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[2012] ZASCA 51
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Rathumbu v S (369/11) [2012] ZASCA 51; 2012 (2) SACR 219 (SCA) (30 March 2012)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no: 369/11
Reportable
In
the matter between:
NTHABELENI
DANIEL RATHUMBU
….....................................................
Appellant
and
THE
STATE
…........................................................................................
Respondent
Neutral
citation:
Rathumbu v S
(369/11)
[2012] ZASCA 51
(30 March
2012)
Coram:
MTHIYANE DP, CLOETE, MHLANTLA, LEACH JJA and NDITA AJA
Heard:
15 February 2012
Delivered:
30 March 2012
Summary:
Murder charge –
admissibility and probative value of a statement made by a witness to
the police and later disavowed in evidence
–
s 3(1)
of the
Law
of Evidence Amendment Act 45 of 1988
- trial court correctly relied
on the disavowed statement.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Limpopo High
Court, Thohoyandou (Hetisani J sitting as a court of first instance):
The appeal against conviction is
dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
NDITA AJA (MTHIYANE DP, CLOETE,
MHLANTLA, and LEACH JJA concurring)
[1] The appellant was convicted of
murdering his wife in their homestead at Rhavele village in the
district of Tshilwavhusiki by
the Limpopo High Court sitting in
Thohoyandou (Hetisani J) and sentenced to ten years’
imprisonment. With the leave of this
court, he now appeals against
the conviction.
[2] The conviction was based primarily
on a written sworn statement made by the appellant’s sister Ms
Johanna Rathumbu to
a policeman that implicated the appellant in the
murder of the deceased. Central to this appeal is an enquiry into
whether the
statement, the contents of which were disavowed by her
when she testified, should have been admitted in evidence.
[3] It is necessary to set out the
facts in some detail. Shortly before midnight on 15 June 2008
Constable David Mulaudzi was on
duty at the Tshilwavhusiku police
station when Ms Rathumbu arrived, running. She reported that she
found the appellant stabbing
the deceased with a knife at their home.
Acting on this information, Mulaudzi, Tshikudu as well as Ms
Rathumbu, drove to the appellant’s
home where Mulaudzi found
the body of the deceased lying on the other side of an internal door.
She had sustained multiple stab
wounds and was lying motionless in a
pool of wet blood. The witness summoned paramedics who certified the
deceased dead at the
scene. Prior to the arrival of the paramedics,
the appellant also arrived and sought permission from Mulaudzi to
board the police
vehicle and be taken to the police station.
According to Mulaudzi, the appellant smelt of alcohol. When the
appellant made this
request, Mulaudzi enquired from Ms Rathumbu who
he was. Johanna told him that he was the person who had stabbed his
wife in the
room. This explanation was given in the presence of the
appellant.
[4] Amongst the police officers who
attended the murder scene on the night in question was Inspector
Nndwambi. He testified that
on his arrival at the appellant’s
home he asked for the owner of the house. Ms Rathumbu offered to help
and led him to the
room where the body of the deceased lay. Nndwambi
testified that he made enquiries about the murder and Johanna
disclosed to him
that the appellant, who she identified as her
brother, had stabbed the deceased, whom she identified as his wife.
Nndwambi further
testified that when he closely examined the body of
the deceased, he observed that she had sustained multiple wounds,
some of which
were covered in blood; notably two on the chest and
another on the back. According to the post mortem report, the
deceased sustained
nine external wounds.
[5] Ms Rathumbu testified that on 16
June 2008, at 21h00, she received a telephone call from the deceased
requesting her to come
to her house and to bring with her the
deceased’s five year old daughter. According to her, on her
arrival at the deceased’s
home, she found her lying in a pool
of blood. The gruesome discovery alarmed her and she ran to the
police station. The police
drove with her back to the village. She
denied seeing the appellant stabbing the deceased with a knife. As
her evidence was in
stark contrast to the facts she had disclosed in
her statement to the police, the State successfully applied to have
her declared
a hostile witness in terms of
s 190(2)
of the
Criminal
Procedure Act 51 of 1977
. It is necessary to place on record the
witness’s statement in its entirety. The relevant part reads:
‘
On
2008-06-15 at about 21:00, I was at my common when I received a call
from the deceased Khathutshelo Rathumbu that I must come
to her
place. I immediately went to the deceased’s kraal. On my
arrival I find the deceased who inform me that she is leaving
her
husband and further that I must help her to carry her goods.
