THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
Case Number  :  315 / 06

In the matter between

STEVEN BALKWELL
FIRST APPELLANT
CLINTON ALAN BARENDSE
SECOND APPELLANT

and

THE STATE
RESPONDENT

Coram :

CLOETE, PONNAN et MAYA  JJA

Date of hearing :
14 MAY 2007

Date of delivery :
20 JUNE 2007

Summary:
Culpable homicide – appellants assaulting and causing the death of the deceased –
appellants ought reasonably to have foreseen that death might ensue from their
assault – sentences of seven years imprisonment appropriate in the circumstances.

Neutral citation:
This judgment may be referred to as :  Balkwell v The State [2007] SCA 91 (RSA)

______________________________________________________________________________

MAYA  JA /

MAYA JA:

[1] The Appellants and the first appellant’s wife (Mrs Lindse Balkwell), who
subsequently divorced him, were charged with murder and kidnapping in the
Regional Court, Durban. The magistrate acquitted them on both counts but
convicted the appellants of culpable homicide and sentenced them to each undergo
seven years imprisonment. The appellants appealed against the convictions and the
sentences to the Pietermaritzburg High Court. That court (Patel J, Radebe AJ
concurring) dismissed the appeals in a judgment which has since been reported as
S v Balkwell and another 2006 (1) SACR 60 (N). This appeal is with the leave of
the court below.

[2] Much of the evidence is either common cause or undisputed. Mr Michael
Burke (the deceased) disappeared on the night of 2 November 1999 after leaving a
friend’s flat in the company of the appellants and Lindse. His body was found in a
gorge about a week later, pursuant to a pointing out made by the first appellant.
Prior to his death, the deceased, who had a drug dependency, was employed by the
Balkwells as a sales representative at their photo-lab in Westville. On 1 November
1999 he misappropriated a sum of R17 000, 00 from the photo-lab and disappeared
with the business keys. The next day he did not report for work. The first appellant
conducted a search for him and was that afternoon put in touch by his au pair,
Kirsty Henderson, with Mr Lance Mather who allegedly knew the whereabouts of
the deceased. Mather accompanied the first appellant to Mr Mark Ashmore’s flat in
Paradise Valley. Ashmore denied the deceased’s presence in the flat. The first
appellant gained the impression that Ashmore was lying and returned to the flat
that evening with Lindse and the second appellant, a bouncer at a local night club.
Ashmore once more denied knowledge of the deceased’s whereabouts. The second

appellant demanded entry into the premises to search for the deceased and the
latter came out and handed over the keys. The appellants assaulted him and
demanded the missing money. Consequently, the deceased called his brother-in-
law, Mr Claude West, from Lindse’s cellular phone and asked him for the money.
This apparently so upset Lindse that she called Kirsty and told her that the
deceased was being assaulted and was ‘crying like a baby’. The deceased and West
agreed to meet at the residence of the deceased’s mother shortly to make
arrangements for payment. The appellants, Lindse and the deceased left the flat
and walked to the parking lot. There, the appellants once more assaulted the
deceased, who thereafter lost consciousness. The appellants loaded him into
Lindse’s car with the intention of taking him to hospital. On the way, the deceased
defecated in the car and it appeared that he had died. His body was thrown down a
gorge in Botha’s Hill, Camperdown. A post mortem examination conducted on his
body could not establish the cause of death by reason of the advanced state of
decomposition in which it was found.

[3] The nature and severity of the assault were in dispute. Several witnesses
were called to adduce evidence on behalf of the State and Lindse and the
appellants testified on their own behalf. A pathologist, Professor Botha, also
testified on the second appellant’s behalf in support of the appellants’ defence that
the assault inflicted on the deceased was not of a serious nature and could not have
caused his death.

