REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
APPEAL CASE NUMBER: AA 08/20.22
HIGH COURT CASE NUMBER: CC 35/2018
(1)
(2)
(3)
REPORTABLE : ¥&$/NO
OF INTEREST TO THE JUDGES: ~NO
REVISED.
DATE: 22 MAY 2026
In the matter between:
ZWANGA RADZILANI
-and-
THE STATE
APPELLANT
RESPONDENT
Delivered
Date heard
Coram
BRESLERAJ:
Introduction:
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22 May 2026
This judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand down of the judgment is deemed to be 22 May 2026 at
16:00.
28 November 2025
Ngobeni J et al Bresler AJ Maphelela AJ
JUDGMENT
[1] The Appellant was convicted and sentenced on the 16th of August 2018 in the High
Court of South Africa, Limpopo Local Division, Thohoyandou on the following
charges:
1.1 Count 1 - Housebreaking with the intent to commit robbery: 5 (five) years
imprisonment;
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1.2 Count 2 - Robbery with aggravating circumstances: 15 (fifteen) years
imprisonment; and
1.3 Count 3 - Murder read with Section 51 (1) and Schedule 2 of the Criminal
Law Amendment Act, Act 105 of 1997: life imprisonment.
[2] The convictions are to run concurrently .
[3] Having regard to the respective charge sheet, the first count, emanates from an
incident where the Appellant allegedly committed the said offences against
Khorombi Mphedziseni Joseph (hereinafter called the 'deceased ') on the 15th of July
2017 and at or near Tshituni-Themaluvhilo, in the district of Dzanani.
[4] The state's case is premised on circumstantial evidence that the Appellant's actions
resulted in the death of the deceased . This circumstantial evidence includes but
are not limited to undisputed forensic evidence to the effect that the blood of the
deceased was found on the clothes and shoes of the Appellant.
[5] The explanation of the Appellant in this regard is that he was taken to the scene of
the alleged crime where he was assaulted , resulting in him falling in the blood and
the blood thus transferring to his clothes and shoes.
[6] An application for leave to appeal against the convictions and sentences was heard
on the 5th of September 2022 and consequently granted by the Honourable Judge
AML Phatudi.
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[7] On the 3rd of April 2025, the Notice of Appeal was delivered.
Grounds of Appeal:
[8] The Appellant raised the following grounds of appeal:
8.1 The Court a quo erred by finding that the Deceased identified the Appellant
as his assailant.
8.2 The Court a quo furthermore admitted hearsay evidence as to the source
of the information pertaining to the identity of the assailant being that of the
Appellant.
8.3 The Court a quo failed in making an adverse finding in respect of the fact
that Constable Sivhuwane was not called to testify on the retrieval of the
bloodied tekkies notwithstanding being a direct witness thereof.
8.4 The Court a quo failed to treat the evidence of Officer Ratshibvhumo with
the requisite caution being a single witness pertaining to the arrest and
retrieving the tekkies.
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8.5 The Court a quo erred by accepting the circumstantial evidence as linking
the Appellant to the crime and failed to consider alternative inferences that
may be drawn from the facts.
8.6 The Court a quo also erred in accepting the statement of Ramathatho Martin
despite his evidence that he was under the influence of liquor and the
statement was not read back to him.
8.7 As to the sentencing of the Appellant , the Court a quo misdirected itself by
sentencing the appellant to effective life imprisonment , being shocking,
harsh and disproportionate to the offences committed. By doing so, the
Court a quo failed to consider mitigating factors into consideration.
Judgment in the Court a quo:
[9] The Court a quo summarised the evidence of the respective witnesses and the
accused. It is evident from the summary of the testimony that the Court a quo
accepted that the case of the State is premised solely on circumstantial evidence ,
much of which was solicited from a single witness .
[1 O] The crux of the judgment is the fact that the Court a quo rejected the explanation of
the Appellant as to how blood got onto his clothing and shoes as not being
reasonably possibly true. The Court a quo re a sone d tha t if the Stat e w anted to
frame the accused, they would have also smeared blood on the clothes of Gundo.
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[11] The Court a quo also did not take issue with the fact that the State did not disclose
the source of its information pertaining to the involvement of the Appellant in the
alleged incident. This is a material fact that led to the arrest of the Appellant.
Issues that require determination:
[12] What this court must determine , is whether in the light of the evidence adduced at
trial, the guilt of the Appellant was established beyond reasonable doubt. The Court
must further determine if the sentencing was reasonable and aligned with the
conviction.
