S v Dielele

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mfenyana J
• Judgment Date: 06 September 2023
• Citation: 2023 JDR 3311 (NWM)
• Hearing Date: 29 June 2023
• Docket Number: CC18/2021
• Court: North West Division, Mahikeng

Mfenyana J:

[1]

The State seeks to introduce the statement of Mamokgalo Annah Bodumele (Ms Bodumele) into evidence, in terms of section 3(1) of the Law of Evidence Amendment Act, 45 of 1988 (the Act). Ms Bodumele is now deceased, having passed away before the commencement of the current proceedings.

[2]

During the hearing of the matter, two state witnesses, Ms Caroline Kujane and Ms Nthabiseng Kujane testified that at the time of her death, the deceased in Count 1, was in the company of Ms Bodumele, who is now, also deceased. On that basis, the State applied that the testimony of the two state witnesses, in so far as it related to what they were told by Ms Bodumele, be admitted provisionally.

[3]

It is contended on behalf of the State that, as Ms Bodumele is now deceased, she is unable to give evidence. Mr Nontenjwa further contended that the probative value of Ms Bodumele’s statement will

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be paramount, as it gives an eyewitness account of what transpired when the deceased was killed, and corroborates the evidence of the two state witnesses. In conclusion, the state concedes that although the accused person may suffer prejudice as he will not be able to cross-examine Ms Bodumele, as the author of the statement, such prejudice, is far outweighed by the interests of justice, and the admission of the statement will not render the trial unfair. The state placed reliance on the decision of the Constitutional Court in Kapa v The State [2023] ZACC 1 where the court held that a statement made by an eyewitness who had since become deceased, was “the only conduit through which the accused’s actions could be linked”.

[4]

It thus appears from the reading of the written submissions by Mr Nontenjwa on behalf of the state, that the application rests on the section 3(1)(c) of the Act which provides.

3.

Hearsay evidence

“(1)

Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless–

(a)

. . .

(b)

. . .

(c)

the court, having regard to–

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Mfenyana J

(i)

the nature of the proceedings;

(ii)

the nature of the evidence;

(iii)

the purpose for which the evidence is tendered;

(iv)

the probative value of the evidence;

(v)

the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(vi)

any prejudice to a party which the admission of such evidence might entail; and

(vii)

any other factor which should in the opinion of the court be taken into account,

is of the opinion that such evidence should be admitted in the interests of justice.

[5]

Section 3(3) further provides:

“(3)

Hearsay evidence may be provisionally admitted in terms of subsection (1)(b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of the account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is...