S v Rathumbu

• Jurisdiction: South Africa
• Judge: Mthiyane DP, Cloete JA, Mhlantla JA, Leach JA and Ndita AJA
• Judgment Date: 30 March 2012
• Citation: 2012 (2) SACR 219 (SCA)
• Docket Number: 369/11 [2012] ZASCA 51
• Hearing Date: 15 February 2012
• Counsel: LB Sigogo for the appellant. RJ Makhera for the state.
• Court: Supreme Court of Appeal

Ndita AJA (Mthiyane DP, Cloete JA, Mhlantla JA and Leach JA E concurring):

[1] The appellant was convicted of murdering his wife in their homestead at Rhavele village in the district of Tshilwavhusiku by the Limpopo High Court sitting in Thohoyandou (Hetisani J) and sentenced to 10 years' imprisonment. With the leave of this court, he now appeals F against the conviction.

[2] The conviction was based primarily on a written, sworn statement made by the appellant's sister, Ms Johanna Rathumbu, to a policeman, that implicated the appellant in the murder of the deceased. Central to G this appeal is an enquiry into whether the statement, the contents of which were disavowed by her when she testified, should have been admitted in evidence.

[3] It is necessary to set out the facts in some detail. Shortly before midnight on 15 June 2008 Const David Mulaudzi was on duty at the H Tshilwavhusiku Police Station when Ms Rathumbu arrived, running. She reported that she found the appellant stabbing the deceased with a knife at their home. Acting on this information, Mulaudzi, Tshikudu, as well as Ms Rathumbu, drove to the appellant's home where Mulaudzi found the body of the deceased lying on the other side of an internal I door. She had sustained multiple stab wounds and was lying motionless in a pool of wet blood. The witness summoned paramedics who certified the deceased dead at the scene. Prior to the arrival of the paramedics, the appellant also arrived and sought permission from Mulaudzi to board the police vehicle and be taken to the police station. According to Mulaudzi, the appellant smelt of alcohol. When the appellant made J this request, Mulaudzi enquired from Ms Rathumbu who he was.

Ndita AJA (Mthiyane DP, Cloete JA, Mhlantla JA and Leach JA concurring)

Johanna told him that he was the person who had stabbed his wife in the A room. This explanation was given in the presence of the appellant.

[4] Amongst the police officers who attended the murder scene on the night in question was Insp Nndwambi. He testified that on his arrival at the appellant's home he asked for the owner of the house. Ms Rathumbu B offered to help and led him to the room where the body of the deceased lay. Nndwambi testified that he made enquiries about the murder and Johanna disclosed to him that the appellant, whom she identified as her brother, had stabbed the deceased, whom she identified as his wife. Nndwambi further testified that when he closely examined the body of the deceased, he observed that she had sustained multiple wounds, some C of which were covered in blood; notably two on the chest and another on the back. According to the postmortem report, the deceased sustained nine external wounds.

[5] Ms Rathumbu testified that on 15 June 2008, at 21h00, she received a telephone call from the deceased, requesting her to come to her house D and to bring with her the deceased's 5-year-old daughter. According to her, on her arrival at the deceased's home, she found her lying in a pool of blood. The gruesome discovery alarmed her and she ran to the police station. The police drove back to the village with her. She denied seeing the appellant stab the deceased with a knife. As her evidence was in stark E contrast to the facts she had disclosed in her statement to the police, the state successfully applied to have her declared a hostile witness in terms of s 190(2) of the Criminal Procedure Act 51 of 1977. It is necessary to place on record the witness's statement in its entirety. The relevant part reads:

'On 2008 – 06 – 15 at about 21:00, I was at my common when I received F a call from the deceased Khathutshelo Rathumbu that I must come to her place. I immediately went to the deceased's kraal. On my arrival I find the deceased who inform me that she is leaving her husband and further that I must help her to carry her goods.

I then ask the suspect one Daniel Rathumbu who is the deceased's G husband if there is any problem. The suspect told me ask the deceased as she is the one who called. I was at the lapa when the deceased and the...