REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: CC 51/2022
BEFORE THE HONOURABLE ACTING JUDGE J.D. STRoH
On the 13th October 2025
In the matter between:
MORWANTSIRI JUSTICE MASHIANE
VERSUSU
DIRECTOR OF PUBLIC PROSECUTION OF
LIMPOPO
THE STATE
VERSUS
PHUTI WILLIAM MEHLAPE
MORWANTSIRI JUSTICE MASHIANE
MATSERE PETER MOKGOKONG
KGABO JOHANNES MOLOTO
APPLICANT
RESPONDENT
FIRST ACCUSED
SECOND ACCUSED
THIRD ACCUSED
FOURTH ACCUSED
2
JUDGEMENT
STRoH AJ
[1) This application for special entry made by the applicant (second accused) came
before me in terms of section 317(1) of the Criminal Procedure Act 51 of 1977 (the
CPA) as amended. Herein after referred to as "the application".
"The application" consisted of a "second leg" which consist of an application for
reconsideration of a previous ruling (interlocutory) made on the 4th September 2025.
[2] Section 317( 1) of the CPA states that:
" If an accused is of the view that any of the proceedings in connection with or
during his or her trial before a High Court are irregular or not according to law,
he or she may, either during his or her trial or within a period of 14 days after
his or her conviction or within such extended period as may upon application
(in this section referred to as an application for condonation) on good cause be
allowed, apply for a special entry to be made on the record (in this section
referred to as an application for a special entry) stating in what respect the
proceedings are alleged to be irregular or not according to law, and such a
special entry shall, upon such application for a special entry, be made unless
the court to which or the judge to whom the application for special entry is made
is of the opinion that the application is not made bona tide or that it is frivolous
or absurd or that the granting of the application would be an abuse of the
process of the court."
[3] In "the application", the applicant requested the following order:
3.1 "Noting Special entry of irregularity or illegality in terms of section 317(1) of
Act 51 of 1977 as amended, on record in this matter,
3.2 Freddy Pololo Mothapo Mabebas ' 204 statements Exhibit "Y1-Y3" is
inadmissible against the accused by virtue of the provisions of S219 and S219A
of Act 51 of 1977.
3
3.3 Granting Further and /or alternative relief."1
[4] The first leg of "the application" which is the application for special entry consist of
two aspects:
"(a) AdmissibWty of Statements in terms of section 204 of the Criminal
Procedure Act 51 of 1977, in terms of hearsay Act, Act 44 of 1988; and
(b) Application in terms of section 184(4) of Act 51 of 1977 by the
Respondent, wherein the complainant in count 9, 10 and 11 already deposited
affidavits that they do not wish to proceed with this courts. See Exhibit "W1-W4
and X and X1" [The Honourable Court issued warrant of arrest against the
complainant without hearing actual respondents (failure to comply with the
principle of Audi alterum rule, wherein the accused before court were made
respondent when they were actually not. Differently put, the Court allowed the
respondent to bring evidence in respect of the above counts which now are
supplemented by the admissibility of exhibit "Y1-Y3" to the prejudice of the
Applicant in this matter'12
(5] The applicant requested that the points formulated in paragraph 4 of this judgement
be entered on record for special entry in terms of section 317 of Act 51 of 1977.
[6] The applicant in "the application" more specifically the section that deals with the
first aspect of special entry formulated this aspect of special entry as follows:
"A.317 Special entry of irregularity or illegality in respect of statements made in terms
of section 204 by Mr. Freddy Mothapo Mabeba Exhibit Y1-Y3."3
[7] The applicant in "the application" avers that the respondent brought an application
before this court on the 4th September 2025 in terms of section 3(1 )( c) of Act 45 of
1988, Law of Evidence Amendment Act, the hearsay evidence act. The Respondent
in its written submission's response to "the application" of the Applicant confirmed it.4
1 Applicant's Application page 3
2 Applicant's Application page 9
3 Applicant's Application page 10
2 Applicant's Application page 9
3 Applicant's Application page 10
4 Respondent's submission para 4: "Towards the end of the State case, the respondent sought to
introduce hearsay evidence of the late Freddy Pololo Mabeba Mothapo, recorded in two separate police
statements obtained by Sergeant Gafane and Colonel Boshomane. The respondent asked the court to
invoke the provisions of section 3(1 )(c) of Law of Evidence Amendment Act 45 of 1988 in adm itting the
said hearsay evidence."
