Qhinga v S (1327/2016) [2017] ZASCA 149 (15 November 2017)

Qhinga v S (1327/2016) [2017] ZASCA 149 (15 November 2017)

The Supreme Court of Appeal found that there was no admissible evidence implicating the appellant in the commission of the offences. The content of the pointing-out, which was the only evidence against the appellant, was not proved as the relevant testimony was either never led or lost and could not be reconstructed. Without this evidence, the convictions and sentences could not be sustained. The court also commented on the improper conduct of the police, which cast doubt on the fairness of the trial, but ultimately based its decision on the absence of admissible evidence.

Citation
[2017] ZASCA 149
Parties
Appellant: M Qhinga; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 November 2017
Case Number
1327/2016
Procedural Posture
Criminal Appeal / Appeal From Full Court Decision
Outcome
Appeal upheld; convictions and sentences set aside.
Judges
Leach, Seriti, Saldulker, Plasket, Mbatha
Legal Topics
Admissibility of Evidence, Pointing Out, Confession, Fair Trial Rights, Onus of Proof, Police Misconduct
Criminal Law Admissibility of Evidence Pointing Out Confession Fair Trial Rights Onus of Proof Police Misconduct

Case Brief

Summary, issues, holding and outcome

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Parties

M Qhinga

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Full Court Decision

Legal Issues

  1. 1 Whether the content of the appellant's pointing-out was proved.
  2. 2 Whether the pointing-out ought to have been admitted into evidence.

Ratio Decidendi

The Supreme Court of Appeal found that there was no admissible evidence implicating the appellant in the commission of the offences. The content of the pointing-out, which was the only evidence against the appellant, was not proved as the relevant testimony was either never led or lost and could not be reconstructed. Without this evidence, the convictions and sentences could not be sustained. The court also commented on the improper conduct of the police, which cast doubt on the fairness of the trial, but ultimately based its decision on the absence of admissible evidence.

Court Disposition

Appeal upheld; convictions and sentences set aside.

Orders

  • The appeal succeeds, and the appellant's convictions and sentences are set aside.
  • Paragraphs 2 and 3 of the order of the court a quo are altered to read: '2. That the appeal in respect of the first, third and fourth appellants is allowed and their convictions and sentences are set aside. 3. That the appeal in respect of the second, fifth and sixth appellants is dismissed.'