IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION , PIETERMARITZBURG
Appeal Court Case no : AR362/22
High Court Case no : CCD12/2017
In the matter between :
SIPHAMANDLA INNOCENT SANGWENI FIRST APPELLANT
[accused 1 in the court a quo]
PHILANI XOLANI KHAMBULE SECOND APPELLANT
[accused 2 in the court a quo]
and
THE STATE RESPONDENT
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from : the KwaZulu -Natal Local Division of the High Court, Durban
(Nkosi AJ sitting as court of first instance):
1. The appellants appeal against their convictions and sentences succeed .
2. The convictions and sentences of the first and second appellants are set
aside.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
2
Mathenjwa J (Steyn J and Tucker AJ concurring):
Introduction
[1] The appellants were convicted in this Division on one count of murder, read
with s 51(1) of the Criminal Law Amendment Act 105 of 1997 (the Act), one count of
attempted murder and two counts of robbery with aggravating circumstances read
with s 51 (2) of the Act . The trial court took the two counts of robbery with aggravating
circumstances together for purposes of sentence. In respect of the count of murder
the appellants were sentenced to life imprisonment , in respect of the count of
attempted murder they were sentenced to eight years imprisonment and in respect
of the two counts of robbery with aggravating circumstances they were sentenced to
15 years imprisonment. All sentences were ordered to run concurrently with the
sentence of life imprisonment. The appellants appeal against their convictions and
sentences with leave that was granted by the trial court.
The grounds for appeal
[2] In summary , the grounds of appeal raised by the appellants were that:
(a) The court a quo erred in finding that the statements made by both appellants
to Colonel Sibiya and Captain G ounden respectively were freely and voluntarily
made .
(b) In particular the court a quo ought to have found that the statement made to
Captain Gounden was inadmissible on the grounds that Captain Gounden was
working at the same police station with the investigating officer and had previously
participated by conducting an identification parade in the same case.
(c) The court a quo erred in taking judicial notice of the signature in the first
appellant’s statement and drew a conclusion that the signature on the statement was
that of the appellant
(d) In assessing the evidence of Mr Khumalo , who was an accomplice , the court
a quo erred in not applying the cautionary rule.
(e) The court a quo erred in finding that the evidence of Mr Khumalo was further
corroborated by the evidence of Mrs Naidoo, as well as by the statements made by
the appellants.
(f) The court a quo erred in finding that the dock identification of the first
appellant by Mrs Naidoo was credible and reliable.
3
Trial in the court a quo
[3] During the trial in the court a quo both appellants contended that they were
not advised of their constitutional rights from the moment of their arrest until they
allegedly made statements to the commissioned officers of the South African Police
Services. They alleged that the statements were not free ly and voluntarily made, and
that they were threatened to make such statements. The first appellant alleged that
he was given a document and told where to sign on it by Colonel Sibiya who took the
statement from him. He in fact disputed that he made any statement to Colonel
Sibiya and further denied that the signature on the statement was his. The second
appellant alleged that he was threatened by the investigating officer , Sergeant
Ngcobo , to make the statement in order to get bail and furthermore, Sergeant
Ngcobo told him what to state in the statement.
[4] A substantial part of the State’s evidence was given by Mr Phakamani
Nkosikhona Nsele , who testified that he was present at Ntshaweni area when the
appellants and other persons planned to commit the offences they were convicted of
at Gledhow. He remained behind and did not go with th em when they left to commit
the offences . Mrs Naidoo was the complainant in the attempted murder charge and
an eye witness to the charge of murder of the deceased. She testified that the first
and second appellants entered into the liquor shop and one of them shot her and the
deceased with a fire arm. She later attended an identification parade where she
identified a wrong person whom she mistook for the first appellant. Furthermore, it is
common cause that she failed to identify the second appellant who was present at
the identification parade. In court she identified the first appellant in the dock as one
of the assailants, but again failed to identify the second appellant who was also in
the dock.
