REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF S0UTI-t AFRICA
GAUTENG DMSION , PRETORIA
( 1 l RE~1AB. r: NO
(2) ();- tNl~I-SI TO on II:R JUDG~ l--.10
f 3) REVISED: NO
.... Jllllliil _____ _
SlGNATURf
In the matter between:
14May2(t2,6
DATE
MZWAN0ILE EMMANUEL MKHWANE
And
THE STATE
JUDGMENT
CASE NO: A252/23
APPELLANT
RESPONDENT
Delivered: This judgment was prepared and authorod by the Judge whose name ,s
reflectod on 14 May 2026 and is handed down clccuo nical/y by circulation to the
parties/their legal representatives by e-mail and by uploading it to the electronic file of
this matter on CaseLines. The date for hand-down is deemed to be10h00 on 14 May
2026.
MNISI AJ (KUBUSHI J Concurring)
Introduction
[1] This appeal has its origin in the Magistrates' Court for the Regional Division of
Gauteng, Tsakane (trial court), where Mr Mzwandile Nkwane (the appellant),
was arraigned on two counts of robbery with aggravating circumstances
(counts 1 and 2), one count of housebreaking with intent to rob (count 3) and
one count of attempted murder (count 4). He was found not guilty on counts 1
to 3, however, he was found guilty on count 4.
[2] The State alleged that on or about 1 January 2019 and at or near Tsakane, in
the Regional Division of Gauteng, the appellant unlawfully and intentionally
attempted to kill Mpho Mulaudzi (complainant), a male person by shooting at
him with a firearm. The appellant pleaded not guilty to the charge. He claimed
that he was not present on the crime scene on the date and time the alleged
offence took place.
[3] The trial court convicted the appellant on 11 November 2022 and sentenced
him to eight years direct imprisonment on 13 December 2022. The trial court
made no order regarding the appellant's fitness to possess a firearm under
section 103 of the Firearms Control Act 60 of 2000. He brought an application
for leave to appeal both conviction and sentence on 13 December 2022. On
30 January 2023 the appellant's application for leave to appeal was dismissed
by the trial court. The present appeal is with leave of this court, obtained on
petition, against the appellant's conviction and sentence.
Background facts
[4] The matter emanates from the events which took place on 1 January 2019 at
Raymond's place (tavern), Tsakane, Gauteng. The complainant, who was in
2
the company of two friends (Nhlanhla Mnisi and Bongani Vilakazi), was
drinking alcohol when he allegedly had an altercation with another man. They
both started fighting inside the tavern until a security officer intervened and
ordered them to move outside. The altercation between the complainant and
the man, who was later described as Vajela by the complainant, continued
outside the tavern, where they slapped each other. The complainant suddenly
heard a gunshot and he immediately realised that he was shot in the stomach.
he did not see where the gunshot came from. He ran to Nhlanhla's uncle's
house where he reported the incident and he was taken to hospital for medical
care.
[5] The complainant further testified that he received a phone call from a certain
police officer from Tsakane police station who advised him to attend an
identification parade on 14 December 2019. At the police station he was taken
to a certain room where he identified the appellant who was number six in a
group of approximately six or seven people.
[6] Mr Nhlanhla Mnisi (Mnisi) testified that on 1 January 2019, he was in the
company of the complainant and Bongani Vilakazi at his uncle's place of
residence celebrating the new year's festivities. They decided to visit
Raymond's place where they continued to drink alcohol. The appellant, came
with his girlfriend and sat next to them. At some point when he came back
from visiting the toilet he noticed the complainant and Vajela having a quarrel
and he managed to separate them. He was not present when the shooting
incident took place outside the tavern. He only realised later when they went
back to his uncle's place that the complainant was injured.
[7] Bongani Vilakazi materially corroborated the evidence of Mnisi and the
complainant. They all visited Raymond's place on 1 January 2019 in order to
drink alcohol. Whilst they were seated inside a certain gentleman who was in
the company of a lady came to sit next to them. The complainant and the said
the company of a lady came to sit next to them. The complainant and the said
gentleman had an altercation after he accused the complainant of stepping on.
his feet. Bongani further testified that he followed Mnisi when the later left to
buy more alcohol. When they came back the complainant and the gentleman
were no longer there. They later found the complainant at Mnisi's uncle's place
3
and he was wounded on the stomach. They organised an ambulance which
took the complainant to hospital.
