S v Saeed and Another (65/2009) [2012] ZAFSHC 153 (17 August 2012)

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[2012] ZAFSHC 153
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S v Saeed and Another (65/2009) [2012] ZAFSHC 153 (17 August 2012)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 65/2009
In
the matter between:
THE STATE
and
SHAHID EBRAHIM
SAEED AND ANOTHER
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
19 SEPTEMBER 2011
_____________________________________________________
DELIVERED ON:
20 SEPTEMBER 2011
_____________________________________________________
REASONS GIVEN:
17 AUGUST 2012
[1] We are now at the
halfway station of the journey. Before we proceed further, I am
called upon by law to make certain semi final
rulings in respect of
certain provisional rulings I made along the way in favour of the
prosecution’s case. At this juncture,
I have to make a midway
decision either for the exclusion or inclusion of the hearsay
evidence which I provisionally allowed. The
purpose of the decision
is to let each of the accused alerted so that they know the scope of
the case he faces now that the proceedings
have reached the end of
the prosecution case.
S v RAMAVHALE
1996 (1) SACR 639
(A).
[2] During the course of
the presentation of the prosecutor’s case I heard hearsays by
Ms Z Saleem, Ms N Awan, Warrant Officer
L Steyn, Captain F J Laux and
Warrant Officer E van Zyl. Whereas the two civilian witnesses
testified about certain oral hearsays
the three police witnesses
testified about certain written hearsays. In all these five instances
the alleged original declarants
did not testify.
[3] On Monday, 19
September 2011 I heard argument for the inclusion of the aforesaid
hearsays in the prosecutions pot of evidence.
On the same day, I also
heard counter argument for the exclusion of such hearsays. Having
heard argument, I adjourned the matter
to Thursday 22 September 2011.
During the intervening two days I digested the pros and cons of
excluding or including the hearsays.
I made a determination and
handed it down on Thursday 22 September 2011. This mini judgment is
about the reasons for my earlier
midway ruling.
[4] Ms Bester urged me,
in the first place, to allow as admissible evidence the hearsays
attributed, to a certain Rehman Khan, as
was narrated by Captain F J
Laux, Warrant Officer L Steyn and Warrant Officer E van Zyl. The
various hearsays by Mr Rehman Khan
were collated in a single document
and were collectively exhibited. The document was labelled exhibit
“dd”). It consisted
of 33 pages. I shall make no attempt
to fully set out or analyse those hearsays. I shall only outlined a
brief overview of each
statement.
[5] It was alleged that
Rehman Khan made the first statement at Clocolan on Thursday 4
December 2008. The statement was taken down
by Capt. F J Laux. The
answers he gave to the captain boiled down to this:
He pointed out a
particular house and answered that he was last there during November
2007. He was there with
Shaid, ‘Shalim’
and
Shabir
.
Shabir
showed him a spot where they buried 4
people the night before.
Shabir
further told him that he was
the one who covered the burial site by planting grass on it. He and
Shabir
were good friends. He did not know the 4 dead people
Shabir was talking abourt – (vide p 7 exhibit ‘dd’.
[6] Rehman Khan allegedly
made the second statement at Clocolan on Friday, 5 December 2008
which was also reduced to written form
by Capt. F J Laux. He stated
that one evening during November 2007 he came home at Clocolan from
work at Ficksburg. He saw a blue
BMW outside. Inside the house he
found 4 Pakistani men. He knew none of them. He gathered that they
came from Johannesburg and
that they had travelled down by a car, the
blue sedan parked outside. With them in the house were Shahid,
‘Salim’,
‘Masar’, Farhan, Shabir and Sifat.
The eleven men slept in the same house next to Shell Service Station.
The next morning
the 4 visitors remained behind together with the
aforesaid 6 inmates when he went to work – (vide p 15, exhibid
“dd”).
[7] According to W/O L
Steyn, Rehman Khan made the third statement in Bloemfontein on
Sunday, 7 December 2008. He stated that the
4 men were passengers in
the blue BMW sedan on their arrival at Clocolan from Johannesburg on
10 November 2007. The driver thereof
was ‘Saliem Gureshi’.
The sedan was owned by Majied. The same evening ‘Shaeed’
told them that he enticed
the 4 men to come to Clocolan under the
false pretext that there was a diamond deal to be clinched. The
killing of the 4 men was
discussed by the suspects. They had a braai
to entertain the unsuspecting foursome – (vide p 19, exhibit
“dd”).
[8] The next day he
arrived home from work at ± 18:00. He found nobody home. The
blue BMW was nowhere to be seen. Tanveer
came and found him there.
Shaeed called Tanveer to come over to the house in Andries Pretorius
Street. He accompanied Tanveer.
There he saw the blue BMW parked
outside. Shahid, ‘Qureshi’, Farhan, Shabir, Maseer
(Mohammed) Ejaz and Clifad were
busying cleaning and removing the
carpets and the curtains.
[9] He saw 4 persons
lying elsewhere in the house. Three of them were obviously dead but
the fourth one was gasping for breath.
He realised that all of them
were shot in the head.
The dead victims and the
suspects were members of the same mafia group called ‘hushkar’
whose leader was a fellow called
Ejaz Bazra. Ali Mahzar (Mamo) was
not present when the victims were murdered. He arrived afterwards but
helped to dig the grave
and to bury the victims. Bazra ordered the
killing of the victims. After the murder ‘Shaeed’ gave
one of the guns to
a fellow called Faizel Gani – (vide p 19,
exhibit “dd”).
[10] Rehman Khan signed
the fourth statement in Bloemfontein on 8 December 2008. Capt. F J
Laux took it down. He allegedly stated
that he and his cousin,
Tanvir, were invited to the house in Andries Pretorius Street by a
fellow called ‘Saefed’.
The house belonged to Ejaz but
Shahid and Salim stayed there.
When he saw the wounded
victims, bloodstained carpets and curtains he enquired from Shaid as
to what had happened. Shahid answered
that they killed the victims.
Shahid then said he must help bury the victims in the backyard. There
he saw 4 unknown black men
digging a hole. According to Shahid he had
brought those blacks from Lesotho for that specific purpose. Tanvir
helped the diggers.
He, Rehman Khan, helped the carriers of the
bodies from the room inside to the grave outside.
[11] He saw that Shahid
“Salim’ Farhan and Shabir had guns. Shahid responded that
he killed two of the victims and that
Farhan and “Saefed’,
the other two. The victims were killed because they were considered a
threat to all the other
members of the group, according to Shahid.
Shabir planted grass to patch up the ground where the victims were
buried in a secret
grave. Shahid ordered all the members to deny any
knowledge concerning the disappearance of the 4 victims and their
BMW, should
the police question them – (vide p 15, exhibit
“dd”).
[12] It was further
alleged, that Rehman Khan made the fifth statement in Bloemfontein on
Monday 19 January 2009. He allegedly stated
that during February and
March 2008 he was living at Howick with Ali Mahzar, Farhan, Ali
Tanveer, Saeed and Sifat. Shabir, Mohammed
Ejaz and Quereshi also
arrived there. The plot to kidnap Zia from Lesotho was hatched there.
Zia was kidnapped, held hostage in
the Free State and R2 million
demanded as a ransom. Zia was given an excessive dose of chloroform
by Shaber to subdue him. He reacted
very badly and died before the
ransom was paid. He was buried in the Free State. He, Rehman Khan,
gathered all these about Zia’s
fate from Sifat who was kept
informed about the developments by Farhan (vide p 22, exhibit “dd”).
[13] It was further
alleged that Rehman Khan made the sixth statement in Bloemfontein on
Wednesday, 4 February 2009 which was taken
down by Warrant Officer
Eben van Zyl.
He allegedly stated that
Zia Mohammed of TY in Lesotho was indebted to Zia Khan of Maputsoe in
Lesotho in the amount of R70 000,00
which loan he could not repay.
For that reason he, Zia Mohammed, Shabir and Shaeed hatched the plot
to have Zia Khan kidnapped
and robbed of his money (vide p 33,
exhibit “dd”).
[14] Rehman Khan
allegedly made the seventh statement in Bloemfontein on Friday the 3
April 2009 to Warrant Officer Steyn. He allegedly
that after the
killings of the 4 men ‘Shaeed’ called Ejaz Mazra and
reported to him that the job was done. He then
invited him to come to
Clocolan to see for himself. Bazra came and was very pleased. Ejaz
Bazra was the don of the gang called
‘Harkatel Mazhedim’.
The 4 persons were killed because, as he was told, they had killed
Bazra’s friend in Johannesburg
(vide p 30, exhibit “dd”).
[15] In the eighth
statement Rehman Khan allegedly made in Bloemfontein on Monday the 1
June 2009 to Warrant Officer Steyn, he stated
that some members of
the group stayed in one house near Shell Service Station while others
stayed in another house in Andries Pretoirus
Street. ‘Shaeed’
told him that the 4 men from Johannesburg were there in connection
with a diamond deal and that the
same night a certain Makara came
from Maseru to meet the 4 men, negotiated a deal and undertook to
deliver the diamonds the next
day. There were five guns in the house
at the time. The 4 from Johannesburg were made to believe that the
group was going to catch
Makara and rob him of his diamonds. He
learned from ‘Shaeed’ that 2 if the 4 were shot in the
afternoon and the remaining
2 in the evening. He refused to help in
the burial of the bodies. The four corpses were dumped in one grave.
Shabir planted green
grass on the burial site. After the murder
‘Shaeed’ was using the blue BMW sedan (vide p 22, exhibit
“dd”).
[16] W/O L. Steyn alleged
that Rehman Khan made another statement again in Bloemfontein on the
same day, 1 June 2009. This was the
nineth statement in the series of
ten. Seemingly the group moved away from Clocolan, and crossed into
Lesotho. Some of them, including
Rehman Khan and ‘Shaeed’
stayed at Teyateyaneng with a fellow called Zia Mohammed. He, Rehman
Khan, overheard Shaeed
and Zia Mohammed plotting to have a big
businessman of Lesotho, Zia Khan, kidnapped.
[17] In 2008 the group
moved from Teyateyaneng in Lesotho to Howick in Kwa-Zulu-Natal.
‘Shaeed’, Ali ‘Mahzar’,
Farhan, Tanveer,
Sifat and Rehman Khan stayed in the same house. ‘Quereshi’,
Ejaz and Shabir arrived later. One day
the group leader, Ejaz Bazra
called Shaeed and ordered that the wealthy businessman, Zia Khan, be
kidnapped and that R2 million
ransom be demanded for his release.
