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[2026] ZAGPJHC 1064
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Goliath v S (A2025/226222) [2026] ZAGPJHC 1064 (28 August 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO: A2025/226222
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED.
In the matter between:
GOLIATH,
ANVER ALFRED
Appellant
And
THE
STATE
Respondent
CORAM:
MABESELE J AND KARAM AJ
JUDGMENT
MABESELE J (KARAM AJ
concurring):
[1]
The appellant, Mr Goliath Alfred, was convicted in the regional
court, Vosloorus,
on
a charge of attempted murder, read with the provision of s 51(2) of
the Criminal Law Amendment Act
[1]
.
He was sentenced to 12(twelve) years imprisonment. He was
legally represented throughout the trial.
[2]
Aggrieved by the conviction and sentence imposed upon him, Mr.
Goliath sought leave to appeal to this Court against the conviction
and sentence. Leave to appeal was granted against both the conviction
and sentence.
[3]
Mr. Goliath contends,
inter alia
, that the statements of the
complainant; Clifford Ruiters (now deceased) ought not to have been
admitted by the
court a quo
as part of evidence for the
state. The reason being that the statements constitute hearsay
evidence, and that the
court a quo
has attached too much
weight to them. Mr. Goliath contends further that his
corroborated version should have been accepted
as reasonably possibly
true.
[4]
In his plea-explanation, tendered in terms of s115 of the Criminal
Procedure Act (“the CPA”)
[2]
Mr. Goliath stated that on 18 October 2020 he was at the park with
the deceased and other friends and family members. He
and the
deceased had an argument whereafter the deceased swore at him.
He and Mr. Roger Adams left. On their way to his car
he heard
gunshots and drove away. He denied that he shot the deceased.
[5]
The deceased passed away before the trial commenced in the
court
a quo
.
He was shot and killed in an incident unrelated to this matter.
Before his untimely death, the deceased made several
statements to
the police, explaining how it came about that Mr. Goliath shot him on
18 October 2020. His demise triggered
an application by the
state for admission into evidence of the statements in terms of s
3(1)(c) of the Law of Evidence Amendment
Act
[3]
.
The application was granted and the statements were admitted as part
of the evidence of the state. Two of the statements
are
relevant to this matter.
[6]
In the first statement dated 20 October 2020, the deceased stated
that Mr. Goliath accused him of swearing at him and
fired two shots
in the air. Mr. Goliath took two steps backward and shot him
twice in the stomach as he turned with the intention
to walk away.
[7]
In the second statement dated 10 November 2020, he stated that he
heard Mr. Goliath saying he wants to shoot someone.
Mr. Goliath took
out a firearm and pointed it at his head. He decided to leave. Mr
Goliath approached him and accused him of swearing
at him. Thereafter
Mr. Goliath shot him in the stomach.
[8]
Mr. Kevin Clyde Koopman testified that he is in the employ of Netcare
911. He is a medic. He is stationed at the
call center in
Sunninghill. He usually accompanies the paramedics when called to
attend to emergencies in the community.
[9]
On 18 October 2020, Mr. Koopman was at his place of residence at
Reiger Park, when he received a call from members of
the community,
informing him that someone by the name of Clifford Ruiters was shot.
He went to the crime scene. Upon arrival at
the crime scene he found
a man lying on the ground at the public park. The area or public park
was dark. Mr. Koopman used a torch
to see what was happening. The
light from the nearby houses could not reach the park.
[10]
Mr. Koopman testified that the deceased told him that he was shot. He
noticed an injury on the abdomen. He arranged for the
ambulance to
take the deceased to the hospital.
[11]
Mr. Ronald Ntsoane testified that he is a policeman in the employ of
the South African Police Services. He is stationed at
Reiger Park
police station. He was the investigating officer in this matter. He
took several statements from the deceased.
[12]
After the state had closed its case, Mr. Goliath applied for his
discharge in terms of s 174 of the CPA on the basis that the
state
has failed to establish a
prima facie
case against him. The
application was dismissed on the basis that Mr. Goliath has a case to
answer.
[13]
Mr. Goliath took the stand. He is a cousin of the deceased. Both had
a close and good relationship. He testified that on 18
October 2020
at approximately 13h00, he arrived at the public park, at Reiger
Park. He found 10 to 15 people (including the deceased)
relaxing. He
knew most of the people at the park. He joined them, and all drank
alcohol.
[14]
When it became dark, he told Mr. Roger Adams about the mechanical
problems of his motor vehicle. While he was talking
to Mr.
Adams, the deceased came and asked about the problem with the motor
vehicle. He told the deceased that the fan did not come
on. When the
deceased suggested to him to connect a wire directly from the battery
to the fan, he informed the deceased that he
had done that, already,
but the engine did not start. The deceased swore at him. In
order to avoid further argument, he told
Mr. Adams that he was going
home. Mr. Adams walked with him to the vehicle. While
getting into the vehicle he heard
two gunshots. He turned
around and saw people running. He then told Mr. Adams to get into the
vehicle, and he drove off.
