Dying Declaration

According toe Hiemstra’s Suid-Afrikaanse Strafproses 4th edition Article 223 regarding dying declarations (sterfbed verklaring), a person who is conscious and knows that death is imminent may give a verbal or written statement (that does not have to be under oath) concerning what he or she believes to be the cause or circumstances of death that can be introduced into evidence during a trial in certain cases.

Such a statement would normally be barred as hearsay but may nonetheless be admitted as evidence in certain kinds of cases because it constituted the last words of a dying person. Nemo moriturus preasumitur mentiri means a dying person is presumed not to lie. A dying declaration is considered credible and trustworthy evidence based upon the general belief that most people who know that they are about to die do not lie. As a result, it is an exception to the Hearsay rule, which prohibits the use of a statement made by someone other than the person who repeats it while testifying during a trial, because of its inherent untrustworthiness.

In the case of R v Nzobi 1932 WLD 98, the dying person said in a written statement “Having the fear of death upon me and no hope of recovery”, the court investigated the matter and found that the dying person still had hope of recovery, and the statement became inadmissible in court.

So, the court has to investigate the use of words and the circumstances to determine the trustworthiness of a dying declaration. The statement is not allowed to be made with information seeking questions, and a witness has to be present.

Lastly, it is not necessary to give the ipsissima verba, the exact words as in R v Baloi 1949 1 SA 491.

My suggestions is that a dying declaration be taken before the person dies, with a witness present, the statement be given in court as evidence, and then that the court has to investigate the declaration and the circumstances, so that the accused may be found guilty.