IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

(1)	REPORTABLE: YES/NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED

         ……………………..		………………………...
                   DATE			        SIGNATURE

		Case number: SS 43/2012
JPV 2012/52

In the matter between:
THE STATE											 
And
DITHLAKANYANE, ISAAC TEBOGO						Accused No. 1
MOTAUNG, THABANG SAMSON						Accused No. 2
MKHWANE, HOLYNSWORTH							Accused No. 3
MKHWANE, KEDIBONE SYLVIA						Accused No. 4
KUNENE, LAURA									Accused No. 5
MCENCE, VUYOKAZI								Accused No. 6
KEKANA, JACK LESEJA								Accused No. 7
MOLEFE, KARABO LOUIS							Accused No. 8
NEMATHAGA, JACKY MASALA						Accused No. 9
SMITH, MALCOLM							          Accused No. 10
SCOTT, RICARDO								          Accused No. 11
MAKENETE, THABO BRADLEY					          Accused No. 12
______________________________________________________________________________

JUDGMENT
______________________________________________________________________________

INTRODUCTION

1.	The prosecution has brought an application in terms of section 2(2) of the Prevention of Organised Crime Act, 121 of 1998, (POCA)  for the admission of hearsay evidence contained in affidavits made by four witnesses who, for various reasons, are not available to give evidence.  This application is opposed  by all twelve accused on a number of different and overlapping grounds. 

2.	Section 2(2) of POCA  provides that “the court may hear evidence, including evidence with regard to hearsay……notwithstanding that such evidence might otherwise be inadmissible, provided that such evidence would not render a trial unfair”.

3.	The  indictment alleges that  a number of accounts in the South African Post Office Bank were defrauded of funds  in a theftuous manner by persons acting pursuant to a conspiracy  and therefore as part of ‘racketeering’ or an ‘enterprise’ as defined in and in contravention of POCA.  

4.	I have not seen the content of the affidavits which the state seeks to lead in evidence but,  since the absent witnesses are identified in the indictment and mention has been made of them in the course of the trial,  I  understand that  the content of those affidavits would be more or less along the lines that each is an accountholder,  that funds were withdrawn from such account  in a specific amount on  one or more specific dates and that such withdrawals were not made by the accountholder or were not authorized by them.    However, I do not base my ruling on any suppositions or speculation as to the content of these affidavits. 

5.	Ordinarily hearsay evidence is inadmissible for a number of reasons.   Certain exceptions to such inadmissibility developed over the years resulting in the  enactment of  the Law of Evidence Amendment Act 45 of 1988 (the 1988 Act)   which provided that “hearsay evidence shall not be admitted as  evidence at criminal proceedings”  unless certain  factors are taken into account which lead the court to the opinion that such evidence “should be admitted in the interests of justice”.       I   note that  Savoi supra  has stated that  section 2(2) of POCA  “effectively  does away with the hearsay rule” on charges under section 2(1) of POCA.    I am also mindful that  there is a filter to the admissibility of non-objectionable hearsay in the form of the proviso which has been appended to section 2(2).   

HEARSAY

6.	The first question which I need to  decide is whether or not it is hearsay evidence  (as contemplated in terms of section 2(2) of POCA) which the state seeks to lead in this application.   If the subject matter of this application is not hearsay  evidence then     section 2(2)  cannot assist and the application must fail.

7.	The 1988 Act  defines ‘hearsay evidence’  as ‘evidence, whether oral or in writing, the probative value of which depends on the credibility of any person other than the person giving such evidence”. 

8.	POCA does not define hearsay evidence.   The  recent judgment in  Savoi v NDPP 2014(1) SACR 545 CC  does not refer to any definition of hearsay but does refer to the judgment in Ndhlovu supra which  accepts the 1988 Act as containing the definition applicable in South African law. 

9.	I therefore approach this present application on the basis that,  for section 2(2) to come into play,  the  evidence  sought to be adduced by the state must depend for its probative value on the credibility of someone other than  the giver of evidence in court..  

10.	I understand that  this requires that the  affidavit must be hearsay,  that the content of the affidavit must be hearsay,   that the content of the affidavit  must depend for its probative value on the credibility of someone other than a person giving evidence in court.

11.	Advocate Vos,  appearing for the prosecution,  argued that   the contents of the affidavits are hearsay because  the court will not see the deponents to the affidavits in the witness box and cannot assess their credibility.   I now agree with Advocate De  Vox.   The court will not  see the deponent and cannot assess the credibility of the deponent.     The deponent to the affidavit is the source of the  content of the affidavit and the probative value of that content depends on credibility of the deponent.       The wording of the definition of hearsay  specifically requires that  that there be a “person other than the person giving such evidence” and that it is the credibility of  the non-evidence-giving  person which is  determinative of the probative value. 

