S v Manundu and Others (CC18/2020) [2022] ZAECMHC 54 (17 June 2022)

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[2022] ZAECMHC 54
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S v Manundu and Others (CC18/2020) [2022] ZAECMHC 54 (17 June 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
[EASTENR
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO. CC18/2020
In
the matter between:
THE
STATE
vs
MZUBONGILE
MANUNDU
Accused No.1
SITHEMBISO
YALWA

Accused No.2
SOWISA
TYHOKOLO
Accused No.3
SIYABULELA
MANUNDU

Accused No.4
ZUKHANYE
MANUNDU

Accused No.5
SIKHOKHELE
VELEMANI

Accused No.6
NKOSIYOXOLO
KAKUDI VELEMANI

Accused No.7
MLUNGISI
MANUNDU

Accused No.8
NONTSEBENZO
YALWA

Accused No. 9
JUDGMENT
JOLWANA
J:
Introduction.
[1]
On 15 March 2020 community members of Majuba locality in Sterkspruit
were expected to gather for a cleansing ceremony at the
Manundu
homestead following the interment of the mortal remains of Samkelo
Manundu the day before.  He had died in a stabbing
incident in
the Western Cape where he and some of his relatives lived for
employment opportunity purposes.  Events took a
dreadful turn
when a woman estimated to be about 92 years old was assaulted, kicked
and driven from the Manundu homestead to her
homestead.  At her
homestead she was further assaulted and dragged to a rondavel which
had at some stage been set alight.
She died of blunt force
trauma and 2
nd
and 3
rd
degree burns.  The
accused have been arraigned on charges of imputing witchcraft, arson
and the murder of Nosayinethe Manundu
(the deceased) in connection
with that incident.
[2]
Initially there were nine accused facing these charges.  Charges
against accused no.3 and 9, Sowisa Tyhokolo and Nontsebenzo
Yalwa
were withdrawn.  They later testified as State witnesses in
terms of
Section 204
of the
Criminal Procedure Act 51 of 1977
.
The trial in respect of accused no.6, Sikhokhele Velemani was
separated from that of the rest of the accused resulting in
only five
of the accused facing trial in this Court.  It is not clear what
became of accused no.5, Zukhanye Manundu.
The State did
indicate at the commencement of the trial that he would also be
called as a
section 204
witness.  However, he was never called
to come and testify.
The
charges.
[3]
In charging the accused the State invoked the provisions of
section
51
(1) of the
Criminal Law Amendment Act 105 of 1997
on the basis
that the murder of Nosayinethe Manundu, also known as Magogo or
Mablangwe, as some of the witnesses including some
of the accused,
affectionately called her, was planned or premeditated and was
committed by a group of persons acting in execution
or furtherance of
a common purpose.  The deceased will at times be referred to as
Mablangwe in this judgment.  All the
five accused pleaded not
guilty to all the three charges preferred against them.  The
charge of assault with intent to do
grievous bodily harm in respect
of Zintle Sobudula (Zintle) was, for some reason, withdrawn.
Accused no. 1, 2, 7 and 8 provided
plea explanations for their pleas
of not guilty.
Accused
no.1’s plea explanation.
[4]
The plea explanation in respect of accused no.1 was that on Saturday
14 March 2020 he had attended a funeral of the late Samkelo.
On
Sunday 15 March 2020 there was going to be a cleansing ritual
following the funeral.  He had spent the night at the Msiya

homestead on 14 March 2020.  At about 06:00 the following
morning he woke up and went home to wash.  After washing he

returned to Samkelo’s homestead for purposes of attending the
cleansing ritual.  When he arrived at Samkelo’s
homestead,
he heard that Zintle had said that Samkelo was not dead when she was
questioned about that.  However, Zintle denied
having said that
Samkelo was not dead.  When the elders came into the room in
which Zintle was being questioned about what
she was alleged to have
said, he, accused no.1 left to another room to drink soft porridge.
While still in the other room
he heard that there was fire at the
deceased’s homestead.
[5]
He went to the deceased’s homestead to see what was happening.
He found the deceased outside the rondavel which
was burning.
The deceased was being questioned about Samkelo’s whereabouts.
The deceased said that Samkelo was
inside the burning rondavel in a
trunk.  He then told the deceased to go and take Samkelo out of
the burning rondavel.
She refused.  He and others then
grabbed the deceased in order to force her into the burning rondavel
to take out Samkelo.
However, they were unable to force her
into the rondavel because of the flames and the heat.  He was
then called by Mr Dlepu
and he went to him.  Mr Dlepu told him
to stop what he was doing.  At that time his taxi was waiting
for him as he was
due to return to the Western Cape.  He went to
the taxis and was joined by others and they left for the Western
Cape.
When he left, the deceased was still alive sitting next
to the rondavel.
Accused
no.7’s plea explanation.
[6]
Accused no.7 provided the following plea explanation.  He came
down from the Western Cape to attend Samkelo’s funeral.

On 15 March 2020 he received a call from Samkelo’s mother who
is his cousin.  He took his bag in preparation for returning
to
the Western Cape and proceeded to Samkelo’s place.  When
he arrived at Samkelo’s homestead, he found Zintle
inside the
house.  Zintle was giving an explanation about the utterances
she allegedly made the previous day and she was being
questioned
about that.  Samkelo’s mother had called him to come and
hear what Zintle was saying.  He told Zintle’s
mother that
he was in a hurry to return to the Western Cape and he left.
[7]
On the way to town about two kilemetres away from Samkelo’s
homestead he was engulfed with anger and he alighted from
the taxi.
He took another taxi back to Samkelo’s homestead.  He
arrived there and questioned Zintle about her
alleged utterances.
He had a two litre container with water which he poured on Zintle and
asked Zintle to speak the truth.
It is then that Zintle said
that the deceased knew about the death of Samkelo.  The deceased
arrived and he asked her where
Samkelo and J who had died in 2018
were whom Zintle was talking about.  The deceased said that they
were in her house.
He was one of the people who took the
deceased to her homestead.  On the way to the deceased’s
homestead he received
a call from his taxi which was waiting for him
in town.  He then left going to that taxi in town.  It had
come nearer.
He was called by Dumile and one Ta Zet who were in
that taxi.  He boarded it and they left for the Western Cape.
[8]
When they were interrogating Zintle he had reminded the elders at
Samkelo’s place about an earlier decision taken by members
of
the community some time back.  That decision was that if a
similar situation arose the person concerned should be removed
from
the village and banished.  When they were refusing he told them
that they were liars for not implementing that decision.
Accused
no.2’s plea explanation.
[9]
Accused no.2 also provided a plea explanation.  On 14 March 2020
he attended a funeral of Samkelo.  After the funeral
he went to
his homestead which is in the same locality.  He returned the
following morning on the 15 March 2020 to Samkelo’s
homestead
to attend a cleansing ritual.  When he arrived he found some
elders in that homestead.  Zintle was not present.
He was
instructed to go and fetch Zintle to come and explain what she was
alleged to have said at a tavern.  Accused no.2
went to Zintle’s
home and told her that she was required to come to Samkelo’s
place.  Zintle came to Samkelo’s
place and was questioned
by the elders and was asked to repeat what she had said at the
tavern.  Zintle confirmed what she
had said to accused no.4 at
the tavern.  She was then asked where Sihle who died in 2018 and
Samkelo who was buried the previous
day were.  Zintle said that
the deceased, Mablangwe must be asked about their whereabouts.
At that time the deceased
was also present at Samkelo’s
homestead sitting outside.  The villagers questioned the
deceased but he did not participate
in questioning the deceased.
The deceased was asked where Sihle and Samkelo were.
[10]
The deceased said that they were in a trunk at her homestead.
The villagers then took the deceased to her homestead and
he went
along.  On the way he noticed that the deceased was being
assaulted.  When they arrived at the deceased’s
homestead
the deceased was asked about the whereabouts of Sihle and Samkelo.
The deceased also mentioned his own mother who
had died a long time
ago.  The mentioning of his mother by the deceased infuriated
him.  The deceased was near the door
of the rondavel but
refusing to go inside to fetch the people she had said were in a
trunk.  He participated in punching the
deceased to force her to
go into the rondavel.  The rondavel was not burning at the
time.  A few moments later he noticed
fire coming from the back
of the rondavel and the roof was collapsing.  The deceased was
pushed to go inside the rondavel.
However, their attempt to
push the deceased into the rondavel were unsuccessful because of the
heat.  He left the deceased
there with other villagers intending
to go back to Samkelo’s homestead.  He also needed to go
to his own homestead to
open the kraal for the livestock.  When
he left, the deceased was still alive.
Accused
no.8’s plea explanantion.
[11]
Accused no.8 also gave a brief plea explanation.  His plea
explanation was that he was present when the deceased said
that Sihle
and Samkelo were in her house in a trunk.  He admitted grabbing
the deceased trying to get her inside the rondavel.
However,
they were unsuccessful because of the fire.  He left the
deceased’s homestead going to a taxi that was waiting
to take
them back to the Western Cape.  When he left, the deceased was
still alive.
The
case for the prosecution.
[12]
The first witness for the state was a witness called in terms of
section 204
of the
Criminal Procedure Act (the
Act), Nontsebenzo
Yalwa (Nontsebenzo).  Her evidence was that she is a resident of
Majuba in Sterkspruit.  She knows
all the accused.  She is
related to accused no. 2 and 7.  Accused no.8 is her boyfriend.
[13]
On 14 March 2020 she and some other people from the Western Cape were
accommodated at Mr Msiya’s homestead after Samkelo’s

