THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case no: 256/2020
In the matter between:

ZOLA CEDRIC MACHI

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Machi v The State (256/2020) [2021] ZASCA 106 (30 July
2021)

Coram:
ZONDI, MOCUMIE and MAKGOKA JJA and KGOELE and
EKSTEEN AJJA

Heard:
13 May 2021

Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 09h45 on 30 July 2021.

Summary: Criminal law – murder – circumstantial evidence – sufficiency and
reliability thereof – whether common purpose was established – whether
contradictions material – whether sentence is appropriate.

ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Msimeki,
Twala and Opperman JJ sitting as court of appeal):

The appeal against both the conviction and sentence is dismissed.

JUDGMENT

Kgoele AJA (Zondi, Mocumie and Makgoka JJA and Eksteeen AJA
concurring):

[1] The appeal is a sequel to the death of Mr Walter Mandla Thusi
(the deceased), who was fatally shot in his office at Engen Diesel Depot,
Langlaagte, Johannesburg (the depot) while on duty on 19 January 2007. Mr Zola
Cedric Machi (the appellant), his co-worker at that time, was subsequently
arrested following this incident. He was charged and convicted of murder on
11 December 2008 by Mayat AJ sitting at the South Gauteng High Court
(the trial court). He was sentenced to life imprisonment. With the leave of the
trial court the appellant appealed to the full court of that Division against
conviction and sentence. The full court (Msimeki J with Twala and Opperman JJ
concurring) dismissed the appeal against conviction but upheld the appeal against
sentence. It set aside the sentence of life imprisonment imposed by the trial court
and substituted it with one of 20 years’ imprisonment. The appellant, with the
special leave granted by this Court, appeals against his conviction and sentence.
He is currently on bail pending the finalisation of the appeal.

[2] The appeal lapsed because the appellant did not file the record timeously
and the appellant applied for condonation for the late filing thereof and the
reinstatement of the appeal. As the application was unopposed we granted
condonation. In doing so we had regard to the fact that the delay is not excessive,
(not more than 20 days); the appellant did not willfully disregard the time frames
provided for in the rules and practice directives of this Court; and that the
respondent was not prejudiced by the delay. With this, I now proceed to consider
the merits of the appeal.

[3]    The issues are, firstly, whether the State had proved beyond reasonable
doubt that the appellant was at the scene of the crime when the deceased was
fatally shot by an unknown person; secondly, whether the appellant had actively
associated himself with the murder of the deceased; and lastly, whether the
sentence imposed was appropriate.

The facts
[4] The events which gave rise to the appellant’s conviction and sentence are
briefly to the following effect. As I have said, the shooting took place at the depot,
located behind the Engen garage (the garage), where the two state witnesses,
Messrs Sunnyboy Ntunja (Mr Ntunja) and Sonwabo Alfred Makholisa
(Mr Makholisa) were employed. The appellant was a truck driver employed by
Engen and based at the depot, whilst the deceased had been his supervisor. The
relationship between the appellant and the deceased was strained because,
sometime before the incident, the appellant had been suspended from work. He
blamed the deceased for his suspension, which was later lifted; the lighting at the
garage was sufficient for one to be able to see at night; the Mercedes Benz
allegedly involved in the incident belonged to the appellant’s cousin, Ms Mlauli;
at the time of the incident the motor-vehicle was under the control of the appellant

for his personal use. The contentious issues, as I have said, are firstly, whether
the appellant was at the crime scene on the evening in question; and, secondly,
whether he was correctly convicted on the basis of the common purpose doctrine.
The appellant’s defence was an alibi.

[5] For the purposes of placing the appellant on the scene, the State led the
evidence of Messrs Ntunja and Makholisa. Their oral evidence, summarised, was
to the effect that on 19 January 2007 at about 20h30, the appellant came to the
garage driving a Mercedes Benz motor vehicle. He was in the company of an
unknown man who wore clothing resembling an Engen uniform. When the two
arrived, the witnesses were sitting and enjoying their meal next to a fridge, located
outside the shop at the garage (the shop), not far from the entrance. They
recognised the appellant as a truck driver from the depot who was a regular
customer at the filling station. Prior to the incident Mr Makholisa had known the
appellant for almost a year and Mr Ntunja for almost a month.

