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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 438/20

In the matter between:

MAWANDA MAKHALA

FIRST APPELLANT
VELILE WAXA

SECOND APPELLANT
and
THE STATE
RESPONDENT

Neutral citation: Makhala & Another v The State (438/2020) [2021]
ZASCA 19 (18 February 2022).
Coram:
MOCUMIE, MAKGOKA and MOTHLE JJA and MEYER
and UNTERHALTER AJJA
Heard:
2 November 2021
Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down
is deemed to be 12h00 on 18 February 2022.
Summary:  Criminal Procedure – State witness recanting prior
inconsistent statements – the constitutional rights of witness – hearsay
evidence – admissibility of statements – section 3(1) of the Law of
Evidence Amendment Act 45 of 1988 – admissibility at common law –

declaration of a witness as hostile – accomplice evidence – cautionary rule
– corroborative evidence – burden of proof.

ORDER

On appeal from:  The High Court, Western Cape Division, Eastern Circuit
Local Division (Henney J, sitting as the court of first instance):
The appeal is dismissed.

JUDGMENT

Unterhalter AJA

Introduction
[1] The first and second appellants were convicted by Henney J in the
high court on one count of murder, one count of possession of an
unlicensed firearm and one count of the unlawful possession of
ammunition. The appellants were each sentenced to life imprisonment for
the murder and five years of imprisonment on the remaining counts, which
were ordered to run concurrently with the life sentences. The appellants
were granted leave to appeal to this Court.

[2] On 23 July 2018, Mr Molosi attended a school governing body
meeting at Concordia High School. He was the chair of the governing
body. He was also a councillor of the Knysna Municipal Council. After the
meeting, he was given a lift and dropped off near his home. While walking
home, he was shot and killed.

[3] A team of police officers was appointed to investigate the murder.
The police received information that the first appellant, Mr Mawanda
Makhala, was seen in the Pop Inn Tavern in Concordia on the weekend
before the murder, with two other persons, one of whom was his brother,
Mr Luzuko Makhala. On 1 August 2018, Sergeant Wilson traced Luzuko
Makhala who confirmed that he was in the area during the weekend of the
murder. Luzuko Makhala said that he had given a lift to an unknown man
in the Eastern Cape and then drove to Knysna over the weekend in
question. Sergeant Wilson, however, viewed camera footage of the N2
highway, which showed that Luzuko Makhala’s vehicle was travelling
from Cape Town to Knysna on 22 July 2018.

[4] Confronted with this evidence, according to Sergeant Wilson,
Luzuko Makhala indicated that he wished to recount his part in the murder
of Mr Molosi. His rights were explained to him. Luzuko Makhala was
informed that he would be treated as a witness under s 204 of the Criminal
Procedure Act 51 of 1977 (CPA). Section 204 permits a witness to give
incriminating evidence for the prosecution. Upon testifying frankly and
honestly, such a witness may be discharged from prosecution by the court.

[5] Luzuko Makhala gave first statement to Colonel Ngxaki on 13
August 2018. Colonel Ngxaki, a policeman of some 25 years’ experience,
gave evidence at the trial. He testified that Luzuko Makhala was informed
of his constitutional rights: his right to legal representation, his right to
remain silent and not to incriminate himself. Section 204 of the CPA was
also explained to him. Freely and voluntarily, according to Colonel
Ngxaki’s testimony, Luzuko Makhala made a detailed statement that

Colonel Ngxaki wrote down. I shall refer to this statement as the first
statement.

[6] The following was recorded in the first statement. The second
appellant, Mr Velile Waxa, was an independent councillor of the Knysna
Municipal Council. Mr Waxa sought the services of a hitman to kill Mr
Molosi, a councillor representing the African National Congress (ANC).
Mawanda Makhala (first appellant) asked whether his brother, Luzuko
Makhala, knew of such a person. Luzuko Makhala did. The person he
procured was the third accused in the trial, Mr Vela Dumile. Luzuko
Makhala introduced Mr Dumile to Mr Waxa. He brought Mr Dumile from
Cape Town to Knysna to kill Mr Molosi. In addition, he facilitated the
killing by ensuring that Makhala pointed out the home of Mr Molosi to Mr
Dumile prior to the shooting and after that, Mr Dumile shot Mr Molosi.
Thereafter, Luzuko Makhala   transported Mr Dumile back to Cape Town.

[7] Luzuko Makhala gave a second statement to Sergeant Mdokwana.
Sergeant Mdokwana was transporting Luzuko Makhala from Knysna back
to Cape Town. Luzuko Makhala recounted that on 18 July 2018, he had
received a call from Mr Waxa, who said that he would be sending him
R1000 to purchase petrol to transport Mr Dumile to Knysna. On 20 July
2018, Luzuko Makhala drew the money, and Mr Waxa called him to
confirm whether he had received the money. Sergeant Mdokwana asked
Luzuko Makhala whether he would confirm this in a statement. He agreed,
and this was done. I shall refer to this as the second statement. Luzuko
Makhala also handed over his Nokia cell phone.

[8] The first and second statements incriminated Mawanda Makhala, Mr
Waxa, Mr Dumile and Luzuko Makhala in the murder of Mr Molosi. The
trial court admitted the first and second statements into evidence and relied
upon these statements to convict the accused of murder and the related
counts. The central question in this appeal is whether the trial court was
correct to do so. It is common ground in this appeal that without recourse
to this evidence, the appellants' convictions cannot stand.

The trial court’s judgment
[9] The State called Luzuko Makhala to give evidence. Without
forewarning to the prosecution, Luzuko Makhala recanted the contents of
his first and second statements that incriminated himself and the accused
in the murder. The prosecution sought to have Luzuko Makhala declared a
hostile witness. The trial court did so. Luzuko Makhala testified that the
incriminating portions of the statements were fabrications that the police
forced him to record in the statements. He claimed that he was intimidated
by the police and threatened with assault and as a result, made statements
that he thought the police wanted from him.

[10] The trial court's judgment, quite properly, devoted considerable
attention to the first and second statements and whether the State could
place reliance upon them, in the light of Luzuko Makhala’s recantation in
the witness box of the incriminating portions of the statements.

[11] First, the trial court considered whether Luzuko Makhala was forced
to make the statements by the police and did not do so freely and
voluntarily. The trial court found that the evidence of Colonel Ngxaki and

Sergeant Mdokwana, who took down the statements, was ‘overwhelmingly
convincing’ and corroborated by Sergeant Wilson. Luzuko Makhala was
found to be the author, originator and principal source of the two
statements.

[12] Second, the trial court considered whether the first and second
statements should be admitted into evidence in terms of s 3(1) of the Law
of Evidence Amendment Act 45 of 1988 (the Hearsay Act). Upon a
consideration of the factors listed in s 3(1)(c), the trial court admitted the
two statements into evidence. Among the factors considered were the
probative value of the evidence and the caution that was warranted before
admitting the statements, given Luzuko Makhala’s participation in the
commission of the crimes. The trial court considered the risk of falsity to
be minimal. Furthermore, the content of the statements included
information otherwise unknown to the police. Aspects of the statements
were also confirmed by independent and objective evidence, principally
the identification of the third accused, Mr Dumile, by Dumisani Molosi
and Mrs Molosi (the son and wife of the deceased). They identified Mr
Dumile as the person who had come to the Molosi’s house to inquire as to
the whereabouts of Mr Molosi before the murder. This, the trial court
found, supported the probative value of the statements.

[13] Third, the trial court assessed the evidence given by the accused at
trial and the witness who testified on behalf of the third accused. The
evidence of the accused was found not to be reasonably possibly true and
was rejected as false.

[14] The trial court concluded that the accused were guilty on all three
counts. The admission of the first and second statements into evidence by
the trial court was central to this holding by the trial court.

The issues on appeal
[15] The appellants challenged the trial court’s admission and use of the
first and second statements. If these statements should not have been
admitted into evidence or the use of this evidence was otherwise excluded,
then, given the decisive centrality of the statements, the appellants'
convictions are unsound. This was common ground between the parties,
and this position is not to be doubted.

[16] Though overlapping in certain respects, the appellants' challenges
may broadly be understood as follows. First, the statements must have been
lawfully given. If the statements were not given freely and voluntarily, or
were extracted in violation of the rights of Luzuko Makhala, or were
induced by false assurances, or were otherwise compromising of the
standards that render a trial fair, then no reliance should have been placed
upon the statements, and the trial court was in error in doing so. If evidence
is illegally obtained, it stands to be excluded. I shall refer to this challenge
as the legality challenge.

[17] Second, the appellants contended that the trial court should not have
admitted the statements into evidence. The admissibility of the statements
is not simply a question of the application of s 3(1)(c) of the Hearsay Act,
more is required. Here too, questions of voluntariness, reliability, accuracy
and an appreciation of the circumstances under which the statements were

given must be considered. The appellants’ submitted that the statements do
not measure up to what is required of a trial court for it to place reliance
upon the statements. In addition, the appellants’ contended, the trial court
should have considered whether justice is served by reliance upon hearsay
evidence, as the key evidence by recourse to which the trial court convicted
the appellants. The trial court did not do so. For these reasons also, the
convictions cannot, therefore, stand. I shall refer to this as the hearsay
challenge.

[18] Third, the trial court admitted the statements consequent upon its
declaration that Luzuko Makhala was a hostile witness. The appellants
submitted that the trial court erred in this declaration because it failed
properly to appreciate what it is to be a hostile witness. Luzuko Makhala
was not a hostile witness, and hence his prior statements ought not to have
been admitted into evidence. I shall refer to this as the hostile witness
challenge.

[19] Fourth, the statements were made by an accomplice. The dangers of
such evidence are well known. Although the trial court referenced the
cautionary rule of application to the statements of an accomplice, the trial
court failed properly to assess the risks inherent in the statements. Had the
trial court done so, it would not have placed the reliance that it did upon
the statements. For this reason also, the convictions are, therefore,
unsound. I shall refer to this as the cautionary challenge.

