Andile William Libazi and Mabhuti Mbayimbayi v The State

The two appellants and three others were charged with murder, conspiracy to commit murder, five counts of attempted murder, and various firearm-related charges arising from shooting incidents in Sterkspruit on 27 May 1995. The incidents occurred in the context of a violent feud between two taxi associations: the Herschel United Taxi Association (HUTA) and the Herschel Long Distance Taxi Association (HLDTA). The appellants were members of HUTA, while the deceased and the complainants in the attempted murder counts were members of HLDTA. The State's case relied primarily on eyewitness identification, the evidence of Mbulawa (who testified the appellants sought assistance to fight the rival association), and an extra-curial statement given by co-accused Shasha to a magistrate. Shasha did not testify at trial and later died. The High Court admitted Shasha's statement as hearsay evidence against the appellants under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988. The appellants were convicted of conspiracy to commit murder and multiple counts of attempted murder and sentenced to effective terms of 13 and 12 years' imprisonment respectively.

• Whether the extra-curial statement of co-accused Shasha was admissible as hearsay evidence against the appellants under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988
• Whether the admission of such hearsay evidence violated the appellants' constitutional right to challenge evidence and their fair trial rights under section 35(3) of the Constitution
• Whether the decision in S v Ndhlovu regarding the admissibility of hearsay statements should be followed or departed from
• Whether the evidence established the crime of conspiracy to commit murder
• Whether the eyewitness identification evidence was reliable for the attempted murder convictions
• Whether the doctrine of common purpose applied to convict Mbayimbayi despite lack of evidence of active participation

1. The appeal against conviction and sentence on count two (conspiracy to commit murder) was upheld and set aside for both appellants. 2. The appeal against convictions on counts three, four and six (attempted murder) was dismissed for the first appellant. 3. The appeal against convictions on counts three and four (attempted murder) was dismissed for the second appellant. 4. The sentences were set aside and replaced with 10 years' imprisonment on each attempted murder count, all sentences to run concurrently, resulting in an effective sentence of 10 years' imprisonment for each appellant.

1. The admission of a hearsay statement by a co-accused who does not testify and who is an accomplice violates the fair trial rights of other accused persons where it deprives them of the right to challenge the evidence through cross-examination and prevents the court from applying cautionary rules applicable to accomplice evidence. 2. The right to challenge evidence through cross-examination is a foundational component of fair trial rights under section 35(3) of the Constitution and should not be curtailed without proper justification. 3. To establish the crime of conspiracy to commit murder, there must be evidence of a definite agreement between at least two persons to commit the specific crime of murder; evidence of agreement to engage in general unlawful conduct or violence is insufficient. 4. The doctrine of common purpose may support a conviction for attempted murder even where an accused did not actively participate in the shooting, provided there is evidence of prior planning and the accused's presence at the scene during the execution of the plan without disassociation.

The court expressed that it does not regard the Ndhlovu approach as all-encompassing and has reservations about its justifiability, particularly in cases involving absent witnesses rather than witnesses who disavow their statements. The court noted that Ndhlovu did not attempt to reconcile the incongruity between the bar created by section 219 of the Criminal Procedure Act and its application of section 3 of the Law of Evidence Amendment Act. The court observed that Ndhlovu offers no guidance on how the receipt of extra-curial admissions should be approached given the common law rationale for their exclusion or what role the various common-law safeguards should play. The court suggested that where a conspiracy to commit a crime results in the actual commission of that crime, it is preferable to convict of the substantive offence rather than both the conspiracy and the substantive offence.

This case is significant for its treatment of hearsay evidence under section 3(1)(c) of the Law of Evidence Amendment Act and its relationship to constitutional fair trial rights. The judgment expresses important reservations about the broad application of S v Ndhlovu, emphasizing that the right to challenge evidence through cross-examination is fundamental to fair trial rights and should not be lightly curtailed. The case highlights the importance of cautionary rules when dealing with accomplice evidence and the particular difficulties that arise when the maker of a hearsay statement does not testify. The case affirms that where the maker of an incriminating statement is an accomplice who does not testify, the prejudice to the accused of admitting such evidence is very high while its probative value is very low. The judgment also clarifies the elements required to prove conspiracy to commit murder, emphasizing that the specific crime must be the focal point of the agreement. The case provides guidance on the application of the doctrine of common purpose in the context of taxi violence.