Summary of Judgment

Introduction

The proceedings were interlocutory in nature within an ongoing criminal trial involving twenty accused. The immediate issue before the Western Cape High Court, Cape Town, was the handling and admission (or deferred evaluation) of hearsay evidence, namely a witness statement made by a deceased person, which the State sought to place before the trial court.

The parties were the State as prosecuting authority and Elton Lenting and 19 others as accused persons in case number CC08/2018. The ruling was delivered by Lekhuleni J on 31 July 2023.

As to procedural history, during the continuation of the pending trial on 27 July 2023, the State tendered a statement made under CAS 464/09/2014 by Brandon Ashley David, who had since died. The State, by agreement with the defence, handed in the deceased’s death certificate and identification document, and then called Sergeant Zolane Damase (the officer who commissioned the statement) to identify and confirm the statement. Before the statement could be read into the record, certain defence counsel objected, contending that the State was required to bring a substantive application meeting the requirements of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, and that a decision on admissibility should be made at that stage rather than later.

The general subject-matter of the dispute concerned the correct approach, post–Constitutional Court authority, to hearsay evidence in the form of a deceased person’s statement, and in particular when and how a trial court should apply the statutory “interests of justice” criteria under section 3(1)(c).

Material Facts

It was common cause that the criminal trial against the twenty accused was pending and had not been concluded. It was also undisputed that the State sought to tender a statement made by Brandon Ashley David, and that he was deceased at the time the State sought to use the statement.

It was further undisputed that the State handed in, by agreement with the defence, the deceased’s death certificate and a copy of his identification document. The State then called Sergeant Zolane Damase, who testified that he had 17 years’ experience as a police officer stationed at Delft SAPS and that he had commissioned the statement on 13 September 2014 at 23h50. The statement was identified as bearing the relevant CAS number.

Sergeant Damase confirmed that the handwriting on the statement was his and that it was the deceased’s statement. However, he testified that he had no independent recollection of taking the statement from the deceased, beyond what appeared from the document.

The material dispute did not concern the content of the statement at this stage, but rather the procedure and timing for admitting and evaluating the statement. Counsel for some accused objected to the statement being handed in and read into the record without a substantive application satisfying section 3(1)(c). Another objection, advanced on different grounds, was that admissibility should be determined immediately to avoid prejudice to the accused, rather than being left for determination later when the evidence as a whole would be assessed.

The State contended that, following the Constitutional Court’s decision in S v Kapa, a holistic approach was required, and that the assessment under section 3(1)(c) should be undertaken when the totality of evidence was evaluated rather than through a piecemeal or isolated determination at the point of tendering the statement.

Legal Issues

The central legal question was how a trial court should deal with hearsay evidence in the form of a deceased person’s statement in light of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 and the Constitutional Court’s decision in S v Kapa 2023 (1) SACR 583 (CC).

A closely related question was at what stage the trial court should consider and apply the jurisdictional requirements in section 3(1)(c): whether the court should determine admissibility immediately (in effect through a separate enquiry akin to a “trial within a trial”), or whether the court should receive the statement and defer the section 3(1)(c) evaluation until the end of the trial when all evidence could be considered together.

The dispute concerned primarily the application of law to procedure and the proper method of evaluating hearsay in a criminal trial, implicating a measure of value judgment under the “interests of justice” standard in section 3(1)(c). It also engaged fair-trial considerations insofar as the accused asserted prejudice arising from uncertainty about admissibility during the conduct of their defence.

Court’s Reasoning

The court accepted, as a point of departure, that S v Kapa did not abolish or dispense with the statutory framework in section 3(1)(c) of the Law of Evidence Amendment Act. The court held that hearsay evidence in the form of a deceased person’s statement may not be admitted for purposes of proof unless either it is admitted by agreement under section 3(1)(a) or the jurisdictional requirements under section 3(1)(c) are satisfied.

The court identified that the practical controversy arising after Kapa was not whether section 3(1)(c) remained applicable, but rather how and when a court should undertake the section 3(1)(c) assessment. The court characterised the competing positions as two approaches: one requiring an immediate and discrete admissibility determination (associated in argument with a “trial within a trial”), and the other requiring deferral of the section 3(1)(c) assessment until the court evaluates the evidence in its entirety.