[20] Lastly, even if the statements are admitted or relied upon, and given
that Luzuko Makhala was plainly a liar and dishonest, more was required

by way of corroboration for the State to prove its case beyond reasonable
doubt. Such corroborative evidence, as there was, did not discharge the
State’s burden of proof. Hence, the convictions cannot stand. I will refer to
this as the onus challenge.

[21] I shall consider these challenges in turn.

The legality challenge
[22] At common law, the general rule was that relevant evidence was
admissible, notwithstanding the want of legality in its production.1 This
rule was subject to the recognition that the courts enjoyed a discretion to
exclude evidence, otherwise admissible, that operated unfairly against the
accused.2 The common law’s residual regulation of illegally obtained
evidence has been changed by s 35(5) of the Constitution. This provision
reads as follows, ‘[e]vidence obtained in a manner that violates any right
in the Bill of Rights must be excluded if the admission of that evidence
would render the trial unfair or otherwise be detrimental to the
administration of justice’. As S v Tandwa3 explained, s 35(5) allows that
the admission of evidence that violates a right in the Bill of Rights will not
always render the trial unfair, but the evidence must be excluded if it does
so. So too, such evidence may not render the trial unfair but may
nevertheless be detrimental to the administration of justice. If that is so,
then the evidence must also be excluded.

1 S v Pillay 2004 (2) SACR 419 (SCA) para 6.
2 See S v Mushimba 1977 (2) SA 829 (A) citing Kuruma Son of Kaniu v Reginam (1955) 1 All E.R. 236
op bl. 239.
3 S v Tandwa and Others [2007] ZASCA 34, 2008 (1) SACR 613 paras 117-120.

[23] The framing of s 35(5) is distinctive in the scheme of s 35 because
it is not specifically formulated to regulate the rights of arrested, detained
or accused persons, as is the case in ss 35(1)–(3). In S v Mthembu,4 this
court observed that s 35(5) requires the exclusion of evidence improperly
obtained from any person, not only from an accused. This must be so
because the provision is concerned to ensure that the trial is fair and to
secure the administration of justice from any detriment. While much of a
trial’s fairness is concerned with the rights of the accused, the
administration of justice has a wider remit that seeks to uphold the integrity
of our institutions of justice. It follows that if evidence is procured from a
person, whether or not that person is an accused, in a manner that violates
the Bill of Rights, then s 35(5) is engaged to determine whether such
evidence should be excluded. Thus, s 35(5) will be of application to the
two statements procured from Luzuko Makhala if the statements were
obtained in a manner that violated his rights in the Bill of Rights. I turn to
consider this question.

[24] The appellants contended that the two statements were procured
from Luzuko Makhala in violation of his rights. Those rights are claimed
to have been violated because the statements were not made voluntarily,
that is, of his own free will. Rather, they were induced by false promises
that he spoke under indemnity from prosecution. Luzuko Makhala was also
not given his right to consult a lawyer, nor was he informed of his right
against self-incrimination.

4 S v Mthembu [2008] ZASCA 51; [2008] 3 All SA 159 (SCA); [2008] 4 All SA 517 (SCA); 2008 (2)
SACR 407 (SCA) para 27.

[25] These contentions must surmount a threshold issue: was Luzuko
Makhala a detained, arrested or accused person, and if not, what rights of
his in the Bill of Rights were violated? This issue arises because ss 35(1)-
(3) confer rights upon everyone who is arrested (ss (1)), everyone who is
detained (ss (2)), and to every accused person (ss (3)). The evidence of the
policemen who engaged with Luzuko Makhala, which the trial court
accepted, does not show that he was arrested, detained or became an
accused person. On the contrary, as I have recounted, Sergeant Wilson took
up his enquiries with Luzuko Makhala to ascertain his whereabouts over
the weekend of 22-23 July 2018. Luzuko Makhala was not even a suspect
at that stage. Rather, Sergeant Wilson questioned him again because the
account he had given did not tally with the camera footage seen by Sergeant
Wilson. It was then that Luzuko Makhala chose to cooperate with the
police and make the statements that he did.

[26] Clearly, upon indicating his willingness to make a statement of his
complicity in the murder, Luzuko Makhala was an accomplice. However,
at no point, as evidenced by the facts, was he detained or arrested; he
proceeded to make the first and second statements willingly. The clear
understanding of the prosecution was that he was to testify for the State at
the trial and was called as a witness to do so. His surprise recantation in the
witness box of his prior statements took the prosecution by surprise and
resulted in him being declared a hostile witness. This sequence of events
demonstrates that Luzuko Makhala was never an arrested, detained or
accused person, even under the most extended meanings of these concepts.

[27] It follows that Luzuko Makhala   had no rights under s 35 that could
have been violated. Bearing this in mind, what other rights in the Bill of
Rights might Luzuko Makhala have enjoyed? None were suggested to us
by counsel.

[28] Counsel for the appellants did, however, submit that the right to a
legal practitioner, the right to remain silent and the right to make a
statement voluntarily were rights enjoyed by a suspect and that Luzuko
Makhala was, or at least became, a suspect when he indicated that he would
make a statement to the police concerning his participation in the murder.

[29] Our case law has not taken a consistent position as to whether the
rights recognised in s 35, that are of application to arrested or detained
persons, are also enjoyed by persons suspected by the police of committing
a crime, who have not been arrested or detained. The different positions
are well summarised in S v Orrie.5 In what measure suspects enjoy, some
of the rights extended to detained and arrested person is not settled.
However, once a person is a suspect, what they say that is incriminating is
likely to have consequences. They may be arrested, detained and ultimately
accused of the crime, or they may seek to assist the prosecution as a
witness. Either outcome carries significant legal entailments. This provides
the justification for recognising that a suspect should be informed of their
right to remain silent, the consequences of not doing so, and their right to
secure the services of a legal practitioner.

5 S v Orrie and Another [2005] 2 All SA 212 (C); 2005 (1) SACR 63 (C).

[30] However, any such rights of a suspect cannot derive from s 35.
Section 35 is concerned with the rights of arrested, detained and accused
persons. To be a suspect will ordinarily be the basis for a person to be
arrested, detained or accused. However, being a suspect does not, without
more, make a person one who is arrested, detained or accused. Hence, the
rights of a suspect are not recognised in s 35. It may be that these rights
could fall within the scope of the right to security of the person (s 12 of the
Constitution), or more tenuously, the right to the protection of dignity (s
10 of the Constitution) or as an incident of the protections provided under
the Judges’ Rules to suspects,6 when deciding whether evidence of what
they have said may be used in evidence at a trial.

[31] I will assume, without deciding, that a suspect is entitled, before
taking a step that may have significant implications, to be informed of their
right to silence and their right to consult a legal practitioner. I will also
assume, without deciding, that quite apart from s 35(5) of the Constitution,
the common law rule that excludes illegally obtained evidence continues
to have application in circumstances where s 35(5) is not of application
because the right infringed is not a right in the Bill of Rights.

[32] On these assumptions, does any basis exist to conclude that Luzuko
Makhala had his rights as a suspect infringed, and if so, that the appellants’
trial would be rendered unfair by admitting into evidence the two
statements, or would there be detriment to the administration of justice?

6 See S v Mthethwa 2004 (1) SACR 449 (E).

[33] The appellants relied on the form that was used to take down the first
statement upon which the following was recorded: only the Director of
Public Prosecutions (DPP) can make a decision as to whether Luzuko
Makhala would be utilized as a witness in terms of s 204 of the CPA;
should the DPP decline to do so his statement will not be tendered by the
State in evidence against him; Luzuko Makhala was warned that he is
under no obligation to make any statement or admit anything that may
incriminate him; he may first consult an attorney and obtain legal advice
before making a statement; and that he makes the statement voluntarily.
The appellants contend that the first statement does not record how Luzuko
Makhala responded to the warnings and information given in the statement,
nor whether the information given to him was properly understood.

[34] There are a number of obstacles that the appellants would have to
surmount to make out a basis for excluding the two statements on the basis
that Luzuko Makhala’s rights were violated.

[35] First, if Luzuko Makhala enjoyed rights as a suspect, when did he
become a suspect? When Sergeant Wilson presented him with evidence
that he was driving from Cape Town to Knysna, and not from the Eastern
Cape, Sergeant Wilson’s testimony was that LuzukoMakhala was
apologetic, and at that stage, wished to tell the police what had happened.
Luzuko Makhala was not a suspect when confronted by Sergeant Wilson
with the evidence that his prior account of his movements was untruthful.
His decision to make a statement to the police was not as a suspect, but
according to Sergeant’s Wilson testimony, a freely made response, having
been caught in an obvious falsehood. Whatever Luzuko Makhala’s

reasons, he decided to co-operate with the police and make a statement
before he was a suspect, and without any coercion. Once that is so, the
police were under no duty, at that stage, to warn him of his rights to remain
silent and to consult a legal practitioner. He had no such rights because he
was not a suspect. He was simply a person assisting the police with their
investigation and chose to tell the police what he knew. It may be that once
Luzuko Makhala had conveyed his decision to Sergeant Wilson that he
wished to come clean that he became a suspect. However, by then, the die
was cast, his choice was made, and it is hard to imagine why he could then
claim the right to remain silent and the right to consult a legal practitioner.

[36] Second, even if Luzuko Makhala was a suspect, on the evidence of
Sergeant Wilson, Colonel Ngxaki, and Sergeant Mdokwana, which
evidence was all accepted by the trial court, there was no indication that
any of his rights were violated. Colonel Ngxaki informed Luzuko Makhala
of his right to silence, his right not to incriminate himself and his right to
consult with a legal practitioner. There was no indication that Luzuko
Makhala did not understand what was being said to him or that he wished
to have time to consider his position and procure the services of an
attorney. Luzuko Makhala had chosen to assist the police. His position as
a potential witness for the prosecution was explained to him. The use to
which his statement could be put was also made clear. He was making the
statement voluntarily. Luzuko Makhala’s testimony that his statements
were coerced by the police and fabricated to do their bidding was rejected
by the trial court, and rightly so. There is no reason to revise that
assessment of this evidence by the trial court. On the facts found by the
trial court, based not simply on the form used to capture the statements but

the testimony of the policemen who attended upon Luzuko Makhala when
he made the statements, there was no violation of his rights.