funeral.  They consumed liquor that evening in what she referred
to as the after tears and she later went to sleep in the
early hours
of the morning of the 15 March 2020.  Early that morning accused
no.2 arrived and woke up accused no.8 and Sowisa.
Accused no.1
also woke up.  They all stood at the verandah outside.
Accused no.2 told them that Zintle had again said
something at a
tavern.  Accused no.2 further said that they should go to
accused no.8’s homestead.  She, however
went back to
sleep.  She woke up after hearing screams.  She was with
other ladies she had travelled with from the Western
Cape.  The
screams were coming from the homestead of accused no.8 where the
funeral of Samkelo had taken place.  They
stood in the kitchen
and from there they could see that there were many people at the
homestead of accused no.8.  She went
back inside to prepare for
their journey back to the Western Cape.
[14]
They eventually went to accused no.8’s homestead at about 7:00
or 8:00 am.  When she arrived there she saw that
Zintle was half
naked, with no clothes on her upper body.  It was as if she had
been assaulted on her back.  Accused
no.8 was questioning Zintle
asking her to speak the truth.  Zintle then said that she
overheard her grandmother, the deceased
talking with her sister over
the phone.  Her sister was asking her if she had done it and her
grandmother said it went well.
Suddenly, chaos erupted and she
could no longer see Zintle.  The questioning of Zintle was
taking place in the yard at the
homestead of accused no.8 at that
stage.  Nontsebenzo then saw the deceased being assaulted.
She was being assaulted
by accused no. 1, 2, 4, 6, 7 and 8.
They were kicking her and assaulting her with open hands.
Accused no.6 was carrying
firewood but she could not see whether it
was used in assaulting the deceased.  Accused no.7 dragged the
deceased out of the
yard.  She followed behind but she first
went to the Msiya homestead and cleaned the place as they did not
want to leave the
place dirty.
[15]
At some point they heard that the deceased’s homestead was on
fire.  They then proceeded there.  When they
arrived the
rondavel was on fire at the back.  She and some ladies entered
the yard.  She found accused no.1, 2, 4, 6
and 8 assaulting the
deceased at her homestead.  They were kicking her saying she
must tell the truth.  They were assaulting
her with open hands
and kicking her.  She did not see accused no.7 at the deceased’s
homestead.  The accused dragged
the deceased and put her inside
the rondavel and closed it.  These were accused no.1, 2, 4, 6
and 8.  The accused managed
to put the deceased inside the
rondavel and secured it with a wire from outside.  She needed to
leave for her taxi and when
she left the deceased was inside the
burning rondavel.
[16]
While in the taxi she heard some children saying that the deceased
had managed to leave or escape from the burning rondavel.
She
saw accused no.1, 2, 4, 6 and 8 chasing the deceased.  She left
to collect her bag in order to put it in the taxi.
These
accused found the deceased behind a toilet of another homestead down
there and brought her back to her homestead inside the
yard.  As
they returned to the deceased’s yard she was following them.
They assaulted her again and tried to put
her inside the burning
rondavel.  However, the flames were too strong.  She heard
a voice saying that she must take a
bucket that was with her and
throw it to the burning rondavel and she did so.  There were
many people there.  After throwing
the bucket into the burning
rondavel she moved back.  The driver of the taxi told them to
leave as it was getting late for
their journey back to the Western
Cape.  She left for the taxi while the accused were still trying
to force the deceased into
the rondavel.  She told accused no.8
that they must leave for the taxi but he did not respond.
[17]
She went to the taxi and sat in the second seat behind the driver’s
seat.  Some young girls told her to look through
the window.
When she looked through the window she saw the deceased in a drum
with her legs protruding through the drum.
The drum was between
the rondavel and another house or structure at the deceased’s
homestead.  At that time the accused
were walking past the drum
proceeding towards the gate.  They proceeded to accused no.2’s
homestead to wash their hands.
The taxi was about 30 meters
away from the homestead of the deceased.  After the accused
finished washing their hands they
all came back and boarded the
taxi.  The accused who were in the same taxi as herself were
accused no.1, 3 Sowisa, 4, 6, 7
and 8.  However, accused no.6
was not going to the Western Cape.  He was left in Sterkspruit.
They were arrested
at Franschhoek in the Western Cape.
[18]
Under cross examination by counsel for accused no.1 and 7,
Nontsebenzo testified that the deceased was kicked on the body.

She would fall to the ground and then try to get up.  On the way
to her house she was being dragged.  She was not assaulted
on
the way from accused no.8’s homestead but she was assaulted at
her homestead with open hands and she was also kicked.
Accused
no.1, 2, 4, 6 and 8 tried to push her into the rondavel.  They
pushed her into the rondavel and closed the door.
They held her
up and threw her into the rondavel on the second occasion after she
had escaped and was brought back.
[19]
During the first occasion the deceased would hold on to the walls and
the accused would push her.  The accused were at
the door way as
this was happening.  She did not know if accused no.1 did or did
not actually push.  Nontsebenzo disputed
accused no.1’s
version put to her that he was still drinking soft porridge when he
heard about the burning rondavel.
She testified that on her
arrival at the deceased’s homestead, the rondavel was already
burning.  She found the accused
assaulting the deceased and
accused no.1 was also there.  The deceased was assaulted before
she was put into the burning rondavel.
It was thereafter closed
but she managed to escape.
[20]
She testified that she did not see who set the rondavel on fire.
As accused were assaulting the deceased they were saying
she must
take Samkelo and Sihle out.  When the deceased escaped and got
out of the rondavel she was already in the taxi.
Accused no.1,
2, 4, 6 and 8 chased the deceased.  She testified that the
distance between her burning rondavel and where she
was caught was
about 150 metres.  She did not see her running.  She
followed when the accused were chasing her.
When she got out
and ran she was already in the taxi and when they were chasing her
and she followed.  She saw them chasing
the deceased.
Accused no.6 was in front but she could not remember who was behind.
They left her in the taxi and she
followed them.  There were
other people there who were mostly children.  She confirmed that
accused no.6 was at the forefront
but she could not recall who was
behind him.  She saw the accused when they came back with the
deceased after they had caught
up with her and they were holding her
with their hands.  Accused no.6 and 8 were holding the deceased
while the other accused
were walking with them.
[21]
She testified that she did go to Samkelo’s homestead where
Zintle was and there were approximately 100 people in that
yard.
The discussion was about Zintle telling them what happened.
Some people were quiete.  Zintle said she heard
a phone
conversation between her sister and the deceased.  In that call
Zintle’s sister was asking the deceased if she
did that thing.
The deceased said she did it and it went well.  Nontsebenzo
testified that she never heard Zintle saying
that the deceased was
practicing witchcraft.  There were people who were saying that
the deceased was involved in witchcraft.
She never heard
accused no.1 saying that the deceased was involved in witchcraft.
Accused no.7 said the deceased must take
out Sihle and Samkelo.
Very few people prodceeded from the Manundu homestead taking the
deceased to her place.  However,
there were many children.
There must have been five or six people who went to the deceased’s
place.  The deceased’s
two daughters also went up.
The other people and some neighbours stood beyond the yard.
Nonkcithakalo, the deceased
daughter and other adult people were in
the yard.
[22]
After it was said that the deceased had escaped from the burning
rondavel she followed them from the taxi.  However, she
could
not recall if accused no.1 had boarded the taxi.  The accused
got out of the taxi and chased after the deceased.
Accused no.8
was sitting next to her in the taxi.  He and accused no.6 got
out of the taxi and chased after the deceased.
When they left
there for their journey they left with accused no.1 who alighted when
he reached his taxi on the way and boarded
it.  Nontsebenzo
testified that she last saw accused no.7 when he was coming up from
accused no.8’s homestead with the
deceased.  She did not
hear accused no.7 saying that the deceased was a witch.  She
only heard him saying that the deceased
must take out Sihle and
Samkelo.  She would not dispute that he received a call from a
Ta Z or Ta Dum. She last saw him going
up with the deceased.  He
was not there when the deceased was pushed into the rondavel.
[23]
Under cross examination by the legal representative on behalf of
accused no.2.  Nontsebenzo testified that only accused
no.6 and
8 were inside the taxi, the other accused were near the taxi, with
accused no.2 chatting with the others.  When it
was put to her
that accused no.2 denied going anywhere near the taxi as he had
nothing to do with the trip to the Western Cape,
Nontsebenzo insisted
that accused no.2 was standing there near the taxi and he also chased
the deceased.  The reason she did
not mention him when she
mentioned those who boarded the taxi was because he did not board the
taxi as he was not going to the
Western Cape with the others.
She confirmed her evidence that accused no.1, 2, 4, 6 and 8 chased
after the deceased but only
accused no.6 and 8 were inside the taxi
and alighted from the taxi and gave chase.  She denied
misleading the court about
accused no.2.  She testified that she
did not hear accused no.2 saying that the deceased was involved in
witchcraft.
[24]
Nontsebenzo testified that when she arrived at Samkelo’s place
when Zintle was being questioned in the yard she saw accused
no.2
there.  At some point the deceased was grabbed and taken to her
place.  However, accused no.2 did not grab the deceased.

She and others were following accused no.7 who was dragging the
deceased.  On the way she turned to go to the Msiya homestead.

When she got there, there were few people there.  The adults
were the deceased’s two daughters and the others were mostly

children.  Other adults arrived when she was already there.
The people who were there were herself, the accused and
the
deceased’s daughters.
[25]
When she got there she saw accused no.2 next to the rondavel.
He was standing while other accused were assaulting the
deceased.
At some point accused no.2 joined the other accused in assaulting the
deceased.  They were kicking her and
hitting her with open
hands.  She saw accused no.2 kicking the deceased.  When it
was put to her that accused no.2 denied
assaulting or kicking the
deceased, Nontsebenzo insisted that accused no.2 assaulted the
deceased.  It was put to her that
at some point accused no.2
heard the deceased mentioning his own mother saying that she was also
in the trunk.  He then tried
to push her into the rondavel but
failed because of the flames.  Nontsebenzo testified that the
pushing when the flames were
to strong had happened indeed but during
the second occasion.  During the first occasion the accused had
succeeded in putting
the deceased inside the rondavel which was then
closed and they left her there.  When they failed on the second
occasion the
deceased was still alive and she left them assaulting
the deceased after they had failed to push into the rondavel.
Thereafter
all the accused went to accused no.2’s homestead to
wash their hands.
[26]
It was put to Nontsebenzo that after the accused failed to push the
deceased into the burning rondavel accused no.2 left.