In resolving that procedural question, the court relied on the Constitutional Court’s rejection, in Kapa, of a piecemeal evaluation of a deceased statement’s probative value. The court referred to the majority judgment’s statement (at paragraph 98 of Kapa) that a court should instead adopt a holistic approach, assessing whether, “on the whole,” the statement is of adequate probative value in light of all other circumstantial evidence considered together. On this basis, the court reasoned that a deceased person’s statement should be considered in conjunction with other evidence, including circumstantial, direct, and documentary evidence, to determine whether admitting it would be in the interests of justice.

The court further explained the nature of the holistic evaluation by reference to how the Constitutional Court in Kapa considered corroborative material (including objective evidence such as DNA and medical/pathological evidence) together with the deceased statement, and rejected a fragmented approach to reliability and probative value. In the present court’s view, the method endorsed in Kapa required that the statement’s reliability and probative value be assessed against the totality of the evidence.

On the question of prejudice and fair-trial rights raised by the defence, the court considered the Constitutional Court’s approval in Kapa of the Supreme Court of Appeal’s reasoning in S v Ndhlovu 2002 (6) SA 305 (SCA). The court noted the SCA’s holding that the Constitution does not guarantee an entitlement to subject all evidence to cross-examination; rather, it guarantees a right to challenge evidence, which in the context of hearsay includes resisting its admission and scrutinising reliability and probative value. The court highlighted the proposition that section 3(1)(c), interpreted consistently with constitutional values, serves as a safeguard against unregulated admission of hearsay, and that where the interests of justice require admission, no constitutional right is infringed.

The court also relied on Ndhlovu for the view that a just verdict based on evidence admitted because the interests of justice require it cannot constitute prejudice, and that the strengthening of an opposing case cannot, in itself, count as prejudice for statutory purposes once the court has concluded that reliability justifies admission.

Applying these principles, the court concluded that the State’s procedure in tendering the statement could not be faulted. The court held that, while the section 3(1)(c) requirements must be satisfied before the court can attach weight to the statement for purposes of proof, that evaluative exercise should occur during the analysis of all evidence at the end of the trial, consistent with the holistic approach mandated by Kapa, rather than through the immediate and piecemeal approach advanced by the objecting accused.

Outcome and Relief

The court rejected the approach that required an immediate admissibility determination akin to a “trial within a trial” and accepted that the section 3(1)(c) evaluation should be undertaken later when all evidence is assessed holistically.

The defence objections to the handing in of the deceased’s statement, and to it being read into the record at that stage, were overruled. No costs order was made in the ruling.

Cases Cited

S v Kapa 2023 (1) SACR 583 (CC).

S v Ndhlovu 2002 (6) SA 305 (SCA).

Legislation Cited

Law of Evidence Amendment Act 45 of 1988, section 3(1)(a) and section 3(1)(c).

Constitution of the Republic of South Africa, 1996, section 35(3)(i) and section 36.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the Constitutional Court’s decision in S v Kapa 2023 (1) SACR 583 (CC) did not abolish the requirements of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, but it did materially affect the approach to evaluating hearsay statements by deceased persons.

The court held that the probative value, reliability, and “interests of justice” assessment under section 3(1)(c) should not be undertaken in a piecemeal fashion at the point when the statement is tendered. Instead, the court must adopt a holistic approach by considering the deceased’s statement together with the totality of the evidence (including circumstantial, direct, and documentary evidence) when the evidence is evaluated as a whole.

The objections to the State’s tendering of the deceased’s statement at that stage were overruled, with the court indicating that the section 3(1)(c) evaluation is to be addressed during the overall assessment of the evidence.

LEGAL PRINCIPLES

The statutory regime for admitting hearsay evidence in criminal proceedings remains governed by section 3 of the Law of Evidence Amendment Act 45 of 1988. A deceased person’s hearsay statement may be admitted by agreement under section 3(1)(a), or otherwise only if admission is justified under section 3(1)(c) on an “interests of justice” basis.

Following S v Kapa 2023 (1) SACR 583 (CC), the evaluation of a deceased person’s hearsay statement should not be conducted through a fragmented or piecemeal assessment of probative value. The court must adopt a holistic approach, evaluating the statement’s reliability and probative value in the context of the entire body of evidence, including corroborative circumstantial and objective evidence.

Fair-trial rights do not entail an absolute entitlement to subject all evidence to cross-examination. In relation to hearsay, an accused has the right to challenge evidence, including resisting admission and scrutinising reliability and probative value; however, where the interests of justice require admission of hearsay (constitutionally measured), admission does not in itself infringe the accused’s constitutional rights, as reflected in S v Ndhlovu 2002 (6) SA 305 (SCA) as approved in Kapa.