[8] The appellant's version is diametrically opposed to that of the State. He alleged
that he was nowhere near the Raymond's place on that day. On 31 December
2019 he was with his friends from 18h00 until the following morning. He
alleged that he has seen the complainant during 2018 around August or
September when the complainant physically abused his sister on the street.
He assaulted the complainant in defense of his sister. The complainant ran
away leaving behind his bag which contained dagga inside. He never saw him
again until he was arrested and he was pointed out by the complainant at an
identification parade held at Tsakane police station.
[9] Ms Nhlanhla Nkwane, the appellant's sister testified that they have been living
together since she was born. She was with the appellant and their friends from
the evening of 31 December 2018 until the following day. The appellant only
left the premises around 21 :00 to purchase alcohol and remained in the yard
until the following morning.
Proceedings in the trial court
[1 O] The trial court identified the identity of the perpetrator as a key issue and
accepted the evidence of the identification parade as a fair process despite
the fact that the identification parade form was never produced in court. The
court was of the view that the evidence regarding the appellant's identity as
the assailant was correct.
The legal principles
[11] It is necessary to restate some basic principles.
[12] The first is that the State bears the onus to prove the guilt of the accused
beyond reasonable doubt. In the matter of S v T 2005 (2) SACR 318 (E) at
paragraph 37 this Court, per Plasket J held the following, at paragraph 37
"The State is required, when it tries a person for allegedly committing an
offence, to prove the guilt of the accused beyond a reasonable
4
doubt. The high standard of proof - universally required in civilised
systems of criminal justice - is a core component of the fundamental
right that every person enjoys under the Constitution, and under the
common law prior to 1994 to a fair trial. It is not part of a Charter for
criminals and neither is it a mere technicality. When a Court finds that
the guilt of an accused has not been proved beyond reasonable doubt,
that accused is entitled to an acquittal, even if there may be suspicions
that he/she was, indeed, the perpetrator of the crime in question. That
is an inevitable consequence of living in a society in which the freedom
and the dignity of the individual are properly protected and are
respected. The inverse - convictions based on suspicion or speculation
- is the hallmark of tyrannical systems of law. South Africans have a
bitter experience of such a system and where it leads to."
[13] Since the onus of proof rests on the State to prove the guilt of an accused
beyond reasonable doubt, there is no onus on the accused to prove their
innocence. In Sithole v S (868/2011) [2012] ZASCA 85 (31 May 2012) it was
held:
"[8] The State bears the onus of establishing the guilt of an accused
beyond reasonable doubt and he is entitled to be acquitted if there is a
reasonable doubt that he might be innocent. The onus has to be
discharged upon a consideration of all the evidence. A court does not
look at the evidence implicating the accused in isolation to determine
whether there is proof beyond reasonable doubt nor does it look at the
exculpatory evidence in isolation to determine whether it is reasonably
possible that it might be true. The correct approach is set out in the
following passage from Mosephi and others v R LAC (1980- 1984) 57
at 59 F-H:
'The question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of a body
established beyond reasonable doubt. The breaking down of a body
of evidence into its component parts is obviously a useful guide to a
proper understanding and evaluation of it. But, in doing so, one must
5
guard against a tendency to focus too intently upon the separate
and individual part of what is, after all, a mosaic of proof Doubts
about one aspect of the evidence led in a trial may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far from it. There is no substitute for a
detailed and critical examination of each and eve,y component in a
body of evidence. But, once that has been done, it is necessa,y to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail to see the wood for the trees'.
In weighing the evidence of a single State witness a court is required to
consider its merits and demerits, decide whether it is trustworthy and
whether, despite any shortcomings in the evidence, it is satisfied that the
truth had been told. It must state its reasons for preferring the evidence
of the State witness to that of the accused so that they can be considered
in the light of the record. In applying the onus the court must also, where
the accused's version is said to be improbable, only convict where it can
pertinently find that the accused's version is so improbable that it cannot
be reasonably possibly true."
