THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1232/2021
In the matter between:
ZWELITHINI MAXWELL ZONDI

APPELLANT
and
THE STATE

RESPONDENT

Neutral citation: Zwelithini Maxwell Zondi v The State (1232/2021) [2022]
ZASCA 173 (7 November 2022)
Coram:
ZONDI, NICHOLLS, MOTHLE JJA and MJALI and
MASIPA AJJA
Heard:

7 November 2022
Delivered:
1 December 2022
Summary:
Criminal law and procedure – appeal against conviction –
credibility and reliability of the witnesses’ identification of the appellant –
appellant’s conviction based on unexplained, untested and uninvestigated bald

statements of the witnesses – whether the State succeeded in discharging the
burden of proof – appellant entitled to benefit of doubt – conviction and
sentence set aside.

ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Ismail,
Mahalelo JJ and Van Veenendaal AJ, sitting as a full court):
The appeal is upheld.
The order of the full court is set aside and replaced by the following
order:
‘The appeal is upheld and the conviction and sentence of the appellant
are set aside.’

JUDGMENT

Mjali AJA (Zondi, Nicholls, Mothle JJA and Masipa AJA concurring):
[1] Prosecutors play a critical role in the criminal justice system in response
to crime. They generally represent the authority of the State in ensuring that
perpetrators of crime are held accountable for their actions and in that way
communicate a strong message to the community that crime will not be
tolerated. In line with the burden of proof that rests on their shoulders, it is
essential that they meticulously ensure that the matters that they bring before
courts have been properly investigated and when that has been done, ensure
that the evidence is properly presented in court. Sadly, what follows is a model

of the very opposite and depicts a picture of a matter that was badly
investigated and badly prosecuted.

[2] The appellant, Mr Zwelithini Maxwell Zondi (Zondi), was prosecuted
in the Gauteng Division of the High Court, Johannesburg on two charges of
murder, three counts of attempted murder as well as unlawful possession of
firearm and ammunition respectively. He pleaded not guilty to all the charges
and proffered a plea explanation of an alibi, contending that he was nowhere
near the scene of crime on the day as alleged, but was at his home with his
girlfriend. He was convicted on all counts as charged and sentenced to life
imprisonment in respect of each count of murder, 10 years’ imprisonment in
respect of each count of attempted murder, 5 years’ imprisonment in respect
of the charge of unlawful possession of firearm and 3 years’ imprisonment in
respect of the charge of unlawful possession of ammunition. The court
ordered that the sentences in respect of counts 2 to 7 run concurrently with the
sentence in respect of count 1. Effectively, the appellant was to serve a term
of life imprisonment. The court also declared him unfit to possess a firearm.

[3] He unsuccessfully applied for leave to appeal against his conviction and
sentence in the court of first instance. On petition to this Court, the appellant
was granted leave to appeal to the full court of the Gauteng Division of the
High Court, Johannesburg. The full court dismissed his appeal. Aggrieved by
the dismissal of his appeal by the full court, the appellant again petitioned this
Court and was granted special leave to appeal to this Court against his
conviction.

[4] The main grounds of appeal were as follows. Firstly,  that the full court
erred in accepting the evidence of the state witnesses identifying the appellant
as their attacker, as true beyond reasonable doubt, whereas it was palpably
untruthful and should have been rejected as false. Secondly, that the full court
must have entertained reasonable doubt in the light of the fact that the state
witnesses must have colluded to falsely implicate the appellant. Further, that
the full court erred in placing too much reliance on the failure of the appellant
to disclose earlier in the trial and to put to the witnesses that his vehicle was
fitted with a tracking device. Accordingly, the full court erred in evaluating
the appellant’s alibi defence, but rather drew an adverse inference against him
for not disclosing early during the trial that his vehicle was fitted with a tracker
device.

