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[2011] ZAKZPHC 33
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Mathonsi v S (AR 294/10) [2011] ZAKZPHC 33; 2012 (1) SACR 335 (KZP) (26 July 2011)
REPUBLIC OF SOUTH
AFRICA
THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
APPEAL JUDGEMENT
REPORTABLE
Case No: AR 294/10
In the matter
between:
EDMUND MATHONSI
APPELLANT
And
…....................................................................................
THE STATE
…....................................................................................................
RESPONDENT
Neutral
citation:
Mathonsi
v S (AR 294/10 [2011] ZAKZP (JULY 2011)
Coram
:
MADONDO J
Heard
: 4 January 2011
Delivered
: 26 July 2011
Summary:
Evidence
─ Probative value of the previous inconsistent statement by a
hostile or unfavourable witness and the value to be
attached
thereupon─ The court is entitled to make substantive use of the
previous statement by hostile witness and to give
the statement, as
evidence, the appropriate weight provided sufficient guarantees of
reliability are present. Making the statement
under oath, solemn
affirmation or solemn declaration and the cross-examination of the
declarant by both the state and defence at
the trial respecting the
statement, constitute guarantees of reliability. The statement may
also be utilized for substantive purposes
as an exception to hearsay
rule. The basic principle─ A conspectus of all evidence is
required
.
ORDER
Appeal against conviction is
dismissed.
APPEAL JUDGMENT
MADONDO J
[1] The appellant,
Edmund Mathonsi, was in the Regional Court sitting at Richards Bay
convicted of murder and sentenced to twenty
(20) years’
imprisonment. With the leave of this Court he now appeals against
conviction only.
[2] The appellant’s
contention is that had the learned regional magistrate not taken into
account the previous inconsistent
statement made by a hostile
witness, there would have been no evidence against the appellant. It
has, accordingly, been argued
on his behalf that the state failed to
discharge the onus rested on it to prove the guilt of the appellant
beyond reasonable doubt.
[3] To the contrary,
it has been argued on behalf of the state that the statement in
question had sufficient evidential value to
such an extent that the
learned regional magistrate, when evaluating, assessing and
considering all the evidence tendered before
him in its totality, was
entitled to take it into account.
[4] The facts and
the evidence giving rise to this appeal are briefly the following: On
10 June 2007 at 00h30 Njabulo Gumede, the
deceased, and Sandile
Thamsanqa Banda (Banda) were at Madunga Bar purchasing beers. When
they exited the bar two male persons followed
them on to the road. On
the road there was a female person walking in front of them. Whilst
they were walking along the road a
voice came from behind ordering
them to stop, but the deceased responded saying that he would not
stop. Shortly thereafter, two
gunshots were fired behind them. In
consequence thereof, Banda ran behind the bar to his home. On his
arrival at home, he reported
the shooting incident to his mother.
When he indicated to his mother that he wanted to go back in order to
ascertain what had happened,
his mother objected to that saying that
it was then late at night and not safe.
[5] The female
person who had been walking ahead of the deceased and Banda, when the
two gunshots were fired was Zandile Hlatshwayo
and she testified that
after hearing the gunshots being fired behind her she became scared
to proceed with her journey. She then
returned to the bar and entered
the bar premises through the small gate. At the time when she left
the bar premises, prior to the
shooting incident, she saw the
appellant and Mandlenkosi Ephraim Nxumalo, his erstwhile co-accused,
standing on the veranda of
the bar. On her return to the bar she
found the appellant and his erstwhile co-accused still standing on
the same spot where they
had been on her departure from the premises.
On the following day at 07h00 the appellant telephoned her and told
her that a dead
body had been found lying outside the bar.
[6] Banda had not
seen who the two male persons were that followed him and the deceased
from the bar on the previous night. At 05h30
on the following day
Banda returned to the scene of the shooting in order to ascertain
what had happened. On his arrival there,
he found the body of the
deceased lying in the neighbourhood of the bar. Whilst Banda was on
the scene Mrs Sharon Milda Mdletshe,
(Mdletshe) a member of CPF –
a community policing forum, arrived and summoned the police.