[5] Mr Luck y Thulani Khumalo was an accomplice who testified in terms of s 204
of the Criminal Procedure Act 51 of 1977 (CPA ). Mr Khumalo testified that he was
recruited by Mr Nsele to join the appellants and other persons who were waiting by
the roadside at Ntshaweni area. He was further invited by the first appellant to board
a vehicle which they used to commit the offences. T he appellants and other persons
4
did not tell him where they were going to nor what they were going to do. Upon their
arrival at Gledhow the second appellant ordered the first appellant and another
person to enter in to the liquor store while he and the second appellant entered into
the minimarket. At that stage he noted that the first and second appellants were
carrying firearms. He then realized that they were about to commit a robbery, but the
second appellant told him not to ask any question s. The second appellant pointed a
firearm at t he owner of the minimarket. He and the second appellant stole money
and cigarettes from the minimarket which they later shared among themselves.
[6] The State advised the court of its intention to use the statements made by the
appellants to the commissioned officers as evidence against them . The appellants
contended that these statements were inadmissible . Subsequently , a trial within a
trial was held to determine the admissibility of the statements . At the end of the trial
within a trial the court a quo found that the statements had been freely and
voluntarily made by the appellants. The main trial proceeded and at the end of the
main trial the court a quo found that the State had proved its case against the
appellants beyond a reasonable doubt. However, the court a quo did not make a
finding on whether the appellants were advised of their constitutional rights . The first
appellant was convicted based on the evidence of Mrs Naidoo, Mr Khumalo and the
statement he made to the commissioned officer, while the second appellant was
convicted solely on the basis of the evidence of Mr Khumalo and the statement he
made to the commissioned officer. Regarding the evidence of Mr Nsele, the trial
court found that he was not an impressive witness; he did not answer questions
frankly and honestly and he was evasive. Thus, Mr Nsele’s evidence based on the
credibility findings that were made by the court a quo could not be used in support of
the state’s case.
Issues in this court
[7] The issues for determination in this appeal are the admissibility of the
confessions made by the appellants to the commissioned officers and whether the
court a quo was misdirected on either law or fact in convicting the appellants based
on the statements made to the police offers and evidence of an accomplice who is
also a single witness in respect of the second appellant.
5
[8] In argument before us it was submitted on behalf of the first appellant that if
the court a quo had carefully considered the questions and answers provided by the
first appellant in the written confession then it would not have concluded that the
statement was freely and voluntarily made by the appellant. Furthermore it was
contended that the court a quo erred in taking judicial notice of a fact that ought not
to have been accepted as fact by the court, that is the signature of the appellant. In
addition it was argued that because Mrs Naidoo had earlier identified the wrong
person at the identificatio n parade instead of the first appellant, the trial court should
not have relied on Mrs Naidoo's dock identification of the first appellant.
[9] It was submitted on behalf of the second appellant that the court a quo erred
in convicting the second appellant solely on the basis of the statement made by him
to Captain Gounden and the evidence of Mr Khumalo , which was uncorroborated
and unsatisfactory.
[10] The counsel for the respondent conceded in argument that the statements
made by both appellants were not admissible in law and that the evidence of both Mr
Khumalo and Mrs Naidoo were not satisfactory nor credible. The concession by the
State’s counsel was well made for the reasons that will appear later in this judgment.
The law
[11] Confessions are governed by s 217 of the CPA which provides that:
‘(1) Evidence of any confession made by any person in relation to the commission of any
offence shall, if such confession is proved to have been freely and voluntarily made by such
person in his sound and sober senses and without having been unduly influenced thereto,
be admissible in evidence against such person at criminal proceedings relating to such
offence: Provided -
(a) that a confession made to a peace officer, other than a magistrate or justice, or, in
the case of a peace officer referred to in section 334, a confession made to such peace
officer which relates to an offence with reference to which such peace officer is authorized to
exercise any power conferred upon him under that section, shall not be admissible in
evidence unless confirmed and reduced to writing in the presence of a magistrate or justice .
