State v Anver Hendricks +1: A Practical Example of the Law of Evidence Amendment Act in respect of hearsay and how not to do it

Introduction

The two accused stand charged with multiple counts of Fraud and Theft by false pretences having been originally charged with Corruption.

The allegations in a nutshell are that Accused 1 used his influence at a government owned entity l to negate tender procedures thereby ensuring accused 2 would be the recipient of lucrative tenders in return for payments totalling in excess of R 1000 000.

A critical link in the state case are a number of invoices which it is alleged are fictitious in nature being created for the sole purpose of providing a basis for any payments by Acc 2 to Acc 1

Hearsay Evidence sought to be tendered by the state

The state is in possession of a statement by an individual who has died that is highly incriminatory of accused 1 and by implication of accused 2 . The statement refers to a conversation between accused 1 and the deceased . The state wishes the statement to form part of the record and be admitted into evidence by the court in terms of Section 3(1) of The General Law Amendment Act which provides :

3 Hearsay evidence

(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless -

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

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

(c) the court, having regard to-

(i) the nature of the proceedings;

(ii) the nature of the evidence;

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

(iv) the probative value of the evidence;

(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(vi) any prejudice to a party which the admission of such evidence might entail; and

(vii) any other factor which should in the opinion of the court be taken into account,

is of the opinion that such evidence should be admitted in the interests of justice.

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

(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.

Approach adopted by the state

The state when bringing this application decides to do the following:

(1) It leads no viva voce evidence at all

(2) Only addresses the court ex parte and refers to the relevant case law in respect of the admissibility of hearsay such as S v Ndlovu

Objection by the defence

The objection by the defence is based on a number of grounds namely:

A: The authenticity of the statement

The defence disputes the authenticity of the statement and that the deceased deposed thereto and in the absence of any viva voce evidence in this regard contends that neither the document nor the owner thereof has been proven and on that basis alone the application must fail .Just remember that just because the state says that a certain person depose thereto does not mean that you as the defence must sit idly by and just accept it as common cause since your purpose is clearly to object to it and ensure that only relevant properly admitted evidence become part of the record.

B: The requirements of section 219 A of Act 51 of 1977 have not been met:

The statement in question records a conversation between the accused and the deceased and certain statements adverse to his case were made by the accused. According to the learned authors Hoffman and Zeffert any statement made extra curially which is adverse to the case of the one making the statement is an admission and Section 219 A of the CPA applies . What this means is that the state must prove that the admission was voluntarily made without undue influence or promise. The only person who can testify to this would be the deceased since he was there so clearly the state cannot meet it’s burden. Take a look at Section 3(2) above which clearly provides that the hearsay amendment act can’t be used to make admissible any evidence which would inadmissible in terms of the common law or any legislation.

C: The application is premature :

The application by the prosecutor was premature in that no further evidence was led which directly or indirectly supported the contents of the statement so how could any reliance be placed on the contents thereof.

D: The Prosecutor does not understand the law and or misrepresents it to the court

An application in terms of the hearsay law amendment act requires that the prosecutor addresses the court in respect of each factor enumerated in Section 3(1) and his failure to do so is either due to ignorance ,lack of preparation and or an attempt to mislead the court .

RESULT

The prosecutor to the consternation of the court admitted that he was not as prepared as the defence and that his application was premature and doomed to failure and it was withdrawn.

CONCLUSION

The important part of this whole discussion is for the defence attorneys who visit this site to realise that practice and relevant case law such as S v Ndluvo clearly show that the admission of hearsay is only allowed in the most exceptional of circumstances . Do yourself a favour google SAFLII and search for S v Ndlovu it clearly sets out how difficult the admission of hearsay should be.