[18] Pursuant to the
leader’s order, ‘Shaeed’, ‘Qureshi’,
Ejaz Mohammed, Farhan, and Shabir left Howick
and crossed into
Lesotho. The order was carried out. According to Farhan the
businessman was kidnapped by ‘Qureshi’
and Shabir. The
businessman put up such a strong fight that the kidnappers decided to
sedate him with chloroform in order to break
his resistance. The
businessman was subdued but he never regained his consciousness.
Farhan reckoned that he perished as a result
of an excessive overdose
of the sedative chloroform administered by Shabir. The suspects did
not get the ransom. They took R50
000 from the victim. – (vide
p 31, exhibit “dd”).
[19] In the tenth
statement which Rehman Khan allegedly made in Bloemfontein on Friday
the 10 July 2009, he alleged that shortly
before he was arrested, Ali
Tanveer phoned to warn him that the police were on their way to him
and that he should flee. Despite
the warning, he did not take to
flight. Instead, he stayed put where he was. Later on that same day
during December 2008 Inspector
Van Zyl arrested him at Lydenburg in
Mpumalanga. He stated that he instantly told Inspector Van Zyl that
he wanted to tell him
what had happened down at Clocolan. Inspector
Van Zyl took him to Clocolan where he was handed over to Captain
Laux. There he subsequently
pointed out a burial site. On the one
hand he was scared of ‘Shaeed’ for breaking the code of
silence. On the other
hand he was also scared to languish in prison
which was why he, at first falsely told Captain Laux that the burial
site was shown
to him. He ended up by stating that the truth of the
matter was that he was present on the scene when the bodies were
buried but
not when 4 men were murdered – (vide p 27, exhibit
“dd”).
[20] To the aforesaid,
arsenal of hearsays must be added another piece of hearsay. Unlike
the written hearsays embodied in exhibit
“dd” and
attributed to Rehman Khan the piece of evidence I am here concerned
with, was an oral hearsay about the conversation
that Rehman Khan had
allegedly had with the investigating officer Warrant Officer Linda
Steyn in Bloemfontein on Friday the 5 August
2011. On that day Redman
Khan, was taken from his protected witness sanctuary to the office of
the Director of Deputy Director
of Public Prosecution: Free State
Province - for consultation. According to Warrant Officer Steyn the
witness, in other words Rehman
Khan, anxiously told her that his
family way-back home in Pakistan was under threat. He told the
inspector officer that certain
people were harassing his family. He
alleged that they went to his parental home, intimidated his mother
and damaged things there.
According to Warrant Officer Steyn the
witness under protection was deeply concerned about the safety of his
family.
[21] Section 3 of the
Criminal Law Amendment Act, 45 of 1988 consists of 4 paragraphs.
Hearsay evidence is not supposed to be ordinarily
admitted as
evidence in criminal proceedings - subsection (1). Notwithstanding
this exclusionary legislative command, hearsay evidence
can be
exceptionally admitted as evidence in criminal proceedings:
subsection 1(a) if there is mutual agreement between the parties;

subsection 1(b) if the original declarant later actually testifies at
such proceedings and confirms it; and subsection 1(c) if
the trial
court holds the view that, in the interest of justice, such hearsay
evidence, should be admitted – subsection (1).
I shall say no
more about subsection 1(a) and subsection 1(b). They are not
applicable to the instant case. In the first place,
there was no
mutual agreement for the admission of the hearsay. In the second
place, there was no subsequent confirmatory testimony
by any of the
original declarants to whom the hearsays were attributed. The matter
revolves around subsection 1(c). I shall revert
to the subsection
later.
[22] The subsection (1)
does not render admissible any variety of evidence which and whose
reception is objectionable and whose
reception is on any other legal
ground other than that such evidence is hearsay evidence - subsection
(2). The trial court is empowered
to provisionally admit hearsay
evidence if an undertaking is given, by the party seeking to adduce
such hearsay, that the original
declarant himself or herself will
testify in due course - subsection (3).
[23] The legislative
meaning of the words: hearsay is given in subsection (4).
“
'hearsay
evidence'
means
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; …”
[24] It will, therefore,
be readily appreciated that the evidence given by Ms Zainub Saleem in
respect of the cellular conversation
she had with her husband, Majid
Saleem, had no independent probative value. Her evidence was a
secondary narrative. She, as a narrator,
repeated inside the court
what her husband supposedly told her outside. The probative value of
her evidence depended on the credibility
of her husband, the original
declarant. Since he did not testify to confirm or disavow the
declaration attributed to him the credibility
of her secondary
evidence hangs in the balance. It cannot be readily assessed. The
same comments apply to the cellular conversation
the witness had with
her husband’s friend, Amanullah Nusrullam. It follows,
therefore, that the evidence given by the witness
concerning such
conversations falls squarely within the ambit of hearsay evidence as
defined.
[25] Similarly, the
evidence given by Ms Naazira Awan in respect of the cellular
conversations she had with her husband, Malik Yasser
Awan, suffered
from the same probative deficiency. The comments I made in connection
with Ms Zainub Saleem apply equally well to
her evidence.
[26] There is yet another
source of evidence in dispute. The evidence attributed by the three
police witnesses to a certain Mr Rehman
Khan. It was tendered by the
state for admission through the secondary narratives. They, Warrant
Officer Eben van Zyl, Warrant
Officer Linda Steyn and Captain F J
Laux, testified about certain encounters each of them individually
had with the gentleman,
Mr Rehman Khan. Their evidence was backed up
by means of certain written statements. The original declarant, Mr
Redman Khan did
not testify. Therefore, the evidence of each of these
police witnesses falls within the ambit of hearsay evidence. The
probative
value thereof depends on the credibility of Mr Rehman Khan,
the original declarant, and not any of the three secondary narrators

themselves.
[27] For many decades,
the general rule against the admission of hearsay evidence,
particularly by an accomplice, was that evidence
of an admission made
outside a court of law, by one accused, that incriminated another
accused was essentially hearsay as regards
any other accused person
save the one who made such an admission. Rehman Khan was, according
to his own say-so somehow, involved.
He could as well have been
charged with the accused as their co-accused. The crucial question in
the debate before me was to admit
or not to admit the hearsays? I
have since ruled for the admission. Were there any compelling
justifications for my midway decision?
The answer is not as simple as
the question.
[28]
“
[35]
In comparison to the common law the Act allows a more nuanced
approach to the admission of hearsay evidence.  As the Supreme

Court of Appeal stated in
Makhathini v
Road Accident Fund
, in the application
of the Act in the context of a civil case, the Act requires the court
to take a contextual approach. The court
said that the statutory
preconditions for the reception of hearsay evidence are now designed
to ensure that the evidence is received
only if the interests of
justice justify its reception. A court making a determination whether
it is in the interests of justice
to admit hearsay evidence must -
have regard to every
factor that should be taken into account, more specifically, to have
regard to the factors mentioned in s 3(1)
(c)
.
Only if, having regard to all these factors cumulatively, it would be
in the interests of justice to admit the hearsay evidence,
should it
be admitted.”
S v MOLIMI
[2008] ZACC 2
;
2008 (2) SACR 76
(CC) 94 para [35] per Nkabinde J.
[29] I recognise, first
and foremost, the general rule of evidence that hearsay evidence is
ordinarily inadmissible. However, it
is relatively and not absolutely
so. In
S v RAMAVHALE
1996 (1) SACR 639
(AD) at 647d
Shultz JA observed as follows about the general hearsay rule:
“
Before
setting out those considerations it is necessary to emphasise what
has already been mentioned, that s 3(1) is an exclusionary
subsection
and that the touchstone of admissibility is the interests of justice,
as is made clear by the words: '. . . hearsay
evidence shall not be
admitted as evidence . . . unless - . . . the court, having regard to
(the considerations in ss (
c
))
is of the opinion that such evidence should be admitted in the
interests of justice’.”
[30] Obviously, section 3
contains three statutory exceptions. Because we have these
exceptions, hearsay evidence is relatively
and not absolutely
inadmissible. As already shown there are three permissible exceptions
or ways in which the otherwise inadmissible
hearsay evidence can be
received as admissible evidence. The first receptive avenue is mutual
agreement between the proponent and
the opponent – section
3(1)a. The second receptive avenue is the confirmatory testimony by
the original declarant of the
narrator’s initial hearsay
testimony – section 3(1)(b). The third receptive avenue is by
way of the interests of justice
– section 3(1)(c). The first
two exceptions to the general rule of exclusion entail no procedural
unfairness to the party
against whom the hearsay evidence is
tendered. However the same cannot be said about the third exception.
The exceptional admission
of hearsay evidence through this avenue –
section 3(1)(c) – can have serious adverse impact on the
accused person’s
fair trial rights. Procedural fairness of
trial is the hallmark of any civilized system of justice.
[31] The common law was,
for time immemorable, always alert to the hazards of an unqualified
wholesale admission of hearsay. Similarly,
the statute does not
license wholesale admission of hearsay. Hearsay is second-hand
evidence of a statement by a person other than
a witness narrating or
repeating such first-hand evidence which is relied on by its
proponent to prove what the original statement
asserts. Whereas a
witness’ first-hand testimony is open to reliability checks to
test and verify its substantive value,
it is practically impossible
to have such important reliability verification applied to the
repeated second-hand testimony of the
same witness. This is precisely
what, diminishes the substantive value of a repeating witness’
second-hand testimony or hearsay.
Its diminished substantive value
notwithstanding, the real peril of hearsay lies in the fact that its
reception by a court undeniably
exposes its opponent to the
procedural unfairness in the sense of being helplessly unable to
meaningfully destroy adverse inferences
a court may deduce from it.
S
v NDHLOVU & OTHERS
2002 (2) SACR 325
(SCA) 335C –
336A and the authorities there cited per Cameron JA.
[32] The distinguished
judge went on to say:
[14] The 1988 Act
does not change that starting point. Subject to the framework it
creates, its provisions are exclusionary.
Hearsay not admitted
in accordance with its provisions is not evidence at all. What the
statute does is to create supple standards
within which courts may
consider whether the interests of justice warrant the admission of
hearsay notwithstanding the procedural
and substantive disadvantages
its reception might entail. The Act thus introduces the very feature
this Court held the common law
lacked, namely 'a principle that the
rule against hearsay may be relaxed or is subject to a general
qualification if the Court
thinks that the case is one of
necessity'.”
S v NDHLOVU
supra
.