[5] The issues to be decided in this appeal are whether the witnesses’
identification of the appellant was credible and reliable; whether the
appellant’s alibi and his denial of complicity in the commission of the offences
are reasonably possibly true. Before doing so, it is apposite to first set out
briefly the background facts in this matter.

[6] On 3 July 2016, in the early evening at approximately 18h00, a group
of men arrived at the Mall of Africa taxi rank in Midrand in a white VW Polo
motor vehicle and fired gunshots at the taxi drivers/owners who were waiting
to load passengers. There is no further description of the VW Polo motor
vehicle beyond it being a white sedan. Notably, however, Morris Kazamule
Machekecheke, a state witness, described it as a white VW Polo hatchback.
The significance of this will become apparent later in this judgment. The

appellant is alleged to be amongst the four occupants of that VW Polo and is
the one who purportedly fired gunshots at the witnesses and the deceased.

[7] Lungisani Hlongwane and Mkhacani Terris Yingwani were the two taxi
drivers that were fatally wounded by the gunshots and were certified dead at
the scene. Penny Shirinda (Shirinda), Phati Shadrack Mlangeni (Mlangeni)
and Morris Kazamule Machekecheke (Machekecheke) successfully ran for
cover and were the only witnesses that were led by the State during the trial
to prove its case against the appellant. There is no dispute as to how the events
evolved. The identity of the deceased, the cause of their deaths, the correctness
of the procedure of the pointing out, the post-mortem reports as well as the
correctness of the doctor’s findings were all admitted in terms of s 220 of the
Criminal Procedure Act 51 of 1977 (the CPA).

[8] What is in dispute is the identity of the perpetrator, as the appellant’s
defence is that of an alibi. The three state witnesses are all members of the
Alexandra, Randburg, Midrand and Sandton Taxi Association (ARMSTA).
They operate from the Mall of Africa taxi rank to Olievenhoutbosch, Midrand,
Alexandra as well as to Johannesburg CBD. The appellant is a member of the
Alexandra Taxi Association (ATA). It is common cause that at the time of the
incident there was a conflict between these associations regarding their
operating routes.

[9] The state witnesses testified that the appellant was the one who fired
gunshots at them and that they were certain about his identity, as they were
not seeing him for the first time on the day of the shooting. They stated that
they had seen him on 27 June 2016, approximately six days prior to the

shooting of 3 July 2016. They alleged that he was one of four men that arrived
on 27 June 2016 at their taxi rank in a Toyota Corolla which bore ATA stickers
on the sides. On their arrival, the appellant informed them and the other taxi
operators that they, as members of ATA, were sent to work with them. At that
moment, a certain Toyota Quantum minibus taxi arrived and the appellant,
pointing at the Quantum, informed them that it would operate at their rank.
Further, that it had to be loaded with passengers immediately after the minibus
taxi that was loading at the time was full. The witnesses and their group
objected and a verbal altercation ensued. It is then that the appellant is alleged
to have uttered some threatening words.

[10] The state witnesses were certain that the person who threatened them
on 27 June 2016, was the one that fired gunshots at them on 3 July 2016 and
that person was the appellant. Shirinda testified that he saw the appellant for
the first time on 27 June 2016 and when the appellant made the threats, he
requested his driver to take pictures of the appellant using his (Shirinda’s)
cellphone. He then kept the pictures. On the day of the shooting he had already
enquired about the appellant’s name from other taxi operators, using the
pictures he had on his cellphone1 and already knew the appellant’s name as
Zondi. Yet, he never mentioned this when he made a statement to the police
immediately after the incident of 3 July 2016. All that he stated was that he
could identify the perpetrator. He gave four different reasons for his failure to
provide the police with  the name of the appellant as the perpetrator. Firstly,
that he was paralysed with fear when the statement was obtained from him
immediately after the incident. Secondly, that he feared for his life, as he did

1 The cellphone was lost on the day of the shooting.

not know who else was present when he made the statement. Thirdly, that it
did not occur to him that he should inform the police about the name of the
perpetrator. The fourth reason was that he did not trust the police, as some of
them are members of taxi associations. Shirinda pointed out the appellant at
the second identification parade. He did not point out anyone at the first
identification parade since the appellant was not part of it.