[37] The appellants also contend that the form used by Colonel Ngxaki,
when taking down the first statement, contained the misleading
undertaking that Luzuko Makhala’s incriminating statement would not be
used against him if he was not accepted as a state witness. This, it was
submitted, is not the position because s 204(4)(a) of the CPA protects a
State witness who testifies at trial but is not discharged from prosecution.
The provision does not protect the prior statements of a witness who may
never become a state witness at all. Whether the prior statement of a
witness may be admitted into evidence is a matter to which I will come.
On this aspect of the case, however, it suffices to observe that there was no
showing that the undertaking was in any way operative in bringing about
Luzuko Makhala’s willingness to give the statements that he did. As I have
explained, that came about at an earlier point in his engagement with the
police and for reasons unconnected to any prudential assessment of what
his statement could be used for.

[38] Third, s 35(5) of the Constitution excludes evidence obtained in a
manner that violates any right in the Bill of Rights if the admission of that
evidence would render the trial unfair or otherwise be detrimental to the
administration of justice. As I have observed, Mthembu held that s 35(5)
of the Constitution requires evidence of any person, not only the evidence
of the accused, to be excluded if obtained in violation of that person’s rights
in the Bill of Rights. Even if the appellants could substantiate their
contention that some right of Luzuko Makhala was violated, how does that

render their trial unfair or give rise to detriment to administration of
justice? That case was not made out by the appellants. Luzuko Makhala
gave evidence at the trial. He was available to be cross-examined on every
aspect of the two statements and the circumstances in which they were
made. Indeed, upon his recantation in the witness box, Luzuko Makhala
did everything he could to assist the appellants’ case. In these
circumstances, it is hard to discern how the trial was rendered unfair. There
was no unfairness visited on the appellants. Just as the trial court accepted
the evidence of the policemen who testified as to how the statements came
to be made by Luzuko Makhala, I similarly conclude: there was no
coercion; he acted voluntarily, out of some combination of apology and
self-interest. No detriment to the administration of justice is apparent.

[39] In summation, then, whether under s 35(5) of the Constitution or at
common law, the two statements were not obtained in violation of Luzuko
Makhala’s rights. The trial was not rendered unfair by the admission of the
statements, nor was there anything done in securing the statements that
constituted any material detriment to the administration of justice. The
legality challenge must therefore fail.

The hearsay challenge
[40] The hearsay challenge gives rise to a number of issues. It will be
recalled that the hearsay challenge proposes that the extra-curial statements
made by a witness who is an accomplice should not be admitted into
evidence as against the accused, or should not be admitted without careful
consideration of the dangers of doing so, in order to preserve the fairness
of the trial. Among the matters that will warrant consideration are the

following. Were the statements made voluntarily? Is there reason to think
the statements are truthful? What of the dangers inherent in an
accomplice’s evidence? Finally, what of the risks associated with the
admission of hearsay evidence?

[41] Our courts have offered different approaches as to how to treat the
admissibility of the extra-curial statements of a witness. Sometimes the
witness is an accused whose extra-curial statements are sought to be
admitted into evidence against their co-accused. Sometimes, as in the
present matter, the extra-curial statements are those of a witness who is an
accomplice. In other cases, the witness may be neither an accused nor an
accomplice. One approach is to consider the extra-curial statement hearsay
evidence and apply the regime of the Hearsay Act to determine whether
the extra-curial statements should be admitted into evidence. This position
was adopted in S v Ndhlovu.7 A second approach is to treat the dangers
inherent in evidence of this kind as too great and exclude its admission
against the accused. That was done in Litako and Others v S,8 where the
extra-curial statements of one accused were not admitted into evidence as
against the other accused. A third approach is to consider the common law
rule that a prior inconsistent statement of a witness is admissible to
impeach the credibility of the witness who made the statement, but it
cannot be tendered as proof of the contents of the statement. I shall refer to
this as the rule against prior inconsistency. In S v Mathonsi,9 the court
revisited the rule against prior inconsistency and allowed the prior extra-

7 S v Ndhlovu and Others [2002] 3 All SA 760 (SCA).
8 Litako and Others v S [2014] ZASCA 54; [2014] 3 All SA 138 (SCA); 2014 (2) SACR 431 (SCA);
2015 (3) SA 287 (SCA).
9 Mathonsi v S [2011] ZAKZPHC 33; 2012 (1) SACR 335 (KZP).

curial statement of a witness to be admitted as probative evidence of the
contents of the statement, but only on the basis that the statement would be
admissible if given in court, that it was voluntarily made, under
circumstances where the maker was likely to be telling the truth, and that
the statement was accurately transcribed (if in writing).

[42] These rulings are unified in their recognition that the admission into
evidence of the extra-curial statements of a witness carries dangers that
may impact upon the fairness of the trial. However, the different
approaches have led to some difficulty and inconsistency, as well as critical
academic commentary. I turn then to consider under what rule the
admission into evidence of the extra-curial statements of a witness, who is
an accomplice, should be determined.

[43] I commence with the question as to whether the two statements of
Luzuko Makhala constitute hearsay evidence under the definition of
hearsay in the Hearsay Act. Section 3 (4) of 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’. This definition focuses upon the declarant to
determine whether the evidence is hearsay. In the present case, does the
probative value of the two statements depend upon the credibility of
anyone other than Luzuko Makhala?

[44] The simplicity of the definition of hearsay has nevertheless
occasioned some difficulty. The difficulty was encapsulated in Ndhlovu.10

10 Ibid fn 7 Ndhlovu para 29.

What if the person who made the extra-curial statement does not testify; or
testifies but denies making the statement; or testifies and admits making
the statement but denies its correctness, or testifies but cannot recall
whether or not they made the statement, or testifies and confirms making
the statement and its correctness. Ndhlovu reasons that the definition of
hearsay in the Hearsay Act does not make an extra-curial statement
admissible simply because the person who is said to have made the
statement is called to give evidence as a witness at the trial. Rather, the
extra-curial statement of the witness will be admitted upon the court having
regard to the matters listed in s 3(1)(c)(i)-(vii) and being of the opinion that
the evidence should be admitted in the interests of justice.

[45] The holding in Ndhlovu that the extra-curial statements of two
accused, incriminating of their co-accused, when disavowed by them at
trial, were not admissible simply because the extra-curial declarants testify
at trial was reasoned in the following way. To admit the extra-curial
statements, when the witness disavows making them, or cannot recall
doing so, would not permit of the safeguard of cross-examination if the
statement was admitted into evidence. The evidence would, without more,
be untrustworthy. Hence, other safeguards are required, and that is what s
3(1)(c) secures. Furthermore, the probative value of the extra-curial
statements does not depend upon the credibility of the declarant at the time
they give evidence at trial but at the time that the extra-curial statement is
made. The admissibility of the extra-curial statements thus required the
trial court to make a ruling under s 3(1)(c) of the Hearsay Act, that is to
say, on the basis of what the interests of justice required. It was found that

the extra-curial statements of the two accused in S v Ndhlovu were
admissible upon an application of s 3(1)(c), as against their co-accused.

[46] The holding in Ndhlovu that the extra-curial admissions of two
accused, amounting to the incrimination of the co-accused and then being
admissible against the co-accused, was reconsidered in Litako. In Litako,
this court referenced the English common law position and our common
law that an accused’s confession or admission is admissible in evidence
only against the declarant and not their co-accused. The use of the Hearsay
Act to have the informal admissions of an accused admitted in evidence
against a co-accused gives rise to dangers pertaining to the fairness of the
trial that the common law prohibition guards against. This Court referenced
the introductory words of s 3(1) of the Hearsay Act, which renders its
provisions ‘subject to any other law’. That law includes the common law.
There was no warrant to think that the protections of the common law that
exclude the admissibility of the admissions or confession of one accused
against another had been abrogated by the Hearsay Act. The Court held
that the extra-curial admission of one accused does not constitute evidence
against a co-accused and is therefore not admissible against such co-
accused.11

[47] Therefore, where Ndhlovu considered that the protections contained
in s 3(1)(c) of the Hearsay Act provided sufficient protections to permit the
admission of the extra-curial statements of one accused against their co-
accused in certain warranted cases, Litako holds that this is impermissible,
notwithstanding the provisions of the Hearsay Act.

11  Litako at 307G.

[48] In Mathonsi, a witness, Mr Cele, provided a written statement to the
police in which he implicated the accused in a murder. When Mr Cele gave
evidence at trial, he gave a version at odds with his statement, which he
claimed had been exacted under duress. Mr Cele was declared a hostile
witness and was cross-examined by both the prosecution and the defence.
The trial court admitted the written statement into evidence and considered
it when convicting the accused. The accused appealed and contended that
the trial court should not have admitted the contents of Mr Cele’s written
statement into evidence.

[49] In the high court, Madondo J examined the common law rule
pertaining to the admissibility of prior inconsistent statements: such
statements are admissible to discredit the witness, but not as evidence of
the facts contained in the statements. After an analysis of the position in a
number of common law jurisdictions, the high court adopted the ruling of
the Canadian Supreme Court in R v B (K.G.).12 Following R v B (KG), a
prior inconsistent statement was admissible as proof of its contents if five
conditions are met:
‘(1) the evidence contained in the prior statement is such it would be admissible if given
in a court; (2) the statement has been made voluntarily by the witness and is not the
result of any undue pressure, threats or inducements; (3) the statement was made in
circumstances, which viewed objectively would bring home to the witness the
importance of telling the truth; (4) that the statement is reliable in that it has been fully
and accurately transcribed or recorded; and (5) the statement was made in
circumstances that the witness would be liable to criminal prosecution for giving a
deliberately false statement.’13

12 R v B (K.G.) [1993] 1 S.C.R 740.
13 Ibid at 746.

To these conditions, Madondo J added a sixth condition: the accused must
be afforded the opportunity to cross-examine the person who made the
statement. This new rule was required in recognition of what Lamer CJ in
R v B (K.G.) characterised as ‘the changed means and methods of proof in
modern society’.14

[50] In Rathumbu v S,15 this Court also had occasion to consider the
sworn statement of the appellant’s sister that incriminated the appellant.
Ms Rathumbu also recanted the contents of her statement when called to
give evidence. She was declared a hostile witness and cross-examined on
her sworn statement. The trial court relied upon the contents of the sworn
statement and convicted the appellant. On appeal, this Court did not
address the common law rule as to the limited purpose for which a prior
inconsistent statement could be used at trial. Rather, it considered whether
the sworn statement was correctly admitted into evidence, in compliance
with s 3(1)(c) of the Hearsay Act, relying upon Ndhlovu.

