THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 369/11

Reportable

In the matter between:

NTHABELENI DANIEL RATHUMBU

Appellant

and

THE STATE
Respondent

Neutral citation:
Rathumbu v S (369/11) [2012] ZASCA 51 (30 March 2012)

Coram:

MTHIYANE DP, CLOETE, MHLANTLA, LEACH JJA

and NDITA AJA

Heard:

15 February 2012

Delivered:

30 March 2012

Summary:
Murder charge – admissibility and probative value of a statement
made by a witness to the police and later disavowed in evidence – s 3(1) of the
Law of Evidence Amendment Act 45 of 1988 - trial court correctly relied on the
disavowed statement.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from:
Limpopo High Court, Thohoyandou (Hetisani J sitting as a
court of first instance):
The appeal against conviction is dismissed.
______________________________________________________________

JUDGMENT
______________________________________________________________

NDITA AJA (MTHIYANE DP, CLOETE, MHLANTLA, and LEACH JJA
concurring)

[1] The appellant was convicted of murdering his wife in their homestead at
Rhavele village in the district of Tshilwavhusiki by the Limpopo High Court
sitting in Thohoyandou (Hetisani J) and sentenced to ten years’ imprisonment.
With the leave of this court, he now appeals 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 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 Constable David Mulaudzi was on duty at the
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 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 this request, Mulaudzi enquired from Ms Rathumbu who he
was. Johanna told him that he was the person who had stabbed his wife in the
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 Inspector Nndwambi. He testified that on his arrival at the
appellant’s home he asked for the owner of the house. Ms Rathumbu 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, who 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 of which were covered in blood;
notably two on the chest and another on the back.  According to the post
mortem report, the deceased sustained nine external wounds.

[5] Ms Rathumbu testified that on 16 June 2008, at 21h00, she received a
telephone call from the deceased requesting her to come to her house and to
bring with her the deceased’s five 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 with her back to the village. She denied seeing the appellant stabbing
the deceased with a knife. As her evidence was in stark 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 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 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 suspect enter inside the house.
I also enter inside and I saw the suspect pushing the deceased and stabbing her with
a sharp instrument. I then run away to the neighbours for assistance but there was no
responds. I then rushed to the police station and report the matter.

I come back with the police and find the deceased lying in the bedroom and in a pool
of blood. At that moment the suspect come back and I ask him the whereabouts of the
child, he told me that she is gone. The police then summoned the ambulance and she
was certified dead. The police arrested the suspect.’

[6] Inspector Thifhulufheli Sirunwa testified that he took the above
statement in the early hours of the morning, at 01h45, on 16 June 2008.
Johanna made the statement voluntarily. According to Inspector Sirunwa he
interviewed Ms Rathumbu in Tshivenda as they were both conversant in the
language but wrote it in English. After writing it, he read it back to her and she
appended her signature. Ms Rathumbu was extensively cross-examined on the
contents of her statement which was admitted into evidence. She persistently
denied its contents to the extent that it implicated the appellant in an attack
upon the deceased. The appellant did not give evidence in rebuttal of the
evidence tendered by the State.

[7] In convicting the appellant, the trial court made significant favourable
credibility findings in respect of witnesses for the State and rejected Ms
Rathumbu’s evidence disavowing the statement she had made to Sirunwa.
The statement was admitted in evidence after argument and the court a quo
relied on its contents.

[8] Counsel representing the appellant assailed the conviction on several
grounds. The main ground of appeal was that the trial court’s reliance on the
statement made by Ms Rathumbu to the police, which essentially is hearsay
evidence, constituted a material misdirection. Counsel representing the State
conceded that without the statement, the appeal should succeed.

[9] The reception of hearsay evidence is regulated by s 3(1) of the Law of
Evidence Amendment Act 45 of 1988. The section provides as follows:
‘(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted
as evidence in criminal 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 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)
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 taken into
account,
is of the opinion that such evidence should be admitted in the interests of justice.’
For reasons that follow I am of the view that the statement was correctly
admitted in terms of the section.

