Nompithizelo Mary Makeba and Another v The State

The first and second appellants were tried in the South Eastern Cape Local Division together with a co-accused (accused no. 1) on charges of murder, unlawful possession of a firearm, and unlawful possession of ammunition arising from the shooting death of Pindile Michael Makeba on 10 August 1999. It was common cause that accused no. 1 shot and killed the deceased. The State alleged that the appellants had hired accused no. 1 to commit the murder. The State’s case against the appellants relied almost exclusively on the evidence of the deceased’s son, Skhumbuzo Makeba, who was both a single witness and an accomplice. Skhumbuzo made three contradictory sworn statements: initially denying any knowledge of the crime, later implicating the appellants and the shooter but not himself, and finally implicating all of them including himself after being confronted by the police with discrepancies between his statement and the shooter’s confession. The trial court convicted the appellants of murder and sentenced them to life imprisonment, relying on Skhumbuzo’s evidence, alleged corroboration, a video-recorded conversation between Skhumbuzo and the appellants, and the confession of the co-accused.

The appeal was upheld. The convictions and sentences of the first and second appellants were set aside.

The case is significant for its reaffirmation of fundamental principles of South African evidence law. It confirms the strict prohibition in section 219 of the Criminal Procedure Act against using a co-accused’s confession as evidence against others, even indirectly as corroboration. It also reinforces the proper application of the cautionary rules relating to accomplice and single-witness evidence and clarifies that corroboration, if required, must implicate the accused. The judgment underscores the correct criminal standard of proof, namely that an accused must be acquitted if their version is reasonably possibly true.