S v Msimango and Another (187/2005) [2009] ZAGPJHC 34; [2009] 4 All SA 529 (GSJ) ; 2010 (1) SACR 544 (GSJ) (27 July 2009)

S v Msimango and Another (187/2005) [2009] ZAGPJHC 34; [2009] 4 All SA 529 (GSJ) ; 2010 (1) SACR 544 (GSJ) (27 July 2009)

The court held that no probative value should be attached to the evidence of a witness whose cross-examination was incomplete due to death or other absence, regardless of whether the witness was called by the prosecution, defence, or the court. This approach is justified by the constitutional right to adduce and challenge evidence, which includes the right to cross-examine. The court found that accepting such evidence would undermine the fairness of the trial and could not pass constitutional scrutiny. In the present case, although the deceased witness, Insp Obisi, was not the sole witness on the disputed issues and other witnesses were fully cross-examined, the court exercised its...

Citation
[2009] ZAGPJHC 34
Parties
Applicant: The State; Defendant: Msimango, Zwelithini Ndumiso; Defendant: Sindane, Mendi Ottis Ready Pedy Bel-Air
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 July 2009
Case Number
187/2005
Procedural Posture
Criminal Law / Judgment on Evidentiary Issue After Conviction and Sentencing
Outcome
The court disregarded the evidence of the deceased witness, Insp Obisi, in convicting both accused, finding that the incomplete cross-examination rendered his evidence inadmissible.
Judges
Moshidi
Legal Topics
Right to Cross Examination, Admission of Evidence, Constitutional Right to Fair Trial, Incomplete Cross Examination, Probative Value of Evidence
Criminal Law Right to Cross Examination Admission of Evidence Constitutional Right to Fair Trial Incomplete Cross Examination Probative Value of Evidence

Case Brief

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Parties

The State

Applicant

Msimango, Zwelithini Ndumiso

Defendant

Sindane, Mendi Ottis Ready Pedy Bel-Air

Defendant

Procedural Posture

Criminal Law / Judgment on Evidentiary Issue After Conviction and Sentencing

Legal Issues

  1. 1 What probative value, if any, should be attached to the evidence of a witness who dies during cross-examination in a criminal trial.
  2. 2 Does the right to adduce and challenge evidence under section 35(3)(i) of the Constitution include the right to cross-examine witnesses.
  3. 3 Should evidence based on incomplete cross-examination be disregarded entirely or may the court exercise discretion to admit such evidence.

Ratio Decidendi

The court held that no probative value should be attached to the evidence of a witness whose cross-examination was incomplete due to death or other absence, regardless of whether the witness was called by the prosecution, defence, or the court. This approach is justified by the constitutional right to adduce and challenge evidence, which includes the right to cross-examine. The court found that accepting such evidence would undermine the fairness of the trial and could not pass constitutional scrutiny. In the present case, although the deceased witness, Insp Obisi, was not the sole witness on the disputed issues and other witnesses were fully cross-examined, the court exercised its...

Court Disposition

The court disregarded the evidence of the deceased witness, Insp Obisi, in convicting both accused, finding that the incomplete cross-examination rendered his evidence inadmissible.

Orders

  • The evidence of Insp Obisi, whose cross-examination was incomplete due to his death, is disregarded entirely for the purposes of conviction and sentencing.
  • No probative value is attached to evidence where cross-examination is incomplete for any reason, including death or illness.