By Brig Dirk Lambrechts
Image courtesy of FreePik
Question
A reader has requested Pollex to explain whether a statement made by a deceased eyewitness will still be admissible despite such an eyewitness not being able to “defend” his or her statement during a criminal trial.
Answer
Introduction
In answering this valid question, Pollex will refer to a case before the Constitutional Court, referenced as S v Kapa, Case no: Cct292/21, Constitutional Court dated 24 January 2023 (CC).
Mr Makhi Kapa, accused 1 in the High Court in Cape Town (“the trial court”) together with six other accused persons, stood trial in the trial court for crimes seemingly forming part of vigilantism* in Khayelitsha in the Cape Peninsula.
Mr Kapa was charged with –
(1) four counts of kidnapping (Afrikaans: “menseroof” – NOT “ontvoering”);
(2) two counts of murder;
(3) two counts of assault with intent to do grievous bodily harm; and
(4) one count of attempted murder.
Mr Kapa was legally represented and tendered a plea of not guilty on all counts. He did not explain in terms of section 115 of the Criminal Procedure Act 51 of 1977 (“the CPA”), preferring to exercise his right to remain silent.
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[This is only an extract of an article published in Servamus: January 2026. This article is available for purchase.]