S v Ndhlovu and Others (327/01) [2002] ZASCA 70; [2002] 3 All SA 760 (SCA) (31 May 2002)

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[2002] ZASCA 70
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S v Ndhlovu and Others (327/01) [2002] ZASCA 70; [2002] 3 All SA 760 (SCA); 2002 (6) SA 305 (SCA); 2002 (2) SACR 325 (SCA) (31 May 2002)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case
no: 327/01
REPORTABLE
In the matter between:
NDHLOVU,
Vusi Vincent First appellant
MTHETHWA,
Bafana Godfrey Second appellant
MASINGA,
Bongani Piet Third appellant
NKOSI, Jabu
Sweetdreams Fourth Appellan
t
and
THE STATE
Respondent
Before:
Harms and Cameron JJA and Heher AJA
Appeal heard:
7 May 2002
Judgment:
31 May 2002
_______________________________________________________
Criminal law–Hearsay evidence–Act 45 of 1988–Act not
unconstitutional–Admission of hearsay evidence by one accused
against
fellow accused–Admissible when if sufficient guarantees of
trustworthiness
JUDGMENT
_______________________________________________________
CAMERON JA:
Introduction
The main question in the appeal is whether an accused’s
out-of-court statements incriminating a co-accused, if disavowed at
the trial, can nevertheless be used in evidence against the latter.
Johannes Jochemus Jansen van Rensburg, a forty year-old husband of
twenty years and a father of two children, was a partner in
a
plumbing business that was improving the water and sewerage
facilities in the East Rand township of Katlehong. On Sunday
morning
17 January 1999, he entered the Ramakonopi section of the
township with a team of workers to lay pipes. At 08h00, while his
workers
were preparing for the day’s tasks, he was attacked at the
wheel of his Ford Cortina by a group of four young men. One of them
approached, pointed a firearm at him, pulled the trigger and fled.
A second, armed with a 30-centrimetre iron bar, demanded a
cellular
phone before also fleeing. The bullet entered Jansen van Rensburg’s
right shoulder. It lacerated his subclavian arteries
and passed
through his trachea and left lung. He died shortly afterwards at
the scene of the attack. His attackers had by then
escaped with his
cellphone.
Fifteen months later, the four appellants (‘the accused’) were
arraigned in the High Court in Johannesburg on charges arising
from
the incident. Goldstein J and two assessors, in a judgment portions
of which have been reported,
1
convicted all four accused of murder and of armed robbery.
2
The first accused was in addition convicted of unlawful possession
of a firearm and ammunition.
3
Applying the minimum sentence provisions which had come into force
on 1 May 1998,
4
Goldstein J sentenced the first three accused to life imprisonment
for the murder, and to fifteen years’ imprisonment for the
robbery. Accused 1 was in addition sentenced to three years’
imprisonment on the firearm charge, and to two years on the
ammunition
charge. Accused 4, who was just over seventeen at the
time of the crimes, was sentenced to 18 years in prison for the
murder,
and to ten years for the robbery. The sentences were all to
run concurrently.
5
Two eyewitnesses testified against the accused. The first could
identify no one. The second placed accused 1 at the scene of
the
crimes. But the trial court found that his identification was
‘virtually worthless’. In consequence, the pivotal factors
in
the conviction of the accused were the words and actions of accused
3 on the night following the murder, when he led the police
to the
other three accused and to the purchaser of the deceased’s
cellphone (resulting in the recovery of the cellphone, the
testimony
of the person to whom it was sold, and the discovery of the murder
weapon in the possession of accused 1), and a written
statement that
accused 4 made the next day, incriminating himself and the other
three accused. At the trial accused 3 and 4 denied
making any
statements to the police. And all four denied complicity. The
trial court rejected the defence evidence as false beyond
reasonable
doubt. Goldstein J granted the accused leave to appeal against
their convictions and sentences, but not against his
finding, at the
end of a trial-with-the-trial, that the post-arrest pointings out
and oral statements attributed to accused 3,
and the written
statement attributed to accused 4, were rightly so attributed, and
were admissible as having been made freely and
voluntarily. Accused
1 did not seek leave to appeal against his conviction and sentences
on the arms charges.
In the result, the principal question in the appeal is the
admissibility against their fellow accused of the hearsay evidence
deriving from the oral and written statements of accused 3 and 4,
and whether that evidence, if admissible, supports the inferences
as
to motive and conduct the trial court drew against the accused. In
addressing that question, the appellants could make no serious
attack on the factual and credibility findings of the Court below,
which the evidence overwhelming justified.
The Trial Court’s Findings
In the early hours of the morning after the murder, an informer
telephoned Sgt Makhubo of the Katlehong Crime Prevention Unit
and
purported to give him ‘the names and addresses of the
perpetrators’. Makhubo decided to follow the lead with a group of
colleagues. They first went to the home of accused 3 where after
advising him of his constitutional rights Makhubo arrested him
on a
charge of murder. After being handcuffed, accused 3 told Makhubo
that he was not alone when they ‘shot a white man’.
In the
ensuing conversation, accused 3 told him ‘We were four’, but
stated that it was not he who pulled the trigger. Asked
who did,
accused 3 answered ‘Vusi’. Accused 3 then agreed to point out
the persons who had been in his company. Makhubo put
accused 3 into
one of the two vehicles in which the police party was travelling,
and boarded the other. Makhubo told the driver
of the vehicle in
which accused 3 was placed merely that accused 3 would direct them
‘to a certain place’.
That accused 3 proceeded to do. He directed the party to a series
of locations at which in turn accused 4, accused 2, the purchaser
of
the deceased’s cellphone, one Mdunana, and accused 1 were
arrested. Before accused 1’s arrest (at a location to which

accused 3 directed the police after accused 1 could not be found at
his home), accused 3 warned the police to be careful because
accused
1 had a firearm. At this point accused 3 also told Makhubo that
they were ‘actually going to take the cellphone from
this white
man and that they were surprised’ when they realised that accused
1 was shooting the man. He said that once the man
had been shot,
‘they then took the cellphone and ran away’.
