Director of Public Prosecutions, Limpopo v Kagiso Kodishi Mokgotho

The respondent was charged in the Limpopo High Court with murder, firearm-related offences, and robbery with aggravating circumstances arising from an incident on 24 December 2010 in which a minibus taxi driver was shot dead. The State’s case on murder relied mainly on circumstantial evidence and the testimony of two fellow passengers who implicated the respondent as the shooter. The respondent pleaded not guilty and provided a plea explanation under s 115 of the Criminal Procedure Act 51 of 1977, alleging that one of his companions shot the deceased. He did not testify or call witnesses. The trial court acquitted him on all counts, finding that the State failed to prove guilt beyond reasonable doubt and holding that the respondent’s ‘version’ was reasonably possibly true. The State applied for reservation of a question of law under s 319 of the CPA, contending that the trial court applied an incorrect test in evaluating the evidence, but the application was refused. The State then sought leave to appeal to the Supreme Court of Appeal.

The application for leave to appeal was granted; the appeal was upheld; it was declared that the issue raised by the State was a question of law answered in favour of the Director of Public Prosecutions; and the respondent’s acquittal on the count of murder was set aside.

The case clarifies the proper evidentiary test to be applied where an accused does not testify and reinforces the distinction between factual misdirections and errors of law under s 319 of the CPA. It confirms that treating a plea explanation or cross-examination propositions as an ‘accused’s version’ is a legal error. The judgment is significant for defining the limits of State appeals against acquittals and for guiding trial courts on the correct approach to evaluating evidence in criminal trials.