- Constitutional rights were violated due to flawed reliance on single-witness testimony and a failure to apply the cautionary rule.
- Appeal denied to some, granted to one, exposing unequal treatment of co-accused in identical circumstances.
- Court affirms risk of wrongful conviction, orders High Court to hear appeal and consider joint hearing.
Zolani Godloza and Sibulele Mthetho were convicted of murder in 2018 and sentenced to 16 years in prison based solely on the evidence of a single witness, Kwanele Bavu.
The Constitutional Court has now allowed them to appeal, finding that their case raises serious constitutional concerns, including the risk of wrongful conviction and unequal treatment under the law. The judgment reveals major flaws in the trial process and the appeals system, with direct implications for their right to freedom, equality, and access to justice.
Bavu’s oral testimony contradicted his written statement and conflicted with the post-mortem report. The applicants pleaded not guilty and provided alibi defenses; however, the Regional Court relied on Bavu’s account without following the cautionary rule required under Section 208 of the Criminal Procedure Act. Nonkosi Zoliswa Mhlantla and Justice Leona Theron, writing for the majority, stated that the case drew the Court’s attention because of the constitutional rights involved.
“The risk of a wrongful conviction directly affects the right not to be deprived of freedom arbitrarily and without just cause.”
The respondent admitted that the Regional Court had made a mistake, saying: “It would be foolish to argue that the evidence of the single witness relied on by the Regional Court was satisfactory for a conviction.”
Unequal treatment in the appeal process
The injustice deepened when Lungisa Grifhs, a co-accused convicted on the same evidence, was granted special leave to appeal by the Supreme Court of Appeal in 2020. Godloza and Mthetho, represented separately, were denied the same opportunity. Their application for reconsideration was dismissed by the then Supreme Court Judge President Mandisa Maya, despite identical grounds and shared facts. The court found that this unequal treatment violated their rights to equality and a fair trial.
Acting Justice David Bilchitz, agreeing with the majority, highlighted the constitutional implications: “The violation of constitutional rights is a central reason for this Court to exercise jurisdiction and grant leave to appeal.”
Acting Justice Alan Dodson, in a separate opinion, called the outcome a serious injustice: “The dismissal of their application for reconsideration is a serious injustice that infringes on their rights to a fair trial, an appeal, and equality before the law.”
The court also pointed out that the Supreme Court of Appeal had previously granted reconsideration in similar cases, including Gwababa and Malele, where co-accused received consistent treatment. In contrast, Godloza and Mthetho did not get the same procedural fairness.
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