THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 677/2020

In the matter between:
THERESA FORTUNATE MABASO

APPELLANT
and
THE STATE

RESPONDENT

Neutral citation: Mabaso v The State (677/2020) [2021] ZASCA 98
(09 July 2021)
Coram:
MBHA
and
MBATHA
JJA
and
CARELSE,
PHATSHOANE and MABINDLA-BOQWANA AJJA
Heard:

12 May 2021
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 09 July 2021.

Summary: Criminal Law – a confession by an accused shall not be admissible
as evidence against his or her co-accused – a previous inconsistent statement
by a hostile witness is only admissible to discredit that witness – no other
evidence implicating appellant in the murder of the deceased – appeal upheld
and conviction for murder set aside.

_____________________________________________________________
ORDER
________________________________________________________________________
On appeal from: Mpumalanga Division of the High Court, Mpumalanga
(Ngobeni AJ, sitting as court of first instance):
The appellant’s application for condonation for the late filing of her
Notice to Appeal, is granted.
The respondent’s application for condonation for the late filing of the
respondent’s heads of argument, is granted.
The appeal is upheld. The appellant’s conviction for murder is set aside,
and the order of the high court is replaced with the following order:
‘Accused 2 is found not guilty of murder as charged and is acquitted.’

JUDGMENT

Mbha JA (Mbatha JA and Carelse, Phatshoane and Mabindla-
Boqwana AJJA concurring):

[1] On 25 April 2018, the appellant, Ms Theresa Fortunate Mabaso, who
was accused 2, was convicted of murder by Ngobeni AJ in the high court,
Circuit Local Division of the Eastern Circuit Division, Mbombela, now called
the Mpumalanga Division (the high court). On 21 September 2018, the
appellant
and
her
co-accused,
Mr Wiseman
Mlamuli
Ngomane
(Mr Ngomane), who was accused 1, were both sentenced to life imprisonment
for murder, after the high court found that there were no substantial and
compelling circumstances justifying the imposition of a lesser sentence. Mr
Ngomane was also sentenced to various periods of imprisonment for
housebreaking with intent to commit murder, robbery committed with
aggravating circumstances and for unlawful possession of a firearm and
ammunition, which were ordered to run concurrently with the term of life
imprisonment. This appeal, which is with leave of the high court, is against
the appellant’s conviction. There is no appeal by Mr Ngomane.

[2] The parties have given their written consent for the disposal of this
appeal on the papers without oral argument in terms of s 19(a) of the Superior
Courts Act 10 of 2013. There are two preliminary applications by the
respective parties that must first be disposed of before delving into the appeal.
First, the appellant applies, in terms of rule 12 of the Rules of the Supreme
Court of Appeal (the rules), for condonation for her failure to comply with

rule 7(1)(b) of the rules, by not filing a notice to appeal within the prescribed
one month period after leave to appeal against her conviction for murder was
granted by the high court. Second, the respondent applies for condonation for
the late filing of its heads of argument. The parties are opposing each others
respective application.

[3] The appellant’s notice to appeal was filed simultaneously with the
application for condonation on 19 August 2020. As leave to appeal against the
conviction was granted on 21 September 2018, the appellant’s notice was
filed approximately 23 months out of time.

[4] The appellant has explained that she was convicted for murder on
25 April 2018 but that the high court did not provide reasons for its order on
that day. The matter was then adjourned to 24 July 2018, and the high court
ordered that she remain in custody. The high court handed down judgment
and its reasons on 24 July 2018. The appellant subsequently decided to obtain
new legal representation, which necessitated procuring a transcription of the
entire proceedings to enable her new attorneys to familiarise themselves with
the case.

[5] The appellant has furnished correspondence showing that her new
attorneys started writing to the Registrar, Pretoria, from 18 July 2018
requesting a transcript of the recordings. No less than 20 letters were sent to
the office of the registrar in this respect. It was only on 23 March 2020 when
the registrar informed the appellant’s attorneys that the transcription was
ready for collection. However, this unfortunately coincided with the
announcement and proclamation of the national state of disaster and the Alert

Level 5 lockdown (the lockdown), which was put into place due to the Covid-
19 pandemic. The appellant’s attorneys were thus only able to obtain the
record on 20 July 2020.