Nontsebenzo testified that what she had said about accused no.2 was
what she saw happening.  During the first occasion when
the
deceased was put into the rondavel which was thereafter closed she
saw accused no.6 holding the deceased.  Only accused
no.6 closed
the rondavel while the deceased was inside.  The other accused
were standing next to the door way.  She was
standing at a
distance at the time.  She repeated her evidence that she did
not see who set the rondavel on fire.  When
she arrived for the
first time at the deceased’s place the rondavel was already
burning at the back.  Accused no.2 was
standing while others
were assaulting the deceased.
[27]
Under cross examination by the legal representative for accused
no.4.  Nontsebenzo testified that she is 39 years old
and is a
resident of Majuba.   She confirmed virtually all her
evidence in chief.  She testified that from the Msiya
homestead
to accused no.8’s homestead the distance is about 60 meters.
The deceased was assaulted while she was lying
on the ground.
She was kicked on the ribs.  Accused no.4 participated in
kicking the deceased.  On that day accused
no.4 was wearing a
stripped t-shirt.  Accused no.7 was wearing a stripped jersey.
It was accused no.7 who was dragging
the deceased.  It was
accused no.6 who pushed the deceased into the burning rondavel and
closed it.  She then left for
the taxi.  Accused no.6 and 8
were in the taxi with her and others were outside the taxi next to
it.
[28]
After it was said that the deceased had escaped from the rondavel the
accused chased after the deceased.  She followed
them.
Accused no.4 also chased after the deceased.  Accused no.6 was
in front but when they returned it was no.6 and
8 who were holding
the deceased while others were following them.  She was taken
back to her homestead.  The accused
were not assaulting the
deceased when they returned with her, they were holding her on her
arms.  On the second occasion it
was accused no.6 who was
pushing the deceased into the rondavel.  The others were
assisting him.  She, however, did not
see where accused no.4 was
holding.  When she threw the bucket into the burning rondavel
she was doing what she was told and
did not have any intentions of
her own.  It was put to her that accused no.4 says that indeed
he was there when the deceased
was assaulted but he did not cause her
death.  Nontsebenzo testified that she did not know that but
confirmed that he was
there.  She did not hear accused no.4
saying the deceased was a witch.  It was also put to her that he
only said that
the deceased must speak the truth and that she was
wasting time.
[29]
Lastly Nontsebenzo was cross-examined by the legal representative for
accused no.8.  She testified that accused no.1 and
8 as well as
Sowisa were at the Msiya homestead on the night of the 14 March
2020.  She did not see the other accused there
during the after
tears drinking session.  She did not know at what time she slept
because she passed out.  They were
woken up by accused no.2 at
about 06:00 in the morning.  Accused no.8 pleaded with Zintle to
tell the truth at his homestead.
It was put to Nontsebenzo that
accused no.8 will say that when the deceased left his homestead he
remained behind consoling his
sister who was Samkelo’s mother.
After his sister had calmed down he then followed to the deceased’s
place.
She testified that she did not know that but when she
arrived at the deceased’s homestead she found accused no.8
there.
She had gone there after hearing that the deceased’s
homestead was burning.
[30]
It was further put to her that accused no.8 says that she said that
they should leave and he left her using a different gate.

Nontsebenzo testified that she saw the accused going through the gate
going to accused no.2’s homestead to wash their hands.
It
was put to her that accused no.8 says he participated in trying to
put the deceased into the burning rondavel but they failed.
He
then left after she, Nontsebenzo, said they must leave and that he
did not know what happened after he left.  She testified
that
accused no.8 and the other accused exited through the small gate at
the front.  It was put to her that from the spot
where the taxi
was standing she could not have seen the deceased’s homestead.
She denied that saying that a person
in the taxi could see and it was
close-by.  She denied that because at the deceased’s
homestead it was chaotic she could
possibly be confusing the roles
played by those who assaulted the deceased insisting that the accused
assaulted the deceased.
[31]
It was put to her that accused no.8 denied assaulting the deceased.
Nontsebenzo testified that the accused were assaulting
her and the
older people were trying to stop them.  It was further put to
her that accused no.8 denied going to accused no.2’s
place to
wash hands.  She disputed accused no.8’s evidence in this
regard.  It was further put to her that accused
no.8 says he was
not part of the people who put the deceased in the rondavel on the
first occasion.  She testified that she
saw them standing
together while accused no.6 was pushing the deceased into the burning
rondavel and closed the door with a wire.
She further said that
the accused were at the door as accused no.6 was pushing the deceased
into the burning rondavel.  It
was further put to her that
accused no.8 says he only tried to put the deceased inside the
rondavel and did nothing else.
Nontsebenzo testified that
accused no.8 also assaulted the deceased when they were trying to put
her into the burning rondavel.
She further testified that she
did not see anyone putting the deceased into the drum and she did not
see who took her to where
the drum was.
[32]
When she was re-examined by the prosecutor, Nontsebenzo explained
that when she said in her evidence under cross-examination
that there
were 5 or 6 people she was not including the accused.  When the
accused were getting out of the deceased’s
homestead leaving
her in the drum accused no.7 was not there.   Accused no.1,
2, 4 and 8 were the ones who exited the
gate walking from next to the
drum going to accused no.2’s homestead to wash their hands
including the erstwhile accused
no.6.  They washed their hands
and thereafter they all came to board the taxi but accused no.2 did
not board the taxi.
Thereafter the taxi departed.
[33]
The next witness was Nonkcithakalo Manundu Lusithi who testified that
she was 61 years old.  She knows all the five accused
before
court.  Accused no.1 is her aunt’s son, accused no.2 is
her neighbour in her maiden home.  Accused no.4
is also her
aunt’s child.  Accused no.7 is related to her paternal
uncles in law.  Accused no.8 is from her paternal
uncle’s
side.  Nonkcithakalo testified that she knew the deceased.
The deceased was her step mother.
[34]
She testified that on the 14 March 2020 after Samkelo’s funeral
she went to sleep at her home which is the deceased’s
homestead
with her sister.  On the 15 March 2020 in the morning she heard
one Sikhumbuzo Manundu saying that Zintle was being
assaulted.
Zintle had arrived at around 3:00 that morning as she had not spent
the night at home but she did not see her
when she left.  Her
sister told her that Zintle had left with accused no.2.  She and
her sister went back to Samkelo’s
homestead to attend the
cleansing ritual.  She was seated in the yard with other women.
Zintle was also present seated
next to the flat.  She called out
Zintle but she did not respond but she could tell that she was
crying.
[35]
Accused no.7 arrived in the yard carrying a two litre container which
she thought contained paraffin.  She then heard
a noise where
Zintle was sitting and there were many people there.  Accused
no.7 was emptying the container upon Zintle.
He poured it on
her.  It became chaotic there with Zintle in the middle
surrounded by many people.  She called out to
Zintle asking her
to speak but she could not tell if Zintle responded as it was noisy.
She realized that she might be injured
from the chaos.  She then
moved away.  She could smell the paraffin in that crowd.
She decided to leave accused
no.8’s homestead and went back
home which was two houses away.
[36]
At some point she was standing in the court yard at her grandfather’s
homestead which is next to her homestead and she
could hear the
noise.  She saw a group of people coming with her mother in
front and rushing her.  The deceased was then
pushed into the
rondavel at her home.  She noticed that among the people who
were pushing accused no.8 and his sister Novaziyeke
were also there.
At that time she was confused, crying and perturbed as she did not
know what might be done to the deceased.
She was also worried
about her belongings which were in that rondavel.  Accused no.7
was also there together with his brother
who is not amongst the
accused.
[37]
She then called out to accused no.8 asking him to take her bag out of
the rondavel.  However, they ignored him.
At that time
they were closing the door with the deceased inside the rondavel.
She could not say who was closing the door
as many of them were
holding the door.  The deceased was still inside peeping through
the door.  As she was standing
in the yard she got her
belongings and accused no.7 started the fire just above the door.
The rondavel was burning and she
took her belongings and left
proceeding to her marital home to save herself from what was
happening.  She went up the road
to wait for transport.  As
she was sitting along the road waiting for transport she could see
the chaos at her home but she
could not tell whether the deceased was
being pulled or pushed.  At some point she could see the numbers
decreasing.
The rondavel continued to burn and the numbers
decreased until there was no one at the premises of the deceased.
She could
not tell whether the deceased got burnt inside the rondavel
or what happened to her.  She then saw Sikhumbuzo walking to her

homestead and when he was near the drum he looked at the drum and
then left.  She later got transport and left for her marital

home.
[38]
She testified that at some stage she saw the deceased leaving or
escaping from the rondavel when she was already on the way
to wait
for the transport.  When the deceased escaped she had not
reached the road where she was going to wait for transport.
She
heard a child shouting saying “here is the old lady running
away”.  She then looked back and it was then that
she saw
the deceased running through the garden towards the other side.
She saw Sikhokele Velemani, former accused no.6 chasing
and calling
others to chase from the other side.  They chased her until they
caught up with her and brought her back.
The rondavel was at
that stage burning down.  There were others who chased but she
could not make out who they were as they
chased her down the area.
She testified that the drum in which the deceased was put had water
in it.
[39]
Under cross examination by Mr Ntshangase, Nonkcithakalo testified
that when she arrived at Samkelo’s homestead Zintle
was not
being assaulted.  She testified that there were many people who
were pulling Zintle but she did notice one Andile.
However, she
could not give an estimate of the number of people in that yard.
When she left those premises the deceased was
running around crying
below what she referred to as the great house.  She assumed that
the deceased was crying because of
what was happening to Zintle on
whom paraffin was being poured on her body and was in the middle of
the crowd being pulled around.
She further testified that while
she was at her home she saw the deceased more or less at the front of
some people who were following
her.  It was a group of people
and there were many children.
[40]
Those people entered the deceased yard and were trying to push the
deceased into the rondavel.  At that time she had already

returned from her grandfather’s homestead where she had gone to
ask for toilet facilities and she was standing in the deceased’s

yard.  She asked for her bag to be taken out of the rondavel.
She called out to accused no.8 to take out her bag from
the
rondavel.  She did not know who took it out of the rondavel but
it was accused no.8 who gave it to her.  There were
many people
at the rondavel’s door way.  She did not know who actually
closed the door.  One of the people who
were at the door were
unknown to her but one of them was accused no.8 and accused no.6.
She further mentioned that she was
dizzy at the time, crying and
therefore could not see very well but there were many of them at the
door way.
[41]
Nonkcithakalo further testified that she saw accused no.7 starting
the fire or setting the rondavel on fire at the front.
The
rondavel started burning at the front but the burning was low because
the rain had fallen previously but it continued burning.
She
further testified that while she tends to confuse the two brothers
who were there, that is accused no.7, Kakudi and accused
no.6,
Sikhokele, both brothers were there.  This piece of evidence
related to the witness having specifically said in a statement
she
made to the police that it was Sikhokele who closed the door and set
the rondavel alight.
[42]
When it was put to her that accused no.7 admitted driving the
deceased from Samkelo’s place up towards her homestead
but when
getting into the deceased’s homestead he received a call saying
that his taxi was waiting for him, that he should
be leaving as he
was late.  He then left.  Nonkcithakalo maintained that
accused no.7 was at the deceased’s rondavel’s
door.
When the version of the other State witness, Nontsebenzo was put to
her, that she did not see accused no.7 there, she
maintained that she
saw accused no.7 at the door.  She testified that she did not
see Nontsebenzo there.  As she was
coming from her grandfather’s
homestead she entered through the front gate where the fire started.
She never went around
the rondavel to see what was happening at the
back.  This related to Nontsebenzo’s evidence that when
she arrived the
rondavel was burning at the back.
[43]
She further testified that when the deceased was crying, pacing up
and down at Samkelo’s place she heard accused no.1
telling the
deceased that she was making noise and that she must release the
child.  When she was asked if she heard accused
no.7 saying
anything, she testified that when accused no.7 was setting the
rondavel on fire he said “here is hell”.
She was
asked about the fact that she did not mention that during her
evidence in chief.  She said that she forgot to mention
it but
she did hear accused no.7 saying that.  She also said that she
has a problem of being forgetful since being diagnosed
with
hypertension.  When it was put to her that accused no.1 will say
that he did not start the fire, Nonkcithakalo said that
she did not
know.  She also did not know if accused no.1 left before or
after she left.  She could not recall seeing
him.  It was
put to her that accused no.7 would come and testify that he never
said that the deceased was practicing witchcraft.
She answered
that she also did not hear anything about witchcraft.  It was
further put to him that accused no.7 would come
and testify that he
never set the rondavel on fire.  She maintained that accused
no.7 was there and he did set the rondavel
on fire.
[44]
Under cross examination by Mr Krewu, Nonkcithakalo testified that
accused no.2 is the deceased’s neighbour and she has
known him
for a very long time.  She confirmed that it was chaotic at
Samkelo’s place.  There were many people
there.  She
did not see accused no.2 there.  She did not see accused no.2
among the people who were pulling Zintle.
At some point she
left for her home which is the deceased’s homestead.  When
she was at her grandfather’s place
she saw a crowd of people
following the deceased coming from Samkelo’s place and she
noticed her in the front.  Those
people were dragging the
deceased to her homestead.  She could not say that accused no.2
was among the people that were dragging
the deceased.  She also
did notice accused no.2 among the people who were at the door.
She was not well at the time
and those people at door were a group.
She further testified that she saw accused no.7 setting the rondavel
on fire.
It was put to her that accused no.2 says he did not
drag the deceased and she said she did not know.  It was also
put her
that accused no.2 admits that he was one of those who
followed the deceased from Samkelo’s home, Nonkcithakalo
testified
that she did not know as there were many people there and
she could not see clearly.  She did not hear accused no.2 saying