[11] Machekecheke, on the other hand, pointed out a certain Sibusiso
Cornelius Mkhize (Mkhize) in the first identification parade as the shooter. In
a statement made to the police immediately after pointing him out,
Machekecheke stated that he remembered his face very well, as he was in
close proximity to him and that he had taken a good look at him. Further, that
Mkhize was the one that approached Machekecheke and started shooting at
them. Machekecheke also stated that, that person was later known to him as
Sibusiso Cornelius Mkhize. He subsequently made a second statement stating
that he erroneously pointed out Mkhize and that the charges against Mkhize
should be withdrawn. When cross-examined on this aspect, Machekecheke
explained that he was confused when he gave the statement at the first
identification parade. Significantly, he went further to state that when he
looked at the person during the trial he got confused. His subsequent statement
is undated, but was clearly made after the first identification parade, as it
sought to correct the alleged error made there. It is worth noting that the
change of mind as to the identity of the perpetrator was prompted by
Machekecheke learning from his other colleagues in Midrand that the person
who threatened them on 27 June 2016 was Zondi.

[12] Mlangeni testified that he had known the appellant for a period of five
years at the time of the incident, as they both drove on the same route. When
he made a statement to the police, Mlangeni stated that he did not know the
perpetrators and could not identify them. Despite him having indicated in his
statement that he did not know and could not point the perpetrators out,
Mlangeni was invited to the second identification parade where he pointed out
the appellant. There was no explanation provided as to why he was invited to
the identity parade in view of his expressed inability to identify the
perpetrators in his statement to the police. The appellant took issue that all the
state witnesses knew him at the time of the incident, yet in their statements to
the police, they never mentioned his name. Also, that except for Shirinda, the
two other state witnesses told the police that they did not know who fired
gunshots at them and could not identify him.

[13] Their belated ability to identify the appellant appears to be based solely
on the fact that they had seen him for the first time on 27 June 2016, when he
arrived at their taxi rank and threatened them with violence. When they again
saw the perpetrator on 3 July 2016, they realised that he was the man who
threatened them on 27 June 2016, approximately six days before the shooting
incident. It is this evidence that deserves some close scrutiny, particularly in
the light of the pliability of their versions from not being able to identify and
not knowing the perpetrator to later knowing his name and being able to
identify him at an identification parade. In S v Mthetwa,2 Holmes JA set out
the proper approach when dealing with the evidence of identification as
follows:

2 S v Mthetwa [1972] 3 All SA 568 (A); 1972 (3) SA 766 (A) at 768A-C.

‘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 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; see cases
such as R v Masemang,  1950 (2) SA 488 (AD); R v Dladla and Others,  1962 (1) SA
307 (AD) at p 310C; S v Mehlape,  1963 (2) SA 29 (AD).’

[14] Identification must not only be credible, but must also be reliable.
Bearing in mind the version of the state witnesses that they saw the appellant
for the first time on 27 June 2016 as well as the circumstances pertaining to
the day of the shooting, of a moving scene akin to a war zone, the reliability
of their identification of the perpetrator is doubtful. The circumstances were
unconducive to reliable cognisance, particularly when one considers that it was
in the early evening and that when the shooting started the witnesses ran for
their lives. As such, the court below ought to have entertained serious
reservations as to the reliability of the identification of the appellant as the
perpetrator especially where the identifying witnesses had initially indicated
their inability to identify the perpetrator. Their bald statements that the
appellant was the person who committed the crime is not enough. It has been
held that such statements unexplained, untested and uninvestigated, leave the
door wide open for possibilities of mistake.3 In this matter, the prosecutor

3 R v Shekelele and Another 1953 (1) SA 636 (T) at 638.

seems to have been satisfied with their evidence that the person they saw firing
at them was the one that they had seen on 27 June 2016. The prosecutor failed
to elicit sufficient evidence to establish the credibility and reliability of the
state witnesses’ identification of the appellant.