[4] Only two of the State witnesses, Ashmore and Mr Nkqubeko Jinineka, a
security guard posted at the entrance of Ashmore’s apartment complex on the night
of 2 November, claimed to have witnessed the assault which, as indicated above,
occurred in two stages – on the veranda of Ashmore’s flat and, thereafter, in the

parking lot. According to Ashmore, the deceased had arrived at his flat on 1
November. He complained that he was having domestic problems and needed time
and space to think. As was their wont, they indulged in drugs - ecstasy and dagga
and the deceased also consumed cocaine. The deceased slept at the flat and
remained there until the following day. On Ashmore’s return from work that
afternoon, they shared a dagga cigarette. It was on the instructions of the deceased,
who seemed scared by the visit, that he told Mather that the deceased was not
present. The deceased readily cooperated with the appellants on their arrival and
handed the keys over. They demanded money. The second appellant grabbed the
deceased and shoved him against a wall at the veranda and told him that the
Balkwells had ‘paid him good money to beat him up and get their money’. As
Ashmore went into the lounge, he heard a slap. The deceased cried out in pain.
Ashmore returned to the door and saw the first appellant kick the deceased above
the right hip. He went to talk to his girlfriend in the bedroom and on his return to
the doorway he heard a hard, dull noise. Again, the deceased cried out in pain. He
saw him lying against the wall talking on a cellular phone which did not belong to
him. He had a swollen eye and was bleeding from his lip. A nearby pot plant was
broken and there were blood spots on the floor. At his request, the first appellant
and his companions left with the deceased. That was the last time he saw the
deceased alive.

[5] Jinineka’s version was to the following effect. He observed two men and a
woman (identified in the proceedings as the appellants and Lindse) enter the
premises, having left their vehicle outside the entrance, about 20 metres from his
post. In accordance with the rules of the complex, the first appellant, as the driver,
entered their vehicle’s registration numbers and appended his signature in the
access control register - both entries later turned out to be false - to gain access to

the premises. About 20 minutes later, they reappeared in the company of a man
whom he had seen in the complex from the previous day (the deceased). Upon
reaching their vehicle, the first appellant punched the deceased several times whilst
the hefty second appellant also tried to assault the deceased but was impeded by
the first appellant. The deceased tried to ward off the blows. He fell to the ground
and the second appellant started kicking him all over his body. The first appellant
also kicked him several times at this stage. During this assault, the deceased merely
turned over on his side and was kicked on the back. The appellants raised the
deceased to a sitting position and he noticed that he was bleeding on his face. The
first appellant approached Jinineka with a bucket and asked for water which the
latter provided. The first appellant washed the deceased’s face. The appellants
loaded the deceased in their vehicle and they left. Lighting was good in that area
and his visibility was not impaired in any way. He did not intervene because the
incident occurred outside his premises.

[6] Two inspections in loco were subsequently conducted at the scene, the first
one during the day and the second at night in an attempt to recreate conditions
similar to those which prevailed on the night in question. The inspections
established, even though one of the lights in the vicinity no longer worked and the
weather was cloudy, that Jinineka’s view would not have been impeded from his
post. In the altered conditions, however, colour perception was not possible and
could be distinguished only in terms of ‘light’ and ‘dark’. Only arm and leg
movements of people could be perceived and nothing at all could be seen on the
left rear end of the vehicle where he said the assault started.

[7] Four pathologists, including Prof. Botha, prepared post mortem reports in
the matter although only two of them, Dr Naidoo and Dr Aiyer attended the two

post mortem examinations which were conducted on the deceased’s body. Prof.
Botha and Dr Perumal, who was called by the State, actually testified and both
relied on Dr Naidoo’s report for their opinions. According to his report, Dr Naidoo
observed the following injuries on the deceased’s body - subcutaneous and
intramuscular bruising at (a) the dorso-ventral aspect of posterior left mid-forearm,
(b) the medial aspect of the left upper arm, and (c) the right chest wall laterally;
and (d) a fractured bony nasal aperture. There was also a deep red or purple
discolouration on the scalp tissue over the vertex of the skull, but it could not be
conclusively determined if it ‘represented deep bruising of the scalp or deep
haemolytic staining from decomposition other than that the naked eye examination
is suggestive of bruising’. He further recorded heavy maggot infestation with
skeletonisation of the face and neck. His conclusion was that the cause of death
could not be ascertained from the autopsy alone due to advanced decomposition.

