay and
to its evidential
value once admitted.
[15]
If
the J88 were ‘decisive or even significant’ in convicting
an accused the court should hesitate to admit it unless
there are
‘compelling justifications’ to do so.
[16]
[31]
In
S
v
ML
2016 (2) SCR 160
(SCA) the Supreme Court of Appeal (per Swain JA)
reiterated its dissatisfaction with the
‘
growing
trend’ of prosecutors failing to call the medical experts who
examined the complainant and compiled the medical report
in sexual
assault cases.
[17]
In the case
of child complainants whose evidence must be treated with caution and
for which some corroboration is required to account
for the risks of
relying on a single and child witness to found a conviction, the
medical evidence is vital. In
S
v
ML
the doctor concluded that sexual penetration had occurred; however
other observations in the report were inconsistent with such
conclusion. For instance the complainant of nine years bore no fresh
tears or scaring and her vagina admitted the passage of only
a little
finger. Furthermore the evidence of the complainant’s mother
conflicted with that of the child. The doctor’s
evidence was
also required to explain why the J88 was dated 2 June 2011 when the
mother’s evidence was that she took the
complainant to the
doctor on 27 May 2011, two days after the incident.
[18]
[32]
In
NS v The State
[2015]
ZASCA 139
para 8, 14, 15, the issue was
whether the sexual intercourse which the accused admitted having had
with the complainant was consensual.
Notwithstanding unsatisfactory
aspects of the complainant’s evidence, the lower courts found
corroboration for rape in the
J88, which was handed in by consent.
Swain JA found that calling the forensic nurse to testify was ‘vital’
to
‘exclude any reasonable possibility that the physical
evidence was equally consistent with consensual sexual intercourse.’
The five-bench appeal in the SCA concluded that ‘for the
magistrate to rely upon the bald and cryptic conclusion in
the J88
form to corroborate the unsatisfactory evidence of the complainant
was unjustified.’
[33]
In
S
v
Madiba
2015
(1) SACR 485
(SCA)
(per Swain AJA) the
Supreme Court of Appeal lamented the failure by the state to call the
doctor who performed the post-mortem to
attest to the report which
was tendered in terms of s 212(4) of the CPA as constituting proof of
its contents. Nevertheless the
court found that the report, which
recorded that a large amount of blood was found in the vulva, was
consistent with the evidence
of eyewitnesses who saw the deceased.
Additionally the appellant was found to be mendacious and his counsel
conceded that there
was no basis to interfere with the conviction of
rape; the court accordingly dismissed the appeal against the
convictions of attempted
rape and rape.
[34]
The full bench decision in
Le
Roux v Pieterse NO and Others
2013 (1) SACR 277
(ECG) distinguished between the tendering of a J88
as testimonial and circumstantial value. Similarly to this case, the
doctor
who compiled the J88 was abroad but in that instance having
emigrated; securing her attendance was not reasonably practicable;
therefore she was unavailable to testify. Another doctor testified
about the contents of the J88. The court admitted the J88 under
s
34(1)
CPEA
for its circumstantial value. Had the reporting doctor testified she
would have reiterated the recordings that she had made
of her
observations of the condition of the complainant as she found her.
[19]
[35]
In contrast, in
Sibulali v Minister of Police
2016 JDR 1165
(ECM) the court admitted the J88 provisionally but rejected it
finally when the claimant in a police assault action
for damages
failed to secure the testimony of the doctor who was relatively
nearby in Lusikisiki, which could have been done easily
if the
claimant’s attorney had made the effort. Additionally, it
emerged that the doctor had not recorded the injuries that
the
claimant attested to. Her evidence that the doctor did not examine
her but merely recorded what she had said was therefore
not born out
by the J88.
[36]
It seems to me from a review of these cases that the admissibility
and probative value of the J88 must be decided in each case
on its
own merits having regard to all the circumstances itemised in s 3(1)
of the Law of Evidence Amendment Act including, the
quality and
clarity of the J88, whether a medical expert is available to clarify
and to draw inferences from the observations in
the J88 to assist the
court, whether the accused is legally represented, and the
consistency or otherwise of all other evidence
in relation to the
J88.
[37]
In this case, Doctor Hall volunteered that examining and reporting on
sexual assault upon a small child is a very long procedure
of two to
three hours. The same doctors have to be on duty in ICU. Given the
doctors’ busy day filling in forms is the least
important task.
Whilst measurements and findings would be correct, spelling,
handwriting and terminology could be improved upon.