the deceased practiced witchcraft.  It was further put to her
that accused no.2 says that after the attempts to put the deceased

inside the rondavel failed he left to open for his livestock and at
that time the deceased was still alive.  She said that
she did
not know and could not dispute that.
[45]
The legal representative for accused no.4 did not cross examine
Nonkcithakalo.  However, the legal representative for
accused
no.8 cross-examined her.  She testified that when she left
Samkelo’s place for her homestead, she was confused
and dizzy
because of what was happening to Zintle and not knowing why all of
that was happening to the deceased.  Her sister
did go into the
burning rondavel and took out her luggage whereas her own laggage was
given to her by accused no.8.  But she
saw her sister going into
the rondavel when she was up the road after leaving the premises.
When it was put to her that accused
no.8 says that when the deceased
left his homestead he remained behind consoling his sister who was
crying, she testified that
accused no.8 was at the deceased’s
doorway pushing the deceased with his sister Novaziyeke.  She
noticed both of them.
She did not know who opened the rondavel
but it was accused no.8 who gave her her belongings from the burning
rondavel.  She
did not know who took it from inside.
[46]
It was further put to her that accused no.8 does not dispute being
present at the deceased’s premises but when he arrived
the
rondavel was already burning.  He was not present when the
deceased was pushed into the rondavel for the first time.
The
witness said that accused no.8 was lying.  It was further put to
her that accused no.8 did not deny trying to get the
deceased back
into the burning rondavel.  Nonkcithakalo testified that when
the deceased escaped from the burning rondavel
she was up the road.
But she was in the yard requesting to be given her luggage from
the rondavel when accused no.8 and his
sister Novaziyeke and others
were pushing the deceased into the burning rondavel.  She
insisted that she was not making a
mistake, when accused no.8 handed
her her bag, the deceased was inside the rondavel.  She managed
to see the deceased through
the door which was slightly opened.
Her side of the face was swollen.  She did not see who took the
bag out of the rondavel
but it was accused no.8 who handed it to her.
[47]
When she was re-examined, by the prosecutor she confirmed that when
accused no.8 handed her her bag the deceased was inside
the burning
rondavel.  She confirmed that at some stage whilst she was on
the road she saw the deceased limping towards her
grandfather’s
homestead.  She was caught and returned back to her homestead.
Accused no.8 and his crew were no
longer in the yard when the
deceased escaped from the burning rondavel.  When she left her
homestead and went up the road
after she was given her belongings she
did not come back, she watched from a distance.
[48]
The next State witness was Sowisa Tyhokolo, the second
section 204
witness.  He testified that he grew up in Majuba where he
resides.  Before his arrest he worked in a restaurant in
Franschhoek
in the Western Cape.  He knows all the five accused
in that they were also born in Majuba.  He was also at the home
of
Samkelo on the 14 March 2020 having come from the Western Cape to
attend his funeral.  After the funeral he also attended an
after
tears drinking session at the Msiya homestead.  Accused no.2, 8
and Nontsebenzo were also present there.  They
remained until
late that night.  The following morning accused no.2 arrived
waking up everyone there saying that Zintle had
repeated what she
said before.  This was around 6:00 am.  He did not pay
attention to what accused no.2 was saying.
He left for his home
to take a bath.  After a while he heard a noise or scream.
He and others went to Samkelo’s
home where they found out that
it was Nontuthuzelo who was screaming.  She was crying saying
she wanted her child.  There
were many people already gathered
there because it was a day for the cleansing ritual after the
funeral.
[49]
When he arrived Zintle was seated on a bench next to the house.
The deceased was surrounded by other people who were
asking her
questions about the whereabouts of Samkelo who had died in the
Western Cape and whose burial had taken place the previous
day.
Each person was asking their own question as a result he could not
make sense of it.  As a result he indicated
to others that they
must leave.  They left proceeding to his homestead to finish up
preparations for their journey back to
the Western Cape.  As he
was taking a bath he heard some children who were next to the houses
at his home saying there was
fire.  He finished getting dressed
and when he was taking his luggage to the taxi he could see that
indeed there was fire
from the back of the rondavel.  He stood
outside the deceased’s yard.  At some point he went into
the premises
through the small gate which is near accused no.1’s
homestead.  The deceased was in the premises being questioned
about
Samkelo.  Some of the people who were asking questions are
the ones he was incarcerated with.  It was the former accused

no.6 Sikhokele Velemani, accused no.4, accused no.8 and accused
no.1.  Sikhokele was asking the deceased where Samkelo was
and
telling her to take him out.
[50]
The deceased was sitting next to an unfinished house at her
premises.  Some people including accused no.1, the former

accused no.6 Sikhokele, accused no. 4 and accused no.8 were trying to
push the deceased into the rondavel.  He noticed a small
injury
above the right eye of the deceased and she was bleeding.  They
did not succeed in pushing her into the rondavel because
of the
flames.  He decided to move back to avoid being affected by what
was taking place.  He heard that the taxi was
leaving.  He
indicated to Nontsebenzo who was sitting on a bucket telling her that
the taxi was about to leave.  He then
left for the taxi through
the small gate.  As he was proceeding to the taxi he came across
accused no.4, accused no.1 and
accused no.8 and the other accused
leaving through the big gate going to the taxi.  From where the
taxi was on the other side
of the kraal there was no obstruction from
seeing what was happening at the deceased’s homestead.
When the deceased
was seated there with her legs stretched out
bleeding above the right eye, she was not wearing anything on her
upper body.
She had nothing on her head.
[51]
Under cross-examination by Mr Ntshangase, he was asked if he saw
accused no.7 there.  His answer was that there were many
people
there so he did not notice everyone.  He did not see him.
He estimated the people there to about 50 to 60 in
the yard.
Under cross-examination by Mr Sonqwelo for accused no.4 he testified
that on his arrival at Samkelo’s homestead
he did not see
accused no.4.  There were many people there.  He first saw
him at the deceased’s homestead.
He kicked the deceased
and was among those who were holding her taking her to the rondavel.
He also saw accused no.4 in the
taxi.  He saw accused no.4
kicking the deceased and taking her to the burning rondavel.
The deceased was crying saying
they should stop and she would speak
although she did not hear her saying anything.  He did not spend
much time there as he
was rushing for the taxi and he also did not
want to be affected by what was happening.  He did not hear
accused no.4 saying
anything about the bewitching of the deceased.
[52]
Sowisa was also cross-examined by Mr Nohiya who represented accused
no.8.  He testified that from the spot where the taxi
was
stationary one could see the deceased’s homestead.  There
are two sides from the kraal at accused no.2’s homestead
from
which the view of the deceased’s homestead could be
obstructed.  But on the other side of the kraal one is able
to
see at the deceased’s homestead.  From where he was, he
had a clear view of the deceased’s homestead.
He disputed
accused no.8’s version that regardless of which side of the
taxi one was, one could not see the deceased’s
homestead at
all.  He maintained that he saw the deceased’s homestead
from where the taxi was stationary.
[53]
When he was re-examined by the prosecutor Sowisa testified that a
number of people participated in kicking the deceased but
he did not
know all of them as he did not grow up in Majuba.  He did notice
accused no.4 kicking the deceased.  Accused
no.4, accused no.1,
accused no.8 and Sikhokele were also holding the deceased.
[54]
The next witness for the state was Nandipha Mdleleni.  He
evidence was that she resides at Majuba and is a daughter in
law in
the Manundu family.  She is married to Andile Manundu.  On
the 15 March 2020 she was at the Manundu homestead.
She went to
the Msiya homestead to prepare for the guests who had put up there.
After that she went back.  When she
arrived she found Zintle
being questioned about what she was alleged to have said at a tavern
by accused no.2, accused no.8, accused
no.7 and the former accused
no.6.  They were saying that she must speak the truth about what
was alleged she had said at a
tavern about the death of Samkelo.
At some point Zintle was not in that room but was in the yard and
Samkelo’s mother
was pleading with Zintle to tell the truth and
that she wanted her child.  Zintle said that one Nosipho Manundu
phoned her
grandmother who is the deceased.  Their conversation
was about the fact that Nosipho had requested her mother to do her a
favour.  The deceased did not hear properly and Zintle took over
the phone.  Nosipho repeated it to Zintle saying that
she wanted
Zintle to kill Samkelo.  Zintle said she would not be able to do
so.  Then Nosipho became angry and asked
Zintle to give the
phone back to the deceased.  After Zintle had said these things
to the people gathered there they became
angry and assaulted her.
Accused no.7 poured paraffin on her from a plastic container.
[55]
She further testified accused no.1 assaulted Zintle with a fire
wood.  Accused no.4 also assaulted Zintle.  She did
not see
accused no.2 assaulting Zintle.  She then left that spot to
prepare meat for somebody who was leaving for Queenstown.
When
she returned she could see that Zintle had been assaulted and she ran
towards her.  She then gave Zintle a green dress
to wear and
after a while she helped Zintle to cross over the fence to her
father’s home.  As she was getting out of
the house she
saw the deceased’s homestead burning.  Some of Nandipha’s
evidence related to what she said was
said by Zintle, the veracity of
which could not be confirmed.
[56]
The State called captain Dinga, a member of the SAPS and a group
leader of the Detectives Unit based in Sterkspruit.
Her
evidence related to the arrest of the accused on 15 March 2020 as
well as the video footage of some of the events that took
place at
the home of the deceased on that day.  She testified that she
received a report from sergeant Makgetha that a murder
was being
committed at Majuba and a structure was on fire there.  She was
with sergeant Sethoe doing investigations relating
to another matter
in a different place.  They travelled to Majuba which took them
about 45 minutes.   She found
constable Mankayi already at
the crime scene.  A rondavel was burning and its roof had
collapsed.
[57]
Constable Mankayi alerted her to a body of a human being which was in
a grey drum behind the burning rondavel.  The legs
of this
person were protruding through the drum.  There were no other
people in that homestead other than the police officers
and fire
fighters.  She was puzzled by the fact that members of that
community were not there.  A certain man who introduced
himself
as Mr Tyhokolo and a headman in that area arrived.  She called
the LCRC to send a crime scene expert to do their investigations
and
take photographs.  The body was removed by the forensic
pathology unit.  After doing some preliminary enquiries about

