S v Makaleni and Others (CC08/2020) [2025] ZAWCHC 384 (15 August 2025)

Case Note

The State v Sinethemba Makaleni & Others (Case No CC08/2020) [2025] ZAWCHC ___ (14 & 15 August 2025)

Reportability

This judgment was marked “Reportable” by Slingers J because it makes notable pronouncements on (i) the application of the doctrine of common purpose in contemporary gang-related shootings in the Western Cape, (ii) the admissibility of extra-judicial admissions in the form of “warning statements” after the Constitutional Court’s decision in S v Kapa 2023 JDR 0762 (CC), and (iii) the correct approach to the authentication of disputed signatures on such statements.

The case is also significant for its detailed treatment of hearsay under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, the use of section 158 video-link testimony for vulnerable witnesses, and the interaction between the minimum-sentence regime in the Criminal Law Amendment Act 105 of 1997 and the evidential burden in cases involving multiple accused.

Because the judgment synthesises recent appellate authority, clarifies investigative duties when warning statements are commissioned, and provides guidance on the forensic examination of handwriting, it is of precedential value to both trial courts and practitioners.

Cases Cited

S v Kapa 2023 JDR 0762 (CC)
S v Van Wyk and Others 2002 (6) SA 305 (SCA)
S v Mohammed 2011 JDR 0580 (SCA)
S v Chabalala 2001 (2) SACR 97 (SCA)
S v Sauls and Others 1981 (3) SA 172 (A)
S v Rama 1966 (2) SA 395 (A)
S v Mgedezi and Others 1989 (1) SA 707 (A)
Govender v S (221/2022) [2023] ZASCA 70
S v Zimmerie en ’n Ander 1989 (3) SA 484 (C)

Legislation Cited

Criminal Procedure Act 51 of 1977
Criminal Law Amendment Act 105 of 1997
Law of Evidence Amendment Act 45 of 1988
Constitution of the Republic of South Africa, 1996 (sections 35 & 39 referenced implicitly)

Rules of Court Cited

No specific Uniform or High Court Rules were discussed; procedural rulings were taken under the Criminal Procedure Act (sections 158, 174, 212 & 220).

HEADNOTE

Summary

Four accused were tried in the Western Cape High Court for the murder of tavern owner David Mbazwana, the attempted murder of his bouncer Yandisa Sitishi, robbery with aggravating circumstances, and unlawful possession of a semi-automatic firearm and ammunition.

After an extensive trial – including two “trials-within-a-trial” on the admissibility of warning statements, multiple vulnerable-witness applications, and a section 174 discharge in favour of a fifth accused – Slingers J convicted accused 1 (Makaleni), accused 3 (Cosa) and accused 4 (Ndzendze) on the murder, attempted-murder and weapons counts, but acquitted all accused on the robbery charge and acquitted accused 2 (Mabejane) entirely.

The court found that, although eye-witness testimony contained inconsistencies, it was corroborated by admissions in the warning statements and by forensic evidence of firearm discharge. Applying the doctrine of common purpose, the judge held that all three remaining accused shared the requisite mens rea and actively associated in the joint enterprise, rendering each liable for the fatal shooting.

Key Issues

Whether the impugned warning statements were freely and voluntarily made and could be admitted as admissions under section 219A of the CPA.

Whether disputed signatures on accused 4’s statement were authentic.

The weight to be accorded to hearsay from a deceased witness under section 3(1)(c) of the Law of Evidence Amendment Act.

Whether the doctrine of common purpose could be invoked on the combined evidence of eye-witnesses, admissions and circumstantial facts.

Whether a section 174 discharge should be granted to accused 5.

Held

Warning statements of accused 1-3 were conditionally admitted but the court used them only where corroborated. Accused 4’s statement, supported by expert handwriting testimony, was found to bear his genuine signature and to have been made voluntarily.

Hearsay from the deceased passenger Gosa was admitted in the interests of justice but treated with caution; uncorroborated portions were afforded no weight.

Accused 5 was discharged at the close of the State’s case for want of prima facie evidence.

Applying common purpose, accused 1, 3 and 4 were each convicted of murder, attempted murder, and unlawful possession of the firearm and ammunition. All accused were acquitted on the robbery count; accused 2 was acquitted on all charges.

THE FACTS

Whitehouse Tavern in Mkhaza, Khayelitsha, was a busy Sunday drinking venue. Shortly after 14h30 on 19 May 2019 a group arrived, guided by a local woman. Two men entered ostensibly to buy liquor; moments later shots were fired. Owner David Mbazwana was fatally wounded and his bouncer, Yandisa Sitishi, suffered four gunshot injuries but survived.