[10] Section 3 enjoins a court in determining whether it is in the interests of
justice to admit hearsay evidence, to have regard to every factor that should be
taken into account and, more specifically, to have regard to the factors
mentioned in s 3(1)(c). 1This court in S v Ndhlovu 2002 (6) SA 305 (SCA)
considered the provision of s 3 and at paragraph 31 held that:
‘The probative value of the hearsay evidence depends primarily on the credibility of
the declarant at the time of the declaration, and the central question is whether the
interests of justice require that the prior statement be admitted notwithstanding its later
disavowal or non-affirmation. And though the witness’s disavowal of or inability to
affirm the prior statement may bear on question of the statement’s reliability at the

1 See S v Shaik & others 2007 (1) SA 240 (SCA) para 170. See also S v Molimi 2008 (3) SA 608 (CC).

time it was made, it does not change the nature of the essential inquiry, which is
whether the interests of justice require its admission.’
In amplification, at paragraph 33, it was stated that:
‘The “probative” value’ of the accused’s statements to the police did not depend on
their credibility at the time of the trial – which the Court right found totally lacking – but
on their credibility at the time of their arrest. And the admissibility of those statements
depended not on the happenstance of whether they chose to testify but on the
interests of justice.’

[11] In the present appeal, following the approach set out in Ndhlovu, and
considering the totality of the circumstances under which the statement was
made, one is driven to the conclusion that the court below was correct in
admitting Ms Rathumbu’s statement. Substantial corroboration for the
truthfulness of the statement is to be found in other evidence tendered by the
State. I now deal with such corroborative evidence.
11.1 It is common cause that Ms Rathumbu proceeded to the appellant’s
home at approximately 21h00 on 16 June 2008. According to her
evidence as well as her statement, her visit to the deceased’s home was
prompted by a telephone call from the deceased requesting her to bring
her child to her.  In the statement, she stated that in that telephonic
conversation, the deceased told her that she was leaving her husband
and she needed her assistance in carrying her goods. Mulaudzi testified
that he observed that outside the house, about three paces from the
kitchen door, there was clothing packed inside a box ‘like one is moving
somewhere else.’ This provides corroboration for Ms Rathumbu’s
assertion in her statement that the deceased told her that she was
leaving her husband and that she needed help in carrying her goods.
Importantly, a photograph taken by the police depicts a pile of items
outside the house, which lends further credence and weight to the
statement.
11.2 Mulaudzi testified that when he enquired from Ms Rathumbu as to the
identity of the person who wanted to be taken to the police station, her
response was that he was the person who had stabbed his wife in the
room. This accords with what, according Mulaudzi, she had said at the

police station earlier. This spontaneous response by Ms Rathumbu at
the scene whilst the deceased’s body was still lying in the house affirms
the reliability of the original statement in preference to her later
disavowal. Furthermore, these words were uttered in the presence of
the appellant. The utterances did not attract any protestation from the
appellant. Nor was the evidence challenged in cross-examination.
11.3 Ms Rathumbu confirmed in her evidence that she had made a statement
to Inspector Sirunwa. But she said that the contents had been read back
to her in English (which Sirunwa denied). She also averred that she
knew nothing about of the contents of the statement that implicate the
appellant. That means, according to her, parts of the statement are a
complete fabrication. But the contents of the statement accord with what
she had told Inspector Tshivhase in the presence of Constable Mulaudzi
when she arrived at the police station. Shortly thereafter she repeated
the same version to Nndwambi. It is highly improbable that three
policemen, two of whom arrived at different intervals at the murder
scene, would conjure up all the details contained in the statement on the
same night of the murder of the deceased.  Similarly, it is not likely that
Inspector Sirunwa could have concocted the information contained in
the statement before leaving the scene of the murder.

[12] Applying the principles set out in the Ndhlovu case, all of the above
factors clearly demonstrate that when she made the statement Ms Rathumbu
was telling the truth. Her inconsistent evidence at the trial can be easily
explained on the basis that she wished to protect her brother. Her statement
therefore, was correctly admitted into evidence.

