1
Revised
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST PROVINCIAL DIVISION, MAHIKENG
CASE NO: CC 21/2023
In the matter between:
THE STATE
and
SIBUSISO MACDONALD KULA
Coram: Reddy J
Reserved: 12 February 2026 Circuit Court Klerksdorp
Delivered: This ruling was handed down on 16 April 2026. It was electronically
circulated to the parties' representatives via email. The date and time are deemed
to be 12h00 on 28 April 2026.
Summary
Evidence – Hearsay evidence – Admissibility – Application in terms of s 3(1)(c)
of Law of Evidence Amendment Act 45 of 1988 – Court must conduct a holistic
weighing of all seven jurisdictional factors in s 3(1)(c) – Factors are conjunctive
and none is decisive in isolation – Touchstone of admissibility is the interests of
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2
justice – In criminal proceedings the threshold for admission is elevated and
courts must hesitate long before admitting hearsay that plays a decisive or
significant role in the conviction of an accused – Where accused does not consent
to admission and mak er cannot testify by reason of death, only s 3(1)(c) is
available to the State – Death of maker is a compelling reason for non-availability
and weighs in favour of admission but is not determinative – Court must assess
whether there are adequate pointers of truthfulness, reliability and probative value
to justify admission – Statement ambiguous on its face on the very point for which
tendered cannot reliably achieve the purpose of admission – Absence of objective
corroboration and failure to obtain availabl e telephone records diminishes
probative value – Statement commissioned by a witness who himself testified on
the same issue intensifies the traditional dangers of hearsay – State cannot
simultaneously contend that it has overwhelming evidence and invoke the “only
conduit” reasoning from Kapa v The State 2023 (1) SACR 583 (CC) – Such
positions are irreconcilable – Application dismissed.
Evidence – Hearsay evidence – Application procedure – Application brought
without a founding affidavit, counsel’s heads of argument constituting
impermissible conflation of evidence and argument – Material procedural
irregularity reflects adversely on manner in which application brought – Court
declining to dismiss on procedural ground al one where interests of justice and
gravity of proceedings require engagement with merits – Outcome would have
been the same notwithstanding any procedural compliance.
Evidence – Hearsay evidence – Constitutional dimension – Section 35(3)(i) of
Constitution – Discretion under s 3(1)(c) must be exercised in constitutionally
compliant manner with close attention to impact of admission on accused’s right
to challenge eviden ce – Admission of hearsay may not render trial as a whole
to challenge eviden ce – Admission of hearsay may not render trial as a whole
unfair – Bald assertion that prejudice does not outweigh interests of justice,
3
without engaging with why deprivation of cross -examination is constitutionally
tolerable in specific circumstances, is wholly inadequate – Accused’s
constitutional fair trial rights are not merely formal considerations but substantive
constraints on the s 3(1)(c) discretion.
Evidence – Hearsay evidence – Provisionally admitted evidence – Hearsay
evidence of witness recounting what deceased told him remaining provisionally
admitted – Ultimate admissibility and weight to be determined at conclusion of
trial in light of all the evidence in accordance with s 3(3)(b) of the Act – Section
3(3)(b) providing that hearsay admitted under the section shall not be the only
ground upon which a finding of fact may be made will receive full application.
ORDER
(i) The application for the admission of the statement of the late April Papi
"Sphizer" Olifant as hearsay evidence in terms of section 3(1)(c) of the Law
of Evidence Amendment Act 45 of 1988 is dismissed.
(ii) The provisionally admitted hearsay evidence of Sergeant Mpudi, in so far as
it recounts what Sphizer told him, remains provisionally admitted. Its ultimate
admissibility and the weight to be accorded thereto will be determined at the
conclusion of the tri al in light of all the evidence and in accordance with
section 3(3)(b) of the Law of Evidence Amendment Act 45 of 1988.
4
RULING IN TERMS OF SECTION 3(1) ( c ) OF THE LAW OF
EVIDENCE AMENDMENT ACT 45 OF 1988
REDDY J
Introduction
[1] The State applies for the admission of a written statement made by the late
April Papi "Sphizer" Olifant ("Sphizer") as hearsay evidence in terms of s3(1)(c)
of the Law of Evidence Amendment Act 45 of 1988 ("the Act").
