Nompithizelo Mary Makeba and Somikazi Alicia Ntambula v The State

The first and second appellants were convicted of murder and sentenced to life imprisonment in the South Eastern Cape Local Division. The charges arose from an incident on 10 August 1999 when Pindile Michael Makeba (the deceased) was shot and killed in his house at Motherwell, Port Elizabeth. It was common cause that the deceased was killed by accused no. 1 (Mbongqi), who was not a party to the appeal. The State alleged that Mbongqi had been hired by the appellants. The key witness was Skhumbuzo Makeba, the deceased's son, who was an accomplice. Skhumbuzo made three contradictory statements on oath: the first denying all knowledge, the second implicating Mbongqi and the appellants but not himself, and the third (made after the investigating officer confronted him with discrepancies between his second statement and Mbongqi's confession) implicating all parties including himself. Skhumbuzo testified that he led Mbongqi to the house, unlocked the security gate and kitchen door, and took him to the deceased's bedroom before leaving. The appellants denied involvement. A video-recorded conversation between Skhumbuzo and the appellants was conducted at police request, the admissibility of which was challenged.

• Whether the evidence of a single accomplice witness who made three contradictory statements was sufficiently credible and reliable to sustain a conviction
• Whether there was adequate corroboration of the accomplice's evidence that implicated the accused
• Whether a co-accused's confession could be used as corroboration for an accomplice's evidence
• Whether the trial court properly applied the cautionary rule regarding accomplice evidence
• Whether the video-recorded conversation was admissible and probative
• Whether the trial court erred in rejecting the appellants' evidence

The appeal was upheld. The conviction and sentence were set aside.

The binding legal principles established are: (1) Section 219 of the Criminal Procedure Act 51 of 1977 absolutely prohibits the use of a confession made by one person as evidence against another person, whether directly or indirectly, including for purposes of corroborating accomplice evidence; (2) Where corroboration of accomplice evidence is required, it must be corroboration that implicates the accused in the commission of the crime, not merely corroboration of material or peripheral facts; (3) Evidence that merely confirms non-incriminatory aspects of an accomplice's testimony (such as that a telephone call was made or the condition of a crime scene) does not constitute sufficient corroboration to implicate an accused in the crime; (4) When evaluating whether to convict on accomplice evidence, a court must consider all the evidence and determine whether there is a reasonable possibility that the accused's version might be true - it is not necessary to conclude that the accomplice's evidence is a fabrication before acquitting; (5) Where an investigating officer has disclosed the contents or discrepancies in a co-accused's statement to a witness before that witness makes a further statement, there is a significant risk that the witness has tailored their evidence accordingly, which undermines any claim that the similarity between the accounts eliminates the risk of false incrimination.

The Court made several obiter observations: (1) The Court assumed without deciding that the video-recorded conversation was properly admitted, thereby declining to express an opinion on the correctness of the decision in S v Kidson 1999 (1) SACR 338 regarding participant monitoring versus third-party monitoring under the Interception and Monitoring Prohibitions Act 127 of 1992; (2) The Court noted that it was unnecessary to consider the admissibility of a co-accused's extra-curial admission (as opposed to a confession) for purposes of this case; (3) The Court observed that the trial court's finding that Skhumbuzo had been manipulated by the appellants was not justified by the record, noting that he was 26 years old at the time and no longer a child of tender years, and that the appellants' statements on the video recording telling him not to talk to police were understandable in the circumstances and did not point to manipulation; (4) The Court commented that the trial court's adverse credibility findings regarding the appellants being argumentative, aggressive, evasive and garrulous were not borne out by the record.

This case is significant in South African criminal law and evidence for several reasons: (1) It reinforces the strict application of section 219 of the Criminal Procedure Act 51 of 1977, which prohibits the use of one person's confession as evidence against another person, either directly or indirectly, including for purposes of corroboration; (2) It clarifies the nature of corroboration required when dealing with accomplice evidence - corroboration must implicate the accused in the commission of the crime, not merely corroborate peripheral or material facts; (3) It emphasizes that where an accomplice's evidence requires corroboration due to credibility concerns, factors that merely confirm non-incriminatory aspects of the evidence are insufficient; (4) It illustrates the dangers of contamination of witness evidence when investigating officers disclose details of co-accused statements before further statements are taken; (5) It reinforces the proper application of the cautionary rule and the test for evaluating defense evidence - courts must consider whether there is a reasonable possibility that the accused's version might be true, based on all the evidence, rather than requiring the state witness's evidence to be rejected as a fabrication before acquitting; (6) The case serves as a reminder that credibility findings must be supported by the record and that appellate courts will intervene where such findings are not justified.