Case   CCT292/21
[2023] ZACC 01

Hearing Date: 11  August 2022

Judgement Date: 24 January 2023

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 24 January 2022 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the conviction and sentence by the High Court of South Africa, Western Cape Division, Cape Town (Trial Court). The application was brought by Mr Makhi Kapa (applicant), who was convicted of murder on the basis of the doctrine of common purpose, and sentenced to 15 years’ imprisonment. The central issue in the application was whether the hearsay statement of Ms Bomikazi Dasi, a deceased eyewitness, was correctly admitted as evidence in terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988.

The applicant’s conviction was linked to alleged acts of vigilantism at his house in Khayelitsha in 2018. He, along with six others, was charged with four counts of kidnapping, two counts of assault with intent to do grievous bodily harm, two counts of murder, and one count of attempted murder. The one count of murder related to the death of Mr Makhuze Bungane (the deceased) and the other to that of Mr Monwabisi Nkayi (the second deceased). The State led evidence consisting of: DNA evidence, blood spatter evidence, post-mortem reports, a warning statement made by one of the accused, the testimony of the deceased’s grandmother, the investigating officer’s testimony and Ms Dasi’s hearsay statement. The DNA evidence confirmed that the blood found at the applicant’s house belonged to the two deceased persons and that a violent, bloody event took place there involving both deceased. On advice from his legal representative, the applicant elected not to testify in his defence. The Trial Court relied heavily on Ms Dasi’s statement to place the applicant at the crime scene and to establish his involvement in the deceased’s death. After an analysis of the evidence, the Trial Court found the applicant guilty of one count of murder (that of the deceased) and acquitted him of all other charges and sentenced him to 15 years’ imprisonment.

The applicant’s applications to both the High Court and Supreme Court of Appeal for leave to appeal were refused. Aggrieved by the decisions, the applicant approached the Constitutional Court. Before the Constitutional Court, the applicant argued that the Court had jurisdiction on the basis that his right to a fair trial, in terms of section 35 of the Constitution, was infringed by the admission of Ms Dasi’s hearsay statement. He contended that Ms Dasi’s statement should not have been admitted into evidence for the following reasons. First, he contended that the statement did not comply with regulation 2(1) of the Regulations made in terms of section 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963. Second, he argued that Ms Dasi could not appear before the Trial Court so that the veracity of her statement could be tested by cross-examination. Third, the applicant contended that Ms Dasi’s statement contained evidence that was not corroborated by any other witness. Fourth, he submitted that Ms Dasi’s statement was a decisive piece of evidence and it played a central role in his conviction. In respect of sentence, the applicant argued that the Trial Court overemphasised the seriousness of the crime and the applicant’s role. Furthermore, he argued that the Trial Court failed to properly consider his personal circumstances and the interests of society.

The State, in its submissions to the Court, disputed jurisdiction. This was so, according to the State, because the matter concerned the ordinary principles of the law of evidence, and turned on an established common law principle. On the merits, the State argued that the Trial Court correctly admitted Ms Dasi’s statement. It contended that the applicant’s sentence was appropriate, since the violent attack was directed at several victims, took place over an extended period of time, and the applicant only received the minimum sentence.

The first judgment, the judgment of the minority, penned by Mbatha AJ (Baqwa AJ and Rogers J concurring) held that the application engaged the jurisdiction of the Court because the statutory interests-of-justice test for the admission of hearsay evidence has a constitutional dimension, and the admission of hearsay might be so unfair as to infringe the applicant’s fair trial rights in terms of section 35(3) of the Constitution. The first judgment thus concluded that it was in the interests of justice for this Court to grant the applicant leave to appeal.

On the merits, and after an application of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, the first judgment concluded that it was not in the interests of justice for the Trial Court to have admitted Ms Dasi’s statement. This was so for the following reasons. Ms Dasi’s evidence was identificatory in nature and she was the sole eyewitness relied upon to establish that the accused was present at the scene of the crime. This mitigated in favour of non-admission, as eyewitness identification is notoriously fallible and prone to error. The first judgment opined that what was required under these circumstances, in order to establish the guilt of the applicant, was independent corroborative evidence as to the identification of the applicant and in particular the presence of the applicant when the assaults were perpetrated and his involvement in the assaults. The first judgment, citing S v Ndhlovu 2002 (6) SA 305 (SCA), noted that courts are generally hesitant to admit hearsay evidence that is decisive in convicting an accused. The first judgment noted further that Ms Dasi’s evidence was decisive in convicting the applicant – this was evident because the applicant was acquitted on the murder of Mr Nkayi and found guilty of the murder of the deceased, and the only difference in the evidence was Ms Dasi and the role that she ascribed to the applicant in respect of both deaths.

On the reasoning of the first judgment, once there was a finding that Ms Dasi’s statement was inadmissible, the applicant’s conviction fell to be set aside. In the premises, had the first judgment commanded the majority, it would have upheld the appeal and set aside the conviction and sentence.

The second judgment, which is the majority judgment, written by Madjiedt J (Kollapen J, Madlanga J, Mathopo J, Mhlantla J and Tshiqi J concurring) held as follows. The appeal against conviction engaged the jurisdiction of the Court and that it was in the interests of justice to grant leave to appeal to hear that appeal. The second judgment held that the Court has jurisdiction on the basis that there was sufficient evidence before the Court to suggest, prima facie, that there may have been a serious breach of the applicant’s right to a fair trial entrenched in section 35 of the Constitution. It held, however, that the appeal against sentence did not engage the Court’s jurisdiction and thus leave to appeal against the applicant’s sentence fell to be refused.

On the merits, however, the second judgment saw matters differently. The second judgment acknowledged the general aversion to the admission of hearsay evidence in criminal cases, since hearsay’s reliability cannot be tested by cross-examination or other processes. Notwithstanding, the second judgment held that hearsay evidence will be reliable and, subject to the assessment and conclusions on the other considerations, admissible if it is not contradicted by “other objectively proven facts” and ultimately, “fit[s] into the picture” sketched by the rest of the evidence. The second judgment also relied on the Supreme Court of Appeal’s judgment in Ndhlovu, where hearsay evidence was admitted due to “the numerous pointers to its truthfulness”.

In evaluating whether it was in the interests of justice to admit Ms Dasi’s statement, the second judgment considered all of the factors listed in section 3(1)(c) of the Law of Evidence Amendment Act. The consideration that was central to the case, which also happened to be the most contentious, was probative value.

In assessing the probative value of the statement, the second judgment recognised, that in key respects, Ms Dasi’s statement mirrored all the objective evidence placed before the Trial Court. In particular, the second judgment highlighted the congruity between the Ms Dasi’s statement, the post-mortem evidence, the DNA evidence and the blood splatter evidence at the applicant’s house. The post-mortem report concluded that the deceased’s cause of death was consistent with extensive blunt force injury to his head and body. The DNA evidence also indicated that the blood found at the applicant’s house belonged to the deceased. All of this was consistent with the account of the events detailed in Ms Dasi’s statement.

The second judgment took the view that Ms Dasi’s statement had to be evaluated holistically, and not in a piecemeal fashion, as the first judgment sought to do. Viewed against the totality of evidence, there were clearly numerous indicators of the truthfulness of Ms Dasi’s statement. There was corroboration of a significant number of material aspects of the statement, the uncorroborated aspects of the statement did not contradict other objectively proven facts and they fitted into the overall picture that had been established by all of the other objectively proven facts. For these reasons, the second judgment held that Ms Dasi’s statement had sufficient probative value to warrant its admission. In the premises, the second judgment dismissed the appeal against the applicant’s conviction.



The Full judgment  here