[7] According to
Mdletshe at 07h15 she was on her way to open her tuck shop and when
she walked past Madunga Bar, she saw a group
of people standing on
the dirt road. She proceeded to the scene and she found the dead body
of a man lying on the dirt road. Amongst
the people who had converged
there was the appellant. On enquiring from him what had happened, the
appellant said that he had no
knowledge. At the time the appellant
was carrying a spent cartridge in his hand, wrapped in a plastic.
Whilst they were talking
(Mdletshe and the appellant) the appellant
handed the spent cartridge over to Mdletshe. She later handed it over
to the police
on their arrival on the scene. This finds corroboration
in the evidence of Constable Sabelo and of the investigating officer,
Thokozani
Clement Mkabela, who attended the scene of crime.
[8] According to the
investigating officer, Mkabela, he also picked up a 9mm spent
cartridge from the ground and received the other
one from Mdletshe
which she said she had received from the appellant. Following an
information he had received on the 16 June 2007
Mkabela took
appellant, his erstwhile co-accused and Muntu Nkosi Cele to Richards
Bay Police Station for investigation purposes.
[9] On Monday, 18
June 2007 Cele stated that he was not involved in the commission of
murder but the appellant and his erstwhile
accused gave him two 9mm
pistols for safe keeping. In fact they had requested him to conceal
the said firearms. Cele then took
Mkabela and other members of the
police service to the garden of his home where he dug out three
firearms. On arrival at his homestead,
the police and Cele found
Cele’s aunt, Beauty Cele, present at home. The police then
explained to her the purpose of their
visit to the homestead and
invited her to be present when Cele was digging up the firearms from
the garden. Three firearms were
recovered, i.e. two 9mm pistols and
7,65mm pistols, wrapped in a plastic bag in the garden. The police
confiscated the three firearms.
Mkabela then requested Constable
Ndawonde to obtain a statement from Cele, with regard to the firearms
found in his possession.
[10] The firearms
confiscated from Cele and two spent cartridges, i.e., the spent
cartridge received from the appellant and a spent
cartridge Mkabela
lifted from the scene together with two 9mm pistols were sent to
Amanzimtoti Ballistic for examination and comparison.
On examination
a link between the firearms found in possession of Cele and the spent
cartridges was established in that the cartridges
were found to have
been fired from the two 9mm pistols.
[11] On 18 June 2007
the erstwhile co-accused made a pointing out statement to
Superintendent Mthimkhulu of Richards Bay Police
Station. He took
Mthimkhulu to the spot where the deceased was shot dead. He, the
erstwhile co-accused, stated that he and the
appellant each fired a
single shot.
[12] The erstwhile
co-accused also stated that there were boys that were fighting at the
bar and one of them possessed a knife.
The appellant dispossessed him
of the knife. Later, the boy returned to the appellant and told him
that he was then leaving. The
appellant gave him the knife and he
went away. However, the boy later returned to report to the appellant
and his erstwhile co-
accused that there were people who wanted to
stab him outside. The appellant and the erstwhile co-accused went
outside to investigate.
The boys ran away in different directions.
The appellant then drew his 9mm pistol and fired a shot at the
deceased and he, the
deceased fell down. The erstwhile co-accused
also drew his 9mm pistol and fired a shot in the air. On the
following day he returned
to the scene. He was arrested on 16 June
2007. However, when he testified at the trial the erstwhile accused
denied making a pointing
out and stated that the statement was a
product of coercion. He denied any involvement in the commission of
the crime of murder.
[13] Cele, who was
employed as a general worker at the bar, testified that between 23h00
and 24h00 on 10 June 2007 he was on duty.
The appellant was in charge
of the bar on the day in question. A girl came in and reported to the
appellant that some boys were
fighting outside and that some of them
were carrying knives. The appellant went outside to investigate. On
his return, the appellant
was carrying a knife which he claimed to
have dispossessed one of the fighting boys. At 24h00 Cele and his
girlfriend left the
bar premises for his home. On the following day
he reported for duty. The appellant and his erstwhile co-accused told
him that
a dead body of a male person had been found lying in the
neighbourhood of the bar premises.