[8] Dr Perumal endorsed Dr Naidoo’s observations and conclusion but added,
similarly to Dr Aiyer, that ‘…however closed head injury must be strongly
considered as the cause of death’. In his opinion, the bruises indicated blunt force
injury; the bruises on the arm, by reason of their location, were consistent with
defensive injuries sustained usually in an attempt to protect the face and head and
the discoloration on the scalp, because it was focal, was suggestive of a bruise. He
conceded that he relied substantially on the witness statements made available to
him (among which was an affidavit to which the first appellant had deposed for
purposes of bail in the lower court, to which I will return later in the judgment) to
reach these conclusions.

[9] The appellants’ account of the assault in the flat did not differ from
Ashmore’s version. The first appellant said that he punched the deceased only

twice in the chest and nudged him on his knee with his foot at the flat to make him
realise the seriousness of the situation. He denied that the deceased had a swollen
eye or bled at any stage, even when they left the flat, an aspect which both his co-
accused however conceded. On his version, he fetched the water for the deceased
to clean himself up as he was perspiring heavily. He threw the water over the
deceased’s head because he made a flippant remark. He disavowed the contents of
his bail affidavit in which he blamed his co-appellant for the deceased’s death. He
said that he did not see the second appellant (whom he took along only as a
precaution because that area was ‘notorious’) assault the deceased in the parking
lot. He merely heard a scuffle as he was busy talking to Lindse and, on turning,
saw the deceased on his knees. Thereafter, when he was putting the bucket back in
the car boot, he heard a thud and assumed from the deceased’s subsequent fall, the
guttural noise he made and his subsequent loss of consciousness that the second
appellant had kicked him on the head. The second appellant checked the
deceased’s pulse and said he should be taken to hospital. Along the way, when it
appeared that the deceased may have died, he and Lindse called the second
appellant. He met them on the roadside and gave them cocaine. He advised them to
wash it down the deceased’s throat and dump his body down Kloof Gorge.
Thereafter, he established that the deceased had died by shining a torch in his eyes
and threw the body down a gorge out of panic.

[10] The second appellant admitted that he grabbed the deceased by his clothing
and, without letting him go, pushed him against the wall. He slapped him on the
face. He slapped him again but the deceased anticipated the blow and ducked. The
deceased lost his balance and fell, hitting the pot plant in the process. At the
parking lot, he slapped the deceased twice and kicked him on the thigh to make
him rise from his haunches. The deceased instead flopped back into a sitting

position. He ‘shoved’ him on the shoulder with his foot. That is when the deceased
made the strange noise and fell on his back. He felt for his pulse and found that it
was unusually rapid. He told the Balkwells to take him to hospital and drove home.
He assaulted the deceased only because of his nonchalant attitude. The Balkwells
had not paid him any money. He denied meeting them after leaving the scene; this
despite a version put to the first appellant by his attorney that he did meet them but
only suggested that they should dump the deceased at a hospital and concoct a
story for the hospital staff that he was suffering from a drug overdose.

[11] The last defence witness, Prof. Botha, concluded that in view of the
deceased’s history of drug abuse he died ‘as a result of the interaction between
substances of abuse and physical and psychological stress, and not as a result of the
assault alone’. Significantly, however, he conceded under cross-examination that
the deceased would not have died had he not been assaulted. This portion of the
evidence may be given short shrift. The difficulty it presents, without even delving
into its merits, is that it was adduced at very short notice, at a late stage of the
proceedings, towards the conclusion of the defence case. It was not put to any of
the relevant State witnesses, in particular Dr Perumal. It is apparent on the record
that the State prosecutor was unable to effectively cross-examine the relevant
defence witnesses on the factual basis of the report because she had not even had
an opportunity to consult with her witness. The duty to recall such State witnesses,
in order for this late version to be put to them, clearly rested on the defence at this
stage. This was not done. The State was thus deprived of an opportunity to
properly challenge the factual basis of his report.

