THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
Case number :  53/04
In the matter between :

TSINYANE SOLOMON MAMUSHE

APPELLANT

and

THE STATE

RESPONDENT

CORAM :
BRAND, VAN HEERDEN JJA et THERON AJA
HEARD :
8 MAY 2007
DELIVERED :
18 MAY 2007

Summary:
Extra-curial statements by state witness – not admissible in
evidence against accused person under s 3(1)(b) of Act 45 of
1988 unless confirmed by maker in court – admission of
statements 'in the interest of justice' in terms of s 3(1)(c) of the
Act considered but refused  – reliability of identification by single
remaining witness considered.

Neutral citation:
This judgment may be referred to as Mamushe v The
State [2007] SCA 58 (RSA)

JUDGMENT
_____________________________________________________

BRAND JA/
BRAND JA:

[1] The appellant stood trial in the Vereeniging Circuit Court, before
Whiting AJ and two assessors, on charges of murder, robbery, unlawful
possession of a firearm and unlawful possession of ammunition. All four
charges arose from an incident that occurred on 31 January 1997 in Evaton
near Vanderbijlpark when Mr Kapok Joseph Mhala ('the deceased') was shot
and killed in the course of an armed robbery. Despite his plea of not guilty, the
appellant was convicted on all four charges and then sentenced as follows: on
the count of murder, to life imprisonment; on the count of robbery, to 15 years
imprisonment; and on the counts of unlawful possession of a firearm and
ammunition – taken together for purposes of sentence – to 3 years
imprisonment. His appeal against these convictions and sentences is with the
leave of the court a quo.

[2] It was not in dispute that the deceased was fatally shot or that he was
robbed of virtually all the money in his possession at the time, though the
exact amount could not be established. The circumstances under which it
happened were also largely common cause. The issue was whether the
evildoer was the appellant, as alleged by the state. In essence the state's
case relied on the eyewitness testimony of Mr Kgoto Albert Ramakgula as
corroborated by the extra-curial statements of Ms Bessie Martin from which
she disassociated herself at the trial.

[3] Ramakgula was the deceased's assistant in a truck that delivered milk
on behalf of Clover Dairies to tuck shops in the Evaton area. The deceased
was the driver, who also took control of the money received from customers,
while Ramakgula was responsible for the physical deliveries. On 31 January
1997 they started their rounds at about 4 am. They made various deliveries
and on each occasion Ramakgula handed over the money he collected to the
deceased. Eventually they arrived at the tuck shop of Ms Martin where the
fatal incident occurred. This was about 10:30 in the morning. They entered

her premises through a gate and stopped near the tuck shop about 20 meters
further on.
[4] According to Ramakgula he made his delivery of milk in the shop to
one of Ms Martin's children from whom he received an amount of R60. On his
way back to the truck, he saw two men approaching from the direction of the
gate, directly behind the vehicle. There were no other persons in the vicinity.
Ramakgula got into the truck and was about to hand over the money he had
just received to the deceased, who had by that time already started the
vehicle and engaged the reverse gear. The two men Ramakgula had seen
approaching earlier then appeared one on each side of the vehicle. The one
on the driver's side had a handgun in his hand. Through the open driver's
window he fired a shot into the right side of the deceased's chest. A second
shot was fired, but at that stage Ramakgula was already jumping out of the
vehicle. As the vehicle was moving at the time when Ramakgula jumped out,
he was almost run over. The vehicle continued to move backwards until it
crashed into a stone border near the gate to the premises.

[5] The person who had fired went to the vehicle. He pushed the driver
aside and searched him. While this was happening the other person did
nothing. He just stood in front of the vehicle. After that the man with the
firearm walked away from the scene and the other one followed him until they
both disappeared around a corner. Ramakgula drove the vehicle to the police
station where he made a statement. The deceased appeared to be already
dead. They searched him but found no money on him except for R20 in his
back pocket. Although Ramakgula did not know the exact amount he handed
to the deceased, he could say that it was substantially more than R20.

[6] Ramakgula identified the man with the firearm as the appellant.
Though he did not know his name, he said, he had seen him about four or five
times over a period of about four weeks immediately prior to the incident at
various tuck shops in the vicinity. The other man, who was with the accused,
he had not seen before. He also testified that, after he had been to the police
station, he returned to the scene. There he heard Ms Martin giving the name
of the assailant to the police. He was unable, however, to remember what that

name was. During cross-examination it was put to Ramakgula that the
appellant would admit that he was in the vicinity when the deceased was shot,
but would contend that it was one Armstrong Songela and not he who was the
assailant. Ramakgula nevertheless persisted in his version that it was the
appellant who had shot the deceased.