[15] The state witnesses’ credibility was destroyed when they admitted to
knowing the appellant as well as his name prior to the incident on 3 July 2016
and yet failed to disclose his identity at the earliest opportunity to the police.
That, in my view, was fatal to the State’s case, particularly in the light of the
fact that the reasons given by the state witnesses under cross-examination for
such failure kept changing as if tailored to meet the circumstances. A situation
that is akin to the suggestive benefit that our case law cautions the courts to
be vigilant of.4 That, in my view, casts serious doubt on the reliability of the
state witnesses’ identification of the appellant as the perpetrator. On the
contrary, it lends credence to the argument advanced by the appellant that
there must have been collusion between the state witnesses to falsely implicate
him. The history of differences between their associations, makes this
possibility real and, considered with all the other factors, renders their
evidence as not reliable beyond reasonable doubt.

[16] During his testimony, the appellant maintained that he was not involved
in the commission of the offences. His alibi defence was disclosed very early
during the trial and his version put to the state witnesses. It is trite that there
is no onus on the accused person to establish his alibi. In evaluating the

4 See S v Mthethwa [1972] 3 All SA 568 (A); 1972 (3) SA 766 (A) at 768A-C.

defence of an alibi, the dictum in R v Hlongwane,5 where the accused denied
complicity, is instructive:
‘At the conclusion of the whole case the issues were: (a) whether the alibi might reasonably
be true and (b) whether the denial of complicity might reasonably be true. An affirmative
answer to either (a) or (b) would mean that the Crown failed to prove beyond reasonable
doubt that the accused was one of the robbers.’

[17] Despite there being no duty to prove his alibi, it is apparent from the
appellant’s testimony that he informed the police that his VW Polo motor
vehicle was fitted with a tracking device. By implication, he must have
informed them about his alibi defence. It was, therefore, incumbent upon the
police to conduct investigations fully, and upon the State to prove its case
beyond reasonable doubt. The State should have led evidence linking the
appellant to the crime, which evidence must be sufficient and credible to
discharge the onus that rests on it. Yet, the State failed in that regard. Instead,
it led evidence of the identification of the appellant, which should have been
found by the trial court as well as the court below to be unreliable in the light
of the numerous problems highlighted earlier in this judgment. There is no
detailed description of the VW Polo that was involved in the shooting other
than it being white. The witnesses differed as to whether it was a sedan or a
hatchback. Consequently, there is absolutely no connection of that white VW
Polo to the appellant. Under the circumstances, there is no justification for
associating the appellant with that white VW Polo, bearing in mind his
evidence that his white VW Polo vehicle was parked at his home on the day
of the incident and that the State’s evidence does not prove any evidence to
the contrary.

5 [1959] 3 All SA 308 (A); 1959 (3) SA 337 (A) at 339C-D

[18] Similarly, the rejection of the appellant’s alibi purely on the basis of his
failure to disclose early during the trial that his vehicle was fitted with a
tracking device finds no justification on the facts and in law. On the contrary,
it seeks to reverse the onus onto the appellant to prove his innocence; a
situation which would be contrary to the right that is enshrined in the
Constitution of being presumed innocent until proven guilty.6 It was never
part of the appellant’s alibi defence that his vehicle was fitted with a tracker.
The trial court as well as the full court failed to properly evaluate the evidence
holistically. As stated by this Court in Combrinck v S:7
‘It is trite that the State must prove its case beyond reasonable doubt and that no onus rests
on an accused person to prove his innocence. The standard of proof on the State and the
approach of a trier of fact to the explanation proffered by an accused person has been
discussed in various decisions of this Court and of the High Court (see R v Difford 1937
AD 370 at 373; S v Van der Meyden 1999 (1) SACR 447 (W) at 448F-I). It suffices for
present purposes to state that it is well settled that the evidence must be looked at
holistically.’

