Recent Case: Evidence

• Jurisdiction: South Africa
• Citation: (2007) 20 SACJ 110
• Published date: 24 May 2019
• Pages: 110-117
• Author: Nicci Whitear-Nel
• Date: 24 May 2019

Evidence

NICCI WHITEAR-NEL

University of KwaZulu-Natal

Admissibility of hearsay evidence

In the case of S v Waldeck 2006 (2) SACR 120 (N) the appellant was

convicted of murder primarily on the basis of hearsay evidence. He

appealed against his conviction on two main grounds. First that the hear-

say evidence relied upon was improperly admitted and, secondly that

his right to a fair trial was infringed because the magistrate did not make

a ruling on the admissibility of the hearsay evidence at the close of the

state’s case and he was not therefore aware of the case he had to meet

when he elected to exercise his right to silence. The appellant relied on

the dictum by Cameron JA in the case of S v Ndhlovu 2002 (2) SACR

325 (SCA) to the effect that the magistrate must make a ruling on the

admissibility of hearsay evidence at the close of the state’s case so that

the accused can appreciate the full evidentiary ambit s/he faces.

The court distinguished the Ndhlovu case (supra) from the case before

it on the basis that the appellant in the instant case was not ‘ambushed’

by the admission of hearsay evidence because the prosecutor had

referred to hearsay evidence and, to s 3 of the Law of Evidence Amend-

ment Act 45 of 1988 in his opening statement. The court held that while

this may not be sufficient to alert an unrepresented accused to the dan-

110 SACJ *(2007) 1

(2007) 20 SACJ 110

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