[33] In
MAKHATHINI
v ROAD ACCIDENT FUND
2002 (1) SA 511
(SCA) para [21] Navsa JA
observed:
“
The
statutory preconditions for the reception of hearsay evidence are now
designed to ensure that it is received only if the interests
of
justice dictate its reception
.
”
The fundamental test of
the hearsay statute as to when unconfirmed hearsay evidence may be
ultimately rejected as inadmissible evidence
or ultimately received
as admissible evidence is based on flexible supple standards informed
by the broad normative interests of
justice. So much about the
generalities relative to the exclusion or inclusion of hearsay
evidence.
[34] The hearsay
provisions of section 3(1)(c) or Act 45 of 1988 have been previously
considered in numerous leading decisions,
for instance:
S v NGWANI
1990 (1) SACR 449
(N);
S v DYIMBANE & OTHERS
1990
(2) SACR 502
(SE);
S v CEKISO & ANOTHER
1990 (4) SA
20
(E);
S v NDLOVU & ANOTHER
1993 (2) SACR 69
(A);
S v RAMAVHALE
1996 (1) SACR 639
(A);
S v NDHLOVU
& OTHERS
2002 (2) SACR 325
(SCA);
S v MOLIMI
[2008] ZACC 2
;
2008 (2) SACR 76
(CC);
S v LIBAZI AND ANOTHER
2010 (2)
SACR 233
(SCA) and many more. In almost everyone of these criminal
cases, judges of the high, supreme and constitutional court were at
pains
to sound words of caution about the erroneous admission of
hearsay evidence that could be occasioned by any skewed application
of the fundamental test. As I set out, with some trepidation, to
consider the seven cornerstones of the test in order to determine

whether the interests of justice demand the hearsay evidence in this
case to be excluded or included, I shall constantly bear such

warnings in mind.
[35]
The hearsay
statute requires, in the first place, that specific account be taken
of the nature of the proceedings – subsection
1(c)(i).
This
alludes to the distinction, not only between action proceedings and
motion proceedings but also between civil proceedings
and criminal
proceedings. The overriding and distinctive feature of criminal law
is that in criminal proceedings the state bears
the onus of
establishing the guilt of the accused person beyond reasonable doubt.
Such a high standard of proof does not apply
to civil proceedings.
Our civil law requires proof on a balance of probabilities. It
follows, therefore, that where the admission
of hearsay is sought but
challenged, an appropriate standard of proof must be applied, the
admissibility has to be argued, its
contents has to be probed, its
reliable and unreliable feature have to be debated and its admission
must be properly proved in
accordance with the applicable standard of
proof.
[36] In this matter, the
legal proceedings are of a criminal nature. I am mindful, not only of
the nature of these proceedings,
but also of the onus of proof, which
the proponent of the hearsay, viz the state, bears in order to
establish the guilt of the
seven accused persons. Moreover, I am
sufficiently aware of the perils of the hearsay evidence.
[37] Those proceedings
concern several criminal charges. Originally, there were 17 charges
spelt out in the written indictment.
Ten of them remain. The state
withdraw 3 because the victim died before the hearing. At the end of
the prosecutor’s case
counsel for the state decided not to
pursue 4 charges in respect of testimonies of several witnesses who
had already been heard.
As regards the remaining 10 the prosecution
alleges that the accused are guilty of: contravention of section
9(1), Act 191 of 1998
– organised criminal gang alternatively –
contravention of section 9(2) – a pattern of criminal gang
activity;
2 counts of robbery with aggravating circumstances; 1 count
of kidnapping; 1 count of attempted extortion; 5 counts of murder and

1 count of contravention of section
51, Act 105
of 1997.
[38] These are the crimes
the accused are facing. This completes my consideration as regards
the first factor, which has to be taken
into account in determining
whether or not it is in the interests of justice to allow the hearsay
as admissible evidence.
[39]
The hearsay
statute requires, in the second place, that specific account be taken
of the nature of the evidence – subsection
1(c)(ii).
I deal
with the hearsay evidence of Ms Z Saleem first. The gist of her
hearsay utterances was that she dialled her husband cellular
phone
but his phone was off. She then called his friend Ama, in other words
Amanullah Nusrullam who told her that he, Ama, Majid,
Shabodin and
Malik were at Clocolan; that they travelled from Johannesburg to
Clocolan with Querashi; that Majid was in a meeting
with Shahid and
Farhan; and that he would ask Majid to return her call once he was
free. This cellular conversation which took
place on Saturday 10
November 2007, then ended. She never spoke to him again. Amanullah
Nusrullam never testified.
[40] Ms Z Saleem also
testified about the cellular conversation she had with her husband,
Mr Majid Saleem on Sunday, 11 November
2007. The contents of the
conversation was: that he told her that he was at Clocolan; that he
had a meeting with Shahid and Farhan;
that the meeting was about a
business deal; and that he travelled from Johannesburg to Clocolan
with Saleem Querashi. The conversation
ended on happy note with Majid
Saleem’s promise to call her later in the evening to give her
precise details of his flight
arrival in Cape Town. He never called.
She never spoke to him again. He did not testify.
[41] Both sets of Ms Z
Saleem’s hearsay utterances were made during the course of
normal social chatting. The original declarants
Messrs Amanullah
Nusrullam and Majid Saleem were Pakistanis. They were friends. Ms Z
Saleem, the hearsay narrator, called the former
to find out where the
latter was. He allegedly gave her an answer. She gathered that the 2
friends were together at Clocolan on
Business. The next day Ms Z
Saleem made cellular contact with her husband. He allegedly confirmed
his whereabouts. Between the
information gathered from the 2 men
there was no discrepancy. Obviously, confirmation of one hearsay
utterance by another does
not serve a very useful practical purpose
in a court of law. Although both hearsay conversations were mutually
symbiotic, their
corroborative value was minimal. They remained truly
unsworn statements, which were totally untested in a court of law
according
to the criminal procedure rules to ascertain how reliable
they were.
[42] Notwithstanding the
aforegoing defects of the hearsays, the testimony of its subsequent
narrator remains unaffected. Nothing
affects the reliability of her
direct evidence that she made cellular contact with each of the two
original declarants. There is
no question of impaired recollective
faculties, dishonesty, lack of dependability, lack of independent
recollection or contradictory
blemishes. Her uncontradicted evidence
that she had distant conversations with these men has to be accepted
as reliable. So too
must her evidence that the two men made certain
statements or disclosures to her during those conversations. Those
aspects of her
evidence are reliable. There are also other important
pieces of objective evidence, which render her evidence even more
reliable.
For instance, the cellular data tends to show that the
cellular phones of the two men were used in the vicinity of Clocolan.
[43] Mr Saleem’s
unchallenged evidence was that, before the conversation she did not
know Clocolan and that she had never
heard of the place before. She
was in Cape Town when, for the first time, she heard about the place.
She flew to Johannesburg when
she could no longer reach her husband
or hear anything constructive about his whereabouts. There she
reported her husband as a
missing person to the Booysens Police. The
police referred her to a certain cellular services outlet. Her
evidence was that the
information she received from that outlet was
consistent with the hearsay utterances. She was fastidious in the
manner in which
she conducted her investigation of her husband’s
whereabouts. From Johannesburg she drove to Clocolan not only on the
strength
of the hearsays as previously outlined, but further
information obtained from a cellular outlet in Johannesburg. I am
mindful that
the alleged cellular information itself was hearsay.
However, its significance lies in the fact it came from an
independent source.
She established the true reason that the cellular
phone of her husband was last used in the vicinity of Clocolan.
[44] Both sets of hearsay
statements related to the information voluntarily and spontaneously
conveyed, Mr Amanullah Nusrullam had
no reason to fabricate a false
story about his whereabouts and those of his other three companions,
the purpose of their visit,
the identity of their escort from
Johannesburg and the names of those who hosted them where they
actually were. He had no opportunity
to deceive the witness. The
spontaneous information he gave her concerned a current state of
affairs then. He said that they were
at Clocolan at the time of the
cellular conversation; that they were exploring business opportunity
and that her husband was in
a meeting with specific individuals,
whose first names Shahid and Farhan coincided with those of accused
number 1 and accused number
5 respectively.
[45] The hearsay
statement was not about a contemplated future event or an
accomplished past event attributed to a deceased person.
The hearsay
statement was about a live event of that moment of the conversation.
The same can be said about the hearsay statement
the witness
attributed to her husband. Although Mr Saleem’s hearsay
statement was not as detailed as that of his friend,
Mr Nusrullam, it
was nonetheless sufficient information as to the place or where the
venue of the meeting, the purpose thereof
and the names of the
convenor(s).
[46] I turn to the
hearsay evidence of Ms N Awan. By and large the thrust of her hearsay
evidence which allegedly emanated from
the cellular conversations she
had with her husband, Mr Malik Yasser Awan, on Saturday the 11 March
2007 and the next day was in
a pretty much a similar vein as that
between Ms Saleem and her husband. Here, the hearsay concerns no
future event but rather a
current event, which was existant at the
same time of the conversation. The hearsay has it that Mr Awan told
Ms Awan that he was
at Clocolan and that they were visiting Saleem
and others. By the prom on ‘they’ she meant the four
gentleman namely,
Messrs M Y Awan, A Nusrullam, S Hussein and M
Saleem.
[47] It has to be
remembered that three days before the cellular conversation, on
Thursday 8 November 2007 to be precise, Ms Awan
gathered from her
husband that he and these three other men would travel down to
Clocolan on a business mission. That particular
conversation was face
to face. It took place at Lenesia in Johannesburg. Obviously it was a
future event. There it carried less
evidential weight then than the
subsequent conversations. When the future, the past and the present
dimensions of her hearsay evidence
are collectively taken into
account the reliability of her hearsay evidence is greatly bolstered.
[48] From a cellular
outlet at Lenasia, she obtained a list of the last five cellular
numbers, which had contact with her husband’s
cellular number.
She called one of them. Someone who identified himself as Farhan
picked up her call but declined to give her any
information about her
husband. Instead, he abruptly ended the call. The first name of
accused number 5 is Farhan. When Ms Awan
last had a cellular
conversation with her husband, he told her he was at Clocolan. The
alleged suspicious reaction attributed to
a respondent who identified
himself as Farhan and from his somewhat incriminating possession of a
cellphone, which had cellular
contact with Mr Awan’s cellphone,
culpable association could be inferred. He, accused number 5, is
therefore implicated by
the hearsay evidence of Ms Awan. Her hearsay
ties him to the scene of the crime itself at Clocolan, a town which
is implicated
in the disappearance of the 4 men.
