S v Mvinjelwa (RCD 28/2020) [2025] ZAWCRD 6 (15 August 2025)

Constitutional law — Presidential powers — appointment of commissions under s 84(2)(f) — not administrative action under s 33 but constrained by legality and good faith; Commissions Act — statutory jurisdictional fact that subject matter be a >matter of public concern= — objectively required before vesting coercive powers; Audi alteram partem — no duty to afford pre-appointment hearing absent legitimate expectation or clear necessity; Terms of reference — must be sufficiently certain to define inquiry; Separation of powers — exceptional restraint required before compelling head of state to give oral evidence.

Criminal law – doctrine of common purpose – whether misapplication constitutes a constitutional issue – jurisdiction of Constitutional Court; presence requirement and fatal‑blow timing in common‑purpose murder; public policy/legal convictions and constitutional values; interests of justice in granting leave to appeal.

Criminal law – Murder and attempted murder – evidence of eyewitnesses and medical evidence supporting inference of single assailant – appellant’s denial rejected; Sentencing – extenuating circumstances – youth (19 years) and alcohol-induced irrationality may reduce moral blameworthiness; trial judge’s misdirection on extenuation warrants substituting death sentences with lengthy determinate imprisonment.

Criminal procedure – reconsideration under s 17(2)(f) Superior Courts Act – exceptional circumstances; Criminal law – single witness evidence and cautionary rule; Failure to call potentially material witness – adverse inference and fairness; Section 227 Criminal Procedure Act – cross‑examination on prior sexual history; Corroboration by first report, police and medico‑legal evidence.

Criminal law – single-witness identification – cautionary rule and reliability; photo-identification versus formal identification parade; s37(6)(a)(iii) CPA – privacy and evidence; s115 CPA – alibi and evidential value; Hearsay Evidence Act s3(1)(c) – admissibility and probative value; exclusion of bail-record and impact on fairness.

Criminal procedure – s 52(3) (Criminal Law Amendment Act) and s 316 (Criminal Procedure Act): leave to appeal where High Court considered leave unnecessary but stated it would have been refused; Appeal Court empowering itself to grant leave. Evidence – effect of documentary evidence (J88) handed in by consent: treated as accepted by State unless doctor called or appropriate objection raised. Corroboration in rape trials – must render complainant’s account of lack of consent more probable; mere proof of intercourse or a complaint does not amount to corroboration. Cautionary approach – application where complainant’s evidence is contradictory, intoxicated or there is an evidential basis for unreliability. Misdirection – improper reliance on inadmissible or unreliable material vitiates conviction.

Criminal Law – Common purpose – Fair trial rights – improper application of the common purpose doctrine violating fair trial rights.

* Criminal law – Evidence – Single witness testimony – Section 208 CPA – admissible but must be clear and satisfactory in material respects. * Cautionary rule – Court must scrutinise single-witness evidence in context and seek corroboration where material improbabilities exist. * Evidence – Failure to cross-examine accused on her version is a relevant factor that can undermine the State’s case. * Burden of proof – State must prove guilt beyond reasonable doubt; where reasonable possibility of accused’s version exists, benefit of doubt applies. * Appeal – Trial court misdirection in applying cautionary rule justifies setting aside conviction and sentence.

Vexatious Proceedings Act s2(1)(b) – persistency and absence of reasonable ground – abuse of court process – leave required before instituting further proceedings – private prosecutions may be curtailed under Act.

Criminal law – accomplice evidence – caution required but not automatically rejected; common purpose and disassociation – active association and need for clear, positive withdrawal; application for leave to appeal – prospects of success and interests of justice; minimum sentences – no substantial and compelling circumstances to deviate.