Recent Case: Law of Evidence

• Citation: (2023) 36 SACJ 153
• DOI: https://doi.org/10.47348/SACJ/v36/i1a8
• Published date: 31 July 2023
• Pages: 153-167
• Author: Whitear-Nel, N.
• Date: 31 July 2023

Law of Evidence

NICOLA WHITEAR-NEL

University of KwaZulu-Natal

1 Hearsay evidence: Section 3(1)(c) Law of Evidence

Amendment Act 45 of 1988, interests of justice test

The case of Kapa v The State (CCT 292/21) [2023] ZACC 1, 2023 (4)

BCLR 370 (CC); 2023 (1) SACR 583 (CC) (24 January 2023) concerns

the admission of hearsay evidence in terms of the interests of justice

test, as set out in s 3(1)(c) of the Law of Evidence Amendment Act 45

of 1988. In the case a minority and majority judgment were rendered.

The minority judgement was penned by Mbatha AJ (Baqwa AJ and

Rogers J concurring), and the majority deci sion was written by Majiedt J

(Kollapen J, Madlanga J, Mathopo J, Mhlantla J and Tshiq J concurri ng).

The applicant was convicted of the murder of Mr M Bungane (the

deceased) and was sentenced to 15 years’ imprisonment by the high

court. He applied for leave to appeal against the conviction and the

sentence to the high court, and then the Supreme Court of Appeal –

but both courts dismissed the applications. He then approached the

Constitutional Court for condonation and leave to appeal the high

court’s decision.

The case turned on whether the high court had acted correctly in

admitting the hearsay statement of the deceased’s girlfriend, Ms Dasi

in terms of s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988.

Ms Dasi had died before the trial (at para [3]) The main issue was the

probative value of Ms Dasi’s statement (at para [70]).

2 Jurisdiction

The minority decision held that the question of whether the admission

of Ms Dasi’s statement was in the interests of justice did engage the

court’s constitutional jurisdiction. This was because the interests of

justice test had a constitutional dimension and because the admission

of the hearsay evidence could be so unfair as to interfere with the

applicant’s right to a fair trial (at para [4], see also Savoi v National

Director of Public Prosecutions 2014 (5) SA 317 (CC) at para [49], S v

Basson 2005 (1) SA 171 (CC) at para [26], and S v Ndhlovu2002 (6) SA

305 (SCA) at para [16]). The court continued by saying, however, that if

it was decided that the admission of Ms Dasi’s hearsay statement was

in the interests of justice, the court’s jurisdiction would not extend to

Recent cases 153

https://doi.org/10.47348/SACJ/v36/i1a8

(2023) 36 SACJ 153

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