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[2015] ZAWCHC 45
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Mtoto v S (A488/14) [2015] ZAWCHC 45 (22 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: A488/14
DATE: 22 APRIL
2015
Reportable
In
the matter between:
THULANI
MTOTO
..................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
Before:
GAMBLE et BOQWANA JJ
JUDGMENT
DELIVERED
ON 22 APRIL 2015
BOQWANA,
J
Introduction
[1]
The appellant was arraigned before
the Parow Regional Court on one count of housebreaking with intent to
rob and robbery (Count
1) and a count of murder (Count 2). He pleaded
not guilty to the charges. On 26 February 2014 he was convicted on
both counts and
subsequently sentenced, on 04 June 2014, to 7 years
imprisonment in respect of count 1 and 18 years imprisonment in
respect of
count 2. The effective term of imprisonment was
accordingly 25 years. The appellant appeals against conviction and
sentence with
the leave of the magistrate.
Evidence
[2]
On 27 August 2010, near Wagenaar
Street, Goodwood in Cape Town, Hester Roberts (‘the deceased’),
a 70 year old woman,
was found murdered in her house, having been
strangled with a piece of clothing, some of which was shoved into her
mouth, and her
hands and feet tied up with the strings of her
dressing gown. Her house was broken into and a cell phone and DVD
player were found
to be missing.
[3]
The deceased’s body was
discovered at approximately 19:45 by her son, Johannes De Wet
(‘Johan’), who was with
his son Jacques De Wet
(‘Jacques’) at the time. They had been expecting her to
attend dinner at their house at 19:00
as she normally did on Fridays
and at that time. They grew suspicious after she failed to attend the
dinner and did not answer
her phone. They decided to go to her place
and upon reaching her house they found the door open. The house was
in disarray with
her window open and her body lying down. They called
the police. Jacques corroborated his father’s testimony in
material
respects. Jacques further testified that he noticed the
missing DVD video machine because he had personally installed it. The
machine
was a combined Sansui CD/DVD and VCR player. He changed the
plug on the video machine from a two point to a three point plug. The
cash slip for the video machine was handed in at trial as an exhibit.
[4]
Constable
Jacklyn Julies (‘Julies’) went to the scene after being
called by Johan. He noticed two bricks on the window
sill of the open
window. He immediately notified standby detectives and cordoned the
scene off. He handed the scene over to the
detectives. Peter Ivan
Lotter (‘Lotter’) testified that he was the investigating
officer in this case. Whilst conducting
investigations at the scene
he noticed, amongst others, prints of a formal shoe and that of a
training shoe
[1]
on the
flowerbed outside the house. He was informed by Johan’s wife
(‘Mrs De Wet’) that the deceased’s
Nokia 26100 cell
phone was missing. Mrs De Wet was however not called to testify. On 1
September 2010, Lotter also received a call
from a certain Mr
Groenewald from Vodacom who informed him that he had received
instructions from his employers to assist Lotter
with the
investigations. The State requested the Court to provisionally allow
this hearsay evidence.
[5]
Lotter then contacted Vodacom and
gave them the relevant cell phone number. He was informed that on 26
August 2010 at 21:36, a SIM
card was activated on that cell phone.
There was however no RICA information on that SIM card. He then
requested information regarding
two cell phone numbers which were in
regular contact with this particular SIM card. Two cell phone numbers
were identified
via
RICA information. One belonged to a person by the name of Sisa
Dlokolo (‘Sisa’) and another one to a young lady by
the
name of Sibongile Mgxiki (‘Sibongile’). They both resided
in Gugulethu. Sisa’s SIM card had also been in
a Samsung C300.
[6]
On 6 September 2010 Lotter followed
up on the information he had received regarding the two SIM cards and
traced Sisa and Sibongile
at the specific addresses in Gugulethu. The
relevant persons were subpoenaed in terms of the Criminal Procedure
Act, 51 of 1977
(‘the
Criminal Procedure Act&rsquo
;). Sibongile
could not assist but Sisa informed him that the cell phone number
that had contacted him belonged to his girlfriend,
Zukiswa Botha
(‘Zukiswa’). Both Zukiswa and Sisa informed Lotter that
the appellant at one stage had taken Zukiswa’s
phone. When
asked by Sisa about the whereabouts of Zukiswa’s phone, the
appellant informed him that he had already sold the
cell phone. The
appellant then produced another cell phone and removed a SIM card
which belonged to Zukiswa and gave it to Sisa.
