Man loses appeal against murder conviction based on victim’s dying declaration

Cape Town – A man jailed for 15 years in 2019 by a Caledon court for a 2012 murder has lost his appeal against his conviction, which was based on the dying declaration of the man he killed.

Khanyiso Sigcawu was convicted by the regional magistrate in Caledon for a murder committed in Villiersdorp.

Following the conviction Sigcawu was sentenced to 15 years’ imprisonment, of which two years were suspended.

Sigcawu’s application for leave to appeal the conviction and sentence was dismissed by the regional magistrate, but his petition to the Western Cape High Court in respect of the conviction was granted.

He had appealed against his conviction claiming that the court made a mistake in finding that the State had proven its case beyond reasonable doubt, and in particular that the court erred in relying on the evidence of a dying declaration of the victim, a taxi driver who was known as Mambush.

After the shooting, the first witness that arrived on the scene was Charlene Fortuin, who lived opposite Mambush.

In her testimony during the original trial Fortuin told the court that at about 11pm on the night of the murder, a Saturday, she heard five gunshots and then she heard Mambush call out her name.

She went outside, where she found Mambush on the pavement. She asked him what happened and he said “Dat Kaizer wat by die munisipaliteit werk, my geskiet het” (That Kaizer who works at the municipality shot me).

Fortuin testified that at that stage a police van drove down the road. She stopped it and spoke to a policeman known as Booysen.

Booysen, a police sergeant, testified at the trial that at some stage he had also worked at the municipality in Villiersdorp and that the municipal workers were known to him.

He said knew Sigcawu as Kaizer and that they lived in the same area.

When he spoke to Mambush at the scene, Mambush repeated that he had been shot by Kaizer, the man who worked at the municipality.

A second police officer, Warrant Officer Adams, also told the court during that trial that when he arrived at the scene he also spoke to Mambush as he was familiar with him and heard the same story as the other two who had testified.

In her judgment on conviction, the regional magistrate said the evidence pointed to Mambush telling three witnesses who had shot him. She found that while the dying declaration amounted to hearsay evidence and that caution should apply when admitting this evidence, it was improbable that a person who was about to die would make a false statement.

Dismissing the appeal, Judge Robert Henney and acting Judge Mas-Udah Pangarker said the fact that the introduction by the prosecutor of the deceased’s dying declaration was met with no objection by Sigcawu or his attorney amounted to an agreement to the admission during the trial.

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Cape Argus