[15]
Mr. Goliath said that when he arrived at his residence, in
Klippoortjie, he tried to call the people at the park to ask what
had
transpired, and no one answered the cellphones. Later on, his
cousin, one Romeo, called him and informed him that the
deceased was
shot and taken to the hospital. He asked Romeo to come and pick
him and Mr. Adams up and drive them to the hospital.
Romeo came and
drove them to the hospital. Upon arrival at the hospital, the
nurse refused them access into the ward.
Romeo drove them back
home.
[16]
Mr. Adams testified that he was at the park together with the
deceased and approximately 15 other people, enjoying themselves,
when
Mr. Goliath arrived at the park. Mr. Goliath joined them and
all were drinking alcohol. During the course of the
day Mr.
Goliath told him about the mechanical problems with his motor
vehicle. The deceased joined the discussion, and Mr.
Goliath
and the deceased ended up arguing to the extent that the deceased
swore at Mr. Goliath. The deceased was drunk.
He and Mr.
Goliath decided to leave the park. On their way to Mr. Goliath’s
vehicle he heard gunshots. They got into
the vehicle and drove
away.
[17]
Mr. Adams testified that when they arrived at Mr. Goliath’s
residence, Mr. Goliath made calls to find out what
had actually
happened at the park and did not receive a response. Mr. Adams
said that Mr. Goliath ultimately received a call
from Romeo,
informing him that the deceased was shot and taken to the hospital.
Romeo came and picked them up. They all drove
to the hospital.
Upon arrival at the hospital, the nurse refused them access and Romeo
drove them back home
[18]
The appellant was convicted on hearsay evidence, arising from the
statements made by the deceased. The position
in our law is
that such evidence shall not ordinarily be permitted as evidence at
criminal or civil proceedings. In this
regard, s3 of the Law of
Evidence Amendment Act
[4]
states:
‘
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 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’.
[19]
Subsection (2) provides that, 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.
[20]
Subsection (3) provides that 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 (c) of that subsection.
[21]
The trial court was alive to the provisions of S3 of the Law of
Evidence Amendment Act. It rightly admitted the statements
of the
deceased in the interests of justice, stating that the deceased had
been attending court on numerous occasions, that on
each occasion,
the trial could not proceed because the accused claimed to be sick
and not fit to participate in the proceedings.
[22]
The Supreme Court of Appeal in
S
V Ndlovu
[5]
highlighted the circumstances under which the ‘admissibility of
hearsay evidence in the interests of justice’ may not
be
challenged. The Court said the following: ‘
Use
of hearsay evidence by the State does not violate the accused’s
right to challenge evidence by cross examination, if it
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. What it contains is
the right [subject to
limitation in terms of s36] to “challenge evidence”.
Where the evidence is hearsay, the
right entails that the accused is
entitled to resist its admission and to scrutinize its probative
value, including its reliability.
The provisions 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 hearsay
statement be admitted, the
right to “challenge evidence” does not encompass the
right to cross-examine the original
declarator’.
[23]
The Court explained ‘probative value’ and ‘prejudice’
as follows:’ 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?’
Further, ‘prejudice’ in s3 clearly means procedural
prejudice to the party against
whom the hearsay is tendered. It
envisages the fact that the party against whom hearsay is tendered
cannot cross-examine
the original declarant. That prejudice is
always present when hearsay is admitted. It must be weighed
against the reliability
of the hearsay in deciding whether, despite
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 with its just
evidential
weight once admitted must be discountenanced. Where
the interests of justice require the admission of the hearsay, the
provision
does not require the absence of all prejudice’
[6]
.
[24]
The question is whether each or both of these statements are reliable
or contradict each other.
[25]
The issue of the reliability of the statement or its probative value
was dealt with, succinctly,
S
V Kapa
[7]
.
Majiedt J, writing for the majority, was of the view that the
reliability of the statement or for it to have probative value
in its
entirety, does not require that every material aspect of it must be
corroborated. The requirement is that there must
either be
corroboration of every material aspect of the statement or
corroboration of a significant number of material aspects.
[26]
In the first and second statements the deceased stated that Mr.
Goliath accused him of swearing at him and shot him in the
stomach.
In the first statement the deceased said he was shot twice in the
stomach. In this regard, Dr. Carrim, in his medico-
legal examination
report (known as J 88 form) noted two wounds on the body of the
deceased; one on the right flank of the
abdomen and one on the left
flank of the abdomen.
[27]
Although the deceased did not give a reason that led to an accusation
by Mr. Goliath that he swore at him, and did not
mention the insult
directed by him at Mr. Goliath, both messrs Goliath and Adams
testified that Mr. Goliath and the deceased argued
about the
mechanical problems of Mr. Goliath’s vehicle, and the deceased
labelled Mr. Goliath as a ‘poes’.
