Mooki and Others v S (A41/2023) [2025] ZAFSHC 110 (4 March 2025)

Mooki and Others v S (A41/2023) [2025] ZAFSHC 110 (4 March 2025)

The court held that the admission of the complainant's evidence, which was not fully tested by cross-examination due to her suicide, constituted a misdirection and violated the appellants' constitutional right to a fair trial. The right to cross-examine is fundamental and not subject to discretion; where it cannot be exercised, the evidence must be excluded. Without the complainant's evidence, the State's case was insufficient, and the applications for discharge under section 174 of the Criminal Procedure Act should have been granted. The convictions and sentences were set aside, and the appellants were acquitted.

Citation
[2025] ZAFSHC 110
Parties
Appellant: Tlotlego Mooki; Appellant: Lerato Mahumapelo; Appellant: G[...] K[...]; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
4 March 2025
Case Number
A41/2023
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence After Trial in Regional Court
Outcome
Appeal upheld; convictions and sentences set aside; all appellants acquitted.
Judges
JP Daffue, S Chesiwe
Legal Topics
Fair Trial Rights, Cross Examination, Admissibility of Evidence, Rape, Law of Evidence Amendment Act, Constitutional Rights
Criminal Law Fair Trial Rights Cross Examination Admissibility of Evidence Rape Law of Evidence Amendment Act Constitutional Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Tlotlego Mooki

Appellant

Lerato Mahumapelo

Appellant

G[...] K[...]

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence After Trial in Regional Court

Legal Issues

  1. 1 Whether the admission of the complainant's untested evidence after her suicide rendered the trial unfair.
  2. 2 Whether the court a quo had discretion to admit evidence not fully tested by cross-examination.
  3. 3 Whether the accused should have been discharged under section 174 of the Criminal Procedure Act.

Ratio Decidendi

The court held that the admission of the complainant's evidence, which was not fully tested by cross-examination due to her suicide, constituted a misdirection and violated the appellants' constitutional right to a fair trial. The right to cross-examine is fundamental and not subject to discretion; where it cannot be exercised, the evidence must be excluded. Without the complainant's evidence, the State's case was insufficient, and the applications for discharge under section 174 of the Criminal Procedure Act should have been granted. The convictions and sentences were set aside, and the appellants were acquitted.

Court Disposition

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

Orders

  • The appellants' appeals against their convictions and sentences succeed.
  • The order of the court a quo is set aside and substituted with: 'All three accused are found not guilty and acquitted.'