Recent Case: Law of Evidence

• Author: Meintjes-van der Walt, L.
• DOI: https://doi.org/10.47348/SACJ/v34/i3a6
• Published date: 23 February 2022
• Date: 23 February 2022
• Citation: (2021) 34 SACJ 507
• Pages: 507-520

Law of Evidence

LIRIEKA MEINTJES-VAN DER WALT

University of Fort Hare

1 Sigcawu v S (A47/2021) [2021] ZAWCHC 137 (28 July

2021), 2022 (1) SACR 77 (WCC): Admissibility of a dying

declaration

The appellant, Sigcawu, known as Kaizer, was found guilty in the

regional court in Caledon of unlawfully and intentionally killing

the deceased by shooting him with a rearm on 15 September 2012

(at para [1]). The appellant was granted leave to appeal his conviction

for murder (at para [2]). He contended that, inter alia, the court

erred (i) in relying on the evidence of a dying declaration of the

deceased; (ii) in nding that there were no material discrepancies

or improbabilities in the evidence of the state witnesses and, more

particularly, in the evidence of Nana (iii) in nding that the witness,

Nana, was honest, reliable and credible and (iv) in nding that Nana’s

evidence supports the evidence of the dying declaration. Lastly, the

appellant contended that the court erred in nding that the appellant’s

version was improbable and by rejecting the version of the appellant

(at para [3]). Both counsel for the prosecution and the defence were

invited specically to comment on (i) whether the magistrate was

correct in admitting the hearsay evidence without properly dealing

with it on the basis of the provisions of s 3(1)(a) and or 3(1)(c)

of the Law of Evidence Amendment Act 45 of 1988; (ii) the state’s

submission that such hearsay could be admitted in terms of s 3(1)(a)

in circumstances where the defence counsel acquiesced to the

submission of such evidence, which was the only evidence upon which

the court convicted the appellant; and (iii) to comment on, given the

circumstances under which the evidence was admitted, whether it can

be said that the appellant had a fair trial (at para [4]).

The witness, Fortuin, test ied that after having heard ve shots being

red, the deceased called out to her that Kaizer, who was employed

by the municipality, had shot him (at para [6]). She did not know who

Kaizer was but when the deceased said ‘Kaizer of Nana’ she realised

who the culprit was (at para [6]). The next witness was Booysen, a

policeman, who conrmed Fortuin’s evidence that she agged him

down. The deceased was still alive when he arrived on the scene and

upon enquiry as to who had shot him, the deceased i ndicated that

it was Kaizer, who worked at the municipality (at para [9]) and who

was in a relationship with Nana (at para [10]). Warrant Ofcer Adam s

https://doi.org/10.47348/SACJ/v34/i3a6

507

(2021) 34 SACJ 507

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