[6]    Mr Ntunja said that the appellant and the unknown man had disembarked
from the motor vehicle, where after the following unfolded: The unknown man
walked away from the garage, in the direction of the depot and Spoornet offices,
while the appellant entered the shop and bought airtime. Upon leaving the shop,
the appellant gave him a R50-note to share with his colleagues. The appellant
allegedly told him that there was ‘someone who was disturbing him at work’, but
did not elaborate.

[7] He testified further that upon leaving the shop, the appellant proceeded to
the motor vehicle, drove to one of the bowsers and filled up petrol, before driving
out of the garage in the direction of Langlaagte police station. Upon reaching the
robot-controlled intersection, he made a U-turn and drove back slowly in the
direction of the garage. The motor vehicle proceeded past the garage, with its

hazard lights on, for some distance before stopping near the depot. At that stage
he heard five or six gunshots coming from behind the shop (the depot side). He
ran into the shop and looked through the toilet window in an attempt to establish
the source of the gunshots. He did not see anything, nor who fired the shots.
After a few minutes, he came out of the shop and stood on the tar road in front
of the garage. There he saw the appellant’s motor vehicle, still in a stationery
position, with its hazard lights flashing, in the vicinity of the depot. The same
unknown man he had earlier observed moving in the direction of depot came
running back from there and climbed into the appellant’s motor vehicle, after
which it drove away.

[8] Mr Makholisa corroborated Mr Ntunja to a great extent, although his
account of what happened after the two men had alighted from the motor vehicle
differs in some respects from that of Mr Ntunja. There were also inconsistencies
in, and discrepancies between, their written statements, which counsel for the
appellant highlighted. I shall revert to these. It suffices for now to record that his
version was that the appellant and the unknown man walked together towards
the direction of the depot and the Spoornet offices. The appellant returned alone
and went into the shop. When he exited the shop, he gave Mr Ntunja a R50-note
to share and told him that ‘he came to assault someone who is an ‘impimpi’
(an informer) at the back’.

[9] The State also led the evidence of the police officers who conducted the
identification parade. Their unrefuted evidence was that both Messrs Ntunja and
Makholisa identified the appellant positively.

[10] In denying complicity in the commission of the murder, the appellant
raised an alibi as his defence. In short his defence was that he could not have
been at the scene of the crime at the time of the shooting because he was at his

home in Soweto. Whilst the appellant admitted that Messrs Ntunja and
Makholisa knew him, he denied ever being at the garage or near the depot on the
night in question. His evidence was that he did not report for duty on
19 January 2009 because of ill-health. According to him, he started to feel ill
whilst on duty on 18 January. He produced a copy of a sick note issued by a
doctor whom he had consulted on 19 January 2009. His alibi was basically that
he had spent the entire evening at his residence with his girlfriend, Madi, who
corroborated him on their whereabouts on the two days. A totally new aspect of
his version only emerged towards the end of his cross-examination when he
stated that he was in fact driving a Corolla, and not a Mercedes Benz, on the day
in question, as the Mercedes Benz was parked in Killarney at his grandfather’s
place.

[11]  Mr David van Zyl (Mr van Zyl), a security officer who was on duty at the
depot on the night in issue, was called by the appellant. He testified that he did
not hear the gunshots, due to the noise made by the delivery trucks arriving at,
or leaving, the depot. He received a report at 22h36 that there had been a shooting
incident on the premises and he immediately made an entry to that effect in his
occurrence book. He assumed that the shooting had just occurred. His reasoning
was that, had the shooting taken place around 20h30, as the two State witnesses
testified, he would have received the message much earlier.

The trial court
[12] The trial court found that Messrs Ntunja and Makholisa were reliable
witnesses; they corroborated each other on material aspects and their evidence
that several shots were fired was corroborated by other objective facts, in this
case, the post-mortem report. Regarding the inconsistencies or contradictions in
the oral evidence of these two state witnesses and those found in the statements
of Mr Makholisa in particular, the trial court found that they did not adversely

affect their credibility. In rejecting the appellant’s alibi as false, it accepted the
evidence of the state witnesses and found that the only inference that could be
drawn from the proven facts was that the appellant was present at the scene of
crime and acted in common purpose with the unknown man who shot the
deceased.

