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[2007] ZASCA 58
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S v Mamushe (53/04) [2007] ZASCA 58; [2007] SCA 58 (RSA); [2007] 4 All SA 972 (SCA) (18 May 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number : 53/04
In the
matter between :
TSINYANE
SOLOMON MAMUSHE
...............................
APPELLANT
and
THE STATE
...............................
RESPONDENT
CORAM : BRAND, VAN HEERDEN JJA
et
THERON AJA
HEARD : 8 MAY 2007
DELIVERED : 18 MAY 2007
Summary
: Extra-curial
statements by state witness – not admissible in evidence
against accused person under s 3(1)(b) of Act 45
of 1988 unless
confirmed by maker in court – admission of statements 'in the
interest of justice' in terms of s 3(1)(c)
of the Act considered
but refused – reliability of identification by single remaining
witness considered.
Neutral citation: This judgment may be referred to as
Mamushe v The State
[2007]
SCA 58 (RSA)
JUDGMENT
_____________________________________________________
BRAND JA
/
BRAND JA
:
[1] The appellant stood trial in the Vereeniging Circuit
Court, before Whiting AJ and two assessors, on charges of murder,
robbery,
unlawful possession of a firearm and unlawful possession of
ammunition. All four charges arose from an incident that occurred on
31 January 1997 in Evaton near Vanderbijlpark when Mr Kapok Joseph
Mhala ('the deceased') was shot and killed in the course of an
armed
robbery. Despite his plea of not guilty, the appellant was convicted
on all four charges and then sentenced as follows: on
the count of
murder, to life imprisonment; on the count of robbery, to 15 years
imprisonment; and on the counts of unlawful possession
of a firearm
and ammunition – taken together for purposes of sentence –
to 3 years imprisonment. His appeal against these
convictions and
sentences is with the leave of the court
a
quo.
[2] It was not in dispute that the deceased was fatally
shot or that he was robbed of virtually all the money in his
possession at
the time, though the exact amount could not be
established. The circumstances under which it happened were also
largely common cause.
The issue was whether the evildoer was the
appellant, as alleged by the state. In essence the state's case
relied on the eyewitness
testimony of Mr Kgoto Albert Ramakgula as
corroborated by the extra-curial statements of Ms Bessie Martin from
which she disassociated
herself at the trial.
[3] Ramakgula was the deceased's assistant in a truck
that delivered milk on behalf of Clover Dairies to tuck shops in the
Evaton
area. The deceased was the driver, who also took control of
the money received from customers, while Ramakgula was responsible
for
the physical deliveries. On 31 January 1997 they started their
rounds at about 4 am. They made various deliveries and on each
occasion
Ramakgula handed over the money he collected to the
deceased. Eventually they arrived at the tuck shop of Ms Martin where
the fatal
incident occurred. This was about 10:30 in the morning.
They entered her premises through a gate and stopped near the tuck
shop about
20 meters further on.
[4] According to Ramakgula he made his delivery of milk
in the shop to one of Ms Martin's children from whom he received an
amount
of R60. On his way back to the truck, he saw two men
approaching from the direction of the gate, directly behind the
vehicle. There
were no other persons in the vicinity. Ramakgula got
into the truck and was about to hand over the money he had just
received to
the deceased, who had by that time already started the
vehicle and engaged the reverse gear. The two men Ramakgula had seen
approaching
earlier then appeared one on each side of the vehicle.
The one on the driver's side had a handgun in his hand. Through the
open driver's
window he fired a shot into the right side of the
deceased's chest. A second shot was fired, but at that stage
Ramakgula was already
jumping out of the vehicle. As the vehicle was
moving at the time when Ramakgula jumped out, he was almost run over.
The vehicle
continued to move backwards until it crashed into a stone
border near the gate to the premises.
[5] The person who had fired went to the vehicle. He
pushed the driver aside and searched him. While this was happening
the other
person did nothing. He just stood in front of the vehicle.
After that the man with the firearm walked away from the scene and
the
other one followed him until they both disappeared around a
corner. Ramakgula drove the vehicle to the police station where he
made
a statement. The deceased appeared to be already dead. They
searched him but found no money on him except for R20 in his back
pocket.
Although Ramakgula did not know the exact amount he handed to
the deceased, he could say that it was substantially more than R20.