[49] Now I turn to the
absent witness. The specified aspects of the statement attributed to
Mr Rehman Khan certainly entailed hearsay
evidence, which may play a
significant albeit not a decisive role in determining whether a
prima
facie
case has been made out for all the accused to answer. Since
admitting and relying on such hearsay has the deadly potential of
eventually
playing a decisive part in convicting some of the accused
– (vide
S v RAMAVHALE
supra
at 469d –
e) a court should only tread this path only if there is compelling
justification for doing so – (vide
S v NDHLOVU
supra
at 345c – d). This particular absent witness
seemingly had personal knowledge of facts crucial to the location of
the four
men over the specific weekend when the two hearsay ladies
had the last cellular contact with three of the four.
[50] The significance of
his hearsay evidence rested in the fact that he apparently had
physical contact with the 4 men; that he
lived at Clocolan; that he
knew the accused; that some of them were his relatives; that most of
them were apparently together at
Clocolan over the weekend during
which the other three deceased original declarants had cellular
conversations with the two narrative
witness, Ms Awan and Ms Saleem.
According to the hearsay evidence attributed to Mr Rehman Khan by the
three police narrators as
embodied in the written statements the
majority of the accused had physical contact with the 4 men at
Clocolan.
[51] The first of his
several hearsays was recorded on 5 December 2008 after the lapse of
almost 13 months since the incident reached
its pinnacle on Sunday,
11 November 2007. He took Captain Laux to the scene at Clocolan. The
spot he pointed out was excavated
and four human bodies, all in
advanced stages of decomposition, were discovered, exhumed and
identified. Among them were those
of the three original declarants of
the hearsays I am here grappling with. The shocking revelation of the
secret grave pointed
strongly that the hearsays of Mr Rehman Khan as
regards the whereabouts of the four men at the critical moment when
three of them
declared their exact whereabouts to the two ladies,
were reliable and correct. His accurate pointing out showed that
notwithstanding
the passage of time between the incident and the
pointing out, he still remembered the fine details of what happened
there.
[52] The discovery of the
men in the clandestine hole in the backyard significantly and
objectively validated the hearsays of Mr
Rehman Khan. It showed that,
notwithstanding the fact that his controversial statements did not
relate to a very recent event he
still had an accurate, clear and
reliable memory of the event. Moreover, the discovery showed that he
had adequate opportunity
of observing things. Although grass was
planted on the grave on purpose to conceal it so that it could not
readily attract suspicious
attention, he identified the grave with
relative ease after 13 long months. Rehman Khan did not struggle to
identify the unmarked,
secret grave on a huge property. All his
statements had one common golden thread running through them and it
was this: They were
all statements of accomplished facts, a past, but
unforgettable chain of events. None of them was a statement of any
future intention.
There were no future uncertainties about them.
[53] Here, every hearsay
concerned a second-hand stated account of a past event. The account
of such an accomplished mission was
stated, recorded and relayed by
an individual who did not actually hear any of the deceased original
declarants saying where they
were, but actually saw where they were.
He was not only present there. He actually participated in certain
dubious circumstances
which suspiciously led to the inability of the
original declarants to attend these court proceedings in order to
testify. In statements
of a past event or accomplished fact the sort
of vagaries attending statements of a future event or contemplated
missions by a
deceased are entirely absent here –
S v
NDHLOVU & OTHERS
,
supra
, para [42].
[54] Mr Rehman Khan’s
hands were not clean. He was suspected by the police of being an
active member of the same criminal
gang as the accused. Where the
original declarant is himself suspected of participation in a
criminal enterprise, a motive to implicate
an innocent person may
well be present if the hearsay emanates from a statement which is
substantially exculpatory in nature –
S v NDHLOVU &
OTHERS
,
supra
, para [43]. The hearsays in this
instance are not. On the contrary, they are substantially
self-incriminatory in nature. This particular
declarant was under a
cloud of suspicion not as a solitary criminal but a small fry in the
underworld sea of big sharks. At the
tender age of 19 years of age,
he was the youngest of those suspected, arrested and charged. In the
sixth of the seventh statements
he stated that Mr Ali Mamo Mazhir
(accused number 4) was his uncle and that Mr Ali Tanveer (accused
number 7), his cousin, and
they together with Mr Farhan Ullah
(accused number 5) stayed in the same house at Clocolan.
[55] Judging by his age
which is 14,4 years below 33,4 years, the average of the seven
accused, the magnitude of the crimes and
their number, it can be
reasonably deduced that he could not have done it alone. He vanished
from Clocolan
en masse
with all his house inmates under a
mighty cloud of suspicion. He was on the run for months. When he was
eventually tracked down
at Lydenburg in Mpumulanga far from Clocolan
in the Free State, he confirmed the police suspicion by eventually
implicating himself
without much ado. The hearsays are fundamentally
self-incriminatory statements in nature notwithstanding some of their
exculpatory
features.
[56] So far it cannot be
said that Mr Rehman Khan was unjustly actuated by ulterior motive to
falsely implicate the accused. No
sinister motive other than that he
was an accomplice was suggested as to why he would have needlessly
implicated seven innocent
men of which two were his close relatives.
No reason was suggested and I could find none, why he would have gone
out of his way
to shield his actual co-perpetrators at the expense of
seven innocent men including his close relatives, and all this in a
foreign
country overseas far away from their motherland, Pakistan. No
specific or vaguely general history of past or current animosity or

potential conflict was hinted. I am not persuaded that the pieces of
the hearsays can be justly excluded as unreliable and false
stories
fabricated by an accomplice who did not have the courage to come to
court and to openly repeat them in the presence of
the accused.
[57] In the circumstances
I am of the
prima facie
view that the nature of the hearsay
evidence attributed by the various narrators to the aforesaid
original declarants does not
justify that they be excluded on the
grounds that they constitute inadmissible evidence. Having taken
account of the nature of
the evidence, I am of the view that the
interests of justice on this front favours the inclusion of the
hearsay evidence under
attack. This completes the second leg of the
inquiry.
[58]
The hearsay
statute requires in the third place, that account be taken of the
purpose for which the evidence is tendered –
subsection
1(c)(iii).
By tendering the hearsay evidence the aim of the
proponent for its admission was to prove in the first place a great
variety of
facta probanda
pertaining to the whereabouts and
togetherness of the four victims. The multiple purpose for which the
six shades of the hearsay
evidence were tendered was to establish:
that the victims Mr M Y
Awan, Mr A Nusrullam, Mr S Hussein and M Saleem had travelled
together from Johannesburg ;
that they were invited
to Clocolan under a false pretext;
that they headed for
Clocolan;
that they were escorted
by Mr Querashi (accused number 2) down to Clocolan;
that they reached their
destination well and alive;
and that they were
initially received, hosted and entertained at No 10 President Brand
Street, adjacent to Shell Service Station.
[59] In the second
instance the purpose which the state tendered the evidence was
plainly to put the accused under the spotlight
on the scene of the
crimes. The hearsay evidence was tendered to show:
that some of the accused
were physically linked to the aforesaid reception venue at 16
President Brand Street;
that physical contact
between the victims and the accused gang was established;
that the victims were,
after the Saturday night party, shifted to 42 Andries Pretorius
Street where they were similarly disarmed,
detained and executed;
that the victims were
buried together in one grave on the same residential premises;
and that some of the
accused were physically linked to the murder house;
that the killing of the
victims was a joined criminal venture.
[60] The purpose for
which the hearsay evidence was tendered was certainly to prove
important aspects in the chain of evidence,
namely the identities of
the perpetrators and their deadly association with the victims. The
finding is essential in order to establish
each charge of murder. It
is one of the basic tenets of the common law caution about hearsay
evidence that the greater the importance
of the aspect(s) so sought
to be established by the tendering of hearsay – the greater the
intuitive reluctance of the court
to have it allowed as admissible
evidence -
S v DYIMBANE AND OTHERS
1990 (2) SACR 502
(SE) per Erasmus J.
[61] Where there is
virtually no evidence other than the hearsay about crucial aspects in
the case, the importance of such an aspect
is a factor which
understandably militates against the admission of hearsay evidence.
However, where, as in this case, there are
reliable pieces of
evidence substantially consistent with the hearsay evidence, on the
same important aspects underlying the purpose
for which hearsay
evidence was tendered, the importance of the particular aspect the
hearsay is purposefully led to prove, alone
should not be treated as
a decisive factor for disallowing the hearsay. The statute requires,
and this accords well with the fundamental
test of the interests of
justice, that a court should adopt a contextually integrated and not
a compartmentally fragmented approach
to the specified conspectus of
the supple factors of the statute in determining whether to disallow
or allow hearsay evidence.
(
S v MOLIMI
supra
).
Such global integration is vital notwithstanding the recognized
procedural and substantive disadvantages hearsay reception might

entail –
S v NDHLOVU
supra
.
[62] The purpose of the
various pieces of the hearsay was, in a nutshell, to show:
that the victims were at
Clocolan;
that the accused were
with the victims there at all times material to this case;
that the accused had a
sinister shared motive to kill the victims;
that the accused had
ample opportunity to do so;
and that,
prima
facie
, they appear to have done so.
[63] It would seem that
Rehman Khan was involved; that he had decided and volunteered to make
clean breast of the events and that
his hearsay accorded, in certain
respects, with the evidence, both direct and indirect presented, by
the state. Where his hearsays
are so corroborated and retrieved, they
will indeed complete the picture by brightening some dark spots
without building bridges
to cross the deep, impassable ravines, if
there are any.
[64] These hearsays are
not the only evidence led by the state indicating that the four
victims were at Clocolan. Therefore such
hearsays were not of
central, let alone decisive, importance in the process of determining
whether a
prima facie
case has been made out against the
accused. I had no difficulty with the prosecution case shortly before
the hearsay statements
attributed to Rehman Khan were tendered as
evidence. The argument for the inclusion of such hearsay statements
found favour with
me, not because such statements were consistent
with hearsays by other absent declarants and not because without them
the prosecution’s
case would have been on shivering sand, but
because certain objective facts and reliable direct evidence
independently called for
an answer. This completes the third leg of
the inquiry, viz the purpose for which the hearsay evidence was
tendered.
[65]
The hearsay
statute requires, in the fourth place, that specific account be taken
of the probative value of the evidence –
subsection 1(c)(iv).
The inquiry has two legs according to
S v RAMAVHALE
1996 (1) SACR 639
(A) at 649 e. The first aspect concerns reliability
and completeness of the narrator’s recitation of the
declarants’
words.
