Kekana and Another v S (CA&R 58/2021) [2021] ZAECGHC 81 (7 September 2021)

Kekana and Another v S (CA&R 58/2021) [2021] ZAECGHC 81 (7 September 2021)

The appeal succeeded because the trial court misdirected itself in its evaluation of the evidence, particularly the contradictions between the State witnesses and the reliability of the identification evidence. The trial court failed to properly apply the cautionary rule to the evidence of a single witness and accomplice, and its reasoning regarding the effect of alcohol on Mr Moya's recollection was speculative and unsupported. The court found that Noqayi, as an accomplice and single witness, had motives to falsely implicate the appellants and that his evidence was not trustworthy. The appellants' alibi defence was not properly considered, and the trial court incorrectly placed an onus...

Citation
[2021] ZAECGHC 81
Parties
Appellant: Thembani Kekana; Appellant: Xolani Chris Makanda; Respondent: The State
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
7 September 2021
Case Number
CA&R 58/2021
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; convictions and sentences set aside; appellants acquitted and discharged.
Judges
Gqamana, R W N Brooks
Legal Topics
Identification Evidence, Single Witness Rule, Accomplice Evidence, Alibi Defence, Onus of Proof, Contradictory Testimony
Criminal Law Identification Evidence Single Witness Rule Accomplice Evidence Alibi Defence Onus of Proof Contradictory Testimony

Case Brief

Summary, issues, holding and outcome

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Parties

Thembani Kekana

Appellant

Xolani Chris Makanda

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the State proved beyond reasonable doubt that the appellants were present at the scene and participated in the murder and robbery.
  2. 2 Whether the trial court correctly evaluated the evidence of a single witness and accomplice.
  3. 3 Whether the contradictions in the State's case were material and affected the reliability of identification.

Ratio Decidendi

The appeal succeeded because the trial court misdirected itself in its evaluation of the evidence, particularly the contradictions between the State witnesses and the reliability of the identification evidence. The trial court failed to properly apply the cautionary rule to the evidence of a single witness and accomplice, and its reasoning regarding the effect of alcohol on Mr Moya's recollection was speculative and unsupported. The court found that Noqayi, as an accomplice and single witness, had motives to falsely implicate the appellants and that his evidence was not trustworthy. The appellants' alibi defence was not properly considered, and the trial court incorrectly placed an onus...

Court Disposition

Appeal upheld; convictions and sentences set aside; appellants acquitted and discharged.

Orders

  • The appeal is upheld.
  • The appellants' convictions and sentences are set aside and substituted with: Both accused no. 1 and no. 2 are found not guilty on both counts 1 and 2 and are accordingly acquitted and discharged.