(b) that where the confession is made to a magistrate and reduced to writing by him, or
is conferred and reduced to writing in the presence of a magistrate, the confession shall
upon the mere production thereof at the proceedings in question -
6
(i) …
(ii) be presumed, unless the contrary is proved, to have been freely and voluntarily
made by such person in his sound and sober senses and without having been unduly
influenced thereto, if it appears from the document in which the confession is contained that
the confession was made freely and voluntarily by such person in his sound and sober
senses and without having been unduly influenced thereto ’.
It is trite that the onus rest s on the State to prove that the confession was freely and
voluntarily made, and was not unduly influenced.1 The requirement of freely and
voluntarily made have been defined to mean that the confession must not have been
induced by violence or threats or promises made by a person in authority.2 With the
advent of the new constitutional regime, the rights of the arrested, detained, and
accused persons outlined in s 35 of the Constitution are closely connected to the
admissibility of confessions. Some of the most relevant aspects of the rights are; the
right to remain silent,3 right not to be compelled to make any confession or
admission that could be used in evidence against that person,4 and the right to
choose, and to consult with, a legal practitioner, and to be informed of this right
promptly.5 The importance of these rights during the pre -trial procedure s was
emphasi sed in S v Melani and others ,6 where it was stated that :
‘The right to consult with a legal practitioner during the pre -trial procedure and especially the
right to be informed of this right, is closely connected to the presumption of innocence, the
right of silence and the proscription of compelled confessions .’7
[12] This court is satisfied that Colonel Sibiya and Captain Gounden are
commissioned officers of South African Police Services , and therefore entitled to
take confessions .8 Confessions made to police officers have received judicial
attention. Courts have called upon judicial officers to be vigilant where the State
relies , for conviction of an accused , solely on a statement in the form of a
1 S v Zuma and others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) para 3.
2 Ibid para3.
3 Section 35(1) (a) of the Constitution.
4 Section 35(1) (c) of the Constitution.
5 Section 35(2) (b) of the Constitution.
6 S v Melani and others 1996 (1) SACR 335 (C).
7 Ibid at 347e.
8 Section 4 of the Justices of the Peace and Commissions of Oath Act 16 of 1963; Gama v S [2013]
ZASCA 132 para 8.
7
confession. In S v Latha and another9 the Supreme Court of Appeal critici sed the
practice of taking confessions by a police officer attached to the same unit as the
investigating team. In Latha Grosskopf JA stated as follows:
‘This Court has held in a number of cases that although it would not be irregular for a police
officer attached to the particular unit which investigated the matter to take a confession, it
would be preferable in such a case to take the suspect to a magistrate or a police officer who
was a member of another unit. ’10
The court held that the reason was not to impugn the integrity of the police officers
but to allay suspicion by the suspect who may perceive the police officer to be part of
the investigating team. In S v Gcam -Gcam11 the Supreme Court of Appeal further
called upon judicial officer s to be vigilant when determining the admissibility of a
confession made to a police officer, even if that officer was not attached to the same
investigating team. Cachalia JA stated as follows :
‘When confronted with confessions made by suspects to police officers whilst in custody —
even when those officers are said to be performing their duties independently of the
investigating team — courts must be especially vigilant. For such people are subject to the
authority of the police, are vulnerable to the abuse of such authority and are often not able to
exercise their constitutional rights before implicating themselves in crimes .’12
[13] In Mchunu and another v S13 a full court of this Division considered a
confession that was made to a police officer who was attached to the same unit as
the investigating team. Further, t he court was critical of the practice of taking of
confessions by police office rs in general even if the officers were not attached to the
same unit as the investigating team. In Mchunu Steyn J stated as follows:
‘Lastly, it deserves mention that it is regrettable and unfortunate that the amendment to s
217(1) (a) has not as yet come into operation, because if it had, it would have impacted upon
the conduct of the officers investigating this case. The amendment, in all likelihood, would
have resulted in a procedure that aids and supports due process by not allowing police
officials, albeit commissioned officers, to take any confessions.’14 (footnotes omitted)