Zukiswa testified that
her phone disappeared whilst she was walking with the appellant. Sisa
testified that he went to fetch Zukiswa’s
SIM card from the
appellant after Zukiswa asked him to do so. The appellant is his
cousin.
[7]
Sisa took Lotter to the appellant’s
place, at approximately 2:00 or 3:00 in the morning of 7 September
2010. They found the
appellant’s father who took him to the
appellant’s shack. The appellant was not there but Lotter
noticed a DVD combination
player similar to the one missing which was
described to him by the deceased’s family. He noticed that the
bed was still
warm as if someone had just woken up. As they left the
appellant’s house to drop Sisa off, they found the appellant
who was
on his way home. They returned to the appellant’s
shack, with the appellant. The appellant said the DVD player was his.
Lotter
noticed a pair of training shoes under the bed. He then took
the photos which were taken from the scene by the forensic team when
they lifted the footprints in the flowerbed and tried to compare the
training shoes under the bed with those in the photos. He
had no
expertise in the identification of footprints but to him they looked
the same. The appellant informed him that the training
shoes were
his. He warned the appellant of the charges against him and arrested
him. The training shoes were booked in at Goodwood
SAP13/1103/2010.
The training shoes and the DVD player, silver in colour, were booked
out for forensic investigations. The receipt
he obtained from
Jacques, with respect to the missing DVD player, had no serial
number. It only had a model name. The name of the
model on the
receipt was the same as that of the DVD player found at the
appellant’s place. Lotter was present when Jacques
identified
the DVD player as his grandmother’s. A warning statement of the
appellant was handed in by agreement between the
parties and read out
by Lotter into the record. The relevant portion of the statement went
as follows: ‘
The cellphone and the
DVD I bought it’s mine. The SIM card I had was Zukiswa’s’
.
[8]
Captain Danie van der Westhuizen
(‘van der Westhuizen’) testified that he is a fingerprint
expert and a footwear analyst.
On 10 September 2010, he photographed
the soles of a pair of white Adidas training shoes which were handed
to him by Captain Joubert
(‘Joubert’). He printed the
images to a scale of one to one, the purpose of which was to
establish whether shoe prints
numbered 1 to 5 found on the scene,
which consist of marks photographed by Captain Smith, were made by
the shoes booked in for
forensic testing. During the comparison he
was able to draw the following conclusions: The pattern and size of
shoeprint number
3 found on the scene corresponded with the right
shoe marked as exhibit A and thus was probably made by the same shoe.
The pattern
and size of shoe print numbers 1 and 2 found on the scene
corresponded with the left shoe marked as exhibit A and therefore
were
probably made by the same shoe. Shoeprint numbers 4 and 5 could
not be matched. The pattern on both sets of photographs depicting
the
shoes was plus/minus 70 millimetres in length, measured exactly on
the same spot which indicated that the size was correct.
The emblem
of the Adidas brand was visible on both shoes as encircled on the
court chart. Advanced wear and tear was found, showing
that the shoe
was not new. That led van der Westhuizen to the conclusion of
“probable”. In the identification process
one would
either get a result of ‘not identified’, ‘possible’,
‘probable’ and ‘very probable’.
On photo 3
the shoe print patterns were visibly better. He decided to use that
photo to explain the wear and tear and the pattern.
The print was
probably made with the back part of the shoe. Van der Westhuizen came
to the conclusion that the shoe under investigation
was most likely
the shoe that made the print but it could not be said to be 100%
accurate.
[9]
A soil sample was collected by
Captain Elsie Joubert (‘Joubert’) from the flowerbed
opposite the front door of the deceased’s
house on 15 September
2010 at 15:10 and she sealed it in a forensic bag.