4
[8] Section 3 (1) (a) -(c) of Act 45 of 1988 states that:
"(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted
as evidence at criminal or civil proceedings, unless-
(a) each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(c) the court, having regard to-
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might
entail; and
(vii) any other factor wh ich should in the opinion of the court be taken into
account,
is of the opinion that such evidence should be admitted in the interest of
justice."
[9] Section 3 (2) Act 45 of 1988 states that: "The provisions of subsection (1) shall not
render admissible any evidence wh ich is inadmissible on any ground other than that
such evidence is hearsay evidence."
[1 O] Before I deal further with "the application" I find it necessary to mention what
occurred in this court during the criminal trial. Before the respondent requested for the
statements of the deceased Freddy Mabeba Pololo Mothapo to be accepted the
respondent lead evidence by Sergeant Gafane and Colonel Boshomane .
[11] Sergeant Gafane and Colonel Boshomane were also cross-examined by the
applicant's legal representative during the trial. Both these two witnesses confirmed
that each one of them took down a separate statement by the deceased Freddy
5
Mabeba Potato Mothapo and they also confirmed their signatories on these
statements.
[12] In Kapa v The State5 the learned Judge Mbatha AJ stated:" Section 3(4) of the
Hearsay Act defines hearsay as "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." The evidence given by Sergeant Gafane and Colonel Boshomane in
respect of the statements "Y1-Y3 is such evidence."
[13] The respondent in its written submission under the heading "application in terms
of section 3( 1 )( c) of Act 45 of 1988"6 paragraph 11 acknowledge that he inadvertently
omitted to ask the witnesses to read the contents of the deceased witness statements
numbered "Y1-Y3" in court."7
[14] The applicant in "the application" alleges that the court has made a ruling that the
statements marked "Y1-Y3" be handed up as exhibit's notwithstanding, the reluctance
of the respondent to hand up these statements.
[15] The applicant in paragraph 6.2.2 of "the application" stated the following:" The
Honourable Court called the above exhibits without affording the legal representatives
of the accused/applicant to address it on the admissibility of exhibit "Y1-Y3" being
statements made in terms of section 204 of the Criminal Procedure Act..."
[16] However the applicant also in "the application" stated contrary to paragraph 15
and I quote: "In accepting the above exhibits, the Honourable Court ignored the
submission by my Legal representative that the contents of the statements (exhibits
"Y1-Y3") be covered and not exposed to the eyes of the court" 8
[17] The Respondent correctly quoted the Honourable Court ruling in paragraph 12 of
the respondent written submission after the exhibits "Y1-Y3" was handed up.
[18J The Honourable Court ruled that the court needed the statements "Y1-Y3" to
confirm the evidence that was lead in respect of the deceased name on the statements
5 Kapa v The State [2023) ZACC 1 para 30
5 Kapa v The State [2023) ZACC 1 para 30
6 Respondent's written submission page 4 para 11
7" In the course of leading hearsay evidence, the respondent inadvertently omitted to invite the police
w itnesses who wrote down the deceased witness's statements to read the contents of the statements
into the record"
8 Applicant's Application page 12 para 6.2.3
6
as well as the signature and names of the police witnesses who testified that they took
down these statement.
[19] The Honourable Court was never interested in the contents of the statements "Y1-
Y3" as same was not read into the record in court. The contents of these statements
are still at date of writing of this judgement unknown to this Honourable Court.