Analysis
9 S v Latha and another 1994 (1) SACR 447 (A).
10 Ibid at 449G.
11 S v Gcam -Gcam 2015 (2) SACR 501 (SCA).
12 Ibid para 49.
13 Mchunu and another v S [2024] ZAKZPHC 92 ( Mchunu ).
14 Ibid para 28.
8
[14] In the light of the appellants’ contention in the court a quo that they were not
advised of their constitutional rights from the moment they were arrest ed, the court a
quo ought to have made a finding of the facts on whether the appellants were
informed of their constitutional rights or not. The purpose and importance of
informing the arrested persons of their constitutional rights was stated in S v
Magwaza .15 In Magwaza the Supreme Court of Appeal stated as follows :
‘The purpose of making a suspect aware of his rights is so that he may make a decision
whether to exercise them, and plainly he cannot do that if he does not understand what
those rights are .’16
I am mindful of the fact that not every irregularity constitutes a failure of justice and
infringement of a right to fair trial.17 However, a failure to inform arrested persons of
their constitutional rights has the effect of depriving them of their right to remain
silent ,18 which is an important aspect of the right to a fair trial. In the event the
accused person was able to demonstrate that the failure by the investigating officer
and subsequently the commissioned officer to inform them of their rights had
materially prejudiced them and infringed their rights to remain silent that would have
constitute d infringement of their right to a fair trial.
[15] In establishing admissibility of a confession, the starting point is to determine
whether the requirements of s 217 of CPA was satisfied. The questions and answers
recorded in the document in which the confessions are contained should shed light
on whether the requirements of the provisions of s 217 were complied with.19 The
recording of the confessions of both appellants which were admitted in evidence as
exhibit G1 and G2 respectively reflect vague, incoherent and contradictory answers
to the questions in the confession’s pro forma forms. I start with exhibit G1, a record
of the questions put by Colonel Sibiya to the first appellant and the first appellant’s
answers thereto. In paragraph 7 the statement provides that:
‘You are not obliged to say anything to me. You are further warned that whatever you may
say will be noted down and may be used as evidence against you in a subsequent trial. Do
you understand ?’
The answer to this question is ‘yes’. Paragraph 8 provides that:
15 S v Magwaza [2015] ZASCA 36; 2016 (1) SACR 53 (SCA) .
16 Ibid para 17.
17 S v Joubert [2017] ZASCA 3; 2017 (1) SACR 497 (SCA) para 8.
18 Mchunu para 11.
19 S v Mpetha and others 1982 (2) SA 406 (C) at 408E -H.
9
‘You have the right to remain silent (also explain to the declarant the consequences if he
elects to make a statement)’.
There is no provision for the appellant’ s response to this statement in the pro forma
form. Paragraph 9 provides that:
‘You are not obliged to make any confession, admission or statement that might be used
against you in subsequent trial. Do you understand?’
The answer provided is ‘yes’. Paragraph 10 provides that:
‘You have the right to consult, before the making of the statement, with a legal
representative of your choice, and if you cannot afford the services of such legal
representative, a legal representative can be appointed for you who is not in the employment
of the state and whose services will be provided at no cost to yourself. D o you understand
these rights?’
The answer is ‘yes’.
[16] It is apparent in paragraphs 7 to 10 of the pro forma form that the statements
stipulate the appellant’s rights, they do not make provision for the appellant to
respond to the statements. The absence of such provision for the first appellant to
respond on whether he wanted to exercise the rights or not, is more probable with
his contention that he was not informed of the rights. The first appellant could not
have made a choice to exercise these rights if he was not given the option to do so.
[17] Paragraph 16 of the pro forma form provides that:
‘Do you have any injuries, bruises, wounds or scars on your body of any nature
whatsoever?’
