Long Opinion

FACTS

Praveen Singh is a first year law student at the University of KwaZulu Natal. On the late evening of 20th August 2000 on Cherry Lane in the district of Durban, province of KwaZulu Natal Praveen Singh was driving a motor vehicle and was in a collision with Mr Sepumle. He (Mr Singh) attended a party at a friends' house where he consumed between 4 and 5 beers. Mr Singh then thought he was fine to drive a motor vehicle and take a friend home. Mr Singh was travelling home when he came across a slower vehicle on the road (a taxi), to which he tried to overtake. As Mr Singh was overtaking the slower vehicle, Mr Sepumle was travelling in the opposite direction, and the collision occurred. Mr Singh stated that he saw Mr Sepumle with a cellular phone in hand, while he (Mr Sepumle) was driving, just before the collision. Mr Singh's friend, Ms Tong, who was in the vehicle, sustained injuries. The slower vehicle continued without stopping. Mr Singh has the following charges laid against him:

1) The charge of reckless or negligent driving in contravention of s 63(1) of the National Road Traffic Act 93 of 1996.

2) The contravention of s 65(2) (a) of the National Road Traffic Act of 1996 whereas he knowingly drove a vehicle on a public road with a concentration

of alcohol of more than 0.05 grams per 100 millilitres of blood, to with 0.06 grams of alcohol per 100 millilitres of blood.

3) The final charge been that of defeating or obstructing the course of justice in that he, Mr Singh, unlawfully and intentionally resisted having a blood sample taken from you by a traffic official, who was authorised by law to have taken the sample, in doing so, he has contravened s 65(9) of act 93 of 1996.

FIRST ISSUE: THE USE OF HEARSAY EVIDENCE

Should the use of hearsay evidence in the court a quo be admitted? Bear in mind that the medic was overseas. Did the judge correctly decide to admit the hearsay evidence in terms of section 3(1) (c) of the Law of Evidence Amendment Act 45 of 1988?

RULE OF LAW 1

Statutory law (regarding hearsay) which is section 3 of Law of Evidence Amendment act 45 of 1988. Taken from section 3(1) (c) which states that:

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

(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 was tendered;

(iv) the probative value of the evidence;

(v) the reason why the evidence is no given by the person upon whose credibility the probative value of such evidence depends;

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

(vii) any other factor that 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.

Throughout this part of the opinion I will be referring to the following cases: S v Cekiso , S v Mpofu and Hlongwane v Rector St Francis College .

In the case of S v Cekiso , the judge stated that, with regard to hearsay, the discretion of the court by s (3) (1) (c) of the Law Amendment Act should not be exercised in favour of allowing hearsay evidence on controversial issues upon which conflicting evidence has already been given. To do so could result in severe prejudice to the person against whom the evidence is given, and it would not be in the interests of justice to allow such evidence which can not be tested in the normal way.

The court accordingly, in a criminal trial, refused to allow the evidence of what the deceased had told a witness about the accused having entered the deceased's house where the accused denied that they had entered the deceased's house at all.

In the case of S v Mpofu , the court, on charge of culpable homicide arising from a motor vehicle collision, accepted evidence to the effect that a passer-by had given a witness. This was when the deceased husband, whom was walking next to her, saw her being hit by the car. He accepted a piece of paper (a slip of a beer carton) with the registration number, of the vehicle that allegedly struck the deceased, on it. The passer-by did not give evidence at the trial and had told the deceased's husband that she could not be involved as she feared for her life. The admissibility of this evidence concerning the registration number was practically attacked on appeal.

The judge stated that with regard to hearsay, where, the requirements of reliability are not satisfactorily met, it is then that the question of resultant prejudice mentioned in the Act, s 3(1) (c) (vi), which comes into balance. If the probative value of what has been adduced is so diminished by reason of unreliability, or the like, then the resultant prejudice caused by its reception may well persuade the Court to exercise its discretion against admitting it. The evidence in this case was thus excluded.

Relatively, in the case of Hlongwane v Rector St Francis College , on the facts of the case, the 32 applicants, matriculation pupils at a Black Catholic School, had been suspended in September 1988 prior to their examinations. Leading up to this event there had been problems earlier in the year at the school. The pupils had participated in an authorised stayaway commemorating the anniversary of Sharpeville in March. They then indulged in a further, unauthorised, stayaway on the following day which flouted the authority of the Rector. Five ringleaders were expelled. They applied to Court for reinstatement on the basis that the order sought arose from contract, the legal relationship between the pupils and the school being one of contract. The court ordered their reinstatement as the Rectos information in his affidavit, upon which he had relied for justification of the expulsion, was based on hearsay evidence and he had refused to divulge his sources of information for fear of reprisals. Later in the year, two prefects were assaulted and they left school. No one owned up and the Rector suspended the whole of the matriculation class. The unrest had filtered down to the rest of the classes and homemade weapons were found in the boarding school. The school was closed before the September recess.

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