[14] On Saturday,
Cele, the appellant and the erstwhile accused were taken by the
police for investigation. On Monday, 18 June 2007,
the police took
Cele to his homestead to dig out the firearms which were buried in
the garden of his premises. He told the police
that the firearms
belonged to his deceased brother. All what Cele said in the
statement, he was told by the police to say. Seeing
that the witness
was deviating from the statement he had made to the police, the
prosecution asked the statement to be proved and
the witness to be
declared hostile. The court then declared the witness hostile and he
was then subjected to a full and effective
cross-examination on the
statement by both the prosecution and the defence.
[15] The essence of
his statement was that after half an hour the boy, whom the appellant
had dispossessed of the knife, came to
report that the boys he had
been fighting with had come back. The appellant and his erstwhile
co-accused went out to investigate
and on their return, they reported
to the witness that someone had been injured outside. They claimed to
have both shot the said
person. Both the appellant and his erstwhile
co-accused each gave the witness a 9mm pistol to hide so that the
police would not
find them in their possession. When the witness
enquired from the appellant and his erstwhile co-accused as to where
the person
was shot, they pointed in the direction of the area where
the dead body of the deceased was later found lying. The witness took
the guns to his homestead where he buried them in the garden of his
home.
[16] On Monday, 18
June 2007, during an interview by the police the witness decided to
take the police to his homestead and to give
them the firearms. Three
firearms were recovered from his garden, i.e. two 9mm pistols and a
7.65mm. However, when he testified
Cele claimed that the statement
had been made by the police and drummed it into him. He went on to
say that he made the statement
for fear of being assaulted and tubed
by the police. The witness in fact claimed that the statement was not
his but the product
of the police.
[17] Whereas
Constable Ndawonde who obtained the statement from the witness
testified that he took down the statement in English.
On completing
the statement Ndawonde read back and interpreted it to Cele who, in
turn, said that he understood and confirmed the
correctness of the
contents thereof. Whatever the witness Cele said was within his
personal knowledge. He made the statement freely
and voluntarily and
signed it. Ndawonde then commissioned the statement.
[18] The erstwhile
co-accused testified in his favour and denied any involvement in the
commission of murder. He closed his case
without calling further
evidence. However, the appellant elected not to testify in his favour
and closed his case.
[19] As part of the
evidence tendered before court the learned magistrate when evaluating
and considering the totality of the evidence
before him he took the
statement made by Cele, who had been declared hostile witness, into
account. However, it is not apparent
in his judgment as to what
weight he attached thereupon. What is more apparent from his judgment
is that in his reasoning by inference
the magistrate laid much
emphasis on the evidence of the witness, Zandile Hlatshwayo, that she
had seen the appellant and his erstwhile
co-accused on the veranda
when she left the bar premises and that even on her return to the bar
premises, after hearing the gunshots
being fired behind her, she
found them still standing on the same spot and that the firearms
found in possession of Cele were ballistically
linked to the spent
cartridges lifted from the scene of crime to conclude that the
appellant and his erstwhile co-accused were
responsible for the death
of the deceased.
[20] The question
arises is whether the previous inconsistent statement by a hostile
witness has any probative value worth consideration
during the
evaluation and assessment of all the evidence adduced before the
court
a quo
, and if the answer is in the affirmative, what
weight is to be attached thereupon.
[21] Before deciding
whether the guilt of the appellant had been proved beyond reasonable
doubt, this Court is enjoined to first
decide the question whether
the aforesaid previous inconsistent statement by a hostile witness
had any probative value and what
value, if any, had to be attached
hereupon.
[22] In the present
case the witness had been declared hostile because he had been giving
evidence adverse to the state and inconsistent
with the statement he
had made to the police. It is, therefore, not in dispute that a
foundation necessary for declaring a witness
hostile was properly
laid. See
Meyer’s Trustee v Malan
1911 TPD 559
at 56; Harvey
v Thomas (1907) 24SC 463.
It is only the probative value of the
previous inconsistent in the statement is in issue.
[23] At common law
the previous inconsistent statement is only admissible to discredit
the witness, but not as the evidence of the
facts stated therein. See
Hoskisson v Rex
1906 TS 502
at 504; R v Deale and others
1929 TPD
259
and R v Beukman 1950(4) SA 261(O).
[24] It is a
principle of Criminal Law in Canada of long standing which was
recognised in
Deacon v The King
[1947] SCR 531
that prior
inconsistent statement of a witness may only be used in assessing the
credibility of a witness and may not be used as
evidence of the truth
of the matter stated therein.