Mdunana was taken into custody after accused 2, 3 and 4, but before
accused 1. Accused 3 accompanied the police party that entered
Mdunana’s home. There Mdunana identified him to the police as the
‘the seller’ of the cellphone. Later that same night,
at the
Katlehong Police Station, when Mdunana encountered accused 2, he
identified him to the police as the second of two youths
who had
come to his door, offering the cellphone for sale. At the trial
Mdunana (who had by then been convicted and sentenced
for possessing
stolen property) affirmed these identifications. He testified that
at about 09h00 on Sunday 17 January 1999 ‘four
boys’ arrived at
his home in Ramakonopi East. Two approached him and stood at his
door, while the others waited at the gate.
Accused 3 offered to
sell him a cellphone. When he asked to see the instrument, accused
2 produced it for inspection. They wanted
R500, but after some
bargaining agreed to take R400. He gave them R150 as a deposit, the
balance to be collected the next day.
The youths’ two companions
at the gate Mdunana was unable to identity.
During the afternoon of Monday 18 January, accused 4 signed a
written statement in which he answered questions the investigating
officer put to him. He stated that at 08h00 on 17 January 1999 he
was at Ramakonopi, Katlehong, and that Vusi, Bongani and Bafana
were
with him. It was not contested that these allusions identified
respectively accused 1, 3 and 2 by their first names. Accused
4
further stated that he and the other three went to ‘the people who
were working’. He stated that he ‘stood and watched’,
and
‘saw Vusi pulling the trigger.’ To an inquiry about the firearm
he replied that it was a ‘Lucini’. At the trial a
ballistics
expert identified the murder weapon as the 9mm Lorcin pistol found
in accused 1’s possession. In his statement accused
4 said that
after the shooting he ran away alone to Ramakonopi. Finally, he
stated that accused 1 had shot ‘a white man’ who
was alone
‘behind the steering wheel’ of a ‘white Ford Cortina’.
Goldstein J rejected a challenge to the constitutionality of section
3 of the Law of Evidence Amendment Act 45 of 1988 (‘the
1988
Act’),
6
and applied its provisions to admit the hearsay evidence emanating
from the statements and conduct of accused 3 and 4. From all
the
evidence, the trial court inferred that the accused had acted in
concert in carrying out the robbery and that each of them
was also
guilty of the murder.
Hearsay Evidence under the 1988
Act and the Constitution
Section 3 of the 1988 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;
(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 inadmissible on any ground other
than that
such evidence is hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in
terms of subsection (1) (b) if the court is informed that the person
upon whose
credibility the probative value of such evidence depends,
will himself testify in such proceedings: Provided that if such
person
does not later testify in such proceedings, the hearsay
evidence shall be left out of account unless the hearsay evidence is
admitted
in terms of paragraph (a) of subsection (1) or is admitted
by the court in terms of paragraph (c) of that subsection.
(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 party against whom hearsay
evidence is to be adduced, including the prosecution.
In essence, in the absence of agreement, the section prohibits the
admission of hearsay evidence unless the interests of justice
require it. As Goldstein J pointed out,
7
the provision expressly contemplates its application to both civil
and criminal proceedings (ss (1) and (4)). The statute moreover
repealed s 216 of the Criminal Procedure Act 51 of 1977 (‘the 1977
Act’), the effect of which had been to prohibit, subject
to
defined common law exceptions, the admission of hearsay evidence.
8
The hearsay provisions of the 1988 Act have been considered and
applied in this Court
9
and also in a number of provincial division decisions, including
criminal matters,
10
but until the proceedings before Goldstein J their constitutionality
had not been contested. On appeal counsel for the first appellant
persisted in the submission that the provisions were
unconstitutional and that the trial court had therefore erred in
invoking
them at all.
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.
11
The Constitution requires as much.
12
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
13
– not subject to the reliability checks applied to first-hand
testimony (which diminishes 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.
14
For these very reasons, this Court emphasised more than four
decades ago that ‘hearsay, unless it is brought within one of the
recognised exceptions, is not evidence, ie legal evidence, at all’.
15
The 1988 Act does not change that starting point. Subject to the
framework it creates, its provisions are exclusionary.
16
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’.
17
The 1988 Act was thus designed to create a general framework to
regulate the admission of hearsay evidence that would supersede
the
excessive rigidity and inflexibility – and occasional absurdity –
of the common law position. In the result, as this Court
recently
stated in
Makhathini v Road Accident Fund
,
18
the 1988 Act retained ‘the common law caution’ about receiving
hearsay evidence, but ‘altered the rules governing when it
is to
be received and when not’, principally by glossing the common law
exceptions with the general criteria of relevance, weight
and the
interests of justice:
‘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.’
19
The problem however is that the provision conflates the
admissibility of evidence with its reliability. That aside,
statute’s
fundamental test, namely the ‘interests of justice’,
as well as the criteria it posits as relevant to that test, must now
be
interpreted in accordance with the values of the Constitution
20
and the ‘norms of the objective value system’ it embodies.
21
Nothing in the statute inhibits this normative reconfiguration. On
the contrary, the scheme and formulation of the relevant provisions
of the 1988 Act are consonant with the Constitution. The Act
requires that specific account be taken of the ‘nature of the

proceedings’ (s 3(1)(c)(1)). This alludes to the distinction not
only between application and trial proceedings, but more pertinently
to that between civil and criminal proceedings.
22
The overriding feature of the latter is that the state bears the
onus to establish the guilt of the accused beyond reasonable
doubt.
