Constitutional Court Acquits Goodman Tshabangu After 17 Years Of Wrongful Imprisonment

A convicted murderer, who had been found in possession of a murder weapon two weeks after the crime was committed, is a free man after he was unanimously acquitted by a full bench of the Constitutional Court on Monday. 

Goodman Tshabangu was convicted in 2009 by the High Court of South Africa, Circuit Local Division for the Vereeniging Circuit District, and sentenced to 22 years in prison.

He was convicted on one count of murder, two counts of robbery with aggravating circumstances, one count of unlawful possession of a firearm, and one count of unlawful possession of ammunition. 

All these counts arose out of an armed robbery that took place on April 28, 2006. 

The murder incident claimed the life of Fayaz Ahmed Suliman. He was with his wife, Rukhsana Sidat, when they were robbed while driving home from their wholesale business. Suliman was shot during the robbery and died shortly thereafter.

Thirteen days after the robbery, Tshabangu was arrested in connection with a separate matter - in connection with the hijacking of a Telkom-owned vehicle. However, upon his arrest, he was found with a 9mm firearm and ammunition linked to the robbery and murder of Suliman.

At trial, the prosecution sought to establish that the firearm found in Tshabangu’s possession was the same firearm used in the armed robbery. It produced a ballistics report that matched a firearm with the bullet used in the armed robbery.

Tshabangu, in his relentless appeals through the courts, argued that his trial was unfair and his convictions unsound. 

The Constitutional Court judgment, penned by Justice Lister Nuku, noted: “In the absence of any evidence linking Tshabangu to the weapon used in the robbery and murder on 28 April 2006, the State’s case failed. This was stated by the High Court on record, and Tshabangu was entitled to be acquitted at that stage.”

Justice Nuku set aside the High Court ruling and replaced it, confirming that Tshabangu is found not guilty and acquitted on all counts. 

“If the applicant is not serving any sentences other than those that are the subject of this application, the Head of the Groenpunt Medium Correctional Centre, Free State, or the Head of the relevant facility where the applicant is incarcerated, is directed to release him from prison immediately.” 

During trial and in handing down judgment, the High Court held that Tshabangu participated in the robbery and, based on dolus eventualis, was found guilty of murder. 

During trial proceedings, the trial judge exercised her powers under Sections 167 and 186 of the Criminal Procedure Act when she opted to call or recall several witnesses. 

After his sentencing, Tshabangu sought leave to appeal to the Supreme Court of Appeal, which was refused in 2017.

He argued, among others, that the High Court improperly exercised its powers under Sections 167 and 186 by calling witnesses in circumstances where no evidence linked him to the offences referred to in the indictment.

The High Court judgment read: “Within two weeks of the murder of Suliman and the robbery of those persons, he (Tshabangu) is in possession of the murder weapon. He offers no explanation. He does not give evidence.

“The Constitutional Court has already indicated that he bears the burden of having an adverse inference drawn against him. The consequence in this case is that this court is not free to speculate on his behalf as to other inferences that might perhaps be drawn from the facts before the court.

“Accordingly, I find that Tshabangu was in possession of the murder weapon on 28 April 2006. He was therefore part of the robbery because the murder weapon was used at the time of the robbery. I cannot say that he fired the shot, but as a robber, as a participant in this common purpose, he bears legal responsibility for what he must have known might happen, but where he reconciled himself to what did happen.

“A robber must know that a firearm can cause harm. He was reckless as to whether harm would actually be caused. He participated in the robbery, harm was caused, and therefore, based on dolus eventualis, he must be found guilty of murder.” 

Ultimately, the apex court found that the trial judge failed to maintain neutrality and impartiality in the exercise of her discretionary powers. 

Tshabangu’s counsel argued that given the lack of any other evidence proving that he was at the crime scene, the High Court could not reasonably draw the inference that, because he was in possession of the weapon used to commit the offences 13 days later, he was in fact the person who committed the crimes he was charged with. 

Tshabangu's counsel averred that “other reasonable inferences could have been drawn from the same facts”.

chevon.booysen@inl.co.za