[51] How then to determine the hearsay challenge in light of this body of
case law? It seems logical to commence with the Hearsay Act. The
legislature has provided a statutory regime that requires that hearsay
evidence shall not be admitted into evidence in criminal proceedings, save
under stated conditions. If the two statements of Luzuko Makhala
constitute hearsay evidence, then their admissibility is to be decided, in the
first place, in compliance with the Hearsay Act.

14 Ibid at 741.
15 Rathumbu v S [2012] ZASCA 51; 2012 (2) SACR 219 (SCA).

[52] At common law, an extra-curial statement was hearsay if it was
made by a declarant who was not called to give evidence and was hence
not subject to cross-examination. Unless one of the exceptions to the
hearsay rule was of application, the extra-curial statement was excluded.
The rationale for the exclusion was that if the declarant could not be tested
under cross-examination as to the truth of the statement, the trial court
might rely upon it, when such reliance was not warranted. That would be
prejudicial to the accused.

[53] As I have observed, the Hearsay Act defines hearsay evidence to
mean evidence, ‘the probative value of which depends upon the credibility
of any person other than the person giving such evidence’. Ndhlovu ruled
that the prior incriminating extra-curial statement of an accused could not
be admitted into evidence against his co-accused simply because the
declarant was called to give evidence. To admit the evidence, the
requirements of s 3(1)(c) must be met, and the court must be of the opinion
that the evidence should be admitted in the interests of justice.

[54] It will be recalled that this Court in Ndhlovu had two principal
reasons for its interpretation of the Hearsay Act. First, if the witness who
made the extra-curial statement disavows the statement, or cannot recall
making it, or is unable to affirm some aspect of the statement that is:
‘not in substance materially different from when the declarant does not testify at all . .
.When the hearsay declarant is called as a witness, but does not confirm the statement,
or repudiates it, the test of cross-examination is similarly absent, and similar safeguards
are required.’16

16 Ndhlovu para 30.

Second, the probative value of the extra-curial statement does not depend
upon credibility of the declarant when they give evidence at trial but at the
time when the statement was made. The court put the matter thus,‘[a]nd the
admissibility of those statements depended not on the happenstance of whether they
chose to testify but on the interests of justice.’17

[55] The different circumstances postulated in Ndhlovu pose different
issues. If the person who made the extra-curial statement is not called to
testify, the statement is hearsay under the definition because the probative
value of the statement does depend upon the credibility of a person who is
not called to give evidence at trial. The extra-curial statement will be
excluded unless the court is satisfied that the requirements of s 3(1)(c) are
met. This outcome is consistent with the common law rationale that the
extra-curial statement of a person not called to testify is excluded because
there is no opportunity given to cross-examine and test the probative value
of the statement.

[56] If the person who made the statement is called to testify but denies
making the statement, a different question arises: does the evidence to be
admitted exist at all, and if so, is it attributable to the witness? That is a
prior question that is settled not upon an application of the Hearsay Act,
which is predicated upon the evidence that is to be admitted, existing and
being evidence attributable to a particular person. The court must first
decide this question. In the face of a denial by the witness that they made
the statement, other evidence will usually be required to settle the matter.
If the court determines that a particular person made the extra-curial

17 Ibid para 33.

statement, it can then decide whether its probative value depends upon the
credibility of the person giving evidence. In the present case, once the trial
court was satisfied that the two statements were made by Luzuko Makhala,
then their probative value depended upon his credibility as a witness called
to give evidence at trial.

[57] Where the witness cannot recall whether they made the statement,
the trial court is confronted with the same issue that arises when a witness
denies making the statement. There is no affirmative evidence from the
witness that the statement exists or, if it does, whether the statement is
attributable to the witness. Here too, the court must decide this preliminary
question before determining upon whose credibility the probative value of
the statement depends.

[58] Where the witness confirms making the extra-curial statement, but
denies its truthfulness, the witness is available to be cross-examined so as
to test that denial. Here the probative value of the statement does depend
upon the witness called to give evidence. The court may then attribute to
the statement the evidential value it warrants after the witness who made
the statement has been tested under cross-examination. So too, where the
witness confirms making the extra-curial statement and its correctness,
there seems little reason to exclude the statement if the evidence can then
be tested under cross-examination.

[59] On this analysis, where a witness denies making a prior extra-curial
statement or has no recollection of doing so, there will have to be evidence
before the trial court permitting it to rule that such a statement was made

by the witness who has been called to testify. If it is not clear that the extra-
curial statement was made at all, then it will not be possible to determine
upon whose credibility the probative value of the evidence depends. The
very existence of the evidence is not established, and this ends the question
of its admissibility. If it is clear that an extra-curial statement was made,
but it is not shown that it was made by the witness called to testify at trial,
then the statement is clearly hearsay because its probative value depends
either upon the credibility of a person not called as a witness or it cannot
be ascertained upon whose credibility the statement depends. Once, then,
the extra-curial statement is hearsay, its admission depends upon an
application of s 3(1)(c).

[60] If, however, the witness called to testify acknowledges that he or she
made the statement, then its probative value does depend upon the person
giving such evidence. The evidence is not hearsay under the statutory
definition. Is s 3(1)(c) nevertheless of application? In Ndhlovu the court
thought so because it apprehended the danger that the witness may not be
able to recall everything that the statement contains, and the probative
value of the statement depends upon the credibility of the witness at the
time that the statement was made and not when the witness gives evidence
in court. Once that is so, the ability to cross-examine the witness effectively
is compromised, and absent the safeguards of s 3(1)(c), the admission of
the evidence would not be consistent with the imperative that the trial must
be fair.

[61] I am doubtful that this reasoning holds good. Once it is clear that the
extra-curial statement was made by the person called to give evidence, the

fact that this witness does not recall some or indeed all of what is contained
in the statement, or denies the contents of the statement altogether, does
not mean that the accused’s right to challenge the statement by cross-
examining the witness has been compromised. The witness’ recollection
will be tested under cross-examination. If the witness is believed, the extra-
curial statement will have probative value only to the extent of the
witness’s recollection. If the witness is disbelieved, the trial court will then
have to consider what weight, if any, to attach to the statement. There is no
bar to the witness’ credibility being tested under cross-examination by the
accused, placing the court in a position to decide upon the evidential value
of the statement. If the evidence is not hearsay, it may be admitted without
risk to the accused’s rights to cross-examine.

[62] To this, following Ndhlovu, it might be said that the witness who
recants or cannot recall the contents of his or her extra-curial statement is
akin to a witness not called to give evidence at all. That is not so. An eye-
witness may not be able to recall all they have seen or may recall nothing
at all of a material issue in the trial. We do not say that this is akin to the
witness not being called at all and the right to cross-examine being
compromised. Rather, the cross-examination will assist to determine how
far the testimony of the witness may be relied upon. The trial court’s task
is then to determine what value if any, the evidence has. It is hard to see
why an extra-curial statement made by the witness testifying before the
court should be treated differently or why the right to cross-examine upon
the statement has been vacated. The danger of hearsay evidence, long
recognised at common law, does not arise when the declarant who made
the statement is called as a witness at trial and is subjected to cross-

examination. It is then for the trial court to decide upon the testimonial
value of the extra-curial statement.

[63] Nor, upon reflection, is it availing to exclude the extra-curial
statement made by the witness who is called to testify because the
statement depends upon the credibility of the witness at the time of making
the statement rather than when testifying in court. First, the fact that the
witness disavows his or her earlier statement does not mean the court
cannot give credence to either version of what the witness has said.
Contradiction in the evidence of a witness, whether arising from their oral
testimony in court or by reference to a prior statement, requires the trial
court again to consider what evidence it should accept and what weight it
enjoys. There is no reason to exclude the extra-curial statement on the
grounds of contradiction. Second, when the witness gives oral testimony
in court, the very question as to why the extra-curial statement was made
and what opportunity the witness had at the time to observe what the
statement records are the very matters that may be taken up in cross-
examination. It is true that the trial court does not have the benefit of
observing the demeanour of the witness at the time the statement was made,
and, in some instances, the statement will not have been given under oath.
However, here too, in my view, cross-examination of the witness will
ordinarily bring to light the circumstances in which the statement was made
and its reliability. Cross-examination is the forensic means by which the
evidential value of the statement may be ascertained. Admitting the extra-
curial statement does not curtail cross-examination or blunt its value. It is
then for the trial court to ascertain the evidential value of the statement
made by the witness.

[64] In my view, the correct interpretation of the Hearsay Act is that once
a court has determined that an extra-curial statement was made by a witness
called to testify, the extra-curial statement is not hearsay, and it may be
admitted without determining whether it is in the interests of justice to do
so by recourse to s 3(1)(c). Admitting the extra-curial evidence does not
render the right to cross-examine nugatory. On the contrary, cross-
examination of the witness must be given full rein to permit the trial court
to determine whether the extra-curial statement has any value at all and, if
so, what weight should be attached to it.