This will always weigh heavily not only in the admission of hearsay
evidence, but also in the weight a court accords it.
23
This Court alluded in
S v Ramavhale
to an intuitive
reluctance to permit untested evidence to be used against an accused
in a criminal case, observing that an accused
‘usually has enough
to contend with without expecting him also to engage in mortal
combat with the absent witness’.
24
It concluded 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’.
25
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.
26
Safeguards including the following are important:
First, a presiding judicial official is generally under a duty to
prevent a witness heedlessly giving vent to hearsay evidence.
27
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”.’
28
Second, the Act cannot be applied against an unrepresented accused
to whom the significance of its provisions have not been explained.

In
S v Ngwani
29
the magistrate in answer to a review query tried to justify a
conviction of dagga dealing on the basis that the 1988 Act rendered
admissible a policeman’s evidence that the conductor of the bus
where the dagga was found had identified the accused as the owner
of
the bag containing it. In setting aside the conviction Didcott J
stated:
‘
The accused, who was
unrepresented, had to have the effect of the subsection fully
explained to him, in contrast with the legal position
were it not
invoked. He then had to be heard on the issue whether it should be
invoked. In particular, he had to be heard on the
important one
raised by para (vi), the issue whether he would be prejudiced were it
to be invoked.’
30
Third, an accused cannot be ambushed by the late or unheralded
admission of hearsay evidence. The trial court must be asked
clearly
and timeously to consider and rule on its admissibility.
This cannot be done for the first time at the end of the trial, nor
in
argument, still less in the court’s judgment, nor on appeal.
The prosecution must before closing its case clearly signal its
intention to invoke the provisions of the Act, and the trial judge
must before the State closes its case rule on admissibility,
so that
the accused can appreciate the full evidentiary ambit he or she
faces.
Two decisions are in point:
In
S v Ndlovu and another
31
a conviction of murder depended on police accounts of post-arrest
admissions the accused made through interpreters who were not
called
to testify. The evidence of the policemen was accordingly hearsay.
On appeal the State sought to rectify the omission
by invoking the
1988 Act. This Court rejected the attempt. It held that the
admissions had not been properly proved. It was
open to serious
doubt whether the Act could be invoked to cure the failure to call
the interpreters since evidence was needed that
the accused’s
statements had been accurately translated (the policemen could not
speak the accused’s language). But even if
the Act applied, the
admission of the evidence had to be raised and decided in the trial
court. Conjuring up the statute on appeal
was not good enough.
S v Ramavhale
32
is an even clearer instance. The State had not sought to lead
the hearsay evidence pivotal to the accused’s conviction, it ‘did
not want it when it came out, and turned its back on it’ until at
a late stage in argument at the close of the trial, when the
trial
judge during the State’s reply raised its possible admission. At
no stage before judgment was the defence aware that the
trial court
intended to rely on it. This Court subjected the manner in which
the trial judge admitted and relied upon the hearsay
to stricture.
Ramavhale
makes clear that unless the State obtains a ruling
on the admissibility of the hearsay evidence before closing its
case, so that
the accused knows what the State case is, he or she
cannot thereafter be criticised on the basis of the hearsay
averments for failing
to testify. It also suggests, rightly, that
unless the court rules the hearsay admissible before the State
closes its case, fairness
to the accused may dictate that the
evidence not be received at all. (This does not preclude the State
in an appropriate case
from applying to re-open its case.)
In the present trial, before the State closed its case, during
argument on the admissibility of the pointings out and statements
of
accused 3 and the written statement of accused 4, Goldstein J
invited submissions on whether the hearsay they contained was
admissible under the 1988 Act against the other accused. He
informed counsel that his ruling was ‘reviewable at the end of the
case’ and that his mind ‘will not close after this ruling’.
They were therefore entitled to address him again on the question
at
the close of the trial. After then hearing argument, Goldstein J
ruled the statements admissible in evidence, announcing (as
is
usual) that his reasons would be given later. There was no
suggestion that Goldstein J’s ruling was ‘provisional’ in
the
sense criticised in
S v Ramavhale
33
(that is, leaving the State or indeed the accused to ‘range around
vaguely’ on the question of the ambit of the admitted evidence).

Goldstein J’s ruling was clear and unequivocal, albeit subject to
re-assessment at the end of the case.
After Goldstein J’s ruling, the State closed its case. The
accused all elected to testify. When they did so, they knew that
they were confronted with the full evidentiary potential of the
statements, though the court’s reasons, and the weight it attached
to the statements, were given only in its judgment on the merits at
the end of the case. No question of impropriety in relation
to the
invocation of 1988 Act therefore arose.
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 which any decision to admit
hearsay
evidence will be scrutinised:
‘
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.’
34
It should be added that in
S v Ndlovu and another
35
the Court referred to the power s 3(1)(c) confers as a ‘judicial
discretion’ (a term normally taken to refer to a protected
discretion,
ie an exercise of judicial power in general immune from
intervention in the absence of misdirection or abuse).
36
The Court in
McDonald’s
was not referred to
Ndlovu
.
In contrast to
McDonald’s
, it doesn not appear that the
precise nature of the power the provision confers was argued in
Ndlovu
. To the extent that the two approaches may conflict,
the analysis in
McDonald’s
must in my view be accepted as
correct.
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 developments in other
democratic societies based on human dignity, equality and freedom.
38
The Supreme Court of Canada, for instance, has underlined the need
for increased flexibility in interpreting the hearsay rule,
and
subject to safeguarding the interests of the accused, has distilled
two criteria (reasonable necessity and reliability) governing
its
admission.
39
Lamer CJC hailed the Court’s new approach as ‘the triumph of a
principled analysis over a set of ossified judicially created
categories’.
40
The Canadian Supreme Court’s general criteria accord well with
the overall scheme of s 3 of the 1988 Act.