In
S v NDHLOVU AND
OTHERS
2002 (2) SACR 325
(SCA) para [31] Cameron JA said:
“
[31] The
probative value of the hearsay evidence depends primarily on the
credibility of the declarant at the time of the declaration,
and the
central question is whether the interests of justice require that the
prior statement should be admitted notwithstanding
its later
disavowal or non-affirmation. And though the witness's disavowal of
or inability to affirm the prior statement may bear
on the question
of the statement's reliability at the time it was made, it does not
change the nature of the essential inquiry,
which is
I
whether
the interests of justice require its admission.”
[66] As regards Ms Awan’s
transmission of the declarant’s original words, I kept in mind
that the narrators and declarants
were a couple, husband and wife.
She gave a detailed account of the conversations she had with her
husband before and after his
departure. Before his departure she
established that advanced plans were afoot for him and others to
travel to Clocolan. Her husband
divulged to her his future intentions
to travel to the particular town. Subsequent to his departure she
established from him that
he had reached the intented destination.
During the last conversation her husband declared that he was going
to a far away place
but declined to specify such place.
[67] Ms Awan’s
husband never returned home. She was anxious to find him. She
investigated his mysterious disappearance. She
met Ms Saleem. She
discovered that her predicament and her’s were identical. She
ascertained that her husband’s companions
also went missing.
Central to their disappearance was a place called Clocolan. She
travelled to Clocolan to look for him. She believed
that in that town
she would probably obtain some constructive information about his
whereabouts. Her husband had no reason to say
that he was at Clocolan
if he was in fact elsewhere. It seemed unlikely that she would have
taken the trouble to start her investigation
at Clocolan unless there
was a compelling reasons(s) for her to start there. The only reason
why she kicked off her agonising tracing
campaign in that town is to
be found in the hearsay utterances she attributed to her husband.
This narrator’s transmission
of the declarant’s original
words appeared to me to have been a
prima facie
reliable and
complete account. The probative value of her hearsay evidence was
fairly high. The probative value of her hearsay
evidence was fairly
high.
[68] As regards Ms
Saleem’s transmission of the original words of the declarants,
the contextual setting, emotional dynamics
and almost everything else
were more or less similar as in the case of Ms Awan. Ms Awan,
however, knew after her last conversation
with her husband, that he
would never come home back to her again. Ms Saleem did not such a
chilling permistic remark. After her
last conversation Ms Saleem was
still hopeful that her husband would be coming home. By the time they
met, however, they were in
the same predicament. They could no longer
reach their husbands by phone. My findings concerning the two
witnesses were therefore
likewise identical, it must be borne in mind
that Ms Saleem’s hearsays were attributed to two declarants,
her husband and
his friend. Their two declarations were identical to
the declaration Ms Awan had attributed to her husband. The
significance of
this was that the hearsays tendered to show that the
missing men were together and that they were agreed as to the place
where
they said they were. The probative value of this witness was
substantially great, in my view.
[69] As regards Ms Rehman
Khan, the narrators were all police officers who testified about
certain hearsay statements they attributed
to the gentlemen. All but
one of those hearsays were written. In this context the probative
value of those written statements as
well as those oral utterances by
the subsequent narrators, in other words the police witnesses,
depended on the credibility of
the original declarant, in other words
Mr Rahman Khan. These hearsay narratives purported to be
comparatively more reliable and
complete accounts of the
declarations, because, save for one, they were preserved in written
form. Each hearsay was written down
at the time it was made.
[70] Here the hearsay
narratives were recounted by police witnesses. They relied on
declarations by a declarant who did not affirm
any of the prior
statements the narrators attributed to him as their original source.
None of the narrators harboured any sinister
motive to fabricate such
narratives and to falsely label them as the declarations of someone.
They were neutral investigators with
allegiance to neither the
accused nor the victims. There was no suggestion that they
exaggerated or suppressed anything in order
to secure the conviction
of the accused at all costs. I have no reason to believe or to
suspect that the declations were inaccurately
recorded or
incompletely relayed or narrated. Therefore, I tentatively accept
that the transmission of the declaration was reliable,
complete and
accurate.
[71] The second aspect of
the same inquiry revolves around the reliability and completeness of
the declarant’s words. Here
evidence is usually needed to prove
that the original words of the declarant were accurately stored and
preserved. The aspect needs
not detain me longer than it is
necessary. The comprehensiveness of whatever the declarant did say
appears
ex facie
the prior statements he made. The first
declaration he made was about a year after the alleged incident and
the last about one
and a half year. The recollective powers of human
mind gradually fade away with time. Factual distortions may blur the
picture
as time passes by. However, the mind is slow to forget events
so huge especially those that have an impact on such an individual.

The witness to murder, let alone a participant or an accomplice
thereto, is unlikely ever to forget such an incident within a
relatively short period of 18 months. This is so much true for a
fugitive. In this instance there is evidence about four murders.
It
was an enormously huge event. I think that no normal participant in
the event of such magnitude can ever forget it. These factors
coupled
with the fact that the original declarations were preserved in a
written form and not oral form, enhanced the probative
value of the
hearsay evidence and its finer details as reasonably reliable,
accurate and comprehensive.
[72] I do not have much
more to say save to assure the accused that I am mindful and alert to
the perils of hearsays by the author
of those prior statements. The
original declarant did not testify under the sanction of an oath in
an open court. He did not show
up. He did not face the accused. He
did not, in their presence, repeat the averments he previously made
in those prior statements
against them. And they could not debate the
incriminating elements of such prior statements with him in order to
expose their unreliable
and untrustworthy features, if any.
[73] Because Rehman Khan
did not testify what his powers of perception were; what
opportunities of observation he had; what his
levels of attentiveness
were; what his concentration endurance was; what his strength of his
recollections were; what his motives
were for making the prior
statement; what prevented him from making a clean breast of the
events earlier than he did; what benefit,
if any, he was expecting by
making those statements and what his dispositions were, as an
individual, to speak the truth - cannot
now be accurately assessed –
Taylor’s Treatise on the Law of Evidence
, 12
th
ed (1931) at para 567.
[74] The narrators of the
crucial narratives that the victims, on the one hand, were together
with the accused, on the other hand,
at Clocolan would not step into
the shoes of the absent original declarant. They could not be
subjected to the ordeal of cross-examination
in order to show that
his declarations were not reliable and credible. That was so seeing
that they were not on the scene, they
could add no substantial
probative value to the second aspect of the inquiry.
[75] The nub of the
hearsay statute entails that hearsay utterance does not automatically
become absolutely inadmissible and valueless
simply because the
extra-curial declarant, for whatever reason, happens to be absent.
Such absence, clearly frustrated the accused
procedural right to
openly confront such a declarant. But the accused procedural right to
confront such a declarant by way of cross-examination
may also be
frustrated, albeit differently, by a declarant who, though physically
present in court, for one or other reason, testifies
but denies the
correctness of the hearsay statement; or testifies but denies ever
making it; or testifies but neither confirm nor
deny it; or simply
refuse to testify.
[76] In
S v NDHLOVU
& OTHERS
,
supra
, para [30] Cameron JA pointed out
that if the original declarant is physically present, but when called
to testify, disavows the
hearsay statement previously attributed to
him, or fails to recall making it, or is unable to affirm some of its
material aspect(s)
– the situation is not, in substance,
materially different from the case where, as in this case, the
original declarant does
not testify at all.
“
When the
hearsay declarant is called as a witness, but does not confirm the
statement, or repudiates it, the test of cross-examination
is
similarly absent, and similar safeguards are required.”
[77] The probative value
of the narrator’s hearsay evidence depends primarily, but not
entirely, in my view, on the credibility
of the declarant at the time
that the declaration was made and not at the time the testimony is
given by the declarant -
S v NDHLOVU,
supra.
In
casu
the central question is whether the interests of justice
require that the prior hearsay statements attributed to the declarant
should
be received as admissible evidence against the accused
notwithstanding lack of its final confirmation occasioned by the
non-attendance
of the declarants. It is not and it will never be
known what impact their untold stories would have had on the
probative value
of the hearsay narratives. However the hearsay
evidence cannot be as probutively valueless for that reason alone.
[78] Hearsay evidence has
an inherent probative value derived from the spirit purport and
object of the statute itself where the
declarant subsequently
testifies and affirms his earlier declaration, (s)he made outside
court and passes the test of cross-examination.
The court declares
him or her a credible witness. The credibility of the declarant
increases the probative value of what was earlier
previously received
as hearsay evidence. Where the declarant testifies but repudiates his
earlier declaration, he fails the test
of cross-examination. The
court disbelieves him and declares him an untrustworthy witness.
However, the negative finding of the
court on the credibility of the
declarant does not automatically have a decremental effect on the
probative value of the unconfirmed
hearsay evidence. That used to be
the case before the statute but not anymore though.
[79] The second scenario
has all the material hallmarks of a case where a declarant does not
testify at all on account of his physical
absence from court. That is
precisely the situation here. The difficulty in a case of an absent
declarant lies in the fact that
it becomes virtually impossible for
the trial judge to make credibility findings which are crucial to the
inquiry relative to the
probative value of the hearsay narrators or
witnesses. What happens at the trial and brings about the declarant’s
inability
to affirm the prior statement, does not practically
terminate the inquiry. To a greater of lesser extent the general
impressions
the court forms about the narrator as a witness, will
play a role. As far as the non-hearsay aspect of the evidence was
concerned,
all the narrative witnesses acquitted themselves
reasonably well in this case, in my view. They were reliable and
credible. They
asserted that they had certain declarations made by
individuals who did not ultimately confirm such declarations. Their
evidence
as a whole contained a number of corroborative safeguards
which bolstered the trustworthiness of their hearsay assertions.
[80] The probative value
of the declarants’ statements to the various narrators did not
entirely depend on the credibility
of what they could or would have
said at the trial, had they testified, but rather on their
credibility at the time they allegedly
made such prior statements to
the hearsay witnesses, whom I evaluated as reliably and credibly
impressive witnesses. The fundamental
test is informed by the
interests of justice, which demand that a global impact of the
evidence be taken into account before hearsay
evidence can be
excluded on the basis of its non-affirmation by the original
declarant. In this case the interests of justice require
that the
inherent probative value of the hearsay statements should not be
devalued and garbished as valueless on account of its
non-affirmation
but rather enhanced. The most significant aspect is the enormously
powerful way in which the various pieces of
all the evidence
interlinked to form a spiderweb around the accused. I shall deal with
those facts in the main judgment. It is
also significant to keep in
mind that Mr Rehman Khan made several statements to three police
witnesses. Broadly speaking those
statements were mutually
constructive.