[10]
Rodger David Dixon (‘Dixon’)
examined the soil from the flowerbeds to determine whether it was
comparable with soils
lifted from the soles of the Adidas shoes
(found by Lotter under the appellant’s bed). In order to do
that he examined the
soil samples with a microscope looking at
different types of soil particles, including mineral grains, organic
components and a
variety of other materials that can be found in the
soil. The soil on the shoes contained similar sand grains to those
from the
flowerbed, as well as containing material from other
sources. Dixon noted that the appearance of the soil, the different
types
of grain and the range of material from the flowerbed were
present in the soil from the shoe. He contended that flowerbeds
tended to have soil which is different from that of the general
vicinity because when people make flowerbeds they add compost,
fertilizer, they dig it around, and material grows there. Because the
soil is turned and cultivated it would gain an appearance
which is
different to the general soil and in this way there would be a degree
of uniqueness which means that the soil is restricted
in its
distribution to the flowerbed. As a result he was of the opinion that
the soil on the shoe came from the flowerbed. He could
not rule out
the possibility that similar soil might be found in a different area
in Cape Town. However, the same original type
of soil would have to
be present, and the same set of events which contributed to the
formation of the flowerbed would have to
be repeated. Furthermore
similar compost and debris, or whatever gave the chalky appearance in
creating the soil must be present.
According to him, the match was so
great between the soil in the shoe and the flowerbed that it was
highly unlikely that it came
from anywhere else. He however could not
rule it out 100%. It was put to Dixon in cross-examination that where
the appellant lived
there was a garden and fruit trees, and that the
area had been cultivated with compost that they buy from somewhere
else. Dixon’s
response was that in order to exclude the soil
referred to, it would have to be compared with others; he was however
not requested
to collect more samples (such as from the appellant’s
house) but to determine if there were sufficient similarities
between the soil from the shoe and that which came from the
flowerbed.
[11]
Mandy Date Chong (‘Dr Chong’)
identified the body of the deceased at the deceased’s place on
28 August 2010. The
ambient and rectal temperatures were closely
matching at 15.6 and 17.5 degrees Celsius respectively. Taking that
into consideration,
as well as the fact that the window was open in
the room since the deceased’s death, the customary estimation
of time of
death by calculation was deemed invalid. According to Dr
Chong the spot-check as described in the Third Edition of Knight’s
Forensic Pathology gives a crude estimation of eight to 36 hours
post-mortem interval as a rule of thumb, taking into account that
the
body was cold to touch and rigor mortis was present. In other words,
the deceased could have been dead for a period estimated
to be
between eight to 36 hours.
[12]
The appellant testified that he was
not at the deceased’s house on 27 August 2010 or any time
before that. He denied any involvement
in the crimes. He testified
that he received the SIM card, which was said to be Zukiswa’s,
from his cousin Themba. He did
not know how Themba came to be in
possession of the SIM card. He used the SIM card in a Nokia which he
had. He gave the SIM card
to Sisa, who had a relationship with
Zukiswa. He sold the Nokia he had. The DVD player found at his place
was his. He bought it
at Nyanga Junction three days or a week before
he was arrested. He testified that he was the only person who wore
the pair of Adidas
shoes taken by the investigating officer. He
stated further that his father has a garden which has been there
since he grew up.
He is responsible for the maintenance of this
garden. He used to water it and sometimes bought manure to prepare
the soil, in order
to make it fertile. He bought the compost in
Nyanga. Blood and fingerprints were taken from him. In
cross-examination, he testified
that he was informed by Sisa that
police were looking for him at about 4:00 in the morning. He went to
give a friend Tik when he
met the police in the early hours of the
morning. He also bought the Nokia cell phone at Nyanga Junction, two
weeks before his
arrest. He bought the cell phone for R100 and the
DVD player for R50 on the same day from unknown persons. He sold the
cell phone
for R300 three days before his arrest.
Magistrate’s
decision
[13]
The magistrate found that the
circumstantial evidence presented by the State weighed together
created a unit of evidence which led
to the only conclusion possible,
namely that the appellant broke into the house of the deceased,
murdered her and then took the
items mentioned in count 1, being a
cell phone and a DVD player.
Grounds of appeal
[14]
The grounds of appeal submitted on
behalf of the appellant are,
inter alia
,
the following. Firstly, Lotter failed to provide any evidence or
testimony that the appellant was actually in the house, despite
the
forensic team being at the scene for 3 days while carrying out their
investigation and the rooms at the house being turned
upside down and
drawers thrown out. Secondly, Lotter also failed to mention how,
through his investigation, the appellant could
be tied to the murder
and housebreaking and robbery of the deceased as he only found a
DVD/VCR player in the possession of the
appellant that matched the
description of the one belonging to the deceased. Thirdly, van der
Westhuizen’s investigations,
with regard to the shoe print,
ultimately led to the conclusion that it was only probable that the
appellant’s shoe made
the print in the garden. Thus there was a
degree of doubt in his findings. Fourthly, when one considers Dixon’s
evidence,
it is evident that the soil specimens cannot be taken as
evidence of such a unique nature that it can be deemed absolute
evidence.