what had happened she returned to the police station.  On her
arrival sergeant Ngqubelani alerted her to a video footage of
that
crime scene which was on facebook.  She requested him to send it
to her cellphone.  She then sent the video footage
to a police
informer asking the informer to check if the informer could not
identify the persons who appeared on the video footage.
The
informer told her the names of the people in the video footage and
explained that those people had attended a funeral at Majuba
on the
14 March 2020 and left for the Western Cape on 15 March 2020.
The informer identified the people in the video footage
as Mzubongile
Manundu who is now accused no.1, Siyabulela Manundu who is now
accused no.4, Mlungisi Manundu who is now accused
no.8, Sikhokele
Velemani, the erstwhile accused no.6, as well as one man from the
Yalwa family.  She was further told that
their taxi had not gone
for a long time on its journey to the Western Cape.  Eventually
all the accused were arrested.
[58]
Further investigations revealed that the video footage was taken by
one Kenewe from Majuba.  They found her at New Rest.

Kenewe told her that she had deleted the video clip from her
cellphone.  She took her cellphone with which the video clip
had
been taken.  She sent it to their Cyber Unit in East London.
The Cyber Unit established that there were actually
two video clips
in that cellphone that the Cyber Unit retrieved and transferred them
to a CD.  That CD was handed up as an
exhibit as part of the
record and was played in court.  In the video footages she
identified all the 9 people that were initially
arrested and charged
in this case except accused no.7 who was not in those video clips.
The identities of the persons and
the accused who are in that video
footage are common cause as is the role they are seen playing in what
was happening at the home
of the deceased.
[59]
The last witness called by the State was Dr Siyabonga Jwaqa.
His evidence was that he is a medical doctor specializing
in forensic
pathology under the employ of the Eastern Cape Government.  He
is based at the Aliwal North Forensic Pathology
Laboratory where he
conducts medico-legal autopsies.  On the 17 March 2020 he
examined the body of the deceased, a 92-year-old
woman.  The
deceased had a history of having been assaulted, history of burns,
history of drowning, had sustained severe blunt
force injuries and a
stab wound.  As a result of his examinations and observations on
the body of the deceased he included
that there were two causes of
death, namely, multiple injuries following blunt force trauma and
burns.  With regard to multiple
injuries following blunt force
trauma, he testified that this means that there were many blunt force
injuries which were caused
by blunt force trauma.  This means
that objects like knives and other sharp instruments and guns were
excluded.  It means
that the deceased could have been hit with a
stick, hit with a clap, hit with fists, kicked, banged against walls
or could even
have suffered motor vehicle injuries.  The
injuries he observed on the bodying of the deceased were the
following:
(a)
A blue eye, left hand side/eyelid swollen.
(b)
1.8 X 2 centimetre abrasion, left hand side of the upper chest
anterior.
(c)
1.3 X 1.7 centimetre abrasions of the left hand side of the breast.
(d)
Multiple 1x1 centimetre abrasions on the left breast
(e)
2 centimetre x 1 centimeter abrasion left hand side forehead lateral
to the left eyebrows.
(f)
2x2 centimetre burns on the left breast close to the midline, second
degree burn.
(g)
16x8 centimetre burns left arm, elbow and forearm, mix of second and
third degree burns.
(h)
1x3 centimetre abrasion left cheek.
(i)
Burns, mixture of second and third degree on the right shoulder, arm
and forearm, circumferential, 9 percent body surface area.
(j)
Third degree burns right breast.
(k)
Third degree burns right hand side of the torso, 12 percent body
surface area.
(l)
2.1 centimetre long stab wound just above the left buttock.
This stab wound did not injure any major vessels and was therefore

probably not fatal.  It was therefore not a cause of death.
(m)
18x25 centimetre second degree burns at the back of the chest, 9%
body surface area.
(n)
12x9 centimetre second degree burns on the right buttock.
(o)
3x4.5 centimetre abrasion right hip.
(p)
Extensive haematoma of the scalp left hand side temporal parietal
area, and also on the right hand side lower chest less than
left hand
side.
(q)
Severe scalp heamatoma of the occiput.
[60]
With regard to the second and third degree burns, he testified that
they caused the death of the deceased because they were
extensive
covering more than 10 % of the body surface area.  He explained
that second and third degree burns are severe burns.
Dr Jwaqa
further elaborated on the injuries listed in (p) and (q) above
explaining that the deceased had a depressed skull
fracture left
parietal area and a linear skull fracture right parietal area.
She had an acute right extradural hemorrhage
and orbital, nasal and
oral cavities were bruised.  The cause of the depressed skull
fractures was blunt force trauma which
pushed down into the brain.
The linear skull fracture is where the fracture is just a fracture
line as against the depressed
skull fracture.  So on the left
the skull had a fracture line but both are fatal.  These are
normally caused by things
like sticks, rods, fists, stones, one being
thrown against a wall and the like.  When he opened the skull
and removed the
cap he observed an acute right extradural haemorrhage
which is commonly known as internal bleeding outside the cover of the
brain.
The acute left subdural haemorrhage is also internal
bleeding but inside the hard cover of the brain and is a major cause
of death.
In short he found that the deceased had internal
bleeding inside the skull compressing the brain which caused death.
He also
explained that there were other injuries inside the body of
the deceased which were the result of the blunt force trauma.
[61]
The prosecutor invited Dr Jwaqa to comment on the evidence of some of
the State witnesses that the deceased was found in a
drum which had
water.  He testified that before he did the post-mortem
examination it was brought to his attention that the
deceased
possibly also drowned.  In this regard his finding was that
there was nothing to suggest drowning as a cause of death.
He
had specifically investigated this possibility and excluded it in his
findings.  He explained that the deceased had severe
fatal
injuries to the head, chest and burns on the limbs.  He would
expect the deceased to have been comatosed and die because
of these
injuries.  The deceased had no signs of water inhalation, which
is also called drowning.
The
case for the defence
Accused
no.1
[62]
The defence opened their case with accused no.1 giving evidence in
his defence to the charges.  He testified that he is
36 years
old and resided in Majuba before his detention.  He worked at
Wellington Farm in the Western Cape where he stayed
for work
purposes.  On the 14 March 2020 he arrived home in Majuba from
the Western Cape with others all of whom had travelled
to Majuba to
attend the funeral of Samkelo.  Later that day they attended an
after tears alcohol drinking session at Mr Msiya’s
homestead
where some people from Majuba had also gathered to drink after the
funeral.  He went to sleep at about 23:00 that
night.  The
following morning at around 06:00 he woke up and left.  However,
before he left the Msiya homestead, he was
called by accused no.2
telling him that Zintle had spoken at a tavern the previous day.
He did not pay attention to what
accused no.2 said and proceeded home
which is also in Majuba to take a bath in preparation for their
journey back to the Western
Cape.  He testified that his home is
neighbouring that of the deceased.
[63]
After taking a bath he returned to Samkelo’s homestead where he
found Zintle being questioned about what she was alleged
to have said
the previous day.  It was alleged that the previous day Zintle
had said that Samkelo who had just been buried
was alive.
Zintle was denying having said that Samkelo was not dead saying that
she did not know anything about that.
While Zintle was still
being questioned, Nicholas who is Zintle’s cousin arrived.
Nocholas narrated what he said Zintle
had said the previous day in
his presence.  Thereafter Zintle admitted to having made the
utterances about Samkelo being alive.
Many people were
gathering and Zintle was being questioned including by elders.
He went out to another flat to have soft
porridge where he was also
chatting with his partenal aunt.  While still in that flat he
heard people saying that the deceased’s
rondavel was on fire.
After hearing that and seeing the smoke at the deceased’s
homestead he proceeded there.
Other people were also going
there and he was following them.  When he entered the gate at
the deceased’s homestead
he saw that indeed her rondavel was
burning.  There were many people there.  He entered the
deceased’s homestead
from the gate that is at the back and the
rondavel was burning from the back and the flames were proceeding to
the front.
[64]
He went to the front where there were many people and he noticed that
the rondavel was not yet burning at the front.
He found the
deceased at the front side of her homestead seated on the ground next
to the burning rondavel.  She was being
questioned about the
Samkelo issue.  He also sought to find out what exactly was the
deceased saying.  He was told that
the deceased was saying that
Samkelo and Sihle were alive in a trunk which was inside the
rondavel.  He then said that this
woman has some nerve to let
them travel all the way from the Western Cape coming to bury someone
who is kept in a trunk.
At this stage he and others tried to
hold her, pushing her into the burning rondavel telling her to bring
Samkelo and Sihle out
because the rondavel was burning.  The
deceased asked them to wait saying that she would speak or explain.
They
agreed to give her a chance to explain but told her to explain
quickly because the rondavel was burning and it would soon burn
completely with Sihle and Samkelo still inside.  They waited but
soon realized that they were not getting anything from her
that made
sense.  They then decided to hold her and put her inside that
rondavel for her to bring out Samkelo and Sihle.
In holding the
deceased it was himself, accused no.8 the former accused no.6,
Sikhokele Velemani, accused no.2 and accused no.4.
[65]
As they were trying to put the deceased into the burning rondavel
they realized that the roof was collapsing and the flames
were too
strong even at the front of the rondavel where they were.  One
Ziro Dlepu from his family called out his name.
He then went to
Ziro Dlepu who said to him, “Mzubongile stop what you are
doing.  Go and board the taxi and leave for
the Western Cape”.
Ziro Dlepu is an elderly person.  He listened to him and
agreed.  He then went back to
take his cellphone from Sikhokele
Velemani.  He was not going to leave Majuba in the same vehicle
that he had come in but
the driver of that vehicle had arranged with
another driver for him to board the other driver’s vehicle and
he would catch
his original vehicle along the way.  Eventually
they all left in this other vehicle for the Western Cape.
[66]
He denied the evidence of Nontsebenzo, who said that he was one of
the people who had pushed the deceased into the rondavel
and she had
escaped.  He denied assaulting or kicking the deceased at any
stage.  He testified that he only held the
deceased and tried to
push her into the rondavel.  He was in pain at the time, pained
by losing his nephew, Samkelo and angry,
thinking that the deceased
could magically get into the burning rondavel and take out Samkelo
and Sihle whom she had said were
in a trunk.
[67]
Accused no.1 was cross-examined by the prosecutor.  He disputed
the evidence of Nandipha Mdleleni that he participated
in assaulting
Zintle.  He, however, acknowledged that the evidence of Nandipha
Mdleleni was not challenged.  He confirmed
his evidence that on
his arrival at the homestead of the deceased the rondavel was already
burning.  He saw Nontsebezo there
on his arrival.   He
only participated in taking the deceased into the rondavel which was
not successful because of the
flames.  He would not dispute the
evidence of the State witnesses that there were two instances in
which the deceased was
taken into the rondavel. But he only knew of
the last stage.  Accused no.1 testified that Nontsebenzo was
mistaken in her
evidence that when she arrived at the home of the
deceased during the first stage he was already there.  It was
put to him
that Nontsebenzo also testified that accused no.1, 2, 4,
Sikhokele Velemani and accused no.8 all pushed the deceased into the
rondavel
and Sikhokele Velemani closed the burning rondavel and he,
accused no.1, was also present.  Accused no.1 testified that he