These conditions
under which doctors function must be factored into the assessment
before medical reports are rejected and medical
personnel are
castigated unfairly. At the same time doctors must be aware of the
vital value of their reports, which are often
the only corroboration
of sexual abuse.
[38]
In contrast to
S
v
ML
in which the medical report was simply handed in without objection by
the defence in terms of s 212(4) of the CPA and accompanied
by an
affidavit by the reporting doctor,
[20]
in this case a doctor other than the one who examined and reported on
the complainant testified about the contents of the J88.
The quality
of the J88 is sufficiently clear and detailed. It is possible for
another doctor to draw inferences from the examining
and reporting
doctor’s observations. So the failure to call Dr Van Lancial is
not fatal to both the admissibility and contents
of the J88.
[39]
Consequently, I accept the J88 as an accurate record of the examining
and reporting doctor’s observations and that the
testifying
doctor could draw inferences from the J88. A vital question for
cross-examination of the testifying doctor would
have been whether
the injuries could have been caused other than by sexual penetration.
Furthermore as Ms Z attested to seeing
a rash, which the complainant
said was itchy, could the injuries have arisen as a result of the
child scratching herself? But no
one asked these questions in the
trial court.
[40]
The appellant was legally represented. His legal aid counsel ought to
have advised him of the consequences of s 3(1) of the
Law of Evidence
Amendment Act.
[21]
He
was
also not ambushed by the hearsay because if the J88 were not
disclosed timeously his representative would have objected. However
assuming that the appellant was not advised fully, the trial court
had a duty to consider and rule on the admissibility of the
hearsay
at the end of the state case so that the accused appreciated its full
evidentiary ambit.
[22]
The
trial court’s omission to so rule or even engage with the issue
of hearsay is an irregularity that impaired the appellant’s
right to a fair trial.
[41]
So even though the J88 is admissible as a document, and the probative
value of its contents carries some weight, at least to
the extent
that it evidences some unusual and possibly sexual interference with
the complainant, the irregularity occludes the
admission of the J88
as evidence.
[42]
Undoubtedly, the admission of the J88 was prejudicial to the
appellant as it proved one element of the charge of rape against
him.
Considering that the complainant was a child, the prejudice was
greater as he faced a term of life imprisonment if convicted.
Even
though his defence was that the complainant identified him falsely,
the state bore the onus of proving all the elements of
the crime.
Admitting the J88 as proof that the appellant was sexually penetrated
was therefore prejudicial to the appellant. If
I am wrong on what
might be considered a procedural formality, the evidence of Ms Z must
also be considered.
[43]
Most devastating for the state’s case are the contradictions in
the evidence of Ms Z. She testified in chief that the
complainant had
not only told her that Buyile’s uncle had penetrated her but
also that the complainant had pointed to the
person who had done that
to her
[23]
before she took the
complainant to the doctor. In essence then she knew the identity of
the perpetrator before she went to the
doctor and the police. Yet her
further testimony was that it was when they returned from the doctor
that the complainant spotted
the appellant; that is when she pointed
him out. Thereafter Ms Z returned to the police station to give the
police the name of
the appellant as the suspect.
[44]
After the magistrate warned Ms Z that even though she understood
isiZulu, she was having difficulty understanding Ms Z and
asked her
to clarify how it came about that the complainant identified the
appellant. Ms Z responded then that in the morning the
complainant
saw the appellant doing his washing. She ran back to the house to
identify her assailant to Ms Z.
[45]
On the record therefore there are two versions as to when Ms Z learnt
of the identity of the suspect. One version is that it
was before she
took the child to the doctor and the other version is that it was
when she returned from the doctor. If she knew
the identity of the
suspect before she went to the doctor then when the police arrived to
interview her whilst she was still at
the hospital she would have
known who the suspect was and disclosed it to the police then and
there. There would have been no need
to return to the police station.
[46]
According to the J88 the consultation was at 17h00. Dr Hall testified
that it took about two hours to complete a report. Whether
the time
reflects the beginning or the end of the examination of the
complainant, or whether it has any connection at all with
the timing
of examination of the complainant, is a matter that Dr Van Lancial
had to attest to, not Dr Hall. Irrespective of this
missing detail
the state does not offer any explanation for the delay from the
morning when the complainant allegedly identified
her attacker to the
time reflected on the J88.
[47]
On her version she caused the appellant to be arrested on the same
day that she returned to the police station to identify
him. What day
that was is not apparent from the record. The appellant’s first
appearance in the district court was 17 September
2009. Inferentially
he would have been arrested not more than two court days before that.
