Two men who had been serving life imprisonment terms for the murder of a Knysna councillor have had their convictions and sentences overturned by the Constitutional Court.
The sentences handed down in 2021 against Mawanda Makhala and Velile Waxa were set aside after the court found that the State failed to discharge the onus to prove their guilt beyond a reasonable doubt.
This was due to a state witness who made an about turn during trial and had told the court that he had lied to police in the two statements they relied on to convict the duo.
Makhala – a former clerk in the housing department in the Knysna Municipality – and Waxa – a former independent councillor – were sentenced for the 2018 murder of slain councillor Mzukisi Molosi.
Molosi had attended a school governing body meeting at Concordia High School, in his area of residence.
After the meeting, he was given a lift and dropped off close to his home.
While walking towards his home, he was shot and killed.
Makhala and Waxa were convicted on charges of murder, possession of an unlicensed firearm and unlawful possession of ammunition.
According to evidence from the trial, Makhala’s brother – who was a section 204 state witness during trial –told the court how he was approached to enlist the services of a hitman for the purposes of killing Molosi.
However, during the trial proceedings, the state witness recanted the contents of his first and second statements which incriminated him and the applicants in the murder.
“He said that the incriminating portions of the statements were fabrications that the police forced him to record in the statements.
“He claimed that he was intimidated by the police and threatened with assault and as a result, made statements that he thought the police wanted from him,” the judgment read.
The trial court, however, admitted the statements as evidence, and circumstantial evidence was relied on to convict Makhala and Waxa of murder and the related counts.
Justice Zukisa Tshiqi in judgment said: “It is trite that the guilt of an accused must be proved beyond reasonable doubt.
“The trial court was alive to the reality that, apart from the section 204 statements, there was no other evidence linking the applicants directly to the offence.
“It sought recourse to circumstantial evidence.
“It is not clear on what basis the circumstantial evidence, on which the court placed reliance, could link the applicants to the murder ... The section 204 witness in this matter had distanced himself from the statements and had absolved the applicants. The witness in fact testified in the trial court that he was lying to the police when he made the statements,” said Justice Tshiqi.
“His testimony in court contradicted his prior statements.
“The reason the trial court declared him a hostile witness was because he had the requisite intention to deviate from his two previous statements ...the police had no way of knowing whether what he said was the truth without further corroboration.”
Cape Times