[14] In order to be acquitted, the version of an accused need only be reasonably
possible true. Nugent J explained the position as follows in S v Van de
Meyden 1999 (1) SACR (W) at 448 F - G:
"The onus of proof in a criminal case is discharged by the State if the
evidence establishes the guilt of the accused beyond reasonable
doubt. The corolla,y is that he is entitled to be acquitted if it is reasonably
possible that he might be innocent . . . these are not separate and
independent tests, but the expression of the same test when viewed from
opposite perspectives. In order to convict, the evidence must establish
opposite perspectives. In order to convict, the evidence must establish
the guilt of the accused beyond reasonable doubt, which will be so only
if there is at the same time no reasonable possibility that an innocent
6
explanation which has been put forward might be true. The two are
inseparable, each being the logical corollary of the other."
[15] In S v V 2000 (1) SACR 453 (SCA) the Court stated as follows at paragraph
3:
"It is trite that there is no obligation upon an accused person, where the
State bears the onus, "to convince the Court". If his version is
reasonably possible true, he is entitled to an acquittal even though his
explanation is improbable. A Court is not entitled to convict unless it is
satisfied not only that the explanation is improbable but that beyond any
reasonable doubt it is false. It is impermissible to look at the probabilities
of the case to determine whether the accused's version is reasonably
possibly true but whether one subjectively believes him is not the
test. As pointed out in many judgments of this Court and other Courts
the test is whether there is a reasonable possibility that the accused's
version may be true."
[16] In Otto v S [2017] ZASCA 114 the Supreme Court of Appeal held:
"The onus rests on the State to prove all of the elements of the offence
of rape, including the absence of consent and intention. That is so even
where, as in this case, the version put to the complainant by the
appellant's legal representative was a denial of any sexual contact with
her."
[17] As this is a court of appeal, I may interfere with the factual findings of the trial
court if on examination of the record I can find material misdirection. In the
absence of a misdirection I am not entitled to interfere.
[18] In S v Hadebe & Others 1997 (2) SACR 641 (SCA) at 645 E - Fit was held:
"In short, in the absence of demonstrable and material misdirection by
the trial court, its findings of fact are presumed to be correct, and will
only be disregarded if the recorded evidence shows them to be wrong."
7
Was the trial court correct in finding the appellant guilty
[19] As outlined above, the Magistrate found the appellant guilty of attempted
murder. What stands out in the Magistrate's findings are the following remarks:
"The Court will state further that even if the Court had accepted this alibi
defence and found it to be reliable the probabilities still are clear as I have
already indicated in both incidences that on 31 December 2018 to 1 January
2019 and 2 December 2019.
The probabilities are clear that it is probable that accused could have left and
returned without being noticed, even if the Court had accepted but the Court
has rejected it in any event."
[20] That question whether the trial court was correct in its findings should, in my
view, be answered in the negative for the following reasons: The Magistrate
relied only on probabilities and improbabilities in her evaluation of the
evidence. Her findings do not state that the State proved its case beyond a
reasonable doubt, a test required in criminal proceedings. The onus of proof
in a criminal case is discharged by the State if the evidence establishes the
guilt of the accused beyond reasonable doubt. In light of the above, it is my
view that the trial court misdirected itself in making its findings based on an
incorrect standard of proof.
The evidence of Identification parade
[21] Du Toit and Commentary refer to 18 Rules of Practice with regards to
identification parades. These are not rules of law, but are rules of Police
practice to ensure a fair identification parade, and rules gleaned from reported
cases.1 In R v Kola 1949( 1) PH H 100 (A) the Court cautioned as to regards
the value of an improper identification parade:
1 See R v Masemang 1950(2) SA 488 (A) 493-4 .
8
"But an identification parade, though it ought to be a most important aid
to the administration of justice , may become a grave source of danger if
it creates an impression which is false as to the capacity of the witness
to identify the accused without the aid of his compromising position in
the dock. Unsatisfactory as it may be to rely upon the evidence of
identification given by a witness not well acquainted with the accused, if
that witness has not been tested by means of a parade, it is worse to rely
upon a witness whose evidence carries with it the hall-mark of such a
test if in fact the hall-mark is spurious. Of course, an identification parade
is not necessarily useless because it is imperfect. In some respects, the
quality of the parade must necessarily be a question of degree."
