A man who has spent 12 years in jail for murder must be freed immediately because the judge who convicted him made a fundamental error‚ the Supreme Court of Appeal has ruled.
Samuel Nndwambi is the second of four men jailed for life in 2006 at the High Court in Thohoyandou‚ Limpopo‚ to have his conviction overturned due to the same error by then-acting judge Ephraim Mkgoba‚ who is now judge president of Limpopo.
Appeal Judge Carole Lewis said after reading heads of argument and the trial record in Nndwambi’s case‚ which was due to be heard on August 15‚ she and her colleagues on the bench had decided he must be set free immediately.
In May 2016 one of Nndwambi’s co-accused‚ Marcus Mulaudzi‚ was freed after the appeal court said Makgoba relied entirely on the uncorroborated evidence – which they said was “entirely unworthy of credence” - of one of their alleged accomplices‚ Tshimangadzo Mushweu.
Lewis upheld Nndwambi’s appeal against his convictions for murder and robbery‚ saying Mushweu’s statement incriminating him “should not have been sufficient to discharge the state’s onus of proving [his] guilt beyond a reasonable doubt.”
She added: “[Nndwambi] denied any involvement in the commission of the offences and no evidence was led by the state other than that of [Mushweu].”
Lewis said the appeal court had previously ruled that any out-of-court statement by a co-accused would compromise the constitutional right to a fair trial and should not be admissible.
Even Mushweu argued during the four men’s trial in 2006 that his statement to police should not be admissible in court‚ but Makgoba overruled him.
In the statement‚ he said he was involved in a conspiracy with the other three men to rob school principal‚ taxi owner and ANC leader Shavhani Ramusetheli at his home in July 2005‚ and described the parts played by each of the men.
Speaking to News24 after his release‚ Mulaudzi said he only met his co-accused two days before Ramusetheli was murdered.
“I was arrested and sentenced to life in prison for something I never did. [Mushweu] was never my friend and on the evening of the murder‚ I had parked my employer’s taxi and I went home‚ so I was very confused when I was arrested‚” he said‚ adding that he planned to sue the state for R28-million.
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