[20] The respondent rightfully quoted the ruling this Honourable Court made: "Most
importantly, the Honourable Court ruled that during the evaluation of entire evidence
at the end of the trial, it would not consider the contents of the said hearsay evidence
statements as same did not form part of the court record."9
[21] The applicant referred this Honourable Court to Section 219 of the Criminal
Procedure Act 51 of 1977 as amended which reads that: "No confession made by any
person shall be admissible as evidence against another person."
[22] This Honourable Court was also referred to Section 219A (1) of the Criminal
Procedure Act 51 of 1977 as amended which reads that: "Evidence of any admission
made extra-judicially by any person in relation to the commission of an offence shall,
if such admission does not constitute a confession of that offence and is proved to
have been voluntarily made by that person be admissible in evidence against him at
criminal proceedings relating to that offence."
[23] The applicant in "the application" alleged that the court in accepting the
exhibits/statements ''Y1-Y3" acted irregular by not considering the provisions of
section 3(1 )(c) of the Law of Evidence Amendment Act 45 of 1988 (herein after called
"LEAA Act").
[24] The applicant in the previous paragraph of this judgement was referring to the
opening words of the LEAA Act which reads that: "Subject to the provisions of any
other law".
[25] It is the applicant's submission in "the application" that the wording "any other law"
include the Criminal Procedure Act 51 of 1977 as amended and more specifically
include the Criminal Procedure Act 51 of 1977 as amended and more specifically
section 219 and 219A of the Criminal Procedure Act 51 of 1977.
9 Respondent's written submission page 4 para 12
7
(26] The question this Honourable Court must answer is whether it acted irregular
when this Honourable Court excepted the exhibits/statements "Y1-Y3" on the
conditions that was mentioned in paragraph 18 of this judgement.
(27] The fact that the Honourable Court during the criminal trial did not intervene with
the way the evidence was led by the respondent (prosecutor for the state} when
Sergeant Gafane and Colonel Boshomane were in the witness stand, is evident of this
Honourable Court, not been bias against the Appellant (accused two).
[28] It is important to note that when the Honourable Court wanted exhibits "Y1-Y3" to
be handed up, the respondent then at that stage wanted to read the contents of these
statements into the record but this Honourable Court refused that it be done.
[29] The reason, this Honourable Court refused the respondent the right to read these
exhibits "Y1-Y3" into the record at that stage of the criminal trial, was due to the fact
that it would have been regarded as an irregularity or illegality.
[30] These exhibits "Y1-Y3" was supposed to be read into the record when both the
two witnesses Sergeant Gafane and Colonel Boshomane were still in the witness
stand.
[31] The applicant made the submission in court when arguing "the application" and
mo re specifically with reference to the Constitution, Act 108 of 1996 and section
35(3)(i) wh ich states that : " (3) Every accused person has a right to a fair trial, which
includes the right-(i) to adduce and challenge evidence", that the applicant's right was
not preserve as contained in the section mentioned in this paragraph of this
judgement.
[32] In S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) Cameron JA held: "It is
obvious that the 1988 Act, although pre-constitutional , must so far as possible be
read in the light of the Constitution and to give effect to its fundamental values. The
Constitution requires as much . Only if the statute's provisions cannot be read
Constitution requires as much . Only if the statute's provisions cannot be read
conformably with the Constitution would the question of unconstitutionality arise. In
my view Goldstein J was, however, clearly right to reject the constitutional challenge.