[22] In S v Mohlathe 2000(2) SACR 530 (SCA) at 541a-d the following was held:
"Common sense dictates that the non-suspects participating in an
identification parade should be similar to the suspect in general
appearance. Indeed, as appears from the identification parade form
which was used on this occasion, it is a matter of police practice that the
non-suspects be 'of about the same height, build age and appearance'
as the suspect and that they be similarly dressed. Where the parade
includes several suspects, whose general appearance is markedly
different, whether on account of height, build, age or otherwise, care
should be taken to ensure that there are sufficient non-suspects whose
general appearance approximates that of each of the suspects. In such
circumstances it may be advisable to hold more than one parade,
particularly if the number of non-suspects that would be required would
result in the parade being unduly large and cumbersome. If the number
of non-suspects whose general appearance approximated that of each
suspect is too few or if there were other features of the parade which
may materially influence an identifying witness, the probative value of the
may materially influence an identifying witness, the probative value of the
identification will be greatly reduced. The danger in such a case is, of
course, that, because the identification is made at a parade, it carries
with it an assurance of reliability which is unjustified."
9
[23] In Nkomo and Others v The State2 the Supreme Court of Appeal confirmed
that:
"The potential risks of mistaken identification require a thorough
assessment of the reliability and credibility of such evidence before
placing significant weight on it. Factors that impact the reliability of the
identification evidence are, amongst others, the lighting, visibility,
mobility of the scene, proximity of the witness and their opportunity for
observation and ... prior familiarity ... ".
[24] During the State's case, Constable Maphanga, the investigating officer (in
relation to counts 1 to 3), testified that he arranged an identification parade
conducted by his colleague Constable Da Gama. Constable Da Gama also
testified and corroborated this evidence. However, no evidence was placed
on record that an identification parade, which is a legal procedure, was ever
conducted in respect of count 4.
[25] In my view, the Magistrate's assertion that the identification parade was
conducted in a fair manner is misdirected. There is no record that the
identification parade was conducted in compliance with the provisions of
section 37(1 )(b) of the Criminal Procedure Act. Such record would include
inter alia, the name of the investigating officer who arranged the identification
parade, the date of the parade; the name of officer who guarded the
witness(es) before he/ they attended the parade; the name of the officer who
escorted the witness(es) to the parade; the name of the officer who escorted
the witness(es) from the parade; the number of persons who attended the
parade (including the appellant) , and that they were of the same height and
built.
[26] The identification parade, if any, was not conducted fairly. In my view, the
admission of such evidence has adversely affected the rights of the Appellant
to a fair trial, guaranteed in section 35 of the Constitution.
2 (Case no 130/2022) [2024] ZASCA 61 (26 April 2024) at par. 17.
[27] Furthermore, the witness for the State, Nhlanhla Mnisi, testified that he knew
the assailant as Vajela. No one confirmed under oath on behalf of the State
that Vajela is the same person as the appellant.
[28] What is more concerning is the complainant's evidence in chief where the
following exchange took place:
"Prosecutor: Yes proceed you are at Raymond's place you bought four
beers with Ntantla [sic] and Bongani then what happened.
Mr Mulaudzi: While we were seated I just felt pressed I then went out to
go and pee. When I came back I stepped on the, on the gentleman by
mistake."
Prosecutor: Okay proceed you stepped on the gentleman by mistake and
what happened.
Mr Mulaudzi: After I stepped on the gentleman by mistake and when I
tried to apologise to the gentleman he started hitting me with an open
hand."