[6] Ramakgula identified the man with the firearm as the
appellant. Though he did not know his name, he said, he had seen him
about
four or five times over a period of about four weeks
immediately prior to the incident at various tuck shops in the
vicinity. The
other man, who was with the accused, he had not seen
before. He also testified that, after he had been to the police
station, he
returned to the scene. There he heard Ms Martin giving
the name of the assailant to the police. He was unable, however, to
remember
what that name was. During cross-examination it was put to
Ramakgula that the appellant would admit that he was in the vicinity
when
the deceased was shot, but would contend that it was one
Armstrong Songela and not he who was the assailant. Ramakgula
nevertheless
persisted in his version that it was the appellant who
had shot the deceased.
[7] The other pillar of support for the state's case
consisted of three extra-curial statements allegedly made by Ms
Martin to the
investigating officer, Detective Sergeant Khahliso
Moolman, between May and October 1997. According to the first
statement, she was
in her garden near the tuck shop on 31 January
1997 when she heard two shots. Immediately thereafter, she said, a
man ran past her
with a firearm in his hand. She identified the man
as the appellant who was well-known to her. She called out asking
what he was
doing, but he did not answer. He just kept on running. In
the second and third statements she again confirmed that the man she
saw
with the handgun was the appellant, but added that she would not
be willing to identify him at an identification parade or to testify
against him in court, because she feared for her own safety as well
as for the safety of her business.
[8] At the trial Ms Martin was called as a witness by
the state. She confirmed that she was the owner of the premises where
the deceased
had been shot and that she heard two shots being fired
that day. She denied, however, that she saw the appellant, or for
that matter,
any other person with a gun. In fact, she testified, she
never even saw the appellant that day. She also denied that she
conveyed
the contents of any of the three statements to Sergeant
Moolman. She admitted that she signed these statements but, she said,
she
did so because Sergeant Moolman intimidated her and threatened to
arrest her if she refused to sign. What in fact happened after
she
heard the shots, she testified, was that she went into her house and
prayed. After that, she saw the deceased's truck where it
had crashed
into the stone border and many people gathering around it. When the
people had left she went to the vehicle where she
found the deceased
who was already dead.
[9] The state sought leave to hand in Ms Martin's three
prior statements under s 190(2) of the Criminal Procedure Act, 51 of
1997
in order to have her declared a hostile witness. The trial court
decided, however, that since Ms Martin contended that the statements
were made under duress, a trial-within-a-trial should first be held
to establish whether they were freely and voluntarily made.
[10] During the trial-within-a-trial Sergeant Moolman
was called to testify. Ms Martin also gave further evidence. She
persisted in
her allegations of duress which were denied by Sergeant
Moolman. At the end of these interlocutory proceedings, the trial
court held
that the statements had been freely and voluntarily made
and that they correctly reflected what Ms Martin had told Sergeant
Moolman
at the relevant times. Thereupon the contents of these
statements were admitted against the appellant.
[11] On appeal, the court
a quo
was criticised, on behalf of the appellant,
for insisting on a trial-within-a-trial procedure in order to
determine whether extra-curial
statements by a state witness were
freely and voluntarily made. Though there appears to be some
justification for the criticism,
nothing turns on it in my view and I
thus refrain from further comment on the procedure adopted by the
trial court in this regard.
[12] The appellant testified in his own defence. The
contents of his evidence was essentially as foreshadowed in what had
been put
to Ramakgula. Though he admitted that he was in the vicinity
of Ms Martin's tuck shop when the incident occurred, the shots were
fired, on his version, by Armstrong Songela, who had died of
unnatural causes between the date of the incident and the trial. He
was cross-examined on a so-called warning statement he made to
Sergeant Moolman at the time of his arrest in May 1997. According
to
the statement his version was that he was not at the scene of the
incident and that he had only heard of the attack on the deceased
three days later. The appellant denied, however, that he had ever
made this statement. Apart from finding the appellant an unreliable
witness, the court
a quo
concluded
that the state's case was in fact strengthened by his false version
of how the killing occurred. If Songela was indeed involved,
so the
court reasoned, the appellant would have made a statement implicating
him the first time he was confronted by the police,
which he did not
do.