[7] The other pillar of support for the state's case consisted of three extra-
curial statements allegedly made by Ms Martin to the investigating officer,
Detective Sergeant Khahliso Moolman, between May and October 1997.
According to the first statement, she was in her garden near the tuck shop on
31 January 1997 when she heard two shots. Immediately thereafter, she said,
a man ran past her with a firearm in his hand. She identified the man as the
appellant who was well-known to her. She called out asking what he was
doing, but he did not answer. He just kept on running. In the second and third
statements she again confirmed that the man she saw with the handgun was
the appellant, but added that she would not be willing to identify him at an
identification parade or to testify against him in court, because she feared for
her own safety as well as for the safety of her business.

[8] At the trial Ms Martin was called as a witness by the state. She
confirmed that she was the owner of the premises where the deceased had
been shot and that she heard two shots being fired that day. She denied,
however, that she saw the appellant, or for that matter, any other person with
a gun. In fact, she testified, she never even saw the appellant that day. She
also denied that she conveyed the contents of any of the three statements to
Sergeant Moolman. She admitted that she signed these statements but, she
said, she did so because Sergeant Moolman intimidated her and threatened
to arrest her if she refused to sign. What in fact happened after she heard the
shots, she testified, was that she went into her house and prayed. After that,
she saw the deceased's truck where it had crashed into the stone border and
many people gathering around it. When the people had left she went to the
vehicle where she found the deceased who was already dead.

[9] The state sought leave to hand in Ms Martin's three prior statements
under s 190(2) of the Criminal Procedure Act, 51 of 1997 in order to have her
declared a hostile witness. The trial court decided, however, that since Ms
Martin contended that the statements were made under duress, a trial-within-
a-trial should first be held to establish whether they were freely and voluntarily
made.

[10] During the trial-within-a-trial Sergeant Moolman was called to testify.
Ms Martin also gave further evidence. She persisted in her allegations of
duress which were denied by Sergeant Moolman. At the end of these
interlocutory proceedings, the trial court held that the statements had been
freely and voluntarily made and that they correctly reflected what Ms Martin
had told Sergeant Moolman at the relevant times. Thereupon the contents of
these statements were admitted against the appellant.

[11] On appeal, the court a quo was criticised, on behalf of the appellant, for
insisting on a trial-within-a-trial procedure in order to determine whether extra-
curial statements by a state witness were freely and voluntarily made. Though
there appears to be some justification for the criticism, nothing turns on it in
my view and I thus refrain from further comment on the procedure adopted by
the trial court in this regard.

[12] The appellant testified in his own defence. The contents of his
evidence was essentially as foreshadowed in what had been put to
Ramakgula. Though he admitted that he was in the vicinity of Ms Martin's tuck
shop when the incident occurred, the shots were fired, on his version, by
Armstrong Songela, who had died of unnatural causes between the date of
the incident and the trial.  He was cross-examined on a so-called warning
statement he made to Sergeant Moolman at the time of his arrest in May
1997. According to the statement his version was that he was not at the scene
of the incident and that he had only heard of the attack on the deceased three
days later. The appellant denied, however, that he had ever made this
statement. Apart from finding the appellant an unreliable witness, the court a
quo concluded that the state's case was in fact strengthened by his false

version of how the killing occurred. If Songela was indeed involved, so the
court reasoned, the appellant would have made a statement implicating him
the first time he was confronted by the police, which he did not do.
[13] It is plain, in my view, that the statements by Ms Martin were of vital
importance to the state's case. If these statements were rightly admitted, it
seems almost inevitable that the conviction must be upheld. The first pivotal
question is thus – were the contents of the statements rightly admitted as
evidence against the appellant? The position with regard to an inconsistent
statement is normally that it is admissible only to discredit its maker and not to
prove the truth of its contents (see eg Hoskisson v R 1906 TS 502 at 504; R v
Deale 1929 TPD 259 at 260; Johann Kriegler & Albert Kruger Hiemstra, Suid-
Afrikaanse Strafproses 6 ed (2002) at 484). The reason is that, even where
the statement is admitted to discredit its maker, its contents remain hearsay
evidence. The court a quo appreciated this, but nevertheless found the
contents of the statement admissible under the exception provided for by
s 3(1)(b) of the Law of Evidence Amendment Act 45 of 1988 ('the Act').
Section 3(1) of the Act confirms the common law rule that hearsay is generally
not admissible in evidence. It then creates certain categories of exception.
One of these is in s 3(1)(b) which lifts the ban if 'the person upon whose
credibility the probative value of such evidence depends, himself testifies at
such proceedings'. On the basis of this section the court a quo held that:
'Although the statements are hearsay they are admissible in terms of s 3(1)(b) . . . in view of
the fact that Ms Martin herself testified at the proceedings.'

