Rathumbu v S

The appellant was convicted of murdering his wife by the Limpopo High Court sitting in Thohoyandou and sentenced to 10 years' imprisonment. On 15 June 2008, shortly before midnight, the appellant's sister Ms Johanna Rathumbu arrived at the Tshilwavhusiku police station running and reported that she had found the appellant stabbing the deceased with a knife at their home in Rhavale village. Police attended the scene and found the deceased's body with multiple stab wounds lying in a pool of blood. The deceased was certified dead at the scene. The appellant, who smelt of alcohol, arrived at the scene and requested to be taken to the police station. Ms Johanna Rathumbu gave a written sworn statement to Inspector Sirunwa in the early hours of 16 June 2008 at 01h45, implicating the appellant in the stabbing. The statement described how she had gone to the deceased's home after receiving a telephone call, saw the appellant pushing and stabbing the deceased with a sharp instrument, and ran to the police station to report the matter. However, when Ms Rathumbu testified at trial, she disavowed the contents of her statement, denying that she had seen the appellant stab the deceased. She was declared a hostile witness under s 190(2) of the Criminal Procedure Act. The appellant did not testify at trial.

• Whether a written statement made by a witness to police and later disavowed in evidence should be admitted as hearsay evidence under s 3(1) of the Law of Evidence Amendment Act 45 of 1988
• Whether the probative value of a prior inconsistent statement depends on the credibility of the declarant at the time of making the statement or at the time of trial
• Whether the interests of justice required admission of the disavowed statement
• Whether the State's evidence established guilt beyond reasonable doubt sufficient to call for an answer from the accused

The appeal against conviction is dismissed.

The binding legal principles established are: (1) Under s 3(1) of the Law of Evidence Amendment Act 45 of 1988, hearsay evidence in the form of a prior statement later disavowed by a witness may be admitted if the interests of justice so require; (2) The probative value of such hearsay evidence depends primarily on the credibility of the declarant at the time of making the declaration, not on their credibility at trial; (3) In determining whether the interests of justice require admission, courts must consider the factors enumerated in s 3(1)(c), including the nature of the proceedings and evidence, its probative value, reasons for non-affirmation, any prejudice, and whether there is corroborative evidence supporting the reliability of the statement when made; (4) Where credible State evidence directly implicates an accused, the accused can seldom afford to leave such testimony unanswered, and failure to testify may lead to adverse inferences and allow the prima facie case to stand unrebutted.

The court observed that Ms Rathumbu's inconsistent evidence at trial could be easily explained on the basis that she wished to protect her brother. The court also made the observation that it would be 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, and similarly that Inspector Sirunwa could not have concocted the information before leaving the scene. These observations support the reliability finding but go beyond what was strictly necessary for the decision. The court also noted that a photograph depicting a pile of items outside the house lent further credence and weight to the statement, though this was additional corroboration rather than essential to the legal principle being applied.

This case is significant in South African law of evidence for clarifying the approach to admitting prior inconsistent statements under s 3(1) of the Law of Evidence Amendment Act 45 of 1988. It confirms and applies the principles established in S v Ndhlovu regarding hearsay evidence where a witness disavows their earlier statement. The judgment emphasizes that the probative value of such statements depends on the credibility of the declarant at the time the statement was made, not at the time of trial testimony. It provides guidance on the factors courts should consider in determining whether the interests of justice require admission of disavowed statements, including the presence of corroborative evidence, spontaneity of declarations, consistency across multiple witnesses, and the plausibility of fabrication. The case also reinforces the principle that an accused who fails to testify in the face of credible incriminating evidence risks having adverse inferences drawn against them.