[65] This, however, does not end the analysis of the hearsay challenge
because, as my review of the case law indicates, s 3(1) of the Hearsay Act
commences with the words ‘Subject to the provisions of any other law…’.
Litako observed that in the interpretation of the Hearsay Act, the position
at common law must be considered. The court in Litako held that
notwithstanding the provisions of s 3(1) of the Hearsay Act, the extra-curial
admissions of one accused does not constitute evidence against a co-
accused and is therefore not admissible against such co-accused.18

[66] Litako traced the rule of the English law, as received into our
common law, that the admission or confession of one accused, if
admissible, is evidence only against the maker of the statement and not
against the co-accused, unless they act pursuant to a common design. The
rule excluding the use of the extra-curial statements made by one accused
against another was in part based upon concerns as to hearsay evidence.
But the rule also reflected the caution that should attach to the propensity

18 Litako para 67.

of one accused to shift blame to another. The decision further references
the following difficulty: if an admission or confession of one accused is
ruled as admissible, that does not compel the maker of the admission or
confession to testify at trial. They have every right not to do so. Where then
does that leave the rights of the co-accused to cross-examine the maker of
the admission or confession if they were to be admissible against the co-
accused? Litako makes it plain that, in this situation, the rights of the co-
accused to cross-examine are rendered nugatory. That would render the
trial unfair. Hence, the bar upon the use of admissions and confessions by
one accused against another.

[67] The present matter does not concern the admissions or confession of
an accused. We are concerned with the extra-curial statements of a witness
who is an accomplice, not an accused, who is called to testify at trial. This
distinction is important. In Litako, one of the accused had made a statement
to a magistrate, exculpating himself and implicating his co-accused in a
murder. Although this accused testified at the trial within a trial to
determine the admissibility of the statement, he did not testify in his
defence on the merits. His co-accused, who did testify, were convicted,
principally on the basis of the statement. The trial court ruled the statement
made by the one accused admissible against his co-accused upon an
application of s 3(1)(c) of the Hearsay Act.

[68] Litako was concerned with the extra-curial statement of an accused
who does not testify at trial on the merits. The probative value of the
statement depended upon the credibility of its declarant, who chose not to
testify. The statement was thus hearsay. This Court in Litako was not

willing to allow the statement to be admitted into evidence as against the
co-accused, notwithstanding the protections in s 3(1)(c), the observance of
which might nevertheless allow for the evidence to be admitted. The Court
considered the dangers attaching to hearsay evidence, the doubtful value
of such evidence and the serious erosion of the rights of the co-accused to
cross-examine the maker of the statement as to the truth of its contents
warranted the reaffirmation of the common-law rule that the extra-curial
statement of one accused is not admissible against his co-accused.

[69] Where, as in the present matter, the maker of the extra-curial
statement is a witness who does give evidence at trial, then, as I have
sought to explain, the statement is not hearsay under the Hearsay Act, and
the accused has full enjoyment of the right to cross-examine the witness.
The reasoning in Litako is not of application to the position of a witness
who made an extra-curial statement that incriminates the accused. The
maker of the statement is a witness before the trial court. The statement is
open to challenge by the accused on every aspect of the statement that
incriminates them. I recall that the warnings as to the dangers of hearsay
evidence, framed fully in S v Ramavhale,19 are not present when the extra-
curial statement of a witness called to testify at trial is under consideration.
The witness testifies under oath and is subject to cross-examination by the
parties against whom he is called. Accordingly, ‘[h]is powers of
perception, his opportunities for observation, his attentiveness in
observing, the strength of his recollection, and his disposition to speak the

19 S v Ramavhale 1996 (1) SACR 639 (SCA).

truth’20 may all be tested. What value the trial court then attributes to the
statement is quite another matter.

[70] It follows that the reasoning in Litako that precludes the admission
or confession of one accused being admitted into evidence against his or
her co-accused is not of application where a witness called to give evidence
made a prior extra-curial statement that is sought to be admitted into
evidence as against the accused. The extra-curial statement is not hearsay,
the rights of the accused to cross-examine may be fully exercised, and there
is no a priori reason to suppose the extra-curial statement is of doubtful
value.

[71] I turn to consider the treatment of a prior inconsistent statement
made by a witness and the refashioning of the common law rule that a
witness’ prior sworn statement may be used to impeach the credit of the
witness but may not be admitted into evidence for the truth of its contents.
As I have referenced above, in Mathonsi, the high court adopted the five-
part test enunciated in the Canadian Supreme Court in R v B (K.G.). Under
this reformulation of the common law rule, a witness’ prior inconsistent
statement is admissible as to the truth of its contents if the conditions
stipulated under the five-part test are met to the satisfaction of the trial
court, to which the high court in Mathonsi added the further stipulation that
the accused must be able to cross-examine the witness who made the
statement as to its contents.

20 Cited in Litako para 66 quoting John Pitt Taylor Treatise on the Law of Evidence 12th ed (1931) para
567.

[72] The adoption by the high court in Mathonsi of the majority judgment
in R v B (K.G.) requires careful reflection. R v B (K.G.) was considered
again by the Canadian Supreme Court in R v U (F.J.).21 The following
emerges from these cases. First, the reconsideration of the common law
rule as to the use of prior inconsistent statement formed part of the wider
recasting of the common law in Canada regarding the treatment of hearsay
evidence. Hearsay was not treated under the inflexible approach to hearsay
and its exceptions that once marked the common law. Rather, hearsay was
to be admitted and used for the truth of its contents when it was shown to
be reliable and necessary. Second, the prior inconsistent statement of a
witness was admissible for the truth of its contents if it met the required
standards of reliability and necessity. Third, in R v U (F.J.), the court again
considered what would be required to make out these standards and made
it clear that flexibility should be shown in assessing the reliability risks
associated with admitting the prior statement.

[73] These authorities are of much assistance, but as always, their
wholesale adoption should be carefully considered, not least because,
unlike the position in Canadian law, we have a statute that regulates the use
of hearsay evidence. R v B (K.B.) and R v U (F.J.) developed the common
law. We must apply the Hearsay Act, unless some aspect of the common
law may be taken to continue to govern the question at issue, as occurred
in Litako, or some aspect of the common law survives the passage of the
Hearsay Act and compliments that enactment.

21 R v U (F.J.) [1995] 3 SCR 764.

[74] I recognise the paramount importance of the constitutional
requirement that the appellants before us must have enjoyed a fair trial. The
question is whether the admission into evidence of the two statements of
Luzuko Makhala, under the provisions of the Hearsay Act, visited any
unfairness on the appellants? I have set out above, in my analysis of the
application of the Hearsay Act to the two statements, why it is that the
ability of the appellants to cross-examine Luzuko Makhala provides
considerable safeguards for the appellants as to the use to which the
statements may be put.

[75] Are further safeguards required beyond the right to cross-examine
Luzuko Makhala. R v U (F.J.) makes it plain that the availability of the
witness who made the prior statements to be cross-examined goes a very
long way to ensure that prior statements may be admitted into evidence for
the truth of their contents to permit the trier of fact to assess the evidential
value of these statements. The court quotes the following from the leading
work of J W Strong McCormick on Evidence 4 ed (1992), with approval:
‘The witness who has told one story aforetime and another today has opened the gates
to all the vistas of truth which the common law practice of cross-examination and re-
examination was invented to explore. The reasons for the change of face, whether
forgetfulness, carelessness, pity, terror, or greed, may be explored by the two
questioners in the presence of the trier of fact, under oath, casting light on which is the
true story and which the false. It is hard to escape the view that evidence of a prior
inconsistent statement, when declarant is on the stand to explain it if he can, has in high
degree the safeguards of examined testimony . . ..’22

22 Ibid at para 38.

[76] What then remained of concern to the court in R v U (F.J.), given its
recognition that cross-examination goes a substantial part of the way to
ensure that the reliability of the prior inconsistent statement can adequately
be assessed by the trier of fact, was the following: the prior inconsistent
statement may be subject to reliability risks because it depends upon the
credibility of the witness at the time the statements were made. This may
deprive the court of the benefit of the witness being subject to cross-
examination at the time that he or she makes the prior statement, the
statement may not be given under oath, and the demeanour of the witness
in making the statement is not observed by the trier of fact. For this reason,
the court considered that it would be desirable that the prior statement be
taken under oath and video-taped. This would alleviate at least two of the
three concerns raised. The court observed that a prior inconsistent
statement may be admitted even without these safeguards, if there are
sufficient guarantees of the reliability of the prior statement.23

[77] There is an important distinction to be drawn between the stipulation
of reliability requirements in order to admit a prior inconsistent statement
and the consideration of the reliability of the evidence in determining its
value to the trier of fact. Once the witness who made the prior inconsistent
statement is available for cross-examination, then, in my view, the
threshold requirement for admitting the statement is met, subject to two
further requirements that I will set out below.

[78] This is so because the accused at trial will be able, fully, to exercise
their right of cross-examination, and to contest every aspect of the

23 Ibid at para 39.

statement’s reliability. Where the prior statement is not made under oath,
the trial court will weigh this matter when deciding the evidential value of
the statement. Obviously, the circumstances under which the statement was
given will be relevant to an assessment as to whether it is likely that the
declarant was telling the truth when making the statement. Making a
statement under oath is part of that assessment. However, in a secular age,
the value of an oath is often exaggerated and should not be raised to a
threshold requirement to admit the prior statement.

[79] So too, the use of video to record the declarant making the statement
is helpful, but not necessary, to admit the prior statement. The trial court
will instead take account of the fact that it was not in a position to observe
the demeanour of the witness at the time the statement was made. As the
court noted in Standard Bank of South Africa Limited v Sibanda,24 the value
of demeanour evidence should not be exaggerated. The Court will consider
the evidence that is given and the circumstances in which the statement
was made. This will determine the weight the trial court attaches to the
prior statements.

[80] While there are disadvantages that attach to the fact that the
credibility of the declarant is not tested at the time the statement is made,
they are not of an order of magnitude to warrant the exclusion of the prior
statement. The trial court will take these disadvantages into account when
assessing the evidential value of the prior statement, to the extent that they

24 Standard Bank of South Africa Limited v Sibanda [2019] ZAGPJHC 481; 2021 (5) SA 276 (GJ) paras
5 -10

are not mitigated by the taking of an oath and the recording of the
statement.