heard the evidence of both Nontsebenzo and Nonkcithakalo about his
presence but he thought they were both confusing him with another

person who was present on the first occasion when the deceased was
put in, door closed but she escaped.  He however, acknowledged

that it was never put to those two witnesses that they were confusing
him with another person.  He denied pushing the deceased
into
the burning rondavel which Sikhokele then closed saying he was not
there.
[68]
He heard Nontsebenzo saying that he, accused no.2, accused no.4,
Sikhokele and accused no.8 were also kicking and assaulting
the
deceased on the first occasion.  He denied it saying he was
never there on the first occasion.  He heard on his arrival
that
the deceased had been closed inside the rondavel but managed to
escape.  He also disputed Nontsebenzo’s evidence
that
after the deceased had escaped he also participated in chasing,
catching up with her and bringing her back.  He denied
that
after she was brought back he assaulted and kicked the deceased.
He testified that he only held the deceased by the
arm and by the leg
and tried to put her near the door for her to get inside.
Others were holding her on her arms while others
were holding her on
her legs.  Upon reaching the stoep they could feel that the
flames were too big and they let go of her
there without actually
putting her inside the burning rondavel and then moved back.  He
confirmed the evidence contained in
the video.  He confirmed
that they did not put her nicely or softly due to the flames but
denied throwing her.
[69]
With regard to Nontsebenzo’s evidence that she was in the taxi
when she saw accused no.1, 2, 4, Sikhokele and accused
no.8 coming
out of the deceased’s homestead while her legs or feet were
protruding in a drum, he testified that Nontsebenzo
was making that
up.  When she arrived in the taxi she found him already in the
taxi.  He had gone there to speak to the
taxi driver.  He
however, confirmed that his version that Nontsebenzo found him in the
taxi was never put to her.  He
also confirmed that he had not
told his legal representative about that version.  He disputed
getting out of the deceased’s
homestead and going to accused
no.2’s homestead.  He testified that he was already in the
taxi and did not see the other
accused getting out of the deceased’s
homestead and going to accused no.2’s homestead.  He went
further to say
that Nontsebenzo found him in the taxi and
furthermore, where that taxi was one could not see at the deceased’s
homestead.
[70]
He further testified that it made him angry that they drove all the
way from the Western Cape to bury Samkelo only to hear
that he was
not dead but was in a trunk.  He was also angry because Samkelo
was a young graduate from whom a lot was still
expected.
For him to die and then hear such news about him made him angry.
His anger drove him to try to put
the deceased into the rondavel so
that she could take out samkelo but he never assaulted or kicked
her.  His attempt to put
her in the rondavel failed because of
the strong flames.  He was asked to explain his understanding of
a magic.  He said
that the deceased had said she kept Samkelo
and Sihle in a trunk and yet Samkelo’s funeral had taken place
the previous day.
Normally no person can survive in a trunk.
That was magic to him.  It was put to him that that was imputing
that the
deceased was a witch who used supernatural means.  He
responded that it was the deceased who said that to them by saying
that
Samkelo was in a trunk.  They were acting on what she had
said.  Accused no.1 was asked at what stage did the deceased
say
that Samkelo was in a trunk, he said that the deceased said so on his
arrival at her homestead.  That is when he got angry
and was in
pain.
[71]
He had remained behind at the homestead of accused no.8.  On his
arrival at the deceased’s homestead she was seated
on the
ground next to the rondavel which was burning.  He further
testified that after they had put the deceased on the stoep
she sat
there and sustained burns.  He was in the same position as the
deceased, if he had not moved backwards he would also
have sustained
burns.  After he was called by Ziro Dlepu he went back to
collect his cellphone from Sikhokele.  He then
came across
accused no.4 on the way and he also left through the gate but he did
not know where he was going.  He did not
notice where his
co-accused were or where they went as he was going to the taxi
because there were many people and it was chaotic.
When he
fetched his cellphone from Sikhokele, he was standing next to the
other house which is near the rondavel.  At that
time the
deceased was seated with her legs stretched out.
The
case for accused no.2.
[72]
Accused no.2 testified that he is 52 years old and a resident of
Majuba.  He confirmed that on the 14 March 2020 there
was a
funeral of Samkelo which he attended.  On the 15 March 2020 he
was at his homestead at about 05:00 when Nicholas arrived
at his
homestead asking for a place to sleep.  Nicholas said he was
scared because of what Zintle had said.  Nicholas
said that
Zintle arrived at the tavern and called him and accused no.4 aside.
While they were outside, Zintle said that they
had buried something
which was just a shadow of Samkelo and that what they had buried was
not Samkelo.  Zintle enquired if
they wanted to see Samkelo and
they indicated that they would want to see him.  Zintle then
took off her earrings and gave
them to them.  She told them to
close the earrings.  They did not close the earrings because
they were afraid of closing
them.  He then said “oh, is
this what you are scared of.”  He testified that he then
went further and said
“This child is repeating what she had
said in the first instance which had caused a meeting to be called.”
[73]
He then went to the Msiya homestead where accused no.1 and 8 were and
called them aside and told them about what Nicholas told
him.
Accused no.8 told him to report this to his brother Andile.  He
went to Andile’s homestead, which is where
there was a funeral
the previous day.  He found him in the yard.  As he was
talking to Andile, Samkelo’s mother,
Nontuthuzelo appeared and
asked him what was happening.  Andile told him to go and call
Zintle.  He then went to call
Zintle at her home and found her
asleep.  She was with Nonkcithakalo and Nondzameko in that
rondavel at the deceased’s
homestead.  He told them that
he was sent to call Zintle.  Zintle woke up and left with him.
They went to accused
no.8’s homestead and went inside a room
where Zintle was questioned.  Zintle did not respond to the
questions and appeared
not to know what she was being asked.  As
a result, he went away to call Nicholas.  He personally did not
ask Zintle
any questions but there were many people there.
[74]
Nicholas arrived and explained what Zintle had said.  At that
stage he left the room to pass water near the kraal.
He did not
return to that room.  As he was standing there next to the
kraal, people came out of the room.  Zintle pointed
at the
deceased but he could not hear what Zintle had said before pointing
at the deceased.  Thereafter the deceased was questioned
but he
could not hear the questions that the deceased was being asked.
He then saw that the deceased was being taken up to
her homestead.
He followed behind.  On arrival at her homestead it was said to
the deceased that she must take out Samkelo
and Sihle as she had said
that they were in the rondavel.  However, she refused.
When the deceased was taken to her
homestead she was walking freely.
However, she was being driven from behind so she was not completely
walking freely.
[75]
There were many people who were there asking the deceased questions.
Among those people it was himself, accused no.1,
accused no.4,
accused no.8, Sowisa and Sikhokele.  They were telling her to
take out people she had said were in the rondavel.
She refused
to do so.  They then tried to take her into the rondavel which
was burning.  They did not succeed in doing
so because the
flames were too big.  They ended up leaving her next to the
rondavel.  After they failed to take her into
the rondavel
because they were getting burnt, he decided to leave to go and open
the livestock kraal at his homestead.  They
all left her there.
He did not know who put the rondavel on fire or who started the
fire.  When he left there were many
people there but he left
alone.  He did not notice whether his co accused were still
there when he left or whether they had
already left because their
taxis were waiting for them next to the stock kraal at his
homestead.  The taxis were blowing their
hooters because they
were in a hurry.  Accused no.2 testified that after hearing that
Samkelo and Sihle were at the deceased’s
homestead he was
disturbed about that.  The deceased had also mentioned that his
own mother who had passed on some time back
was also in the trunk.
The deceased also mentioned another man by the name of Gumbaza, whom
she said was also in the trunk.
That is the reason why he also
pulled the deceased to the rondavel but their attempts to take her in
there failed.
[76]
Accused no.2 testified that Nontsebenzo lied in her evidence that he
was among those who chased after the deceased after she
had been put
inside the rondavel which was closed but she managed to escape.
He also disputed Nontsebenzo’s evidence
that she saw him and
the other accused walking out of the deceased’s yard while the
deceased was in the drum with her feet
protruding out of the drum.
And that they all went to his homestead to wash their hands.
Accused no.2 testified that
all of what Nontsebenzo said in that
regard were lies.  Furthermore, if she was in the taxi when she
saw the deceased’s
feet protruding while they were walking, she
was lying because from where the taxis were stationary one could not
see at the deceased’s
homestead.  When he was asked if any
of his co-accused and himself went to his homestead to wash their
hands after the events
at the deceased’s homestead, his answer
was that he did not think that that took place because they had no
reason to wash
their hands.
[77]
He confirmed that he viewed the video and he saw himself in the
video.  He testified that in the video at some stage he
was
standing, then came close to the door of the rondavel.  He saw
himself at some stage dragging the deceased and moving
backwards and
then standing.  He had held the deceased by her hand and dragged
her into the rondavel.  He was dragging
her there for her to
take out the trunk which was in the rondavel.  The rondavel was
burning at the time.  He then asked
for forgiveness for his
involvement.
[78]
Answering questions asked by counsel for accused no. 1 and 7, accused
no.2 testified that the fire started at the back.
When they
were pulling the deceased the rondavel was not burning yet.  He
did not mention accused no.7 in his testimony because
he was not
there.  When he was asked some questions by the attorney for
accused no.8, accused no.2 testified that after he
learnt about the
death of the deceased who was his neighbour he did not go to her
homestead.  Even other members of the community
did not go to
the deceased’s homestead.  The reason for this was that
there was once a meeting in that community about
that issue.  In
that community meeting it was decided that if Zintle and the deceased
were mentioned again the deceased will
have to be burnt or banished
from the community.
[79]
Accused no.2 was cross-examined by the prosecutor.  He testified
that the decision about the burning or banishment of
the deceased was
taken after the death of Sihle.  He was present in that
community meeting where that decision was taken.
The burning of
the deceased’s rondavel was in fulfilment of that decision.
When Nocholas told him about what he said
Zintle had said, he could
not keep that to himself hence he went to tell accused no.1, 8 and
Sowisa and Andile, the brother of
accused no.8.  It is accused
no.8, who told him to tell Andile his brother.  It was put to
him that if he had not spread
the news about what was allegedly said
by Zintle the deceased would still be alive.  His response was
that he could not keep
quiet because the deceased killed his mother
as she said herself.  She had killed his nephew and had again
killed another
person.  He denied assaulting the deceased and
testified that during his presence the deceased did not get into the
rondavel
as can clearly be seen in the video.  He was not there
when the deceased was closed into the rondavel and he did not see
that.
He testified that Nontsebezo was lying about his presence
when the deceased was put inside the rondavel which was then closed
and
secured with a wire.  He heard about that during his
incarceration.
[80]
He confirmed that during the video on the second occasion he was
standing next to the door of the rondavel.  He was holding
the
hand of the deceased and dragging her but they were not able to put
her in and he then left her there and moved aside.
As far as he
was concerned there was no first occasion in which the deceased was
put inside the burning rondavel and the door was
closed.  He
said Nontsebenzo’s evidence about him, accused no.1, 4,
Sikhokele and accused no.8 getting out of the deceased’s