The full court
[13]  Once more the contradictions and the inconsistencies in the evidence
relied on by the State took centre stage before the full court. The full court found
no demonstrable and material misdirection in the manner in which the trial court
had evaluated the evidence. It furthermore, concluded that the application of the
law, by the trial court, to the facts, had been sound. The appeal on the conviction
was dismissed. As I have said, it only interfered with the sentence imposed.

Before this Court
[14]  Before this Court, the appellant again attacked the credibility and the
factual findings of the trial court, and the full court’s upholding of them. The
appellant also complained that the reduced sentence is inappropriately severe. In
respect of the conviction, it was argued, on behalf of the appellant, that
‘the evidence of the so-called eyewitnesses, [Mr] Ntunja and [Mr] Makholisa,
was riddled with material contradictions and inconsistencies to such an extent
that it should have been rejected by both the trial court and the full court’.

[15] Two key submissions were advanced on behalf of the appellant to support
the above argument. First, that, considering the contradictions in the evidence
of the state witnesses, the quality of the identification evidence that placed the
appellant at the scene, was very poor. Second, that the trial court failed to accord
sufficient weight to the fact that the two key witnesses were not in a position to
positively identify the motor vehicle, including the driver thereof at the time it

picked up a person who came running from the direction of the depot after the
gunshots had been heard. In developing this argument, it was contended that,
even if it could be found that the appellant was positively identified as the person
who was seen at the garage on that evening, the State failed to prove common
purpose between that man (the shooter) and the appellant.

[16]  This Court is therefore, required to determine whether the evaluation of
the evidence by the trial court, confirmed by the full court was sound. Put
differently, whether the factual and credibility findings by the trial court,
confirmed by the full court, stand scrutiny, and if so, whether the evidence
adduced by the State was sufficient for the trial court to draw an inference that
the appellant was at the scene of crime and whether he acted in common purpose
with the shooter to kill the deceased.

The law
[17] It is trite that in the absence of demonstrable and material misdirection a
trial court’s findings of fact are presumed to be correct and that they will only
be disregarded on appeal if the recorded evidence shows them to be clearly
wrong.1

[18] It is against this principle that the credibility and factual findings made
by the trial court, and decried by the appellant, must be considered. In particular,
this Court is called upon to determine whether this principle was correctly
applied by the full court. It is important to first deal with the contradictions as
they cut across the two bases of this appeal.

1 Rex v Dhlumayo and Another [1948] 2 All SA 566 (A); 1948 (2) SA 677.

Contradictions
[19] The manner in which the contradictions between the version of two
witnesses and the contradictions between the versions of the same witness
(such as, inter alia, between their viva voce evidence and a previous statement
made by them) should be approached was outlined by this Court more than a
decade ago in S v Mafaladiso and Andere.2

[20] As far as the oral evidence of the two key state witnesses is concerned, it
was argued on the one hand, that in his evidence in chief, Mr Ntunja did not
testify about the R50 bribe allegedly given to them, but only mentioned this in
cross-examination. On the other hand, the argument continued, Mr Makholisa
was quick to mention this when he testified a day after Mr Ntunja’s testimony.
The criticism levelled in this regard is that the inconsistency or contradiction
does not only affect their credibility, but shows that they were schooled to tailor
their evidence to corroborate each other. This criticism is not justified. The mere
fact that Mr Ntunja mentioned this part of evidence after being prompted during
cross-examination as opposed to Mr Makholisa who mentioned it without being
prompted, does not make it a contradiction. Furthermore, it remains speculative
to suggest, as the appellant’s counsel seems to do, that ‘the probabilities are that
[Mr] Makholisa was alerted to the criticism levelled against [Mr] Ntunja for not
mentioning this on the previous day, and made sure that he mentions this aspect
when he was not led on it’.