[2] The statement concerns the central factual dispute of whether Sphizer
telephoned the accused on 27 November 2022 to report the presence of suspicious
persons at the accused's section. The accused opposes the application by way of
an answering affidavit, deposed to by himself on 11 February 2026. The death of
Sphizer has been confirmed and requires no further determination.
In limine
[3] Before navigating the merits, a preliminary comment is necessary. On 9
February 2026, this Court directed that a formal application be brought, supported
by affidavit evidence. What the State filed, purportedly in compliance with that
direction, is heads of argument drafted by Advocate Tlatsana without a founding
affidavit placing the underlying facts before this Court.
[4] As contended by Mr. Dlanjwa, the heads of argument constitute counsel
giving evidence and arguing the case simultaneously, an impermissible conflation
5
of distinct functions. On 9 February 2026, this Court underscored that the
application must be supported by affidavit/s, having regard to the gravity of the
case. The State’s response fell short of the required standard.
[5] The point in limine has merit. The purported application on the face is
irregular. Notwithstanding same, given the death of Sphizer, and given the gravity
of these proceedings, it would be remiss of this Court to dismiss the application
on the procedural ground alone. To do so without engaging the merits would not
be in the interests of justice.
[6] To circumvent any doubt, although the absence of affidavit evidence
constitutes a material irregularity and reflects adversely on the manner in which
the application was brought, the outcome of this application does not turn on
procedural non -compliance a lone. Even if the application had been properly
constituted, the substantive deficiencies identified below, considered
cumulatively and in light of s3(1)(c) of the Act, would nonetheless have
compelled the same result.
The state submissions
[7] Advocate Tlatsana contends that the application is brought in terms of
s3(1)(c) of the Act, being the only available remedy since neither consent under
s3(1)(a) nor the deponent testifying under s3(1)(b) is possible. Advocate Tlatsana
submits that Sphizer died on or about 8 February 2026, the day before his
scheduled testimony, and that his death constitutes a compelling reason for non-
availability.
[8] Advocate Tlatsana avers that the statement gives a detailed account of the
conversation between Sphizer and the accused on 27 November 2022, provides
6
material corroboration to the oral evidence of Sergeant Mpudi, and is the missing
piece necessary to complete the evidentiary picture before this Court.
[9] Advocate Tlatsana, great store in the store in Kapa v S 1, contending that
Sphizer's statement stands in an analogous position as the "only conduit" through
which the relevant evidence can be placed before the Court. Advocate Tlatsana
concedes that the accused cannot cross -examine Sphizer but submits that this
prejudice does not outweigh the interests of justice. Moreover, Advocate Tlatsana
further submits that the state has tendered "overwhelming evidence" against the
accused.
The accused’s submissions
[10] Mr. Dlanjwa’s submissions pivot on seven points. Notwithstanding this
Court’s adjudication on the point in limine, it is encapsulated in the submissions.
First, in limine, Mr. Dlanjwa submits that no proper application is before this
Court, that what was filed are heads of argument and nothing more, and that the
purported application is a nullity incapable of being cured by any lawful means.
To this end, I have found that dispensing with this application on a procedural
technicality would result in a miscarriage of justice.
[11] Second, Mr. Dlanjwa raises a broader pattern of prosecutorial conduct that
has consistently ambushed the defence throughout these proceedings. Third, Mr.
Dlanjwa submits that the investigating officer, Sergeant Mpudi, prepared and
commissioned the stateme nt that is the subject of this application, and then
testified in these proceedings on the very issue the statement addresses, thereby
compromising the independence and reliability of the evidence.
1 2023 ZACC 1.
7
[12] Fourth, Mr. Dlanjwa emphasizes that paragraph 3 of Sphizer’s statement
employs the word "neve" in a context central to the factual dispute, a word that is
ambiguous on its face and unexplained. Fifth, Mr. Dlanjwa advances and invokes
the accused’s constitutional right to challenge evidence under section 35(3)(i) of
the Constitution of the Republic of South Africa, 108 of 1996, and relies on S v
Molimi 2for the proposition that the constitutional dimension of the interests of
justice test cannot be elided. Sixth, Mr. Dlanjwa opines that Kapa is
distinguishable from the present matter. To this end, he argues that in Kapa, Ms.