[81] The further requirement, to be found in Mathonsi, that the prior
statement must have been fully and accurately transcribed is not a threshold
requirement of reliability. As I have endeavoured to explain, the
application of the Hearsay Act always requires the trial court to determine
what statement was made, so as to know what evidence is sought to be
admitted. That must be done; it determines not whether a statement is
reliable, but whether it exists.

[82] Two further requirements must be met to render prior statements
admissible, in addition to the availability of the declarant to give evidence
at trial and face cross-examination. First, the evidence contained in the
prior statement must be admissible, as if it had been given in court. That is
to say, there must not be some other basis for exclusion outside the
application of the Hearsay Act. Second, the prior statement must have been
made voluntarily. This requirement is an entailment, explored fully in
Litako, of the common law’s concern that there should be no taint that
evidence was procured at the instance of the police or any other agency
through coercion, undue influence or improper inducement. Although it
fosters reliability, this requirement is rooted in the disciplining of power
that may otherwise be improperly used to procure evidence. These two
requirements flow from the overriding inherent supervisory power of a trial
court in a criminal trial to ensure that the trial is fair. Nothing in the Hearsay
Act derogates from the exercise by the trial court of this supervisory
competence.

[83] In sum, I am not in agreement with the holding in Mathonsi that the
threshold requirements derived from R v B (K.G.) must be met in order to
admit into evidence, for the truth of its contents, the prior inconsistent
statement of a witness at a criminal trial. It suffices that the witness who
made the statement is available for cross-examination by the accused. The
prior statement must otherwise be admissible by asking whether it would
have been admissible if it had formed part of the testimony given by the
witness at trial. This consideration is important because the trial court will
have to consider whether the prior statement is relevant. In part, the
common law rule excluding the admission of a prior inconsistent statement
for the truth of its contents was predicated upon its presumptive
irrelevance. Finally, the prior statement must have been voluntarily made.

[84] Turning then to the two statements that were admitted into evidence
by the trial court upon an application of the Hearsay Act, I can find no fault
with that decision. Luzuko Makhala was called as a witness and was
available to the appellants for cross-examination. The reliability of the two
statements was thus fully open to scrutiny. Luzuko Makhala recanted his
prior statements in the witness box. There was every need then to consider
his testimony in the light of his prior statements. For the reasons already
traversed when I considered the legality challenge, the evidence of the
policemen who testified was accepted by the trial court. That evidence
established that Luzuko Makhala made the two statements voluntarily. As
I have indicated in respect of the legality challenge, there is also no basis
to contend that Luzuko Makhala made the statements as a result of
improper inducements. Had the prior statements formed part of the

testimony given by Luzuko Makhala in court, there was no other rule of
evidence that would have excluded the statements.

[85] Indeed, the trial court in deciding to admit the two statements, went
further than I have found the law requires. The trial court applied s 3(1)(c)
of the Hearsay Act and concluded that the evidence should be admitted in
the interests of justice. I have found that the two statements are not hearsay
as defined in the Hearsay Act. But this matters not. To have gone beyond
what I have found to be required does not render the hearsay challenge any
more compelling. That challenge, for the reasons given, must fail.

The hostile witness challenge
[86] The appellants contend that the trial court declared Luzuko Makhala
to be a hostile witness, when, on a proper appreciation of the test to make
such
a declaration, he
should not have been so declared.

[87] The appellants contend, relying upon S v Steyn,25 that the test is not
an objective one, but the hostile witness must have an intention to prejudice
the case of the litigant who called him. Luzuko Makhala had no such
intention.

[88] The mere fact that a witness gives evidence that is unfavourable to
the party calling the witness does not render the witness hostile. However,
the need to show an intention to prejudice, as reflected in Steyn, does not
appear to be the position in English law on 13th May 1961, as required by

25 S v Steyn en Andere 1987 (1) SA 353 (W); [1987] 3 All SA 19 (W) at 355.

s 190(1) of the CPA. The test was stated in Meyer’s Trustee v Malan26 to
be as follows: the court must decide whether the witness is adverse from
his demeanour, his relationship to the party calling him, and the general
circumstances of the case. This test is not predicated on proof of a
subjective intent to prejudice.

[89] Ultimately, it is unnecessary to determine this difference. The trial
court was in a position to assess what occurred to cause Luzuko Makhala
to give evidence at variance with the evidence the prosecution was under
the impression he would provide. Luzuko Makhala made an assiduous
effort in his evidence in chief to exclude from his two statements those
passages that incriminated the appellants and himself. He sought to put up
a contradictory, exculpatory version. The trial court rejected his
explanation as to how he came to make the two statements. The first
appellant’s former counsel approached him to withdraw his cooperation
from the prosecution. In these circumstances, even if the test is predicated
upon an intent to prejudice the State’s case, it is an entirely proper inference
to draw from LuzukoMakhala’s conduct. Accordingly, there is no basis to
interfere with the exercise by the trial court of its discretion in making the
declaration that it did.

[90] Counsel for the appellants submitted that Luzuko Makhala should
have been given legal representation when the State sought to declare him
a hostile witness. Worse still, it is contended that the trial court failed to
extend to Luzuko Makhala his right to legal representation when he
requested to be allowed an attorney.

26 Meyer’s Trustee v Malan 1911 TPD 559 at 561.

[91] What the record shows is that Luzuko Makhala enquired as to
whether he was allowed to have an attorney for the purpose of the trial
court deciding whether to declare him a hostile witness. The trial court did
not preclude him from securing the services of an attorney. What Luzuko
Makhala went on to raise with the trial court was whether he was entitled
to an attorney, in the sense of having one provided to him. The trial court
indicated that he was not an arrested, detained or accused person as
contemplated under the Constitution and had no such entitlement.

[92] The
Constitution
distinguishes
different
rights
to
legal
representation. In terms of s 35(2)(b), a detainee has the right to choose and
consult with a legal practitioner, and to be informed of that right. In terms
of s 35(3)(f), an accused also has the right to choose a legal representative
and be represented by one. Section 35(3)(g) affords the right to an accused
to have a legal practitioner assigned, at State expense, if substantial
injustice would otherwise result. Thus, the Constitution clearly
distinguishes the right to choose a legal representative and the right, at state
expense, to be provided with a legal representative. Section 35 makes no
provision for a witness to be provided with a legal practitioner.

[93] Doubtless, a court is invested with the inherent power to conduct its
proceedings fairly, and that may entail, in a particular case, that the court
should give consideration to a legal practitioner being assigned to assist a
witness. However, that cannot be done on the basis of a test less rigorous
than that of application to an accused, whose potential detriment is plainly
pressing. The constitutional test for an accused is that, absent the
assignment of a legal practitioner, a substantial injustice would result.

[94] No such showing was ever made by Luzuko Makhala to the trial
court. He was never denied a right to choose to be represented by an
attorney, and he never made a case as to the substantial injustice he would
suffer if an attorney was not provided for him at state expense. Once that
is so, he suffered no infringement of his rights.

[95] The appellants’ hostile witness challenge must therefore fail.

The cautionary challenge
[96] Luzuko Makhala was an accomplice. The trial court recognised the
cautionary rule applicable to the evidence of an accomplice. The appellants
submit that the trial court failed properly to apply the rule to treat the
statements of Luzuko Makhala with the caution they deserved.

[97] I find no basis in the judgment of the trial judge to support this
criticism. The trial judge took the position, on the evidence of the
policemen, which he accepted, that Luzuko Makhala had sought to
cooperate with the police and had volunteered the information known to
him. He recanted in the witness box, under pressure that appears to have
come about due to the consultation with the first appellant’s erstwhile
counsel. Whatever the reason for his recantation, the trial judge found that
his prior, voluntary co-operation was not consistent with an accomplice
seeking to implicate others to seek favour with the police or falsely
implicate others. The police learnt information from the statements that
they did not otherwise know, which advanced their investigation and was
incriminating of the appellants. Finally, the trial judge found there was
material evidence that corroborated the two statements. On this basis, the

trial judge found that although the cautionary rule was applicable to the
evidence of Luzuko Makhala, this did not prevent the court from relying
upon the probative value of the two statements. The reasoning of the trial
judge cannot be faulted.

[98] The cautionary challenge accordingly also fails.

The onus challenge
[99] Finally, the appellants submitted that even if the two statements were
properly received in evidence, there was insufficient corroborative
evidence to convict the appellants. Luzuko Makhala was a liar. His oral
testimony was at variance with his two statements which required the State
to provide sufficient evidence to corroborate the contents of the two
statements. The State failed to do so and thereby failed to discharge its onus
of proof. The trial court was in error to find otherwise.

[100] The judgment of the trial judge made a careful assessment of the
corroborative evidence. There was evidence that the first appellant was
making preparations to flee when he was told by Luzuko Makhala, his
brother, that he had told the police everything. The first statement indicated
that the first appellant had taken Mr Dumile, the third accused, to point out
where Mr Molosi was residing. Mr Molosi’s son, Dumisani, gave evidence
that Mr Dumile had come to the house to enquire as to the whereabouts of
Mr Molosi on 22 July 2018. Mrs Molosi also identified Mr Dumile as
having come to the house on 23 July 2018 with a similar question, shortly
before Mr Molosi was shot and killed. The first statement of Luzuko
Makhala stated that Mr Dumile had gone to the house of Mr Molosi to find

out the whereabouts of the deceased and that Mr Dumile returned and said
that Mr Molosi was not at his home but attending a meeting. This evidence,
the trial judge found, was corroborative of the first statement.

[101] The appellants do not contend there was no corroborative evidence
but rather that it was insufficient. Here too, I can find no fault with the
conclusion to which the trial judge came. The first statement was
corroborated in material respects. The corroboration most certainly placed
the first appellant, Mr Dumile and Luzuko Makhala at the heart of the
conspiracy to murder Mr Molosi. That sufficed to permit the trial court to
rely upon the probative value of the two statements. The two statements,
taken together with the circumstances in which the statements came to be
made, the recantation by Luzuko Makhala   under obvious pressure and the
fact that evidence of the appellants could not be believed, sufficed to
discharge the burden of proof resting upon the State.