The answer is ‘ no injuries, bruises, wounds .’ Paragraph 16.1 states :
‘If so, can you show them to me, please? ’
The answer is
‘a scar noted on the right hand. Suspect indicated that he got injured at work not sure about
year about 2011’ .
Paragraph 18 sates :
‘Have you been encouraged by any person to make a statement? If so, by whom and how?’
The answer is ‘ not applicable’. Paragraph 19 s tates:
‘Have you been influenced in any way by any person to make the statement ? If so, by whom
and how ?’
The answer is ‘not applicable ’. Paragraph 20 states,
10
‘Have you received or do you expect any benefit(s) if you make the statement? If so, what
benefit(s )?’
The answer is ‘not applicable’. Section E, paragraph 3 states:
‘Do you have any complaints about the manner in which I have recorded the statement?’
The answer is ‘yes’. The question on whether the first appellant was satisfied with
the interpreter was recorded as ‘not applicable’.
[18] In my view , if the court a quo had cautiously considered the questions and
answers in the statement it would not have arrived at the conclusion that the
statement was made free and voluntarily in the first appellant’s sober senses. The
contradictions in the pro forma form demonstrates that the first appellant did not
comprehend the questions and answers, as evidenced by the pro forma form's
statement that the appellant had no injuries and his subsequent display of a scar to
the commissioned officer. Furthermore , the questions in paragraphs 18, 19 and 20 ,
which elicited answers from the appellant on whether he was encouraged or had
been influenced by any person to make the statement and whether he had received
or expect ed any benefits if he made the statement , are determinative on whether the
statements were made free and voluntarily. It ’s apparent that the police officer did
not ask these questions to the appellant because he said the answers to these
questions were not applicable. Furthermore, the pro forma form's recorded
responses show that the appellant was unhappy with how the statement was
obtai ned from him. Colonel Sibiya , during cross examination in the trial within a trial ,
said that the ‘yes answer’ given by the first appellant to the question in this regard
was recorded by mistake on his part. In my view if Colonel Sibiya had read the
statement to the appellant as he contend ed to have done, he would have picked up
this error and rectified it.
[19] In my view , the use of the same police officer , who took the statement as an
interpreter , casts doubt on whether the questions and ans wers, and subsequently
the entire statement , was interpreted to the appellant. It is not in dispute that b oth
Colonel Sibiya and the first appellant were isiZulu speaking persons ; the questions
and answers in the pro forma form are written in English; Colonel Sibiya allegedly
interpreted the answers and questions to the appellant in isiZulu and recorded them
11
in English. Given the contradictory answers to the questions in pro forma form,
coupled with the fact that the appellant was not asked whether he was satisfied with
the interpretation , it’s reasonable to conclude that the conversation between the
appellant and the comm issioned officer was either not interpreted at all or was poorly
interpreted. A confession has far reaching consequences to end the liberty of an
accused person in that an accused may be convicted on the strength of a confession
and sentenced to life imprisonment. For that reason the administering of a
confession should comply with the prescripts set out in s 35 of the Constitution,
which requires an accused person to be tried in a language that he or she
understands or, if that is not practicable, to have the proceedings interpreted in that
language.20 It is now settled that the right to silence begins at the inception of the
criminal process , ie when the person is arrested.21 Considering the consequences a
confession has on the liberty of an accused person the arrested individual should
have the right to be interviewed in a language they can understand at the time of the
confession .
[20] It is not in dispute that many accused persons who come to the criminal
justice system are hindered from fully participating in the process from the moment
they are arrest ed throughout the trial due to their limited or having no proficiency in
the language used in the court.22 A fair criminal justice system trial requires that the
accused understand s the language used when he or she makes a confession.23 The
importance of a professional interpreter is that he or she overcomes the language
barriers and ensure that persons who come to the criminal justice system enjoy
equal access to justice. Considering that t he confession should not only be made
freely and voluntarily, and should only be made by an accused in his or her sober
senses, the accused should fully understand the questions posed to him or her and
the answers provided should demonstrate a full understating of the questions . Thus,
the absence of an interpreter may be prejudicial to the accused person such that it
may lead to a failure of justice.
