S v Ndhlovu and Others

• Jurisdiction: South Africa
• Citation: 2002 (2) SACR 325 (SCA)

S v Ndhlovu and Others
2002 (2) SACR 325 (SCA)

2002 (2) SACR p325

Citation	2002 (2) SACR 325 (SCA)
Case No	327/01
Court	Supreme Court of Appeal
Judge	Harms JA, Cameron JA and Heher AJA
Heard	May 7, 2002
Judgment	May 31, 2002
Counsel	H A Knopp for the first appellant.; S B S Dlwathi for the second and third appellants.; S I Bhabha for the fourth appellant.; D Vlok for the State.

Flynote : Sleutelwoorde

Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — Duty on judicial offficer — Trial court must be scrupulous to ensure respect for accused's fundamental right to fair trial — Presiding judicial official is generally under duty to prevent witness heedlessly giving vent to hearsay evidence — It is duty C of trial Judge to keep inadmissible evidence out, and not to listen passively — Act cannot be applied against unrepresented accused to whom significance of its provisions have not been explained — Accused cannot be ambushed by late or unheralded admission of hearsay evidence — Trial court must be asked clearly and timeously to consider and rule on its admissibility — This cannot be done for first time at end of trial, nor D in argument, still less in court's judgment, nor on appeal — Prosecution must clearly signal its intention to invoke provisions of Act and, before State closes its case, trial Judge must rule on admissibility, so that accused can appreciate full evidentiary ambit she or he faces — Decision on admissibility of evidence is, in general, one of law, not discretion, and Court on appeal is fully E entitled to overrule such decision by lower court if it considers it wrong.

Evidence — Admissibility — Hearsay evidence — Law of Evidence Amendment Act 45 of 1988, s 3 — Constitutionality of — Use of hearsay evidence by State doesn't violate accused's right to challenge evidence by cross-examination — Bill of Rights doesn't guarantee F entitlement to subject all evidence to cross-examination — What it contains is right to 'challenge evidence' — Where that evidence is hearsay, right entails that accused is entitled to resist its admission and to scrutinise its probative value, including its reliability — Provisions of Act enshrine these entitlements — Where interests of justice, constitutionally measured, require that hearsay G

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evidence be admitted, no constitutional right is infringed — Put A differently, where interests of justice require that hearsay statement be admitted, right to 'challenge evidence' doesn't encompass right to cross-examine original declarant — Act provides constitutionally sound framework for admission of hearsay evidence.

Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — Section B 3(3) of Act provides that hearsay may be 'provisionally admitted' if court is informed that person upon whose credibility probative value of such evidence depends will himself testify — When hearsay evidence is tendered, person on whose credibility probative value of hearsay depends may (i) testify and confirm its correctness; (ii) not testify; C (iii) testify but deny ever making hearsay statement; (iv) testify and admit making statement but deny its correctness; (v) testify but neither confirm nor deny making statement — If witness, when called, disavows statement, or fails to recall making it, or is unable to affirm some detailed aspect of it, situation under Act is not in substance materially different from when declarant doesn't testify at D all — Probative value of hearsay evidence depends primarily on credibility of declarant at time of declaration and central question is whether interests of justice require that prior statement should be admitted notwithstanding its later disavowal or non-affirmation — Hearsay not affirmed under oath is admissible only if interests of justice require it — Admissibility of all hearsay evidence E not affirmed under oath at proceedings in question depends on whether interests of justice require it.

Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — 'Probative value' — Probative value means value for purposes of proof — This means not only what will hearsay evidence prove if F admitted, but will it do so reliably.

Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — 'Prejudice' — 'Prejudice' in s 3 clearly means procedural prejudice to party against whom hearsay is tendered — It envisages fact that party against whom hearsay is tendered cannot cross-examine original declarant — That prejudice is always G present when hearsay is admitted — It must be weighed against reliability of hearsay in deciding whether, despite inevitable prejudice, interests of justice require its admission — Where interests of justice require admission of hearsay, provision does not require absence of all prejudice.

Headnote : Kopnota

The problem with s 3 of the Law of Evidence Amendment Act 45 of H 1988 is that the provision conflates the admissibility of hearsay evidence with its reliability. That aside, statute's fundamental test, namely the 'interests of justice', as well as the criteria it posits as relevant to that test, must be interpreted in accordance with the values of the Constitution of the Republic of South Africa Act 108 of 1996 and the 'norms of the objective value system' it embodies. I Nothing in the statute inhibits this normative reconfiguration. On the contrary, the scheme and formulation of the relevant provisions of the Act are consonant with the Constitution. (Paragraph [16] at 336f - 337a.)

A trial court, in applying the hearsay provisions of the Act, must be scrupulous to ensure respect for the accused's fundamental right to a fair trial. Safeguards, including the following, are important: Firstly, a presiding J

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judicial official is generally under a duty to A prevent a witness heedlessly giving vent to hearsay evidence. More specifically, under the Act, it is the duty of a trial Judge to keep inadmissible evidence out, and not to listen passively as the record is turned into a papery sump of 'evidence'. Secondly, the Act cannot be applied against an unrepresented accused to whom the significance of its provisions have not been explained. Thirdly, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The B trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the court's judgment, nor on appeal. The prosecution, before closing its case, must clearly signal its intention to invoke the provisions of the Act, and, before the State closes its case, the trial Judge must rule on admissibility, so that the accused can appreciate the full evidentiary ambit she or he faces. A further consideration bearing on the constitutionality of the C statute is that a decision on the admissibility of evidence is, in general, one of law, not discretion, and a Court on appeal is fully entitled to overrule such a decision by a lower court if it considers it wrong. Use of hearsay evidence by the State doesn't violate the accused's right to challenge evidence by cross-examination, if it is meant that the inability to cross-examine the source of a statement in D itself violates the right to 'challenge' evidence. The Bill of Rights does not guarantee an entitlement to subject all evidence to cross-examination. What it contains is the right (subject to limitation in terms of s 36) to 'challenge evidence'. Where that evidence is hearsay, the right entails that the accused is entitled to resist its admission and to scrutinise its probative value, including its reliability. The provisions enshrine these entitlements. But where the interests of justice, constitutionally measured, require that hearsay evidence be admitted, no constitutional right is infringed. Put differently, where the interests of justice E require that the hearsay statement be admitted, the right to 'challenge evidence' does not encompass the right to cross-examine the original declarant. (Paragraphs [17], [18], [22] and [24] at 337e - 338c, 339e - f and 340d - f.) F

Accordingly, the Law of Evidence Amendment Act 45 of 1988 provides a constitutionally sound framework for the admission of hearsay evidence. (Paragraph [26] at 341c.)

Section 3(3) of the Act provides that hearsay may be 'provisionally admitted' under ss (1)(b) 'if the court is informed that the person upon whose credibility the probative value of such evidence G depends, will himself testify'. A literal reading entails that a hearsay statement automatically becomes admissible simply because the extra-curial declarant happens to testify, regardless of the content of her or his testimony, and regardless of the interests of justice. It is hardly conceivable that the legislation intended this result. When hearsay evidence is tendered, the person on whose credibility the probative value of the hearsay depends may (i) testify and confirm its H correctness; (ii) not testify; (iii) testify but deny ever making the hearsay statement; (iv) testify and admit making the statement but deny its correctness; (v) testify but neither confirm nor deny making the statement. If the witness, when called, disavows the statement, or fails to recall making it, or is unable to affirm some detailed aspect of it, the situation under the Act is not in substance materially I different from when the declarant does not testify at all. The principal reason for not allowing hearsay evidence is that it may be untrustworthy since it cannot be...