Dasi was an eyewitness to the crime. In contrast, Sphizer was not, and that the
State's own submission of "overwhelming evidence" directly contradicts its
invocation of the "only conduit" reasoning.
[13] Seventh, Mr. Dlanjwa concludes that all seven factors enumerated in
section 3(1)(c) of the Act were not properly addressed by the State, as directed
by this Court on 9 February 2026, and that the traditional dangers of hearsay are
present in full measure. To this end, Mr. Dlanjwa argues that there are no
telephone records to corroborate the alleged conversation, despite the
investigating officer having been advised to obtain such records under section
205 of the Criminal Procedure Act 51 of 1977.
The law
[14] Section 3 of the Act provides:
"3. Hearsay evidence
(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;
2 2008 (2) SACR 76 (CC).
8
(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 which should, in the opinion of the court, be taken into
account,
is of the opinion that such evidence should be admitted in the interests of justice.
(2) The provisions of subsection (1) shall not render admissible any evidence
which is otherwise inadmissible.
(3) Hearsay evidence admitted in terms of this section -- (a) shall be the only
ground on which a finding of fact may not be made unless the court is satisfied
that it is in the interests of justice to make such a finding; and (b) shall not be
the only ground on which such a finding may be made.
(4) For the purposes of this section –
'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;
'party' means the accused or the prosecutor in criminal proceedings, or a party
in civil proceedings, as the case may be."
9
The Legal Principles
[15] Against this legislative landscape, I turn to consider the legal principles.
As a point of departure, the accused does not consent to admission of Sphizer’s
statement, and Sphizer cannot testify by reason of his death. It follows that the
two vessels, as provided for in s3(1)(a) and 3(1)(b), of the Act do not avail the
state. What stands out is that this application falls to be determined under the
rubric s3(1)(c) of the Act.
[16] In S v Ramavhale, 3 Schutz JA underscores that s3(1) is an exclusionary
subsection and that "the touchstone of admissibility is the interest of justice." 4
The reception of hearsay evidence is not permitted unless the interests of justice
justify and permit its admission. That proposition was affirmed by the
Constitutional Court on appeal in Kapa.5 The purpose of the Act was described
by the Supreme Court of Appeal in Cupido v S as being to cater primarily for non-
witnesses who are no longer available to testify due to, for example, death or
mental incapacity after the incident.6
[17] The common thread that permeates our law is that courts have long
cautioned that hearsay evidence must be approached with circumspection in
criminal proceedings. In Ramavhale, Schutz JA stated that "a judge should
hesitate long in admitting or relying on hearsay evidence which plays a decisive
or even significant part in convicting an accused, unless there are compelling
justifications for doing so,"7 adding that "[a]n accused person usually has enough
3 1996 (1) SACR 639 (SCA)
41996 (1) SACR 639 (SCA) at 647d.
5 2023 (1) SACR 583 (CC).
6 (1257/2022) [2024] ZASCA 4 at para [47].
7S v Ramavhale 1996 (1) SACR 639 (SCA) at 649c-d.
10
to contend with without expecting him also to engage in mortal combat with the
absent witness."8
[18] In S v Seemela the court echoed a cautious approach to the admission of
hearsay evidence where it stated that, "[h]earsay evidence has long been
recognised to tend to be unreliable" and it is accordingly the court's "intuitive
reluctance to permit untested evidence to be used against an accused in a criminal
case" that informs the cautious exercise of the s3(1)(c) discretion. 9 This same
caution is reflected in the observation of Zeffert, Paizes, and Grant that courts
have warned that a judge should hesitate long before admitting or relying on
hearsay evidence which plays a decisive or even a significant part in convicting
an ac cused, unless there are compelling reasons for doing so. 10 That warning
resonates with equal force in the present matter.
[19] In Molimi, the highest court held that the s3(1)(c) discretion must be
exercised in a constitutionally compliant manner, with close attention to the
impact of admission on the accused's ability to challenge the evidence against
him.11 In S v Ndhlovu , Cameron JA held that "[t]he 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 s 36) to 'challenge
evidence'"12 and that "[w]here 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."13
8S v Ramavhale 1996 (1) SACR 639 (SCA) at 648a.