[29] The complainant later testified that he knew the appellant as Vajela. The
prosecution provided no explanation for this change of name, as the
complainant had initially described him only as a gentleman. His witness Mnisi
denied that he informed the complainant of the appellant's name.
[30] The complainant provided hearsay and speculative answers during the
identification parade, both in examination in chief and cross-examination. The
following exchange is illustrative:
"Prosecutor: And how did you know that you are supposed to attend an
ID parade on that day at Tsakane police station.
Mulaudzi: I received a phone call from a certain police officer from
Tsakane police station.
Prosecutor: Okay then on your arrival at the police station here in
Tsakane then what happened.
11
Mulaudzi: Upon my arrival I found a police official who took me to a
certain room. After I was sitting and waiting in that room another police
official came and took me to where I was supposed to identify.
Prosecutor: Yes
Mulaudzi: Upon my arrival I then identified Mzwandile the very same
police official took me to where I was waiting."
[31] The Prosecutor did not request the witness to name the police officers involved
in the aforementioned process. Furthermore, the complainant testified that he
knew the appellant's name "from the police station" without specifying who
had informed him.
[32] In evaluating this evidence, the Magistrate found that "although the form is not
before this court it is not even one the court would rely on regarding identity. I
just had to explain that it is also being corroborated by the accused that it
indicates the fairness of that parade."
[33] It is a well-established legal principle that when identification is in question , the
evidence purportedly identifying the person accused of the crime should be
examined with caution. The frequently cited words of Holmes JA in S v
Mthetwa3 remain relevant:
'Because of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is not enough for the
identifying witness to be honest: the reliability of his observation must
also be tested. This depends on various factors, such as lighting,
visibility, and eyesight; the proximity of the witness; his opportunity for
observation, both as to time and situation; the extent of his prior
knowledge of the accused; the mobility of the scene; corroboration;
suggestibility; the accused's face, voice, build, gait, and dress; the result
of identification parades, if any; and, of course, the evidence by or on
behalf of the accused. The list is not exhaustive. These factors, or such
3 1972 (3) SA 766 (A) at 768 A-C
12
of them as are applicable in a particular case, are not individually
decisive, but must be weighed one against the other, in the light of the
totality of the evidence, and the probabilities ... '
[34] In my view, the Magistrate erred in failing to consider that the complainant's
evidence was unreliable as no weight can be attached to the identification of
the accused during such an identification parade.
The single witness testimony
[35] The evidence regarding the shooting is one of a single witness. It is trite that
in terms of section 208 of the CPA, an accused may be convicted on the
evidence of a single witness provided same is satisfactory in all material
respects. In S v Sauls and others 1981 (3) SA 172 (A, the following ratio
decidendi was set out:
"There is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see the remarks of
Rumpff JA in S v Webber 1971 (3) SA 754 (A) at 758. The trial Judge
will weigh his evidence, will consider its merits and demerits and, having
done so, will decide whether it is trustworthy and whether, despite the
fact that there are shortcomings or defects or contradictions in the
testimony, he is satisfied that the truth has been told. The cautionary rule
referred to by De Villiers JP in 1932 may be a guide to a right decision
but it does not mean "that the appeal must succeed if any criticism,
however slender, of the witnesses' evidence were well founded."
[36] During his evidence in chief, the Complainant made contradictory statements.
The following exchange occurred:
"Prosecutor: Now I am going to ask you do you know who fired this shot
and who wounded you.
Mr Mulaudzi: Yes
Prosecutor: Please indicate to us who fired this shot or who wounded
you.
13
Mr Mulaudzi: It is brother Mzwandile.
Prosecutor: Now did you see Mzwandile firing this shot at you.
Mr Mulaudzi: As I have explained before Your Worship that we were
fighting I did not notice that he is the one who took out the firearm and
shot at me."
[37] The appellant's attorney asked questions regarding the same incident. The
following exchange took place:
"Ms Magayi: And then you did not see or noted where that shot was
coming from.
Mr Mulaudzi: No I did not see Your Worship.
Ms Magayi: So it could have come from anywhere because when the
gunshot went off you did not, you only realised that you were shot.
Mr Mulaudzi: Correct so Your Worship."