[25] In the United
States of America there is no uniformity on the admissibility of the
previous inconsistent statements. Some States
use the statement
merely to show that the witness made the statement without tendering
its contents as evidence. Whereas others
admit the contents of the
statement as an exception to the hearsay rule. See
Federal Rules
of Evidence (LII 2010ed.)
, governing the admissibility of
previous inconsistent statements.
[26] Under common
law in Australia the evidence of a previous inconsistent statement of
either an unfavourable witness or a hostile
witness could not be
admitted to prove the truth of its contents. However, with the
promulgation of the Evidence Act, No. 2 of
1995, as amended, the
common law position has changed. Now in terms of section 60 of the
said Act the statement is admitted to
prove the truth of the
statement made. Where a witness does not acknowledge the statement as
true its contents are proved by the
person who took down the
statement, the provisions of section 60 operate to make the
representations contained in the statement
to become evidence of the
truth of the facts asserted therein.
[27] In the United
Kingdom, in R v Goodway
[1993] 4 ALL ER 894
at 899, the Court held
that there is no absolute rule excluding the evidence of the hostile
witness because of its inconsistencies.
At common law the previous
statement by the hostile witness was only admissible to assess the
credibility. However, in terms of
sections 119 and 120 of the
Criminal Justice Act 2003 the previous statement by the hostile
witness is admissible as evidence of
the facts contained therein. It
does not only damage the credibility of the witness but it may also
be tendered to rebut the alleged
lie. Since the Act does not
enumerate the conditions for admissibility of a previous statement,
the common law test is still applicable.
[28] The Canadian
Supreme Court in R.V.B (K.G)
[1993] 1 S.C.R 740
on the prior
inconsistent statement held that if it could be found to be both
necessary and reliable, it could be admitted as an
exception to the
hearsay rule. The court held that a prior inconsistent statement
should be admitted for all purposes if upon
voir dire
the
trial judge is satisfied beyond reasonable doubt that the following
conditions are fulfilled: Firstly, the evidence contained
in the
prior statement is such that it would be admissible if given in
court; Secondly, the statement has been made voluntarily
by the
witness and is not the result of any undue pressure, threats or
inducements; Thirdly, the statement was made in circumstances,
which
viewed objectively would bring home to the witness the importance of
telling the truth; Fourthly, the statement is reliable
in that it has
been fully and accurately transcribed or recorded. Fifthly, that the
statement was made in the circumstances that
the witness would be
liable to criminal prosecution for giving deliberately false
statement.
[29] The following
was also held to be sufficient circumstantial guarantees of
reliability for the use of the prior inconsistent
statement for
substantive purposes: The statement was made under oath, solemn
affirmation or solemn declaration following an explicit
warning to
the witness as to the existence of severe criminal sanctions for the
making of a false statement, the statement was
videotaped in its
entirety; and the opposing party, whether the Crown or the defence,
had a full opportunity to cross-examine the
witness at the trial
respecting the statement.
[30] The facts in R
v B case, where the Crown asked the court to reconsider the common
law rule which limits the use of prior inconsistent
statements to
impeaching the credibility of the witness, were briefly as follows:
The accused and three of his friends had been
involved in a fight
with two men. In the course of the fight, one of the youths, pulled a
knife and stabbed one of the men in the
chest and killed him. The
four youths immediately fled the scene. Two weeks later, the
accused’s friends were interviewed
separately by the police and
with their consent the interviews were videotaped. In their
statements they told the police that the
accused had made statements
to them in which he acknowledged that he thought he had caused the
death of the victim by the use of
a knife. The accused was charged
with second degree murder and tried in Youth Court. At trial, the
three youths recanted their
earlier statements and, during the
Crown’s cross-examination pursuant to section 9 of the Canada
Evidence Act, they stated
that they had lied to the police in order
to exculpate themselves from possible involvement. Although the trial
judge had no doubt
that the recantations were false, the witness’s
prior inconsistent statements could not be tendered as proof that the
accused
actually made admissions.
