S v Makhala and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mocumie JA, Makgoka JA, Mothle JA, Meyer AJA and Unterhalter AJA
• Judgment Date: 18 February 2022
• Court: Supreme Court of Appeal
• Hearing Date: 02 November 2021
• Citation: 2022 (1) SACR 485 (SCA)
• Counsel: J van der Berg for the appellants. M Meningo for the state.
• Docket Number: 438/20

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 witness may be discharged from prosecution by the court.

[5] Luzuko Makhala gave a first statement to Col Ngxaki on 13 August 2018. Colonel Ngxaki, a policeman of some 25 years' experience, gave evidence at the trial. He testified that Luzuko Makhala was informed of his constitutional rights: his right to legal representation, and his right to remain silent and not to incriminate himself. Section 204 of the CPA was also explained to him. Freely and voluntarily, according to Col Ngxaki's testimony, Luzuko Makhala made a detailed statement that Col Ngxaki wrote down. I shall refer to this statement as the first statement.

[6] The following was recorded in the first statement. The second appellant, Mr Velile Waxa, was an independent councillor of the Knysna Municipal Council. Mr Waxa sought the services of a hitman to kill Mr Molosi, a councillor representing the African National Congress (the ANC). Mawanda Makhala (first appellant) asked whether his brother,

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Luzuko Makhala, knew of such a person. Luzuko Makhala did. The person he procured was the third accused in the trial, Mr Vela Dumile. Luzuko Makhala introduced Mr Dumile to Mr Waxa. He brought Mr Dumile from Cape Town to Knysna to kill Mr Molosi. In addition, he facilitated the killing by ensuring that Makhala pointed out the home of Mr Molosi to Mr Dumile prior to the shooting and, after that, Mr Dumile shot Mr Molosi. Thereafter, Luzuko Makhala transported Mr Dumile back to Cape Town.

[7] Luzuko Makhala gave a second statement to Sgt Mdokwana. Sergeant Mdokwana was transporting Luzuko Makhala from Knysna back to Cape Town. Luzuko Makhala recounted that, on 18 July 2018, he had received a call from Mr Waxa, who said that he would be sending him R1000 to purchase petrol to transport Mr Dumile to Knysna. On 20 July 2018 Luzuko Makhala drew the money, and Mr Waxa called him to confirm whether he had received the money. Sergeant Mdokwana asked Luzuko Makhala whether he would confirm this in a statement. He agreed, and this was done. I shall refer to this as the second statement. Luzuko Makhala also handed over his Nokia cellphone.

[8] The first and second statements incriminated Mawanda Makhala, Mr Waxa, Mr Dumile and Luzuko Makhala in the murder of Mr Molosi. The trial court admitted the first and second statements into evidence and relied upon these statements to convict the accused of murder and the related counts. The central question in this appeal is whether the trial court was correct to do so. It is common ground in this appeal that, without recourse to this evidence, the appellants' convictions cannot stand.

The trial court's judgment

[9] The state called Luzuko Makhala to give evidence. Without forewarning to the prosecution, Luzuko Makhala recanted the contents of his first and second statements that incriminated himself and the accused in the murder. The prosecution sought to have Luzuko Makhala declared a hostile witness. The trial court did so. Luzuko Makhala testified that the incriminating portions of the statements were fabrications that the police forced him to record in the statements. He claimed that he was intimidated by the police and threatened with assault and, as a result, made statements that he thought the police wanted from him.

[10] The trial court's judgment, quite properly, devoted considerable attention to the first and second statements and whether the state could place reliance upon them, in the light of Luzuko Makhala's recantation in the witness box of the incriminating portions of the statements.

[11] First, the trial court considered whether Luzuko Makhala was forced to make the statements by the police and did not do so freely and voluntarily. The trial court found that the evidence of Col Ngxaki and Sgt Mdokwana, who took down the statements, was 'overwhelmingly convincing' and corroborated by Sgt Wilson. Luzuko Makhala was found to be the author, originator and principal source of the two statements.

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[12] Second, the trial court considered whether the first and second statements should be admitted into evidence in terms of s 3(1) of the Law of Evidence Amendment Act 45 of 1988 (the Hearsay Act). Upon a consideration of the factors listed in s 3(1)(c), the trial court admitted the two statements into evidence. Among the factors considered were the probative value of the evidence and the caution that was warranted before admitting the statements, given Luzuko Makhala's participation in the commission of the crimes. The trial court considered the risk of falsity to be minimal. Furthermore, the content of the statements included information otherwise unknown to the police. Aspects of the statements were also confirmed by independent and objective evidence, principally the identification of the third accused, Mr Dumile, by Dumisani Molosi and Mrs Molosi (the son and wife of the deceased). They identified Mr Dumile as the person who had come to the Molosis' house to inquire as to the whereabouts of Mr Molosi before the murder. This, the trial court found, supported the probative value of the statements.

[13] Third, the trial court assessed the evidence given by the accused at trial and the witness who testified on behalf of the third accused. The evidence of the accused was found not to be reasonably possibly true and was rejected as false.

[14] The trial court concluded that the accused were guilty on all three counts. The admission of the first and second statements into evidence by the trial court was central to this holding by the trial court.

The issues on appeal

[15] The appellants challenged the trial court's admission and use of the first and second statements. If these statements should not have been admitted into evidence or the use of this evidence was otherwise excluded, then, given the decisive centrality of the statements, the appellants' convictions are unsound. This was common ground between the parties, and this position is not to be doubted.

[16] Though overlapping in certain respects, the appellants' challenges may broadly be understood as follows. First, the statements must have been lawfully given. If the statements were not given freely and voluntarily or were extracted in violation of the rights of Luzuko Makhala, or were induced by false assurances, or were otherwise compromising of the standards that render a trial fair, then no reliance should have been placed upon the statements, and the trial court was in error in doing so. If evidence is illegally obtained, it stands to be excluded. I shall refer to this challenge as the legality challenge.

[17] Second, the appellants contended that the trial court should not have admitted the statements into evidence. The admissibility of the statements is not simply a question of the application of s 3(1)(c) of the Hearsay Act, more is required. Here, too, questions of voluntariness, reliability, accuracy and an appreciation of the circumstances under which the statements were given must be considered. The appellants submitted that the statements do not measure up to what is required of a trial court for it to place reliance upon the statements. In addition, the

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appellants contended, the trial court should have considered whether justice is served by reliance upon hearsay evidence as the key evidence by recourse to which the trial court convicted the appellants. The trial court did not do so. For these reasons also, the convictions cannot, therefore, stand. I shall refer to this as the hearsay challenge.

[18] Third, the trial court admitted the statements consequent upon its declaration that Luzuko Makhala was a hostile witness. The appellants submitted that the trial court erred in this declaration because it failed properly to appreciate what it is to be a hostile witness. Luzuko Makhala was not a hostile witness, and hence his prior statements ought not to have been admitted into evidence. I...