[12] Trial by ambush is to be frowned upon no less when it occurs at the instance
of the defence. In those circumstances ordinarily one very rightly would hesitate to

have regard to such evidence. In this case, however, it is perhaps unnecessary to
adopt such a stance. This is so because on Prof. Botha’s evidence it must be
accepted that but for the assault, the deceased would not have died. Furthermore,
his thesis is not supported by the evidence viz. Ashmore’s undisputed version that
the only recreational drug the deceased had consumed on 2 November was the
dagga cigarette which they shared. It ignores as well the first appellant’s evidence
that the deceased, whom he had previously seen under the influence of narcotics,
appeared sober. The toxicology test which was run on samples taken from the
deceased’s body registered no trace of narcotics. Of course, one says this mindful
of the fact that the purpose of the test is not entirely clear on the record and it is
also uncertain whether it could yield any reliable results in view of the state of
decomposition.

[13] In convicting the appellants, the magistrate made adverse credibility findings
against the appellants and rejected the defence version. She accepted Jinineka’s
evidence, despite a finding that he was not ‘the most satisfactory or reliable of
witnesses’, on the reasoning that ‘the gist of his evidence regarding the actual
assault did not falter materially and corroborates to a large extent what [the first
appellant] said in his bail application about what transpired at the parking lot’. She
found that the appellants had a prior agreement to assault the deceased and
concluded that they not only caused the deceased’s death but ought reasonably to
have foreseen that death might ensue from their assault.

[14] The court below upheld the magistrate’s findings. It further found that the
contents of the bail affidavit, although not directly admissible against the second
appellant, provided corroboration for Jinineka’s evidence relating to the nature and
extent of the assault; that the presence of the nose fracture corroborated the serious

assault to the face and head and that the conclusion reached by Drs Aiyer and
Perumal regarding the cause of death and the intense maggot infestation in the
head were facts consistent with Jinineka’s version and the bail affidavit.1

[15] I deal first with the first appellant’s contentions concerning the bail affidavit.
Before us, it was contended on his behalf that the trial court and the court below
erred in relying on the contents of the affidavit - which was tendered into evidence
by his legal representative as an admission in terms of sec 220 of the Criminal
Procedure Act 51 of 1977 (the Act) - in deciding the appellants’ guilt. The
admission of the affidavit constituted a misdirection, so the argument went,
because the first appellant had not been warned either by his counsel or the
magistrate that the affidavit might be used at the subsequent trial in accordance
with sec 60(11B)(c) of the Act.2

[16] In the bail affidavit, the first appellant set out the facts leading to the
deceased’s death and the role played by the second appellant (who was accused no.
3 in the trial) in the assault, saying, inter alia:
‘Accused No. 3…assaulted [the deceased] both at the flat and near the parking area
downstairs, by punching him and kicking him repeatedly. During that evening I
only punched the deceased twice in the area of his chest…accused No. 3 kicked the
deceased on the head…I noticed the deceased perspiring heavily…Accused No. 3
rushed at the deceased and started kicking him in a most violent manner on the

1 S v Balkwell 2006 (1) SACR 60 (N) at para 43.
2 Section 60(11B)(c) provides:
‘The record of the bail proceedings, excluding the information in paragraph (a), shall form part of the record of the
trial of the accused following upon such bail proceedings: Provided that if the accused elects to testify during the
course of the bail proceedings the court must inform him or her of the fact that anything he or she says, may be used
against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings.’

head. The deceased then fell backward and made a strange sound. I feared that the
deceased was either very severely injured or he had died.’
Referring to these allegations in his statement in terms of sec 220 of the Act, the
first appellant said that ‘[w]hile the events…are not as such in dispute, the order of
the events and the actual events are in need of some clarification and explanation
which I shall do during the trial’. As indicated, he disavowed these allegations in
evidence albeit stating in his cross-examination that only the chronology of the
events was in dispute.