[6] In my view, whilst the period of non-compliance for the filing of the
notice was extraordinarily lengthy, the appellant has furnished a reasonable
explanation for the delay. Furthermore, in light of the view I take of this
appeal, which will be demonstrated later in the course of this judgment, and
the fact that the respondent has not shown that it will suffer prejudice if the
application was granted, I am accordingly of the view that it is in the interests
of justice that the appellant’s non-compliance should be condoned.

[7] The respondent’s heads of argument were filed three months out of
time. Part of the explanation given is that there was an honest mistake that
occurred in the respondent’s office relating to the allocation of the matter,
which was exercebrated by the lockdown. It has not been shown that granting
the condonation requested by the respondent will cause the appellant any
recognisable prejudice. In the circumstances, I am satisfied that the
respondent’s application for condonation ought likewise to be granted.

[8] The background facts and the circumstances in relation to the count of
murder, which is the subject matter of this appeal, are largely common cause.
They are briefly as follows. During the early hours of the morning on
8 November 2013, three male persons, armed with a firearm and ammunition,
approached the house of the deceased, Mr Sifiso Michael Mabuza, at stand
number 1376, Langeloop Trust, Tonga, Mpumalanga. At the time, the
deceased, who was a member of the South African Police Service (the SAPS)

holding the rank of constable, and a minor child were sleeping in one of the
bedrooms.

[9] Two of the assailants forcefully gained entry into the house through a
window whilst one of them remained outside and kept a lookout. After a
physical struggle with the deceased, one of the two assailants shot him in the
chest. The assailants robbed the deceased of his official SAPS issued firearm,
after which all three fled the crime scene. The deceased died of a gunshot
wound to the chest.

[10] Mr Ngomane was indicted with Mr Sindi Richman Mvubu (Mr Mvubu)
and Mr Victor Sibiya (Mr Sibiya) as accused 1 to 3 respectively, on all the
five counts referred to in paragraph 1. Mr Sibiya died before the
commencement of the trial. Mr Mvubu was, on 8 June 2016, convicted on all
five charges consequent to his plea of guilty amplified by his statement, that
was tendered in terms of s 112(2) of the Criminal Procedure Ac 51 of 1977
(the CPA). He was subsequently sentenced to 28 years’ imprisonment for the
offences, 10 years of which were suspended for a period on certain conditions.
Effectively, he had to serve 18 years’ imprisonment for the crimes.

[11] In his statement in terms of s 112(2) of the CPA, marked exhibit ‘F’,
Mr Mvubu implicated the appellant in the murder of the deceased. He stated
that on the day before the incident, the appellant summoned him, together with
Mr Ngomane and Mr Sibiya, to her place where she requested him to kill the
deceased. The reason she had wanted the deceased killed was because the
deceased had arrested her and confiscated her drugs and vehicle. He said the

appellant gave him a deposit of R10 000 to execute the killing and promised
to give him a further R16 000 when the deceased was killed.

[12] On the day after he had been sentenced, and having agreed to testify as
a State witness in the subsequent criminal trial of Mr Ngomane and the
appellant, Mr Mvubu was brought before Captain Madala Nwele Ndlovu
(Captain Ndlovu) of the SAPS, to whom he gave a further statement marked
exhibit ‘E’, detailing his involvement in the crimes. In this statement,
Mr Mvubu again implicated the appellant saying that on 7 November 2013
she phoned him and said that she wanted him to kill the deceased. He then
met the appellant who explained to him that the deceased had arrested her and
locked her up in the cells. He said the appellant told him she was prepared to
pay him a sum total of R46 000, inclusive of a deposit of R10 000. She then
paid him the deposit. Thereafter, he met Mr Ngomane and Mr Sibiya at a
tavern where they planned the murder of the deceased.

