Tarr v The State

Ishaq Tarr was convicted of murdering Haremakale Selimo on the R57 road between Heilbron and Petrus Steyn in November 2010 and sentenced to 15 years imprisonment by the Free State Division of the High Court on 18 October 2013. He was tried alongside Lameck Mtagha (accused number 1), who was acquitted. Mtagha had given an extra-curial statement to a Magistrate in Koppies implicating Tarr in the shooting, but at trial denied making the statement. Despite the denial, the trial judge admitted the statement as hearsay evidence (Exhibit F) in accordance with S v Ndhlovu principles. The deceased's body was found with gunshot wounds to the head and chest. A bullet jacket found on the body was examined by a ballistics expert who concluded it was fired from a .357 revolver. A damaged .357 revolver was found in Tarr's safe, and ballistics testing confirmed the bullets were fired from that weapon. Tarr claimed the revolver had been damaged in 2009 and kept in his safe since then.

• Whether the admission of an extra-curial statement by a co-accused (Exhibit F) rendered the trial unfair in light of the subsequent Constitutional Court judgment in Mhlongo v S; Nkosi v S which held that extra-curial statements against co-accused are inadmissible
• Whether the remaining evidence, excluding the extra-curial statement, was sufficient to support the conviction for murder
• Whether the Constitutional Court should interfere with factual findings of lower courts
• Whether the applicant should have been warned about minimum sentencing legislation

1. Condonation is granted. 2. Leave to appeal is refused.

The binding principle established is that where an extra-curial statement by a co-accused has been wrongly admitted as evidence (contrary to the principle established in Nkosi that such statements are inadmissible), an appellate court must determine whether the remaining admissible evidence was sufficient to support the conviction beyond reasonable doubt. If the other evidence independently establishes guilt beyond reasonable doubt, the wrongful admission of the extra-curial statement will not render the conviction unsafe or the trial unfair. The Constitutional Court will not ordinarily interfere with factual findings of lower courts regarding the sufficiency of evidence, and where the Supreme Court of Appeal has dismissed an appeal (even without detailed reasons), the Constitutional Court will presume it properly reviewed the facts.

Froneman J made non-binding observations acknowledging the exceptional circumstances of the case: Tarr was convicted before the Nkosi judgment that would have changed the substance of his trial, and when he appealed after Nkosi was decided, he received no reasons for dismissal except that he had no reasonable prospects of success. The Court noted that Tarr "and potentially others, are in the dark as to why his reliance on Nkosi failed." The Court also noted it was not necessary to make a final pronouncement on whether it had jurisdiction in these circumstances, but assumed without deciding that it may have jurisdiction. The Court observed that it "could approach the matter in formalistic terms" given the factual nature of the question, but chose to also closely inspect the trial judgment to reach the same result. These observations suggest some judicial sympathy for the applicant's predicament while ultimately finding the law required dismissal of the appeal.

This case is significant in South African jurisprudence for clarifying the application of the Nkosi principle regarding inadmissibility of extra-curial statements by co-accused. It demonstrates that even where evidence was wrongly admitted at trial based on legal principles later overturned by the Constitutional Court, this will not automatically result in a successful appeal if other admissible evidence was sufficient to support the conviction beyond reasonable doubt. The judgment reinforces the Constitutional Court's reluctance to interfere with factual findings of lower courts, even in exceptional circumstances where a legal principle applied at trial was subsequently overruled. It also illustrates the Court's approach to reviewing sufficiency of evidence independent of improperly admitted evidence, establishing an important precedent for cases where trial irregularities occur but other evidence supports the conviction.