[17] The voluntary tender of this affidavit into evidence is most perplexing in
view of the disavowal of its contents by its maker. The first appellant’s counsel
was unable to satisfactorily explain this step on his part which, in my view, was
wholly unnecessary and rather imprudent in the circumstances. Once the affidavit
was introduced in terms of sec 220 of the Act, the State was relieved of proving the
allegations so admitted by the first appellant and it thus constituted sufficient proof
against him of those facts subject, of course, to the clarification referred to by him
in his plea explanation. The affidavit was thus properly admitted into evidence
against the first appellant. Section 60(11B)(c) has no application where the
affidavit is tendered, not by the State, but by the accused.

[18] Nevertheless, in view of the first appellant’s stance relating to the affidavit’s
contents at the trial regarding his co-appellant and the State’s failure to have it
admitted  against  the second  appellant  in  terms  of s 3(1) of the Law of Evidence
Amendment Act of 45 of 19883 (the 1988 Act) to bring it within one of the
recognised exceptions, it remained hearsay, and is not evidence against the second

3 Section 3 of the 1988 Act provides:

appellant. It must thus be wholly left out of account in evaluating his guilt.4 The
court below erred in taking it into account against him by finding that it
corroborated Jinineka’s version.

[19] The appellants further challenged their convictions as follows. It was argued,
first, that the magistrate misdirected herself in convicting them on the evidence of
an unreliable, single witness, Jinineka, in the absence of any corroboration
(particularly medical evidence supporting the assault he described and establishing
the cause of death) and second, that the appellants could not have foreseen the
possibility of death from what they described as a trivial assault.

[20] In addition to finding that the bail affidavit provided corroboration for
Jinineka’s evidence (and the disavowed affidavit), the court below said that ‘[t]he
opinion of both Dr Aiyer and Dr Perumal that a head injury was the likely cause of
the death and, further, that the maggot infestation was concentrated in the area of

‘(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.
…
(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.’
4 See Vulcan Rubber Works (Pty) Ltd v South African Railways and Harbours 1958 (3) SA 285 (A) at 296F; S v
Ralulukwe 2006 (2) SACR 394 (SCA) at 400a.

the head because of possible open wounds on the head is consistent …with the
evidence of Jinineka’. This finding is not supported by the evidence. According to
Prof. Botha, maggots are ordinarily attracted to moist areas such as the nostrils, the
eyes and the mouth and develop eggs in those areas within a few hours of death.
As he put it, the brain is ‘their food store’ so it is not unusual that they were
concentrated in the deceased’s head, especially in the presence of the bleeding
wounds on his face. Dr Perumal himself conceded that the bleeding lip would
attract the flies and account for the concentrated infestation in that area.
Accordingly, the court below misdirected itself in this regard.

[21] Be that as it may, the court below was, in my view, correct in upholding the
magistrate’s rejection of the appellants’ version. They were both appalling
witnesses and their entire account of the events was riddled with contradictions.
The second appellant went so far as to dispute versions put to witnesses by his own
attorney.

[22] It is apparent from the magistrate’s judgment that she was alive to fact that
Jinineka was a single witness and would thus have approached his evidence with
the necessary caution. It is so that contradictions arose in his evidence on the fine
detail of the events, but he, clearly was not a dishonest witness, as Ms Hemraj, the
second appellant’s counsel, properly acknowledged. Importantly, he was not
swayed on the essence of his account of the assault – that the deceased was
punched and kicked by both appellants. This much he would have been able to
distinguish even with lighting poorer than that available on the night in question
and regardless of the position of the parties in relation to the vehicle. As the
inspection in loco established, he would, at the very least, have been able to
perceive the vehicle and distinguish between the two appellants and their motions

in relation to the deceased. It is further well to bear in mind that no contrary
version was put to him on the first appellants’ behalf in this regard.