In challenging the constitutionality of the hearsay provisions of
the 1988 Act, counsel for the first appellant relied on the fair
trial guarantee in the Bill of Rights, specifically the right of the
accused ‘to adduce and challenge evidence’.
41
It has correctly been observed that the admission of hearsay
evidence ‘by definition denies an accused the right to
cross-examine’,
since the declarant is not in court and cannot be
cross-examined.
42
I cannot accept, however, that ‘use of hearsay evidence by the
state violates the accused’s right to challenge evidence by
cross-examination’,
43
if is meant that the inability to cross-examine the source of a
statement in itself violates the right to ‘challenge’ evidence.

The Bill of Rights does not guarantee an entitlement to subject all
evidence to cross-examination.
44
What it contains is 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.
In the United States, the Sixth Amendment to the Constitution
provides that in all criminal prosecutions the accused shall enjoy
the right ‘to be confronted with the witnesses against him’.
This right, even more broadly and directly expressed than that
in
our Bill of Rights, has never been interpreted to exclude the
admission of all hearsay evidence.
45
On the contrary: the Supreme Court has held that where hearsay
falling within the traditional exceptions has ‘sufficient
guarantees
of reliability’, ‘the Confrontation Clause is
satisfied’.
46
That Court, too, in seeking to find a general basis for the
admission of hearsay evidence, uses a less than absolute test of

necessity together with one of reliability.
47
I conclude that the 1988 Act provides a constitutionally sound
framework for the admission of hearsay evidence, and turn to the
question of its admission in the present case.
The Admission of the Hearsay
Evidence in Convicting the Accused
In ruling the hearsay admissible, Goldstein J relied in the first
instance on s 3(1)(b), which provides that hearsay evidence is
admissible if ‘the person upon whose credibility the probative
value of such evidence depends, himself testifies at such
proceedings’.
As already pointed out, after the admissibility
ruling on their statements, accused 3 and 4 themselves elected to
testify. Goldstein
J considered that the requirements of the
provision had therefore been satisfied. He observed: ‘There is
no doubt that the
requirements of ss (1)(b) for the admissibility of
extra-curial statements and pointings out … are satisfied if the
provision
is read literally and in accordance with its ordinary
meaning’. He held that if the literal meaning were not applied
the sub-section
would have ‘no or little purpose since an
extra-curial statement, which is repeated under oath, need not be
referred to at all,
and is indeed of doubtful admissibility,
constituting as it does a previous consistent statement’.
48
This approach is not in my view correct. The literal effect of ss
(1)(b) would be to make self-corroborating statements admissible
–
otherwise the need to admit hearsay evidence where the declarant
testifies at the proceedings cannot arise. That would make
no
sense. Rather, the provision must be read in tandem with ss (3).
That provision discloses the primary purpose of ss (1)(b).

Sub-section (3) provides that hearsay may be ‘provisionally
admitted’ under ss (1)(b) ‘if the court is informed that the
person upon whose credibility the probative value of such evidence
depends, will himself testify’. Before the Act, a witness
whose
narrative was conjoined with that of a later witness could not refer
at all to the latter’s hearsay statements. This could
render the
delivery of evidence fragmentary and even incoherent. Any allusion
to hearsay would be met with justified objection,
and the court
would have to wait for the later witness to be called for coherence
to emerge. In these circumstances the provision
permits the first
witness to testify fully and without objection, provided the court
is informed that the declarant will in due
course be called. If the
declarant is not called the hearsay is ‘left out of account’
unless the opposing party agrees to
its admission or the interests
of justice require its admission under s 3(1)(c). The provisional
admission of hearsay in the situation
the statute envisages is
procedurally unexceptionable
49
and its practical value in rendering court proceedings coherent
should not be under-estimated.
Second and in any event, the literal reading entails that a hearsay
statement automatically becomes admissible simply because the
extra-curial declarant happens to testify, regardless of the content
of his or her testimony, and regardless of the interests of
justice.
It is hardly conceivable that the legislation intended this result.
When hearsay evidence is tendered, the person on
whose credibility
the probative value of the hearsay depends may (i) testify and
confirm its correctness; (ii) not testify; (iii)
testify but deny
ever making the hearsay statement; (iv) testify and admit making the
statement but deny its correctness; (v) testify
but neither confirm
nor deny making the statement.
If the witness, when called, disavows the statement, or fails to
recall making it, or is unable to affirm some detailed aspect
of it
(situations (iii)-(v) above),
50
the situation under the Act is not in substance materially different
from when the declarant does not testify at all. The principal
reason for not allowing hearsay evidence is that it may be
untrustworthy since it cannot be subjected to cross-examination.
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.
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
whether the interests of justice require its admission.
That question the literal approach to the meaning of ss (1)(b) would
entirely efface. The legislation is at pains to provide that
if the
declarant is unavailable to testify hearsay is admissible should the
interests of justice require it. It can hardly be
intended that
the interests of justice should become irrelevant if the declarant
happens to testify but disavows or is unable to
affirm the prior
statement. The logical approach to the substance of the
legislation, as opposed to its letter, is thus that
hearsay not
affirmed under oath is admissible only if the interests of justice
require it.
51
The facts of the present case illustrate the force of this
conclusion. At the trial, accused 3 and 4 radically disavowed their
earlier statements. It is inconceivable that their hearsay
averments, inadmissible against accused 1 and 2 in the absence of an
appropriate ruling under s 3(1)(c), suddenly became admissible,
automatically and without regard to the interests of justice, once
accused 3 and 4 elected to testify. The ‘probative value’ of
the accused’s statements to the police did not depend on their
credibility at the time of the trial – which the court rightly
found totally lacking – but on their credibility at the time
of
their arrest. And the admissibility of those statements depended
not on the happenstance of whether they chose to testify but
on the
interests of justice.