homestead while the deceased’s feet were protruding in a drum
and going to his homestead to wash their hands was not true.
He
denied accompanying them to the taxis and standing outside the taxi
which was about to leave.  He testified that his apology
was in
relation to dragging the deceased.  He was not apologizing about
the other things because he did not do them.
The
case for accused no.4.
[81]
Accused no.4 opened his case by giving evidence.  He testified
that he is 33 years old.  Before his arrest he resided
at Majuba
but was arrested in the Western Cape where he was employed.  On
the 14 March 2020 he attended a funeral of Samkelo
at Majuba.
After the funeral he went to a tavern called Kwa-Mkhulu.  He was
with his brother Mzikayise Manundu.
He had just arrived at that
tavern when he was called out.  He was called out by his
relative Nicholas.  When he got
outside he found another
relative of his, Zintle.  Zintle was crying and talking about
Samkelo saying that Samkelo was not
dead.  He then asked Zintle
what she meant about Samkelo not being dead when they had just had a
funeral for him.  Zintle
did not answer that.  He became
upset and went back into the tavern.  They bought liquor and
took it away with them.
He later went to sleep.  It was
between 22:00 and 23:00 when he was at the tavern.
[82]
The following morning on 15 March 2020 Mzikayise called him asking
him to come and explain what Zintle had said to him.
When he
arrived at accused no.8’s homestead, there were many family
members in that big flat and Zintle was also there.
Before
he could explain what Zintle had said Nicholas narrated it as he was
also present when Zintle talked about Samkelo
at the tavern.
The family members were shocked and upset.  He decided to go and
take a bath in preparation for his journey
back to the Western Cape.
When he left nothing had happened to Zintle beyond a reprimand.
The deceased was also there
at accused no.8’s homestead.
She was just sitting there and listening like everybody else.
Nothing was done to
the deceased in his presence.  He went to
his homestead to wash.  After he finished washing one Nomathemba
arrived saying
there was a fire.  He went out to look and saw
the smoke at the deceased’s homestead.  His home is about
150 metres
or so to that of the deceased.
[83]
He finished his preparation for the journey back to the Western Cape,
took his bag and went to the taxis which were parked
along the road.
He thereafter went to the deceased’s homestead.  He found
many people there in the yard.
He and others tried to push the
deceased into the burning rondavel but they were unsuccessful.
They were pulling her into
the burning rondavel so that she could
take out Samkelo who, according to Zintle, was in that rondavel.
On his arrival at
her homestead he found the deceased being assaulted
and pulled.  He then participated in pulling her to the burning
rondavel.
He turned back from the stoep because of the flames
and left the deceased there.  He testified that the deceased was
assaulted
with hands.  No sticks or other objects were used.
She was pulled just to scare her.
[84]
He joined in assaulting the deceased because he was upset as Samkelo
was his brother.  He had believed what Zintle had
said and it
was not something new to him.  When he joined in pulling the
deceased he wanted her to take his brother Samkelo
from that rondavel
as she had said he was in there.  He denied that he was present
or participated in pulling and putting
the deceased in the rondavel
which was then closed.  He testified that he never entered the
rondavel.  He and his co-accused
had left her on the stoep after
not being able to go in because of the flames.  He saw the video
footage and he saw himself
in it.  He was pulling the deceased
and they turned at the stoep in that video footage.  He saw
himself kicking the deceased
on her chest and she did not even fall.
He then left.  After they had left the deceased at the stoep she
then appeared
between the rondavel and another structure.  This
is the time at which he kicked her.
[85]
He did not see her when she escaped earlier as he was not at her
homestead at the time.  He was not there when she was
chased
also.  Nontsebenzo was mistaken in her evidence that she saw him
and his co accused walking past the drum as he was
the first to leave
the deceased’s homestead.  He denied walking past the drum
and going to accused no.2’s homestead
to wash his hands.
He never went anywhere to wash his hands.  He left after kicking
the deceased after being called
by his co-passengers in that taxi and
they left.
[86]
He was asked some questions by some of the accused’s legal
representatives.  He testified that when he was at his
home
looking at the deceased’s homestead he could not see her
place.  He only saw smoke.  He first put his bag
in the
taxi and thereafter went to the deceased’s homestead.  At
that time the whole rondavel was burning.  He
estimated the
people in that homestead to about 100.  From where the taxis
were standing one could not see what was happening
at the deceased’s
homestead.  The taxis were behind her homestead and the people
were in the front and one could not
see what was happening at the
front.
[87]
Under cross-examination on behalf of the State accused no.4 testified
that he was not there when the deceased was assaulted
at accused
no.8’s homestead as he had left.  He disputed the evidence
of Nontsebenzo about what he did at accused no.8’s
homestead.
He denied kicking the deceased at accused no.8’s homestead.
He only found her being assaulted at her
homestead.  The
deceased was never assaulted in his presence at accused no.8’s
homestead.  He accepted that his
attorney did not put it to
Nontsebenzo that he was not there at the homestead of accused no.8
when the deceased was assaulted.
When he arrived at accused
no.8’s homestead nothing was happening to Zintle.  She was
just being asked about what she
said and she was seated on a chair
like everyone.  Accused no.7 was present but accused no.7 found
him there.  Accused
no.7 did not stay.  He took his bag and
left.  When accused no.7 was there he listened as Zintle was
being questioned
and he then left.  He thereafter left as well.
He was called to accused no.8’s homestead at about 07:00 in the

morning and stayed there for about 30 minutes.  When he arrived
at the deceased’s homestead there were many community
members.
The rondavel was engulfed in flames.  He was not present at a
stage when the deceased was closed inside the
rondavel.  He was
not present when she escaped and was chased.  He found her
already in the yard when he arrived.
[88]
He disputed Nontsebenzo’s evidence about his participation in
chasing the deceased, being caught and brought back to
her
homestead.  He testified that Nontsebenzo was lying and had been
consuming liquor.  It was put to accused no.4 that
it was never
put to Nontsebenzo that she might have been drunk from consuming
liquor.  He further testified that when he arrived
at the
deceased’s yard there were many people and she was being
dragged into the burning rondavel by members of the community.