12.	Advocate Vos than submitted that the  giver of the evidence is the person, whether a member of the SAPS or the Post Office,  who received or commissioned (or perhaps even wrote down) the affidavit.     The taker of the statement gives evidence whilst the probative value of that evidence depends on the credibility of someone else – namely the  deponent to the affidavit.  

13.	The   recipient or commissioner of the affidavit  cannot give evidence as to the content of the affidavit.  All he or she can say is that a statement was written down (by him or her or someone else),   that the maker of the statement took an oath that this was a true statement,  that such oath was given before a commissioner of oaths,  that the maker of the statement signed the document in the presence of the commissioner. In other words,  once there is a written document such as an affidavit sought to be adduced into evidence,  the only evidence which  the third party can give pertains to the circumstances of the making of the affidavit and not the content of the affidavit.    The third party who attends at court is a conduit witness who gives evidence but the probative value of the evidence depends on the credibility of another – the signatory/deponent to the affidavit.  

14.	Once the deponent has signed the document and sworn an oath that this is a true and correct statement,    then the deponent has made the statement his or her own.  It is not the statement of anyone else.    The deponent  has accepted responsibility for the contents of the affidavit.    Although someone else may have been present when it was written by the deponent,  may  even  have written out the document,  may have translated from one language into that in which the document is written, once the deponent signs the statement and once the deponent swears to the truth of the contents of the statement,   then the affidavit and its contents belong to the deponent and the contents stand or fall on the credibility of the deponent and no one else.   

15.	Advocate Vos correctly pointed out the anomaly  if  such affidavits were not  held to be hearsay.   On the one hand,  where  a witness  comes to court and testifies that another person made a verbal statement to him or her,  such witness would be giving hearsay evidence. It would be hearsay because the probative value of the evidence would depend on the credibility of  the absent  person who told something to the witness in court.    Such evidence  might or might not be admissible in terms of section 2(2) of POCA.     On the other hand,  as in the present case, where a  witness comes to court and attempts to hand in a statement signed and sworn to by an absent person   it would be absurd for such witness not to be permitted to hand in such affidavit.   Such absurdity  relies  on the grounds that the  probative value of the written document/affidavit  depends on the credibility  of another person,  the   deponent/signatory to the affidavit.    Hearsay may be contained in a written document.  

16.	In the result,  I rule that the affidavits of  Messrs and Mesdames Davison Nkomo,  Mphepu Maringa, Masechaba Mafatle and Norman Sikhosana are hearsay evidence and are subject  to  consideration in terms of section 2(2) of POCA.

THE PROVISO TO SECTION 2(2)

17.	The proviso to subsection (2) requires that the admission of hearsay evidence “would not render a trial unfair”.  

18.	In Savoi supra,   the  Constitutional Court  remarked that the  approach in section 2(2)  ‘effectively does away with the hearsay rule’ on certain charges  subject to protection of the fair trial right whilst the 1988  legislation ‘retains the exclusionary rule’ but permits  the admission of hearsay evidence only under certain circumstances.

19.	It is for the trial court to determine where the admission ‘would be so unfair as to infringe an accused’s fair trial right’.   Included in the issues  to be considered are the nature of the evidence, its reliability or lack of it, its probative value and prejudice to the accused.

20.	In the present case I have regard to the following:

a.	This  court does not know who interviewed each of the persons who made the affidavit sought to be led in evidence  (other than Mrs Sylvia van der Merwe in the case of Mr Davison Nkomo) and the circumstances under which each affidavit was commissioned.
b.	The court does not know what  particular or pertinent prejudice, if any, will result and the nature and degree of such prejudice if the admission is admitted.   In other words,  the  court knows only that the signatory/deponent cannot be cross-examined by the defence but does not know the nature of the evidence nor the impact upon the accused if the hearsay is admitted into evidence.   

21.	The defence objections to the admissibility of these affidavits are  firstly: 

a.	The State has failed  to conclusively  prove that Nkomo and Maringa are deceased.   I am satisfied that the state has  produced the best evidence available.
b.	The State has failed to take adequate steps to procure the attendance at court of Mafatle and Sikhosana.   I am satisfied that Mafatle  is no longer at the address  given by her to the Post Office and is believed to be in Lesotho but that the Embassy of Lesotho has not provided any assistance in tracing her.  I am satisfied that Sikhosasna can be contacted telephonically but his physical whereabouts are unknown and he is unwilling to give evidence and because he cannot be found, he cannot be subpoenaed or otherwise brought to court. 

