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[2018] ZACC 35
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Tarr v S (CCT07/18) [2018] ZACC 35; 2019 (1) BCLR 151 (CC) (27 September 2018)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 07/18
In the matter
between:
ISHAQ
TARR
Applicant
and
THE
STATE
Respondent
Neutral citation:
Tarr v S
[2018] ZACC 35
Coram:
Mogoeng CJ, Zondo DCJ, Basson AJ Cameron J, Dlodlo AJ, Froneman J,
Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J.
Judgments:
Froneman J (unanimous):
Decided on:
27 September 2018
Summary:
Extra-curial statement — Interference with factual findings
of a lower court
ORDER
The following order
is made:
1. Condonation is granted.
2. Leave to appeal is refused.
JUDGMENT
FRONEMAN J (Mogoeng
CJ, Zondo DCJ, Basson AJ Cameron J, Dlodlo AJ, Goliath AJ, Khampepe
J, Mhlantla J, Petse AJ and Theron J concurring):
[1]
The applicant (Mr Tarr) was convicted of murder. This is
an application for leave to appeal against his conviction and
sentence
by Daffue J in the Free State Division of the High Court on
18 October 2013. Mr Tarr’s application must be
dismissed. However, his case warrants a short judgment because
it raises an issue related to the application of this court’s
judgment in
Nkosi
, which was not addressed in the courts
below.
[1]
Factual and legal
background
[2]
Mr Tarr was sentenced to 15 years’ imprisonment for the
murder of Haremakale Selimo. The murder occurred in November
2010 on the R57 between Heilbron and Petrus Steyn. Mr Lameck
Mtagha (Mr Mtagha), a former employee of Mr Tarr, was tried
alongside
Mr Tarr as accused number 1 and acquitted. Mr Mtagha’s
evidence is at the heart of the alleged irregularity
leading to an
unfair trial.
[3]
Mr Mtagha gave a statement to a Magistrate in Koppies.
However, at trial, Mr Mtagha denied that he had ever given that
statement. Nevertheless, the Judge admitted the statement as
hearsay evidence (“Exhibit F” in the trial).
He was
confident that the statement was genuine, in part because it
contained true information that anyone fabricating the statement
could not have known. He found that there was “an
undeniable link between the hearsay evidence contained in Exhibit
F
and the objective or common cause evidence”. His
admission of Mr Mtagha’s extra-curial statement accorded with
the principles set out in the judgment of the Supreme Court of Appeal
in
Ndhlovu
.
[2]
In the disputed extra-curial statement, accused number 1 makes
it clear that the applicant shot the deceased. At the
trial Mr
Mtagha disavowed making the statement or any other statement
implicating Mr Tarr. Despite this disavowal the trial
judge did
not retract his earlier ruling on the admissibility of the
extra-curial statement. He nevertheless acquitted accused
number 1, “despite his false evidence in this court”, on
the basis that the extra-curial statement did not implicate
himself
in the murder. The contents of the extra-curial statement were
however relied upon by the judge in convicting Mr
Tarr.
[4]
About a year and half after Mr Tarr was convicted, this Court
decided
Nkosi
. The unanimous judgment was unequivocal:
“[
t]he
common law position before
Ndhlovu
,
that extra-curial statements against co-accused are inadmissible,
must be restored”.
[3]
The impact on Mr Tarr’s case is clear. Exhibit
F should not have been admitted as evidence.
Submissions
[5]
Mr Tarr applied for leave to appeal both his conviction and
his sentence. He advanced a number of grounds. The vast
majority of those grounds call into question factual findings or the
application of uncontroversial legal principles that have been
correctly applied. It is clear that this court does not have
jurisdiction to deal with those submissions. Therefore,
I
address only the two submissions that warrant discussion.
[6]
The first concerns the effect of
Nkosi
. Mr Tarr
argues that the inclusion of Exhibit F rendered his trial unfair and
that without Exhibit F, he could not have been
properly convicted.
[7]
The second relates to his sentencing. Mr Tarr raises the
issue of whether he had to be warned about the application of minimum
sentencing legislation.
Condonation
[8]
In view of the special circumstances, the delay in bringing
this application is condoned.
Jurisdiction
[9]
Because of the outcome I reach it is not necessary to make a
final pronouncement on whether this Court has jurisdiction. I
will assume, without deciding, that we may have.
[10]
The circumstances of this case are exceptional. Mr Tarr
was convicted before
Nkosi
, a case that would have changed the
substance of his trial. When he appealed his case after
Nkosi
was handed down, he received no reasons for its dismissal except that
the Supreme Court of Appeal said that he had no reasonable
prospects
of success. He, and potentially others, are in the dark as to
why his reliance on
Nkosi
failed.
Leave to appeal
[11]
Mr Tarr’s application for leave to appeal rests heavily
on his prospects of success. As regards his conviction, his
prospects rest on one simple question: absent Exhibit F, was the
remaining case against him sufficient for his conviction?
[12]
That question is entirely factual. We could therefore
approach the matter in formalistic terms. The Supreme Court of
Appeal was in a position to review the facts. Although it gave
no reasoned judgment, we must presume that it did so.
Thus, the
principle that we will not ordinarily interfere with factual findings
of the courts below leads inevitably to the conclusion
that the
remaining case was sufficient for his conviction.
[13]
That is enough to dispose of this case. Close inspection
of the trial judgment leads to the same result. The trial judge
did not rely solely on Mr Mtagha’s extra curial statement.
[14]
The deceased’s body was found on 8 November 2010 next to
the R57 road between the towns of Heilbron and Petrus Steyn. The
cause of death was gunshots to the head and chest. A bullet
jacket was found on the body of the deceased. This bullet
jacket was examined by a ballistics expert who concluded that the
bullet was fired from a .357 revolver. A damaged .357 revolver
was later found at the Mr Tarr’s house. Despite some
difficulty because of its damaged condition, the ballistics expert
managed to test the firing of a bullet from this revolver and
concluded that both shots were fired from this self-same revolver.
Mr Tarr’s version was that the .357 revolver found by the
police in his safe was damaged in 2009 and kept in the safe
ever
since then.
[15]
There is thus essentially only one argument to be made that
establishes Mr Tarr’s guilt without reference to the
extra-curial
statement, namely that (1) the applicant’s .357
revolver fired the bullets that killed the deceased; (2) anyone who
had killed
with that firearm, other than Mr Tarr, would not have
returned the firearm to Mr Tarr’s safe; and (3) the .357
revolver was
found in Mr Tarr’s safe. The Judge accepted
the argument. Moreover, we have no reason to doubt their
truth.
Crucially, they necessarily establish beyond reasonable
doubt that it was Mr Tarr who murdered the deceased.
[16]
The killing was of a brutal execution-type. The sentence
of 15 years imprisonment is by no means excessive.
[17]
For those reasons, Mr Tarr has no prospects of success in his
appeal. His application for leave to appeal must be dismissed.
Order
[18]
In the result the following order is made:
1. Condonation is granted.
2. Leave to appeal is refused.
For the Applicant:
Mr P Peyper of Peyper Buitendag Inc Attorneys
For the Respondent:
S Giorgi instructed by Office of the Director of Public Prosecutions:
Free State
[1]
Mhlongo v S; Nkosi v S
[2015] ZACC 19
;
2015 (2) SACR 323
(CC);
2015 (8) BCLR 887
(CC) (
Nkosi
).
[2]
S v Ndhlovu
[2002] ZASCA 70; 2002 (2) SA 325 (SCA).
[3]
Nkosi
above n 1 at para 44.