[28]
Mr. Adams explained the argument between Mr. Goliath and the deceased
as follows: ‘
They argued to such an extent that the
complainant ended up swearing at the accused’
. It is
clear from this phrase that there was a heated argument between Mr.
Goliath and the deceased. In such circumstances,
can it be said that,
indeed, Mr. Goliath avoided further argument and went home, or that
he shot the deceased for being called
a ‘poes’
[29]
The testimony of Mr. Adams in so far as it relates to the nature and
extent of the argument between Mr. Goliath and the
deceased, as well
as the nature or type of insult directed to Mr. Goliath by the
deceased, points to the truthfulness and reliability
of the
statements of the deceased that Mr. Goliath accused him of swearing
at him and shot him twice in the stomach.
[30]
Regard should also be had that the people who gathered at the park on
the day the deceased was shot, were relaxed, enjoying
their drinks
and laughing. There is no evidence that someone became violent
at some stage, except Mr. Goliath and the deceased
who were engaged
in a heated argument. In fact, Mr. Goliath testified that the
majority of the people who were gathered at
the park were friends and
family members. Therefore, it cannot be said that the deceased
was shot by anyone among the group,
save for Mr. Goliath.
[31]
The testimony of Messrs Goliath and Adams that Romeo informed them
about the shooting of the deceased is not confirmed
by Romeo. It is
illogical that Romeo would have fetched Messrs Goliath and Adams,
with his vehicle, from Mr. Goliath's residence
to take them to the
hospital to visit the deceased, as alleged by Mr. Goliath. Mr.
Goliath had his own vehicle which he drove
to the park and back home.
No explanation is given as to why he was unable to use his own
vehicle, if in fact they did proceed
to the hospital. For all these
reasons the appeal against conviction cannot succeed.
[32]
Mr. Goliath was sentenced to a period of 12 years imprisonment on a
charge of attempted murder, read with the provisions of
s 51(2) of
Part 4 of schedule 2 of the Criminal Law Amendment Act. Part 4 makes
provision for the minimum sentences as follows:
(i)
five
years imprisonment for a first offender;
(ii)
seven
years imprisonment for a second offender;
(iii)
ten
years imprisonment for a third or subsequent offender.
[33]
The maximum sentence that a Regional Court may impose in terms of
Part 4 of Schedule 2 shall not be more than five years longer
than
the minimum sentence that it may impose in terms of the subsection.
Accordingly, the maximum sentence that the trial court
could have
imposed was a sentence of 10 years imprisonment, provided there were
no substantial and compelling circumstances that
justify a lesser
sentence.
[34]
Mr. Goliath was 37 years old, first offender, married and has
children. He was unemployed. The trial court found no substantial
and
compelling circumstances that justified deviation from the prescribed
minimum sentence.
[35]
We are of the view that:
35.1
The trial court erred in failing to find the following factors,
cumulatively considered, constitute substantial and compelling
circumstances warranting a departure from the prescribed minimum
sentence:
35.1.1
The fact that the appellant is a first offender;
35.1.2
The fact that the appellant had spent multiple hours consuming
alcohol and were under the influence thereof;
35.1.3
The fact that the relevant parties had engaged in an altercation
pertaining to the mechanical problems with the appellant’s
motor vehicle;
35.1.4
The fact that the deceased had in the course of such altercation and
in their state of inebriation, provoked the appellant
in calling him
“a poes”.
35.2
Accordingly, and whilst we find that the trial court was justified in
invoking its powers to increase the minimum sentence
applicable,
given the aggravating factors in the matter, it is evident from the
record of the proceedings that the aforesaid relevant
mitigating
factors were not considered by the trial court either adequately or
at all in its consideration of sentence.
[36]
In the result, the following Order is made:
36.1
The appeal is upheld, partially.
36.2
The appeal against conviction is dismissed.
36.2.1
The conviction is confirmed.
36.3
The appeal again sentence is upheld.
36.3.1
The sentence of 12 years imprisonment imposed on Mr. Goliath is set
aside and substituted with a sentence of 8 years imprisonment.
This
sentence is antedated to 28 July 2025.
M.
M MABESELE
Judge
of the High Court
Gauteng
Division, Johannesburg
Date of
hearing
: 27 July 2026
Date of
judgment
: 28 August 2026
Appearances
On behalf of the
appellant
:
C.van As
Instructed
by
:
Botha, Booysen & Van As Attorneys Boksburg
On behalf of the
respondent
:
N.P Tyeku
Instructed
by
:
Office of the Director of Public Prosecution
s
Johannesburg
[1]
105
of 1997
[2]
51
of 1977
[3]
45
of 1988
[4]
Ibid
[5]
2002(6)
SA 305 (SCA) at 307; F-H
[6]
At
308, H-I
[7]
2023
(1) SACR 583
(cc)