[13] Before the high court, a confession made on 6 January 2014 by Mr
Ngomane, before a magistrate, Mr O E Moletsane, was handed in and
accepted as an admission in terms of s 220 of the CPA. In this statement,
which was marked exhibit ‘D’, Mr Ngomane implicated the appellant in the
crime of murder by stating that she was the one who hired Mr Mvubu to kill
the deceased and paid him R10 000 as a part payment of the total sum of
R46 000, which she undertook to pay him for the killing. Mr Ngomane stated
that the appellant’s reason for wanting to have the deceased killed was that
the deceased had impounded her vehicle when it was found transporting dagga
and illicit cigarettes.

[14] The State led the evidence of various witnesses who gave viva voce
evidence, none of which directly implicated the appellant. The State also led
the evidence of Mr Mvubu in an attempt to corroborate the contents of both
his plea statement in terms of s 112(2) of the CPA, and the statements he gave
to Captain Ndlovu on 8 June 2014, marked ‘E’and ‘F’respectively.

[15] It transpired that Mr Mvubu had also made another statement under
oath marked exhibit ‘G’, to Warrant Officer M L Bhembhe on
30 November 2013. In this statement, Mr Mvubu alleged that the appellant
undertook to pay him R60 000 if he killed the deceased. The appellant further
undertook, according to this statement, to procure the murder weapon and then
provided him with her cell phone numbers. However, he said that he never
called the appellant. Later he received a call from another person advising him
that the deceased had been killed.

[16] The contents of Mr Mvubu’s statement marked exhibit ‘G’ are
markedly in contrast to those in his statement marked exhibit ‘E’. In exhibit
‘E’, Mr Mvubu stated that the appellant offered him a total sum of R46 000,
which included a R10 000 deposit that he shared with Mr Ngomane and
Mr Sibiya. Importantly, he stated unequivocally, in contrast to what he said in
exhibit ‘G’, that he was involved when they went to the deceased’s homestead
where he was killed. Mr Ngomane was the person, according to Mr Mvubu,
who entered the deceased’s house through the window and fired the fatal shot
killing the deceased. The contract killing amount changes remarkably in
Mr Mvubu’s plea statement marked exhibit ‘F’, where he mentioned the total
amount to be paid by the appellant to be R26 000.

[17] When Mr Mvubu testified, he denied that he ever pleaded guilty
previously. On being questioned about his plea statement marked exhibit ‘F’,
he said he could not remember his statement being reduced to writing and
being read into the record before he was convicted and sentenced. Although
he admitted to having taken part in the killing of the deceased, he stated in
contradiction to both his statements marked exhibits ‘E’ and ‘F’, that Mr
Ngomane was not present at the time and that it was instead the latter’s
brother, Mr Mantinti Innocence Ngomane, who was the third person involved,
and is the person who actually unlawfully entered the deceased’s home
through a window. Furthermore, Mr Mvubu testified that their purpose for
entering the deceased’s home was to steal and obtain firearms and not, as was
recorded in both his statements, at the initiation of the appellant.

[18] After a trial within a trial, after which the statement marked ‘E’ was
ruled admissible, Mr Mvubu was declared a hostile witness in terms of the
provisions of s 190 of the CPA. Under cross-examination by the State, Mr
Mvubu denied that he was hired by the appellant to kill the deceased. He said
that it was the police who insisted that he should say that the appellant was
the person who hired him to commit the murder.

[19] The appellant on the other hand testified that she was actively involved
in dealing in dagga and that she was arrested and convicted on two occasions.
She confirmed that on the last occasion when she was arrested, her Hyundai
i20 motor vehicle, which she used to convey the dagga, was impounded. Upon
her release, the deceased visited her at her home and told her that he was the
person who had provided the information concerning her dealing in dagga to
other police officals, as a result of which she was arrested and her vehicle was

impounded. The deceased then suggested that they work together in illicitly
selling the dagga, but she turned down his overtures. She further testified that
the deceased even undertook to assist her to have her impounded vehicle
released back to her. She denied ever instructing or hiring Mr Mvubu or
anybody to carry out the murder of the deceased.