I
then ask the suspect one Daniel Rathumbu who is the deceased’s
husband if there is any problem. The suspect told me ask
the deceased
as she is the one who called. I was at the lapa when the deceased and
the suspect enter inside the house.
I
also enter inside and I saw the suspect pushing the deceased and
stabbing her with a sharp instrument. I then run away to the
neighbours for assistance but there was no responds. I then rushed to
the police station and report the matter.
I
come back with the police and find the deceased lying in the bedroom
and in a pool of blood. At that moment the suspect come back
and I
ask him the whereabouts of the child, he told me that she is gone.
The police then summoned the ambulance and she was certified
dead.
The police arrested the suspect.’
[6] Inspector Thifhulufheli Sirunwa
testified that he took the above statement in the early hours of the
morning, at 01h45, on 16
June 2008. Johanna made the statement
voluntarily. According to Inspector Sirunwa he interviewed Ms
Rathumbu in Tshivenda as they
were both conversant in the language
but wrote it in English. After writing it, he read it back to her and
she appended her signature.
Ms Rathumbu was extensively
cross-examined on the contents of her statement which was admitted
into evidence. She persistently
denied its contents to the extent
that it implicated the appellant in an attack upon the deceased. The
appellant did not give evidence
in rebuttal of the evidence tendered
by the State.
[7] In convicting the appellant, the
trial court made significant favourable credibility findings in
respect of witnesses for the
State and rejected Ms Rathumbu’s
evidence disavowing the statement she had made to Sirunwa. The
statement was admitted in
evidence after argument and the court a quo
relied on its contents.
[8] Counsel representing the appellant
assailed the conviction on several grounds. The main ground of appeal
was that the trial
court’s reliance on the statement made by Ms
Rathumbu to the police, which essentially is hearsay evidence,
constituted a
material misdirection. Counsel representing the State
conceded that without the statement, the appeal should succeed.
[9] The reception of hearsay evidence
is regulated by
s 3(1)
of the
Law of Evidence Amendment Act 45 of
1988
. The section provides as follows:
‘
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence in criminal 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.’
For reasons that follow I am of the
view that the statement was correctly admitted in terms of the
section.
[10]
Section 3
enjoins a court in
determining whether it is in the interests of justice to admit
hearsay evidence,
to have
regard to every factor that should be taken into account and,
more specifically, to have regard to
the factors mentioned in
s 3(1)
(c)
.
1
This
court in
S v Ndhlovu
2002 (6) SA 305
(SCA) considered the
provision of
s 3
and at paragraph 31 held that:
‘
The
probative value of the hearsay evidence depends primarily on the
credibility of the declarant at the time of the declaration,
and the
central question is whether the interests of justice require that the
prior statement be admitted notwithstanding its later
disavowal or
non-affirmation. And though the witness’s disavowal of or
inability to affirm the prior statement may bear on
question of the
statement’s reliability at the time it was made,
it
does not change the nature of the essential inquiry, which is whether
the interests of justice require its admission.’
In amplification, at paragraph 33, it
was stated that:
‘
The
“probative” value’ of the accused’s
statements to the police did not depend on their credibility at
the
time of the trial – which the Court right found totally lacking
– but on their credibility at the time of their
arrest. And the
admissibility of those statements depended not on the happenstance of
whether they chose to testify but on the
interests of justice.’
[11] In the present appeal, following
the approach set out in
Ndhlovu
, and considering the totality
of the circumstances under which the statement was made, one is
driven to the conclusion that the
court below was correct in
admitting Ms Rathumbu’s statement. Substantial corroboration
for the truthfulness of the statement
is to be found in other
evidence tendered by the State. I now deal with such corroborative
evidence.
11.1 It is common cause that Ms
Rathumbu proceeded to the appellant’s home at approximately
21h00 on 16 June 2008. According
to her evidence as well as her
statement, her visit to the deceased’s home was prompted by a
telephone call from the deceased
requesting her to bring her child to
her. In the statement, she stated that in that telephonic
conversation, the deceased told
her that she was leaving her husband
and she needed her assistance in carrying her goods. Mulaudzi
testified that he observed that
outside the house, about three paces
from the kitchen door, there was clothing packed inside a box ‘like
one is moving somewhere
else.’ This provides corroboration for
Ms Rathumbu’s assertion in her statement that the deceased told
her that she
was leaving her husband and that she needed help in
carrying her goods. Importantly, a photograph taken by the police
depicts a
pile of items outside the house, which lends further
credence and weight to the statement.
