High court erred in Maqubela murder conviction – Supreme Court of Appeal

The high court made an error when it concluded that the medical evidence in the death of acting Judge Patrick Maqubela was inconclusive.

The Supreme Court of Appeal made this finding on Friday when it set aside the murder conviction of Thandi Maqubela‚ the judge’s estranged wife.

The appeal court said the trial court incorrectly relied upon the evidence of guilty conduct on the part of Maqubela‚ without more‚ to prove her guilt.

It said in the light of the conclusion that the deceased probably died of natural causes‚ even if the guilty consciousness of Maqubela was taken into account‚ an unlawful killing was not the only reasonable inference that could be drawn.

In 2013 the Western Cape High Court found Maqubela guilty of murdering her estranged husband.

She was also found guilty of the forgery of a document purporting to be the will of the deceased and the resultant fraud perpetrated upon the deceased's estate.

She was sentenced to 15 years for the murder and three years each for the forgery and fraud. The sentences for forgery and fraud were ordered to run concurrently‚ meaning her effective sentence was 18 years.

Maqubela had denied that she had murdered her husband by suffocation‚ as claimed by the state. Her defence was that the deceased must have met his death as a result natural causes.

The high court granted her leave to appeal only against her conviction for murder.

In her appeal‚ Maqubela said the trial court found that comprehensive medical evidence about the deceased's post-mortem condition did not exclude the reasonable inference of sudden death by reason of natural death.

In a full Bench judgment of five judges penned by Judge of Appeal Kevin Swain‚ he agreed with her.

Swain said the trial court carried out a detailed examination of the conflicting expert evidence of Dr Sipho Mfolozi‚ a specialist pathologist called by the State‚ and Professor Gert Saayman‚ a specialist pathologist called by the appellant‚ as to the cause of death of the deceased.

Swain said the trial court “unfortunately” failed to appreciate the distinction between the two measures of proof while doing so.

“In the result‚ the trial court at times inadvertently applied the scientific measure of proof to the medical evidence‚ that of scientific certainty‚ and at other times applied the judicial measure of proof‚ being the assessment of probability.”

As a result‚ the trial court failed to appreciate that the opinion of Saayman that an inference of “death by natural causes or other undetected unnatural causes” and an inference of suffocation were “equally possible”‚ was formulated by him in the context of the scientific measure of proof‚ namely scientific certainty‚ Swain said.

He said in the light of evidence that Maqubela probably died as a result of natural causes‚ an inference by the trial court of an unlawful killing could not be reasonably drawn.

Swain said the opinion of Saayman that natural causes were the probable cause of death of the deceased was based upon objective medical facts‚ sound logical reasoning and accorded with the probabilities as revealed by the medical evidence.

By contrast‚ Mfolozi’s opinion that natural causes as the cause of death were excluded by all of his post-mortem findings was not based upon logical reasoning.

“In the result‚ the appeal against the conviction of murder must succeed‚” Swain said.