The Applicable Legal Principles:
[13] The test in a criminal case is whether the evidence establishes the guilt of the
accused beyond reasonable doubt. The corollary is that an accused person is
entitled to be acquitted if there is a reasonable possibility that an innocent
explanation which he had proffered might be true. It is not expected from an
accused to explain why the state witnesses falsely incriminate him or her.1
[14] In order to convict, there must be no reasonable doubt that the evidence implicating
the accused is true, which can only be so if there is at the same time no reasonable
possibility that the evidence exculpating him is not true. The two conclusions go
hand in hand, each one being the coroll ary of the other. Thus , for there to be a
1 S v lpeleng 1993 (2) SACR 185 (T)
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reasonable possibility that an innocent explanation which had been proffered by the
accused might be true, there must at the same time be a reasonable possibility that
the evidence which implicates him might be false or mistaken. (See S v Sitho/e2).
[15] A court in a criminal case does not have to be convinced that every detail is true. If
the accused version is reasonably possibly true in substance, the court must decide
the matter on the acceptance of that version. An accused person is not compelled
to testify, but if he elects to testify, what the court must determine is whether the
version presented by the accused is reasonably possibly true.
[16] The correct approach to the evaluation of evidence in a criminal case was
formulated in S v Chaba/a/a 3 where Heher AJA said:
'The trial court's approach to the case was, however, holistic and this was
undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA). The correct
approach is to weigh up all the elements which point towards the guilt of the
accused against all those which are indicative of his innocence, taking proper
account of inherent strengths and weaknesses , probabilities and
improbabilities on both sides and, having done so, to decide whether the
balance weigh heavily in favour of the State as to exclude any reasonable
doubt about the accused 's guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such as the failure to call
2 S v Sithole 1999 (1) SACR 585 (W)
3 2003 (1) SACR 134 (SCA) at para 15
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a material witness concerning an identity parade) was decisive but that can
only be an ex post facto determination and a trial court (and counsel) should
avoid the temptation to latch on to one (apparently) obvious aspect without
assessing it in the context of the full picture presented in evidence. Once that
approach is applied to the evidence in the present matter the solution
becomes clear'.
[17] The approach of an Appeal Court, where the appeal lies against the facts, are
disposed of in accordance with the principles set out in S v Dhlumayo and
Another.4 It must be borne in mind that there is a presumption that the trial court's
evaluation of the evidence is correct and it will only be disregarded if it is clearly
wrong.5
[18] It is a cornerstone of our legal system that appellate courts exercise restraint in
interfering with the findings of trial courts. This principle is rooted in the recognition
that trial courts are uniquely positioned to assess credibility and determine the
weight of evidence , having had the advantage of observing witnesses as they
testified. The appellate court's role is not to second-guess the trial court but to
ensure that justice was done. Thus, the threshold for intervention is high and
confined to circumstances where the trial court committed material misdirection or
acted irrationally.6
4 [1 948] 2 All SA 566 (A); 1948 (2) SA 677 (A)
5 S v Francis [1991] 2 All SA 9 (C); 1991 (1) SACR 198 (A)
6 S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA)
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[19] In S v Jaipa/7 the Constitutional Court stated as follows in respect of the right to a
fair trial:
'Section 35(3) of the Constitution states that every accused person has a right
to a fair trial. The basic requirement that a trial must be fair is central to any
civilized criminal justice system. It is essential in a society which recognises
the rights to human dignity and to the freedom and security of the person and
is based on values such as the advancement of human rights and freedoms,
the rule of law, democracy and openness. The importance and universality of
the right to a fair trial is evident from the fact that it is recognized in key
international human rights instruments . It is a trite principle that the findings of
fact of the trial court, are presumed to be correct unless there are
demonstrable and material misdirection on its part. Those findings will only be
disregarded if the recorded evidence shows them to be clearly wrong. In the
same vein, the credibility findings of the trial court cannot be disturbed unless
the recorded evidence shows them to be clearly wrong.'
[20] As aptly stated in Khoza v S8:
7 2005 (4) SA 581 (CC); 2005 (5) BCLR 423 (CC)
8 (A222/2022) (2023] ZAGPPHC 1122 (8 September 2023) at para [16].
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' ... a court of appeal is not at liberty to depart from the trial court's findings of
fact and credibility unless they are vitiated by irregularity, or unless an
examination of the record reveals that those findings are patently wrong.'
[21) As stated herein before, the conviction was premised largely on circumstantial
evidence, central to which is the evidence pertaining to the identification of the
Appellant as the perpetrator and the presence of the deceased's blood on the
clothing. What remains to be determined is if the facts, as stated by the Court a quo ,
should have resulted in the convictions on all the charges.
