1
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA HELD AT PALMRIGDE)
CASE NUMBER: CC 15/2022
1) REPORTABLE:____
2) OF INTEREST TO OTHER JUDGES: ___
3) REVISED.
DATE 18 May 2026
SIGNATURE
In the matter of:
THE STATE
versus
MARTIN ROBIN AND 7 OTHERS
JUDGEMENT
(Admission of Hearsay Evidence)
[1] Warrant Officer Jack Mills (hereinafter referred to as “Mills”) testified on 10
September 2024 that, on 12 December 2018, he received a call from one Mr Louis
Jacobus van Sandwyk (hereinafter referred to as “van Sandwyk”), who told him that
he had received a call from a person who called himself Willem from Namibia.
2
Willem told him (van Sandwyk) that he wanted to buy a car from him (van Sandwyk).
According to Mills, van Sandwyk’s cell phone number that he used to call him was
0[...].
[2] Mr van Sandwyk was not called by the prosecution to confirm what Warrant
Officer Mills said to him.
[3] So, as it stands, the evidence that van Sandwyk was called by Willem and stated
what Mills testified about in this court is hearsay evidence as defined in section 3(4)
of the Law of Evidence Amendment Act, Act 45 of 1988 (hereinafter referred to as
“the Hearsay Act”), which defines hearsay evidence as:
“Evidence, whether oral or in writing, the probative value of which depends
upon the credibility of any person other than the person giving such
evidence.”
[4] If I understand the State’s application correctly, the evidence that we are dealing
with here is the evidence by Mills of what van Sandwyk said to him.
[5] The State filed an application in terms of section 3(1)(c) of the Hearsay Act to
have the evidence of Mr van Sandwyk admitted as evidence in this matter.
[6] Section 3 of the Hearsay Act provides:
“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
3
(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 the
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 interest 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.”
[7] The courts’ interpretation of the above provisions over the years was
summarised in the minority judgment in Kapa v S (CCT 292/21) 2023 (1) SACR
583 (CC) (24 January 2023) , when it held that: “Courts are generally hesitant to
admit hearsay evidence that is decisive in convicting the accused. The Supreme
Court of Appeal in Ndlovu stated that ‘admitting or relying on hearsay evidence
which plays a decisive or even significant part in convicting an accused’ should
only be done ‘if there is compelling justification for doing so’.”
4
[8] Both Advocate Marriott for the State and Mr Motloung for the defence agree,
correctly so, that what van Sandwyk told Mills does not amount to an attempt to
commit an offence, let alone the commission of an offence. This evidence is a far cry
from the hearsay evidence that was tendered in the Kapa matter.
[9] Mr Motloung, in his submission on behalf of accused 7, exclusively relied on the
minority judgment in Kapa. That is not incorrect. However, this court, because of the
doctrine of stare decisis, is bound to follow the majority judgment. The minority
judgment criticised the trial court and the Supreme Court’s admission and eventual
conviction of Mr Kapa based on the hearsay evidence of the deceased, Ms Dasi,
whose sole evidence incriminated Mr Kapa.
[10] The majority judgment, in turn, criticised the minority judgment for impermissibly
evaluating the probative value of the statement in a piecemeal fashion instead of
applying a holistic approach in assessing whether, on the whole, the statement was
of adequate probative value in light of the other circumstantial evidence taken
together.
[11] Majiedt J, giving judgment on behalf of the majority, stated at paragraph 77 that:
“The factors listed in section 3(1)(c) (of the Hearsay Act) must be viewed
holistically and weighed collectively in determining whether it is in the interest
of justice to admit the hearsay evidence.”
[12] At paragraph 79, it is stated that:
“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.”
[13] The learned judge states further at paragraph 80 that: “There are a number of
factors relevant to the reliability question, namely:
(a) any interest in the outcome of the proceedings by the witness;
5
(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.”
[14] In the present matter, Mills’ interest in the outcome of the proceedings is very
minimal, if there is any. Other than the fact that he was a member of the
investigating team from the intelligence side of the investigations, it has not been
established that he would have had any other interest in the outcome of the
proceedings. He neither knew Willem nor van Sandwyk.
[15] Mills’ evidence is circumstantially corroborated by the fact that Mills and
Willem met because of this hearsay evidence. Because of this hearsay evidence,
Mills phoned Willem and the two subsequently met at Makro, Vanderbijlpark.
There is no other evidence, under oath, before this court which shows how Mills
and Willem would have met at the said place. The evidence is further
corroborated by how Mills and Willem identified each other at the place where
they met.
[16] There is proof of contemporaneity and spontaneity in that, according to Mills,
after his telephone conversation with van Sandwyk, he phoned Willem and they,
Mills and Willem, immediately met thereafter. It must be noted that accused 7
does not deny that he met with Mills and was arrested by Mills.