[14] From this statement it is apparent that, relying on a literal interpretation
of s 3(1)(b), the court a quo came to the conclusion that an extra-curial
hearsay statement becomes admissible as long as the maker testifies at the
hearing and that it matters not whether the maker then confirms or disavows
the statement in evidence. This conclusion is, however, in direct conflict with
the later decision of this court in S v Ndhlovu 2002 (2) SACR 325 (SCA),
which held that s 3(1)(b) only renders and extra-curial statement admissible if
it is confirmed by the maker in evidence during the court proceedings. The
reason for this decision appears, inter alia, from the following explanation by
Cameron JA (para 30 at 342e-g):

'If the witness, when called, disavows the statement, or fails to recall making it, or is unable to
affirm some detailed aspect of it . . ., the situation under the Act is not in substance materially
different from when the declarant does not testify at all. The principal reason for not allowing
hearsay evidence is that it may be untrustworthy since it cannot be subjected to cross-
examination. When the hearsay declarant is called as a witness, but does not confirm the
statement, or repudiates it, the test of cross-examination is similarly absent, and similar
safeguards are required.'

[15] The court a quo thus erred in admitting the statements in under
s 3(1)(b). It follows that the only possible basis upon which their contents
could be admitted against the appellant would be by virtue of the provisions of
s 3(1)(c). Under this section hearsay becomes admissible if the court, having
regard to the considerations listed in this sub-section, forms the opinion that it
should be admitted 'in the interest of justice'. Because of the view the court a
quo held with regard to the meaning of s 3(1)(b), it never considered
exercising its discretion under s 3(1)(c). On appeal this court has, however,
been asked by the state to admit Ms Martin's statements in terms of the last-
mentioned sub-section.

[16] I turn to the question whether we should accede to the state's request.
What has by now become axiomatic, is that our courts apply considerable
restraint in allowing (or relying on) hearsay evidence against an accused
person in criminal proceedings. The reasons for this restraint have become
equally well settled. They flow mainly from the nature of the onus that rests on
the state and from the rights of an accused person underwritten by the
Constitution (see eg S v Ramavhale 1996 (1) SACR 639 (A) at 647i-648b; S v
Ndhlovu (supra) para 16 at 337a-c). An important consideration in deciding
whether the court should overcome its general reluctance to admit the
hearsay evidence under consideration in a particular case, relates to the role
that the evidence will play. It stands to reason that a hearsay statement which
will only serve to complete a 'mosaic pattern' will be more readily admitted
than one which is destined to become a vital part of the state's case (see eg
S v Ramavhale (supra) at 649d-e). To my mind it is clear that Ms Martin's
statements will fall into the latter category.

[17] Another consideration is the reliability of the hearsay evidence. The
court a quo's reasoning in this regard appears from the following statement by
Whiting AJ:
'The effect is thus that the court has before it two conflicting versions given by Ms Martin of
what she saw on the occasion of the shooting. Often the fact that a witness has given two
conflicting versions of an event will lead a court to conclude that neither version is reliable.
But this will not always be so. Much depends on the facts and circumstances of the particular
case.
At present it is a well known fact of life in South Africa that witnesses, . . . are often very
reluctant to give evidence for fear of reprisals against them if they should do so. That Ms
Martin was indeed affected in this way in the present case is borne out by what she said in
her second and third statements to Sergeant Moolman. We can think of no reason why Ms
Martin would falsely implicate the accused.  In view of the considerations I have mentioned, it
would appear to be very much against her private interest to do so. It seems very much more
likely, particularly in view of her second and third police statements, that she was too
frightened to tell the truth when she gave evidence before us.'

[18] I am prepared to accept, without deciding, that, despite her denials, Ms
Martin probably did make the statements to Sergeant Moolman and that she
was probably telling the truth when she did so. Untruthfulness, however, is not
the only danger. The other danger is that she might have been mistaken.
Particularly with reference to identification evidence, the danger of mistake
has been underscored by our courts again and again (see eg S v Mthetwa
1972 (3) SA 766 (A) at 768; S v Charzen 2006 (2) SACR 143 (SCA) para 11
at 147i-j). By its very nature, hearsay evidence cannot be tested in cross-
examination. The possibility of mistake can therefore not be excluded in this
way. The result is, in my view, that hearsay evidence of identification can only
be admitted if the possibility of mistake can be safely excluded in some other
way, eg with reference to objectively established facts.

[19] In this matter there is no way to test the accuracy of the observations
Ms Martin deposed to in her statements. On the contrary, according to her
testimony in court it would, as a result of physical obstructions impeding her
view, be virtually impossible for her to make those observations from her
garden where she stood. It is true, of course, that at that stage she was trying
her utmost to distance herself from the contents of the statements.