9S v Seemela 2016 (2) SACR 125 (SCA) at para [13].
10Zeffert, Paizes and Grant Essential Evidence (2nd ed, 2020) at 147.
11S v Molimi 2008 (2) SACR 76 (CC) at paras [45]-[47].
12S v Ndhlovu and Others 2002 (6) SA 305 (SCA) at para [24], per Cameron JA: "The Bill of
Rights does not guarantee an entitlement to subject all evidence to cross-examination. What it
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 s 36) to 'challenge evidence'."
13S v Ndhlovu and Others 2002 (6) SA 305 (SCA) at para [24], per Cameron JA: "Put
differently, where the interests of justice require that the hearsay statement be admitted, the
11
[20] Notably, Molimi found that the Ndhlovu approach was incorrect insofar as
it was applied without proper constitutional analysis. In Kapa, Majiedt J, writing
for the majority, held that the court must not evaluate the probative value of a
hearsay statement "in a piecemeal fashion" but should instead "apply a holistic
approach, assessing whether on the whole the statement was of adequate
probative va lue in light of all of the other circumstantial evidence taken
together."14 That holistic approach was affirmed in S v Lenting and Others.15
[21] The determination required under s3(1)(c) of the Act is not a mechanical or
formulaic exercise. It entails a value judgment, reached after a holistic weighing
of all the enumerated factors, none of which is decisive in isolation. The
conclusion reache d represents the exercise of this Court’s discretion on the
particular facts of this case, informed by constitutional imperatives and
precedential authority. It is with these principles in mind that the seven
jurisdictional factors that form the gateway to the admission of hearsay premised
on s3(1)(c) of the Act are to be considered disjunctively or conjunctively.
The application of section 3(1)(c) jurisdictional factors
The nature of the proceedings section 3(1)(c)(i)
[22] It bears stating the obvious. The accused has been indicted before the High
Court on serious allegations in which the accused faces five counts, including an
right to 'challenge evidence' does not encompass the right to cross -examine the original
declarant."
14Kapa v The State 2023 (1) SACR 583 (CC) at para [98], per Majiedt J: "In this approach, the
first judgment impermissibly evaluates the probative value of the statement in a piecemeal
fashion. It should instead apply a holistic approach, assessing whether on the whole the
statement was of adequate probative value in light of all of the other circumstantial evidence
taken together."
15 (CC08/2018) [2023] ZAWCHC 221 at para [15].
12
allegation of murder arising from the death of his wife on 27 November 2022. In
Kapa, it has been suggested that the likelihood of hearsay evidence being
admitted is greater in civil proceedings and is "least" in criminal proceedings.16
[23] The accused's constitutional rights under section 35(3) of the Constitution
are fully engaged. This Court observed during the proceedings of 9 February 2026
that a criminal trial is not a game17. The seriousness of the allegation that a human
being lost her life demands that the admission of hearsay of this nature be
countenanced only where the interests of justice genuinely require it. This factor
strongly militates in favor of caution and sets a correspondingly elevated
threshold for admission.
The nature of the evidence section 3(1)(c)(ii)
[24] The evidence in question is a written statement taken from Sphizer by the
investigating officer, Sergeant Mpudi, who himself testified in these proceedings
on the very issue the statement addresses. In Kapa the Constitutional Court stated
that "[i]n essence, the enquiry under this rubric is, first, the extent to which the
evidence can be considered reliable; and, second, the weighing of the probative
value of the evidence against its prejudicial effect," ide ntifying four factors
relevant to the reliabi lity question, including any interest in the outcome of the
proceedings by the witness, the degree to which the statement is corroborated or
contradicted by other evidence, and the contemporaneity and spontaneity of the
statement.18
162023 (1) SACR 583 (CC) at para [39].
17 Rex v Hepworth 1928 AD 265 at 277
18Kapa v The State 2023 (1) SACR 583 (CC) at para [33], per Majiedt J: "In essence, the
enquiry under this rubric is, first, the extent to which the evidence can be considered reliable;
and, second, the weighing of the probative value of the evidence against its prejudicial effect.
