S v Makhala and Another

• Jurisdiction: South Africa
• Citation: 2022 (1) SACR 485 (SCA)

S v Makhala and Another
2022 (1) SACR 485 (SCA)

2022 (1) SACR p485

Citation	2022 (1) SACR 485 (SCA)
Case No	438/20
Court	Supreme Court of Appeal
Judge	Mocumie JA, Makgoka JA, Mothle JA, Meyer AJA and Unterhalter AJA
Heard	November 2, 2021
Judgment	February 18, 2022
Counsel	J van der Berg for the appellants.; M Meningo for the state.

Flynote : Sleutelwoorde

Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 (Hearsay Act) — Statements made in terms of s 204 of Criminal Procedure Act 51 of 1977 — Recantation of at trial — Section 3(1)(c) of Hearsay Act applicable to such statements.

Headnote : Kopnota

The two appellants were convicted in the High Court of murder, the possession of an unlicensed firearm, and the unlawful possession of ammunition. Their conviction was based upon two statements made by a witness, that he had procured the services of a third accused to shoot and kill the deceased. The first statement was made to a colonel in the police, who was investigating the murder and who informed him before making the statement that he would be treated as a witness under s 204 of the Criminal Procedure Act 51 of 1977. The colonel informed the witness of his constitutional rights, namely his right to legal representation, his right to remain silent, and the right not to incriminate himself. The services of the witness were obtained at the instance of the second appellant, an independent councillor of the local authority, who wanted to eliminate the deceased who was also a councillor, but a member of a political party. The first appellant approached the witness, his brother, to acquire the services of the third accused. The witness collected the third accused in Cape Town and, after the first appellant pointed out the home of the deceased to the third accused prior to the shooting, returned the third accused to Cape Town after the shooting. When the witness was called to give evidence at the trial, without forewarning to the prosecution he recanted the contents of his two statements that incriminated himself and the other accused in the murder, and the prosecution sought to have him declared a hostile witness, which the trial court proceeded to do. The witness testified that the incriminating portions of the statements were fabrications which the police had forced him to record in his statements, and that he was intimidated by the police and threatened with assault. The trial court considered whether the witness

2022 (1) SACR p486

had been coerced to make the statements, but found that the evidence of the colonel and a sergeant, who took down the statements, was overwhelmingly convincing and corroborated by a further sergeant. The court then considered whether the two statements should be admitted as evidence in terms of s 3(1) of the Law of Evidence Amendment Act 45 of 1988 (the Hearsay Act) and did so on a consideration of the factors listed in s 3(1)(c) of the Act. It considered the risk of falsity to be minimal and that the content of the statements included information that would otherwise be unknown to the police. Aspects of the statements were also confirmed by independent and objective evidence. The conviction of the accused was based largely on the admission of the two statements of the witness. On appeal the appellants challenged the admissibility of and the use of the two statements.

Held, per Meyer AJA (Mocumie JA, Makgoka JA and Mothle JA concurring), that the statements in question had not been obtained in violation of the witness's rights; that the trial was not rendered unfair by the admission of the statements; nor was there anything done in securing the statements that constituted any material detriment to the administration of justice; that the trial court correctly declared the witness to be a hostile witness; that he had not been denied a right to choose to be represented by an attorney and had suffered no substantial injustice by not being provided an attorney at state expense before being declared a hostile witness; that the trial court had properly applied the cautionary rule applicable to the evidence of an accomplice; and that there was sufficient corroborative evidence to convict the appellants. (See [105] – [106].)

Held, further, that s 3(1)(c) of the Hearsay Act applied to the admission into evidence of extracurial statements made by s 204 state witnesses who recanted statements that incriminated themselves and the accused in the commission of the offences in question. (See [107].)

Held, per Unterhalter AJA, dissenting only in respect of the applicability of s 3(1)(c) of the Hearsay Act to the extracurial statement made by a witness. (See [64].) The appeal was dismissed.

Cases cited

Southern Africa

BSB International Link CC v Readam South Africa (Pty) Ltd and Another 2016 (4) SA 83 (SCA) ([2016] 2 All SA 633; [2016] ZASCA 58): applied

Camps Bay Ratepayers' Association and Another v Harrison and Another 2011 (4) SA 42 (CC) (2011 (2) BCLR 121; [2010] ZACC 19): dicta in paras [28] – [30] applied

FirstRand Bank Limited v Kona and Another 2015 (5) SA 237 (SCA) ([2015] ZASCA 11): applied

FirstRand Bank Ltd t/a First National Bank v Moonsamy t/a Synka Liquors 2021 (1) SA 225 (GJ) ([2020] ZAGPJHC 105): applied

Head of Department, Department of Education, Free State Province v Welkom High School and Others 2014 (2) SA 228 (CC) (2013 (9) BCLR 989; [2013] ZACC 25): applied