This is because his tests/investigations did not exclude
the possibility of such soil being present in the vegetable garden
that
the appellant had at his parent’s house. Counsel for the
appellant argued that the magistrate erred and misdirected himself
in
his application of the law to the facts by attaching too much weight
to the circumstantial evidence in finding the appellant
guilty as
charged. In regard to sentence, it was submitted that the magistrate
erred by overemphasizing the seriousness of the
offence, the previous
convictions of the appellant, the deterrent effect of the sentence
and the retributive element of sentencing.
Discussion
[15]
It
is perhaps convenient to start off with the reminder that
circumstantial evidence is no less cogent than direct evidence. On
the contrary it can sometimes be more compelling as was stated in
S
v Musingadi and Others
[2]
.
The Court in that case quoted with approval a passage from
Zeffertt
,
Paizes
and
Skeen
’
s
The
South African Law of Evidence
at page 94 which stated the following:
‘
.
. ., circumstantial evidence may be the more convincing form of
evidence. Circumstantial identification by fingerprint will, for
instance, tend to be more reliable than the direct evidence of a
witness who identifies the accused as the person he or she saw.
But
obviously there are cases in which the inference will be less
compelling and direct evidence more trustworthy. It is therefore
impossible to lay down any general rule in this regard. All one can
do is to keep in mind the different sources of potential error
that
are presented by the two forms of evidence and attempt, as far as
possible, to evaluate and guard the dangers they raise’
[16]
In
dealing with each piece of evidence and the inferences to be drawn
therefrom, two important principles must be borne in mind.
The first
is established, which is that the court must examine all the
evidence. A court does not look at the evidence implicating
the
accused in isolation to determine whether there is proof beyond
reasonable doubt, and so too it does not look at the exculpatory
evidence in isolation to determine whether it is reasonably possible
that it might be true. As was stated in
R
v Hlongwane
[3]
the correct approach is to consider all evidence ‘in the light
of the totality of the evidence of the case’. The second
principle which the court must bear in mind in assessing all the
evidence involves the approach to be taken in drawing inferences.
Inferences are not to be mere speculation but are to be based on
fact. The court in
R
v Blom
[4]
laid out two rules of logic to be followed. The first rule is that
the inference sought to be drawn must be consistent with all
proven
facts. The second rule is that the proven facts must be such that
they exclude every other reasonable inference.
[17]
The body of evidence that was said
to implicate the appellant was the following: firstly, the RICA
information that led to the tracing
of the SIM card allegedly used on
the missing cell phone alleged to be that of the deceased, which was
linked to the appellant;
secondly, the DVD/VCR player found at the
appellant’s place fitting the description of the DVD/VCR that
was found to be missing
when the deceased’s body was
discovered; thirdly, the findings made by van der Westhuizen that the
shoe print on the flowerbed
at the deceased’s house was made by
the Adidas shoe found under the appellant’s bed; and fourthly,
the evidence of
Dickson that the soil samples from the flowerbed and
the appellant’s Adidas training shoes had the same
characteristics and
origin.
[18]
As regards the deceased’s cell
phone, the State failed to call Mrs De Wet who informed Lotter about
the missing Nokia cell
phone. That part of Lotter’s evidence
was hearsay. Lotter also had a conversation with Groenewald from
Vodacom regarding
RICA information and cell phone records involving
the deceased’s alleged cell phone. Cell phone records were
supplied by
Vodacom to Lotter following an application in terms of
section 205
of the Criminal Procedure Actthat he prepared. Lotter
noticed that the cell phone records that were requested in terms of
the
section 205
application did not contain statements in terms of
section 212
of the
Criminal Procedure Act.
>
[19]
Vodacom refused to allow Groenewald
to testify. I found it strange that Vodacom would take that kind of
stance when it approached
Lotter and offered to assist him with his
investigations in the first instance. An explanation was offered by
Vodacom’s legal
department that
section 212
statements could
not be provided because of the time period that had lapsed and that
they no longer had those records.
[20]
Be
that as it may, the information received from Groenewald led Lotter
to Sisa and Zukiswa, who eventually connected him with the
appellant.
