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The Constitutional Court (CC) judgment in Kapa v S 2023 (4) BCLR 370 (CC) handed down on 24 January 2023 marked a ground-breaking departure from the approach and treatment of hearsay evidence that has so far been standard practice. To unpack the gist of the judgment, it is necessary to revisit what hearsay evidence is, what the law provides and how this has been treated by the courts over the years.

Section 3(4) of the Law of Evidence Amendment Act 45 of 1988 (the Hearsay Act) defines ‘hearsay evidence’ as ‘evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence’. As a general principle, hearsay evidence is inadmissible. As Mbatha AJ who wrote for the minority in this judgment puts it, the reason for its inadmissibility is that ‘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 [accused’s] fair trial rights’ (see para 4 of the judgment where the judge referred to Savoi and Others v National Director of Public Prosecutions and Another 2014 (5) SA 317 (CC); and S v Ndhlovu and Others 2002 (6) SA 305 (SCA) at para 16). The Hearsay Act, however, provides for the exceptions to the rule under which hearsay evidence may be admitted. It is apposite to detail the nature of hearsay evidence led in Kapa before considering the exceptions to the rule against hearsay.

Mr Kapa was one of the seven accused who stood trial in the Western Cape Division High Court facing several charges forming part of vigilantism in Khayelitsha, including two of murder. Mr Kapa was convicted on one of the murder charges and was sentenced to 15 years’ imprisonment. He was acquitted on the rest of the charges. One of the reasons that led to his acquittal is that one of the state witnesses, Mr May, who happened to be the only eyewitness, repudiated his statement, and his evidence was expunged, meaning, no weight was attached to it.

Mr Kapa was thus convicted on a charge of murder of Mr Bungane (the deceased), who was accused of stealing his items including a car radio. His conviction was based on a statement made by Ms Dasi, the deceased’s girlfriend. Ms Dasi, however, did not live to give evidence, for she died shortly before the commencement of the trial. Mr Kapa opposed the state’s application to have Ms Dasi’s statement admitted as an exception against hearsay evidence. After applying the provisions in the Hearsay Act, the High Court admitted the statement as evidence. Ms Dasi’s statement was the only evidence that directly implicated Mr Kapa in the commission of murder against the deceased. Without this statement, there could not have been any conviction as none of the state witnesses incriminated Mr Kapa.

Mr Kapa’s applications for leave to appeal against conviction and sentence were dismissed by both the High Court and the Supreme Court of Appeal. The CC had to decide whether the admission of hearsay evidence tendered in the form of a statement made by Ms Dasi, infringed against his constitutional right to a fair trial. Three of the CC justices held that it did and they based their reasoning on the judgments of Ndhlovu and S v Ramavhale 1996 (1) SACR 639 (A). However, six justices who decided for the majority, took a different approach saying: ‘But where the interests of justice, constitutionally measured, require that hearsay evidence be admitted, no constitutional right is infringed’ (para 101). Interestingly, by referring to the interests of justice, the CC (through the majority judgment) was referring to the provisions of the Hearsay Act, which happened to be the basis on which Ramavhale, Ndhlovu and the minority judgment were centred. This necessitates the visitation of the Hearsay Act itself.

Section 3 of the Hearsay Act provides –

‘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)        each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;

(b)        the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or

(c)        the court, having regard to –

(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.

(2)        The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.’

The courts’ interpretation of the above provisions over the years, was summarised in the minority judgment when it held: ‘Courts are generally hesitant to admit hearsay evidence that is decisive in convicting an accused. The Supreme Court of Appeal in Ndhlovu stated that “admitting or relying on hearsay evidence which plays a decisive or even significant part in convicting an accused” should only be done “if there is compelling justification for doing so.”’

In holding that the interests of justice demand the admission of the hearsay evidence, Majiedt J who wrote for the majority held that the minority judgment ‘impermissibly evaluates the probative value of the statement in a piecemeal fashion. It should instead apply a holistic approach, assessing whether on the whole the statement was of adequate probative value in light of all of the other circumstantial evidence taken together. Approached in this way, the outcome must be different’ (para 98).

The CC was alive to the prejudice suffered by Mr Kapa in admitting the hearsay evidence, when it held: ‘The prejudice occasioned to the applicant as an accused person by the admission of the hearsay evidence is significant. The accused was deprived of an opportunity to cross-examine the witness, which could have shed light on the credibility and reliability of the witness, her powers of observation, and so forth.’ It, however, quoted from Ndhlovu (at para 24) with approval, where the following was held: ‘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 section 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’ (para 101).

The court concluded that, ‘it bears emphasis that the fact that the evidence in question evidently strengthens the prosecution’s case does not render the evidence prejudicial to an accused’ (para 102). It also concluded that, ‘there can hardly be any doubt that the applicant is being substantially prejudiced by the admission of the statement as he is deprived of the opportunity to cross-examine the deponent. But that is not the only consideration – the court must also consider the fact that the witness is deceased, and the overriding consideration of the interests of justice. Ultimately, the question is whether there are adequate pointers of truthfulness, reliability, and probative value for the statement to be admitted as evidence’ (see para 103).

There can be no doubt that Kapa ushers in a new era in the treatment of hearsay evidence in criminal trials. The admissibility of hearsay evidence has been made easier even when it is decisive in convicting an accused. The prejudice to be suffered by the accused persons was rightly acknowledged by the CC. One needs not look very far to see the consequences of this decision. It is common in cases involving vigilantism for witnesses to recant their statements during trial for reasons such as fearing for their lives. This is exactly what Mr May did in this case and it worked in favour of the accused. As the minority judgment correctly hinted, a possibility that Ms Dasi could have disavow her statement too, had she lived to give evidence cannot be excluded.

With this judgment, the question that begs to be asked is what impact it would have on all the cases in which witnesses are killed before giving evidence. Mr May lived to give evidence and through cross-examination, no weight could be attached to the statement he gave to the police. Ms Dasi died shortly before the trial started, and her statement was admitted without any question to the author as she was no more, resulting in the conviction of the accused. It does not look like the death (or even killing) of state witnesses would serve any benefit to the accused persons as it may even worsen their situation.

Whether the new dispensation adds value to the jurisprudence of criminal law, will depend on where one stands. Mr Bungane and Ms Dasi’s family was elated that justice could still be done even in death. Mr Kapa, however, felt prejudiced having been deprived of a right to cross-examine anyone implicating him in wrongdoing, especially that which led to his incarceration. Whatever the position, hearsay evidence as it is treated by the courts, would never be the same. The impact thereof in cases that up to now would have been withdrawn by the state due to unavailability of state witnesses, remains to be seen.

Thembeka Ratshibvumo BProc (UWC) LLB Adv Diploma in Labour Law Adv Diploma in Banking Law Certificate in Legislative Drafting (UJ) Certificate in Environmental Law Certificate in Contract Drafting (UP) is a legal practitioner and notary public at Ratshibvumo Attorneys Inc in Mbombela and Johannesburg.

This article was first published in De Rebus in 2023 (July) DR 12.