S v Ndhlovu and Others

• Jurisdiction: South Africa
• Judge: Harms JA, Cameron JA and Heher AJA
• Judgment Date: 31 May 2002
• Citation: 2002 (2) SACR 325 (SCA)
• Docket Number: 327/01
• Hearing Date: 07 May 2002
• Counsel: H A Knopp for the first appellant. S B S Dlwathi for the second and third appellants. S I Bhabha for the fourth appellant. D Vlok for the State.
• Court: Supreme Court of Appeal

Cameron JA:

Introduction B

[1] The main question in the appeal is whether an accused's out-of-court statements incriminating a co-accused, if disavowed at the trial, can nevertheless be used in evidence against the latter.

[2] Johannes Jochemus Jansen van Rensburg, a 40-year-old husband C of 20 years and a father of two children, was a partner in a plumbing business that was improving the water and sewerage facilities in the East Rand township of Katlehong. On Sunday morning 17 January 1999, he entered the Ramakonopi section of the township with a team of workers to lay pipes. At 08h00, while his workers were preparing for the day's tasks, he was attacked at the wheel of his Ford Cortina by a D group of four young men. One of them approached, pointed a firearm at him, pulled the trigger and fled. A second, armed with a 30 cm iron bar, demanded a cellular phone before also fleeing. The bullet entered Jansen van Rensburg's right shoulder. It lacerated his subclavian arteries and passed through his trachea and left lung. He died shortly afterwards at the scene of the attack. His attackers had by then E escaped with his cellphone.

[3] Fifteen months later, the four appellants (the accused) were arraigned in the High Court in Johannesburg on charges arising from the incident. Goldstein J and two assessors, in a judgment portions of which have been reported, [1] convicted all four accused of murder and of armed robbery. [2] F The first accused was in addition convicted of unlawful possession of a firearm and ammunition. [3] Applying the minimum sentence provisions which had come into force on 1 May 1998, [4] Goldstein J sentenced the first three accused to life imprisonment for the murder, and to 15 years' imprisonment for the robbery. Accused 1 was in addition sentenced to three years' imprisonment on the firearm charge, and to two years on G the ammunition charge. Accused 4, who was just over 17 at the time of the crimes, was sentenced to 18 years in prison for the murder, and to ten years for the robbery. The sentences were all to run concurrently. [5]

[4] Two eyewitnesses testified against the accused. The first H could identify no-one. The second placed accused 1 at the scene of the crimes. But the trial Court found that his identification was 'virtually worthless'. I

Cameron JA

In consequence, the pivotal factors in the A conviction of the accused were the words and actions of accused 3 on the night following the murder, when he led the police to the other three accused and to the purchaser of the deceased's cellphone (resulting in the recovery of the cellphone, the testimony of the person to whom it was sold, and the discovery of the murder weapon in the possession of accused 1), and a written statement that accused 4 B made the next day, incriminating himself and the other three accused. At the trial accused 3 and 4 denied making any statements to the police. And all four denied complicity. The trial Court rejected the defence evidence as false beyond reasonable doubt. Goldstein J granted the accused leave to appeal against their convictions and sentences, but not against his finding, at the end of a trial-with-the-trial, that C the post-arrest pointings out and oral statements attributed to accused 3, and the written statement attributed to accused 4, were rightly so attributed, and were admissible as having been made freely and voluntarily. Accused 1 did not seek leave to appeal against his conviction and sentences on the arms charges. D

[5] In the result, the principal question in the appeal is the admissibility against their fellow accused of the hearsay evidence deriving from the oral and written statements of accused 3 and 4, and whether that evidence, if admissible, supports the inferences as to motive and conduct the trial Court drew against the accused. In E addressing that question, the appellants could make no serious attack on the factual and credibility findings of the Court below, which the evidence overwhelmingly justified.

