THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 522/13
Not Reportable

In the matter between:

TSHAKWATA GERSON

FIRST APPELLANT
MATORO NTHATHENI COLBERT

SECOND APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Tshakwata v The State (522/13) [2014]  ZASCA
(31
March
2014)

Coram:

Navsa, Theron and Petse JJA
Heard:

5 March 2014
Delivered:

31 March 2014

Summary:
Appeal against conviction and sentence on charge of murder. ─ Hearsay
evidence ─ statements made by two co-accused to a magistrate ─ not admissible ─
statements in any event in conflict. ─ Evidence insufficient to sustain a conviction.

ORDER

On appeal from: Limpopo High Court, Thohoyandou (Makgoba J sitting as court of
first instance):
The appeal is upheld and both the convictions and resultant sentences are set aside.

___________________________________________________________________

JUDGMENT
___________________________________________________________________

Petse JA (Navsa and Theron JJA concurring):
[1] The two appellants ─ together with four others who do not feature in this
appeal ─ were convicted in the Limpopo High Court (Makgoba J) on one count of
murder. Each was subsequently sentenced to imprisonment for life. They each
appeal against their convictions and resultant sentences with leave of the high court
(Ebersohn AJ).

[2] The appellants who were accused 5 and 6 at the trial (and their four co-
accused) pleaded not guilty and elected not to disclose the basis of their defence.
The death of the deceased was not in dispute. It appears that her death was as a
result of a ritual killing. This is evident from the extreme mutilation of the body. What
was in issue was the identity of the persons who caused her death. Several
witnesses were called to testify on behalf of the State. None gave evidence directly
implicating the appellants. During the course of the State’s case the State sought to
tender evidence of the statements alleged to have been made by accused 3 and 4
which, inter alia, it was submitted, incriminated the appellants. The State also sought
to tender evidence relating to pointings out that accused 3 and 4 were alleged to
have made. The admissibility of those statements and the pointings out was
contested by the affected accused on the grounds that they were not made freely
and voluntarily. Consequently a trial-within-a-trial was held to determine their
admissibility.

[3] At the conclusion of the trial-within-a-trial the high court ruled that the
statements were admissible. Following the admission of the statements the State
called two more witnesses, Mr Mutshelembele, who was employed at Mutale in the
Environmental Affairs Division and Captain Mphaphuli, the Investigating Officer. The
evidence of Mutshelembele was in substance aimed at discounting any possibility
that the deceased might have been killed by a crocodile. As to the evidence of the
investigating officer, the State sought to establish that the appellants were some of
the persons implicated in the statements made by accused 3 and 4.

[4] The admissible evidence tendered at the trial by the State was briefly to the
following effect. On 16 January 2001 the accused were, at different stages during the
day, seen at the homestead of Ms Maria Thivhuleli Ndou at Tshikundamalema
drinking traditional beer. Accused 1 and 2 were in the company of the deceased.
Later in the day the appellants and accused 3 and 4 who had been drinking together
left. I pause to record that accused 3 was married to the deceased. Before sunset
accused 1 departed and shortly thereafter accused 2 and the deceased who had
been drinking together also left. On 18 January 2001, Mr Josias Corombi Radzilani,
then residing at Tshikundamalema, discovered the deceased’s body floating in a
puddle of water next to a river and summoned the police who retrieved the body
which was subsequently identified by accused 3’s elder brother. On 24 January 2001
Doctor Akut conducted a post-mortem examination on the body of the deceased but
was unable to determine the cause of death because of the body’s advanced state of
decomposition and because of the number of major organs that were missing.

[5] As alluded to above, accused 3 and 4 made statements, the former to a
magistrate at Mutale and the latter both to a magistrate at Mutale and to Captain
Mphaphuli. In his statement accused 3, inter alia, said that on 16 January 2001 he
left his home in search of his wife, the deceased, when told that the deceased had
gone to the bar. When he arrived at the bar he did not find the deceased but
remained there drinking liquor until 17h00. Thereafter he left to return home with
accused 4 but discovered on arrival that the deceased was still not at home. He then
went to Murangwe where he drank more liquor together with accused 4. Later he left
with accused 4 and when they reached a river they found the appellants drinking. He

was called by accused 1 and then instructed (he does not state by whom) to
blindfold accused 4. He then heard a loud bang after which there was silence. He
and accused 4 left the scene to return home to sleep. This statement is meaningless
in that it does not connect any of the appellants with the killing of the deceased.
Indeed it does not connect anyone of them to any wrongdoing.