In these circumstances I conclude that the provision deals
differently with the situation where hearsay evidence is
subsequently
affirmed under oath at the proceedings [situation (i)
in paragraph 29 above] from where it is not [situations (ii) to
(v)]. Its
admission is in the first case governed by ss (1)(b); in
the others by ss (1)(c), and whether or not the hearsay declarant
testifies
but fails to confirm the prior statement is irrelevant to
the application of ss (1)(c). The admissibility of all hearsay
evidence
not affirmed under oath at the proceedings in question
therefore depends on whether the interests of justice require it.
Goldstein J went on to consider this question. Before scrutinising
his conclusion, it is convenient to consider the non-hearsay
evidence against accused 3 and 4. From his own mouth accused 3 was
convicted of both murder and robbery. He admitted to the police
that he was present with three others when the deceased was shot.
He admitted sharing with the others the purpose of ‘taking’
the
deceased’s cellphone. He was therefore engaged when so present in
a joint attack on the deceased in effecting that purpose.
It may be
inferred with a high degree of certainty that accused 3 knew in
advance that one of his fellow robbers had a firearm.
He attempted
to exculpate himself by claiming surprise when the deceased was
shot. But he did not try to suggest that before
the robbery he was
unaware of the firearm’s deadly presence. It follows from his
knowledge that one of the party was armed that
accused 3 must have
envisaged the use of force if necessary. Such force when threatened
with a firearm is always potentially deadly.
Accused 3 therefore by
ineluctable inference must have reconciled himself to the deadly
consequences of that use. That may be
inferred also from his
admission that once the deceased had been felled, he with the others
‘took the cellphone and ran away’.
The character of the entire
enterprise appears from the consistent nature of the robbers’
association with one another other
and from their joint plundering
of the deceased’s property as he lay dying. Although accused 3
told the police that he was ‘surprised’
when he realized that
the deceased was being shot, his exculpatory statement loses its
plausibility when weighed against the stark
facts of the shared
enterprise and the manner of its execution. Accused 3’s
untruthful denial of his post-arrest admissions
and his palpably
false alibi also count heavily against him.
Accused 4, likewise, was rightly convicted from the words of his own
tongue. He was at the scene of the killing with three others.
He
not only knew that a firearm was present, but knew its make
(‘Lucini’ for ‘Lorcin’). Although he said that he ran
away
alone, it is overwhelmingly probable that after the shooting and
robbery the four regrouped, and that he and the other three
he named
comprised the group of four youths who barely an hour after the
deceased lay dead approached Mdunana to sell the cellphone.
The
possibility that another youth had joined the group, and that it was
he, and not accused 4, who stood at Mdunana’s gate
while the
cellphone was being sold, is so remote that it may safely be
excluded. In accused 4’s case the same inferences apply
as in
that of accused 3, and the same adverse consequences from his lying
testimony. His presence on the deadly mission, his association
with
its execution and his plucking of its fruits mark him as intimately
associated with all aspects of its attainment, including
the murder.
That accused 4 recounted to the police his presence at the scene of
the murder while the trigger was pulled without
an attempt at
exculpation merely underscores the conclusion already inevitable
from the other proven facts.
The critical question, however, is the admissibility of the hearsay
statements of accused 3 and 4 against accused 1 and 2. Accused
1
was found in possession of the murder weapon some 20 hours after the
murder. That fact, together with his untruthful denial
of
possession and his spurious alibi, on their own point strongly,
probably beyond reasonable doubt, to his culpable association
with
the fatal robbery. But the hearsay evidence, if admitted, puts that
issue beyond question, for both accused 3 and 4 identify
him as the
actual killer.
But it is the case of Accused 2 that brings the hearsay question
into starkest relief, since against him the only direct evidence
was
the identification of Mdunana. The trial court rightly found
Mdunana, who was independent of any of the parties, ‘a most
impressive witness who gave a clear and coherent account of what he
observed’.
52
Upon seeing accused 2 at the Katlehong Police Station less than 24
hours after their meeting, he identified him as the second
of the
two youths who came up to his door. It was accused 2 who produced
the cellphone for his inspection during the transaction.
Since the
bartering was protracted – some fifteen or twenty minutes, Mdunana
testified – he had a good opportunity to view
the faces of the two
at his door, and good reason to remember them, since the transaction
involved their returning for the balance
of the purchase price. He
was certain that they were accused 2 and 3. This identification, as
Goldstein J pointed out, is not
without value or importance, and
Mdunana convincingly withstood cross-examination on it. But the
possibility, slight though it
be, that he might have been mistaken,
makes it necessary to consider whether accused 2 should be convicted
of the murder and robbery
on the strength of the hearsay statements
of accused 3 and 4 that tie him to the scene of the crime itself.
This certainly entails ‘admitting or relying on hearsay evidence
which plays a decisive or even significant part in convicting
an
accused’,
53
and we should tread this path only if there is compelling
justification for doing so. Goldstein J carefully weighed the
factors
set out in sub-paragraphs (i)-(vii) of the section and
concluded that the interests of justice required the admission of
the hearsay
statements of accused 3 and 4 against accused 1 and 2.
He observed:
‘
The evidence
concerned so convincingly completes the mosaic of the State case that
it would be absurd to disregard it.’
54
If this conclusion is wrong, on the strength of the
McDonald’s
case
55
we must overturn it. Goldstein J’s approach to the matter was in
my view however clearly right. The first factor that requires
consideration, the fact that the proceedings are a criminal trial,
has already been emphasised (para 16 above). Regarding the
nature
of the evidence (s 3(1)(c)(ii)), Goldstein J correctly observed
56
that it related to information accused 3 conveyed –
‘
voluntarily and spontaneously, and before he had any
opportunity to fabricate. The information related to a very recent
event of
which he must have had a very clear memory and in respect of
which he had an adequate opportunity for observation. He had
personal
knowledge of the facts. There is no reason to doubt his
ability to observe and perceive properly what occurred. What he
conveyed
was uncomplicated and easy of comprehension.’
