About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 301
|
|
Mkiwane v Motapanyane and Others (516/2018) [2024] ZAFSHC 301 (18 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no:
516/2018
In
the matter between:
SAMUEL
VUYANE MKIWANE
and
KOOS
MOTAPANYANE
MINISTER
OF POLICE
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Plaintiff
First
Defendant
Second
defendant
Third
defendant
Neutral
citation: XXX
Coram:
Cronje AJ
Heard:
21 August 2024
Delivered:
18 September 2024
Summary
:
Evidence – unlawful arrest and detention – arresting
police officer and investigating officer deceased –
admissibility
of statements – hearsay –
Law of Evidence
Amendment Act 45 of 1988
– Civil Proceedings Evidence Act 25 of
1965 – application granted.
ORDER
1.
The application succeeds.
2.
The costs of the application are costs
in the cause.
JUDGMENT
Cronje
AJ
Introduction:
[1]
The plaintiff instituted action
against the defendants, claiming that the first defendant
(Motapanyane), acting within the course
and scope of his employment
with the second defendant as arresting officer, laid a false charge
of housebreaking with the intent
to steal and theft against him
whereupon he was wrongfully and unlawfully detained for 219 days. He
was later discharged in terms
of s 174 of the Criminal Procedure Act
51 of 1977 (CPA). He claims damages of R2.2 million against the
defendants. Motapanyane
passed away on 30 June 2021, and Mr ZS Ntuli
(Ntuli), the investigating officer, passed away on 8 September 2022.
The
defendants’ application to admit hearsay
[2]
On 19 July 2024, the second and
third defendants (defendants) applied for the admission of the
written statements of Motapanyane
that he deposed to on 4 and 7
September 2015, in terms of s 3(1)
(c)
of the Law of Evidence Amendment Act 45 of 1988 (LEAA) read with s
34(1)
(a)
(ii)
and 34(2)
(b)
of the Civil Proceedings Evidence Act 25 of 1965 (CPEA).
[3]
They pray that the statement of
Ntuli, dated 31 August 2015, the warning statement of the plaintiff
taken by Ntuli, and the SAPS3M(k)
(bail information statement) as
signed by Ntuli be admitted in terms of the same sections of the
respective Acts referred to above.
[4]
Motapanyane arrested the
plaintiff on suspicion of housebreaking related to a robbery at a
business under CAS 107/08/2015. While
preparing for trial, it became
known that Motapanyane and Ntuli passed away. The statements and
documents are the defendants' only
evidence to present their case.
The statements describe information received on the whereabouts of
suspects in the robbery and
a description of items found.
[5]
Ntuli took the plaintiff's
warning statement in which he allegedly admitted to assisting other
accused persons in selling stolen
items. In addition, the evidence
sought to be admitted would show that Motapanyane harboured a
reasonable suspicion of a Schedule
1 offence when the plaintiff was
arrested.
[6]
Motapanyane was the only
arresting officer, and Ntuli was the only investigating officer. The
defendants concede that the admission
of the evidence may
significantly prejudice the plaintiff, but admitting it would serve
the interest of justice. The Rule 37 minutes
record that the record
of the criminal proceedings and the contents of the docket were to be
accepted as evidence without further
proof.
The
plaintiff’s objection
[7]
The plaintiff states that it is common cause that the
statements and documents which form part of the basis of the
application were
duly discovered and form part of the trial bundle in
the main action. The pre-trial conference held on 9 November 2021
records
that it was agreed that the record of the criminal
proceedings and the contents of the docket should be admitted as
evidence without
further proof. The application should therefore be
dismissed with costs. He pleaded over, alleging no offences such as
‘housebreaking’
and ‘business robbery’ exist
in Schedule 1 of the CPA.
[8]
The documents do not constitute hearsay evidence. The
statement by the first defendant itself contains hearsay evidence
from other
third parties, and the probative value does not depend on
him. Ntuli’s statement is irrelevant and does not
implicate
the plaintiff.
The
Law of Evidence Amendment Act 45 of 1988
[9]
In respect of the admissibility
of hearsay evidence,
s 3
of the LEAA provides,
inter
alia
, that
hearsay
evidence shall not be admitted as evidence during civil proceedings
unless each party against whom the evidence is to be
adduced, agrees
to the admission thereof as evidence at such proceedings, or the
court, having regard to the nature of the proceedings,
the nature of
the evidence, the purpose for which the evidence is tendered, the
probative value of the evidence, the reason why
the evidence is not
given by the person upon whose credibility the probative value of
such evidence depends, any prejudice to a
party, and any other factor
which should in the opinion of the court be taken into account,
believes that such evidence should
be admitted in the interests of
justice.