[102] The onus challenge must, accordingly, also fail.

Conclusion
[103] I have found that each of the challenges brought by the appellants
fails. The two statements made by Luzuko Makhala to the police were not
unlawfully obtained, and the two statements were correctly admitted into
evidence. That evidence afforded proof of the appellants’ complicity in the
murder of Mr Molosi and the further charges associated with his murder.
There was no failing on the part of the trial judge in cautioning himself
against the frailties of the evidence of Luzuko Makhala as an accomplice,
nor in his declaration of Luzuko Makhala as a hostile witness. The trial

judge correctly found that there was sufficient evidence to corroborate the
statements of Luzuko Makhala and that, upon consideration of all the
evidence, the State had discharged its burden of proof.

[104] In the result, the following order is made:
The appeal is dismissed.

DAVID UNTERHALTER
ACTING JUDGE OF APPEAL

Meyer AJA (Mocumie, Makgoka and Mothle JJA concurring)

[105] I have had the benefit of reading the judgment of our colleague
Unterhalter AJA (the first judgment). I agree with its summation of the
pertinent facts and issues on appeal and with the reasoning and conclusions
reached that the two statements in question were not obtained in violation
of Luzuko Makhala’s rights; the trial was not rendered unfair by the
admission of the statements; nor was there anything done in securing the
statements that constituted any material detriment to the administration of
justice; that the trial court correctly declared Luzuko Makhala to be a
hostile witness; that he was not denied a right to choose to be represented
by an attorney and he did not make a case as to the substantial injustice he
would suffer if an attorney was not provided for him at state expense before
he was declared hostile; that the trial court properly applied the cautionary

rule applicable to the evidence of an accomplice; and that there was
sufficient corroborative evidence to convict the appellants.

[106] I further agree that the trial court applied s 3(1)(c) of the Law of
Evidence Amendment Act 45 of 1988 (the Hearsay Act) and concluded
that the two statements should be admitted in the interests of justice and
with the ultimate conclusion that:
‘[t]he two statements made by Luzuko Makhala to the police were not unlawfully
obtained and the two statements were correctly admitted into evidence. That evidence
afforded proof of the appellants’ complicity in the murder of Mr Molosi and the further
charges associated with his murder. There was no failing on the part of the trial judge
in cautioning himself against the frailties of the evidence of Luzuko Makhala as an
accomplice, nor in his declaration of Luzuko Makhala as a hostile witness. The trial
court correctly found that there was sufficient evidence to corroborate the statements of
Luzuko Makhala and that, upon a consideration of all the evidence, the State had
discharged its burden of proof.’
I, therefore, agree with the order proposed in the first judgment that the
appeal be dismissed.

[107] However, I am respectfully unable to agree with the conclusion in
the first judgment that s 3(1)(c) of the Hearsay Act finds no application to
the admission into evidence of extra-curial statements made by a s 204 state
witness,27 who, when testifying, recants such statements that incriminate
him or herself and the accused in the commission of the offence or offences

27 Section 204 of the Criminal Procedure Act 51 of 1977. That is a witness who is called on behalf of the
prosecution at criminal proceedings and who is required by the prosecution to answer questions which
may incriminate such witness regarding an offence specified by the prosecutor, and who may be
discharged from prosecution in respect of the offence in question if he or she ‘in the opinion of the court,
answers frankly and honestly all questions put to him’ or her.

in question, and the reasoning in reaching that conclusion (the s 3(1)(c)
conclusion). These are my reasons.

[108] The common law definition of hearsay evidence is ‘any statement
other than one made by a person while giving oral evidence in the
proceedings, and presented as evidence of any fact or opinion stated’.28
With effect from 3 October, 1988 the Hearsay Act redefines hearsay and
allows for a more flexible discretionary approach to the admissibility of
hearsay evidence. Section 3 of the Hearsay Act reads thus:
‘(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.

28 P J Schwikkard and S E Van der Merwe Principles of Evidence (2009) 285.

(3) 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: Provided that if such person
does not later testify in such proceedings, the hearsay evidence shall be left out of
account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection
(1) or is admitted by the court in terms of paragraph (c) of that subsection.
(4) 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; “party” means the accused or party against
whom hearsay evidence is to be adduced, including the prosecution.’

[109] The first judgment is to the effect that the prior decisions of this
Court in S v Rathumbu29 and in S v Mamushe30  are clearly wrong. In those
judgments, the safeguards provided for in s 3(1)(c) of the Hearsay Act were
applied to the admission into evidence of a prior inconsistent extra-curial
statement made by a s 204 state witness who, when testifying, recants such
statement that incriminates him or herself and the accused in the
commission of the offence or offences in question. As I will demonstrate,
the application of s 3(1)(c) to such inconsistent extra-curial statements of a
s 204 state witness is sound, and this Court, in my view, should not depart
from those previous decisions.

[110] We are not dealing in the present case with the admissibility of extra-
curial hearsay admissions against co-accused persons in criminal cases.
This Court, in Ndhlovu and Others v S ,31 in principle decided in favour of

29 S v Rathumbu [2012] ZASCA 5; 2012 (2) SACR 219 (SCA).
30 S v Mamushe [2007] ZASCA 58; [2007] SCA 58 (RSA); [2007] 4 All SA 972 (SCA).
31 Ndhlovu and Others v S 2002 (2) SACR 325 (SCA); 2002 (6) SA 305 (SCA); [2002] 3 All SA 760
(SCA).

the admission of this category of evidence on a discretionary basis in terms
of s 3(1)(c) of the Hearsay Act. Thereafter, this Court started to question
the wisdom of this approach32 and held that an extra-curial admission could
under no circumstances be admissible against a co-accused. Instead, we are
dealing with the situation where a prosecutor calls a s 204 witness to testify
on the strength of the state witness’s extra-curial statement, and the state
witness performs an about-turn in the witness box and testifies in favour of
the defence or develops a sudden case of amnesia. The question then arises
whether the trial court has a discretion in terms of s 3(1)(c) of the Hearsay
Act to admit the evidence if it is of the opinion that it is in the interests of
justice to do so, having regard to the various factors enumerated in the
section and ‘any other factor which should in the opinion of the court be
taken into account’.

[111] It is a long-standing rule of our common law, derived from English
law that in such cases, the state witness’ extra-curial statement may be used
solely for the purposes of impeaching him or her and may not be tendered
into court as proof for the facts contained therein. Bellengère and Walker33
searched for the rationale of the common law rule in our jurisprudence and
that of other jurisdictions and concluded that ‘as far as South African law
is concerned, the rule rested on a dual foundation; namely: (1) the
traditional objections to hearsay evidence; and (2) the notion that no
probative value can be attached to contradictory evidence’.34

32 See S v Balkwell and Another [2007] 3 All SA 465 (SCA); Libazi v S [2010] ZASCA 91; 2010 (2)
SACR 233 (SCA); [2011] 1 All SA 246 (SCA) and Litako and Others v S [2014] ZASCA 54; [2014] 3
All SA 138 (SCA); 2014 (2) SACR 431 (SCA); 2015 (3) SA 287 (SCA).
33 Adrian Bellengère and Shelley Walker ‘When the truth lies elsewhere: A comment on the admissibility
of prior inconsistent statements in light of S v Mathonsi 2012 (1) SACR 335 (KZP) and S v Rathumbu
2012 (2) SACR 219 (SCA)’ (2013) 26 SACJ 175.
34 At 175-177.

[112] The learned commentators point out that the rationale behind the
admission of hearsay evidence is based on the common law conception and
rendered redundant in 1988 when our law concerning hearsay was
amended by the Hearsay Act.35 Insofar as the contradiction rationale is
concerned, the learned commentators state:36
‘The objection that, faced with a contradiction between a witness’s viva voce evidence
and what he said on an earlier occasion, the court cannot give credence to either version,
is equally groundless. The old maxims “falsus in uno, falsus in omnibus” (false in one
thing, false in everything) and “semel mentitus, semper mentitur” (once a liar, always
a liar) are not part of the South African law of evidence (R v Gumede 1949 (3) SA 749
(A) at 576A).
Certainly a witness’s contradictions may cast doubt on his credibility (and commonly
do), but this is a matter for the court to determine, in light of all the available evidence.
Thus, the mere fact that a witness has contradicted himself is no reason to disregard or
exclude his evidence in entirety. This applies irrespective of whether the witness has
contradicted himself in his viva voce evidence, or on some other occasion (S v Mathonsi
2012 (1) SACR 335 (KZP) at paras [34] to [37] and further authorities cited therein).’

[113] The learned commentators continue to state:37
‘It would be evident from the above that there is no longer any valid reason for the
retention of the rule. On the contrary, its only contribution in most cases has been to
exclude relevant evidence, which would have assisted the court in determining the truth.
In the circumstances, it is hardly surprising that the rule has been abolished, not only in
England and Wales (s 119 and 120 of the Criminal Justice Act 2003), but also in
Australia (s 60 of the Evidence Act 2 of 1995), Canada (R v B (supra) [R v B (K.G.)
[1993] 1 SCR 740]), American federal law (s 801(d)(1) of the Federal Rules of
Evidence 1975) and a number of individual American states, such as Alaska, Arizona,
California, Indiana, Kentucky, North Dakota, West Virginia and Wisconsin (SM Terrell

35 Ibid at 177-178.
36 Ibid at 178.
37 Ibid at 178-179.

“Prior Statements as Substantive Evidence in Indiana” Indiana LR  (1979) 12(2) 495,
502-517); jurisdictions whose law of evidence, like that of South Africa, was originally
derived from English law.
In light of the two recent cases referred to above [Mathonsi and Rathumbu], it appears
that South Africa is at last following suit’.

