Mawanda Makhala and Another v The State

The first and second appellants were convicted of murder, possession of an unlicensed firearm and unlawful possession of ammunition by the High Court. On 23 July 2018, Mr Molosi, a chair of a school governing body and councillor of Knysna Municipal Council, was shot and killed after a school meeting. During investigation, Luzuko Makhala (brother of the first appellant) made two extra-curial statements to police under section 204 of the Criminal Procedure Act, in which he detailed a conspiracy involving the second appellant (Mr Waxa, a councillor) who hired a hitman (Mr Dumile, third accused) through Mawanda Makhala (first appellant) to kill Mr Molosi. Luzuko facilitated the killing by transporting the hitman. When called to testify, Luzuko Makhala recanted his statements, claiming they were fabricated under police coercion. He was declared a hostile witness. The trial court admitted the two statements into evidence under the Law of Evidence Amendment Act 45 of 1988 (Hearsay Act) and relied upon them to convict the appellants.

• Whether Luzuko Makhala's extra-curial statements were obtained in violation of his constitutional rights
• Whether the extra-curial statements constituted hearsay evidence under the Hearsay Act
• Whether the trial court correctly applied section 3(1)(c) of the Hearsay Act in admitting the statements
• Whether the trial court correctly declared Luzuko Makhala a hostile witness
• Whether the cautionary rule applicable to accomplice evidence was properly applied
• Whether there was sufficient corroborative evidence to support the convictions

The appeal was dismissed. The convictions for murder and related firearms offences, and the sentences (life imprisonment for murder and five years concurrent for firearms offences) were upheld.

1. Extra-curial statements made by a witness who is called to testify at trial are not hearsay under section 3(4) of the Law of Evidence Amendment Act 45 of 1988, because their probative value depends on the credibility of the person giving evidence (the witness testifying), not on a person other than the person giving evidence. 2. Where a witness confirms making an extra-curial statement but denies its truthfulness, the witness is available for cross-examination to test that denial, and the statement may be admitted without applying section 3(1)(c) of the Hearsay Act. 3. For extra-curial statements of a witness to be admissible: (a) the evidence must be admissible if it had been given in court; (b) the statement must have been made voluntarily; and (c) the declarant must be available for cross-examination. 4. Evidence obtained in violation of rights in the Bill of Rights must be excluded under section 35(5) of the Constitution if admission would render the trial unfair or be detrimental to the administration of justice, but this applies to violations of rights of any person, not only the accused. 5. The common law rule that extra-curial admissions or confessions of one accused are inadmissible against a co-accused survives the Hearsay Act and is not abrogated by it, but this rule does not apply to statements of witnesses (as opposed to accused persons) who testify at trial.

1. Unterhalter AJA expressed doubt about the reasoning in S v Ndhlovu that section 3(1)(c) applies when a witness acknowledges making a statement but cannot recall its contents, suggesting that cross-examination remains an adequate safeguard in such circumstances. 2. The value of an oath in a secular age should not be exaggerated and should not be elevated to a threshold requirement for admitting prior statements. 3. The value of demeanour evidence should not be exaggerated (referencing Standard Bank v Sibanda). 4. Meyer AJA in the concurring judgment observed that the common law rule excluding prior inconsistent statements from being used for the truth of their contents rests on a dual foundation (hearsay objections and contradictory evidence having no probative value) that no longer has validity, and that the rule has been abolished in multiple common law jurisdictions. 5. Meyer AJA suggested that treating disavowed prior inconsistent statements as hearsay subject to section 3(1)(c) promotes the spirit of the Bill of Rights, particularly the right to a fair trial, because the effectiveness of cross-examination may be compromised when a witness denies or cannot remember making the statement.

This case is significant for its comprehensive analysis of the admissibility of extra-curial statements of witnesses who recant in court, particularly section 204 state witnesses. The majority established that when a witness who made an extra-curial statement testifies at trial, the statement is not hearsay under the Law of Evidence Amendment Act 45 of 1988 because its probative value depends on the testifying witness's credibility, which can be tested through cross-examination. This contrasts with the position of confessions by co-accused. The case also addresses the constitutional dimensions of evidence obtained from witnesses (not accused persons), the requirements for declaring a witness hostile, and the application of the cautionary rule to accomplice evidence. The concurring judgment reflects an alternative view that such statements should be treated as hearsay requiring application of section 3(1)(c) safeguards, indicating this area of law remains subject to development.