[31] Under
traditional common law position, they could only be used to impeach
the witness’s credibility. In the absence of
other sufficient
identification evidence, the trial judge acquitted the accused and
the Court of Appeal upheld the acquittal. Prior
to the hearing in
Canadian Supreme Court, the three witnesses pleaded guilty to perjury
as a resultant of their testimony at the
trial.
[32] Although
technically the decision of the Canadian Supreme Court is not binding
upon this Court, in my view, is a decision of
the greatest persuasive
power, and one which this Court must gratefully accept as a correct
statement of the law applicable to
the present appeal.
[33] I fully
subscribe to the view expressed in R v B case, supra
,
that the
time has come for the rule limiting the use of prior inconsistent
statements to impeaching the credibility of the witness
to be
replaced by a new rule recognizing the changed means and methods of
proof in modern society. This will be in keeping with
the development
in other democratic societies.
[34] In
S v
Mafaladiso en andere 2003(1) SACR 583 (SCA) at 584,
where there
were material differences between the witness’s evidence and
prior statement, it was held that the final task
of the trial judge
was to weigh up the previous statement against
viva voce
evidence to consider all the evidence and to decide whether it was
reliable or not and whether the truth was told, despite any
shortcomings.
[35] In S v N
1979(4) SA 632(0), the state witness deviated from the sworn
statement he had made to the police. It was held that
the primary
task of the court is to find the truth in the interest of justice.
Striving for that goal, may even make it necessary
to determine
whether the statement to the police or the evidence in court reflects
the truth.
[36] In R v B case,
supra, it was held that a trial must always be a quest to discover
the truth. Irrational and unreasonable obstacles
to the admission of
evidence should not impede the quest. In order to reach a true
verdict a court must be able to consider all
the relevant admissible
evidence.
[37] For that reason
the basic principle in evaluating evidence is that evidence must be
weighed in its totality. In this regard
NAVSA JA
in
S v Trainor 2003(1) SACR 35(SCA) at41b-c
said the following:-
‘
A
conspectus of all evidence is required. Evidence that is reliable
should be weighed alongside such as may be found to be false.
Independently verifiable evidence, if any, should be weighed to see
if it supports any of the evidence tendered. In considering
whether
evidence is reliable, the quality of the evidence must of necessity
be evaluated, as must corroborative evidence, if any.
Evidence, of
course; must be evaluated against the onus on any particular issue or
in respect of the case in its entirety....’
In this case the
compartmentalised and fragmented approach of the evidence by the
learned magistrate was criticised as illogical
and wrong.
[38] Cases referred
to above show that the trial court is enjoined to evaluate and weigh
the evidence in its totality in order to
come to the truth. The trier
of facts must have regard to all evidence and to all such
considerations as reasonably invite classification.
See
S v Zitha
1993 (11) SACR 718
(A) at 720 i-721a.
[39] It has been
argued on behalf of the appellant that since the witness disavowed
his previous inconsistent statement at the trial
such statement
should have been admitted as an exception to hearsay. I have,
therefore, to decide whether the statement constituted
hearsay as
alleged. Section 3(4) of the Law of Evidence Amendment Act 45 of 1988
(the Act) defines hearsay evidence as ‘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.’
[40] In the present
case, the declarant to the statement testified as well as the police
officer who took down the statement. However,
the statement consisted
of the direct evidence and the information received from the
appellant and his erstwhile co-accused. Rule
801(1) (d) of the
Federal Rules of Evidence provides;
‘
a
statement is not hearsay if-
Prior statement by
witness. The declarant testifies at the trial or hearing and is
subject to cross-examination concerning the
statement, and the
statement is (A) inconsistent with the declarant’s testimony,
and was given under oath subject to the
penalty of perjury at a
trial, hearing, or other proceeding, or in a deposition ….’
[41] If the witness
admits on the stand that he made the statement and that it was true,
he adopts the statement and there is no
hearsay problem. The hearsay
problem arises when the witness on the stand denies having made the
statement or admits having made
it but denies its truth. In
casu,
the witness admitted making the statement and said that the statement
was made by the police and drummed it into him and that he
did not
have any knowledge of the truth of the facts contained therein. He
therefore denied the truth of the statement. Also, he
went on to
allege that he did not make the statement freely and voluntarily
since he had for fear of an assault and being tubed
by the police
made the statement.