There are a host of factors relevant to the reliability question, namely: (a) any interest in the
outcome of the proceedings by the witness; (b) the degree to which it is corroborated or
contradicted by other evidence; (c) the contemporaneity and spontaneity of the hearsay
statement; and (d) the degree of hearsay."
13
[25] None of these indicators favours admission in the present matter. The
statement records, in paragraph 3, that Sphizer used the word "neve" in a context
central to the factual dispute, a word that is ambiguous on its face and
unexplained. It would be a sli ppery slope for this Court to embark on a process
of speculation or conjecture to determine whether the word “ neve” was a
typographical error or an intentional choice. In Ndhlovu, Cameron JA alluded to
"an intuitive reluctance to permit untested evidence to be used against an accused
in a criminal case."19
[26] The glaring dangers of hearsay, including the inability to evaluate the
deponent’s perception, memory, narration, and sincerity, are equally present and
are intensified by the circumstances in which the statement was made.
The purpose for which the evidence is tendered section 3(1)(c)(iii)
[27] Advocate Tlatsana contends that the purpose is to confirm or deny whether
Sphizer telephoned the accused on 27 November 2022 to report suspicious
persons near the accused's home. In Cupido v S [2024] ZASCA 4, the SCA held
that "[p]robative value means value for purposes of proof. This means not only,
'what will the hearsay evidence prove if admitted?', but 'will it do so reliably?'"20
The statement as drafted does not with requisite clarity establish the denial of the
telephone call on the crucial point. A statement that is ambiguous on the very
issue for which it is tendered cannot reliably achieve the purpose for which
admission is sought, and that ambiguity cannot justify the constitutional cost of
admission.
19S v Ndhlovu and Others 2002 (6) SA 305 (SCA) at para [23].
20Cupido v S (1257/2022) [2024] ZASCA 4 at para [49]: "[p]robative value means value for
purposes of proof. This means not only, 'what will the hearsay evidence prove if admitted?',
but 'will it do so reliably?'"
14
The probative value of the evidence section 3(1)(c)(iv)
[28] In Cupido, the SCA confirmed that the most compelling justification for
admitting hearsay is the presence of "numerous pointers to its truthfulness."21 No
such pointers exist here. The State has placed before this Court no admissible
evidence whatsoever regarding the content or reliability of the statement. As
alluded to, the assertions by Advocate Tlatsana in the heads of argument are not
evidence. Notably, there are no telephone records to corroborate the alleged
conversation, notwithstanding that the investigating officer has an investigative
tool available to obtain records, as evinced in s205 of the Criminal Procedure Act
51 of 1977.
[29] The minority judgment of Mbatha AJ in Kapa observed pertinently that
"[i]t is of no legal significance, in considering whether to admit evidence, how
important a party regards a piece of evidence for the bolstering of its own case."22
This contention applies with equal force in the present matter. As confirmed in S
v Kapa and Others, where the following was stated:
"[a] just verdict, based on evidence admitted because the interests of justice require it,
cannot constitute 'prejudice' ... Where the interests of justice require the admission of
hearsay, the resultant strengthening of the opposing case cannot count as p rejudice for
statutory purposes, since in weighing the interests of justice the court must have already
concluded that the reliability of the evidence is such that its admission is necessary and
justified."23 This Court has not so concluded. That proposition, therefore,
does not assist the State.
21Cupido v S (1257/2022) [2024] ZASCA 4 at para [49].
22Kapa v The State 2023 (1) SACR 583 (CC), minority judgment per Mbatha AJ.
23S v Kapa and Others [2018] ZAWCHC 3 at para [34]: "A just verdict, based on evidence
admitted because the interests of justice require it, cannot constitute 'prejudice' ... 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 have already concluded that the reliability of the evidence is such that its
admission is necessary and justified."
15
The reason why the evidence is not given by the maker section 3(1)(c)(v)
[30] Sphizer died on or about 8 February 2026, the day before the trial was due
to resume. This is common cause.