[13] Ms Rathumbu’s statement is not the only evidence to be considered in
determining the appellant’s guilt. The conduct of the appellant is also relevant.
Mulaudzi gave evidence to the effect that whilst the police were awaiting the
arrival of the paramedics, the appellant appeared. After entering the yard and
without saying anything to the police officers or people at the scene, he
climbed into what seemed to the witness to be a disused motor vehicle. I have
already said that the appellant did not give evidence. Neither did he deny Ms

Rathumbu’s assertion at the scene that he had stabbed the deceased. The
appellant did not enquire as to the reason for the presence of the police in his
own home or why members of the community were present. He made no
attempt to ascertain what the problem was and the inference is irresistible that
he already knew why all these people were there

[14] The court below considered the State witnesses to be credible and
rejected the appellant’s defence. In the present appeal, once Ms Rathumbu’s
statement was admitted, and in the face of all the evidence tendered by the
State, it called for an answer from the appellant. Thus, the court a quo correctly
considered the evidence tendered by the State to be such as to warrant a
response from the appellant. In S v Mapande2 it was reiterated that if a witness
has given evidence implicating an accused, the latter can seldom afford to
leave such testimony unanswered. The court is unlikely to reject credible
evidence which the accused has chosen not to deny. Thus in S v Chabalala3 it
was stated that:
‘The appellant was faced with direct and apparently credible evidence which made
him the prime mover in the offence. He was also called on to answer evidence of a
similar nature relating to the parade. Both attacks were those of a single witness and
capable of being neutralised by an honest rebuttal. There can be no acceptable
explanation for him not rising to the challenge. If he was innocent appellant must have
ascertained his own whereabouts and activities on 29 May and be able for his non-
participation. . . To have remained silent in the face of the evidence was damning. He
thereby left the prima facie case to speak for itself. One is bound to conclude that the
totality of the evidence taken in conjunction with his silence excluded any reasonable
doubt about his guilt.’

[15] In my view, the appellant’s culpability for the murder of the deceased
was established beyond any reasonable doubt. In the circumstances, the
appeal against conviction must fail.

[16] In the circumstances, the following order is made:
The appeal against conviction is dismissed.

2 [2010] ZASCA 119.
3 2003 (1) SACR 134 (SCA)  para 21 See also S v Boesak 2001 (1) SACR 912 (CC) para 24.

___________________

T NDITA

ACTING JUDGE OF APPEAL

APPEARANCES:
FOR APPELLANT:
L B Sigogo
Instructed by:
Mathobo, Rambau & Sigogo Attorneys,

Thohoyandou.

FOR RESPONDENT:
R J Makhera
Instructed by:
Director of Public Prosecutions, Thohoyandou;

Director of Public Prosecutions, Bloemfontein.

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 March 2011
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.
* * *
NTHABELENI DANIEL RATHUMBU V THE STATE

Today, the Supreme Court of Appeal (SCA) handed down a judgment, in the case of
Nthabeleni Daniel Rathumbu v The State, dismissing the appeal. The appellant had been
convicted of the murder of his wife, whose body was discovered at their common home
having sustained multiple stab wounds. He was sentenced to ten years imprisonment.

The order and judgment of the high court was attacked mainly on the ground that the trial
court in convicting the appellant, incorrectly relied on a sworn written statement wherein a
witness stated that she saw the appellant, her brother, stabbing the deceased, with a knife. The
statement was made to the police shortly after she had allegedly witnessed the incident. But
when the witness gave evidence, she disavowed the contents of the statement, only to the
extent to which she implicated the appellant in the murder of the deceased. That statement
constitutes essentially hearsay evidence.

This court found that the trial court correctly admitted the statement as the evidence
demonstrates that there is substantial corroboration for its truthfulness. In addition, in

applying the principles for the admission of hearsay evidence, there are factors that indicate
that when the witness made the statement she was telling the truth. The appellant was
therefore correctly convicted.