James Nkosi and Another v The State

In September 2004 a heavily armed gang attempted a cash‑in‑transit robbery on the N12 highway near Benoni. Police, acting on a tip‑off, intercepted the robbery, resulting in a gunfight in which several gang members were killed and two suspects arrested at the scene. The second appellant, Zweli Mthethwa, was wounded and arrested close to the getaway Toyota. A Mazda 626 allegedly linked to the robbery was later stopped at a Daveyton taxi rank, where the first appellant, James Nkosi, was arrested. Both appellants were charged with attempted robbery with aggravating circumstances, attempted murder, and unlawful possession of firearms and ammunition. At trial they were acquitted of some counts but convicted on others and sentenced to an effective 22 years’ imprisonment. They appealed against their convictions and sentences.

The first appellant’s appeal was upheld; his convictions and sentences were set aside. The second appellant’s appeal was dismissed and his convictions and sentences confirmed.

The case reaffirms the proper application of s 174 of the Criminal Procedure Act and emphasises that an accused is entitled to a discharge where the state has failed to make out a prima facie case. It underscores the constitutional implications of wrongly refusing a discharge and clarifies that, although a court may in some circumstances rely on potential evidence from a co‑accused, this must be justified by the facts of the case. The judgment strengthens fair‑trial protections in multi‑accused criminal trials.