[31] In Cupido, the SCA confirmed that :
"[t]he primary objective is to cater for non -witnesses who are no longer available to
testify due to, for example, death or mental incapacity after the incident."24
[32] It is an unassailable fact that death is among the most compelling reasons
a deponent cannot testify. This would inevitably trigger the provisions of s3(1)(c)
of the Act in the absence of s3(1) (a) and (b) not available to a party, and an
appropriate reme dy for the admission of hearsay evidence. Undoubtedly, this
factor weighs in favour of the State's application.
Prejudice to the accused section 3(1)(c)(vi)
[33] Advocate Tlatsana concedes that the accused will be entirely deprived of
the opportunity to cross -examine Sphizer. Concerningly, Advocate Tlatsana
dismisses this as not outweighing the interests of justice, without engaging with
how the prejudice is to be mitigated or why it is constitutionally tolerable in the
circumstances of this case.
[34] In Kapa, the court acknowledged that "[t]he prejudice occasioned to the
applicant as an accused person by the admission of the hearsay evidence is significant.
The accused was deprived of an opportunity to cross-examine the witness, which could
have shed light on the credibility and reliabili ty of the witness, her powers of
observation, and so forth."25
24Cupido v S (1257/2022) [2024] ZASCA 4 at para [47].
25Kapa v The State 2023 (1) SACR 583 (CC) at para [94], per Majiedt J: "The prejudice
occasioned to the applicant as an accused person by the admission of the hearsay evidence is
significant. The accused was deprived of an opportunity to cross -examine the witness, which
16
[35] The majority in Kapa admitted the statement notwithstanding that
prejudice, but only because the evidence was of adequate probative value in light
of all the other circumstantial evidence taken together. The highest court held that
"[u]ltimately, the question is whether there are adequate pointers of truthfulness, reliability,
and probative value for the statement to be admitted as evidence."26
[36] In the present matter, the threshold has not been met. To this end, in S v
Molimi, it was held that the section 3(1)(c) discretion cannot be exercised to
render the trial as a whole unfair. 27 A bald assertion that prejudice does not
outweigh the interests of justice, without engaging with the intimate mechanics
of why it is constitutionally tolerable in the specific circumstances of this case, is
wholly inadequate.
Any other relevant factor section 3(1)(c)(vii)
[37] The State does not engage with this provision at all. First, the State's own
submission is that it has tendered "overwhelming evidence" against the accused
the statement of Sphizer is not the decisive or indispensable piece of evidence
that would justify overriding the accused's constitutional rights. The State cannot
simultaneously advance "overwhelming evidence" and invoke the "only conduit"
reasoning from Kapa. These positions are irreconcilable and undermine the
interests of justice argument.
could have shed light on the credibility and reliability of the witness, her powers of observation,
and so forth."
26Kapa v The State 2023 (1) SACR 583 (CC) at para [103], per Majiedt J: "there can hardly be
any doubt that the applicant is being substantially prejudiced by the admission of the statement
as he is deprived of the opportunity to cross -examine the deponent. But that is not the only
consideration -- the court must also consider the fact that the witness is deceased, and the
overriding consideration of the interests of justice. Ultimately, the question is whether there
are adequate pointers of truthfulness, reliability, and pr obative value for the statement to be
admitted as evidence."
27S v Molimi 2008 (2) SACR 76 (CC) at paras [45]-[47].
17
[38] Second, in S v LN [2025] ZAWCHC 40, the Western Cape High Court on
review set aside a conviction in part because hearsay evidence had been allowed
to form part of the record without substantive applications for its inclusion being
properly made, and without the trial court properly dealing with it on the basis of
the provisions of section 3(1)(a), (b) or (c) of the Act. 28 That decision reinforces
the principle that hearsay applications in criminal proceedings must be properly
constituted and properly argued, a standard the present application falls gravely
shy of.
[39] The State's reliance on Kapa is misplaced. In Kapa, the deceased Ms Dasi
was an eyewitness to the offence itself. The majority described her statement as
the "only conduit" through which the accused's actions could be linked to the
crime. In the present matter, Sphizer was not an eyewitness to any crime. He was
a person who may or may not have made a telephone call to the accused. The
facts are distinguishable.