[23] Most crucial in this enquiry is the fact that when the group left the flat the
deceased was, save for a split lip and bruised eye, in good health and walked to the
car unaided. This begs the question what could have happened to suddenly render
him unconscious and lead to his death shortly afterwards. The answer to this
question, in my view, emerges from the evidence of Jinineka corroborated by the
further injuries which must have been inflicted on the deceased at the parking lot
(as counsel properly conceded in argument) and which were found at the post
mortem, namely the fractured nose, bruising to the left upper and lower arm and
bruising to the right side of the chest.

[24] It is beyond question on the evidence that the assault was the sine qua non of
the death. As the magistrate correctly pointed out, this finding is, above everything
else, supported by no less than the concession made by the defence’s own
pathologist. There is no reason why it should not also be treated as the legal cause
of death. I am, thus, unpersuaded that the magistrate erred in this regard.

[25] It remains to consider whether the appellants ought reasonably to have
foreseen the possibility of death resulting from their conduct. In addition to the
deceased’ sudden collapse at the parking lot, a number of factors, when viewed
cumulatively, overwhelmingly support the inference that the assault was anything
but trivial (and unplanned) - Mather’s testimony that a visibly angry first appellant
had repeatedly threatened to teach the deceased a lesson and ‘fuck him up’ such
that he feared for the deceased’s welfare but had no means of contacting him; the
first appellant’s conduct of entering false information in the complex’s access

control register (clearly to avoid identification); Ashmore’s version that the second
appellant told the deceased that the first appellant and Lindse had paid him good
money to beat him up; Ashmore’s evidence about the deceased’s cries of pain,
viewed with Lindse’ emotional report to Kirsty; Jinineka’s evidence of an assault
of punches and kicks perpetrated by two men, bearing in mind the second
appellant’s ‘imposing build’ as he was described by his co-appellant and the fact
that he was shod in shoes; the fact that the first appellant was obliged to fetch
water which points to a condition more serious than the sweating he suggested.

[26] I am of the firm view, in all the circumstances, that the appellants ought
reasonably to have foreseen that the deceased could die from the assault. The
finding on their guilt cannot, therefore, be disturbed.

[27] Regarding sentence, no specific misdirection was relied on. It was contended
on behalf of both appellants that the sentences imposed by the magistrate are too
harsh in view of the ‘fairly minor assault’ inflicted on the deceased as evidenced
by the injuries observed on his body. As I have said, the evidence shows that the
assault was not trivial. Sentences of correctional supervision or other non-custodial
options were suggested in respect of both appellants. I do not agree with these
suggestions. There are undoubtedly mitigating factors emanating from the
appellants’ personal circumstances which are set out in the comprehensive pre-
sentence assessment reports tendered in evidence on their behalf in mitigation of
sentence and the magistrate’s judgment on sentence. These include the facts that
the first appellant has two minor children and both appellants are first offenders
who pose no danger to society and are in gainful, steady employment. As the
magistrate correctly pointed out, it is indeed so that the deceased, who had
previously stolen a large sum of money from the Balkwells and was forgiven, had

set off the chain of unfortunate events. The first appellant’s anger and panic at
losing a substantial sum of money is understandable. This, however, gave the
appellants no right to take the law into their own hands.

[28] Notwithstanding these mitigating circumstances, the offence of which the
appellants were convicted is a serious one and there are in my view, particularly
aggravating features which must be taken into account in the determination of
appropriate sentences – the premeditated and purely gratuitous assault on the
deceased who offered no resistance at all and co-operated fully, readily handing
over the business keys and arranging promptly to repay the money; the second
appellant’s ruthless suggestion to disguise the cause of death by forcing cocaine
down his throat and ‘dump’ his body; the callous disposal of the deceased’s body;
the first appellant’s unyielding refusal to reveal the deceased’s whereabouts to the
latter’s mother despite her repeated entreaties and their brazen lack of candour in
court. Having regard to the totality of the circumstances, sentences of correctional
supervision or any other non-custodial alternatives would be grossly lenient. In my
view, although the sentences imposed by the magistrate are rather robust, it cannot
be said that they are so inappropriate as to justify interference by a higher court.