[81] Where a broad
overview is collectively taken of the entire spectrum of the evidence
at this halfway juncture, numerous and
forceful pointers to the
probative value of the hearsay evidence emerge. Beyond the narrow
confines of the hearsay evidence
in casu
the guarantees of
reliability are high. Such corroborative features or scatterlings in
this unfolding drama,
prima facie
, turned to give substantive
measure of credence to the hearsays. To brush aside the probative
value of such valuable evidentiary
material, would not accord well
with the interests of justice.
[82] In
S v
NDHLOVU
,
supra
, paragraph [45] Cameron JA said:
“
[45]
'Probative
value' means value for purposes of proof. This means not only, 'what
will the hearsay evidence prove if
I
admitted?',
but 'will it do so reliably?' In the present case, the guarantees of
reliability are high. The most compelling justification
for admitting
the hearsay in the present case is the numerous pointers to its
truthfulness. The only detail in which anything that
either accused 3
or 4 told the police was proved wrong was accused 4's statement that
the deceased's vehicle was 'white'. It was,
in fact, light yellow.
That detail can hardly dent the pile of accurate, reliable
information that accused 3 and 4 supplied to
the police.”
[83] For the purposes of
interim proof, I am satisfied that the weight or probative value of
such hearsay material compensates,
perhaps not adequately but
nonetheless enough, the deficit occasioned by lack of affirmation of
the prior statement by the declarant.
The minimum requirements of the
threshold for the transition appeared satisfied. I am inclined to
think that the probative value
of the hearsay evidence and the
objective guarantees of the entire evidence prove to be the
compelling justification that the hearsays
deserve to be considered
and not to be disregarded. Whatever discrepancies there might be in
the hearsay statements can hardly
eclipse the mountain of accurate
and reliable information Mr Rehman Khan supplied to the police. This
ends the fourth leg of the
inquiry.
[84]
The hearsay
statute requires,
in the fifth place,
that specific
account be taken of the reason why the evidence was not given by the
person upon whose credibility the probative value
of such evidence
depends – subsection 1(c)(v).
The subsection demands that
the proponent of the hearsay evidence give a sound explanation why
the declarant cannot testify. The
law of evidence, for obvious
reasons, places a high premium on the hearing of the original story
from the horse’s mouth.
Unlike the second-hand narrative, a
first-hand account of an event by its original declarant, has many
advantages. The inquiry
pertaining to its reliability and credibility
features is straightforward. It does not presents procedural
difficulties.
[85] The following
declarants did not testify because it was practically impossible for
them to be called to testify: Awan, Nusrullam,
and Saleem. They were
dead. The situation presented no problem. There was a sound reason
why they did not testify. On account of
their absence the state had
to rely on the hearsay narratives, which were not and could not be
affirmed by the original declarant.
[86] Yet another
declarant who did not testify was Rehman Khan. His situation is very
different. Precisely why he did not testify,
is at the heart of this
inquiry. He escaped from his secret sanctuary where he was placed
under witness protection program. Since
then his precise whereabouts
are unknown to the state. Ms Bester argued that the accused were
responsible for the inability of
the particular declarant to testify.
Mr Potgieter disagreed. He argued that the accused were not all to
blame for the escape of
the state witness and his subsequent failure
to testify.
[87] The situation here
is not akin to a classical case of an absent witness. He is an Asian
of Pakistani origin. He lived at Clocolan
but worked at Ficksburg. He
was one of the suspects in the case. He was on the wanted list of the
police investigation team. Apparently
he was on the run for over a
year since the incident. During that period it is unlikely that he
would have forgotten why he was
on the run. It is not in dispute that
accused number 7 was arrested at Barberton. The next day the witness
was arrested at Lydenburg.
According to W/O E van Zyl although the
witness was acutely aware of his imminent arrest and despite the
warning by accused number
7 he did not flee any more. He told the
police officer that he was tired of being a fugitive from justice;
that he felt very insecure;
that all he needed was police protection
and that he would divulge all he knew about the incident of the 4
missing men.
[88] From Lydenburg he
was taken straight to Clocolan where he pointed out a specific site
the next day. According to captain Laux
the witness was very anxious
about his personal safety. He once again repeated his request for
police protection. He feared the
wrath of those who were involved
with him.
[89] The police acceded
to the request of the witness. The spot which the witness had
anxiously pointed out was excavated. The police
discovered decomposed
corpses of four men of Pakistani origin. They were identified. Of the
four, three were the declarants Awan,
Nusrullam and Saleem.
[90] I pause to remark
that the escape I am here dealing with was not the witness’
first. Following his earlier escape, he
resurfaced in Durban. On his
own free accord, the escapee surprisingly, as one may be inclined to
think, voluntarily surrendered
himself to the Durban Police from
where he called the investigating officer, warrant officer Steyn, and
desperately begged her
to urgently fetch him in order to place him
under the witness protection programme again. This demonstrated
strongly, perhaps conclusively,
just how dangerous he perceived the
situation concerning his personal safety out there to be. The
endangered witness was immediately
rescued by the police. On that
particular occasion he was placed under a 24 hour witness protection
programme. I understood this
to mean that the police protective
safely measure around him and his secret sanctuary were intensified.
Precisely what those measures
were and where the secret sanctuary
was, are matters which, for obvious reasons, should not be publicly
divulged as doing so, might
compromise the safety of the witness so
protected.
[91] Three days or so
before the date on which he was expected to testify, he was lawfully
removed from his secret sanctuary for
a final refresher consultation
with a colleague of counsel for the state. According to the
investigating officer, the witness was
extremely concerned. He
anxiously informed her that certain faceless forces were subjecting
his family way back in Pakistan to
acts of harassment and
intimidation. During the early hours of that very same night at
approximately 3h36 the fearful witness mysteriously
escaped from his
high security secret sanctuary. He was never seen again to this day.
[92] Subsequent
investigation revealed that the witness apparently had a clandestine
cellular phone in his secret sanctuary; that
there were numerous
cellular contact between such clandestine mobile phone and another
mysterious mobile phone; that calls to and
from the latter phone were
captured by the Grootvlei cell station; that such cell station was
located on the premises of Grootvlei
correctional facility; that the
last recorded transaction of the protected witness’ phone was
captured by a Kranskop cell
station near Glen. There, the witness
disappeared completely from the radar.
[93] It was common cause
that the accused have, since their arrest, been incarcerated at
Grootvlei, that accused number 1 has, from
that prison, telephoned
the state witnesses, Mr Iftikhar Khan of Bethlehem; that accused
number 1 has, from that prison, telephoned
the state witness, Mr
Rashid Khan while the witness was in Pakistan. This witness’s
relative, Zia Khan was kidnapped from
Maputsoe in Lesotho. The
kidnappers demanded R2 million from the witness for the release of
his brother. Moreover, they threatened
to kill the hostage unless the
witness paid the ransom.
[94] The ransom was never
paid. Though the witness was willing and able to pay. Rashid Khan
never saw his relative, Zia Khan alive
again. His body was found
buried on a residential plot in Bloemfontein.
[95] At the time of their
arrest accused number 1, 2 and 5 were conspiring to kidnap Rashid
Khan according to Mr Iftikhar Khan.
In fear of the safety of his life
the witness fled Lesotho and returned to his motherland. According to
the witness accused number
1 threatened to put an end to his life. It
was also common cause that accused number 2 has, from Grootvlei,
telephoned the state
witness, Mr Iftikhar Khan about the case. This
witness had a friend at Ficksburg. According to the witness the
kidnapping and death
of Zia Khan so frightened his friend that the
latter decided to leave the RSA. He is now living somewhere in
Europe. The witness
himself expressed his own fears about the accused
and their group.
[96] It can, therefore,
be seen that Rehman Khan was not the only person living in fear of
the criminal gang. He, more than any
other witness, seriously and
directly incriminated the accused with exception of accused number 3.
He also incriminated himself.
Some of the accused, are his relatives.
A person does not readily incriminate those close and dear to him
unless he speaks the
truth.
REX v NCANANA
1948 (4) SA
399
(AD). In a similar vein it is unlikely for a person to
incriminate himself unless what he says is indeed true.
Obviously, it was in the
interest of the accused if Rehman Khan, of all the state witnesses,
did not testify.
[97] Rehman Khan was the
youngest of all those suspected, arrested and accused. The first 6 of
the 7 accused were arrested on the
10
th
of March 2008.
Accused number 7 on the 3 December 2008 and Rehman Khan 9 months
later on the 4 December 2008. He was the last to
be arrested. Until
his arrest, the fate of the 4 missing men was still a mystery. The
participant in the criminal enterprise were
apparently sworn to
secrecy. He broke the code of silence. He was tired of being on the
run. As a result, there was a dramatic
breakthrough in the
investigation. He sought police protection because he had been
sternly warned beforehand, as was every other
perpetrator, about what
the consequences of betraying fellow participants would be.
[98] At once stage he
escaped, probably he was subjected to tremendous undue pressure and
intimidation to do so. He quickly realised
how dangerous it was for
him out there. He was rescued by the police. Seemingly powerful
forces intensified pressure afterwards.
He was probably given a
serious warning again that his family in Pakistan would be violently
harmed if he went on and testified
against the group. He eventually
succumbed to the relentless pressure.
[99] It is now an
accomplished fact that the witness did not testify. I am not all
persuaded by Mr Potgieter’s submission
that this was a
classical case of an absent witness. The numerous cellular contacts
between the witness secret sanctuary and the
correctional centre
where the accused were held were extremely suspects. The
probabilities strongly suggest that the witness did
not chicken out
on his own accord. They strongly seemingly to suggested that he was,
by improper means, induced to run away to
prevent harm to his next of
kin and to himself. He might have been lured away under false pretext
that if he did not testify he
and his dear folks would not be harmed.
Whether he is still alive is a doubtful proposition. His second
escape was no guarantee
that he would not again surrender and
eventually give damming evidence against the gang. Putting an end to
his life was certainly
the only absolute guarantee. I hope I am
wrong.
[100] If the witness was
not kidnapped he was assisted to escape. Only the accused stood to
benefit if such important witnesses
did not show up to testify. The
living Rehman Khan was bad news for them. He was the one and only eye
witness to the incident.