Several patrons and staff – notably witnesses A, B and C – saw two gunmen fleeing. Although their recollections diverged on detail, each identified accused 1 and accused 3 as shooters, mentioning a third participant who collected a firearm from the fallen men. Police ballistics later linked spent cartridges on scene to a CZ 75 pistol recovered four days later when accused 3 and accused 2 were arrested at Site B.

A parallel arrest operation detained accused 1 in W-Section an hour later, recovering mixed-calibre ammunition and mandrax tablets. Accused 4, arrested months later, made a warning statement describing the outing to Whitehouse Tavern and the seizure of a victim’s firearm.

THE ISSUES

First, the court had to decide whether the warning statements of all four accused were admissible as voluntary admissions, and whether a challenged signature on accused 4’s statement was genuine.

Secondly, it had to determine whether hearsay evidence from the now-deceased Gosa could be admitted, and if so, what weight it carried.

Thirdly, the trier of fact had to evaluate discrepancies in eye-witness testimony, test the alibi defences presented late by accused 1 and 3, and decide whether the State had proved, beyond reasonable doubt, that any or all accused were perpetrators or part of a common design.

Finally, it had to rule on accused 5’s application for a discharge at the close of the State case.

ANALYSIS

Slingers J embarked on a detailed inquiry into the voluntariness of the warning statements. The judge was critical of Investigating Officer Hlatshaneni’s poor understanding of commissioning requirements and of the absence of truly independent commissioners of oaths. Nonetheless, after two protracted trials-within-a-trial, the court found no coercion sufficient to exclude the statements, though it resolved to use them cautiously and only as corroboration.

Regarding accused 4’s disputed signature, the court preferred the testimony of SAPS handwriting expert Captain Liebenberg, who applied the ACE methodology and found a high probability that the signature was authentic, over the peer-review critique advanced by defence expert Palm, who ultimately made no definite finding. The court also accepted Capt Vinjwa’s direct evidence that he saw accused 4 sign.

On hearsay, the court weighed the Kapa constitutional factors. Gosa’s statement was admitted because he was dead, some contents were corroborated, and exclusion would deprive the court of relevant contextual evidence. Yet because cross-examination was impossible, the judge accorded the statement minimal weight where uncorroborated.

The court found witnesses B and C credible in their identification of accused 1 and 3. Although inconsistencies existed—especially between A, B and C on who shot whom—these were attributed to stress and the chaotic scene. The central fact that both accused wielded firearms and fired at the victims was consistent across testimonies, ballistic exhibits and aspects of their own warnings statements.

The belated alibi versions offered by accused 1 and 3 were undermined by their failure to raise them earlier, by internal contradictions, and by corroborated presence at the scene. Applying Mgedezi and later appellate guidance, Slingers J held that accused 1, 3 and 4 were mutually present, armed, and acting in furtherance of a shared intent to shoot the deceased and his bouncer. The seizure of a firearm by accused 4 after the shooting manifested active association.

Given the evidential lacuna against accused 5, notably the absence of reliable identification or corroborated admissions, the court granted a section 174 discharge.

REMEDY

The court convicted accused 1, 3 and 4 of murder (count 1), attempted murder (count 2), unlawful possession of a semi-automatic firearm, and unlawful possession of ammunition. It acquitted them on the robbery charge (count 3) due to insufficient proof of the taking of the firearm with violent intent. Accused 2 was acquitted on all counts.

(Sentencing was deferred; the judgment excerpt records only the convictions.)

LEGAL PRINCIPLES

The decision confirms that warning statements which are admissions (not confessions) remain admissible under section 219A of the CPA if voluntariness is proved; however, commissioning irregularities will prompt a cautious approach and reliance only where corroboration exists.

It re-affirms the Mgedezi requirements for common purpose by active association and illustrates their application to tavern-shooting fact patterns.

The court clarified the threshold for admitting hearsay under section 3(1)(c) of the Law of Evidence Amendment Act: even where admitted, uncorroborated hearsay must be treated with circumspection.

On forensic document examination, the judgment endorses the ACE methodology and underscores that expert conclusions are evaluative, not determinative; direct oral evidence of signature remains powerful corroboration.

Finally, it reiterates that a section 174 discharge is appropriate where, after the State closes its case, no reasonable court could convict—even when there is theoretical potential for later implication by co-accused.