Sisa and Zukiswa testified about the SIM card. The contradictions
noted from their evidence were not material. I am
of the view that
the trial court carefully considered the law in relation to admission
of hearsay evidence, in particular
section 3
of the Law of Evidence
Amendment Act
[5]
as well as the
relevant case law on this issue
[6]
,
when it concluded that the hearsay evidence by Lotter in respect of
communications made to him by De Wet and Groenewald were admissible.
The key issue is that the court had regard to the factors to be taken
into account in terms of section 3(1) (c) of the Law of Evidence
Amendment Act.
[7]
Furthermore,
section 3 of the Law of Evidence Amendment Act permits a court to
admit hearsay evidence only if it is of the opinion
that such
evidence should be admitted in the interests of justice.
[8]
It must however be remembered that a section 205 application
requesting the cell phone records was made and those were provided
by
Vodacom.
[21]
At the end of the day, even if
hearsay evidence pertaining to the conversations Lotter had with De
Wet and with Groenewald may have
wrongly been allowed, the fact that
remains is that the appellant was found with evidence linking him to
the deceased. Evidence
given by Jacques with regard to the DVD/VCR
player was clear. HHehe He positively identified the machine because
he had personally
installed it. He changed the plug from a twin plug
to a three pronged power plug and that was the unique feature. He
gave compelling
evidence in this regard.
[22]
The appellant’s version of how
he came to be in possession of a Nokia cell phone and the DVD player
was less than convincing.
He claimed that he bought the items at
Nyanga Junction from unknown people. He contradicted himself as to
when the cell phone was
bought and sold. First, in his evidence in
chief he stated that he bought the DVD player three days or a week
before his arrest.
In cross-examination he stated he bought the cell
phone a long time before and sold it two weeks before his arrest. He
later said
he bought the cell phone at the same time that he bought
the DVD player three days before he was arrested. When cornered by
the
prosecutor, he changed his version to state that he sold the cell
phone three days before his arrest. This simply did not make sense.
It clearly showed that the appellant was untruthful.
[23]
As
regards, the shoe print, it is useful to refer to the Appellate
Division decision of
S
v Mkhabela
[9]
where
Corbertt JA held the following:
‘
I
do not think that any general principles are to be derived from these
cases, save that
evidence of footprints
is admissible
, that the Court must
nevertheless be cautious of relying upon such evidence, especially
where it is the only evidence against the
accused, and that the
cogency of such evidence must depend upon all the circumstances of
the case. In regard to this last-mentioned
point, the Court may, for
example, find it easier to rely on footprint evidence where it
relates to the imprint left by a boot
or shoe that has some
distinctive characteristic or pattern than where it relates to the
imprint made by a naked human foot. Similarly,
it will always be more
satisfactory if the Court is able, by means of a photograph or a
plaster cast orsome other visual medium,
itself to make the necessary
comparisons and to assess the cogency of the footprint evidence.
In
the present case it is important to note that the footprint, or
shoe-print, evidence was not the only evidence against the appellant.
There was, in addition, a substantial web of
circumstantial evidence (including the inculpatory statements made by
the appellant),
which pointed to the guilt of the appellant.
The
very existence of this other circumstantial evidence tends, in my
opinion, to make it more likely that the footprints at the
scene of
the crime was correctly identified as having been left by the
appellant
.’
(Own
emphasis)
[24]
Unlike
in the
Mkhabela
case
and in
R
v Makiep
[10]
,
an
expert testified in the present matter. The trial court in this case
also made its own observations from the photographs submitted
during
the trial and it found clear similarities between the shoe print
found at the murder scene and the shoe print of the appellant’s
Adidas training shoe. According to my observations of the photos, the
resemblance of the characteristics in the shoe prints is
extraordinary. In particular, a star like characteristic (an Adidas
emblem) and wear and tear on the training shoes on both prints
are
observed. Evidence was given that the training shoes are of the same
size, length and width. Van der Westhuizen’s evidence
supported
by photos has strong evidential value. This evidence does
however not stand alone.
[25]
Dickson’s evidence on the soil
samples seems to complete the picture. He was adamant about the
uniqueness of the soil
from the flowerbed because of the compost and
other substances that existed in the material. It is apparent that
the soil was not
one that would be found anywhere else in Cape Town.