20 Section 35(3) (k) of the Constitution.
21 S v Sebejan 1997 (1) SACR 626 (W) at 635d.
22 SJ Lebese 'Do justice to court interpreters in South Africa' (2014) 43 Stellenbosch Papers in
Linguistics Plus 183 at 183 -184.
23 Ibid.
12
[21] The court a quo was misdirected when it took judicial notice of the first
appellant’s hand writing specimen and drew a conclusion that the signature on the
statement was that of the appellant. The doctrine of judicial notice allows a judicial
officer to accept certain facts as correct without the need to lead evidence to prove
those facts.24 Judicial notice can be taken of facts
‘so notorious as not to be the subject of reasonable dispute (for instance, the date of
Christmas), or which are capable of immediate and accurate demonstration by resort to
sources of indisputable accuracy (such as the date of Easter in a particular year). ’25
Facts are notorious if they are reasonably known among reasonable informed and
educated people and not the result of observation.26 Thus court s are not competent
to take judicial notice of a handwriting specimen, an issue that falls within an area of
expertise, which is neither notorious nor readily ascertainable.
[22] This then brings me to the second appellant’s confession. Section A,
paragraph 4 of the pro forma form of the statement made by the second appellant to
Captain Gounden states :
‘Why do you want to make the statement’.
The answer is, ‘I want to apply for bail and tell the truth’. In paragraph 20 the
question is:
‘Have you received or do you expect any benefits if you make the statement? If so what
benefits?’
The answer is
‘I decided to make this statement on my own so that there is a chance of getting bail’.
During the cross examination of Captain Gounden in a trial within a trial he stated
that the second appellant indicated to him that he decided to make the statement on
his own so that there will be chances of him getting bail. In my view , the second
appellant’s purpose for making the statement, confirmed by Captain Gounden is
more probable with his contention that he was promised by the investigating officer
to make the statement in order to get bail .
24 M McGregor ‘Judicial notice: Discrimination and disadvantage in the context of affirmative action in
South African workplaces’ (2011) 44(1) De Jure 111 at 122.
25 DT Zeffertt, AP Paizes and JS Grant Essential Evidence 2ed (2020) at 299.
26 McGregor ’s article cited above at 122.
13
[23] The trial court erred in ruling that the statement by the second appellant to
Captain Gounden was admissible . What was overlooked in my view was that
Captain Gounden was attached to the same police station moreover he was part of
the investigating team, had also participated in the same case by conducting an
identification parade. Although Captain Gounden contended at the trial within a trial
that when he took the statement from the appellant he was not aware that it was the
same case in which he had conducted the identification parade , the court a quo
ought to have considered that Captain Gounden’s previous participation in the same
case had compromised his impartiality and independence and therefore disallowed
the confession as admissible evidence before it. For the aforesaid reasons the court
a quo ought to have found that both confessions were inadmissible.
[24] What remains is the evidence of Mrs Naidoo and Mr Khumalo. It is trite that
this court as a court of appeal cannot interfere with the credibility findings and
evaluation of the oral evidence of the court a quo unless there is a material
misdirection.27 The trial court relied on the dock identification of Mrs Naidoo in
respect of the first appellant and found that she was candid and honest in her
evidence although she was mistaken and confused about some of the facts. It is trite
that because of the fallibility of human observation courts are required to exercise
caution when dealing with evidence of identification. LAWSA states this as follows:28
‘Judicial experience has shown that evidence of identity should, particularly in criminal
cases, be treated with great care. Even an honest witness is capable of identifying the wrong
person with confidence. Consequently, the witness should be thoroughly examined about
the factors influencing his or her identification, such as the build, features, colouring and
clothing of the person identified.’ (footnotes omitted)
[25] A witness might be candid and honest in his or her evidence , however ,
because of the potential risks of mistaken identity the court s are required to do a
thorough assessment of the reliability and credibility of his or her evidence.29 It is trite
that a witnesses’ identification of an accused in the dock is in principle not excluded
27 S v Monyane and others [2006] ZASCA 113; 2008 (1) SACR 543 (SCA) para 15 and R v
Dhlumayo and another 1948 (2) SA 677 (A) at 705 -706.