[6] In his statement, accused 4 starts off by saying that he ‘admits that he
directly participated in the killing of the deceased Vho-Mudangawe’, which, on the
face of it appears to be a confession to participating in a killing. However, later in the
statement he says the following:
‘[l] complied under duress or coercion. I have never seen or witness as to what was being
done to the deceased since my eyes were closed or shut.’

[7] It is noteworthy that, in the statement, there is reference only by surname to
individuals who were involved in ‘grabbing’ a deceased who is named in the terse
manner described in para 6 above. The surname of accused 3 does not appear in
the statement.

[8] In order to overcome the obvious problem relating to the identification of
participants, the State resorted to calling the investigating officer to explain who
accused 4 was referring to in his statement. The investigating officer testified that
accused 4 was referring to all the accused. There was no basis for permitting the
investigating officer to do so.

[9] All six accused did not testify at the trial. The high court placed much store on
the fact that the appellants (and their erstwhile co-accused) did not testify in their
defence. It held that the consequence of such failure was that the State’s case
against them remained unchallenged. Consequently, the high court concluded that
nothing militated against the acceptance of such evidence more particularly having
regard to the statements made by accused 3 and 4.

[10] Whilst the failure of the accused to testify may in appropriate circumstances
be a factor in deciding whether their guilt has been proved beyond a reasonable
doubt by the State, this is permissible only when the State has at least established a

prima facie case. (See eg S v Francis 1991 (1) SACR 198 (A) at 203f-i.) In this case
the State’s case came nowhere near establishing a prima facie case against the
appellants. Thus there was no need for the appellants to lead any evidence in
rebuttal. See eg S v Chabalala 2003 (1) SACR 134 (SCA) para 21. Accordingly the
failure of the appellants to testify at the trial did not avail the State in discharging the
onus resting upon it.

[11] If indeed the statement by accused 4 was a confession, as it purported to be,
it was not, in terms of s 219 of the Criminal Procedure Act 51 of 1997, admissible
against anyone other than himself. The problem, however, is that the statement
ultimately exonerates him and it is unclear who was named therein and, indeed, it is
difficult to establish what those ‘named’ actually did. There was no application or
ruling in terms of s 3(1) of the Law of Evidence Amendment Act 45 of 1988 to have
the statements admitted on any other basis. That they were admissible at all is highly
questionable. In any event, as demonstrated above, they are virtually meaningless
and do not contribute to the State’s case. Consequently, it is clear that the State
failed to prove the guilt of the appellants beyond a reasonable doubt.

[12] Faced with the foregoing insurmountable hurdles counsel for the State was
constrained to concede that the conviction of the appellants is plainly insupportable.

[13] Accordingly the appeal is upheld and both convictions and resultant
sentences are set aside.

_________________
X M PETSE
JUDGE OF APPEAL

APPEARANCES:

For the Appellants:       M J Manhwadu

Instructed by:

Justice Centre, Thohoyandou

Justice Centre, Bloemfontein

For the Respondent:    R J Makhera

Instructed by:

Director of Public Prosecutions, Thohoyandou

Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 March 2014
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

TSHAKWATA and another v THE STATE

The Supreme Court of Appeal (SCA) today upheld the appeal of the appellants against their
convictions and related sentences imposed in the Limpopo High Court, Thohoyandou on a
charge of murder.

The issue before the SCA was whether the appellants had associated themselves with the
murder of the deceased who was the wife of one of their co-accused in the High Court. The
appellants were convicted on the basis of statements and pointings out that were made by two
of their co-accused. The affected two co-accused had contested the admissibility of the
statements and pointings out on the grounds that they were not made freely and voluntarily.
The high court ruled the statements and pointings out admissible.

At the main trial none of the six accused testified in their defence. There was no other
admissible evidence implicating the appellants in the commission of the murder. The high
court held that the failure of the appellants and their co-accused to testify meant that the
State’s case against them was unchallenged.

The SCA found that the statements made by the two co-accused were meaningless and in any
event conflicting. It went on to say that even if the statements were admissible, which was
highly questionable, they did not assist the State.

Consequently the SCA held that the conviction of the appellants were not sustainable. Hence
the appeal was allowed and convictions and the related sentences were set aside.