S v Dithlakanyane and Others (SS 43/2012) [2014] ZAGPJHC 395 (16 October 2014)

S v Dithlakanyane and Others (SS 43/2012) [2014] ZAGPJHC 395 (16 October 2014)

The court held that the affidavits of the absent accountholders are hearsay evidence as defined by the Law of Evidence Amendment Act and section 2(2) of POCA, since their probative value depends on the credibility of the deponents who are not available to testify. The court found that the State had produced the best available evidence regarding the unavailability of the witnesses and had taken reasonable steps to secure their attendance. The court determined that the admission of the affidavits would not render the trial unfair to the accused, except in the case of accused 11, who had made an admission under section 220 of the CPA. The affidavits were therefore admitted in evidence...

Citation
[2014] ZAGPJHC 395
Parties
Applicant: The State; Respondent: Dithlakanyane, Isaac Tebogo; Respondent: Motaung, Thabang Samson; Respondent: Mkhwane, Holynsworth; Respondent: Mkhwane, Kedibone Sylvia; Respondent: Kunene, Laura; Respondent: Mcence, Vuyokazi; Respondent: Kekana, Jack Leseja; Respondent: Molefe, Karabo Louis; Respondent: Nemathaga, Jacky Masala; Respondent: Smith, Malcolm; Respondent: Scott, Ricardo; Respondent: Makenete, Thabo Bradley
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 October 2014
Case Number
SS 43/2012
Procedural Posture
Criminal Law Application / Application for Admission of Hearsay Evidence Under Section 2(2) of POCA
Outcome
Affidavits of Nkomo, Maringa, Mafatla, and Sikhosana admitted in evidence against all accused except accused 11; affidavit of Mafatle not admissible against accused 11.
Judges
k satchwell
Legal Topics
Hearsay Evidence, Prevention of Organised Crime Act, Fair Trial Rights, Admissibility of Affidavits
Criminal Law Hearsay Evidence Prevention of Organised Crime Act Fair Trial Rights Admissibility of Affidavits

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Parties

The State

Applicant

Dithlakanyane, Isaac Tebogo

Respondent

Motaung, Thabang Samson

Respondent

Mkhwane, Holynsworth

Respondent

Mkhwane, Kedibone Sylvia

Respondent

Kunene, Laura

Respondent

Mcence, Vuyokazi

Respondent

Kekana, Jack Leseja

Respondent

Molefe, Karabo Louis

Respondent

Nemathaga, Jacky Masala

Respondent

Smith, Malcolm

Respondent

Scott, Ricardo

Respondent

Makenete, Thabo Bradley

Respondent

Procedural Posture

Criminal Law Application / Application for Admission of Hearsay Evidence Under Section 2(2) of POCA

Legal Issues

  1. 1 Whether the affidavits of absent accountholders constitute hearsay evidence under section 2(2) of POCA.
  2. 2 Whether the admission of such hearsay evidence would render the trial unfair to the accused.
  3. 3 Whether the State has taken adequate steps to secure the attendance of the witnesses.

Ratio Decidendi

The court held that the affidavits of the absent accountholders are hearsay evidence as defined by the Law of Evidence Amendment Act and section 2(2) of POCA, since their probative value depends on the credibility of the deponents who are not available to testify. The court found that the State had produced the best available evidence regarding the unavailability of the witnesses and had taken reasonable steps to secure their attendance. The court determined that the admission of the affidavits would not render the trial unfair to the accused, except in the case of accused 11, who had made an admission under section 220 of the CPA. The affidavits were therefore admitted in evidence...

Court Disposition

Affidavits of Nkomo, Maringa, Mafatla, and Sikhosana admitted in evidence against all accused except accused 11; affidavit of Mafatle not admissible against accused 11.

Orders

  • The affidavit of Mafatle is not admissible in evidence against accused 11.
  • The affidavits of Nkomo, Maringa, Mafatla, and Sikhosana are admissible in evidence against all other accused in terms of section 2(2) of POCA.