[20] The high court accepted that the contents of exhibit ‘E’ consisted of
direct evidence on how the murder of the deceased was committed by
Mr Mvubu, Mr Ngomane and Mr Sibiya, and the role played by the appellant
in the matter. It also found that Mr Mvubu had repeated the contents of exhibit
‘E’ in his guilty plea marked ‘F’, which was accepted into evidence, and that
it was highly unlikely that he could have repeated what he knew to be false in
his guilty plea, having regard to the consequences thereof about which he had
been adequately warned.

[21] The high court took into consideration the testimony of the appellant
namely, that she was a self-confessed dealer in dagga, that she was arrested
and as a result her vehicle was confiscated, and that the deceased had made
overtures to assist her in receiving her vehicle back. The high court then
concluded that the previous inconsistent statement was interlinked with all the
evidence which proved the guilt of the appellant.

[22] In its evaluation of the evidence, the high court correctly accepted that
the State did not lead direct evidence implicating the appellant in the killing
of the deceased. The high court also accepted as trite law, the common law
principle that a previous inconsistent statement was only admissible to
discredit the witness, but not as the evidence of the facts stated therein. The

question that had to be answered, the high court reasoned, was whether a
statement made by a hostile witness had sufficient evidential value, when
evaluated and assessed with all the evidence tendered in its totality. The high
court placed reliance in the matter of S v Mathonsi,1 where a full bench of the
KwaZulu-Natal High Court, Pietermaritzburg, held that a court is entitled to
make substantive use of the previous statement by a hostile witness and give
the statement, as evidence, the appropriate weight, provided sufficient
guarantees of reliability are present. The full bench further found that the
statement could also be utilised for substantial purposes as an exeption to the
hearsay rule, the basic principles being that a conspectus of all the evidence
was required.

[23] The only evidence that implicated the appellant in the deceased’s
murder is that contained in Mr Mvubu’s statement marked exhibit ‘E’ and his
plea of guilty made in terms of s 112(2) of the CPA, marked exhibit ‘F’, both
made on 8 June 2016.

[24] In my view, the high court, with respect, mischaracterised the reasoning
of the full bench in Mathonsi.2 In Mathonsi the full bench held that evidence
contained in a prior inconsistent statement is such that it would only be
admissible if given in court. The high court failed to follow this important
guideline prior to admitting Mr Mvubu’s prior inconsistent statements.
[25] Furthermore, the statement marked Exhibit ‘E’ is a confession in which
Mr Mvubu implicated the appellant. Section  219 of the CPA states in explicit
language that ‘no confession made by any person shall be admissible as

1 S v Mathonsi 2012 (1) SACR 335 (KZP).
2 See fn 1 above.

evidence against another person’. This rule has been applied consistently in
various cases in this Court and the Constitutional Court. In Makhubela v S;
Matjeke v S,3 the Constitutional Court confirmed that extra-curial confessions
and admissions tendered by an accused are inadmissible against a co-accused
and, therefore, cannot be used against a co-accused. In Nndwambi v S,4 this
Court stated the following:
‘As the State has conceded, the admission incriminating the appellant should not have been
sufficient to discharge the State’s onus of proving the appellant’s guilt beyond a reasonable
doubt. The appellant denied any involvement in the commission of the offences and no
evidence was led by the State other than that of the accused who incriminated his co-
accused.’

[26] It follows that the high court clearly misdirected itself by failing to
recognise that Mr Mvubu’s previous statement marked exhibit ‘E’, was only
admissible to discredit him. It was not admissible as evidence against the
appellant.

[27] The admission that Mr Mvubu made in his plea statement in terms of
s 112(2) of the CPA, exhibit ‘F’, in which he implicated the appellant must
suffer the same fate. The high court ought not to have admitted it against the
appellant.