Investec Bank Ltd v Fraser NO and Others 2020 (6) SA 211 (GJ) ([2020] ZAGPJHC 107): applied

Meyer's Trustee v Malan 1911 TPD 559: dictum at 561 applied

S v Balkwell and Another [2007] 3 All SA 465 (SCA) ([2007] ZASCA 91): discussed

S v Libazi and Another 2010 (2) SACR 233 (SCA) ([2011] 1 All SA 246; [2010] ZASCA 91): discussed

2022 (1) SACR p487

S v Litako and Others 2014 (2) SACR 431 (SCA) (2015 (3) SA 287; [2014] 3 All SA 138; [2014] ZASCA 54): discussed

S v Mamushe [2007] 4 All SA 972 (SCA) ([2007] ZASCA 58): followed

S v Mathonsi 2012 (1) SACR 335 (KZP): discussed

S v Mthembu 2008 (2) SACR 407 (SCA) ([2008] 3 All SA 159; [2008] ZASCA 51): dictum in para [27] applied

S v Mthethwa 2004 (1) SACR 449 (E): referred to

S v Mushimba en Andere 1977 (2) SA 829 (A): applied

S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; [2002] 3 All SA 760; [2002] ZASCA 70): referred to

S v Orrie and Another 2005 (1) SACR 63 (C) ([2005] 2 All SA 212): referred to

S v Pillay and Others 2004 (2) SACR 419 (SCA) (2004 (2) BCLR 158; [2004] 1 All SA 61; [2003] ZASCA 129): dictum in para [6] applied

S v Ramavhale 1996 (1) SACR 639 (A): referred to

S v Rathumbu 2012 (2) SACR 219 (SCA) ([2012] ZASCA 51): followed

S v Steyn en Andere 1987 (1) SA 353 (W) ([1987] 3 All SA 19): dictum at 355 discussed

S v Tandwa and Others 2008 (1) SACR 613 (SCA) ([2007] ZASCA 34): dicta in paras [117] – [120] applied

Standard Bank of South Africa Limited v Sibanda 2021 (5) SA 276 (GJ): dicta in paras [5] – [10] applied

Standard Bank of South Africa Ltd v Hendricks and Another and Related Cases 2019 (2) SA 620 (WCC) ([2019] 1 All SA 839; [2018] ZAWCHC 175): applied.

Canada

R v B (KG) [1993] 1 SCR 740: compared

R v U (FJ) [1995] 3 SCR 764: compared.

England

Kuruma, Son of Kaniu v Reginam [1955] AC 197 (PC) ([1955] 1 All ER 236): referred to.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 204: see Juta's Statutes of South Africa 2020/21 vol 1 at 2-326

The Law of Evidence Amendment Act 45 of 1988, s 3, 3(1)(c): see Juta's Statutes of South Africa 2020/21 vol 1 at 2-704.

Case Information

J van der Berg for the appellants.

M Meningo for the state.

An appeal from convictions in the Western Cape Division, Eastern Circuit Local Division (Henney J), of murder and the possession of an unlicensed firearm and ammunition.

Order

The appeal is dismissed.

2022 (1) SACR p488

Judgment

Unterhalter AJA:

Introduction

[1] The first and second appellants were convicted by Henney J in the High Court on one count of murder, one count of possession of an unlicensed firearm and one count of the unlawful possession of ammunition. The appellants were each sentenced to life imprisonment for the murder and five years of imprisonment on the remaining counts, which were ordered to run concurrently with the life sentences. The appellants were granted leave to appeal to this court.

[2] On 23 July 2018 Mr Molosi attended a school governing-body meeting at Concordia High School. He was the chair of the governing body. He was also a councillor of the Knysna Municipal Council. After the meeting, he was given a lift and dropped off near his home. While walking home, he was shot and killed.

[3] A team of police officers was appointed to investigate the murder. The police received information that the first appellant, Mr Mawanda Makhala, was seen in the Pop Inn Tavern in Concordia on the weekend before the murder, with two other persons, one of whom was his brother, Mr Luzuko Makhala. On 1 August 2018 Sgt Wilson traced Luzuko Makhala who confirmed that he was in the area during the weekend before the murder. Luzuko Makhala said that he had given a lift to an unknown man in the Eastern Cape and then drove to Knysna over the weekend in question. Sergeant Wilson, however, viewed camera footage of the N2 highway, which showed that Luzuko Makhala's vehicle was travelling from Cape Town to Knysna on 22 July 2018.

[4] Confronted with this evidence, according to Sgt Wilson, Luzuko Makhala indicated that he wished to recount his part in the murder of Mr Molosi. His rights were explained to him. Luzuko Makhala was informed that he would be treated as a witness under s 204 of the Criminal Procedure Act 51 of 1977 (the CPA). Section 204 permits a witness to give incriminating evidence for the prosecution. Upon testifying frankly and honestly, such a...