[17] According to Mr Motloung, there is no evidence adduced by Warrant Officer
Venter, the cell phone analyst, to show that there was communication between
Mills and Willem. On a perusal of paragraph 19 of Warrant Officer Venter’s
report, exhibit VV1, Mills’ cell phone number, 0[...], is not shown as one of the
numbers that were analysed by Venter. The cell phone number 0[...] is also not
reflected as one of the numbers analysed by Venter. Therefore, one cannot
outright say that there was no communication between Mills and Willem.
6
[18] According to the majority judgment in Kapa, it is not required that every
material aspect of the statement must be corroborated. The requirement is that
there must be corroboration of every material aspect of the statement or
corroboration of a significant number of material aspects. In the latter instance, all
the aspects of the statement that have not been corroborated by other pieces of
evidence, first, must not contradict other objectively proven facts and, second,
must fit into the picture that has been established by all the other objectively
proven facts.
[19]The fact that Mills’ evidence is circumstantially corroborated by the fact that
he conversed with Willem and, as a result thereof, they met at Vanderbijlpark on
12 December 2018 points to its truthfulness, reliability and probative value. In S v
Cupido (1257/2022) [2024], the court approved of the dictum in S v Ndlovu and
Others [2002] ZASCA 70; 2002 (3) All SA 760; 2002 (6) SA 305 , where it was
pointed out by the court that:
“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 common justification for admitting the hearsay evidence in
the present case is the numerous pointers to its truthfulness.”
[20] These proceedings are indeed criminal proceedings. As has been said, this
court will have to tread carefully and exercise extreme caution in the evaluation of
the issues in this matter.
[21] The degree of hearsay of the statement in this case is very minimal. As has
been stated, it does not come near to any proof of any offence being committed
by Willem. It does not even come near the modus operandi allegedly used by the
suspects in the alleged commission of the other offences except for the phone
call and the offer to purchase an advertised motor vehicle. For all we know, it
7
might have been a genuine call to purchase the motor vehicle. The statement, as
it stands, on its own, does not prove the guilt of the accused at all and I therefore
find that there is minimal prejudice to the accused.
[22] Mills’ evidence explains why and how he and Willem met each other. The
statement establishes why Mills went to the meeting place and, of course, how he
and Willem identified each other. As things stand, as has been pointed out, there
is no other evidence under oath which explains how and why Mills and Willem
met except Mills’ evidence. There is therefore no basis upon which this court may
reject Mills’ evidence.
[23] It is so that the court should take into account why the person upon whom
the probative value of the evidence lies does not himself testify. The Act does not
specify the instances that the court may consider as excusable to explain why the
witness is not called to testify in the matter. That is left to the discretion of the trial
court. There have been instances where the hearsay statement has been
admitted as evidence against an accused where the witness was present in court
but recanted the prior statement that he made to the police, see S v Rathumbu
[2012] ZASCA 51; 2012 (2) SACR 219 (SCA); S v Mathonsi [2011] ZAKZPHC
33; 2012 (1) SACR 335 (KZP); Mawanda Makhala and Another v Director of
Public Prosecutions, Western Cape [2024] ZACC 28 . In the Kapa matter, the
witness passed away before the trial started. See also S v Lenting and Others
2023 ZAWCHC 221.
[24] Sergeant Leisa testified that van Sandwyk has immigrated to the United
States of America. There are no reasons why this court may doubt the evidence
of Sergeant Leisa. Mr Motloung questioned why van Sandwyk may not be
subpoenaed to travel from wherever he is to come and testify in this court, or why
a commission de bene esse cannot be established to take the evidence of Mr van
Sandwyk wherever he is in the United States of America.
Sandwyk wherever he is in the United States of America.
[25] As has been alluded to earlier, the hearsay statement in issue in this matter
is an innocuous statement of a person wanting to purchase a motor vehicle
advertised for sale. It neither points to the commission of a crime nor to the
8
alleged modus operandi allegedly used to commit the other offences. At worst, it
raised a suspicion. That is all. It really does not justify the payment of the
exorbitant expenses of flying van Sandwyk from the United States of America,
payment for hotel accommodation and other expenses. Neither does it justify the
expenses of setting up a commission de benne esse.
[26] Interestingly, in the Lenting case, Lekhuleni J found that the Constitutional
Court in the Kapa matter changed how the courts should approach the admission
of a hearsay statement. He found that there is no need for the State to bring a
separate application for the admission of the hearsay statement but must simply
lead evidence of the existence of the statement and submit it as an exhibit during
the presentation of its case (the State’s case).
[27] In the Lenting matter, the State led the evidence of the police officer who
took the deceased’s statement and wanted the officer to read the statement and
hand it over to the court as an exhibit. The defence objected and wanted the
State to bring a formal application for the admission of the statement. The
prosecution argued that the Constitutional Court in the Kapa matter had ruled
that there is no need for a separate application for the admission of the
statement.