Goldstein J applied these same considerations to accused 4’s
statement, save that it occurred after the lapse of a few hours.
It is in this that the fundamental distinction between the present
case and
Ramavhale
lies.
Ramavhale
concerned a
statement of future intention attributed to the deceased by a friend
whose testimony was not assuredly disinterested.
57
The resemblances between
Ramavhale
and the recent decision
of the Canadian Supreme Court in
R v Starr
58
are striking. There the court – albeit by a bare majority of
5-4 – rejected a trial court’s reliance on a similar statement
of future intention attributed to the deceased under ‘circumstances
of suspicion’ matching those that led this Court in
Ramavhale
to similar caution. Here, by contrast, the hearsay involves a
first-hand account of a past event, relayed and recorded soon after
its occurrence, by persons not only present but participating
themselves. The vagaries attending statements of future intention
by a deceased are entirely absent.
Did accused 3 and 4 have a motive unjustly to implicate accused 1
and 2? Where the declarant is himself suspected of participation,
a
motive to implicate another falsely may be present if hearsay
emanates from a self-exculpatory statement. That is not the
position
here. The declarants were under suspicion, but they
confirmed that suspicion without ado by implicating themselves. No
motive
was suggested at the trial or on appeal for either of them
needlessly to implicate the others, and I can think of none.
Accused
4 and accused 1 are related. They stayed on the same street
in Katlehong as accused 2, and no history of past animus or present
conflict was suggested. The possibility of fabricated implication
may safely be rejected.
The purpose of the evidence (ss (1)(c)(iii)) is plainly to put
accused 1 and 2 on the scene of the crimes. This purpose is direct,
not oblique, and its attainment depends not on speculative inference
– as may be the case in statements of future intention –
but
squarely on the reliability of the hearsay. I turn then to the
question of the probative value of the hearsay (ss (1)(c)(iv)).

Here the most striking aspect is the undeniably powerful way in
which all the evidence interlinks. This includes the facts at
the
scene, the recovery of the cellphone, the discovery of the murder
weapon, the self-incriminating statements of accused 3 and
4, and
their hearsay incrimination of accused 1 and 2. There is strong
corroboration in all the other evidence for the self-incrimination
of accused 3 and 4 and for their implication of accused 1 and 2.
The recovery of the dead man’s cellphone in Mdunana’s
possession,
and Mdunana’s identification of two of the four
sellers of the cellphone as accused 2 and 3 meshes in detail with
what accused
3 and 4 told the police. What is more, accused 4, when
asked who actually took the cellphone, answered ‘Bafana’. This
confirms
strikingly Mdunana’s account that when he asked to see
the cellphone, accused 3 having done the talking until then, it was
accused
2 who produced the instrument. Similarly, the hearsay
averments of both accused 3 and 4 that it was ‘Vusi’ who fired
the fatal
shot links inexorably with the discovery of the murder
weapon in accused 1’s possession.
‘Probative 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?’ 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.
It is, in short, utterly unlikely that accused 3 and 4 would
truthfully tell the police that the murder victim, a white man at
the wheel of his Ford Cortina, was shot with a Lorcin pistol, which
was in the possession of accused 1, whereafter the cellphone
was
sold to Mdunana, without its also being true that accused 2 was one
of the robbers and that accused 1 fired the actual shot.
It is even
less likely that the two accused would implicate themselves, and
each other, and each the other two, and do so in an
account
containing each of the accurate details set out above, without the
evidence implicating accused 1 and 2 also being reliable.
In effect, we must weigh the risk that accused 3 and 4 falsely
implicated accused 1 and 2 against the likelihood that their
post-arrest
statements were in relation to those accused as reliable
as they were in every other respect. I am satisfied that the latter
is
the case. The high probative value of the evidence in this case,
and the objective guarantees of its reliability, provide the

compelling justification that must always be sought if hearsay
evidence is to play a decisive or even significant part in
convicting
an accused.
It is obvious why accused 3 and 4 did not at the trial give the
evidence implicating accused 1 and 2 ((ss (1)(c)(v)): they recanted
their post-arrest disclosures and sought to take refuge (unwisely,
as it proved) in self-protective evasion and fabrication.
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 3 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.
59
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 its just

evidential weight once admitted
60
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’.
61
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.
Goldstein J also considered that the fact that accused 3 and 4 had
testified, and could be cross-examined on their statements,
entailed
that there was no procedural prejudice to the other accused.
62
I cannot agree. The entitlement to cross-examine a hearsay
declarant called at the trial who disavows the previous statement
is
almost entirely illusory. In the present trial, given the radical
disavowal of their statements by accused 3 and 4 (they denied
not
just implicating accused 1 and 2, but making any statements to the
police at all; accused 4 even denied his signature on his
statement), the opportunity to cross-examine them on the original
declarations was of no material worth. In this accused 1 and
2 were
patently prejudiced. But, as Goldstein also observed, where the
interests of justice require the admission of the hearsay,
the
provision ‘does not require the absence of all prejudice’.
63
This conclusion is clearly right.
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.
Once the evidence is admitted, the case against accused 1 becomes
overwhelmingly strong. He is convicted of murder as the actual
killer, and of participation in the robbery as one of its prime
protagonists. Accused 2 is placed on the scene as a robber
intimately
associated with all that happened there. The reasoning
in relation to accused 3 and 4 (paras 31 and 32 above) apply also to
him,
and his false evidence and fabricated alibi likewise conduce to
the conclusion of guilty participation.
