S v Molimi

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van Der Westhuizen J, Yacoob J and Mpati AJ
• Judgment Date: 04 March 2008
• Citation: 2008 (3) SA 608 (CC)
• Docket Number: CCT 10/07
• Hearing Date: 23 August 2007
• Counsel: CE Thompson for the applicant, instructed by the Johannesburg Justice Centre. GL Roberts (with R Vos) for the respondent. S Budlender for the amicus curiae.
• Court: Constitutional Court

Nkabinde J:

Introduction I

[1] This case raises issues of considerable importance regarding the admissibility of extra-curial statements of an accused against a co-accused in a criminal trial. More specifically, we are asked to consider the rules governing the admissibility of hearsay evidence under the J

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A provisions of the Law of Evidence Amendment Act [1] (the Act) in the context of the right to a fair trial and the need to prevent, among other things, procedural abuse.

[2] It is convenient to state the relevant provisions of the Act from the outset. Section 3 of the Act reads:

B (1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless -

(a)

each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;

(b)

the person upon whose credibility the probative value of such C evidence depends, himself testifies at such proceedings; or

(c)

the court, having regard to -

(i)

the nature of the proceedings;

(ii)

the nature of the evidence;

(iii)

the purpose for which the evidence is tendered;

(iv)

the probative value of the evidence;

(v)

D the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(vi)

any prejudice to a party which the admission of such evidence might entail; and

(vii)

any other factor which should in the opinion of the court be E taken into account,

is of the opinion that such evidence should be admitted in the interests of justice.

(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such F evidence is hearsay evidence.

(3) Hearsay evidence may be provisionally admitted in terms of subsection (1)(b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out G of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.

(4) For the purpose of this section -

'hearsay evidence' means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person H other than the person giving such evidence;

'party' means the accused or a party against whom hearsay evidence is to be adduced, including the prosecution.

[3] This case comes before us by way of an application for leave to appeal against the judgment and order of Cachalia AJA, with Zulman JA and I Van Heerden JA concurring, in the Supreme Court of Appeal. [2] That court dismissed the appeal by the appellants against their convictions by

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Makgoba AJ in the Johannesburg High Court [3] on the counts of robbery A with aggravating circumstances, [4] murder and attempted murder, and upheld the appeal against their convictions on counts of murder, unlawful possession of firearms, [5] unlawful possession of ammunition [6] and kidnapping. The applicant also seeks condonation for the late filing of the application for leave to appeal. B

Factual background

[4] The facts have been summarised in the judgment of the Supreme Court of Appeal. The applicant, Mr Molimi, was accused 2 at the trial. He was indicted and convicted of various counts [7] with two other accused C in the High Court. He was the manager of Clicks Store (Clicks) in Southgate Mall, Johannesburg, when it was robbed during a routine money collection by Fidelity Guards (Fidelity) on 30 October 2007. It is common cause that accused 1 was caught red-handed. Accused 3 was a former employee of Fidelity. The applicant and his co-accused had D communicated with one another using their cellphones prior to and on the day of the robbery.

[5] A security officer employed by Fidelity arrived at Clicks at approximately 11:00 to collect money. He entered the cash office and found the applicant and his co-employee who handed the money to him. He then E transferred the money into a container. As the officer left the store in possession of the container, two of the four armed men who had just entered the store confronted him and ordered him back into the cash office. They instructed him to empty the contents of the container into a black bag, which he did. The robbers fled with an amount of F R45 737,40 and a revolver was taken from the Fidelity security officer.

[6] As the robbers fled the scene, there was a barrage of gunfire between one of the robbers and a security guard in the employ of Clicks who

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A fatally wounded each other. [8] The remaining three robbers fled and were confronted by a bystander who drew his firearm upon being pointed at with firearms by the fleeing robbers. The bystander warned them to stop. When the robbers ignored his warning, he pursued accused 1 who then dropped the black bag and took shelter in a store near the exit of the B mall. Accused 1 pointed his firearm at the bystander and the latter reacted by discharging one shot in the direction of accused 1 and accidentally shot and wounded an employee in the store. [9] Accused 1 then took a young man in the store hostage. [10] The bystander fired another shot towards accused 1, this time accidentally killing the C hostage. [11] Accused 1 ultimately surrendered and was arrested immediately. The applicant was arrested a day after the robbery and accused 3 some two months later.

[7] On the date of his arrest and after being cautioned by the police, accused 1 made a statement to a senior police officer incriminating D himself, the applicant, accused 3 and several other alleged members of the group involved in the robbery. The statement gives his version of how the robbery was orchestrated and the manner in which the cellphones of the applicant and accused 1 were to be used to alert the men when the Fidelity officer arrived at and left the store. The statement further tells of a meeting that took place between accused 3 and two E other perpetrators, where accused 3 allegedly informed the members of the party about a tip-off concerning money that could be 'taken' from Clicks. [12]

[8] Accused 3 also made a statement to a senior police officer implicating himself, the applicant and accused 1. The statement describes the F planning of the robbery, including how accused 3 recruited accused 1 to rob Clicks, the subsequent meetings between him, accused 1 and the applicant, and the communication he had with accused 1 on the morning of the robbery before he left the mall and before the robbery took place. [13] The applicant made no statement to the police. Thus, this G case is about the admissibility of the statements made by accused 1 and accused 3 against the applicant.

High Court proceedings

[9] The accused pleaded not guilty to all counts, made formal admissions H [14] and elected to remain silent.

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[10] When the statement of accused 1 was tendered at the trial, an A objection was taken to its admission. The admissibility of this statement was challenged on the ground that it had not been proved to have been made freely, voluntarily and without undue influence, within the meaning of s 217 of the Criminal Procedure Act 51 of 1977 [15] (CPA). The record of the proceedings at the High Court reveals that the statement of B accused 1 was generally understood by the parties as constituting

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A a confession. The High Court conducted a trial-within-a-trial [16] and heard evidence regarding the admissibility of the statement of accused 1. The court admitted the statement against accused 1 and a copy was handed in. [17]

[11] An objection was raised to the admissibility of the statement of B accused 3 on the basis that the police fabricated his version. Accused 3 said that he was threatened and assaulted by the police before signing the statement. [18] The High Court, relying on S v Khuzwayo [19] and S v Lebone, [20] allowed the State to cross-examine accused 3 on the contents of the statement to test its reliability. At the conclusion of the trial-within- C a-trial, the court admitted the statement provisionally against accused 3 and reserved reasons for its ruling.

[12] At the close of the State's case, counsel for the applicant and accused 3 unsuccessfully applied for discharge in terms of s 174 of the CPA. [21] In the course of making a ruling the judge remarked -

D at this stage of the proceedings [the statements] are part of the record and I admit [them]. The two statements by accused 1 and [3] implicate [the applicant]. [22]

The case continued against the three accused who all testified in their own defence. Accused 1 denied complicity in the robbery and all allegations E against him and disavowed the contents of his statement. Counsel for the applicant and accused 3 did not cross-examine accused 1.

[13] Accused 3's testimony was to the effect that upon his arrest and on arrival at the police station, he informed the police officers that he was only prepared to make a statement to a magistrate but was told that the F magistrate was not available. He said that he signed the statement under

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duress. He denied involvement in the robbery. A

[14] The applicant testified that he was on duty the day of the robbery. He explained that he had an appointment with accused 3 to discuss a 'deal' to buy the rims of his vehicle. After the robbery he contacted accused 3 and arranged another appointment. He made several cellphone calls to accused 3 allegedly pleading with him not to cancel the B 'deal'. He also denied complicity in...