[13] It is plain, in my view, that the statements by Ms
Martin were of vital importance to the state's case. If these
statements were
rightly admitted, it seems almost inevitable that the
conviction must be upheld. The first pivotal question is thus –
were
the contents of the statements rightly admitted as evidence
against the appellant? The position with regard to an inconsistent
statement
is normally that it is admissible only to discredit its
maker and not to prove the truth of its contents (see eg
Hoskisson
v R
1906 TS 502
at 504;
R
v Deale
1929 TPD 259
at 260; Johann Kriegler
& Albert Kruger
Hiemstra,
Suid-Afrikaanse Strafproses
6
ed (2002) at 484). The reason is that, even where the statement is
admitted to discredit its maker, its contents remain hearsay
evidence. The court
a quo
appreciated
this, but nevertheless found the contents of the statement admissible
under the exception provided for by s 3(1)(b)
of the Law of
Evidence Amendment Act 45 of 1988 ('the Act'). Section 3(1) of the
Act confirms the common law rule that hearsay is
generally not
admissible in evidence. It then creates certain categories of
exception. One of these is in s 3(1)(b) which lifts
the ban if
'the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings'.
On the
basis of this section the court
a quo
held that:
'Although the statements are hearsay they
are admissible in terms of s 3(1)(b) . . . in view of the fact that
Ms Martin herself testified
at the proceedings.'
[14] From this statement it is apparent that, relying on
a literal interpretation of s 3(1)(b), the court
a
quo
came to the conclusion that an
extra-curial hearsay statement becomes admissible as long as the
maker testifies at the hearing and
that it matters not whether the
maker then confirms or disavows the statement in evidence. This
conclusion is, however, in direct
conflict with the later decision of
this court in
S v Ndhlovu
2002
(2) SACR 325
(SCA), which held that s 3(1)(b) only renders and
extra-curial statement admissible if it is
confirmed
by the maker in evidence during the court proceedings.
The reason for this decision appears,
inter
alia
, from the following explanation by
Cameron JA (para 30 at 342e-g):
'If the witness, when called, disavows
the statement, or fails to recall making it, or is unable to affirm
some detailed aspect of
it . . ., the situation under the Act is not
in substance materially different from when the declarant does not
testify at all. The
principal reason for not allowing hearsay
evidence is that it may be untrustworthy since it cannot be subjected
to cross-examination.
When the hearsay declarant is called as a
witness, but does not confirm the statement, or repudiates it, the
test of cross-examination
is similarly absent, and similar safeguards
are required.'
[15] The court
a quo
thus
erred in admitting the statements in under s 3(1)(b). It follows
that the only possible basis upon which their contents
could be
admitted against the appellant would be by virtue of the provisions
of s 3(1)(c). Under this section hearsay becomes
admissible if
the court, having regard to the considerations listed in this
sub-section, forms the opinion that it should be admitted
'in the
interest of justice'. Because of the view the court
a
quo
held with regard to the meaning of
s 3(1)(b), it never considered exercising its discretion under
s 3(1)(c). On appeal this
court has, however, been asked by the
state to admit Ms Martin's statements in terms of the last-mentioned
sub-section.
[16] I turn to the question whether we should accede to
the state's request. What has by now become axiomatic, is that our
courts
apply considerable restraint in allowing (or relying on)
hearsay evidence against an accused person in criminal proceedings.
The
reasons for this restraint have become equally well settled. They
flow mainly from the nature of the onus that rests on the state
and
from the rights of an accused person underwritten by the Constitution
(see eg
S v Ramavhale
1996
(1) SACR 639
(A) at 647i-648b;
S v Ndhlovu
(supra)
para 16
at
337a-c). An important consideration in deciding whether the court
should overcome its general reluctance to admit the hearsay evidence
under consideration in a particular case, relates to the role that
the evidence will play. It stands to reason that a hearsay statement
which will only serve to complete a 'mosaic pattern' will be more
readily admitted than one which is destined to become a vital part
of
the state's case (see eg
S v Ramavhale
(supra)
at
649d-e). To my
mind it is clear that Ms Martin's statements will fall into the
latter category.
[17] Another consideration is the reliability of the
hearsay evidence. The court
a quo's
reasoning in this regard appears from the following
statement by Whiting AJ:
'The effect is thus that the court has
before it two conflicting versions given by Ms Martin of what she saw
on the occasion of the
shooting. Often the fact that a witness has
given two conflicting versions of an event will lead a court to
conclude that neither
version is reliable. But this will not always
be so. Much depends on the facts and circumstances of the particular
case.
At present it is a well known fact of
life in South Africa that witnesses, . . . are often very reluctant
to give evidence for fear
of reprisals against them if they should do
so. That Ms Martin was indeed affected in this way in the present
case is borne out by
what she said in her second and third statements
to Sergeant Moolman. We can think of no reason why Ms Martin would
falsely implicate
the accused. In view of the considerations I have
mentioned, it would appear to be very much against her private
interest to do so.