[21] An added string to the appellant’s bow relating to the R50 note was that
the two State witnesses contradicted each other with regard to the reason or
purpose for which it was given. This argument need not detain this Court either.
It suffices to say that it cannot advance the appellant’s case. The difference

2 S v Mafaladiso en Andere [2002] 4 All SA 74 (SCA); 2003 (1) SACR 583 (SCA) at 584-585.

between ‘he came there to assault someone who is an ‘impimpi’ at the back’ and
that ‘he was being disturbed by someone at work’ is neither here nor there.
Rather, it illustrates the absence of collusion.

[22] The other feature of their oral evidence which evoked a lot of criticism
by counsel for the appellant was the testimony in chief of Mr Ntunja that when
he came out of the toilet of the shop, his colleagues were not where he had left
them. This, according to the appellant’s counsel, contradicted the evidence of
Mr Makholisa that he was outside. This, it was contended, was a material
contradiction which the trial court had overlooked. This criticism is
ill- conceived. A careful reading of the record of the proceedings reveals that,
although Mr Ntunja indicated that he did not see his colleagues when he came
out of the shop, Mr Makholisa testified that he saw Mr Ntunja when he came
out. Upon being asked where he (Mr Makholisa) was at that time, he indicated
that he was standing next to a tree. Understandably, he could not, during
cross- examination, explain Mr Ntunja’s evidence that when he came out of the
shop, his colleagues had disappeared. Of significance is that it was not
established where the tree was, or where he, Mr Makholisa, was standing in
relation to the tree for Mr Ntunja not to see him. Quite frankly, a contextual and
holistic evaluation of their account of events reveals that their evidence is not
mutually incompatible. This is because, the possibility that Mr Ntunja could not
see Mr Makholisa where he was next to the tree, although outside, cannot be
discounted. The fact that Mr Makholisa was no longer in the vicinity of the
fridge where they were having a meal when the gunshots were heard or in the
vicinity where Mr Ntunja could see him, does not necessarily mean he was not
outside. The difference in what they said can therefore not be classified as a
contradiction at all.

[23] The record reveals that the trial court was not oblivious to these supposed
contradictions and the criticism levelled against the evidence of the two state
witnesses. The same applies to the seeming inconsistencies found in the
sequence of their account as to how the appellant and the shooter conducted
themselves after disembarking from the motor vehicle. It considered the
criticisms, and rejected them, on the basis that they were not material as to affect
the witnesses’ credibility. The conclusion by the trial court cannot, in my view,
be faulted. Instead, they show that their evidence was not tailored in order to
falsely implicate the appellant.

[24] As regards the contradictions in the key state witnesses’ written
statements, it was submitted that the trial court should have rejected
Mr Makholisa’s evidence because he had made two statements which are not
only at odds with each other, but also at variance with his oral evidence and that
of Mr Ntunja. It was pointed out that in his first statement Mr Makholisa did not
identify the appellant by name as the person who told him that he and the other
man were there to kill a person and who gave him R50, whereas in his second
statement, made two months after the first one, he identified the appellant by
name. It was further pointed out that, Mr Makholisa stated in the same statement
that the appellant and the unknown man had walked around the corner of the
garage and ‘after few minutes shots of [a] gun were heard in the vicinity and
Zola Machi came back walking to the silver BMW and drove away’. The
argument proceeded that his statements are at variance with his evidence in that
he did not say that the appellant had said that he was there to kill someone; that
the R50 was given to him; that he knew the appellant by name; and that the
appellant had walked, after the sound of gunshots from the depot, to the silver
BMW. It was submitted that Mr Makholisa’s evidence had to be rejected in its
totality because he changed his evidence from the first statement to the second,
and from his statements and oral evidence.

[25] In evaluating these contradictions and inconsistencies levelled at
Mr Makholisa’s evidence including his written statements the trial court
reasoned:
‘[It] is my view that to the extent that such inconsistencies are relevant, his explanation
relating to the errors in these written statements were not implausible in the circumstances of
this trial. Moreover, if one takes into cognisance the relevance of the averred inconsistencies
in the context of the rest of the material evidence, such inconsistencies do not cast any doubt
on his material evidence. Mr Makholisa also confirmed in this regard that he gave his
statement in Zulu and that his statement was recorded in English.’ (Emphasis added.)