If a similar type of soil existed, which he did not exclude, the same
processes
would have to be repeated for it to be exactly the same. I
am alive to the appellant’s evidence that they had a garden at
his parent’s house which he was responsible to maintain. The
difficulty I have with this, in view of the fact that that was
to be
his defence,is that the appellant never requested Dickson or any
other expert to test the soil at his house.
[26]
The State could not be expected to
anticipate that the appellant would raise that issue, when he
testified. They cannot be held
responsible in my view for failing to
investigate whether there was a garden at the appellant’s house
containing soil which
resembled that found in the flowerbed situated
at the deceased’s house and for not sending the soil at the
appellant’s
alleged garden for testing. The trial court could
not be faulted in my view for relying on Dickson’s evidence as
part of
the evidence it considered when convicting the appellant.
[27]
The totality of evidence places the
appellant at the deceased’s house. The appellant’s
counsel argued that there was
no evidence that the appellant was
inside the house and that at best the shoe-print placed him outside
the house. A number of issues
arise which dispel this argument. The
first is that the shoe print was found outside the bedroom window of
the deceased’s
house. There was evidence that the burglar
proofing of the window had been forced opened which suggests that
entry was gained through
the window. It is reasonably possible that
there was someone else with the appellant as a print of a formal shoe
was also found.
The DVD/VCR player which was found in the appellant’s
room was removed from inside the house. Even if the appellant was
with
someone else when the crimes were committed and he never went
inside the house, the doctrine of common purpose would, in any event,
apply. The fact that no DNA was collected or found inside the house
does not absolve the appellant. The magistrate was justified
in my
view to attach a great deal of weight on the shoe print along with
other evidence presented.
[28]
The only reasonable conclusion from
the facts is that the appellant,whether alone, or in association with
another or others (which
at this point is purely speculative),
entered the deceased’s house, strangled her and robbed her of
her DVD/VCR player and
cell phone. Viewing the evidence in its
totality I am satisfied that the magistrate was correct in coming to
the conclusion that
the appellant broke into the deceased’s
house, murdered and robbed her of her belongings. There was therefore
no misdirection
on his part.
[29]
As
regards sentences, minimum sentences prescribed by the Criminal Law
Amendment Act
[11]
were
applicable, being 15 years in respect of count 1 because the offence
was coupled with robbery with aggravating circumstances
and life
imprisonment in respect of count 2 of murder. The magistrate found
that the imposition of minimum sentences on both counts
would not be
appropriate, although he did not clearly articulate what substantial
and compelling circumstances the court considered
to justify
deviation. The personal circumstances of the appellant are that: He
was a 27 year old unmarried man when he was sentenced.
He was
unemployed and lived with his father. His mother had passed away. He
had been in custody for over two years before he was
sentenced. He
had several previous convictions of house breaking with intent to
steal and theft.
[30]
In my view the magistrate showed a
measure of mercy by imposing a lesser sentence, taking into account
that the deceased was killed
in a cruel manner, in the privacy of her
home and robbed of her belongings. The submission that the sentence
of 25 years is strikingly
inappropriate because the appellant was
convicted entirely on circumstantial evidence has no legal basis and
must accordingly be
rejected. There is therefore no reason for this
Court to interfere with the magistrate’s decision both on
conviction and
sentence. The appeal should accordingly be dismissed.
[31]
In the result, I propose the
following order:
1.
The appeal is dismissed and conviction and
sentence confirmed.
N
P BOQWANA
Judge
of the High Court
I
agree, and it is so ordered
PAL
GAMBLE
Judge
of the High Court
[1]
Also
known as takkies
[2]
2005
(1) SACR 395
(SCA) at paragraph 20
[3]
1959
(3) SA 337
(A)
at 341A
[4]
1939
(AD) 188.
[5]
Act
45 of 1988
[6]
See
S v Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
(CC) at pages94 – 95 ; S v
Litako and Others
2014 (2) SACR 431
(SCA) at paras 67
and 69
[7]
B
eing;
the nature of the evidence, the purpose for which the evidence was
tendered, the probative value of the evidence, the reason
why the
evidence was not given by the person upon whose credibility the
probative value of such evidence depends, any prejudice
to a party
which the admission of such evidence might entail and any other
factor which should in the opinion of the court be
taken into
account.
[8]
S
v Litako supra at para 67
[9]
1984
(1) SA 556
(A) at 563B-F.
[10]
1948
(1) SA 947 (A)
[11]
Act
105 of 1997