The dying declaration is based on the Latin maxim ‘nemo moriturus praesumitur mentiri’. Literally translated it means ‘a man will not meet his maker with a lie in his mouth’. It originated in English law.
As early as the 1720’s, the use of the dying declaration was used as an exception to the hearsay rule and was admissible, provided it complied with certain legal principles set out under English common law.
The hearsay rule is a rule of evidence, which prohibits admitting testimony or documents into evidence when the statements contained therein are offered to prove their truth and the maker of the statement does not testify and is not subject to cross-examination on the contents thereof.
In South Africa (SA) we adopted the English common law and followed the same legal principles.
Applicable legal principles
The English principles were set out in State v Gabatlwaelwe 1996 BLR 540 (HC).
The court held that the dying declaration is a statement that may be oral or written or taken in the form of signs or gestures. It need not be made with the deceased’s dying words or dying breath. Although used in cases to incriminate the accused, they are equally admissible in his defence.
Admissibility is depended on the following factors:
One of the earliest decisions on the admissibility of a dying declaration
In the 1961 American decision of Connor v State 171 A.2d 699 (Md.1961), the Maryland Court of Appeal had to consider whether evidence admitted at the trial, which consisted of a statement made by the deceased to the police, was inadmissible as a dying declaration due to its opinion form. The court held that dying declarations made under certain conditions are admissible as an exception to the hearsay rule. The justification for its admissibility is based on two broad grounds namely necessity and reliability. The test of whether or not a dying declaration is an opinion is ‘whether the statement is the direct result of observation through the declarant’s senses, or comes from a course of reasoning from collateral facts’ (LM Katz ‘Admissibility of Opinions in Dying Declarations – Connor v State’ (1962) 22 Maryland Law Review 42 at 44). If it is the former, it is admissible; if it is the latter, it is inadmissible.
The position in SA prior to 1988
In SA the provisions of s 223 of the Criminal Procedure Act 51 of 1977 (CPA) governed the admissibility of a dying declaration, and read as follows:
‘The declaration made by any deceased person upon the apprehension of impending death shall be admissible or inadmissible in evidence if such declaration would have been admissible or inadmissible as evidence on the thirtieth day of May 1961.’
The position in SA after 1988
The Law of Evidence Amendment Act 45 of 1988 (the Act), changed how courts dealt with the evidence of a dying declaration. Section 9 of the Act repealed the provisions of s 223 of the CPA.
Hearsay evidence under the Act means evidence whether oral or in writing, the probative value of which, depends on the credibility of any person other than the person giving such evidence.
Section 3 provides:
‘(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 regards 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.’
The SA courts approach post 1988
In S v Mbanjwa and Another 2000 (2) SACR 100 (D), the High Court dealt with the admissibility of statements made by the deceased prior to her death. The state and defence conceded that this was hearsay evidence.
The court considered the following, namely:
The court found that there were certain safeguards present in the objective facts which guaranteed the reliability of the hearsay evidence and concluded that it was in the interests of justice that it be admitted.
In S v Shuping (NWM) (unreported case no CC161/05, 1-1-2006) (Hendricks J), the accused, Mrs Shuping, was convicted of murder and arson. The state did not have any eyewitnesses but relied on circumstantial and hearsay evidence. The hearsay evidence consisted of statements, which the deceased allegedly made to state witnesses shortly after he was burned. The state applied to have evidence admitted in terms of s 3(1)(c) of the Act. Henricks J stated that the hearsay evidence must be excluded unless he was of the opinion that it should be admitted in the interests of justice. The court had regard to each of the six considerations in the Act. The court held that it was not necessary to determine conclusively whether the deceased’s statements would definitely have qualified either as a dying declaration or spontaneous statement. It held that ‘the interests of justice demands the admissibility of the hearsay evidence and there is compelling justification for admitting and relying on that evidence’.
In S v Ramavhale 1996 (1) SACR 639 (A) Schutz JA stated that ‘a Judge should hesitate long in admitting or relying on hearsay evidence which plays a decisive or even significant part in convicting an accused, unless there are compelling justifications for doing so.’ Hearsay evidence was long recognised to be unreliable and continues to be so. He further stated that: ‘An accused person usually has enough to contend with without expecting him also to engage in mortal combat with the absent witness.’
In S v Mpofu 1993 (2) SACR 109 (N) it was held that the reception of hearsay evidence under s 3(1)(c) of the Act ‘should not logically be divorced from a consideration of those factors which at common law made for admissibility or not.’
In Mzizi v S [2009] 3 All SA 246 (SCA) the Supreme Court of Appeal (SCA) dealt with the admission of the statement by the deceased to the police officer identifying his attacker after he was shot and before he died. It was argued that the statement was inadmissible hearsay evidence and that the court should not have admitted it as evidence. This was regarded as a dying declaration. The SCA held that there can be no doubt that the statement uttered by the deceased, if it was admitted to prove the identity of his killer, constitutes hearsay evidence. The court held that: ‘Although it is arguable that the statement in question was admitted in compliance with the requirements of section 3(1)(c), for the purposes of this judgment, I am willing to assume in the applicant’s favour that its admission did not comply with that section. I am willing to assume further that such failure amounted to an irregularity. For, if the utterance by the deceased is discounted from the body of evidence implicating the applicant, the remaining evidence would still be sufficient to sustain his conviction.’
In Van Willing and Another v State (SCA) (unreported case no 109/2014, 27-3-2015) (Schoeman AJA) the SCA had to deal with the admissibility of hearsay evidence in terms of s 3(1)(c) of the Act. The person who made the statement was the deceased, after he was shot. The appellants were convicted of murder. The state elicited evidence that the deceased told at least three witnesses the identity of the perpetrators. The SCA, when dealing with the probative value of the evidence, assessed it under two heads, namely, the reliability and completeness of the witness transmission of the deceased’s words and the reliability and completeness of whatever it was that the deceased did say. The court found that the admission of the hearsay evidence was in the interests of justice.
When a court admits hearsay evidence after exercising its discretion in terms of s 3(1)(c), it has the effect that the person who made the statement cannot be cross-examined. The question that arises is whether this is in conflict with an accused’s constitutional right to challenge evidence. The SCA in S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) held that it is not.
Procedure to be followed when a party wishes to introduce hearsay evidence
In the Ndhlovu matter, Cameron JA, alluded to a careful approach to be followed before such evidence will be admitted at a criminal trial. The court must be asked clearly and timeously to consider and rule on its admissibility. It was stated that an accused cannot be ambushed by the late or unheralded admission of hearsay evidence and before the state closes its case the judge must rule on admissibility so that the accused can appreciate fully the evidentiary ambit he or she faces.
Conclusion
Our courts do not like to strictly classify a statement as a dying declaration or a spontaneous statement. They accept that statements of the deceased are hearsay in nature and apply the provisions of s 3 of the Act to determine admissibility. More often than not courts admit the statements if it is in the interests of justice.
Sherika Maharaj LLB (Unisa) is an attorney at Legal Aid in East London.
This article was first published in De Rebus in 2016 (Sept) DR 28.