[114] I subscribe to the views expressed by the learned commentators,
Bellengère and Walker. It may be argued, which argument found favour
with the first judgment, that the contents of a 204 state witness’ prior
inconsistent statement are not hearsay evidence, since their probative value
depends on the state witness' credibility, who, him or herself, is
testifying.38 However, although a s 204 state witness is compelled to give
his or her evidence under the sanction of an oath, or its equivalent, a solemn
affirmation, and be subject to cross-examination by the accused person or
persons against whom he or she is called to testify and who had access to
all evidence in possession of the state prior to the trial, there seems to be a
compelling rationale for our courts to treat the disavowed prior inconsistent
statement as hearsay evidence within the meaning of s 3(4) of the Hearsay
Act. Treating such statement as hearsay enables the trial court to subject
such evidence to the preconditions required in s 3(1)(c) of the Hearsay Act
and to admit such evidence only if the court ‘is of the opinion that such
evidence should be admitted in the interests of justice’. Such interpretation
of ‘hearsay evidence’ as defined in s 3(4) of the Hearsay Act promotes ‘the
spirit, purport and objects of the Bill of Rights’ contained in chapter 2 of
the Constitution of South Africa,39 and particularly an accused person’s
fundamental constitutional ‘right to a fair trial’, enshrined in s 35(3) of the

38 See BC Naude ‘The substantive use of a prior inconsistent statement’ (2013) 26 SACJ 55 at 59-61.
39 Section 39(2) of the Constitution enjoins a court to ‘promote the spirit, purport and objects of the Bill
of Rights’ when ‘interpreting any legislation’.

Bill of Rights, because the effectiveness of the cross-examination of a state
witness who denies having made the prior inconsistent statement or cannot
remember having made it, may in a given case be compromised.40

[115] In Rathumbu, this Court held that a disavowed prior written
statement of a state witness is essentially hearsay evidence, that the
probative value of the statement depends on the credibility of the witness
at the time of making the statement, and that the central question is whether
the interests of justice require that the prior statement be admitted despite
the witness’s later disavowal thereof. In Mamushe, this Court held that the
extra-curial statement by a state witness is not admissible in evidence
against an accused person under s 3(1)(b) of the Hearsay Act unless the
prior statement is confirmed by its maker in court. This Court declined to
admit the state witness’ prior statement, which she disavowed in court,
under s 3(1)(c) of the Hearsay Act, inter alia because ‘the identification
evidence deposed to by Ms Martin in her statements appears to be of the
most unreliable kind’. The doctrine of precedent also binds courts of final
jurisdiction to their own decisions unless the court is satisfied that a
previous decision of its own  is clearly wrong, which is not so in this case.41

40 Ibid BC Naude fn 38 at 61-63.
41  Camps Bay Ratepayers’ Association & Another v Harrison & Another 2011 (2) BCLR 121 (CC);
[2010] ZACC 19 (CC); 2011 (4) SA 42 (CC) paras 28-30. See also Head of Department, Department of
Education, Free State Province v Welkom High School and Another; Head of Department, Department
of Education, Free State Province v Harmony High School and Another [2013] ZACC 25; 2013 (9)
BCLR 989 (CC); 2014 (2) SA 228 (CC); Firstrand Bank Limited v Kona and Another  [2015] ZASCA
11; 2015 (5) SA 237 (SCA); BSB International Link CC v Readam South Africa (Pty) Ltd [2016] ZASCA
58; [2016] 2 All SA 633 (SCA); 2016 (4) SA 83; Standard Bank of South Africa Limited v Hendricks
and Another; Standard Bank of South Africa Limited v Sampson and Another; Standard Bank of South
Africa Limited v Kamfer; Standard Bank of South Africa Limited v Adams and Another; Standard Bank
of South Africa Limited v Botha NO; Absa Bank Limited v Louw [2018] ZAWCHC 175; [2019] 1 All SA
839 (WCC); 2019 (2) SA 620 (WCC); Firstrand Bank Ltd t/a First National Bank v Moonsamy t/a Synka
Liquors [2020] ZAGPJHC 105; 2021 (1) SA 225 (GJ) and Investec Bank Limited v Fraser NO and
Another [2020] ZAGPJHC 107; 2020 (6) SA 211 (GJ).

Like the courts of foreign jurisdictions, this court has laid down its own
safeguards before admitting the conflicting extra-curial statement of a state
witness who performs an about-turn in the witness box and testifies in
favour of the defence or develops a sudden case of amnesia.

[116] Finally, in Mathonsi42, the high court held that the common law rule
that a witness’ prior inconsistent statement may be used solely to impeach
him or her and may not be tendered into court as proof for the facts
contained therein must be replaced by a new rule recognising the changed
means and methods of proof in modern society. Madondo J then approved
and applied the decision of the Supreme Court of Canada in R v B (KG)
[1993] 1 SCR 740, and held that the prior inconsistent statement of a hostile
state witness may be used as evidence of the truth of the matter stated in
the statement if the trial court is satisfied beyond reasonable doubt that the
conditions referred to in para 49 of the first judgment are fulfilled as well
as the sixth condition which he added.

[117] However, the common law principle that a state witness’ extra-curial
inconsistent statement may be used solely for the purposes of impeaching
him or her and may not be tendered into court as proof of the facts
contained therein no longer finds application in our law. In this country,
we have our definition of hearsay evidence and legislative instrument
prescribing the factors or safeguards that the court must consider in
deciding whether the extra-curial inconsistent hearsay statement of a state
witness should be admitted as evidence in the interests of justice. Our
courts, therefore, are not permitted to substitute our statutory prescripts

42 S v Mathonsi 2012 (1) SACR 335 (KZP).

with common law principles or statutory provisions of foreign jurisdictions
in deciding whether such hearsay should be admitted as evidence.
Therefore, the decision in Mathonsi is wrong.

[118] I have mentioned that our Hearsay Act allows for a more flexible
discretionary approach to the admissibility of hearsay evidence than the
common law did. In deciding whether hearsay should be admitted in the
interests of justice, the court is not limited to the factors listed in s
(3)(1)(c)(i) to (vi) but empowered in terms of s 3(1)(c)(vii) to have regard
to ‘any other factor which should in the opinion of the court be taken into
account’. If in deciding whether hearsay should be admitted in the interests
of justice in terms of s 3(1)(c) of the Hearsay Act in a given case, the trial
court is of the opinion that a factor taken into account in another
jurisdiction when admitting hearsay into evidence should additionally be
taken into account, it is by virtue of s 3(1)(c)(vii) empowered to do so.

[119] It is within this limited ambit that I support the order of the first
judgment dismissing the appeal.

PA MEYER
ACTING JUDGE OF APPEAL

Appearances:

For appellants:
J. Van der Berg

Instructed by:
Dercksens Inc., Cape Town
Symington & De Kok, Bloemfontein

For respondent:
M. Meningo

Instructed by:
Director of Public Prosecutions, Cape Town
Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

From:

The Registrar, Supreme Court of Appeal
Date:

18 February 2022
Status:

Immediate

The following summary is for the benefit of the media in the reporting of this
case and does not form part of the judgments of the Supreme Court of Appeal

Mawanda Makhala & Another v The State (438/2020) [2021] ZASCA 19 (18
February 2022)

Today the Supreme Court of Appeal (SCA) dismissed an appeal from the Western
Cape Division of the High Court, Cape Town (high court).
The first and second appellants were convicted by Henney J in the high court on
one count of murder, one count of possession of an unlicenced firearm and one
count of unlawful possession of ammunition. The appellants were each sentenced
to life imprisonment for murder and five years’ imprisonment on the remaining
counts.
On 23 July 2018, Mr Molosi was attending a school governing body meeting at
Concordia High School as chairman after which he was shot and killed on his

way home. Upon investigation, the brother of one of the appellants, one Luzuko
Makhala (Luzuko) indicated that he wished to recount his part in the murder and
be treated as a witness under section 204 of the Criminal Procedure Act 51 of
1977. This section allows a witness to provide evidence for the prosecution which
incriminates a witness. If the testimony is frank and honest, the witness may be
discharged from prosecution.
Accordingly, Luzuko provided the police with two separate statements
incriminating the appellants in the murder of Mr Molosi. The high court admitted
the statements into evidence and convicted the appellants. However, when
Lukuzo was called upon to give evidence, he recanted the contents of his
statements. He testified that the incriminating portions of the statements were, in
fact, fabrications forced upon him by the police. In light hereof, the appeal is
grounded on the question whether the trial court was correct in convicting the
appellants in light of the recanted statements.
This Court considered the statements made in light of the principle of legality and
found that they were not obtained in violation of Luzuko’s rights as there was
nothing done to obtain the statements which would have constituted any material
detriment to the administration of justice. Luzuko tried to rely on other defences,
namely that the statements were hearsay, that he was denied his right to legal
representation and that the high court failed to properly apply the cautionary rule
applicable to evidence. Lastly, Luzuko sought to indicate, notwithstanding the
aforementioned defences, that there was insufficient corroborative evidence to
convict the appellants. This Court found each defence lacking and each failed.
In the result, this Court found the statements made by Luzuko were not
unlawfully obtained and were correctly submitted into evidence. The high court
judge correctly found that there was sufficient evidence to corroborate the
statements; the State had discharged its burden of proof. Accordingly, the appeal
was dismissed.

In a separate concurring judgment, the Court agreed with the reasoning and
conclusions reached by the majority save for the conclusion that s 3(1)(c) of the
Law of Evidence Amendment Act 45 of 1988 found no application to the
admissin of extra-curial statements made by a s 204 state witness. The Law of
Evidence Amendment Act allowed for a more flexible discretionary approach to
the admissibility of hearsay evidence than what the common law provided for. In
deciding whether hearsay should be admitted in the interests of justice, the court
was not limited to the factors listed in s (3)(1)(c)(i) to (vi) but empowered in terms
of s 3(1)(c)(vii) to have regard to ‘any other factor which should in the opinion
of the court be taken into account’.  In deciding whether hearsay should have been
admitted in the interests of justice in terms of s 3(1)(c) of the Law of Evidence
Amendment Act, the court was at liberty to seek guidance from the jurisprudence
of other jurisdictions, and in a given case could also have taken into account
factors that would have been taken into account in such other jurisdictions.

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