[22) Having regard to the source identifying the Appellant as the perpetrator , it is evident
that the State witnesses never called the source of the information to testify, nor did
the said witnesses submit any reason why the source cannot be disclosed . The
evidence relating to the acquisition of the information of the Appellant's involvement ,
is hearsay evidence.
[23) In criminal proceedings , where a court has to consider applying the hearsay
provisions of the Law of Evidence Amendment Act, Act 45 of 1988, the accused's
right to a fair trial, which includes and encompass the concept of procedural
fairness, must at all times be borne in mind. 9 In light of the constitutional right of the
accused to be presumed innocent and the State's obligation to prove the guilt
beyond reasonable doubt, hearsay evidence should seldom be admitted as against
the accused , and then only with great circumspection .10
9 CWH Schmidt et at, Law of Evidence, Lexis Nexis Issue 21, page 18-10.
10 S v Cekiso 1990 (4) SA 20 (E).
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[24] In casu, the Court a quo simply allowed the hearsay evidence to be presented and
accepted same as part of the circumstantial evidence that led to the conviction of
the Appellant. In this regard, the Court a quo erred. At the very least, reasons
should have been proffered as to why this evidence was deemed admissible, having
regard to the factors explicitly stated in Section 3(1 )(c) of Act 45 of 1988.
(25) As to the evidence pertaining to the deceased's blood being found on the clothes of
the Appellant, it must be determined if the accused version is reasonably possibly
true in substance. Once it is found that it is reasonably possibly true, the
acceptability of the statement must be determined.
(26) This Court is not satisfied that the Court a quo fully appreciated the Appellant's
version. The Accused testified that he was taken to the scene of the crime where
he was assaulted resulting in him falling in the blood residue of the deceased.
(27) The State called a single witness who testified that the accused was never taken to
the scene of the crime but rather to his home where the shoes were collected
containing the blood of the deceased.
(28) We have no difficulty in finding that the version of the Appellant was reasonably
possibly true in substance. There was no evidence indicating that the blood could
not have transferred to his clothes if he fell on it. There was also no evidence linking
him to the crime scene at the time when the crime was allegedly committed, safe in
so far as the deceased stated prior to his demise that two individuals attacked him.
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[29] When dealing with circumstantial evidence, a distinction must be drawn between
making an assumption as opposed to drawing an inference. The following was
stated in Caswell v Powell Duffryn Associated Collieries Ltd:11
'Inference must be carefully distinguished from conjecture or speculation.
There can be no inference unless there are objective facts from which to infer
the other facts which the inference is sought to establish ... But if there are no
positive proved facts from which the inference can be made, the method of
inference fails and what is left is mere speculation or conjecture.'
[30] Having already found herein before that the evidence linking the Appellant to the
crime was inadmissible and should not have been taken into consideration, it follows
that circumstantial evidence that is interconnected with his presence at the scene
at the time of the crime, should also be approached with caution. If one is to assume
that he was not identified as a perpetrator , it renders his version , that he was taken
to the crime scene, assaulted and as a result acquired the deceased 's blood on his
clothes and shoes, reasonably probably true and acceptable.
[31] Consequently, the Court a quo should not have simply rejected the Appellant's
version out of hand.
[32] Accepting the hearsay evidence, and the circumstantial evidence , as admissible
resulted in the conviction as to all three the charges. Save for this evidence, there
11 1940 AC 152 169
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is no basis on which the Appellant could have been found guilty on all three charges
beyond reasonable doubt.
[33) Having found the aforesaid, it follows that the appeal against all three charges must
succeed and be substituted with a finding of not guilty.
[34) This obviously results in this court not required to make a finding as to the
reasonableness of the sentencing.
Conclusion:
[35] The Appeal must be upheld as against conviction and sentencing and the order of
the Court a quo must be set aside.
Order:
[36) In the result the following order is made:
36.1 The Appeal is upheld in respect of conviction and sentencing on
counts 1 - 3.
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
I concur,
I concur,
APPEARANCES:
FOR THE APPELLANT
INSTRUCTED BY
FOR THE RESPONDENT
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JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
MAPHELELAA
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
Mr. N Rasivhaga
Legal Aid South Africa
Thohoyandou Local Office
PeterL@legal-aid.co.za
RamokakaneS@legal-aid .co.za
Adv. NR Nkhambele
INSTRUCTED BY
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The State Attorney
Thohoyandou
Mfsebelebele@npa.gov.za
Sselowa@npa.gov.za