[29] In the result, the appeals are dismissed.

_______________________
M.M.L. MAYA
JUDGE OF APPEAL

CONCUR: CLOETE JA

PONNAN  JA:

[30] I have had the benefit of reading the judgment of Maya JA and feel
constrained to comment on an aspect alluded to in her judgment. My learned Sister
would have the prosecution invoke s 3 of the Law of Evidence Amendment Act 45
of 1988 in a matter such as this. Although offered as no more than a theoretical
possibility, it nonetheless evokes strong feelings of disquiet in me sufficient to
warrant my expressing myself, albeit briefly, on the issue.

[31] At common law an extra-curial statement of one accused was inadmissible
against a co-accused. (See S v Baartman 1960 (3) SA 535 (A).) This rule applied to
both admissions and confessions and was given statutory force in respect of the
latter by s 219 of the Criminal Procedure Act. The reason for this rule was not
solely the hearsay nature of such an extra-curial statement, although that in itself
would constitute sound reason. It has always been stated that an admission made
by one person is normally irrelevant when tendered for use against another.
Against the backdrop of the Constitution it perhaps can now be argued that the
receipt of such evidence may well have fair trial implications as well.

[32] My anxiety stems from the seeming absence, in certain instances, of any
legal armoury at the disposal of a person who is implicated by an extra-curial
statement of which he is not the maker, to counteract the threat posed by it during
the course of a subsequent criminal trial. If having made an extra-curial statement
that implicates Y, the maker of the statement (X) disputes its admissibility, an
admissibility trial would ensue to determine whether or not the contested statement
is indeed admissible. To discharge the onus resting upon it, namely to prove the
statement admissible against its maker X, the prosecution would have to meet the

fairly stringent requirements set respectively by sections 217 and 219A of the
Criminal Procedure Act. During the course of the admissibility trial, Y would
ordinarily be but a passive bystander. If the statement is ruled admissible but its
contents disavowed by X when he testifies, how - it must be asked - does Y even
begin to cross-examine X. In those circumstances it may well prove tactically
foolhardy for Y to put any questions to X, much less to test by cross-examination
the veracity of the statement. The only reason, it seems to me, for having fewer
safeguards available to a person who is not the maker of a statement but who for
some reason finds himself implicated by its contents, is because it has historically
been accepted that such a person is free of any risk from such a statement. Where,
however, a statement might ultimately weigh equally in evidence against the maker
who has implicated himself in it, and against another also implicated by it, to grant
greater protection to the former than to the latter, would be irrational and
indefensible. And yet, that would be the effect of invoking s 3 in this way.

[33] If however, X had confirmed the contents of his statement during his
evidence, or not having made an extra-curial statement, had implicated Y during
his viva voce testimony, then not only could his version be legitimately tested
under cross-examination by Y, but the cautionary rules relating to the receipt of
such evidence would be invoked by the trier of fact (see S v Hlapezula 1965 (4) SA
439 (A) at 440 D-H). One would have thought that the cautionary rules relating to
the reception of viva voce evidence of accomplices should apply even more
stringently to their extra-curial statements. But, no such caution applies to an extra-
curial statement that implicates a co-accused even though the inherent dangers of
fabrication, or substitution, downplaying and exaggerating of roles, are no less real.
That, in those circumstances, an extra-curial statement which has to pass a lower

threshold of scrutiny than viva voce evidence from the same source could be as
damning as the latter is, to my mind, incomprehensible.