[42] This Court
should accordingly, first decide whether the statement was made by
the police or the witness. In the statement the
witness stated that
the boy whom the appellant had dispossessed of the knife reported
that the boys he had been fighting with had
returned. Whereupon the
appellant and his erstwhile co-accused went outside to investigate
and on their return, they both reported
to the witness that a person
had been injured outside. They stated that each of them had shot the
person in question. Then each
of them handed a 9mm pistol to the
witness to hide so that the police would not find them in their
possession. This information
could not have been acquired other than
by being involved in the commission of the offence or being present
at the time and place
where the offence was committed. The person who
could have knowledge of what transpired immediately prior to and
after the death
of the deceased, was the witness. Nor could the
police have known that the firearms the witness had received from the
appellant
and his erstwhile co-accused were buried in the witness’s
garden, unless they had implanted them. There was no such allegation
or evidence. Instead, the witness said that the firearms belonged to
his deceased brother. Therefore, it follows that the police
would not
have known all this. The only reasonable inference which could be
drawn in the circumstances is that the witness was
the author of the
statement and that he had personal knowledge of the truth of the
facts contained therein.
[43] The second
question to decide is whether or not the statement was made freely
and voluntarily. At the time the witness made
the statement he was
not charged and he only made the statement as a witness. No evidence
was led to show that the witness had
made any attempts to lay an
assault charge against the police. Moreover, the witness did not
allege that he was in fact assaulted
and tubed to make a statement
but on his own version he made it for fear of being assaulted or
tubed by the police. No evidence
was led to show that immediately
prior to the making of the statement the police had threatened him
with an assault or tubing if
he would not make the statement. It was
common cause that on their arrival at the witness’s homestead
the police invited
his aunt to be present when the witness was taking
out the firearms. If the taking out of the firearms was a result of
coercion,
the police would not have liked to have someone present to
witness an assault on or a threat against the witness. That the
firearms
were given to him by the appellant and his erstwhile
co-accused to hide was not inculpatory. The police could not have
coerced
the witness to write an exculpatory statement. In the
premises, the possibility of the statement being made involuntarily
did not
exist. Accordingly, this leaves no doubt that the witness
made the statement freely and voluntarily.
[44] In accepting
the previous inconsistent statement as substantive evidence the
accused’s interest must be carefully balanced
with the interest
of the society in seeing justice done. Section 35(3) of the
Constitution of the Republic of South Africa Act
108 of 1996 (the
Constitution) guarantees the right to a fair trial. This is defined
to include the right to ‘adduce and
challenge’ evidence.
See section 35(3) (j) of the Constitution and S v Magadu 2008(1)
SACR 71(N) at 77.
[45] In R v B case,
supra,
it was held that since the common law rule is an
incarnation of the hearsay rule, a reformed rule must also deal with
the “hearsay
dangers” of admitting prior inconsistent
statements for the truth of their contents, namely; the absence of an
oath or solemn
affirmation when the statement was made, the inability
of the trier of facts to assess the demeanour, and therefore the
credibility
of the declarant when the statement was made, and lack of
contemporaneous cross-examination by the opponent. With the oath,
solemn
affirmation or solemn declaration and the warning, the first
“hearsay danger” is satisfied.
[46] Although the
witness denied the truth of the facts contained in the statement, the
safeguards for admitting the statement as
evidence existed: The
witness had made the statement under oath to the police. Also, as the
declarant, he, the witness, testified
at the trial on the statement.
He was subjected to full and effective cross-examination by both the
prosecution and the defence.
He was thereby afforded an opportunity
to explain the inconsistencies in his prior statement and the truth
of the facts contained
therein. The purposes of cross-examination
are, to elicit evidence which supports the cross-examiner case and to
cast doubt upon
the evidence given for the opposing party. The police
officer who took down the statement also testified as to the
circumstances
under which the statement was made and that the witness
had personal knowledge of the truth of the facts contained therein.
[47] The witness
testified at the trial as to what transpired prior and after the
killing of the deceased save that he did not say
that after the
shooting incident the appellant and his erstwhile co-accused gave him
two 9mm pistols to conceal. Had the latter
evidence been given orally
at the trial, it would have been admitted as direct evidence against
the appellant and his erstwhile
co-accused, establishing the fact.