[19] The explanation proffered by the appellant that he was home with his
girlfriend at the time of the shooting is corroborated by his girlfriend. In
rejecting the appellant’s evidence, the trial court placed heavy reliance on the
fact that the appellant was identified in the identification parade by witnesses
who knew him. I have already in this judgment alluded to the numerous
problems with such identification and found same to be unreliable.

6 Constitution, s 35(3)(h).
7 [2011] ZASCA 116; 2012 (1) SACR 93 (SCA) para 15

[20] The trial court also relied on the fact that the appellant only mentioned
during re-examination that his VW Polo was fitted with a tracking device.
That reliance is misplaced for the following reasons. The appellant disclosed
his defence timeously. There was no duty on him to prove his alibi. In the light
of the uncontroverted evidence that the police had knowledge of the fact that
a white VW Polo was involved and that the appellant owned a white VW Polo,
it was then incumbent upon them to properly investigate this aspect so as to
exclude the appellant’s alibi defence. Moreover, they were informed about
this tracking device as well as the company that would assist with the tracking
records of the vehicle, yet they did nothing to investigate this aspect. Neither
did the State lead any evidence linking the white VW Polo that was at the
scene to the appellant. There was no justification for the rejection by the trial
and the full court of the appellant’s alibi, purely from the alleged failure to
disclose the presence of the tracking device in the appellant’s vehicle.

[21] Similarly, the reliance by the State on the dictum in Thebus and Another
v S,8 for the proposition that the appellant was shifting the goalposts by his
late disclosure of the presence of the tracking device in his VW Polo vehicle
is misplaced. That argument loses sight of the fact that the appellant disclosed
his alibi in his plea. Further, that it was never part of the appellant’s alibi
defence that his vehicle was fitted with a tracking device. Even if it were, it
was still incumbent upon the police to investigate as well as the prosecution
to ensure that proper and sufficient evidence is placed before court to refute
the alibi. The evidence led in this matter, at best for the State, simply creates
a suspicion that the appellant could have been one of the perpetrators, but

8 2003 (2) SACR 319 (CC)

certainly does not refute the appellant’s alibi. As such, it also cannot be said
that the appellant’s alibi is not reasonably possibly true. It is a trite principle
of our law that suspicion, however strong, cannot replace proof beyond a
reasonable doubt.

[22] In Thebus, the Constitutional Court makes it plain that the late
disclosure of an alibi is one of the factors to be taken into account in evaluating
the evidence of the alibi. Thus, it is not the only factor to be considered, as,
standing alone, it does not justify an inference of guilt. Further, that it is a
factor which is only taken into consideration in determining the weight to be
placed on the evidence of the alibi. By the same token, the alleged failure of
the appellant to disclose that his VW Polo was fitted with a tracking device,
standing alone, could not justify the rejection of the appellant’s alibi defence.
This Court in Musiker v S,9 held that once an alibi has been raised, the alibi
has to be accepted, unless it can be proven that it is false beyond a reasonable
doubt. On a conspectus of all the evidence in this matter, the State failed to
discharge the burden of proof beyond reasonable doubt that the appellant was
the one who fired gunshots at the deceased and the witnesses. There is, thus,
no justification for rejecting the appellant’s alibi. It is a well-established
principle in our law that in search for the truth it is better for a guilty person
to go free than for an innocent one to be convicted. On this basis, the accused
is given the benefit of doubt and must the appeal must succeed.

[23] In the result, the following order is made:
The appeal is upheld.

9 Musiker v S [2012] ZASCA 198; 2013 (1) SACR 517 (SCA) paras 15-16.

The order of the full court is set aside and replaced with the
following:
‘The appeal is upheld and the conviction and sentence of the appellant
are set aside.’