[26] There is in my view, no demonstrable irregularity that can be relied upon
regarding the manner in which the trial court evaluated all of these contradictions
and inconsistencies and the weight attached thereto. I am thus not persuaded that
the contradictions and inconsistencies highlighted and considered were fatal to
their credibility. The principle in Rex v Dhlumayo and Another3 was therefore
correctly applied by the full court. Having come to this conclusion, I proceed to
consider below the evaluation of the facts found proven by the trial court.

Identity
[27] As regards the evidence of the appellant’s identity, it is significant to note
that the appellant did not dispute the fact that the two key state witnesses,
Messrs Ntunja and Makholisa, knew him prior to this incident. He also admitted
that he knew them too. Even though they testified that they did not know his
name at first, the fact that in their statements mention was made of his name,
does not take this matter any further, as there is no dispute that they knew him.
There is therefore, in my view, no room for mistaken identity. Their evidence
regarding the identity of the appellant was beyond doubt and could be relied upon

3 Dhlumayo note 1 above.

independently of their identification in court and during the identification parade.
Their evidence was that visibility in and around the filling station was good. They
not only saw him, but spoke to him too.

[28] The finding of the trial court that Mr van Zyl could not positively testify
about the exact time as to when the incident took place, as he did not hear the
sound of a single shot, is unassailable. The recorded time of 22h36 in the
occurrence book clearly relates to the time when a report was made to him, and
not when the shots were fired. His evidence that the shooting took place closer
to 22h36 was based on his own assumption. Consequently, the evidence of
Mr van Zyl regarding the time of the shooting was correctly rejected by the
trial court. In any event, the time is a neutral factor in this matter because the
appellant’s defence is an alibi.

[29] It was also submitted that an adverse inference should be drawn from the
failure of the State to call an eye-witness, Mr Maxwell Njoi, who, it was said,
could have corroborated the evidence of Mr van Zyl. Apart from the fact that the
name of this witness did not feature in the list of witnesses for the State, I do not
see how the evidence of this witness would have advanced the appellant’s case
considering that his defence was an alibi. No cogent reasons were advanced why
the appellant could not call this witness in circumstances where the State elected
not to call him.

[30] The conclusion by the trial court that the identity of the appellant was
proven beyond reasonable doubt, cannot be faulted. The sum total of all the
pieces of the proven facts from the evidence of all the witnesses called by the
State, when sewn together, create an impregnable mosaic of proof that the
appellant was at the garage at the time the deceased was killed.

[31]   Regarding an alibi defence this Court held in S v Liebenberg:4
‘Once the trial court accepted that the alibi evidence could not be rejected as false, it was not
entitled to reject it on the basis that the prosecution had placed before it strong evidence linking
the appellant to the offences. The acceptance of the prosecution’s evidence could not, by itself
alone, be a sufficient basis for rejecting the alibi evidence. Something more was required. The
evidence must have been, when considered in its totality, of the nature that proved the alibi
evidence to be false. . . .’ (Emphasis added.)

[32] In R v Hlongwane5 the court stated that ‘. . . the alibi does not have to be
considered in isolation’.

[33]   The alibi defence of the appellant was correctly rejected by the trial court
as being not reasonably possibly true. The full court cannot be faulted for
confirming the finding of the trial court that, the nature of the evidence of the
State, considered in its totality, proved the evidence of the alibi to be false.

Doctrine of common purpose
[34]   It is common cause that although the State rested its case on the doctrine
of common purpose in this matter, the evidence adduced did not establish prior
agreement to commit murder. It relied on active participation.

[35]   This Court in S v Mgedezi and Others6 had this to say where liability arises
from active participation:
‘In the first place, he must have been present at the scene where the violence was being
committed. Secondly, he must have been aware of the assault on the inmates of room 12.
Thirdly, he must have intended to make common cause with those who were actually
perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose
with the perpetrators of the assault by himself performing some act of association with the

4 S v Liebenberg 2005 (2) SACR 355 (SCA) para 14.
5 R v Hlongwane 1959 (3) SA 337 (A) at 340H.
6 S v Mgedezi and Others [1989] 2 All SA 13 (A); 1989 (1) SA 687 (A) at 705I-706B.

conduct of the others. Fifthly, he must have had the requisite mens rea; so, in respect of the
killing of the deceased, he must have intended them to be killed, or he must have foreseen the
possibility of their being killed and performed his own act of association with recklessness as
to whether or not death was to ensue.’ (Emphasis added.)

