On 8 November 2013, three armed men forcefully entered the home of the deceased, Mr Sifiso Michael Mabuza, a SAPS constable, during the early morning hours at Tonga, Mpumalanga. After a physical struggle, one of the assailants shot the deceased in the chest, killing him, and stole his official SAPS firearm. The appellant, Theresa Fortunate Mabaso (accused 2), was convicted of murder alongside Mr Wiseman Mlamuli Ngomane (accused 1) and sentenced to life imprisonment on 21 September 2018 by the Mpumalanga Division of the High Court. The State's case against the appellant was based primarily on statements and a guilty plea made by Mr Sindi Richman Mvubu, an accomplice who had pleaded guilty to the charges and agreed to testify as a State witness. Mvubu made multiple statements implicating the appellant as having hired him to kill the deceased for amounts varying between R26,000 to R60,000, allegedly because the deceased had arrested her and confiscated her vehicle used for transporting drugs. However, when Mvubu testified at trial, he recanted his earlier statements, denied the appellant's involvement, and claimed police coercion. A confession by Mr Ngomane also implicated the appellant. The appellant denied any involvement in the murder.
The appeal was upheld. The appellant's conviction for murder was set aside and replaced with an order that accused 2 (the appellant) is found not guilty of murder as charged and is acquitted. Applications for condonation by both the appellant (for late filing of notice to appeal) and the respondent (for late filing of heads of argument) were granted.
A confession made by one accused is inadmissible as evidence against a co-accused in terms of section 219 of the Criminal Procedure Act. A previous inconsistent statement by a hostile witness is only admissible to discredit that witness and cannot be used as substantive evidence of the facts stated therein against an accused person. Where the only evidence implicating an accused consists of inadmissible confessions and prior inconsistent statements, and there is no other admissible evidence linking the accused to the crime, the conviction cannot stand and must be set aside. Courts must exercise extreme caution when evaluating the evidence of an accomplice witness, particularly where such witness is a single witness and has made materially contradictory statements.
The court noted that the appellant's conviction had been attacked on other bases, including that the trial judge improperly entered the arena by subjecting the appellant to unfair cross-examination and that the appellant never received a fair trial. However, the court stated it saw no reason to delve into these other complaints having already found that the conviction must be set aside on evidentiary grounds. This suggests that had the evidentiary issues not been dispositive, there may have been additional grounds for setting aside the conviction based on trial fairness concerns.
This case reaffirms and applies fundamental principles of South African criminal evidence law, particularly: (1) the strict rule under section 219 of the CPA that confessions by one accused are inadmissible against co-accused; (2) the limited use of prior inconsistent statements only to discredit witnesses, not as substantive evidence; (3) the requirement for extreme caution when evaluating accomplice evidence; and (4) the inadmissibility of hearsay confessions under section 119 of the CPA. The case demonstrates the application of these evidentiary rules to protect accused persons from conviction based on inadmissible evidence, even where there may be suspicions of involvement. It serves as an important reminder to trial courts of the strict evidentiary requirements that must be met before an accused can be convicted, particularly in serious cases involving murder and life imprisonment.
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