It seems very much more likely, particularly in
view of her second and third police statements, that she was too
frightened to tell
the truth when she gave evidence before us.'
[18] I am prepared to accept, without deciding, that,
despite her denials, Ms Martin probably did make the statements to
Sergeant
Moolman and that she was probably telling the truth when she
did so. Untruthfulness, however, is not the only danger. The other
danger
is that she might have been mistaken. Particularly with
reference to identification evidence, the danger of mistake has been
underscored
by our courts again and again (see eg
S
v Mthetwa
1972 (3) SA 766
(A) at 768;
S
v Charzen
2006 (2) SACR 143
(SCA) para 11 at
147i-j). By its very nature, hearsay evidence cannot be tested in
cross-examination. The possibility of mistake
can therefore not be
excluded in this way. The result is, in my view, that hearsay
evidence of identification can only be admitted
if the possibility of
mistake can be safely excluded in some other way, eg with reference
to objectively established facts.
[19] In this matter there is no way to test the accuracy
of the observations Ms Martin deposed to in her statements. On the
contrary,
according to her testimony in court it would, as a result
of physical obstructions impeding her view, be virtually impossible
for
her to make those observations from her garden where she stood.
It is true, of course, that at that stage she was trying her utmost
to distance herself from the contents of the statements. Nonetheless,
her evidence about the physical obstructions remained uncontested.
In
the circumstances the identification evidence deposed to by Ms Martin
in her statements appears to be of the most unreliable kind.
For
these reasons we should not, in my view, accede to the state's
request to admit these hearsay statements under the provisions
of
s 3(1)((c) of the Act.
[20] The next question is whether the evidence of
Ramakgula, on its own, is sufficient to justify the appellant's
conviction. The
court
a quo
found
Ramakgula an honest witness. I have no reason to doubt the
correctness of that finding. However, the danger that again looms
large, is the possibility of mistaken identification. The court
a
quo
found reassurance in the fact that the
witness had sufficient opportunity to make his observations in that
he was looking directly
at the assailant when he fired the shot. This
reassuring factor is, however, diluted to a material extent by the
contents of two
statements which Ramakgula made to the police.
According to these statements he told the police that both the
assailant and his companion
were armed with firearms and that the
companion was pointing a firearm at him when the killer shot the
deceased. Although Ramakgula
distanced himself from these statements
in evidence, it is difficult to conceive why the police would
fabricate this version. It
almost goes without saying that if this
version is to be accepted, Ramakgula's opportunity of observing the
killer would be materially
reduced.
[21] The court
a quo
also
found reassurance in the fact that Ramakgula had seen the appellant
on about four occasions prior to the incident. The problem
is,
however, that on Ramakgula's own version he had heard the assailant
being identified by Ms Martin shortly after the incident.
Although he
could not remember the name that Ms Martin mentioned, it appears from
the context that she most probably mentioned the
name of the
appellant. Apart from the inherent danger of suggestion, any mistaken
identification by Ms Martin would thus have poisoned
the evidence of
Ramakgula as well. Additional support for the notion that Ramakgula's
identification of the appellant may be the
result of suggestion,
seems to derive from his own evidence that Moolman provided him with
some description of the appellant long
before he testified in court.
Confidence in Ramakgula as a witness is further diminished by the
fact that, in a statement to Moolman,
Ramakgula referred to the
assailant and his companion as 'two black men unknown to me'. In
cross-examination Ramakgula ascribed this
to a misunderstanding
between him and Moolman. But according to Moolman's testimony,
Ramakgula was indeed unable to give a description
of the assailant
'because of the fear he was under'. As to how Ramakgula was then able
to identify and describe the appellant at
a later stage, Moolman
volunteered the following solution:
'
[M]aybe that which he said in court
is based on what he gathered from Evaton . . . on that which Ms
Bessie [Martin] told him
.'
[22] In the light of all these difficulties, it is in my
view self-evident that the appellant cannot be convicted solely on
the basis
of Ramakgula's testimony. Lastly there is the appellant's
mendacity as a witness. Though false denials by an accused person
will
often strengthen the state's case, it cannot serve as the sole
basis for conviction. It too often happens that innocent persons
cannot
resist the temptation of putting as great a distance as
possible between themselves and criminal offences, even by deceitful
means.
[23] For these reasons:
The appeal is upheld and the convictions and sentences
are set aside.
.......................
F D J BRAND
JUDGE OF
APPEAL
Concur
:
VAN HEERDEN JA
THERON AJA