11.2 Mulaudzi testified that when he
enquired from Ms Rathumbu as to the identity of the person who wanted
to be taken to the police
station, her response was that he was the
person who had stabbed his wife in the room. This accords with what,
according Mulaudzi,
she had said at the police station earlier. This
spontaneous response by Ms Rathumbu at the scene whilst the
deceased’s body
was still lying in the house affirms the
reliability of the original statement in preference to her later
disavowal. Furthermore,
these words were uttered in the presence of
the appellant. The utterances did not attract any protestation from
the appellant.
Nor was the evidence challenged in cross-examination.
11.3 Ms Rathumbu confirmed in her
evidence that she had made a statement to Inspector Sirunwa. But she
said that the contents had
been read back to her in English (which
Sirunwa denied). She also averred that she knew nothing about of the
contents of the statement
that implicate the appellant. That means,
according to her, parts of the statement are a complete fabrication.
But the contents
of the statement accord with what she had told
Inspector Tshivhase in the presence of Constable Mulaudzi when she
arrived at the
police station. Shortly thereafter she repeated the
same version to Nndwambi. It is highly improbable that three
policemen, two
of whom arrived at different intervals at the murder
scene, would conjure up all the details contained in the statement on
the
same night of the murder of the deceased. Similarly, it is not
likely that Inspector Sirunwa could have concocted the information
contained in the statement before leaving the scene of the murder.
[12] Applying the principles set out
in the
Ndhlovu
case, all of the above factors clearly
demonstrate that when she made the statement Ms Rathumbu was telling
the truth. Her inconsistent
evidence at the trial can be easily
explained on the basis that she wished to protect her brother. Her
statement therefore, was
correctly admitted into evidence.
[13] Ms Rathumbu’s statement is
not the only evidence to be considered in determining the appellant’s
guilt. The conduct
of the appellant is also relevant. Mulaudzi gave
evidence to the effect that whilst the police were awaiting the
arrival of the
paramedics, the appellant appeared. After entering the
yard and without saying anything to the police officers or people at
the
scene, he climbed into what seemed to the witness to be a disused
motor vehicle. I have already said that the appellant did not
give
evidence. Neither did he deny Ms Rathumbu’s assertion at the
scene that he had stabbed the deceased. The appellant did
not enquire
as to the reason for the presence of the police in his own home or
why members of the community were present. He made
no attempt to
ascertain what the problem was and the inference is irresistible that
he already knew why all these people were there
[14] The court below considered the
State witnesses to be credible and rejected the appellant’s
defence. In the present appeal,
once Ms Rathumbu’s statement
was admitted, and in the face of all the evidence tendered by the
State, it called for an answer
from the appellant. Thus, the court a
quo correctly considered the evidence tendered by the State to be
such as to warrant a response
from the appellant.
In
S v Mapande
2
it was reiterated that if a witness
has given evidence implicating an accused,
the
latter can seldom afford to leave such testimony unanswered. The
court is unlikely to reject credible evidence which the accused
has
chosen not to deny. Thus in
S
v Chabalala
3
it was stated that:
‘
The
appellant was faced with direct and apparently credible evidence
which made him the prime mover in the offence. He was also
called on
to answer evidence of a similar nature relating to the parade. Both
attacks were those of a single witness and capable
of being
neutralised by an honest rebuttal. There can be no acceptable
explanation for him not rising to the challenge. If he was
innocent
appellant must have ascertained his own whereabouts and activities on
29 May and be able for his non-participation. .
. To have remained
silent in the face of the evidence was damning. He thereby left the
prima
facie
case
to speak for itself. One is bound to conclude that the totality of
the evidence taken in conjunction with his silence excluded
any
reasonable doubt about his guilt.’
[15] In my view, the appellant’s
culpability for the murder of the deceased was established beyond any
reasonable doubt. In
the circumstances, the appeal against conviction
must fail.
[16] In the circumstances, the
following order is made:
The appeal against conviction is
dismissed.
___________________
T NDITA
ACTING JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: L B Sigogo
Instructed by: Mathobo, Rambau &
Sigogo Attorneys,
Thohoyandou.
FOR RESPONDENT: R J Makhera
Instructed by: Director of Public
Prosecutions, Thohoyandou;
Director of Public Prosecutions,
Bloemfontein.
1
See
S v Shaik & others
[2006] ZASCA 105
;
2007
(1) SA 240
(SCA) para 170. See also
S v
Molimi
[2008] ZACC 2
;
2008 (3) SA 608
(CC).
2
[2010]
ZASCA 119.
3
2003
(1) SACR 134
(SCA) para 21 See also
S v
Boesak
2001 (1) SACR 912
(CC) para 24.