The trial Court's findings

[6] In the early hours of the morning after the murder, an informer F telephoned Sgt Makhubo of the Katlehong Crime Prevention Unit and purported to give him 'the names and addresses of the perpetrators'. Makhubo decided to follow the lead with a group of colleagues. They first went to the home of accused 3 where, after advising him of his constitutional rights, Makhubo arrested him on a charge of murder. G After being handcuffed, accused 3 told Makhubo that he was not alone when they 'shot a white man'. In the ensuing conversation, accused 3 told him 'we were four', but stated that it was not he who pulled the trigger. Asked who did, accused 3 answered: 'Vusi'. Accused 3 then agreed to point out the persons who had been in his company. Makhubo put accused 3 into one of the two vehicles in which the police party H was travelling, and boarded the other. Makhubo told the driver of the vehicle in which accused 3 was placed merely that accused 3 would direct them 'to a certain place'.

[7] That accused 3 proceeded to do. He directed the party to a I series of locations at which in turn accused 4, accused 2, the purchaser of the deceased's cellphone, one Mdunana, and accused 1 were arrested. Before accused 1's arrest (at a location to which accused 3 directed the police after accused 1 could not be found at his home), accused 3 warned the police to be careful because accused 1 had a firearm. At this point accused 3 also told Makhubo that they were 'actually going to take the J

Cameron JA

cellphone from this white man and that they were surprised' when they A realised that accused 1 was shooting the man. He said that once the man had been shot, 'they then took the cellphone and ran away'.

[8] Mdunana was taken into custody after accused 2, 3 and 4, but before accused 1. Accused 3 accompanied the police party that entered Mdunana's home. There Mdunana identified him to the police as the B 'the seller' of the cellphone. Later that same night, at the Katlehong police station, when Mdunana encountered accused 2, he identified him to the police as the second of two youths who had come to his door, offering the cellphone for sale. At the trial Mdunana (who had by then been convicted and sentenced for possessing stolen property) affirmed these identifications. He testified that at about C 09h00 on Sunday 17 January 1999 'four boys' arrived at his home in Ramakonopi East. Two approached him and stood at his door, while the others waited at the gate. Accused 3 offered to sell him a cellphone. When he asked to see the instrument, accused 2 produced it for inspection. They wanted R500, but after some bargaining agreed to take R400. He gave them R150 as a deposit, the balance to be collected the D next day. The youths' two companions at the gate Mdunana was unable to identity.

[9] During the afternoon of Monday 18 January, accused 4 signed a written statement in which he answered questions the investigating officer put to him. He stated that at 08h00 on 17 January 1999 he was at Ramakonopi, Katlehong, and that Vusi, Bongani E and Bafana were with him. It was not contested that these allusions identified respectively accused 1, 3 and 2 by their first names. Accused 4 further stated that he and the other three went to 'the people who were working'. He stated that he 'stood and watched', and 'saw Vusi pulling the trigger'. To an inquiry about the firearm he F replied that it was a 'Lucini'. At the trial a ballistics expert identified the murder weapon as the 9mm Lorcin pistol found in accused 1's possession. In his statement accused 4 said that after the shooting he ran away alone to Ramakonopi. Finally, he stated that accused 1 had shot 'a white man' who was alone 'behind the steering wheel' of a 'white Ford Cortina'. G

[10] Goldstein J rejected a challenge to the constitutionality of s 3 of the Law of Evidence Amendment Act 45 of 1988 (the 1988 Act), [6] and applied its provisions to admit the hearsay evidence emanating from the statements and conduct of accused 3 and 4. From all the evidence, the trial Court inferred that the accused had acted in concert in carrying out the robbery and that each of them H was also guilty of the murder.

Hearsay evidence under the 1988 Act and the Constitution of the Republic of South Africa Act 108 of 1996

[11] Section 3 of the 1988 Act provides: I

'3 Hearsay evidence

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

Cameron JA

(a)

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

(b)

the person upon whose credibility the probative value of such 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; B

(iii)

the purpose for which the evidence is tendered;

(iv)

the probative value of the evidence;

(v)

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 C

(vii)

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

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

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

(3) Hearsay evidence may be provisionally admitted in terms of ss (1)(b) if the court is informed that the person upon whose credibility the probative value of such...