The statute does not license the wholesale admission of hearsay. Long before the
Constitution came into effect the common law was alert to the dangers such an
approach would have entailed. Not only is hearsay evidence-that is, evidence of a
statement by a person other than a witness which is relied on to prove what the
statement asserts -not subject to reliability checks applied first-hand testimony (
which dismisses its substantive value) , but its reception exposes the party opposing
its proof to the procedural unfairness of not being able to counter effectively
inferences that may be drawn from it.10
8
[33] For these very reasons, this Court emphasized more than four decades ago that
"hearsay, unless it is brought within one of the recognized exceptions, is not
evidence, i.e. legal evidence, at all".11
[34] Quoted the dictum of Cameron J in S v Ndhlovu and Others 2002 (2) SACR 325
(SCA) at para 14 "The 1988 Act does not change that starting point. Subject to the
framework it creates, its provisions are exclusionary.12 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 interest of
justice warrants the admission of hearsay notwithstanding the procedural and
substantive disadvantages its reception might entail. The Act thus introduces the
very feature this Court held 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" (Own emphasis)
[35) "Aside from the importance of these cautionary words, a trial court must in
applying the hearsay provisions of the 1988 Act be scrupulous to ensure respect for
the accused's fundamental right to a fair trial. Safeguards including the following are
important:
• First, a presiding judicial official generally under a duty to prevent a witness
heedlessly giving vent to hearsay evidence. (Own emphasis) More
specifically under the Act, it is the duty of a trial Judge to keep inadmissible
evidence out, [and] not to listen passively as the record is turned into a papery
sump of "evidence". (Own emphasis).13
[36] "A further consideration bearing on the constitutionality of the statute is that this
Court has construed the nature of the power the relevant provisions confer on judges
in a way that underscores the rigorous legal framework within any decision to admit
in a way that underscores the rigorous legal framework within any decision to admit
hearsay evidence will be scrutinised:
10 See HL Ho• A Theory of Hearsay (1999) 19 Oxford Journal of Legal Studies 402. In Lee v The
Queen (1998) 72 ALJR 1484 the H igh Court of Australia stated the process point thus (para 32): "And
the concern of the common law is not limited to the quality of evidence, it is a concern about the
matter of trial. One very important reason why the common law sets its face against hearsay evidence
was because otherwise the party against whom the evidence was led could not cross-examine the
maker of the statement. Confrontation and the opportunity for cross-examination is of central
significance to the common law adversarial system of trial"
11 Para 13 S v Ndh/ovu and Others 2002 (2) SACR 325 (SCA) and Vulcan Rubber Works (Pty) Ltd v
South African Railways and Harbours 1958 (3) SA 285 (A) 296F (Schreiner JA)
12 s V Ramavha/e 1996 (1) SACR 639 (A) at 647 d-e per Shultz JA
13 Para 17 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA),Bill of Rights s 35(3), S v Zimmerie en
n ander 1989 (3) SA 484 (C) 492F-H (FriedmanJ, Tebbutt and Conradle JJ concurring), S v
Ramavhale 1996 (1) SACR 639 (A) 651c.
" A decision on the admissibility of evidence is, in general, one of law, not discretion,
and this Court is fully entitled to overrule such a decision by a lower court if this
Court considers it wrong"14 (Own emphasis)
[37]" In making the admission of hearsay evidence subject to broader, more rational
and flexible considerations, the 1988 Act's general approach is moreover in keeping
with the developments in other democratic societies based on human dignity,
equality and freedom. The Supreme Court of Canada, for instance, has underlined
the need for increased flexibility in interpreting the hearsay rule, and subject to
safeguarding the interest of the accused, has distilled two criteria (reasonable
necessity and reliability) governing its admission." 15
(38] "The Bill of Rights does not guarantee an entitlement to subject all evidence to
cross-examination. What it contains is the right {subject to limitation in terms of s36)
to 'challenge evidence'. Where that evidence is hearsay, the right entails that the
accused is entitled to resist its admission and to scrutinize its probative value,
including its reliability. The provisions enshrined these entitlements. But where the
interest of justice, constitutionally measured, requires that hearsay evidence be
admitted, no constitutional right is infringed. Put differently, where the interest 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".(Own emphasis)16
9
[39] In S v Ndhlovu and Others Cameron J cited with approval S v Ndh/ovu and
others 2001 (1) SACR 85 (W) and remarked: "But, as Goldstein also observed ,
where the interest of justice require the admission of hearsay, the provision 'does not
require the absence of all prejudice'.17
[40] This Honourable Court during the criminal trial allowed the evidence of Sergeant
Gafane and Colonel Boshomane because it was of the opinion that it was in the
Gafane and Colonel Boshomane because it was of the opinion that it was in the
interest of justice to hear the evidence of these two witnesses which included the
cross-examination by the applicant's legal representative.
