S v Dielele (CC18/2021) [2023] ZANWHC 155 (6 September 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

Case No.: CC18/2021

Reportable:

YES / NO

Circulate to Judges:

YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

Revised:

YES / NO

In the matter between:

THE

STATE

Applicant

and

JOHANNES

DEMPSEY DIELELE

Respondent

This judgement was handed down electronically by circulation to the parties’ representatives via email. The date of hand-down is deemed to be 06 September 2023.

ORDER

In the result, I make the following order:

1. The statement of the deceased Mamokgalo Annah Bodumele and the oral statements made by Nthabiseng Kujane, and Caroline Kujane, are

admitted into evidence in terms of the Law of Evidence Amendment Act, No.45 of 1988.

JUDGEMENT

Mfenyana J

[1] The State seeks to introduce the statement of Mamokgalo Annah Bodumele (Ms Bodumele) into evidence, in terms of section 3(1) of the Law of Evidence Amendment Act, 45 of 1988 (the Act). Ms Bodumele is now deceased, having passed away before the commencement of the current proceedings.

[2] During the hearing of the matter, two state witnesses, Ms Caroline Kujane and Ms Nthabiseng Kujane testified that at the time of her death, the deceased in Count 1, was in the company of Ms Bodumele, who is now, also deceased. On that basis, the State applied that the testimony of the two state witnesses, in so far as it related to what they were told by Ms Bodumele, be admitted provisionally.

[3] It is contended on behalf of the State that, as Ms Bodumele is now deceased, she is unable to give evidence. Mr Nontenjwa further contended that the probative value of Ms Bodumele’s statement will be paramount, as it gives an eyewitness account of what transpired when the deceased was killed, and corroborates the evidence of the two state witnesses. In conclusion, the state concedes that although the accused person may suffer prejudice as he will not be able to cross-examine Ms Bodumele, as the author of the statement, such prejudice, is far outweighed by the interests of justice, and the admission of the statement will not render the trial unfair. The state placed reliance on the decision of the Constitutional Court in Kapa v The State [2023] ZACC 1 where the court held that a statement made by an eyewitness who had since become deceased, was “the only conduit through which the accused’s actions could be linked”.

[4] It thus appears from the reading of the written submissions by Mr Nontenjwa on behalf of the state, that the application rests on the section 3(1)(c) of the Act which 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) …

(b) …

(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.

[5] Section 3(3) further provides:

“(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 the 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.

[6] In opposing the application, Mr Nkhahle argued on behalf of the accused, that the admission of the statement by Ms Bodumele would threaten the constitutional rights of the accused as enshrined in Section 35 of the Constitution of the Republic of South Africa Act, No.108 of 1996 (the Constitution), as the probative value of the statement depends on the credibility of the person who made the statement, in this case, Ms Bodumedi. Ms Bodumedi having passed away, the accused would not be able to cross examine her and test the veracity of her allegations, he argued. This, the state contends would result in substantial prejudice to the accused.

[7] In respect of the decision relied on by the state, counsel for the accused averred that the decision of the Constitutional Court in Kapa was not unanimous in its conclusion but was unanimous in that the admission of hearsay evidence results in substantial prejudice to the accused.

[8] Rather tellingly, Mr Nkhahle cited paragraph 103 of Kapa the essence of which is that while admission of hearsay evidence results in substantial prejudice for the accused, it is not the only consideration, and the interests of justice have an overriding effect. The Constitutional Court in this regard, also considered the fact that the witness whose statement had been admitted by the court a quo was deceased. The ultimate consideration, as the Constitutional Court court found, is the truthfulness, reliability and probative value of the statement, and how these factors weigh up, in allowing or refusing the admission of the statement. In Kapa, the court admitted the hearsay.

[9] Arguing against such admission, I understand Mr Nkhahle to be saying that in the circumstances of the present matter, this Court is not yet in a position to determine whether there are any pointers of truthfulness and reliability, as this would need to be weighed against other evidence already adduced and evaluated, as was the case in Kapa (a quo). Thus, the Court “cannot pre-judge the case”, he added. I am unable to agree with Mr Nkhahle in this regard, and the reason is this: An application of this nature would inevitably be brought at some or other stage, during the course of the trial, and in some instances, long before the evidence is finalised, and before the court has evaluated other evidence. To the extent this may be necessary, the statement sought to be admitted seeks to corroborate the evidence of the two state witnesses, both of whom testified that Ms Bodumedi was with the deceased at the time the offence was committed. This evidence has already been heard by the Court. What needs to be stated clearly, is that the Court at this stage is not concerned about the blameworthiness of the accused, but whether it would be in the interests of justice to admit the hearsay evidence.

[10] It was further contended on behalf of the accused that the charge against the accused in these proceedings is very serious and the accused may be liable for life imprisonment unless he satisfies the Court that there are substantial and compelling circumstances to warrant a deviation. This, counsel for the accused averred, is another distinguishing factor from Kapa, and that Ms Bodumedi’s statement seeks to give eyewitness account against the accused, while the two state witnesses testified that they never saw what happened, and that the accused would not be able to challenge such evidence as Ms Bodumedi is deceased. Consequently, the accused contends that the statement by Ms Bodumedi, and the oral statements made by the two state witnesses should be ruled inadmissible.

[11] I have already stated that the Court is at this stage not concerned with the accused’s blameworthiness, but whether the statement by Ms Bodumedi, and the oral statements of the two state witnesses are admissible in evidence, as statements tending to establish what is conveyed therein. These would still need to be weighed up against all other available evidentiary material to determine their probative value.

[12] In the circumstances, I am of the view that the provisions of section 3(1)(c) of the Law of Evidence Amendment Act, have been satisfied and further that the interests of justice dictate that the oral evidence of the two state witnesses, and the written statement of Ms Bodumedi should be admitted.

Order

[13] In the result, I make the following order:

1. The statement of the deceased Mamokgalo Annah Bodumele and the oral statements made by Nthabiseng Kujane, and Caroline Kujane, are

admitted into evidence in terms of the Law of Evidence Amendment Act, No.45 of 1988.

S MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH

AFRICA

APPEARANCES

DATE OF HEARING: 29 JUNE 2023

JUDGEMENT RESERVED: 24 JULY 2023

DATE OF JUDGEMENT: 06 SEPTEMBER 2023 For the State / Applicant: ADV M.C NONTENJWA Instructed by:

DIRECTOR OF

PUBLIC PROSECUTIONS Email: cnontenjwa@npa.gov.za For the Accused / Respondent: ADV R.J NKHAHLE Instructed by: G.A MOKAA ATTORNEYS Email: gamoka.attorneys@gmail.com