From the same prison, they, accused 1 and
accused 2, have called two other state witnesses. He, accused 1,
allegedly threatened
to kill one of those witnesses. The testimony of
Rashid Khan, implicated some of the accused, including accused number
1 with the
kidnapping and murder of Zia Khan, the Bloemfontein victim
of murder. The secret cellphone which the witness apparently used,
shortly
before his dramatic escape was falsely registered in the name
of a fictitious person with a similarly false address somewhere in

Cape Town. The secret cellphone used at Grootvlei to communicate with
the witness was never found despite the police raid of the
prison. It
was probably unlawfully smuggled into the prison cells as was the
secret cellphoned used in the secret sanctuary by
the protected
witness.
[101] All these pieces of
evidence strengthen my view that there was something illegal about
the cellular contacts between the witness’s
sanctuary and the
correctional centre where the accused were held. The underlying
purpose of such illegal communication was to
derail the normal course
of these proceedings. The sabotage of a due process of law cannot and
should not be tolerated. In the
circumstances I am of the
prima
facie
view that one of two or more or all of the accused persons
were responsible for the absence of the witness and his resultant
inability
to testify. It would seem that they made their bed and now
they must lie in it. Those who deliberately engineered this
undesirable
state of affairs cannot, on any legal or moral grounds,
turn around and complain about the adverse impact of their own
unlawful
actions to their fair trial rights. To exclude the prior
statements of the witnesses in these circumstances would be contrary
to
public policy considerations. The reasons why the evidence was not
given by the witness on whose credibility the probative value
depends
favours the state. It can never be said the interest of justice
require this factor to be adjudicated in favour of the
defence.
[102] Right from the
onset the witness has serious concerns about his personal safety.
Warrant Officer Van Zyl arrested the witness
at Lydenburg. He
testified that the witness was concerned about his personal safety.
Captain Laux interviewed the witness at Clocolan.
He testified that
during the prepointing out interview the witness was very concerned
about his personal safety. Warrant Officer
Steyn interrogated the
witness in Bloemfontein prior to the taking of the statements from
him. She testified that the witness was
deeply concerned about his
personal safety. She caused the witness to be taken to the offices of
the Deputy Director of Public
Prosecution for final consultation. She
testified that the witness was extremely concerned on that day about
the safety of his
mother in particular and the family members of her
household in Pakistan. The conduct of the witness particularly during
his first
escape tells a story of a terrified young man who has seen
things a youth so young is not supposed to see. He was trapped
between
the devil and the deep blue sea.
[103] The witness was in
Bloemfontein hours before his mysterious disappearance. So were the
accused at the critical moment. The
numerous cellular contacts which
preceeded his disappearance originated from the Radiospoor tower in
the vicinity of the sanctuary
where the witness was held to the
Grootvlei tower in the vicinity of the correctional centre where the
accused were incarcerated.
The conduct of the witness as evidenced by
those secret communication strongly suggest that he probably switched
allegiance from
the police to the accused under tremendous pressure.
I had a feeling, and it was a very strong feeling: that he was
probably apologising
to them for breaching the code of silence; that
he was compassionately besieged them to do his family no harm or to
spare his family
which was under severe threat and that he was
probably given no such guarantees unless he, in return, severed ties
of his perceived
unholy alliance with the police in order to subvert
these criminal proceedings against the group.
[104] As I see it, his
dramatic second escape was prompted by these considerations. I do
not, for one moment, think that he freely
ran away. I think he was
forced to run away by the shear magnitude of the predicament. He
feared, and in my view, on reasonable
grounds, that his testimony
would seriously endanger his life and that of his family. By escaping
he was trying to demonstrate
the
bona fides
of his undertaking
to the powerful forces that turned his life into a nightmare. He did
so in a bid to appease the enormously powerful
forces which were
threatening his personal safety as well as that of his family. I fear
that the witness might have journeyed from
his secret sanctuary near
Radiospoor tower to his secret grave near Kranskop tower somewhere
around Glen.
[105] When the provisions
of the statutory exception in terms of subsetion 1(c)(v) are applied:
firstly, to the hearsay narratives
of the two civilian witnesses,
namely Ms Awan and Ms Saleem, it will be readily realised that the
reasons why the evidence was
not given by original declarants was
that they were all dead. Mr Awan, Ms Nusrallam and Mr Saleem died of
unnatural causes. All
of them, including Mr Hussein, were shot dead.
There was evidence which linked the accused to the house where their
corpses were
discovered. The death of each of those original
declarants, in those peculiar circumstances, was a sound reason why
the disputed
evidence was not given by its original declarants but
rather by subsequent narrators.
[106] Applying the
provisions of the statutory exceptions in terms of subsection 1(c)(v)
secondly to the hearsay narratives of the
three police witnesses,
namely Warrant Officer Van Zyl, Captain Laux and Warrant Officer
Steyn, in connection with the written
statements of Rehman Khan, it
will be appreciated that the reason why the evidence was not given by
the original declarant was
that he escaped from his secret sanctuary
less than two days before the date on which he was supposed to
testify against the accused.
There was cellular evidence which tended
to implicate the accused concerning his escape. The suspicious
disappearance of that original
declarant, in those mysterious
circumstances, was a sound reason why the disputed evidence was not
given by its original declarant
but by the subsequent narrators.
There seemed to have been undue influence and drastic pressure which
induced him to chicken out.
[107] In
S v
NDHLOVU & OTHERS
2002 (2) SACR 325
(SCA) at 347e accused
number 3 and accused number 4 were the original declarants who in
their original warning statement implicated
their co-accused. The
police witnesses were the subsequent narrators of the prior
statements. The declarants testified at the trial
but denied ever
making the hearsay statements which implicated their co-accused,
accused 1 and accused 2. Here unlike there the
original declarant was
not a co-accused but an accomplice nonetheless. Therefore his hands
were not clean. Here unlike there the
original declarant did not
recant his post arrest statement. He did not deny ever making those
statements. He did not testify at
all. It would seem that the accused
deprived the original declarants of the opportunity of testifying.
[108] Those cosmetic
differences notwithstanding, the situation here was, in substance,
not materially different from the situation
there. The bottomline in
this matter as in that case was that the court had to grapple with
the unconfirmed hearsay narratives
and the underlying reason for such
non-affirmation. Sounder reasons than the reasons I found in this
will be hard to find. The
interest of justice impelled me take into
account the compelling force of those reasons, as the justification
for ruling in favour
of the state. This disposes of the fifth leg of
the inquiry.
[109]
The hearsay
statute requires in the sixth place that account be taken of any
prejudice to a party against which the admission of
such evidence
might entail.
A great deal has been said in many decisions about
the inherent prejudice of hearsay evidence. In
S v RAMAVHALE
supra
there were three features of prejudice which I found
missing in the instant matter. Firstly, the only evidence tendered by
the
prosecution purported to indicate why the deceased victim went to
the appellant’s house was hearsay evidence which found its

favour into the record through an unorthodox method or through the
backdoor, if you will. Secondly, such unwanted hearsay evidence
was
never, at an appropriate stage, ruled to be an admissible integral
part of the state case. Thirdly, such hearsay evidence was
belatedly
relied upon by the state and used by the court as evidence of
central, if not decisive, importance in the case. On account
of such
hearsay the trial court was persuaded to find that the state had
discharged the onus of disproving the appallant’s
plea of
self-defence. There was no such procedural prejudice here. The
procedure was not tainted by any irregularity.
[110] Mr Potgieter argued
that the hearsay evidence sought to be included in the prosecutor’s
pot of evidence was highly prejudicial
to the accused. On the
strength of such procedural prejudice, he submitted that a cautious
court would exclude it. Of course, any
evidence, be it hearsay or
primary is always prejudicial to the interests of a party against
whom it is adduced. See
S v DYIMBANE
1990 (2) SACR 502
(SE) at 505b-c;
METEDAD v NATIONAL EMPLOYERS’ GENERAL
INSURANCE CO LTD
1992 (1) SA 494
(W) 499B;
S v
RAMAVHALE
supra
1996 (1) SACR 639
(A) at 650h-i. But
that is not the fundamental test.
[111] In
S v
NDHLOVU & OTHERS
2002 (2) SACR 325
SCA the court
acknowledged the inherent and inevitable prejudice of the hearsay
evidence but pointed out that such prejudice has
to be gauged against
the interest of justice. At paragraph [50] Cameron JA eloquently and
lucidly put it as follows:
“
[50] The
suggestion that the prejudice in question might include the
disadvantage ensuing from the hearsay being accorded its just

evidential weight once admitted must be discountenanced, however. A
just verdict, based on evidence admitted
H
because
the interests of justice require it, cannot constitute 'prejudice'.
In the present case, Goldstein J found it unnecessary
to take a final
view, but accepted that 'the strengthening of the State case does
constitute prejudice'.  That concession
to the proposition in
question, in my view, was misplaced. Where the interests of justice
require the admission of hearsay, resultant
strengthening of the
opposing case cannot count as prejudice for statutory purposes, since
in weighing the interests of justice
the court must already have
concluded that the reliability of the evidence is such that its
admission is necessary and justified.
If these requisites are
fulfilled, the very fact that the hearsay justifiably strengthens the
proponent's case warrants its admission,
since its
omission
would run counter to the interests of justice.”
[112] I have already
alluded to considerations of public policy under the previous topic:
the reason why the evidence was not given
by the original
declarant(s) to whom such hearsay utterances or narratives were
attributed. I found that there were adequate and
acceptable reasons
advanced by the prosecution as to why the declarants did not testify.
Those who were the effective cause of
the inability of the declarants
to give firsthand account of the incident could not justly complain
about the inevitable prejudice
which naturally followed as a direct
consequence of the situation they created. What more can I say which
Cameron JA has not said
about prejudice? He question whether the
admission of hearsay evidence might entail any prejudice to the
accused had to be concidered
against the backdrop of the findings I
have already made under the previous topic, the reason why the
evidence was not given by
the original declarant upon whose
credibility the probative value of such evidence primarily depended.
[113] The witness, Rehman
Khan, had a story to tell. The interests of justice required that he
be heard and that the party against
whom he was supposed to testify
be afforded ample opportunity to challenge his testimony as well as
his prior statements by way
of cross-examination in order to diminish
the probative value of his evidence. The sole purpose of a
testimonial court drama is
to ascertain the truth. In the
circumstances of this sort an adverse inference can be legitimately
drawn that a party who prevented
another party’s witness from
testifying was not interested in the truth of the matter. When the
chickens come home to roost,
the guilty party should not cry foul
play. Such cynical abuses of the system should never be rewarded.