[41] The applicant in "the application" more specifically the section that deals with the
second aspect of special entry formulated this aspect of special entry as follows:
"B.317 Special entry of irregularity or illegality in respect of granting an application by
the Respondent in terms of section 184(4) of Act 51 of 1977. Issuing warrant of
14 Para 22 S v Ndhfovu and Others 2002 (2) SACR 325 (SCA), McDonald's Corporation v Joburgers
Drive-Inn Restaurant (Ply) Ltd and another 1997 (1) SA 1 (A) 27E ( EM Grosskopf JA, Corbett CJ,
Nestadt JA, Schultz JA and Plewman AJA concurring)
15 Para 23 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA),), In tenn of s 39(1)(c) of the
Constitution, when interpreting the Bill of Rights a court ·may consider foreign law" , Section 36(1)
permits limitation of a right if reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom", R v Khan [1990} 2 SCR 531 (SCC)
16 Para 23 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) Compare S v van der Sandt 1997 (2)
SACR 116 (W) 132 b-f
17 Para 51 S v Ndh/ovu and Others 2002 (2) SACR 325 (SCA)
10
arrest against two complainants Morgan Mufunda and Annah Thungoane, thereby
forcing them to testify on count 9; 10 and 11 against the Applicant when the state has
failed to provide service of subpoena or failed to show that the witnesses were
evading service of the relevant subpoena."18
[42] It is important at this stage to refer this Honourable Court to a written judgement
that was given on the 20th day of June 2025 by me in this court, in respect of the
application that was before me in terms of section 184( 4) of the Criminal Procedure
Act 51 of 1977 as amended (CPA).
[43) Section 184(4) of the CPA provides that:
"Whenever any person is likely to give material evidence in criminal
proceedings, any magistrate, regional magistrate or judge of the court before
which the relevant proceedings are pending may, upon information in writing
and on oath that such person is evading service of the relevant subpoena, issue
a warrant for his arrest, whereupon the provisions of subsection(2) and (3) shall
mutandis mutandis apply with reference to such person."
[44] The applicant in "the application" as quoted in paragraph 41 of this judgement
avers that "the state (respondent) has failed to provide service of subpoena or failed
to show that the witnesses were evading service of the relevant subpoena".
[45] However, in the judgement of the 20th June 2025, the Honourable Court refers to
the statement by Victoria Mashego for the Director of Public Prosecutions, Limpopo.
[46) This Honourable Court find it necessary to quote paragraphs 9-13 of 1he
judgement of the 20th June 2025. The reason for quoting these paragraphs is to show
that the respondent did indicate in Victoria Mashego affidavit, that the witnesses were
evading service of the relevant subpoena.
[47] Paragraph 9 -13 of the judgement of the 20th June 2025 stated and I quote:
" [9] The Applicant referred in "Exhibit W 2" to the reasons Mr. Morgan Mufunda gave
" [9] The Applicant referred in "Exhibit W 2" to the reasons Mr. Morgan Mufunda gave
to Victoria Mashego, as to why he is no longer interested to come to Court to testify
and also said, "That he put this robbery incident behind him and moved on with life.
