Mtshashu and Another v S

On 9 October 2021, at a tavern in Grabouw, Western Cape, the complainant, Mr Yongama Nyeke, was threatened with a firearm and a knife by the two appellants. The first appellant, Mr Lwanelo Mtshashu, was the complainant's cousin and well known to him. After the complainant had generously provided them with beer and food, the first appellant followed him to his bedroom, pointed a firearm at him, and a struggle ensued. The second appellant, Mr Yonela Dhyubhele, intervened and stabbed at the complainant with a knife. During the struggle, a money box fell, and cash was taken. The deceased, Mr Lutho Majalamba, knocked on the door, was brought into the bedroom, and told to sit on the bed. When the first appellant threatened to shoot the complainant, the deceased challenged him, saying 'you are lying, you will not do that.' The first appellant then shot the deceased once in the left eye, killing him. The appellants and a third person fled. Both appellants raised an alibi defence, claiming they were at a tavern in De Doorns at the time. The complainant identified both appellants, describing the second appellant by a scar above his left eye and his aggressive behaviour. The second appellant was also identified through a photo-identification process.

• Whether the trial court correctly convicted the appellants based on the identification evidence of a single witness.
• Whether the appellants' alibi defence was properly rejected.
• Whether the sentences imposed were appropriate, particularly in light of the failure to obtain probation officer's reports and victim impact reports.
• Whether the appellants were properly warned of the applicability of minimum sentence legislation in respect of the unlawful possession of a firearm count.

The appeal against conviction was dismissed. The appeal against sentence succeeded in part. The sentences imposed by the regional court were set aside and replaced as follows: Count 1 (robbery with aggravating circumstances) – 15 years' imprisonment; Count 2 (murder) – 30 years' imprisonment; Count 3 (unlawful possession of a firearm) – 10 years' imprisonment; Count 4 (unlawful possession of ammunition) – 1 year imprisonment. All sentences ordered to run concurrently with the 30-year sentence for murder.

Where the State proves its case beyond reasonable doubt through the credible and reliable identification evidence of a single witness, and the accused's alibi defence is unable to impeach that reliability, a conviction may properly follow. On sentence, where accused persons face life imprisonment, it is incumbent upon the defence to obtain probation officer's reports and upon the State to obtain victim impact reports, and the failure to do so may result in the appellate court tempering the sentences to ensure the accused are considered for parole at an earlier date. Additionally, an accused must be properly warned of the applicability of minimum sentence legislation in respect of each count to which it applies.

The court expressed serious concern about the failure of both the defence and the State to obtain probation officer's reports and victim impact assessment reports, describing it as 'inexcusable' and 'amounting to laziness and a lack of proper regard for not only the victims of the crimes but also the background circumstances of the perpetrators of such heinous crimes.' The court also commented on the prevalence of gratuitous violence in townships, particularly at taverns over weekends, describing the scourge of such violence as 'nothing short of a pandemic' arising in the context of alcohol abuse and the proliferation of unlicensed taverns.

The judgment underscores the critical importance of probation officer's reports and victim impact assessment reports in serious criminal matters, particularly where the accused face life imprisonment. It highlights the duty of both defence and State to place such reports before the sentencing court, and that failure to do so may affect the appropriateness of the sentence on appeal. The case also reaffirms the cautionary approach to single-witness identification evidence and the factors to be considered in evaluating its reliability, with reference to S v Mthethwa. It further addresses the procedural requirement that accused persons must be warned of the applicability of minimum sentence legislation for each count.