IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

DATE: 3 MAY 2010

In the matter between:
THE STATE
and
1.	NELISWA NESTI GQALANE
2.	MZUKISI TWALAMATYE 
3.	 SIYABONGA BALENI

JUDGMENT

As the record indicates, the State has indicated that they wish to invoke the provisions of section 3 of Act of 1988 in respect of the admission of hearsay evidence and I will at this stage then give a ruling on that application.

At this stage of the proceedings, the State has presented evidence by the investigating officer of a statement made by accused 1 subsequent to her arrest on 25 May 2007. The circumstances in which the statement was made and the contents of that statement which contains certain admissions by accused 1, are contained in Exhibit H. I am not going to repeat the contents of that statement. Suffice it to say that the statement made by accused 1 directly implicates accused 2 and 3 in the commission of the crime.

Counsel for accused 1 did not object to the admissibility of the statement, either on the basis of hearsay or in terms of the provisions of section 219(a) of Act 51 of 1977, or for that matter on any constitutional principle. Counsel for the State, however, informed the Court that the State wishes to invoke the provisions of section 3 of Act 45 of 1988 and requests that the hearsay evidence is admitted as evidence against accused 2 and 3.

(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 (or one can read herself in there as well), testifies at such proceedings, or;
(c) the court having regard to

(iii) the purpose for which the evidence is tendered;

It is necessary to determine whether the evidence which forms the subject of this particular decision, is indeed hearsay evidence. In the past there has been some confusion as to whether a statement made by a party to the proceedings, is indeed hearsay evidence. The Act in section 4 clearly defines hearsay evidence and reads as follows:

"For the purposes of this section, hearsay evidence means 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."

Based on this definition, I have no doubt that the statement made by accused 1 in these circumstances, is in fact hearsay evidence as per the definition. I must, therefore, determine whether the evidence is to be admitted in terms of section 3. This decision involves a question of law.

The election to testify in a criminal case, is dependent upon a decision to do so by the accused herself. It is not a situation where, because of the absence of a potential witness, the

This is not. in my view, an instance where the provisions of section 3(1)(b) are applicable, which lends itself to the provisional admittance of the evidence based on the remote possibility that an accused may elect to testify at a later stage. Section 3(3), as far as this is concerned, reads as follows:

"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."

What remains is for this Court to decide whether such evidence should be admitted in the interests of justice. Now applying the facts and circumstances to the seven factors indicated in section 3(1)(c), is not an easy task.   The interest of justice in a broader sense, could entail circumstances where hearsay evidence implicating an accused is excluded, which could result in an acquittal. On the other hand the admission of such evidence in certain circumstances, could be so prejudicial that it could lead to an injustice and to a failure to afford the accused a fair trial. It is, therefore, for good reason that the courts, particularly in criminal matters, show some reluctance to invoke the provisions of the section and to admit such evidence on this basis.

The nature of the evidence on the face of the statement made by accused 1 is not difficult to establish. It is a statement which in essence does not admit to any wrongdoing on the part of accused 1 herself. In fact what it does is to distance her from the commission of the crimes and render her to the status of an observer rather than a perpetrator or an accomplice. The peculiar situation is that if the statement was a confession by accused 1, it would, by virtue of the provisions of section 219 of the Criminal Procedure Act. not be admissible as evidence against accused 2 and 3. There is perhaps much to be said for the argument that there should, in effect, not be any distinction made between the approach to be adopted in respect of a confession and the approach in respect of admissions in terms of hearsay provisions.

In considering the dangers inherent in the evidence, the fact that accused 1 made this statement after her arrest, and it is averred that she was part and parcel of a premeditated murder, are factors that cannot be ignored. The nature of the statement is that accused 1 in fact is attempting to proclaim her innocence and at the same time pointing fingers at accused 2 and 3. In circumstances where this evidence was presented by the State and accused 1 was a State witness, or even a witness in terms of section 204 of the Criminal Procedure Act, such evidence would be subjected to a thorough cross-examination by the parties disputing it.

"Did accused 3 and 4 have a motive unjustly to implicate accused 1 and 2? Where the declarant is himself suspected of participation, a motive to implicate another falsely, may be present if hearsay emanates from a self-exculpatory statement. That is not the position here. The declarants were under suspicion, but they confirmed that suspicion without ado by implicating themselves."
In my view the same argument cannot be made in respect of the position of accused 1 in this matter

In dealing with the other relevant factors, I have already touched upon many of the aspects which may cause real or potential prejudice to accused 2 and 3. As far as the procedural prejudice is concerned, I am of the view that this has been averted by the indication by counsel for the State, that the State wishes to invoke the provisions of section 3 before the State has closed its case. Counsel for accused 2 and 3 have had the opportunity to object to the admission of the evidence and argument in this regard has been tendered. The accused are aware of the possibility that the evidence may be admitted and will have had time to prepare to counter any effect that such admission may have, if this is at all possible.

In short, reference to section 3 was not made at a late stage, as was the case in many of the decided matters and a decision is being made before the closing of the State's case. The prejudice to accused 2 and 3 lies in the fact that there is very little other evidence implicating them and there are very few alternative options available to reduce the inherent dangers of admitting such evidence. Accepted techniques to do so, will be unavailable. The acceptance of this statement depends entirely on the credibility of accused 1. It is doubtful, at this stage, whether accused 1 will testify and be subjected to any form of scrutiny. Aspects mentioned in the statement will not be capable of being placed in context, or for that matter be clarified or even amplified.

The logical answer, I think, emanates from the facts before this Court, which include the fact that the State avers in its indictment and statement of facts, that accused 1 is not only involved in the crimes, but that it was a premeditated crime.

This is what the State set out to prove and this indicates that the State does not agree with the statement made by accused, indicating that she was in no way directly involved. The reliability of accused 1 in giving this version is, therefore, in essence placed in doubt from the very outset of the proceedings and it means that the State would not have considered her to be an open and honest witness, based on her statement made to the police.

This, I believe, plays a role in a situation where what the State is in fact doing is requesting that evidence against accused 2 and 3 be admitted based on the hearsay of a person, who is a co-accused, and whose credibility and reliability is already open to some doubt. This based on the allegations made by the State.

After considering all the relevant factors, I find that the statement of accused 1 as evidence against accused 2 and 3 in terms of the provisions of section 3(1)(c) of the relevant Act, should not be admitted in the interest of justice.