He had no interest in pursuing criminal charges against the perpetrators. "19
18 Applicant's Application page 15
19 Exhibit W 2 Founding affidavit Vicoria Mashego., page 7 para 6.3
11
[1 OJ The reasons given in "Exhibit W2 " is reasons given by Mr. Morgan Mufunda to
Victoria Mashego and requires this Honourable Court to hear the evidence in person
from Mr. Morgan Mufunda. It is only then that this Honourable Court could make a
ruling regarding this witness and his willingness to testify in this criminal trial and the
possibility of putting this witness in the protection program as contained in section 185
of the CPA.
[11} In respect of the second witness of the State, Ms. Annah Thungoane, it is the
Applicant's case that this witness is not willing to give her employment address to the
South African Police to provide her with the subpoena to attend this Honourable
Court's proceedings in respect of this criminal matter (case number: CC 51/2022).
[12} In paragraph 18 (eighteen) of Victoria Mashego 's statement she stated the
following:
"The prosecutor further indicated to me although Thabo Moutfana testified
concerning this count, his evidence will carry very little or no evidence we ight
because in his testimony, he ran into the storeroom and hid himself behind piles
of liquor crates as he was terrified by the armed men. In his words, he did not
see what happened to Mr Morgan Mufunda and Ms. Annah Thungoane in the
other section of the liquor store. Therefore, his evidence falls short of proving
that the offence was actually committed as envisaged in section 209 of Act 51
Of 1977."
[13} The subm ission of the Applicant that, the presence in Court of Mr. Morgan
Mufunda and Ms . Annah Thungoane is of utmost importance for the State to prove
their case in respect of count ten (10) of the indictment, is clear in paragraph 18
(eighteen) of Victoria Mashego's Founding Affidavit as quoted in para [12] of this
judgment."
[48] From the above quoted paragraphs 9 ~13 of the judgement of the 20th June 2025
it is clear that the respondent did not fail to show that the witnesses were evading
service of the relevant subpoena.
service of the relevant subpoena.
[49] This Honourable Court is not prepared to quote the whole judgement of the 20th
June 2025 but would also like to refer to paragraph 16 which I quote:
12
"{16} The legal representative for Respondent 1 (one), 3 (three) and 4 (four) further
argued that in paragraph 6 of Victoria Mashego 's Founding Affidavit, Mr. Morgan
Mufunda "refused" to receive and sign for the subpoena. In Section 184(4) of the CPA
the word "evading" is used to receive the subpoena and not "refused".
The Findings of the Co urt on this Po int
This Honourable Court did however search for the meaning of the w ord "evaden and in the Camb ridge
Dictionary "evaden was explained as "to avoid or escape from someone or something." If this
Honourable Court read and interpreted paragraph 6 of Victoria Mashego's Founding Affidavit it is clear
that Mr. Morgan Mufunda's refusal to receive the subpoena is merely to avoid or escape something,
wh ich, in this instance, is the subpoena. "
[50] The respondent in its written submission under paragraph 9 of opposing "the
application" stated the following: "Any party to the criminal proceedings is entitled to
subpoena any competent and compellable witness to testify in his/her case if the
evidence of such witness is material, relevant and admissible. Undoubtedly, the
evidence of witnesses required by the respondent was material, relevant and
admissible at the trial. The only hurdle was that the witnesses evaded seNice of
subpoena and did not wish to give evidence."
[51] The applicant in "the application" in paragraph 6.8 alleges that when the initial
application for issuing of warrant for arrest was made, the accused was cited as the
respondent in the initial applicant's application and not the two witnesses Morgan
Mufunda and Tungoane.
[52] The applicant in "the application" in paragraph 6.9 alleges that the Honourable
Court acted irrelevant in that it failed to observe the /Saudi alteram partum rule" to the
actual applicants.
[53] The warrant for arrest was issued for the two witnesses Morgan Mufunda and
Tungoane on the 20th day of June 2025 by the Honourable Court .
Tungoane on the 20th day of June 2025 by the Honourable Court .
[54] The warrant for arrest was cancelled by the Honourable Court on the 24th day of
June 20'25.