[34] The approach postulated by my learned Sister is not without precedent. It
has its roots in the judgment of this Court in S v Ndhlovu 2002 (6) SA 305 (SCA).
In my view, Ndhlovu too readily dismissed concerns expressed in S v Ramavhale
1996 (1) SACR 639 (A), which cautioned (at 649c-d) that a court should hesitate
long in admitting hearsay evidence that plays a decisive or even a significant part
in convicting an accused person. Ndhlovu makes no attempt to reconcile the
incongruity between the bar created by s 219 of the Criminal Procedure Act and its
application of s 3 of the Law of Evidence Amendment Act. Moreover, in dealing
with the constituent parts of s 3, Ndhlovu offers no guidance as to how the receipt
of the extra-curial admissions which it allows under that section, should be
approached given the rationale at common law for their exclusion or what role, if
any, the various common law safeguards should play. In effect it is as if a pen has
been struck through those well recognised common law safeguards and they have
been summarily jettisoned.

[35] What is envisaged it seems in the case of an accused implicated by the extra-
curial statement of another, is that he should go into legal battle without the sword
of cross-examination or the shield of the cautionary rules of evidence. That can
hardly conduce to a fair trial, as in my view, it impacts in a direct and substantial
way on the fairness of the process. Moreover, how is an accused person to regulate
his conduct and to make informed choices about the conduct of his defence? For,
surely now his decision to apply for a discharge at the close of the prosecution’s
case or to close his case without testifying or to enter the witness box in his
defence or to call other evidence in his defence may well have to be informed not

just by the evidence implicating him in the commission of the offence charged and
the strength or weakness of the prosecution’s case but also by what is contained in
an extra-curial statement that has in any event been disavowed by its maker in
evidence.

[36] It may well be a fundamental aspect of a fair trial and the adversarial nature
of the proceedings proclaimed by a criminal trial, that s 3 be interpreted to prevent
the extra-curial statement of one accused from being admissible against his co-
accused. That fortunately for me does not arise for decision in this matter. I
accordingly content myself with the note of caution that I have sounded. For the
rest I am in agreement with my learned Sister.

__________________
V M PONNAN
JUDGE OF APPEAL

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
Wednesday 20 June 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal

Balkwell and ano  v The State [2007] SCA 91 (RSA)

In a judgment delivered today, the Supreme Court of Appeal has
dismissed the appeal of two men who were convicted in the
Regional Court, Durban of culpable homicide and sentenced to
seven years’ imprisonment.

Much of the evidence was common cause and the point of dispute
related to the nature and extent of the assault the two appellants
inflicted on Mr Michael Burke (the deceased). On 1 November
1999 the deceased misappropriated a sum of R17 000 and
business keys from the first appellant’s photo-lab at which he was
employed a sales representative. The first appellant conducted a
search for the deceased and on 2 November, on learning that he
was hiding at a friend’s flat, enlisted the assistance of the second
appellant, who was a bouncer at a local night club, to recover the
stolen items from the deceased. When confronted, the deceased
readily handed over the keys and promptly made arrangements
with his brother in law to repay the money. The appellants
nevertheless assaulted the deceased both at the flat and at the

parking lot as they were making their way to meet his brother in
law. The deceased died shortly thereafter. The first appellant
subsequently threw his body down a gorge. The body was found
about a week later. As a result of its advanced state of
decomposition, the post mortem which established certain injuries,
including a broken nose, could not establish the cause of death
conclusively. It was, however, common cause that but for the
assault, the deceased would not have died.

In dismissing the appeal, the SCA found that it was beyond
question on the evidence that the assault, which was planned and
of a serious nature, was the sine qua non of the death and further
that the appellants ought reasonably to have foreseen that the
deceased could die from the assault. The SCA concluded that the
sentences of seven years’ imprisonment, although robust, were
not so inappropriate as to warrant interference by a court of appeal
having regard to the particularly aggravating features such as the
premeditated and gratuitous nature of the assault, the callous
disposal of the deceased’s body, the first appellant’s unyielding
refusal to reveal the deceased’s whereabouts despite repeated
entreaties from the deceased’s mother and their lack of candour in
court.