[28] The learned judge states as follows at paragraph 7:
“From the submissions made by the various counsel in this case, I gathered
that there are different opinions on how the court should deal with such a
matter following the decision of the Constitutional Court in Kapa. There are
two schools of thought holding divergent views.
(8) The first school of thought believes that the State must make its
application, and the court must consider the section 3(1)(c) jurisdictional facts
and decide whether it accepts it. Simply put, this school believes that the court
must hold a trial within a trial and decide whether to admit the statement,
must hold a trial within a trial and decide whether to admit the statement,
while the second school of thought believes that the court should only
9
consider the jurisdictional facts set out in section 3(1)(c) of the Act when it
evaluates the entire evidence.
(9) In my view, there is far more force in the argument that the Kapa decision
has significantly changed the approach the court must follow when
considering evidence in the form of a deceased’s statement.…
(15) In my view, the procedure that the State followed in the present matter in
handing in the deceased’s statement cannot be faulted. For the court to attach
weight to this statement, the jurisdictional facts set out in section 3(1)(c) of the
Law of Evidence Amendment Act must be satisfied. In my opinion, that should
happen during the analysis of the entire evidence. In evaluating the evidence,
the court must adopt the holistic approach and consider the evidence in its
totality with the hearsay statement to determine its truthfulness, reliability and
probative value. In summary, I agree with Mr Klopper and Mr Damon that the
evaluation in terms of section 3(1)(c) should be considered later when all the
evidence is evaluated. Therefore, the view espoused by the first school of
thought falls to be rejected. Thus, the objection is hereby overruled.”
[29] I express no view on the correctness or otherwise of the approach by the
learned judge in the Lenting matter. It is interesting that Thulare J of the same
Western Cape Division did not adopt the same approach in the matter of S v
Beja [2023] ZAWCHC 113 . This court is content with the approach we adopted
in this matter.
[‘30] This brings me to the submissions made by Mr Motloung in respect of the
application filed by the State during September 2024, in which it sought to apply
for the admission of van Sandwyk’s statement in terms of section 3(1)(c) of the
Hearsay Act. The State later sought to abandon that application and brought a
new application through which it sought the admission as evidence of the
evidence of Warrant Officer Mills that van Sandwyk told him that Willem phoned
evidence of Warrant Officer Mills that van Sandwyk told him that Willem phoned
him and told him that he wanted to buy the motor vehicle advertised for sale by
van Sandwyk on OLX.
10
[31] Mr Motloung objected to the withdrawal of the said statement and argued
that the State ought to have submitted an affidavit in terms of Rule 28 of the
Uniform Rules of the Superior Court, in which affidavit the State should set out
the reasons for the withdrawal or abandonment of the said application.
[32] I do not intend to be long-winded on this aspect as, in my view, it does not
take the matter anywhere. At the end of the day, this court cannot make an
order which it is unable to enforce. This is in line with the common -law
doctrine of effectiveness, which essentially states that a court shall not
exercise jurisdiction over a matter unless it can give an effective judgment. In
other words, a court can only grant an order where compliance therewith can
be expected and where non -compliance therewith can be dealt with
accordingly in terms of South African law, see Veneta Minereria Spa v
Carolina Collieries (PTY) Ltd 1987 (4) SA 883(A) at 893F.
[33] This court cannot force the State to move an application which the State
does not want to proceed with further. The court cannot force the State not to
abandon an application. What law is this court going to apply if the State does
not carry out such order? I therefore find that the objection by Mr Motloung is,
with respect, not helpful in this instance. I can understand his frustration but
can unfortunately not make an ineffective order.
[34] I have already addressed the jurisdictional requirements of section 3(1)(c)
of the Hearsay Act and, without regurgitating what the court considered earlier,
it should be emphasised that these are, of course, criminal proceedings.
Therefore, the court should be hesitant to admit hearsay evidence, especially
where the conviction of the accused will solely result from such hearsay
evidence. Both the State and the defence counsel have agreed, correctly so,
that the statement is inconsequential and causes very little, if any, prejudice to
the accused.
11
[35] I am of the view that, holistically taken and weighed collectively, all the
factors in this matter point to the conclusion that it is in the interest of justice
to admit the hearsay evidence in this matter.
[36]It is therefore ruled that the evidence adduced by Warrant Officer Jack
Mills, namely that Mr Louis Jacobus van Sandwyk telephoned him and
advised him that a person named Willem from Namibia telephoned him and
advised him that he wanted to buy a motor vehicle from him that he had
advertised for sale on OLX, is admitted as evidence.
Dated at Palmridge on this 18 May 2026
___________________________________
JJ Mlotshwa AJ
Acting Judge, Gauteng High Court, Pretoria