_________________________
G N Z MJALI
ACTING JUDGE OF APPEAL

Appearances

For appellant:

J C Kruger SC

Instructed by:

BDK Attorneys, Johannesburg

Symington De Kok Attorneys, Bloemfontein

For respondent:

J M K Joubert

Instructed by:

Director of Public Prosecutions, Johannesburg

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:
1 December 2022
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
Zwelithini Maxwell Zondi v The State (1232/2021) [2022] ZASCA 173 (1 December 2022)
The Supreme Court of Appeal (SCA) upheld an appeal against the judgment of the Gauteng Division
of the High Court, Johannesburg, sitting as a full court, which dismissed an appeal against the conviction
and sentence of the appellant, Mr Zwelithini Maxwell Zondi, on two charges of murder, three counts
of attempted murder as well as unlawful possession of firearm and ammunition, respectively. No order
was made as to costs.

The background facts of the matter were as follows. On 3 July 2016, in the early evening at
approximately 18h00, a group of men arrived at the Mall of Africa taxi rank in Midrand in a white VW
Polo motor vehicle and fired gunshots at the taxi drivers/owners who were waiting to load passengers.
The appellant was alleged to be amongst the four occupants of that VW Polo and was the one who
purportedly fired gunshots at the witnesses and the deceased. The state witnesses testified that the
appellant was the one who fired gunshots at them and that they were certain about his identity, as they
were not seeing him for the first time on the day of the shooting. They stated that they had seen him on
27 June 2016, approximately six days prior to the shooting of 3 July 2016, during which a verbal
altercation ensued between them and the appellant was alleged to have uttered some threatening words.

The appellant pleaded not guilty to all the charges and proffered a plea explanation of an alibi,
contending that he was nowhere near the scene of crime on the day as alleged, but was at his home with
his girlfriend. He was convicted on all counts as charged and, effectively, the appellant was to serve a
term of life imprisonment.

The issues to be decided in the appeal were whether the witnesses’ identification of the appellant was
credible and reliable; whether the appellant’s alibi and his denial of complicity in the commission of
the offences were reasonably possibly true.

The SCA found that bearing in mind the version of the state witnesses that they saw the appellant for
the first time on 27 June 2016 as well as the circumstances pertaining to the day of the shooting, of a
moving scene akin to a war zone, the reliability of their identification of the perpetrator was doubtful.
As such, the SCA found that the court below ought to have entertained serious reservations as to the
reliability of the identification of the appellant as the perpetrator, especially where the identifying
witnesses had initially indicated their inability to identify the perpetrator. Their bald statements that the
appellant was the person who committed the crime was not enough. In this regard, the SCA found that
the state witnesses’ credibility was destroyed when they admitted to knowing the appellant as well as

his name prior to the incident on 3 July 2016 and yet failed to disclose his identity at the earliest
opportunity to the police. That, in the SCA’s view, was fatal to the State’s case.

The SCA found further that there was no justification for the rejection by the trial and the full court of
the appellant’s alibi, purely from the alleged failure to disclose the presence of the tracking device in
the appellant’s vehicle. The appellant had disclosed his defence timeously. There was no duty on him
to prove his alibi. The SCA found that in the light of the uncontroverted evidence that the police had
knowledge of the fact that a white VW Polo was involved and that the appellant owned a white VW
Polo, it was then incumbent upon them to properly investigate this aspect so as to exclude the appellant’s
alibi defence. Moreover, they were informed about this tracking device, yet they did nothing to
investigate this aspect. Neither did the State lead any evidence linking the white VW Polo that was at
the scene to the appellant.

Accordingly, the SCA held that on a conspectus of all the evidence in the matter, the State failed to
discharge the burden of proof beyond reasonable doubt that the appellant was the one who fired
gunshots at the deceased and the witnesses. There was, thus, no justification for rejecting the appellant’s
alibi. As such, the SCA found that it also could not be said that the appellant’s alibi was not reasonably
possibly true. On this basis, the SCA held that the accused had to be given the benefit of doubt and the
appeal succeeded.

~~~~ends~~~~