S v Kubheka and Another (333/90) [1991] ZASCA 36 (27 March 1991)

S v Kubheka and Another (333/90) [1991] ZASCA 36 (27 March 1991)

The majority held that the State had not proved beyond reasonable doubt that the appellants were guilty of murder. The evidence established that the appellants were present and assisted in the events surrounding the murder, but there was insufficient proof that each participated in the killing itself. The circumstantial evidence did not exclude the reasonable possibility that only one or neither of the appellants was directly involved in the murder. However, the evidence did establish that both appellants assisted in concealing the crime after the fact, making them guilty as accessories after the fact to murder. The failure of the appellants to testify did not, in the circumstances, tip...

Citation
[1991] ZASCA 36
Parties
Appellant: Glow Bheki Kubheka; Appellant: Nicholas Shezi; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 March 1991
Case Number
333/90
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld in respect of both appellants. Convictions for murder set aside and replaced with convictions for accessory after the fact to murder. Sentences of death set aside and replaced with six years' imprisonment, three years suspended for five years on condition of no further conviction for accessory after...
Judges
E M Grosskopf, F H Grosskopf, Nienaber
Legal Topics
Murder, Accessory After the Fact, Circumstantial Evidence, Onus of Proof, Failure to Testify
Criminal Law Murder Accessory After the Fact Circumstantial Evidence Onus of Proof Failure to Testify

Case Brief

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Parties

Glow Bheki Kubheka

Appellant

Nicholas Shezi

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellants were guilty of murder or only accessory after the fact to murder.
  2. 2 Whether the circumstantial evidence established guilt beyond reasonable doubt.
  3. 3 What weight should be given to the appellants' failure to testify.

Ratio Decidendi

The majority held that the State had not proved beyond reasonable doubt that the appellants were guilty of murder. The evidence established that the appellants were present and assisted in the events surrounding the murder, but there was insufficient proof that each participated in the killing itself. The circumstantial evidence did not exclude the reasonable possibility that only one or neither of the appellants was directly involved in the murder. However, the evidence did establish that both appellants assisted in concealing the crime after the fact, making them guilty as accessories after the fact to murder. The failure of the appellants to testify did not, in the circumstances, tip...

Court Disposition

Appeal upheld in respect of both appellants. Convictions for murder set aside and replaced with convictions for accessory after the fact to murder. Sentences of death set aside and replaced with six years' imprisonment, three years suspended for five years on condition of no further conviction for accessory after...

Orders

  • The appeal of both appellants against their convictions succeeds.
  • The convictions for murder are set aside and replaced with convictions for accessory after the fact to murder.