Sibongile Wendy Makhathini v Road Accident Fund

On 26 October 1993, a three-year-old child, Mphathi Makhathini, was struck by a motor vehicle driven by J.T. Zondi while near a communal tap alongside Falezwe road in Ntuzuma township, KwaZulu-Natal. The child was with two older children fetching water when the collision occurred. Zondi reported the collision to the KwaMashu police station on the same day, where a policeman recorded his statement in a Road Traffic Collision Report, including that he was traveling at 40 km/h when he saw children at the tap, slowed down, but one child ran into the road from the right. By the time of trial, Zondi had died from an unrelated cause. The appellant, the child's mother and guardian, sued the Road Accident Fund (successor to the Multilateral Motor Vehicle Accidents Fund) for compensation. The trial court granted absolution from the instance, finding insufficient evidence of negligence, and refused to admit the police report containing Zondi's statement on grounds that it was unreliable hearsay and the author was unidentified.

• Whether a Road Traffic Collision Report containing an extra-curial statement by a now-deceased insured driver should be admitted as hearsay evidence under section 3(1)(c) of the Evidence Amendment Act 45 of 1988
• Whether extra-curial admissions by an insured driver against interest are admissible against a third-party insurer in the absence of privity of interest
• Whether 'double hearsay' (statement recorded by unidentified policeman from deceased driver) can satisfy the statutory requirements for admission
• What factors must be considered when exercising judicial discretion to admit hearsay evidence in the interests of justice
• Whether the insured driver was negligent in the circumstances of the collision

The appeal was upheld with costs. The order of the trial court (absolution from the instance) was set aside. It was declared that the defendant (Road Accident Fund) is liable to compensate the plaintiff in her representative capacity for damages suffered by the minor child as a result of injuries sustained in the collision on 26 October 1993. The matter was postponed for a hearing on quantum of damages, with costs reserved.

The ratio decidendi is that: (1) Section 3 of the Evidence Amendment Act 45 of 1988 has altered the rules governing reception of hearsay evidence, supplementing the common law rules about vicarious admissions with statutory criteria based on relevance, weight and the interests of justice; (2) Extra-curial statements by an insured driver (a 'stranger' to litigation between a plaintiff and insurer) are not automatically excluded for lack of privity of interest, but must be examined to determine if they constitute hearsay as statutorily defined, and if so, whether they should be admitted applying the seven factors in section 3(1)(c); (3) Double hearsay is not precluded by section 3 provided its requirements are met, though the more hearsay is piled upon hearsay, the more its reliability must be scrutinized; (4) The seven factors in section 3(1)(c) are interrelated and overlapping and must be considered together, not in isolation, to determine whether admission is in the interests of justice; (5) Decisions on admissibility of evidence are decisions of law, not discretion, and appellate courts may overrule such decisions if wrong; (6) Motorists approaching young children near the edge of a road must drive with special care and vigilance, and must regulate their speed to enable them to stop to avoid collision, particularly where children are unsupervised and the motorist knows the area and road conditions.

The Court made several obiter observations: (1) It expressed the view that Professor Zeffertt's criticisms of the Mdani decision had not been borne out in the ten years since that judgment, as courts had been appropriately cautious in admitting hearsay evidence; (2) It suggested that in principle, an extra-curial statement by a driver contrary to his own interest may carry more weight than a statement by a passenger who observed the speedometer, though one cannot generalize; (3) The Court noted that it might be simpler to put aside labels such as 'vicarious admissions' and 'privity of interest' which have outlived their usefulness, and view admissibility purely through the lens of relevance and hearsay; (4) It observed that while the appellant could be legitimately criticized for not pursuing with greater urgency the identity of the policeman who took the statement, this was not in itself decisive; (5) The Court noted that the poor English grammar and idiom in the police report reflected negatively on reliability but did not preclude admission, particularly given that the policeman was clearly numerate and the speed recording was likely accurate.

This judgment is significant for comprehensively clarifying the law of hearsay evidence in South Africa following the Evidence Amendment Act 45 of 1988. It confirms that the old common law rules about vicarious admissions and privity of interest have been supplemented (not replaced) by statutory criteria focused on relevance, reliability, and the interests of justice. The case establishes that 'double hearsay' can be admitted if the statutory requirements are satisfied, though its weight must be carefully assessed. It provides detailed guidance on how to apply the seven interrelated factors in section 3(1)(c) when deciding whether to admit hearsay evidence. The judgment also reinforces the principle that motorists owe a special duty of care when driving near young children, particularly in residential areas with known hazards. It demonstrates how appellate courts can substitute decisions on admissibility of evidence (being decisions of law, not discretion) where trial courts have erred in excluding relevant hearsay evidence.