- The Constitutional Court cleared Goodman Tshabangu of murder, robbery and firearm-related charges.
- Acting Justice Nuku found that the trial judge wrongly recalled and questioned State witnesses after the prosecution’s case had already failed.
- The court ruled that judges must remain impartial and cannot step into the shoes of the prosecution to strengthen a criminal case.
The Constitutional Court has acquitted Goodman Tshabangu, finding that he was denied a fair trial after the trial judge improperly recalled and questioned State witnesses, effectively strengthening the prosecution's case.
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In a unanimous judgment written by Acting Justice Lister Nuku, the Constitutional Court held that the trial court went too far by calling witnesses after both the State and defence had closed their cases. This resulted in evidence that ultimately led to Tshabangu’s convictions.
Tshabangu brought the appeal against the State, with the Tshwane Society of Advocates acting as a friend of the court. The Constitutional Court allowed the appeal, set aside the trial court’s order, and acquitted Tshabangu on all charges. It also ordered that he be released immediately, unless he is serving another sentence.
Murder conviction hinged on firearm evidence
Tshabangu was convicted in the High Court’s Circuit Local Division for the Vereeniging Circuit District of murder, two counts of robbery with aggravating circumstances, unlawful possession of a firearm, and unlawful possession of ammunition. The charges stemmed from the fatal shooting of businessman Fayaz Ahmed Suliman during an armed robbery on 28 April 2006.
The prosecution’s case against Tshabangu relied almost entirely on a firearm found in his possession 13 days after the murder. Ballistic evidence linked this weapon to the bullet that killed Suliman. The trial court sentenced Tshabangu to an effective 22 years in prison.
Judge questioned gaps in the prosecution’s case
During the trial, however, serious issues emerged. One police witness testified that the firearm found with Tshabangu was a 7.65mm pistol, while another described it as a 9mm weapon. This raised doubts about whether the weapon taken from Tshabangu was the same one analysed by ballistic experts.
The trial judge openly questioned whether the State had proved its case against Tshabangu. At one point, the judge remarked, “I agree with you; I have no evidence in respect of the other counts”.
The judge also expressed concern that there seemed to have been a great deal of misconduct involving changes to official records relating to the firearm. Rather than deciding the case on the evidence already before the court, the judge recalled two police witnesses and considered calling more witnesses to resolve these discrepancies.
Constitutional Court finds judge crossed the line
Justice Nuku wrote that South African judges must ensure justice is done, but they have to remain impartial throughout criminal proceedings. He explained that while Sections 167 and 186 of the Criminal Procedure Act allow judges to call or recall witnesses when necessary, these powers cannot be used to strengthen the prosecution’s case.
The judgment states that even the perception that the trial court is coming to the prosecution’s rescue and fixing the weaknesses in its case should be avoided, even if mistaken.
The Constitutional Court found that the trial judge’s intervention was not to ensure a fair hearing, but to investigate apparent irregularities around the firearm evidence. The court found the judge relied on submissions that were not evidence and asked leading questions, creating the impression of helping the prosecution instead of being an impartial adjudicator.
State’s case had already failed
The Constitutional Court found that by the time both sides had closed their cases, there was no evidence linking Tshabangu to the murder or robberies. Justice Nuku said that when there is no evidence to support a conviction, the law requires an acquittal.
The applicant was entitled to be acquitted at that stage, the judgment states. Instead, the recalled witnesses gave evidence that strengthened the prosecution’s case and ultimately changed the outcome of the trial. The Constitutional Court held that this violated Tshabangu’s constitutional right to a fair trial.
Convictions set aside
After excluding the evidence from the improper recalling of witnesses, the Constitutional Court found that the prosecution had not proved its case against Tshabangu. The court therefore acquitted him on all counts and ordered his immediate release, unless he is lawfully detained on another sentence.
In delivering the unanimous decision, Acting Justice Nuku stressed that judges must not step into the arena of litigation or create the impression that they are helping either side.
The judge, by recalling only witnesses who supported the prosecution, failed to remain neutral and impartial in using her discretionary powers, the court found.
The Constitutional Court said this case reinforces the constitutional guarantee that every accused person is entitled to a fair trial before an impartial court.
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