The accused were all therefore rightly convicted of murder and of
robbery with aggravating circumstances.
Sentence
Goldstein J sentenced the accused before the decision in
S v
Malgas
,
64
where this Court held that the
Criminal Law Amendment Act 105 of
1997
permitted a sentencing court to take into account all
considerations traditionally relevant to sentence.
65
Counsel for the State accordingly conceded that the adoption in
the trial court of the pre-
Malgas
approach entitled this
Court to intervene in the sentences imposed. While no broad range
of considerations of compelling mitigation
were presented to the
court, and the accused’s lack of remorse (stemming from their
continued denial of all involvement) counts
against them, I am of
the view that in each of their cases a sentence less than the
prescribed sentence is justified.
Accused 1, though he pulled the trigger, was not yet twenty when he
murdered the deceased. His youth is a consideration of substance
compelling the imposition of a lesser sentence. The same apples in
the case of accused 3 (only 18 at the time of the crime) and
more
especially in the case of accused 4 (17 at the time). Although
accused 2 was older than the others (24 years), I consider
that in
his case, as in the case of accused 3 and 4, the fact that oblique
intent to kill was proved (
dolus eventualis
) counts as a
mitigating factor of substance.
In the result:
The appeals of all the appellants against the convictions are
dismissed.
The appeals of each of the appellants against the sentences imposed
upon them on the counts of murder and robbery are allowed,
and
those sentences are set aside. In their place, the following
sentences are imposed:
Accused
1 is sentenced to 25 years for the murder, and to ten years for
the robbery.
Accused 2 is sentenced to 18 years for the murder, and ten years
for the robbery.
Accused 3 is sentenced to 18 years for the murder and ten years
for the robbery.
Accused 4 is sentenced to 15 years for the murder and eight years
for the robbery.
All
the sentences imposed upon the accused are to run concurrently.
In terms of
s 282
of the
Criminal Procedure Act, 51 of 1977
, the
sentences imposed upon the accused are antedated to the date upon
which they were originally sentenced, 29 September 2000.
E CAMERON
JUDGE OF APPEAL
HARMS JA ) CONCUR
HEHER AJA )
1
S v Ndhlovu and others
2001 (1) SACR 85
(W).
2
Robbery with aggravating circumstances as described in
section 1
of
the
Criminal Procedure Act, 51 of 1977
.
3
In contravention of
sections 2
and
36
read with sections 1 and 39 of
the Arms and Ammunition Act 75 of 1969.
4
In terms of the
Criminal Law Amendment Act 105 of 1997
.
5
In terms of section 32(2)(a) of the Correctional Services Act 8 of
1959 all determinate sentences run concurrently with a sentence
of
life imprisonment. Goldstein J ordered that the sentences imposed
on accused 4 run concurrently.
6
2001 (1) SACR 85
(W) paras 62-63.
7
2001 (1) SACR 85
(W) at para 50.
8
Section 216 before its repeal read:
‘Except where this Act
provides otherwise, no evidence which is of the nature of hearsay
evidence shall be admissible if such
evidence would have been
inadmissible on the thirtieth day of May 1961.’ In effect, the
English law relating to hearsay evidence
as it was on 30 May 1961
applied.
9
Mdani v Allianz Insurance Ltd
[1990] ZASCA 119
;
1991 (1) SA 184
(A), S v Ndlovu
1993
(2) SACR 69
(A), S v Ramavhale
1996 (1) SACR 639
(A), McDonald’s
Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and another
1997 (1) SA 1
(A), Makhathini v Road Accident Fund
2002 (1) SA 511
(SCA).
10
S v Ngwani
1990 (1) SACR 449
(N) (conviction of unrepresented
accused for dealing in dagga, on basis of policeman’s evidence
that at time of arrest bus conductor
had identified bag of dagga as
belonging to accused, set aside on review because magistrate omitted
to explain the implications
of the statute to accused);
S v
Dyimbane and others
1990 (2) SACR 502
(SE) (evidence as to
statements of the two deceased indicating that they were municipal
police recruits, which evidence was tendered
to prove that it was
the deceased who were killed, admitted);
S v Cekiso and another
1990 (4) SA 20
(E) (application in course of trial for admission of
hearsay evidence on ‘controversial issues upon which conflicting
evidence
has already been given’ refused);
S v Mpofu
1993
(3) SA 864
(N),
1993 (2) SACR 109
(N) (appeal from conviction of
culpable homicide allowed where trial court had relied in convicting
accused on evidence that passer-by
gave to witness on slip of paper
the number of vehicle that collided with the deceased, since the
possibility of mistake on the
part of the transcriber loomed large);
S v Aspeling
1998 (1) SACR 561
(C) (opinion of pathologist
who had conducted already admitted post-mortem report tendered from
bar by prosecutor admissible because
appellant’s attorney had
accepted evidence in this form). The 1988 Act does not appear to
have been introduced into Bophuthatswana:
compare
S v Banda and
others
1990 (3) SA 466
(BGD) 506-7.
11
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai
Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1)
SA 545
(CC) paras 21-26;
S v Dzukuda and Others; S v Tshilo
2000 (4) SA 1078
(CC) para 37(a);
Olitzki Property Holdings v
State Tender Board and Another
2001 (3) SA 1247
(SCA) para 20;
Govender v Minister of Safety and Security
2001 (4) SA 273
(SCA) para 10.
12
Section 39(2) of the Bill of Rights provides that ‘When
interpreting any legislation, … every Court… must promote the
spirit,
purport and objects of the Bill of Rights.’
13
Compare the definition adopted in
S v Holshausen
[1984] ZASCA 100
;
1984 (4) SA
852
(A) 858F and see
Subramaniam v Public Prosecutor
[1956] 1
WLR 965 (PC) 970.
14
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 High 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 manner of trial. One
very important reason why
the common law set 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.’