The
Civil
Proceedings Evidence Act 25 of 1965
[10]
The CPEA
inter
alia
,
provides that in any civil proceedings where direct oral evidence of
a fact would be admissible, any statement made by a person
in a
document and tending to establish that fact shall on production of
the original document be admissible as evidence of that
fact,
provided the person who made the
statement either had personal knowledge of the matters dealt with in
the statement, or where the
document in question is or forms part of
a record purporting to be a continuous record, made the statement (in
so far as the matters
dealt with therein are not within his
knowledge) in the performance of a duty to record information
supplied to him by a person
who had or might reasonably have been
supposed to have personal knowledge of those matters. The person who
made the statement will
be called a witness in the proceedings unless
he is dead. The court may if having regard to all the circumstances
of the case,
if it is satisfied that undue delay or expense would
otherwise be caused, admit such a statement, notwithstanding that the
person
who made the statement is available but is not called as a
witness. In estimating the weight, if any, to be attached to a
statement
admissible as evidence, regard shall be had to all the
circumstances from which any inference can reasonably be drawn as to
the
accuracy or otherwise of the statement, and in particular to the
question whether or not the statement was made contemporaneously
with
the occurrence or existence of the facts stated, and to the question
whether or not the person who made the statement had
any incentive to
conceal or misrepresent facts.
Arguments
[11]
Mrs Nhlapo-Merabe argues that the
plaintiff indicated that he does not oppose the admission of the
evidence. The real bone of contention
is the weight that ought to be
afforded to the evidence, and such is best suited for argument once
all the evidence has been placed
before the Court.
[12]
She
refers to
Sheffryk
v MEC for Police, Road and Transport Free State Province
[1]
where
it was held:
‘
It
is said that a document only proves what is written in it, but not
the truth of what is written. Before the contents of a document
may
be presented as the truth, the admissibility requirement must be
fulfilled. The contents must not be irrelevant, the document
must not
contain an inadmissible confession, etc. Because a document usually
reflects somebody’s knowledge and thoughts,
care must be taken
to ensure that it does not infringe the hearsay rule and perhaps the
opinion rule.’
[2]
(Footnote
omitted.)
[13]
The statements and documents play
a pivotal role in the matter, and Motapanyane, as the arresting
officer, entertained a reasonable
suspicion when arresting the
plaintiff. Furthermore, the material aspects of Motapanyane’s
statement are corroborated by
the plaintiff’s warning statement
taken by Ntuli. Both statements are based on first-hand accounts of
Motapanyane and Ntuli.
[14]
Mr Nkhahle, for the plaintiff,
argues that s 2 of the CPEA provides that no evidence as to any fact,
matter or thing which is irrelevant
or immaterial and cannot conduce
to proof or disprove any point of fact in issue shall be admissible.
In addition,
s 3(1)
(c)
of the LEAA provides that hearsay evidence shall not be admitted as
evidence in civil proceedings unless the Court, having regard
to the
probative value of the evidence, is of the opinion that such evidence
should be admitted in the interest of justice. The
evidence has to be
relevant.
[15]
In
Duncan
v Minister of Law and Order for the Republic of South Africa
[3]
the
Supreme Court of Appeal (SCA) stated that jurisdictional facts must
exist before the power conferred by s 40(1)
(b)
of the CPA may be invoked. These facts include the arrestor being a
peace officer, the suspicion that the arrestee committed an
offence
referred to in Schedule 1 of the CPA, and the suspicion resting on
reasonable grounds.
[16]
The
defendants' plea does not refer to any specific offence in Schedule
1. The arresting statement of Motapanyane does not indicate
the
offence for which the plaintiff was arrested. Motapanyane’s
arrest statement contains hearsay information from third
parties,
which does not incriminate the plaintiff in any criminal offence. The
plaintiff was not appraised of his constitutional
rights, and
Motapanyane, holding the rank of a warrant officer, was not empowered
to conduct a pointing-out by the plaintiff. This
also applies to the
fact that there was proximity between Motapanyane and the plaintiff.
In
Komane
v S
[4]
the
SCA held:
‘
Warrant
Officer Makhubela should have arranged for a pointing out as he
testified that during the arrest of the applicant on 9 December
2015,
he had offered to point out where the money was hidden. Warrant
Officer Ramotebele, together with the rest of the non-commissioned
officers, ought not to have proceeded with the pointing out. This is
because the pointing out process must be conducted by an officer
who
was not involved in the investigation of the matter. In this case
Warrant Officer Ramotebele and others, by virtue of being
the
investigating officers in the case, were precluded from carrying out
the pointing out. Warrant Officer Ramotebele’s assertions
that
the applicant had been apprised of his legal rights did not ratify
the flawed process, as the law requires that the accused
be apprised
of the right to legal representation specifically for the purposes of
conducting a pointing out.’
[5]
[17]
One of Motapanyane's statements
does not concern the plaintiff at all. The statement of Ntuli
similarly does not refer to the plaintiff
and is, therefore,
irrelevant. The plaintiff's narration in his warning statement is
also exculpatory. He submits that the application
stands to be
dismissed with costs.