[40] The minority judgment of Mbatha AJ serves as a salutary reminder that
"[t]he statutory interests of justice test for the admission of hearsay evidence has
a constitutional dimension, and the admission of hearsay might be so unfair as to
infringe the [accused's] fair trial rights."29
[41] The compelling reasoning that underscored the majority's decision in
Kapa, that a holistic assessment of probative value in light of all the
circumstantial evidence demanded admission, 30 does not correlate with the
28S v LN (12/2023) [2025] ZAWCHC 40 at paras [29] and [71].
29Kapa v The State 2023 (1) SACR 583 (CC), minority judgment per Mbatha AJ at para [4]:
"The statutory interests of justice test for the admission of hearsay evidence has a constitutional
dimension, and the admission of hearsay might be so unfair as to infringe the [accused 's] fair
trial rights."
30Kapa v The State 2023 (1) SACR 583 (CC) at para [98], per Majiedt J.
18
present facts on four scores. First, the statement of Sphizer is ambiguous on its
face; second, it was commissioned by a witness who testified on the same point;
third, it is uncorroborated by objective evidence; and fourth, the State
simultaneously contends that it has already adduced overwhelming proof.
The Kapa Safeguards
[42] This Court has further considered whether the safeguards identified by the
court in Kapa could provide a constitutionally compliant basis for admission even
if the deficiencies identified above are not individually fatal. The safeguards
include directing itself to treat the hearsay with caution; refraining from relying
on it as the sole or decisive basis for a finding of fact as contemplated by section
3(3)(b) of the Act; assessing it in conjunction with all other evidence; and
expressly acknowledging the specific prejudice suffered by the accused.
[43] In S v Lenting and Others [2023] ZAWCHC 221, the court postulated that
a holistic approach be adopted and that the evidence be considered in its totality,
including the hearsay statement, to determine its truthfulness, reliability, and
probative value.31 This Court has applied that approach. The safeguards cannot
cure the deficiencies present here. As Schutz JA put it in Ramavhale, "a judge
should hesitate long in admitting or relying on hearsay evidence which plays a
decisive or even significant part in convicting an accused."32
[44] It bears repetition that a statement that is ambiguous on the very issue it is
tendered to prove, that was commissioned by a witness who testified on the same
point, and that is entirely unsupported by objective corroborating evidence,
31S v Lenting and Others (CC08/2018) [2023] ZAWCHC 221 at para [10].
32S v Ramavhale 1996 (1) SACR 639 (SCA) at 649c-d.
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cannot be rescued by safeguards designed for inherently reliable evidence. The
residual probative value of such a statement, even with the full application of the
Kapa safeguards, would be negligible, insufficient to justify the constitutional
cost of admission in proceedings of this gravity.
Conclusion
[45] Having weighed all seven factors holistically against one another, and
having regard to the nature and gravity of these proceedings, the ambiguity in the
statement on the very point for which it is tendered, the circumstances in which
it was commissioned by a witness who himself testified on the same issue, the
specific and constitutionally significant prejudice to the accused that the State has
not adequately addressed, the irreconcilable positions advanced by the State, the
inapplicability of the Kapa reasoning on the present facts, and the inability of the
Kapa safeguards to rescue the application, this Court is not persuaded that the
interests of justice require or justify the admission of the statement of the late
April Papi Sphizer Olifant. The application falls to be dismissed. As the
Constitutional Court confirmed in Kapa, the ultimate question is "whether there
are adequate pointers of truthfulness, reliability, and probative value for the
statement to be admitted as evidence."33 There are none.
[46] The provisionally admitted hearsay evidence of Sergeant Mpudi, in so far
as it recounts what Sphizer told him, remains provisionally admitted. Its ultimate
admissibility and the weight to be accorded thereto will be determined at the
conclusion of the trial in light of all the evidence. In this regard, section 3(3)(b)
of the Act, which provides that hearsay admitted under the section shall not be
33 2023 (1) SACR 583 (CC) at para [103].
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the only ground upon which a finding of fact may be made, will receive full
application.
GE OF THE IDGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Appearance
For the State: Advocate Tlatsana
Instructed by: The Director of Public Prosecutions, North West Province.
For the Accused: Mr Dlanjwa, Dlanjwa Attorneys.