Qhinga v State

On 12 July 2006 a group of armed men robbed security guards and employees during the payment of social grants at a community hall in Newlands near East London, committing multiple robberies with aggravating circumstances and attempted murders. Seven accused, including M Qhinga (accused 1), were charged. At trial, six accused were convicted and sentenced to lengthy imprisonment. The only evidence implicating Qhinga was a pointing-out allegedly made to the police, which amounted to a confession, and a subsequent written confession. The pointing-out was ruled admissible after a trial-within-a-trial, but the record contained no evidence proving the content of the pointing-out. Portions of the record were lost and could not be reconstructed. On appeal, the issue arose whether there was admissible evidence linking Qhinga to the crimes.

The appeal succeeded. The appellant’s convictions and sentences were set aside. The order of the court a quo was amended to reflect that the appeal of the first, third and fourth appellants was allowed and their convictions and sentences set aside, while the appeal of the second, fifth and sixth appellants was dismissed.

The case underscores the fundamental evidentiary principle that incriminating evidence, including a pointing-out, must not only be ruled admissible but must also be properly proved and recorded. It highlights the consequences of missing or unreconstructable trial records and reinforces the State’s burden in criminal prosecutions. The judgment also serves as a strong warning against police practices that undermine constitutional rights and the integrity of the criminal justice system.