This does not support any of the state’s
versions as to when
the complainant named the appellant as her assailant. If there was an
explanation for the month long
delay from 14 August 2009 it was
not tendered.
[48]
There are other features of the state’s case that are
disturbing. The offence was allegedly committed on 14 August 2009;
however the appellant was summoned to court for trial as late as 16
May 2013 in the regional magistrates court. He was released
on
warning to return to court the following month. At some point the
charges were withdrawn for reasons not disclosed to us. The
trial
eventually commenced on 6 November 2014 and concluded on 20 March
2015. There is no explanation from the police about these
delays in
the prosecution.
[49]
Ms Z testified that she did not disclose to the doctor that the
complainant had been abused. However, the doctor recorded that
she
did disclose that the complainant had been sexually abused.
[50]
Although samples were taken from the complainant for DNA testing
there is no evidence of what the results of the tests were
if there
were tests at all. Nor is there any explanation about why the police
did not take up the appellant’s offer to subject
his blood for
DNA testing
[51] An innocent accused
facing a charge of rape faces great difficulty in saying anything
more in his defence other than denying
the charges. No onus rests on
the appellant to prove a motive for being falsely implicated. Usually
the search for a motive is
little more than conjecture after the
fact. The state bears the onus of proving all the elements of the
charge. In this instance
it failed to provide clear and convincing
evidence of the identity of the perpetrator. Furthermore Ms Z’s
evidence cannot
be relied on in view of the contradictions. That
leaves the evidence of the complainant only. Even if one were to
accept her evidence
that she was raped and relies on the J88 to
corroborate her claim that she was raped, the identity of the
perpetrator remains in
issue. As a single witness and a child
at that her evidence when treated cautiously is not sufficient to
enable the state
to overcome its burden of establishing proof beyond
a reasonable doubt that the appellant raped the complainant.
Order
[52] Accordingly I
propose the following order:
(a) The appeal be upheld.
(b) The order of the
trial court is replaced with the following:
‘
The
appellant is found not guilty and acquitted.’
_______________
D.
Pillay J
I agree
_______________
Masipa
J
It is so ordered.
APPEARANCES
Counsel for the
appellant
: Advocate D. Barnard
Attorneys for the
appellant
: S Ngwenya Attorneys
:
033 345 8231
Counsel for the
State
: Advocate Z.G Mshololo
State
Attorney
: DPP Office Durban
: 031
3345177
Date of hearing: 25
October 2016
Date of Judgment: 11
November 2016
[1]
Page 17 line 5-10 of the record.
[2]
Page 20 line 20 of the record.
[3]
Page 36 line 15-24 of the record
[4]
Page 43 line 10 of the record
[5]
Page 56 line 5-15
[6]
Also reported at 2009 (4) SA 222; 2009 BCLR 637 (CC).
[7]
Le Roux
v Pieterse NO and Others 2013 (1) SACR 277 (ECG).
[8]
s 34(1)(b)
[9]
s 34(2)
[10]
s 35 of the CPEA
[11]
S 3(1)
of the
Law of Evidence Amendment Act 45 of 1988
;
Hoffmann
and Zeffert
The
Law of Evidence
(
2003)
at 369 -370;
S
v Molimi
[2006] ZASCA 43
;
2006 (2) SACR 8
(SCA) para 14 – 24.
[12]
Hoffmann
and Zeffert
The
Law of Evidence
(
2003)
at 369 -380.
[13]
S
3(1)
of the
Law of Evidence Amendment Act 45 of 1988
.
[14]
Hoffmann
and Zeffert
The
Law of Evidence
(
2003)
at 369 citing
McDonald’s
Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and another
1997 (1) SA 1
(A) at 27D-E.
[15]
S
v Ndlovu and others
2002
(2) SACR 325
(SCA) para 16 at 337b-d.
[16]
S
v Ndlovu
supra
para 16 at 337b-d.
[17]
S
v
Madiba
2015
(1) SACR 485
(SCA) para 8;
NS
v S
[2015] ZASCA 139
para15.
[18]
S
v
ML
para 6-10
[19]
Le Roux
v Pieterse NO and Others 2013 (1) 277 (ECG) para 14.
[20]
S
v
ML
supra
n17.
[21]
S
v Ndlovu
supra
para 16 at 337f-h.
[22]
S
v Ndlovu
supra
paras 18 – 19 at 338b-i.
[23]
Page 36 line 15-25 of the record.