[55] The two witnesses were warned on the 24th day of June 2025 to appear before
this court in the criminal trial on the 30th June 2025 to give evidence regarding the
alleged crime as contained in count 9-11.
13
[56] The applicant in "the application" in paragraph 6.12 and 6.13 refers to section
180( 1) and 180(2) of the CPA which is incorrect. The respondent (the Director of Public
Prosecutions, Limpopo) initial application was in terms of section 184 (4) of the CPA.
[57] The applicant also submitted that the evidence that was given in the criminal trial
by the two witnesses Morgan Mufunda and Tungoane under a coercion /treat of
warrant of arrest, and the admissions of statements "Y1-Y3" renders this trial irregular
a nd/illega I.
[58) However is important to note that the warrant for arrest for Morgan Mufunda and
Tungoane was issued in terms of the CPA and more specifically section 184( 4) of the
CPA.
[59) The admission of statements "Y1-Y3" is fully discussed in this judgement.
[60) In S v Okah 20 the Learned Judge Cameron stated and I quote: " The threshold
for granting special entries is far lower than that required for granting leave to
appeal.21Leave to appeal requires reasonable prospects on appeal. By contrast,
section 317(1) spells out that any irregularity or illegality must be entered on the
record-"unless the court to which ... the application for a special entry is made is of the
opinion that the application is not made bona fide or that it is frivolous or absurd or tt,at
the granting of the application would be an abuse of the process of the court.
[61] In Xaba, the Appelate Division interpreted this to mean "that the power of a trial
judge to refuse to make a special entry of an alleged irregularity on the record is
confined within very narrow limits. That court affirmed its earlier decision in
Nzimande 22and Nafte, which held that a special entry should be made even where
there are scant prospects of success on appeal - " [i)f the incident of procedure which
it is sought to make the subject of a special entry is in any way capable of being
regarded as an irregularity or illegality, however little argument there may be advanced
20 S v Okah (2018] ZACC 3 para 54 and 55
20 S v Okah (2018] ZACC 3 para 54 and 55
21 S v Xaba 1983 (3) SA 717 (A) (Xaba) at 731
22 R v Nzimande 1957 (3) SA 772 (A) at 774, where the Appellate Division noted:
"In the light of decisions of this Court it could happen, apparently, that a convicted person might be able
to bring an irregularity appearing on the record before this Court by way of a special entry even though he
would not be able to obtain leave to appeal on account of the same irregularity."
14
in support of it, and however little merit the presiding Judge may consider there is in
the application. 1123
[62] The "second leg" of "the application" consist of an application for reconsideration
of a previous ruling (interlocutory) made on the 4th September 2025.
[63] The applicant in "the application" more specifically the section that deals with the
"second leg" of "the application" formulated this aspect as follows: "C. Application for
the reconsideration of previous ruling admitting Mr. Freddy Pololo Mothapo (Mabeba)
204 Statements (Exhibits "Y1-Y3").
[64] The applicant submitted in "the application" that the ruling that this Honourable
Court made on the 4th September 2025 was interlocutory and in respect of section
3(1 )(c ) of Act 45 of 1988 (hearsay act). This Honourable Court agrees with the
submission of the Applicant in respect of the submission.
[65] The applicant in "the application" in paragraph 6.22 states the following:" Further
to the above, I submit that the contents of Exhibit "Y1-Y3" were not read into the record
and the contents of such statements remains unknown to the Honourable Court and/
record, which requires reconsideration of the whole exercise by the state to rely on
section 3(1) (c) of Act 45 of 1988."
[66] In S v Fadwaan Murphy 24 the learned Judge Davis AJ said: "Now it is well
established that simple interlocutory orders may be changed where they are based on
an incorrect interpretation of a statue which only becomes apparent later. 25 The legal
point based on s 219 of the CPA had implications for the interpretation of s 3 of the
hearsay Act, if the point had merit, it meant that the hearsay ruling would have to be
altered and Wenn's statement ruled inadmissible."