[36]   In Dewnath v S7 Mocumie AJA, explained the application of the common
purpose doctrine as follows:
‘In the light of the facts of this case, it is important to note that the common purpose doctrine
as espoused in S v Mgedezi [and] others has been pronounced by the Constitutional Court to
be constitutional. The most critical requirement of active association is to curb too wide a
liability. Current jurisprudence, premised on a proper application of S v Mgedezi [and] others,
makes it clear that (i) there must be a close proximity in fact between the conduct considered
to be active association and the result; and (ii) such active association must be significant and
not a limited participation removed from the actual execution of the crime.’ (Emphasis
added.)

[37] The next question is whether the evidence of Messrs Ntunja and
Makholisa was sufficient to prove that the appellant acted in common purpose
with the shooter. It was argued that the trial court failed to attach sufficient
weight to the fact that the two witnesses were not in a position to identify the
driver of the vehicle which they saw picking up the shooter who came running
from the direction of the depot. This contention was based on the argument that
Mr Ntunja had testified that he remained in the toilet for seven to eight minutes
while he tried to ascertain what was happening before he went out to look down
Main Reef Road. The argument was that, in the intervening 7 to 8 minutes,
several things could have happened that Mr Ntunja did not observe. This
included the fact that a different Mercedes Benz may have arrived in order to
pick up the shooter from the direction of the depot or that a different man got into
the Mercedes Benz.

7 Dewnath v S [2014] ZASCA 57 para 15.

[38] There are three reasons why these propositions adumbrated above should
be rejected. In the first instance, the two key state witnesses testified that the man
who disembarked from the appellant’s vehicle and went to the direction of the
depot, was the same man they saw being picked up by the Mercedes Benz, driven
by the appellant, after it stopped, having made a U-turn at the robot – controlled
intersection. In particular, Mr Ntunja stated that although he could not see the
face of this man, he recognised him by the clothing he wore. Even though
Mr Makholisa did not mention any particular feature by which he identified this
person, he was adamant that it was the same man. He could see him from the
lighting provided by the street lights. Secondly, they both testified that it was not
busy at the garage that evening; the road was also not busy and there were no
other motor vehicles at that time on the road. It was quiet.

[39] Thirdly and most importantly, Mr Makholisa indicated that from the time
he saw the appellant leaving the garage until he made a U-turn, and ultimately
stopped next to the depot with his hazard lights on, he never alighted from the
vehicle. The ineluctable conclusion must be that he kept watch of the appellant’s
motor vehicle until the shooter jumped into the appellant’s motor vehicle.

[40] It is clear from Mr Makholisa’s evidence that he was at the forecourt of the
filling station all the time. There is no evidence that he went inside the shop. The
likelihood of another Mercedes Benz coming at that time, which happened to
pick up the unknown man, is minimal. The same applies to the proposition that
another man may have jumped into this motor vehicle. The finding by both courts
that there was enough evidence from which an inference could be drawn that the
appellant and an unknown man, who shot the deceased, acted in common purpose
to kill the deceased cannot be faulted.

Sentence
[41] As far as the sentence is concerned, it was submitted that the full court did
not go far enough to reduce the sentence, as the appellant has led an exemplary
life throughout the period he has been on bail pending the outcome of this appeal
and that he is a good candidate for rehabilitation.