[114] The admission of
hearsays in this case, gave rise to a
prima facie
case of
criminal complicity against the accused. If regard is had to the
sighting of Saleem’s car at Clocolan and the sighting
of
accused number 1 driving the same sedan at Clocolan shortly after its
owner went missing then it appeared that accused number
1 and indeed
accused number 2 who escorted the 4 from Johannesburg at least were
in contact with the foursome. That also gave rise
to a further
inference that they probably knew their whereabouts or their fate. I
am of the opinion that the accused have some
explaining to do in
order to refute these inferences. The statements attributed to the 4
declarants were not criptic and terse.
They were rather elaborate.
They gave rise to the inference that the 4 victims were together;
that they were at Clocolan and that
they were not alone all alone by
themselves but with 2 or more of the accused. In my opinion there was
no prejudice. But even if
there was, the accused had only themselves
to blame. This dispose of the sixth leg of the inquiry.
[115]
The hearsay
statute requires, in the seventh place, that account be taken of any
other factor which should, in the opinion of the
court, be taken into
account.
This is the final topic or element of the test.
There were 3 charges
which were withdrawn. The first withdrawals were precipitated by the
subsequent death of the victim (vide charges
2 – 4) namely,
kidnapping, armed robbery and theft. There were 4 charges which the
state decided to drop (vide charges 5
– 8). By that time about
8 witnesses had already testified. There was direct evidence adduced
that the accused as a group
used 2 houses at Clocolan, namely: 10
President Brand Street and 42 Andries Pretorius Street. The corpses
of the 4 victims were
discovered at the latter house. The hearsay
statements of Rehman Khan were consistent with that evidence.
[116] Moreover, during
the cross-examination of a certain witness, Latela, the defence
conceded that, Mr Awan did stay in the latter
house. It was not in
dispute that the house was occupied by some of the accused at the
time and that accused number 1 was responsible
for the payment of the
monthly rental. The only dispute was that the status of Mr Awan,
according to the prosecution witnesses,
he was kidnapped from
Barberton and held hostage at Clocolan for approximately 2 weeks.
According to the suggestion by counsel
for the defence Mr Awan was
not there as a hostage but a potential buyer of a motor vehicle.
[117] Consider the
following factual allegations levelled against the accused:
Shahid Jamee Awan
testified that accused number 1 visited him at Elukwatini outside
Badplaas in Mpumalanga. He regarded accused
number 1 as a compatriot
and a kind of a friend. The next day accused number 1 asked the
witness to drive him to Nelspruit. He
acceded to the request.
However, they never reached Nelspruit. On the way accused number 1
lured him to Barberton. There his tea
was spiked. His limps were tied
up and his face covered up. The piece of cloth that was used to cover
his face was dosed with one
or other sedative substance. He lost
consciousness. He was still in a state of unconsciousness when he was
kidnapped. He was eventually
taken to the Free State where he was
held hostage at 42 Andries Pretorius Street, Clocolan. According to
his testimony the accused
were occupants of that particular house.
This is the first factual scenario.
[118] Mrs Saleem recalled
that accused number 1 once visited her husband in Cape Town. Mrs Awan
recalled that accused number 2 once
visited her husband in
Johannesburg. They regarded the two as friends to their husbands.
[119] The four heard from
the accused about an attractive diamond deal. Rehman Khan stated that
accused number 2 escorted the foursome
from Johannesburg in Gauteng
to Clocolan. They were entertained at the braai before they were
introduced to a certain Lephoi Makara
who posed as a diamond dealer.
It would appear that they were entertained at 10 President Brand
Street Clocolan. The four must
have believed that they were with
friends. During or after the braai on that particular night, the four
were accused of having
murdered a friend of Bazra. The next day they
were executed for that reason and buried in a secret grave at 42
Andries Pretorius
Street. The last contact which Mrs Saleem and Mrs
Awan had with their husbands was on Saturday, 10 November 2007. This
is the second
factual scenario.
[120] Rashid Khan
testified that accused number 1 and others visited his brother Zia
Khan at Maputsoe on 3 March 2008. He regarded
them as friends of Zia
Khan. The companions of accused number 1, namely accused number 2 and
6 slept over at Zia Khan’s but
accused number 1 did not. The
next morning Zia Khan left with them. He was never seen alive. A
ransom was demanded from Rashid
Khan for the release of Zia Khan. Zia
Khan died before the ransom was paid. His body was discovered in a
secret grave on a plot
commonly known as 8 Van der Spuy Avenue,
Estoire in Bloemfontein. The residential property in question had
been leased by accused
number 3 on 23 February 2008 a week before Zia
Khan was kidnapped. This is the third factual scenario.
[121] Iftikar Ahmed
testified that he and his friend drove to Kestell to have a meeting
with accused number 1 and others. The meeting
was initiated by
accused number 1 who travelled to Kestell on 10 April 2008. He and
his friend meet accused number 1, 2 and 5.
They wanted him to find a
safe place for them, because they were conspiring to kidnap Rashid
Khan. Their plot did not materialise
because they were arrested there
and then. This is the fourth factual scenario.
[122] The investigating
officer, warrant officer Steyn and warrant officer Van Zyl testified
that Rehman Khan made certain hearsay
statements and did certain
pointings out.
[123] His statements were
remarkably consistent with the testimonies of credible and reliable
witnesses. His pointings were consistent
with objective proven facts.
Both the pointings (of the town, the houses, the grave and the
corpses) and the statements highly
incriminated the accused. The
evidence showed how one or some or all of the accused managed to
established secret, illicit and
cellular communication with the most
important of the prosecution witnesses, Rehman Khan and all that
while they were detained
at Grootvlei Correctional Centre and he at
the protected witness sanctuary. Before his arrest, the accused
regarded Rehman Khan
as their friend. Since his dramatic escape,
Rehman Khan was never seen alive again. This is the fifth and last
scenario.
[124] There is a golden
threat that runs through the aforesaid five scenarios. It is this:
the betrayal of friendship. Indeed execution
of friends
prima
facie
appears to have been the hallmark of the criminal
activities the court is here dealing with. These then are
supplementary factors
which, in my opinion, should be taken into
account in determining whether to exclude or include the hearsay
statements of Rehman
Khan, a person who was, though identified,
earmarked and protected as an endangered potential witness, did not
eventually testify.
This then disposes of the seventh and final leg
of section 3, to wit subsection 1(c)(vii).
[125] The statements
attributed to the absent witness, Rehman Khan can be fairly
criticised in certain respects. For instance, he
did not have
personal or firsthand knowledge of all the averments contained in
some of them. There were a few inconsistencies in
some of them. There
were a number of gross misspellings of the names and surnames of
those implicated by Rehman Khan. Notwithstanding
all those blemishes
and, perhaps, many more other critiques – the statement were
collectively reliable, accurate and dependable.
In many respects they
seem to be reconcilable with numerous aspects of the direct evidence
given and certain proven objective facts.
[126] Section 34 of Civil
Proceedings Evidence Act 25 of 1965, under the heading: admissibility
of documentary evidence as to the
facts in issue – provides:
“
(1) In any
civil proceedings where direct oral evidence of a fact would be
admissible, any statement made by a person in a document
tending to
establish that fact shall on production of the original document be
admissible as evidence of that fact, provided –
(a) the person who made the statement
either –
(i) had personal knowledge of the
matters dealt with in the statement; or
(ii) …; and
(b) the person who made the statement
is called as a witness in the proceedings unless he is dead or unfit
by reason of his bodily
or mental condition to attend as a witness or
is outside the Republic, and it is not reasonably practicable to
secure his attendance
or all reasonable efforts to find him have been
made without success.
(2) The person presiding at the
proceedings may, if having regard to all the circumstances of the
case he is satisfied that undue
delay or expense would otherwise be
caused, admit such a statement as is referred to in subsection (1) as
evidence in those proceedings
–
(a) notwithstanding that the person
who made the statement is available but is not called as a witness;
(b) …
(3) Nothing in this section shall
render admissible as evidence any statement made by a person
interested at a time when proceedings
were pending or anticipated
involving a dispute as to any fact which the statement might tend to
establish.
(4) A statement in a document shall
not for the purposes of this section be deemed to have been made by a
person unless the document
or the material part thereof was written,
made or produced by him with his own hand, or was signed or
initialled by him or otherwise
recognised by him in writing as one
for the accuracy of which he is responsible.
(5) For the purpose of deciding
whether or not a statement is admissible as evidence by virtue of the
provisions of this section,
any reasonable inference may be drawn
from the form or contents of the document in which the statement is
contained or from any
other circumstances, and a certificate of a
registered medical practitioner may be acted upon in deciding whether
or not a person
is fit to attend as a witness.”
[127] Now,
section 222
of
the
Criminal Procedure Act, 51 of 1977
expressly imports the
aforegoing civil provision. It provides that the provisions of
section 34 of the Civil Proceedings, Act 25
of 1965 shall apply
mutatis mutandis
with reference to criminal proceedings.
[128] Quite obviously,
there are limits to the reception of hearsay evidence as admissible
evidence in any proceedings. One of such
receptive limits is the
salient rule that “hearsay-within-hearsay” by a
proponent. Put differently – matters
stated in Rehman Khan’s
series of hearsays about which he had no direct primary knowledge
cannot be used as admissible evidence
against the accused. Any given
matter in any given statement that incriminates any given accused in
this case has to be carefully
contextualised to determine whether it
falls under the first grade hearsay which is admissible or the second
grade hearsay which
is inadmissible. This is so because documentary
hearsay evidence is admissible as evidence provided the maker had
personal knowledge
of the matter – section 34(1)(a)(i).
[129] Applying the
provisions of the statutory hearsay exception in terms of section
3(1)(c) to the disputed oral hearsay declarations
as well as the
written prior statement – I came to the conclusion that the
interest of justice required or favoured the admission
and not the
exclusion of the hearsay evidence in dispute.
[130] Accordingly, I made
the following order:
130.1 The various aspects
of hearsay given on behalf of the state by the two civilian
witnesses, namely: Ms N Awan and Ms Z Saleem
are received as
admissible evidence and allowed as part of the state case.
130.2 The various aspects
of hearsay given on behalf of the state by the 3 police witnesses,
namely: W/O E Van Zyl, Capt F J Laux
and W/O L Steyn concerning
several statements made by Rehman Khan are received as admissible
evidence and allowed as part of the
state case.
130.3 The reception of
the aforegoing hearsays is subject to the exclusive limitations as
fully set out in par 122 hereof.
________________
M. H. RAMPAI, J
On behalf of the accused:
Adv. H. J. Potgieter
Instructed by:
H J Groenewald Attorneys
PRETORIA
On behalf of respondent:
Adv. A. Bester
Instructed by:
The Director:
Public Prosecutions
BLOEMFONTEIN
/eb