THE CASE SUMMARY: Tarr v The State [2018] ZACC 35

Facts and background:

Mr Tarr, the applicant, was convicted of murder and is applying for leave to appeal his conviction and sentence handed down by Daffue J in the Free State High Court on 18 October 2013. Mr Tarr was sentenced to 15 years in prison for the November 2010 murder of Haremakale Selimo, which took place on the R57 between Heilbron and Petrus Steyn. He was tried alongside his former employee, Mr Lameck Mtagha, who was acquitted. Mr Mtagha’s testimony is central to claims that the trial was unfair due to alleged irregularities. Mr Mtagha had made an extra-curial statement (Exhibit F) implicating Mr Tarr but later denied ever making the statement during trial. Despite this, the trial judge admitted the statement as hearsay evidence and relied on it to convict Tarr, while acquitting Mtagha.

Issues:

The core legal issue was whether Mr Tarr’s conviction was unfair due to the admission of Exhibit F, considering the Constitutional Court’s later judgment in Nkosi, which restored the common-law rule that extra-curial statements by a co-accused are inadmissible against another accused? And the other issue revolves around the sufficiency of evidence; on whether there was enough evidence to sustain Mr. Tarr’s conviction, even without the use of hearsay evidence? Then, the last issue is on the factual findings; could the Constitutional Court interfere with other court’s factual findings, in this case the High Court’s factual findings, that are already upheld by the Supreme Court of Appeal (SCA) concerning reasonable prospects of success?

Procedural issue (condonation):

For late application to appeal, the court granted condonation.

Jurisdiction:

The court found that it had jurisdiction because this case is exceptional because Mr Tarr was convicted before the Nkosi judgment, which could have significantly impacted his trial. When he appealed after Nkosi was decided, the Supreme Court of Appeal dismissed his appeal without providing reasons, leaving him and, potentially others, unclear as to why the Nkosi ruling did not aid his case.

Leave to appeal:

Mr Tarr’s appeal depends, its prospects of success, largely on whether there was enough evidence to convict him without relying on Exhibit F?

Contentions raised by the applicant (Mr Tarr):

1. The inclusion of Exhibit F rendered his trial unfair and that without Exhibit F, he could have not been properly convicted. He argues for the exclusion of it.
2. He bases his other contention on his sentence, that whether or not he should have been warned about the application of minimum sentencing legislation.

Law applicable and discussion:

The S v Ndhlovu[1] case was used, which previously allowed the admission of hearsay statements under certain conditions. Additionally, Mhlongo v S and Nkosi v S[2] cases were used, which reinstated the common-law rule that such extra-curial statements are inadmissible against co-accused. Lastly, the ballistics evidence, which was supported by expert testimony linking a .357 revolver found in Mr Tarr’s safe to the bullets that killed the deceased.

Regarding the admission of Exhibit F, the court acknowledged that it should not have been admitted after the ruling in Nkosi. On the sufficiency of evidence to sustain the conviction, the court said the following in paragraph 14 and 15: On 8 November 2010, Haremakale Selimo’s body was found with gunshot wounds to the head and chest beside the R57 between Heilbron and Petrus Steyn. A bullet jacket recovered from the scene was linked by a ballistics expert to a .357 revolver later found in Mr Tarr’s safe. Despite its damaged state, the expert confirmed the revolver had fired the fatal shots. Mr Tarr claimed the gun had been damaged and stored in the safe since 2009.

The court found that the bullets came from Mr Tarr’s revolver, that no one else would have used it and returned it to his safe, and that the gun was indeed found in his possession. These facts, accepted by the judge, were sufficient to prove beyond reasonable doubt that Mr Tarr was the murderer, even without relying on the disputed extra-curial statement. The court concluded that Mr Tarr’s conviction could stand independently of the statement, based on strong physical evidence:

1. The murder weapon was proven to be a .357 revolver.
2. That revolver was found in Mr Tarr’s safe.
3. It was unlikely anyone else would have returned it to the safe after the murder.

On the last issue, regarding the Constitutional court’s interference with other court’s factual findings, it said that, in paragraph 12, the question is purely factual. Although the Supreme Court of Appeal provided no reasons, it was able to assess the facts, and it must be presumed that it did so. Based on the principle that higher courts do not usually interfere with factual findings of lower courts, it follows that the remaining evidence was sufficient to support Mr Tarr’s conviction.

Conclusion:

This led to the conclusion that the applicant was guilty beyond reasonable doubt, even without Exhibit F. Furthermore, the sentence of 15 years was deemed appropriate given the brutal nature of the killing. For these reasons above, the applicant has no prospects of success in his appeal. His application for leave to appeal must be dismissed. Therefore, the condonation was granted, leave of appeal dismissed and the sentence upheld.

The significance of this case:

The judgment of this case is not entirely crucial regarding the underlying story of this case. The extra-curial statements made by an accused against his co-accused has been an ongoing issue in South Africa, when considering hearsay evidence. The prejudice that arises when that happens is jaw dropping. The rejection of the Exhibit F by the Constitutional court illustrates how it upholds the rule of law. This case highlights the evidentiary errors, where the court admit extra-curial statements whereas there is independent evidence to guarantee guilt. This shows the reluctance of lower courts to scrutinise the substance of the case and reach a fair and reasonable conclusion, hoping that the Constitutional Court will carry that burden.

Another issue being the court’s reliance on certain evidence that posses a guilt on the accused and not give reasons. These issues pile cases before the Constitutional Court unnecessarily, even on cases that could have been decided finally by the lower courts extends to the Constitutional Court. This pressure result in the Constitutional court, being a single apex court, rushing judgements and failing to scrutinise important cases as S v Kapa[3]. In this case, the Constitutional Court’s failure to consider a fair and reasonable approach in section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, by considering all the factors cumulatively is evident. Was this caused by failure of lower courts to do their duty? Definitely a topic worth studying.

Purpose:

The aim of this summary is to highlight the legal analysis, on how the Constitutional court elaborated in the exclusion of the applicant’s demand, the exclusion of Exhibit F. And show potential problems how cases like this impact the hierarchal decisions.

Reference(S):

 Kapa v S 2023 (4) BCLR 370 (CC)

Mhlongo v S; Nkosi v S [2015] ZACC 19; 2015 (2) SACR 323 (CC); 2015 (8) BCLR 887 (CC)

S v Ndhlovu [2002] ZASCA 70; 2002 (2) SA 325 (SCA)

Tarr v The State [2018] ZACC 35

Law of Evidence Amendment Act 45 of 1988, section 3(1)(C)

[1] S v Ndhlovu [2002] ZASCA 70; 2002 (2) SA 325 (SCA)

[2] Mhlongo v S; Nkosi v S [2015] ZACC 19; 2015 (2) SACR 323 (CC); 2015 (8) BCLR 887 (CC)

[3]  Kapa v S 2023 (4) BCLR 370 (CC)