Cape Town - Convicted killer Makhi Kapa, who was found guilty of murder and sentenced to 15 years in jail by the Western Cape High Court, has won leave to appeal for a lesser sentence at the Constitutional Court.
However, in a majority ruling written by Justice Steven Majiedt, the Concourt dismissed Kapa’s appeal against his conviction.
Kapa, who was found guilty of a murder committed in Cape Town in 2018, argued in the Concourt that hearsay evidence infringed on his right to a fair trial.
The central issue in Kapa’s application was whether the hearsay statement of Bomikazi Dasi, who died before the original trial began, was correctly admitted as evidence.
Kapa’s conviction was linked to alleged acts of vigilantism at his house in Khayelitsha in 2018.
Along with six others, Kapa was charged with four counts of kidnapping, two counts of assault with intent to do grievous bodily harm, two counts of murder, and one count of attempted murder.
The one count of murder related to the death of Makhuze Bungane and the other to that of Monwabisi Nkayi.
The State led evidence consisting of DNA evidence; blood spatter evidence; post-mortem reports; a warning statement made by one of the accused; the testimony of the deceased’s grandmother; the investigating officer’s testimony and Dasi’s hearsay statement.
The trial court relied heavily on Dasi’s statement to place Kapa at the crime scene and to establish his involvement in the victim’s death.
Kapa’s argument was that the statement should not have been accepted as evidence as it did not comply with the Justice of the Peace and Commissioners of Oaths Act, in that it was provided in isiXhosa and written down in English.
The State argued that Dasi’s eyewitness account was not the only evidence linking Kapa to the murder, but Kapa said the statement contained evidence that was not corroborated by any other witness.
After an analysis of the evidence, the trial court found Kapa guilty of one count of murder and acquitted him of all other charges, sentencing him to 15 years in jail.
Kapa approached the Concourt as a last resort after the refusal of his applications to both the high court and the Supreme Court of Appeal for leave to appeal.
mwangi.githahu@inl.co.za