Nonetheless, her evidence about the physical obstructions remained
uncontested. In the circumstances the identification evidence deposed to by
Ms Martin in her statements appears to be of the most unreliable kind. For
these reasons we should not, in my view, accede to the state's request to
admit these hearsay statements under the provisions of s 3(1)((c) of the Act.

[20] The next question is whether the evidence of Ramakgula, on its own, is
sufficient to justify the appellant's conviction. The court a quo found
Ramakgula an honest witness. I have no reason to doubt the correctness of
that finding. However, the danger that again looms large, is the possibility of
mistaken identification. The court a quo found reassurance in the fact that the
witness had sufficient opportunity to make his observations in that he was
looking directly at the assailant when he fired the shot. This reassuring factor
is, however, diluted to a material extent by the contents of two statements
which Ramakgula made to the police. According to these statements he told
the police that both the assailant and his companion were armed with firearms
and that the companion was pointing a firearm at him when the killer shot the
deceased. Although Ramakgula distanced himself from these statements in
evidence, it is difficult to conceive why the police would fabricate this version.
It almost goes without saying that if this version is to be accepted,
Ramakgula's opportunity of observing the killer would be materially reduced.

[21] The court a quo also found reassurance in the fact that Ramakgula had
seen the appellant on about four occasions prior to the incident. The problem
is, however, that on Ramakgula's own version he had heard the assailant
being identified by Ms Martin shortly after the incident. Although he could not
remember the name that Ms Martin mentioned, it appears from the context
that she most probably mentioned the name of the appellant. Apart from the
inherent danger of suggestion, any mistaken identification by Ms Martin would
thus have poisoned the evidence of Ramakgula as well. Additional support for
the notion that Ramakgula's identification of the appellant may be the result of
suggestion, seems to derive from his own evidence that Moolman provided
him with some description of the appellant long before he testified in court.
Confidence in Ramakgula as a witness is further diminished by the fact that,

in a statement to Moolman, Ramakgula referred to the assailant and his
companion as 'two black men unknown to me'. In cross-examination
Ramakgula ascribed this to a misunderstanding between him and Moolman.
But according to Moolman's testimony, Ramakgula was indeed unable to give
a description of the assailant 'because of the fear he was under'. As to how
Ramakgula was then able to identify and describe the appellant at a later
stage, Moolman volunteered the following solution:
'[M]aybe that which he said in court is based on what he gathered from Evaton . . . on that
which Ms Bessie [Martin] told him.'

[22] In the light of all these difficulties, it is in my view self-evident that the
appellant cannot be convicted solely on the basis of Ramakgula's testimony.
Lastly there is the appellant's mendacity as a witness. Though false denials by
an accused person will often strengthen the state's case, it cannot serve as
the sole basis for conviction. It too often happens that innocent persons
cannot resist the temptation of putting as great a distance as possible
between themselves and criminal offences, even by deceitful means.

[23] For these reasons:
The appeal is upheld and the convictions and sentences are set aside.

.......................
F D J BRAND
JUDGE OF APPEAL
Concur:

VAN HEERDEN JA
THERON AJA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Case number:  53/04
In the matter between

TSINYANE SOLOMON MAMUSHE

APPELLANT

and

THE STATE

RESPONDENT

From:
The Registrar, Supreme Court of Appeal
Date:
2007-05-17
Status:
Immediate

Mr Tsinyane Mamushe was convicted in the Vereeniging Circuit Court
on several charges, including murder and armed robbery and then
sentenced, effectively, to life imprisonment.  Today the SCA upheld his
appeal against that judgment. In the result his convictions and the
sentences imposed by the Trial Court were set aside.

The matter arose from an incident that occurred on 31 January 1997 in
Evaton near Vanderbijlpark when Mr Kapok Mhala was shot and killed in
the course of an armed robbery.  It was not in dispute that Mr Mhala was

fatally shot and that he was robbed of virtually all the money in his
possession at the time. The circumstances under which it happened
were also largely common cause.  The issue was whether the evildoer
was the appellant, as alleged by the state.  In essence the state's case
relied on the eyewitness testimony of Mr Kgoto Ramakgula as
corroborated by the police statements of Ms Bessie Martin.

In her statements to the police Ms Martin identified the appellant as the
person who shot the deceased. Though she was called as a witness at
the trial, she denied that she ever made those statements. Despite this
denial the Trial Court held that she did in fact make the statements and
admitted the contents thereof against the appellant.

The Supreme Court of Appeal found, however, that, although the
statements were admissible to discredit Ms Martin, their contents
remained hearsay evidence and should not have been admitted against
the appellant.

As to the only remaining evidence against the appellant, being that of
the eyewitness, Mr Ramakgula, the SCA held that there were a number
of indications that this witness might have been mistaken in identifying

the appellant and a conviction solely on the basis of Mr Ramakgula's
testimony, could therefore not be justified.