[67] In S v Fadwaan 26the learned Judge Davis AJ also said and I quote: " In the latter
regard it is apposite to note that the Supreme Court of Appeal in Litako and Others v
S 27 and the Constitutional Court on Mholongo v S28 recognized that the common raw
S 27 and the Constitutional Court on Mholongo v S28 recognized that the common raw
rule against the use of confessions and admissions against anyone other than the
23 R v Nafte1929 AD 333 at 338-9
24 S v Fadwaan Murphy CC 27 /2018 para 12
25 Zondiv MEG Traditional and Local Government Affairs 2006 (3) SA 1 {CC) para 30
26 S v Fadwaan Murphy CC 27 /2018 para 51
27 Litako and Others v S 2015 (3) SA 287 {SCA) para 51
28 Mholongo v S 2015 (2) SACR 323 (CC) paras 27 and 35
15
maker, which informed sections 219 and 219A, was not only based on the hearsay
nature of such extra-curial statement, but also on the dangers inherent in accomplice
testimony and the implications for fair trial rights. In Mhlongo the Constitutional Court
referred to the well-known decision of S v Hlaphezula29 in which the Court pointed out
the dangers inherent in the in-court testimony of an accomplice implicating a co
acused, and observed that these dangers are intensJ1ied when the statement was
made out-of-court and its maker cannot be subject to cross-examination30 (or, one
might add, effective cross-examination on the contents of the statement where the
maker denies having made the statement and attributes the contents to the police, as
did Wenn in this case)".
[68] In S v Fadwaan 31the learned Judge stated the following:" ... The Court in Mabaso
referred32 to the prohibition in s 219 of the CPA against the use of a confession made
by any person against any other person, as well as the decision of the Constitutional
Court in Makhubela v S; Matjeke v S ("Makhubela'J33 which confirmed the decision in
Mhlongo that extra-curial confessions and admissions made by an accused are
inadmissible against a co-accused. 34
[69] In light of the case law quoted in this judgement, the Honourable Court has no
other choice but to set-aside the ruling made on the 4th October 2025 regarding the
admissibility of statements "Y1-Y3".
[70] According, I make the following order:
1. That a special entry be made on the record regarding the admissibility of
statements in terms of section 204 of the Criminal Procedure Act 51 of 1977, in
terms of hearsay Act, Act 44 of 1988;
2. That the special entry be dismissed regarding the application in terms of
section 184(4) of Act 51 of 1977 by the Respondent, wherein the complainant
29 S v Hlaphezula 1965 (4) SA439 (A)
30 Mh olongo v S 2015 (2) SACR 323 (CC) paras 35, footnote 57
31 SvFadwaan MurphyCC 27/2018 para 29
31 SvFadwaan MurphyCC 27/2018 para 29
32 Mabaso v 5 [2021] ZASCA (9 July 2021) para 25
33 Makubela v S 2017 (2) SACR 665 (CC)
34 Makhubela v S; Matjeke v S 2017 (2) SACR 665 (CC) paras 29 and 30
'
16
in count 9, 10 and 11 already deposited affidavits that they do not wish to
proceed with this courts. See Exhibits "W1-W4 and X and X1.»
3. Mr. Freddy Pololo Mothapo (Mabeba) 204 Statements (Exhibits "Y1-Y3") is
inadmissible against the accused by virtue of section 219 and 219A of the
Criminal Procedure Act 51 of 1977 as amended.
ACT G JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
Appearance
Counsel for Applicant/Second Accused
Introduced by:
Counsel for First, Third and Fourth Accused
Introduced by:
Counsel for Respondent:
Introduced by:
Mr M P Legodi
Polokwane Justice Centre
E-mail: Peterl@legal-aid.co.za
Mr S Rangoanasha
Rangoanasha Attorneys
Advocate M Sebelebele
Director of Public Prosecutions
E-mail: msebelebele@npa.gov.za