22.	The prosecution has submitted that,  absent admission into evidence of these affidavits,  the accused (where the indictment relies upon these four account holders) would  probably be acquitted  on certain counts because  the accountholder cannot be called to personally give evidence  in  relation to those counts.    That may well be correct – but I have already placed on record that I do not know the content of the affidavit nor the probative value which  is capable of being placed  thereon.  

23.	The state has further  argued that  there is public interest that a court should hear all evidence against an accused.  I would prefer to phase the interest somewhat differently.  Public interest requires justice to be done;   justice can only be done when  a court has been furnished with the fullest possible  range  of available and admissible evidence;   justice then requires full and proper scrutiny and assessment of all such evidence.    Justice requires  fairness to both the accused and to the   public  but only information  obtained and tendered and filtered “in a constitutionally compliant manner”  should be admitted into evidence. 

24.	The defence objections to the admissibility of these affidavits  are secondly:
a.	The obvious prejudice to the accused is that, without  admission of these affidavits, there can be no convictions on certain counts.   Absent these affidavits, the state’s case is bound to fail.     I cannot know this.  I do not know this.    I have not seen the contents of the affidavit and none of the defence has asked that I do so.
b.	I am told that the admission of  these affidavits would  go to ‘the heart of the matter’.  I do not know that this is the case.  I doubt very much that the affidavits point to any one of the accused.  That is the’ heart’ of the  case.   
c.	In one instance,  accused 11 has made an admission in terms of section 220 of the CPA to the effect that  Mafatle did not request  the withdrawal from the relevant account.    I am told that  this is the only corroboration of that whichis contained in the affidavit.   It is argued that  admission of such affidavit  would constitute  ‘trial by ambush’ because,  absent this admission,  there would have been no evidence (other than the affidavit) of the existence of this offence.  It is argued that the section 220 admission was only made because  it was anticipated that the accountholder,  including Mafatle,  would give evidence. 
d.	It has been argued that admission into evidence of these affidavits would put the accused on their defence and may compel or propel them into giving evidence.  I cannot see that this can be the case.   There are many counts against each accused.   The case against each accused is not limited to only these four accountholders.    They are in exactly the same position vis a vis these accountholders as they are in relation to all the other accountholders.  They may elect or not to give evidence;  they may elect or not to dispute  the alleged  lack of consent by the accountholders to the withdrawals.   All  that these affidavits  may or may not do is provide  (no more than) hearsay evidence that an offence has been perpetrated – I do not know. 

25.	In the circumstances,  I  cannot see that the admission of the affidavits of these accountholders would be so unfair as  to infringe the fair trial rights of any accused.   The  evidence is of the nature of an affidavit – at the end of the day I may make no greater a finding than that a person made a statement under oath which  deponent cannot be questioned or challenged.   The reliability of the statement is, at this stage, unknown – at the end of the day having heard evidence of the circumstances surrounding the taking of  the affidavit   or having assessed any corroborating evidence  or perhaps even having heard from the accused,  I may  determine there is some or no reliability to the affidavit.  It will only be at the end of the trial,  when all the evidence is scrutinized and assessed that I will be in a position to determine if these affidavits have any probative value at all and if so, what.

26.	At the present  time,  the only prejudice to an accused of which I am aware is that to accused 11.   I have asked if it is open to accused 11 to withdraw his section 220 admission, have been informed that he cannot so do and my reading of the legislation suggests that accused 11 has no remedy. 

27.	Accordingly,  I take the view that:
a.	The affidavit of Mafatle is not admissible in evidence against accused 11.
b.	The affidavits of Nkomo,  Maringa, Mafatla and  Sikhosana are admissible in evidence against all other accused in terms of section 2(2) of POCA.
c.	The probative value, if any, of these affidavits falls to be determined at the end of the trial and in the context of all the evidence. 

DATED AT JOHANNESBURG ON THIS DAY THE 16TH OF OCTOBER 2014

__________________
k satchwell

For the State:  Advocate A. Vos
For Accused 1:  Advocate K. Lawlor
For Accused 2:   Advocate M. Baloyi
For Accused 3, Accused 5, & Accused 8: Advocate S. Nobangule
For Accused 4, Accused 6, Accused 10 & Accused 12:  Advocate A. Roestorf
For Accused 7 & Accused 9:  Attorney C. Pillay
For Accused 11:  Advocate J. Van Wyk
Date of Argument:  13th and 14th October 2014
Date of Judgment: 16th October 2014