Evaluation
[18]
The purpose of determining the
admissibility of the documents is not to judge the prospects for
succeeding in or defending the claim.
The
evidence the defendants seeks to be admitted is to justify the basis
on which the plaintiff was arrested and detained. When
the documents
are read together, they provide a matrix of facts that appears to
involve the plaintiff.
Motapanyane
and Ntuli are deceased; neither can testify and the documents record
what occurred at the given time. Excluding the
evidence would
constrain the defendants from presenting a defence.
[19]
In
S
v Ndhlovu and Others
,
[6]
the
SCA held that the impossibility of cross-examining hearsay is not
necessarily determinative for the question of whether the
evidence
can be accepted
.
It
held:
‘
The
Bill of Rights does not guarantee an entitlement to subject all
evidence to cross-examination. It contains the right (subject
to
limitation in terms of s 36) to “challenge evidence”.
Where that evidence is hearsay, the right entails that the
accused is
entitled to resist its admission and to scrutinise its probative
value, including its reliability. The provisions enshrine
these
entitlements. But where the interests of justice, constitutionally
measured, require that hearsay evidence be admitted, no
constitutional right is infringed. Put differently, where the
interests of justice require that the hearsay statement be admitted,
the right to “challenge evidence” does not encompass the
right to cross-examine the original declarant.’ (Footnote
omitted.)
[20]
In considering
prejudice, the same Court held:
‘
The
question whether the admission of hearsay might entail ‘any
prejudice to a party’ ((ss (1)(c)(vi)) has already been
alluded
to (para 13 above). ‘Prejudice’ in the section clearly
means procedural prejudice to the party against whom
the hearsay is
tendered. It envisages the fact that the party against whom the
hearsay is tendered cannot cross-examine the original
declarant. That
prejudice is always present when hearsay is admitted. It must be
weighed against the reliability of the hearsay
in deciding whether,
despite the inevitable prejudice, the interests of justice require
its admission. The suggestion that
the prejudice in question
might include the disadvantage ensuing from the hearsay being
accorded it’s just evidential weight
once admitted must
however be discountenanced. A just verdict, based on evidence
admitted 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 was in my view misplaced.
Where the interests of justice require the admission of hearsay, the
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.’
[7]
(Footnotes
omitted.)
[21]
In respect of the consideration
of any other factor, the Court held:
‘
It
remains to consider ‘any other factor which should in the
opinion of the court be taken into account’ (sub-para
(c)(vii)). I can think of only one. It is that the admission of
hearsay evidence in circumstances such as the present may affect
the
manner in which police conduct their investigations. The surest proof
of guilt is real evidence – eyewitness accounts,
first-hand
identification, fingerprints, hairs, traces of fabrics, articles left
at the crime scene or found upon a suspect. Because
of the procedural
prejudice it inflicts, hearsay evidence is always less than ideal,
and it would be a regrettable consequence
of the implementation of
the statute if its admission encouraged less reliance on adequate
police investigatory procedures. That
consideration cannot however
lead to the exclusion of otherwise admissible evidence in terms of
the statute. In the present case,
the quality of the hearsay evidence
and the extraneous reliability guarantors make it imperative that it
be admitted, as Goldstein
J rightly held.’
[8]
[22]
I conclude that the statements
and the docket are admissible. There was an agreement to that effect.
The documents also pass the
muster of the LEAA and CPEA.
Costs
[23]
The Rule
37 minutes records that the record of
the criminal proceedings and the contents of the docket shall be
accepted as evidence without
further proof. Both parties relied on
case law to elucidate the principles. It cannot be said that the
application was ill-conceived
or that the arguments were of no
assistance. All the evidence will be evaluated at the end of the
trial, and the court would only
be able to afford weight to the
evidence presented. It would be fair and in the interest of justice
that cost be costs in the cause.
Ruling
[24]
I therefore make the following
ruling:
1.
The application succeeds.
2.
The costs of the application are costs
in the cause.
CRONJÉ,
AJ
Appearances:
For
the plaintiff:
Adv
RJ Nkhahle
Instructed
by:
Litheko
Motsoeneng Inc
Bloemfontein
Instructed
by:
For
the defendant:
Adv
K Nhlapo-Merabe
Instructed
by:
Office
of the State Attorney
Bloemfontein
[1]
Sheffryk
v MEC for Police, Road and Transport Free State Province
[2022]
ZAFSHC 142
para 1.
[2]
Par 1.
[3]
Duncan
v Minister of Law and Order for the Republic of South Africa
[1986]
ZASCA 24
;
[1986] 2 All SA 241
(A).
[4]
Komane
v S
[2022]
ZASCA 55.
[5]
Ibid para 27.
[6]
S
v Ndhlovu and Others
[2002] ZASCA 70; [2002] 3 All SA 760 (SCA).
[7]
Ibid paras 49-50.
[8]
Ibid para 52.