[28] There is another aspect which in my view should have been regarded
as an insurmountable obstacle for the State, namely that Mr Mvubu was a
single witness as against the appellant, as well as an accomplice. A reading of

3 Makhubela v S; Matjeke v S [2017] ZACC 36; 2017 (12) BCLR; 2017 (2) SACR 665 (CC) para 29.
4 Nndwambi v S [2018] ZASCA 99 para 3. See also Du Toit et al Commentary on the Criminal Procedure
Act para 23-22 J.

the judgment reveals that the high court failed to exercise the caution it was
enjoined to do in evaluating Mr Mvubu’s evidence. It is a widely
acknowledged rule that the evidence of an accomplice should be treated with
extreme caution.5

[29] The contradictions in all three statements made by Mr Mvubu and his
testimony, which are obviously material, should have alerted the high court to
be on its guard and find Mr Mvubu to be an untrustworthy witness. Being a
single witness, the high court ought to have found Mr Mvubu’s evidence to
be unsatisfactory.

[30] The only other evidence that implicated the appellant was the
confession by Mr Ngomane marked exhibit ‘D’, in which the Mr Ngomane
stated that he was recruited by Mr Mvubu to partake in the killing of the
deceased. Other than being clearly inadmissible in terms of s 119 of the CPA,
and on the basis of the case authority referred to earlier, this was hearsay
evidence not corroborated by any other evidence.

[31] In light of what I have stated above, the appellant’s conviction was
improper and falls to be set aside. The appellant’s conviction has also been
attacked on other bases, for example, that the appellant never received a fair
trial as inter alia, the trial judge unnecessarily entered the arena by subjecting
the appellant to unfair cross-examination. I see no reason to delve into the
other complaints having already found that the conviction must be set aside.

5 Mulaudzi v S [2016] ZASCA 70 para 11.

[32] In the circumstances, I make the following order:
The appellant’s application for condonation for the late filing of her
notice to appeal, is granted.
The respondent’s application for condonation for the late filing of the
respondent’s heads of argument, is granted.
The appeal is upheld. The appellant’s conviction for murder is set aside,
and the order of the high court is replaced with the following order:
‘Accused 2 is found not guilty of murder as charged and is acquitted.’

__________________
B H MBHA
JUDGE OF APPEAL

Appearances:

For appellant:
C G Jordaan
Instructed by:
Coert Jordaan Attorneys Inc, Nelspruit

Giorgi & Gerber Attorneys, Bloemfontein

For respondent:
M R Molatudi with C V Mkhulise
Instructed by:
Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

09 July 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Mabaso v The State (677/2020) [2021] ZASCA 98 (09 July 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding the appeal against the
order of the Mpumalanga Division of the High Court, Mpumalanga (the high court).
The issue before the SCA was whether the evidence of a single witness was reliable and acceptable
considering that the witness was declared a hostile witness.
The appellant was convicted of murder and sentenced to life imprisonment on the basis of inconsistent
statements, implicating the appellant, made by her co-accused. The high court accepted that the State
did not lead direct evidence implicating the appellant in the killing of the deceased and that a previous
inconsistent statement is only admissible to discredit the witness and not as the evidence of the facts
stated therein. However, after evaluating the evidence, the high court concluded that the previous
inconsistent statement was interlinked with all the evidence which proved the guilt of the appellant.
The SCA held that the high court clearly misdirected itself by failing to recognise that the co-accused’s
previous inconsistent statement, was only admissible to discredit him. It was not admissible as evidence
against the appellant. The fact that the co-accused was a single witness against the appellant, as well
as an accomplice, the SCA held further, was an insurmountable obstacle against the State. The SCA
concluded that the contradictions in all three statements made by the co-accused and his testimony
should have alerted the high court to be on its guard and find the co-accused to be an untrustworthy
witness and consequently find his evidence to be unsatisfactory. The SCA therefore upheld the appeal.

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