Kekana v The State

David Malisela Kekana and Frederick Ngoma were both employed by Ekurhuleni Municipality's Solid Waste Department in Bedfordview, Gauteng. Both applied for a supervisor position towards the end of 2005. Ngoma was successful, and when informed by their manager Ms Mthethwa, Kekana reacted angrily, stating he would never be supervised by an inexperienced person and would only happen "over his dead body." He allegedly threatened to kill several co-employees including Ngoma. On 23 January 2006, Kekana approached Sipho Gift Ndlovu seeking someone to "do a job" for him - namely killing someone at his workplace. Ndlovu, who was unemployed, agreed to take the job. Kekana gave Ndlovu his cell phone for contact purposes, took him to his workplace to point out Ngoma, and drove him to Ngoma's home. However, Ndlovu contacted Ngoma and informed him of the plot. Police were contacted and lay in wait, arresting Kekana when he met with Ndlovu. Kekana's defense was that he was the victim of a conspiracy orchestrated by Ngoma and Ndlovu, claiming he merely sold his cell phone to Ndlovu for R600.

• Whether the State proved the offence of conspiracy to commit murder beyond reasonable doubt
• Whether the evidence supported an alternative conviction of attempting to commit conspiracy to commit murder
• Whether the trial court's findings on credibility and reliability of witnesses should be disturbed on appeal
• Whether the sentence imposed was appropriate

The appeal was dismissed. The conviction for attempting to commit conspiracy to commit murder (as altered by the High Court from the original conviction of conspiracy to commit murder) was upheld, and the sentence of 5 years' imprisonment (reduced from the original 10 years by the High Court) was confirmed.

The binding legal principles established are: (1) There can be no conspiracy unless two or more persons are ad idem (in agreement) as to their objective - where one party is not genuinely agreeing but is entrapping the other, conspiracy is not established, but the evidence may support a conviction for attempting to commit conspiracy (applying Harris v Rex (1927) 48 NPD 330); (2) An appellate court's powers to interfere with findings of fact of a trial court are limited - in the absence of demonstrable and material misdirection, the trial court's findings of fact are presumed correct and will only be disregarded if the recorded evidence shows them to be clearly wrong (applying S v Monyane 2008 (1) SACR 543 (SCA) para 15); (3) It is only in exceptional cases that an appeal court will interfere with a trial court's evaluation of oral testimony, bearing in mind the advantage the trial court has of seeing, hearing and appraising witnesses (applying S v Francis 1991 (1) SACR 198 (A) at 204e); (4) An appellate court will not interfere with a sentence unless it is satisfied the sentence has been vitiated by material misdirection or is disturbingly inappropriate.

The court made several non-binding observations: (1) That Ndlovu's evidence "carries a ring of truth" and he hardly struck the court as sufficiently sophisticated to have made up such an elaborate story; (2) That it would have taken a "particularly fertile imagination" to conjure up Ndlovu's version; (3) That it was "rather far-fetched" that Ngoma would have conspired with a virtual stranger (Ndlovu) to falsely implicate the appellant; (4) That it "may well have been arguable" that the original sentence of 10 years imposed by the trial court ought to have remained undisturbed notwithstanding the alteration of the conviction, as the alteration involved no reduction in the moral gravity of the offence; (5) That the natural indignation the community would feel at conduct of this kind warrants recognition in determining an appropriate sentence; (6) That where a false and contrived version is advanced by an accused, it is difficult to conclude they have demonstrated remorse or contrition.

This case is significant in South African criminal law for reaffirming important principles on: (1) the distinction between conspiracy and attempt to commit conspiracy - a person cannot be convicted of conspiracy where the alleged co-conspirator was not genuinely in agreement but was entrapping them, but can be convicted of attempting to commit conspiracy; (2) the limited scope for appellate interference with trial court findings of fact and credibility in the absence of demonstrable misdirection, emphasizing the advantage trial courts have in seeing and hearing witnesses; (3) the approach to sentencing for serious offences, balancing mitigating factors against the gravity of the offence and societal interests; and (4) the evidentiary assessment of single witness testimony and the importance of seeking corroboration in objective evidence and other witnesses.