28 LAWSA, volume 18, para 263; quoted with approval by the minority in Ndimande v The State [2019]
ZASCA 132 para 11 .
29 Nkomo and others v The State [2024] ZASCA 61 para 17.
14
solely on the basis of it having been done in court .30 However, a critical and cautious
analysis of Mrs Naidoo’s evidence ought to have resulted in a finding that her dock
identification of the first appellant was not credible and reliable. The reason being
that Mrs Naidoo had attended an identification parade where she had identified a
wrong person instead of the first appellant. Thus, the trial court had two contradicting
versions of Mrs Naidoo’s identification of the first appellant, first at the identification
parade and secondly in the dock.
[26] Mr Khumalo is an accomplice and a single witness in re spect of the second
appellant. It is trite law that an accused may be convicted of an offence on the single
evidence of any competent witness31 if such evidence is clear and satisfactory in
every material respect.32 A critical analysis of both the evidence of Mrs Naidoo and
Mr Khumalo shows that they do not corroborate each other . This is eviden t from the
court a quo’s finding that Mrs Naidoo’s evidence stating that the deceased was shot
twice in the head was incorrect; that the second appellant was present during the
robbery, murder and attempted murder in the liquor store was incorrect and that she
was mistaken and confused about some of the facts . That observation equally
applies to Mr Khumalo’s evidence .
[27] In my view , the court a quo erred in relying to the evidence of Mr Khumalo , an
accomplice , after it had found that his evidence was not satisfactory in certain
aspect s and alluded to the improbabilities of his evidence in general, in particular his
contention that he joined the appellants and travelled in a vehicle with them from
Ntshaweni to Gled how, without knowing what they were going to do at the
destination . It is trite that it is not necessarily expected of an accomplice before his or
her evidence can be accepted to be wholly consistent, wholly reliable or even truthful
in all that he or she says.33 However , where an accomplice who is also a single
witness has been found by the court to be not satisfactory in some respect, as in this
case , there would be no safe guard from convicting wrong people solely on the
uncorroborated evidence of an accomplice. Although the court a quo mentioned the
30 S v Matwa 2002 (2) SACR 350 (E) .
31 Section 208 of Criminal Procedure Act 51 of 1977 .
32 R v Mokoena 1932 OPD 79 at 80.
33 S v Francis 1991 (1) SACR 198 (A) at 205.
15
cautionary rule in respect of the evidence of Mr Khumalo, it failed to apply it in the
judgment.
[28] Another reason as to why the court a quo relied on Mr Khumalo’s evidence
was based on its finding that Mr Khumalo’s evidence was corroborated by the
confessions made by the appellants. In this regard the court held that the
confessions by both appellants and Mr Khumalo’s evidence serve as safeguards
against a wrong conviction. Given the finding that the confessions were inadmissible
evidence, what remains is Mr Khumalo’s evidence , which now remains
uncorroborated and unsatisfactory . Since there is no evidence to sustain the
convictions of the appellant , I need not deal with the challenges to sentences and the
appeal on both convictions and sentence should succeed.
Order
[29] In the result I would make the following order:
1. The appellants appeal against their convictions and sentences succeed .
2. The convictions and sentence of the first and second appellants are set aside.
________________
Mathenjwa J
________________
Steyn J
________________
Tucker A J
Date of hearing : 29 November 2024
Date of Judgment : 31 January 2025
16
Appearances:
Counsel for the first appellant : Mr. P Daniso
Instructed by: Legal Aid South Africa
Counsel for the second appellant: Mr. Chiliza
Instructed by : Legal Aid South Africa
Counsel for the State: Ms N Tokwana
Instructed by: Director of Public Prosecutions