[38] The complainant also testified during cross-examination that the assailant was
in the company of two people. This directly contradicts Mnisi's evidence that
a man arrived with his girlfriend and sat next to them.
[39] It is also concerning that Bongani Vilakazi, who was in the company of the
complainant and Mnisi, was allowed to complete his evidence without being
asked to identify the individual who had an altercation with the complainant.
[40] Instead of evaluating the contradictions, the Magistrate held: "The probabilities
are that if the shot was fired by someone else somewhere it would be
impossible for the shot to injure the, [sic] to injure Mr Mulaudzi on his abdomen
entering in his abdomen without injuring the accused person because they
were facing each other." She proceeded to remark that "It would have gone
through him, through the accused to get to Mr Mulaudzi." I consider this finding
to be speculative.
14
[41] In these circumstances, I should question whether the state has proven the
appellant's guilt beyond reasonable doubt. I am not satisfied that it has.
Alibi
[42] An accused person's alibi defence should not be viewed in isolation but 'in the
light of the totality of the evidence in the case, and the Court's impressions of
the witnesses'.4 The appellant's alibi defence was unjustifiably subjected to
microscopic scrutiny. I do not think that the appellant would have done any
better than he did in the circumstances when accounting for his whereabouts
on 1 January 2019.
[43] The investigating officer in this case was never called to testify. It is unclear
whether the appellant informed him of his whereabouts when arrested in
relation to count 4. Furthermore, no witness testified regarding the
circumstances that led the police to believe the appellant arrested by
Maphanga for counts 1 to 3 was also the same suspect wanted in relation to
count 4. The complainant further testified that he knew the appellant "through
another guy who resides in the same vicinity with me Your Worship. They used
to play chess together''.
[44] The appellant's evidence that he was at his residence at the time of the incident
that resulted in the complainant's shooting was corroborated by his sister.
Moreover, the appellant was only arrested on 13 December 2019, more than
11 months after the commission of the offence. The State proffered no
explanation for such a lengthy delay in bringing the appellant to court.
[45] Except for the complainant's evidence regarding the shooting incident, there
was no other evidence to contradict the appellant's account of his
whereabouts. As I have outlined earlier, the complainant himself testified that
it is possible that someone else could have pulled the trigger. On closer
examination, the complainant's evidence regarding the shooting incident was
not corroborated and was not satisfactory in all material respects. In the
not corroborated and was not satisfactory in all material respects. In the
4 R v Hlongwane 1959 (3) SA 337 (A) at 341A; see also S v Khumalo en Andere {1991] ZASCA
70; [1991] 2 All SA 341 (A); 1991 (4) SA 310 (A) at 327H.
15
circumstances, the appellant's alibi stood unoontestocl. It could not properly
be dismissed as boing false beyond reasonable doubt. Consequently, the trial
court ought to have found that the State had failed to prove its case.
Conelusion
[46] In conclusion, l betieve the triaJ court erred on tho followmg grounds: 1t
erroneously accepted Mr Mulaudzi's e'lidence of the identtfication parade.
tailed to approach his singJe witness evidence with caution. and it erred in
rejecting the appeltanrs alib; defence. Furthermore. the trial court erred in
failing to tako lnto consideration that the State railed to prove its case beyond
a reasonable doubt.
[471 In light or the above, ft is my view that the appellant was wrorlQly convicted by
the trial oourt.
f48] In tho circumstances. I mako the following order.
1 The appeal IS upheld.
2 The order of tho trial court lS set astde and replaced with the followmg:
"The aca.ised as found not guilty and is discharged.
1111111111
MNISI AJ
Acting Judge of the Hign Court
Gauteng OivisJOn, Pretona
I Agree and rt ~ so ordered
16
Date of hearing:
Date of judgment:
Appearances :
For the Appellant:
For the Respondent:
Judge of the High Court
Gauteng Division , Pretoria
21 April 2026
14 May 2026
Adv MG Botha
Legal Aid South Africa, Pretoria
Adv A Coetzee
Director of Public Prosecut ions, Pretoria
17