The applicant, Ishaq Tarr, was convicted in the Free State Division of the High Court of the murder of Haremakale Selimo and sentenced to 15 years’ imprisonment. The murder occurred in November 2010 on the R57 between Heilbron and Petrus Steyn. Tarr was tried together with a former employee, Mr Lameck Mtagha, who was acquitted. During the trial, an extra-curial statement allegedly made by Mtagha to a magistrate was admitted as hearsay evidence implicating Tarr, despite Mtagha denying ever making the statement. After Tarr’s conviction, the Constitutional Court in Nkosi restored the common-law rule that extra-curial statements by a co-accused are inadmissible. Tarr sought leave to appeal, arguing that the admission of the statement rendered his trial unfair and that, without it, the remaining evidence was insufficient to sustain his conviction.
Condonation was granted, but leave to appeal against both conviction and sentence was refused.
The case clarifies the post-Nkosi position by confirming that, even where a co-accused’s extra-curial statement was wrongly admitted, a conviction will stand if the remaining admissible evidence independently establishes guilt beyond reasonable doubt. It also reaffirms the Constitutional Court’s reluctance to interfere with factual findings of lower courts in criminal matters.