What the appellant and his erstwhile co-accused did and say prior to
going outside to investigate
and on their return, also constituted
direct evidence as to what transpired in the presence of the witness.
As an analogy
see
section 34(1)
(a) (i) (b) of the
Criminal
Procedure Act, 51 of 1977
. However, the evidence relating to that
a person had been shot outside and how the deceased met his death was
hearsay since its
probative value entirely depended on the
credibility of the appellant and of his erstwhile co-accused. Since
this piece of evidence
was reliable and reasonably necessary, in my
view, it was in the interest of justice to admit it as an exception
to hearsay rule.
[48] Subparagraphs
(iv) and (vi) of section 3(1) (c) of the Act require the court to
take into account both the probative value
and the prejudicial effect
of an item of evidence.
[49] The statement
has probative value in that it reinforces the reasoning by inference
that the appellant and his erstwhile co-accused
were responsible for
the death of the deceased. It explained what occurred prior, during
and after the killing of the deceased,
how the appellant came in
possession of the spent cartridge which was later ballistically
linked to the firearms recovered from
the witness and how the witness
came in possession of the two firearms. The fact that the two 9mm
pistols were recovered in possession
of the witness lends much
credence and reliability to the prior statement. The compelling
justification of its admission as evidence
in
casu
is the
numerous pointers to its truthfulness, as stated above. The statement
is a strong corroboration in all other evidence for
the
self-incrimination of the erstwhile co-accused and the implication of
the appellant in the present case. The linking of the
firearms found
in possession of the witness to the spent cartridges lifted on the
scene and the one received on the scene from
the appellant meshes in
detail with what the erstwhile accused said in his pointing out
statement and interlinks with the evidence
relating to the following
of the deceased and Banda from the bar premises and the firing of two
shots.
[50] With regard to
the probative value of the hearsay evidence, in S v Ndlovu and others
2002(2) SACR 325(SCA) at paragraph 44,
the court found high probative
force in the powerful way in which all the evidence in that case
interlinked and completed the mosaic
of the state case. In
Skilya
Property Investments (Pty) Ltd v Lloyds of London 2002(3) SA 765 (T)
at 804 C-D,
the court took into account the manner in which the
hearsay evidence reinforced the other evidence and supported the
basis of suspicion.
[51] There is no
violation of an accused’s constitutional right to a fair trial
if the accused or defence has been afforded
and opportunity to cross
examine the declarant and test the reliability of the statement. The
prejudice may also be offset by the
fact that the statement was made
under oath. The presence of the oath, solemn affirmation or solemn
declaration increases the evidential
value of the statement.
[52] In conclusion
the court in the present case was entitled to make substantive use of
the previous inconsistent statement by
the hostile witness and to
give the statement, as evidence, the appropriate weight after taking
into account all the circumstances,
as stated above. After
illustrating how the previous inconsistent statement inexorably
interlinked with all the evidence tending
to prove the guilt of the
appellant, I deem not necessary to deal at length with the question
whether the guilt of the appellant
was proved beyond reasonable
doubt. As shown above, the evidence adduced before court including
the prior statement was sufficient
for conviction on a charge of
murder. The appellant did not testify and explain how he came in
possession of the spent cartridge
which he handed over to Mdletshe on
the scene. It was not in dispute that the appellant did so. Nor did
he deny that one of the
9mm pistols recovered from the witness was
his. Also, he did not deny that when the two gunshots were fired he
and his erstwhile
co-accused were standing outside on the bar
premises and that on the following morning he telephoned the witness,
Zandile Hlatshwayo,
and told her that a dead body of a person had
been found lying outside the bar. This is evident that the appellant
had guilty consciousness
and he was fully aware that the witness had
seen him the previous night. Even on the scene of murder on the
following morning,
he beckoned the witness but she ignored him.
[53] In the
premises, I do not find any merit in the appeal against conviction
and it, therefore, falls to fail. In the result the
appeal against
conviction is dismissed.
__________________
MADONDO J
I agree
__________________
SISHI J
Date reserved on: 4
January 2011
APPEARANCES:
APPELLANT:
Instructed by:
Messrs Noxaka Mfungula & Co
RESPONDENT: Adv Watt
Instructed by: The
Director of Public Prosecutions