[42] That the appellant has been convicted of a very serious offence admits of
no doubt. It is also apparent that the murder falls within the ambit of Part 1 of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997, for which life
imprisonment is a prescribed sentence. The prescribed sentence could not be
deviated from unless there were substantial and compelling circumstances.
However, the full court found favour with the concession made by the State that,
after the conviction and sentence, the appellant led a reasonable and exemplary
life and therefore was a good candidate for rehabilitation. On this basis, the
full court found that substantial and compelling circumstances were present
which warranted the setting aside of the sentence of life imprisonment imposed
by the trial court. It replaced it with a sentence of 20 years’ imprisonment. This
was done, despite the full court making a remark, correctly so, in my view, that
‘I am unable to say that the [c]ourt a quo misdirected itself when it sentenced the
appellant to imprisonment for life. Some of the factors I have referred to above
surfaced after the appellant was convicted and sentenced’.

[43] The less said about the reasons for reducing the sentence by the full court,
the better. It suffices to say that it is difficult to discern the full court’s reasoning
on the reduction of the sentence imposed by the trial court as it was based on
contradictory statements. It found no misdirection in the manner in which the
trial court exercised its sentencing discretion but yet it changed the sentence. As
to why the full court considered the facts which, it acknowledged, surfaced after
the appellant was convicted, boggles the mind. It is trite law that an appeal court

will only consider the facts and circumstances known when sentence was initially
imposed. But since there is no cross-appeal by the State against the sentence
imposed by the full court, nothing more needs to be said and there is no reason
to interfere with the sentence.

[44] In the result, the following order is made:

The appeal against both the conviction and sentence is dismissed.

_____________________
A M KGOELE
ACTING JUDGE OF APPEAL

APPEARANCES

For the appellant:

G Malindi SC (with X D Matyolo)
Instructed by:
Nkosi
Tshabalala
Inc,
Johannesburg
McIntyre
Van
Der
Post,
Bloemfontein

For the respondent:

M P Moleko
Instructed by:
Director of Public Prosecutions,
Johannesburg

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
30 July 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Machi v The State (256/2020) [2021] ZASCA 106 (30 July 2021)
Today the Supreme Court of Appeal (SCA) dismissed the appeal against an order of the full
court of the Gauteng Division of the High Court, Johannesburg.
On 19 January 2007, the deceased, Mr Thusi, was fatally shot during the night in his office at
the Engen Diesel Depot (the depot) in Langlaagte, Johannesburg while on duty. The appellant,
Mr Machi, his co-worker at that time, was subsequently arrested and charged with murder on
the strength of the information the police received from Mr Ntunja and Mr Makholisa, who
were on duty during the night at the Engen garage situated next to the depot. Their evidence
relied on by State was that, on that fateful night, Mr Machi came to the garage around 20h30
driving a motor-vehicle accompanied by another person who was unknown to them. This
person after disembarking from the vehicle proceeded to the direction of the depot which was
situated at the back of the garage whilst Mr Machi, was talking to them. Mr Machi left the
garage .Shortly thereafter, sound of gunshots was heard coming from the back of the garage.
Subsequent to that, the same unknown person they had earlier observed, came back running
from the direction of the depot and climbed into the motor-vehicle driven by Mr Machi. The
motor-vehicle had at that time stopped next to the depot with its hazard lights flashing. They
both drove away. They learned later that Mr Thusi was shot dead.
Mr Machi raised an alibi defence during trial before the South Gauteng High Court (trial court).
This was rejected by the trial court and he was convicted of murder and sentenced to life

imprisonment. He successfully obtained leave to appeal to the full court of that Division against
the conviction and the resultant sentence. The full court dismissed the appeal against conviction
but set aside the sentence of life imprisonment imposed. It substituted it with one of 20 years’
imprisonment. This Court granted the appellant special leave to appeal against both the
conviction and sentence.
There were three issues for determination; whether the circumstantial evidence relied by the
state in view of the contradictions that were pointed out, was sufficient and reliable to prove
that Mr Machi was at the scene of crime; whether he acted in common purpose with the alleged
shooter; and whether the reduced sentence was harsh. The SCA held that there was no
demonstrable irregularity shown in the manner in which the trial court evaluated the evidence;
that the contradictions were not fatal to affect the credibility of Mr Makholisa and Mr Ntunja;
that the confirmation of the conviction by the full court could not be faulted; and that there was
no reason to interfere with the sentence reduced by the full court. In the result, the SCA
dismissed the appeal against both the conviction and sentence.

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