15
Vulcan Rubber Works (Pty) Ltd v South African Railways and
Harbours
1958 (3) SA 285
(A) 296F (Schreiner JA).
16
S v Ramavhale
1996 (1) SACR 639
(A) at 647
d
-
e
per
Schutz JA.
17
Vulcan Rubber
at 296H.
18
2002 (1) SA 511
(SCA).
19
para 21, per Navsa JA.
20
See Nico Steytler
Constitutional Criminal Procedure
(1998) p
352.
21
Carmichele v Minister of Safety and Security and Another (Centre
for Applied Legal Studies intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para
56.
22
Du Toit and others
Commentary on the
Criminal Procedure Act
(3
rd
reprint 1993, with updates) 24-50
23
Hewan v Kourie NO and another
1993 (3) SA 233
(T) 239E-F.
24
1996 (1) SACR 639 (A) 647-8.
25
1996 (1) SACR 639
(A) 649
d
-
e
.
26
Bill of Rights
s 35(3).
27
">
27
S v Zimmerie en ‘n ander
1989 (3) SA 484
(C) 492F-H
(Friedman J, Tebbutt and Conradie JJ concurring).
28
S v Ramavhale
1996 (1) SACR 639
(A) 651
c
.
29
1990 (1) SACR 449
(N).
30
450
d
(Wilson J concurring).
31
1993 (2) SACR 69
(A) 73
b
.
32
1996 (1) SACR 639
(A).
33
1996 (1) SACR 639
(A) 651
b
-
e
.
34
McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty)
Ltd and another
1997 (1) SA 1
(A) 27E (EM Grosskopf JA, Corbett
CJ, Nestadt JA, Schutz JA and Plewman AJA concurring).
35
1993 (2) SACR 69
(A) 73
b
(Goldstone JA, Botha and Vivier JJA
concurring).
36
See Harms
Civil Procedure in the Supreme Court
(1990) T19.
37
Insofar as
Metedad v National Employers’ General Insurance Co
Ltd
1992 (1) SA 494
(W) 498I may suggest otherwise it must be
considered incorrect.
38
In terms 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’.
39
R v Khan
[1990] 2 SCR 531
(SCC).
40
R v Smith
[1992] 2 SCR 915
,
94 DLR 590
(SCC) 602
c
-e.
41
Section 35(3): ‘Every accused person has the right to a fair
trial, which includes the right – … (i) to adduce and challenge
evidence’. Compare the interim Constitution, Act 200 of 1993, s
25(3)(d).
42
Nico Steytler
Constitutional Criminal Procedure
(1998) p 350,
citing
S v Ramavhale
1996 (1) SACR 639
(A) 649
g
-
h
.
43
Chaskalson and others
Constitutional Law
ch 27 ‘Criminal
Procedure’ 27-94A (F Snyckers). De Waal and others
The Bill of
Rights Handbook
(4ed 2001) do not address the question.
44
Compare
S v van der Sandt
1997 (2) SACR 116
(W) 132
b
-
f
.
45
Mattox v United States
[1895] USSC 34
;
156 US 237
243-4 (1895); ‘It was not
argued, nor could it be, that the constitutional right to
confrontation requires that no hearsay evidence
can ever be
introduced’:
Dutton v Evans
400 US 74
80 (1970), per
Stewart J. See John G Douglass ‘Beyond Admissibility: Real
Confrontation, Virtual Cross-examination, and the
Right to Confront
Hearsay’ (1999) 67
George Washington LR
191. The author
refers at 196 to ‘the increasing variety of admissible hearsay’
in the United States.
46
White v Illinois
[1992] USSC 9
;
502 US 346
, 356 (1992) (Rehnquist CJ, White,
Blackmun, Stevens, O’Connor, Kennedy and Souter JJ concurring).
47
Ohio v Roberts
448 US 56
64-66 (1980) (Blackmun J, Burger CJ,
Stewart, White, Powell and Rehnquist JJ concurring). Rule 801 of
the Federal Rules of Evidence,
accessible at
http:/www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=[jump!3A!27rule801!27]/doc/{@237}?,
regulates the admission
of hearsay evidence.
48
2001 (1) SACR 85
(W) para 50. See also para 58, and compare Schmidt
and Rademeyer
Schmidt Bewysreg
(4 ed 2000) pages 476, 483.
49
See para 18 above and contrast
S v Ramavhale
1996 (1) SACR
639
(A) 651
c
-
e
.
50
The hearsay question arose partly in such circumstances in
R v
Starr
(2000) 190 DLR (4
th
) 591 (SCC).
51
Rule 801(c) of the United States Federal Rules of Court avoids this
difficulty by defining hearsay as ‘a statement, other than
one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted’.
52
2001 (1) SACR 85
(W) para 37.
53
S v Ramavhale
1996 (1) SACR 639
(A) 649
d
-
e
.
54
2001 (1) SACR 85
(W) para 54.
55
McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty)
Ltd and another
1997 (1) SA 1
(A) 27E.
56
2001 (1) SACR 85
(W) para 53.
57
1996 (1) SACR 639
(A) 649
i
-
j
.
58
(2000) 190 DLR (4
th
) 591 (SCC).
59
S v Ramavhale
1996 (1) SACR 639 (A) 650-1.
60
S v Dyimbane and others
1990 (2) SACR 502
(E) 505
b
-
c
(‘Clearly, any evidence which establishes a crime is prejudicial
to the accused’).
61
2001 (1) SACR 85
(W) para 57.
62
Para 58.
63
Para 59.
64
2001
(2) SA 1222
(SCA),
2001 (1) SACR 469
, endorsed as ‘undoubtedly
correct’ in
S v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC), paras 11 and 40
(Ackermann J).
65
Paras
9-10.