Bushi Mike Machaba & Elvis Boy Mbuyane v The State

On 3 May 2002, three men accosted Mr Cyprian Mthembu (the deceased) and his girlfriend Ms Ndebele in Soshanguve. The men robbed them, with one pointing a firearm. Two shots were fired, resulting in the deceased's death from a gunshot wound to his chest. His cell phone was stolen. More than two years later, in May 2004, police traced the cell phone, leading to the arrest of the first appellant and a second accused (now deceased). This led to the arrest of the second appellant in Pretoria. The second appellant's firearm was seized and ballistically linked to the spent cartridge found at the scene. The first appellant made a warning statement placing himself at the scene, admitting he picked up the cell phone. The first appellant and second accused sold the deceased's cell phone shortly after the incident. Both appellants testified in their bail applications, which testimony was admitted into the trial record. They were convicted of murder and robbery with aggravating circumstances and sentenced to life imprisonment and 15 years' imprisonment respectively. They appealed against both convictions and sentences.

• Whether the incomplete trial record precluded proper adjudication of the appeal
• Whether the oath was properly administered to witnesses in terms of section 162 of the Criminal Procedure Act 51 of 1977
• Whether hearsay evidence contained in extra-curial statements made by co-accused is admissible against an accused
• Whether the State proved the guilt of the appellants beyond reasonable doubt
• What evidential weight should be accorded to testimony given during bail proceedings when admitted as part of the trial record
• Whether the prescribed minimum sentencing regime under section 51 of the Criminal Law Amendment Act 105 of 1997 applied where the accused were not given proper notice

1. The appeal against the convictions of the appellants is dismissed. 2. The appeal against the sentences imposed on the appellants is upheld and the sentences are set aside and substituted with: Count 1 (murder): 20 years' imprisonment; Count 2 (robbery with aggravating circumstances): 10 years' imprisonment. 3. The sentences on count 2 will run concurrently with the sentences on count 1. 4. The sentences are antedated to 15 December 2006.

1. An incomplete trial record does not automatically require convictions to be set aside; the test is whether the record is adequate for proper consideration of the specific appeal issues. The requirement is adequacy, not perfection (following S v Chabedi). 2. Extra-curial confessions or admissions made by one accused are inadmissible as evidence against a co-accused (applying S v Litako). 3. The Valachia principle applies to bail application testimony admitted into the trial record under section 60(11B)(c) of the CPA - exculpatory portions must be considered alongside incriminating portions, but given appropriate weight considering the different context and purpose of bail proceedings compared to trial testimony. 4. In an adversarial system, once the prosecution establishes a prima facie case, an accused who fails to testify to rebut that case runs the risk that the prosecution's evidence is sufficient to prove guilt beyond reasonable doubt. The right to silence does not relieve the prosecution of its burden, but the accused bears the risk that unrebutted evidence may be sufficient (applying S v Boesak). 5. For the prescribed minimum sentencing regime under section 51 of the Criminal Law Amendment Act to apply, fair trial requirements demand that the State's intention to rely on it must be brought to the accused's attention at the outset of the trial, giving sufficient notice to enable the accused to conduct his defense properly (applying S v Ndlovu).

1. The court noted that section 162 of the CPA is peremptory and requires the presiding judge or registrar (not the interpreter) to administer the oath. Testimony of a witness not properly sworn lacks the status and character of evidence and is inadmissible (citing S v Matshivha). However, on the facts, the court found no evidence of improper administration. 2. The court observed that bail application testimony admitted under section 60(11B)(c) is centered on whether bail should be granted, not on the merits, and typically attracts less rigorous cross-examination than trial testimony. This contextual difference is relevant to the weight accorded to such testimony. 3. The court expressed regret that the judgment on sentence contained no information about the victim's personal circumstances, his dependants, or the effect of the crimes on Ms Ndebele. The court emphasized that the value of a victim's life is "far greater than the crime statistic that he has come to represent in death" (citing S v Matyityi). 4. The court noted that in respect of serious crimes, the personal circumstances of the offender "recede into the background" and matters such as marital status, number of children, and employment status become "largely immaterial" once it is clear substantial imprisonment is deserved (citing S v Vilakazi). 5. The court raised but did not need to decide the question of whether it might suffice if the State's intention to rely on section 51 sentencing is brought to the accused's attention only during the course of trial rather than at the outset.

This judgment is significant for several reasons: (1) It clarifies that an incomplete record does not automatically warrant setting aside a conviction - it depends on whether the missing portions prejudice proper adjudication of the specific issues on appeal. (2) It confirms the peremptory nature of section 162 of the CPA requiring the presiding judge or registrar to administer the oath, though the court found no evidence of non-compliance on the facts. (3) It applies the principle from S v Litako that extra-curial statements by co-accused are inadmissible against an accused, representing important protection for accused persons. (4) It extends the Valachia principle (that exculpatory portions of statements must be considered) to bail application testimony admitted under section 60(11B)(c), while noting such testimony should be given less weight than trial testimony due to the different purposes of bail proceedings and the typically less rigorous cross-examination. (5) It reaffirms that failure by the State to give proper notice of its intention to rely on the prescribed minimum sentencing regime under section 51 of the Criminal Law Amendment Act precludes application of that regime, protecting fair trial rights. (6) It demonstrates how a prima facie case, unrebutted by an accused who chooses not to testify, can be sufficient to prove guilt beyond reasonable doubt in an adversarial system.