Mojapelo v The State

On 28 September 2005, Mr Albert Mojapelo was found shot dead in his red Toyota bakkie in a deserted veld near Orange Farms. The two appellants - Tinky Sophie Mojapelo (the deceased's wife) and Antoinette Nkhesani Masuku (her friend) - were charged with six counts including conspiracy to commit murder, kidnapping, murder, and contraventions of the Firearms Control Act. The State's case rested entirely on the evidence of Mr Sakhele Malwane, an accomplice who had been warned in terms of section 204 of the Criminal Procedure Act 51 of 1977. Malwane, who was employed as a driver by the deceased and the first appellant, testified that the first appellant had told him about a plan to murder her husband at the urging of the second appellant. He claimed to have witnessed meetings between the appellants and Mr Orlando Mandoza (who absconded during trial) where the murder was discussed. Malwane testified that on the night of the murder, the first appellant borrowed his cellphone to call Mandoza, and that he and the deceased were subsequently hijacked by Mandoza and three others who shot the deceased. The only other potentially incriminating evidence was an alleged statement by the first appellant to the deceased's sister at the police station: "I am asking you to forgive me. I do not know what got into me. Satan has power." No cellphone records were produced to corroborate communication between the first appellant and Mandoza, though records showed communication between Malwane and Mandoza.

• Whether the State proved beyond a reasonable doubt that the appellants were guilty of murder where the only evidence was that of an accomplice found to be untruthful and whose evidence was uncorroborated
• The proper approach to evaluating evidence of an accomplice witness warned in terms of section 204 of the Criminal Procedure Act
• Whether corroboration is required for accomplice evidence and what constitutes sufficient corroboration
• Whether a prima facie case was established at the close of the State's case to justify refusing discharge under section 174 of the Criminal Procedure Act
• Whether the failure of the accused to testify can overcome fundamental deficiencies in the State's case

1. The appeal is upheld. 2. The convictions and sentences of both appellants are set aside.

The binding legal principles established are: (1) Where an accomplice witness is found to be untruthful on material aspects of their evidence, a court cannot accept other parts of that evidence incriminating the accused without good reason, particularly where the evidence is described as bizarre, nonsensical and unbelievable. (2) Courts must approach accomplice evidence with special caution and warn themselves of the peculiar danger of convicting on such evidence, as an accomplice is uniquely positioned to make lies appear truthful due to inside knowledge of the crime. (3) While corroboration of accomplice evidence is not strictly required as a matter of law, if a court decides it requires corroboration to be satisfied of guilt, such corroboration must be corroboration that implicates the accused in the crime. (4) Corroboration in material respects not implicating the accused, or proof that the crime was committed by someone, does not constitute sufficient corroboration. (5) An ambiguous or unexplained statement by an accused does not constitute corroborative evidence implicating that accused in a crime. (6) The failure of an accused to testify cannot overcome the absence of reliable and credible evidence establishing guilt beyond reasonable doubt, and cannot transform a deficient State case into proof beyond reasonable doubt. (7) Courts of appeal have a duty to conduct careful, critical and detailed examination of the evidence and trial court reasoning, and cannot simply defer to trial court findings without meaningful engagement with the evidence and legal reasoning.

The court made several obiter observations: (1) While a refusal to grant a discharge under section 174 of the Criminal Procedure Act is not appealable, the court noted it was "astonishing" that the trial judge did not discharge the appellants where there was no credible prima facie evidence implicating them, particularly given the finding that the sole witness was untruthful with nonsensical and bizarre evidence. (2) The court observed that credibility of a witness is not normally a factor at the stage of consideration of discharge under section 174, but may be taken into account where a very high degree of untrustworthiness has been shown (citing S v Mpetha). (3) The court commented on complaints regarding incompetence of legal representatives, finding little merit in these accusations. (4) The court noted that the trial judge's expressions of frustration during the trial were understandable given the trying circumstances, including numerous postponements occasioned by changes in the appellants' legal representatives. (5) The court observed that in cases involving conspiracy, there must be at least some reliable evidence which specifically links the accused to that conspiracy. (6) The court noted approvingly the statement from Shenker Brothers v Bester that the fact that evidence is uncontradicted is no justification for shutting one's eyes to the fact that it is too vague and contradictory to serve as proof.

This case is significant in South African criminal law and evidence for reinforcing the stringent safeguards required when dealing with accomplice evidence. It reaffirms the principle established in cases such as R v Ncanana (1948), S v Mhlabathi (1968), and S v Eyssen (2008) that while corroboration of accomplice evidence is not strictly required as a matter of law, courts must warn themselves of the special danger of convicting on such evidence. The judgment emphasizes that an accomplice is "peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth." The case demonstrates that where a court finds an accomplice witness to be fundamentally untruthful, it cannot simply accept those parts of the evidence that incriminate the accused while rejecting parts that exculpate the witness, unless there are good reasons for doing so. The judgment also reinforces the principle from R v Kumalo (1916) that where a witness is untruthful on aspects of importance, there should be good reason to justify finding other aspects truthful. It serves as a warning against speculative reasoning and emphasizes that where corroboration is sought, it must be corroboration that implicates the accused. The case also highlights the duty of appellate courts to conduct careful, critical and detailed examination of the evidence and not simply defer to trial court findings without proper analysis. The judgment illustrates that failure of an accused to testify cannot cure fundamental deficiencies in the State's case or transform unreliable evidence into proof beyond reasonable doubt.