He then joined them.  His co-accused did not assault her.
They merely pulled her and he also kicked her.  They
could not
put her inside the rondavel because of the flames.  He testified
that he would not dispute that she died of burns.
He confirmed
that Sihle died in 2018.  He was not related to Sihle.  It
was accused no.7 who was related to Sihle.
The case for accused
no.4 was closed.
[89]
The case for accused no.7 was closed with the court being informed
that he would not testify and would therefore exercise his
right to
remain silent.
The
evidence of accused no.8
[90]
Accused no.8 testified that he is 40 years old and went up to grade
11 at school.  On the 14 March 2020 there was a funeral
of
Samkelo who was his nephew.  He had died in the Western Cape
where they stayed together.  On the 15 March 2020 he
went to the
home of accused no.4 asking him to come to his homestead after being
asked to do so by his elder brother Andile.
Accused no.4 was
asked to come and tell them what Zintle had said the previous day.
Indeed, he proceeded to accused no.4’s
homestead to call him.
On his way back home he started at the Msiya homestead.  When he
arrived at his homestead he
found many people there.  Zintle was
also there sitting near the door.  Samkelo’s mother,
Nontuthuzelo was crying.
The deceased was also present sitting
outside in the yard.  He asked Zintle why she was shaking and
standing near the door.
He also told her to tell the truth.
He then proceeded to his sister Nontuthuzelo to console her as she
was crying.
He spent some time consoling his sister but
eventually he got out of the house.  When he got out there were
some people in
the yard but most people had gone up.  The
deceased was reported to have been taken to her homestead.  He
then proceeded
to the deceased’s homestead.
[91]
When he arrived at the deceased’s homestead the deceased was
seated on the ground in her yard.  There were people
surrounding
her.  He was then called by Nonkcithakalo who was also in the
yard next to some building blocks.  When he
arrived at the
deceased’s homestead the rondavel was already burning.  He
went to Nonkcithakalo who asked him to take
her bags out of the
rondavel and he did so and gave them to her.  He went to the
people who surrounded the deceased.
The deceased was being
asked to take out the poeple she had said were in a trunk.  He
then pulled her telling her to take
out those people.  The
rondavel was burning and the roof was about to collapse.  He
wanted her to take them out before
they burned in there.  They
pulled her trying to put her in the burning rondavel but they were
unable to do so because the
flames were too strong.  He then
left her near the door on the stoep.
[92]
Nontsebenzo called him saying that the taxi was leaving and they both
left.  He went to accused no.1’s homestead
to fetch some
of his belongings for bathing and then proceeded to the taxi which
then departed for the Western Cape.  He confirmed
Nontsebenzo’s
evidence that she did call her saying they should leave.
However, she might not have heard him when he
said he would start at
accused no.1’s place to fetch his toiletries as it was noisy.
He testified that Nontsebenzo
could not have seen what was happening
at the deceased’s homestead from where the taxis were waiting.
She could not
have seen the legs of the deceased protruding out of a
drum.  He disputed her evidence that she saw him and his
co-accused
walking past the drum towards accused no.2’s
homestead where they washed their hands.  He testified that when
he left
the deceased’s homestead, the deceased was in the yard
crying.
[93]
They boarded their taxi and departed for the Western Cape.  When
he left the deceased’s homestead going to fetch
his toiletries
the deceased was still alive leaning against a house which is next to
the rondavel that was burning.  Other
community members where
standing in front of her.  His attention was drawn to
Nontsebenzo’s evidence that when she arrived
at the deceased’s
homestead he and accused no.1, 2, 4 and 6 were there assaulting the
deceased with fists and kicking her.
He confirmed that indeed
she found them there.  She was carrying a bucket on which she
sat.  The deceased was however,
not assaulted.  She was
only kicked by accused no.4 when accused no.4 was leaving.  They
had grabbed the deceased trying
to put her inside the burning
rondavel.  He denied Nontsebenzo’s evidence that there was
a time at which he, accused
no.2, 4 and 6 put the deceased inside
that rondavel and closed it securing it with a wire or bolt while she
was inside.  He
further said that Nontsebenzo lied in her
evidence that he, accused no.2, 4 and 6 chased after the deceased
after she had managed
to escape and brought her back.  He
however, confirmed her evidence that they tried to put her in the
rondavel but were not
able to do so because of the flames which were
too strong.  He also confirmed her evidence that she threw the
bucket she was
sitting on into the burning rondavel.  He said
that at that time the deceased was sitting outside in the yard
surrounded by
people.
[94]
He also confirmed Nonkcithakalo’s evidence that she called him
asking him to take her belongings from the rondavel and
that he
ignored her.  He said that he did take out her belongings after
she asked him for the second time.  He testified
that when he
went inside the rondavel to fetch her belongings there was no one at
the door way or holding the door.  If the
deceased was ever
placed inside the rondavel it could have been before his arrival.
He denied imputing witchcraft on
the deceased or setting the rondavel
on fire.  He denied killing the deceased or playing any part in
her killing.  He
testified that he believed in witchcraft.
[95]
Accused no.8 further gave evidence under cross-examination by the
State.  He testified that he heard on 15 March 2020
about his
nephew Samkelo not being dead before he went to call accused no.4.
He heard this news from accused no.2 and he
was hurt.  When
Zintle was taken to his homestead he was at the Msiya homestead.
When he got to his homestead Zintle
was standing next to the door of
the flat outside.  He did not ask Zintle about the veracity of
what was said she had said.
He had noticed that she was shaking
and scared.  He walked past her into the flat to console his
sister Nontuthuzelo who was
crying inside the flat.  He
testified that he was one of the people who brought the remains of
the late Samkelo from the Western
Cape.  Before his body was
transported home they went to view the body and he was satisfied that
the body in the coffin was
that of Samkelo.
[96]
He confirmed going to the deceased’s homestead and asking her
to take Samkelo out of the rondavel as he believed he was
in there.
He knew that Samkelo was dead but had not expected to hear that he
was not dead.  When questioned, the deceased
had said that
Samkelo was in a trunk and yet he was present when Samkelo was
buried.  He had never heard of a dead person
being risen but he
believed that a person who used evil or bad muti can do it as he
believed in witchcraft.  He knew that
Samkelo had been stabbed
to death in the Western Cape.  When Zintle and the deceased said
what they said he believed that
the deceased had used bad muti.
He had pulled the deceased into the rondavel because he wanted her to
take Samkelo out of
the rondavel.  They tried to force her into
the rondavel to take out Samkelo and Sihle before the rondavel burned
completely.
He pleaded with her and pulled her into the
rondavel.  She did not want to get up from where she was
sitting.  He then
dragged her, holding her by her arms.
[97]
Accused no.8 testified that Nontsebenzo was his girlfriend but they
had a misunderstanding after his arrest.  She was
now not his
girlfriend.  He, however, has a child with her.  He
testified that he was not sure if it was Nontsebenzo
or himself who
arrived first at the homestead of the deceased.  He would not
dispute her evidence that she found him there.
He also
confirmed her evidence that he asked the deceased to take out Samkelo
saying he was indeed one of those who were asking
the deceased to
take out Sihle and Samkelo.  He found Nonkcithakalo there
standing next to the building blocks in the premises.
He
testified that when he was taking out Nonkcithakalo’s bags the
deceased was not in the rondavel.  Therefore, Nontsebenzo
was
lying in that regard as the deceased was in the yard.  They
never succeeded in putting the deceased inside the rondavel
at any
stage.  He disputed Nontsebenzo’s evidence that after the
deceased was put inside the rondavel it was closed
and secured with a
wire after which they left.  He testified that when he went into
the rondavel to take out the bags its
door closed itself after he had
pushed it open.  He confirmed being asked by Nonkcithakalo to
take out her bags and ignoring
her.  He disputed Nonkcithakalo’s
evidence that he was at the door when she asked him to take out her
bags and he went
in and got them out.  It was further put to
accused no.8 that Nontsebenzo heard a child saying that the deceased
had escaped
from the rondavel.  He, accused no.1, 2, 4 and 6
chased the deceased.   He said that Nontsebenzo was lying.

He also denied being one of those who brought the deceased back after
she had escaped and they had chased her saying that might
have
happened before he arrived at the deceased’s homestead.
When it was put to him that both Nontsebenzo and Sowisa
testified
that he was present when the deceased was brought back and assaulted,
he said he merely pulled her.  He did not
regard pulling her as
an assault.
[98]
He confirmed Nontsebenzo’s evidence that he had dragged and
pushed the deceased into the burning rondavel but said he
was only
aware of one instance in which they tried but failed to put her in
because of the flames and smoke.  He confirmed
that the deceased
ended up at the door but outside the rondavel as the video showed.
They also turned back at the stoep which
was a very small stoep.
He insisted however, that the deceased did not get inside the
rondavel.  With regard to the
injuries the deceased sustained as
detailed in the post mortem report he testified that when he left the
deceased, she was okay
and had no skull fracture.  He did not
know who inflicted the wound as he was not carrying anything and did
not see anyone
carrying anything.  He would, however, not
dispute the injuries of the deceased but said that when they left
her, there were
other people there.
[99]
He further testified that Nontsebenzo could not have seen the
deceased’s legs protruding in a drum from where the taxis
were
standing.  He also disputed her evidence that she saw him,
accused no.1, 2, 4 and 6 walking past the drum saying he left
that
homestead through another gate.  He did not know about his co
accused and denied going with them to accused no.2’s
homestead
to wash hands.  He added that in any event she could not have
seen any of that because the view of the deceased’s
homestead
was obstructed by a kraal.  He also disputed Sowisa’s
evidence about the deceased’s homestead being
visible from
where the taxis were stationary.  With regard to the burns that
the deceased suffered he testified that when
he left her she had no
burns even though the flames were big.  He denied putting her in
the fire saying the flames prevented
them hence they left her near
the door.  He further testified that the deceased also turned
away when they turned away from
the fire.
[100]
Accused no.8 confirmed that the name of the deceased was mentioned
after the death of Sihle in 2018.  She was warned
that if her
name was mentioned again in future relating to the death of another
person her homestead would be burned and she would
be banished.
However, he had heard about that as he was in the Western Cape when
all that happened but confirmed that such
a meeting of the community
did take place and that decision was taken.  Accused no.8 closed
his case.
The
analysis.
[101]
The basic tenet of our law in criminal proceedings is that the State
must prove the guilt of each accused beyond reasonable
doubt.
The question that this Court must answer is whether on the conspectus
of all the evidence led during this trial the
guilt of each one of
the accused has been established beyond reasonable doubt.  I
find the case of
Olawale
[1]
extremely useful in explaining this principle: The court said:
“
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere

preponderance of probabilities is not enough.  Equally trite is
the observation that, in view of this standard of proof in
a criminal
case, a court does not have to be convinced that every detail of an
accused’s version is true.  If the accused’s
version
is reasonably possibly true in substance, the court must decide the
matter on the acceptance of that version.  Of
course it is
permissible to test the accused’s version against the inherent
probabilities.  But it cannot be rejected
merely because it is
improbable; it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable
that it cannot
reasonably possibly be true.
In
evaluating the evidence against the appellant, one must look at the
reliability and credibility of the witnesses, consider if
any of them
had a motive to falsely implicate the appellant and further look at
the probabilities of the State’s version.
The
State’s case rested on the evidence of a single witness as to
the actual robbery.  The evidence of a single witness
has to be
clear and satisfactory in every material respect.  The evidence
has to be treated with caution.  A court can
accept the evidence
of a single witness if it is satisfied that it is truthful beyond
reasonable doubt.”
[102]
In evaluating the evidence against the accused I am guided, as I
must, by these trite and tested principles of our law.
The
State relies in the main on the evidence of Nontsebenzo and Sowisa
both of whom are
section 204
witnesses.  In some respects, and
on certain aspects of the State’s case Nontsebenzo is a single
witness.  However,
most of the evidence that is relevant to the
guilt or innocence of the accused is largely common cause.  Some
of it is corroborated
by the accused themselves in respect of the
role they played on that fateful day.  There is also video
footage in respect
of some of the events that took place.  The
accused did not dispute that they are the persons who are seen in the
video footage.
However, it is common cause that accused no.7
does not appear in that video.  At least once State witness
places him at the
homestead of the deceased and details what role he
played in the activities that look place at the deceased’s
homestead.
I will deal separately with accused no.7 and the
evidence of the State against him.
[103]
I consider it convenient to refer to accused no.1, 2,4 and 8 simply
as the accused thenceforth.  I do so because I have
detailed all
the evidence led by each of the State witnesses and by each of the
accused above.  It is clear that accused no.1,
2, 4 and 8 were
mostly always together in dealing with the deceased not only on the
version of the State but also even on the proper
assessment of the
evidence of each one of them.  Even where they challenge the
evidence of the State they do so in the same
way save in one
instance, the taking of the deceased from the homestead of accused
no.8 to her homestead.  Only accused no.2
and 7 do not dispute
being part of the group that took the deceased to her homestead.
Only accused no.2 and 7 say they were
there during the procession to
the deceased’s homestead.  Accused no.1, 4 and 8’s
evidence was that they did go
to the deceased’s homestead,
participated in questioning her and dragged and pushed her into the
rondavel when that rondavel
was already engulfed in flames.
They were not, on their version, present earlier than that time.
[104]
The evidence of these accused is clearly so improbable that it is a
false and a senseless attempt to minimize their roles
and avoid
taking responsibility for what they did.  It is clear that but
for the video footage accused no.1, 2, 4 and 8 would
have distanced
themselves from the brutal assault which they committed on their own
grandmother whom they called Magogo at times
in their evidence.
It appears that their strategy of subterfuge was rendered impotent by
the video footage. The senselessness
of this falsehood is exposed by
the fact that, on their version, it must be other people who were
driving the deceased to her homestead.
Inexplicably, it is only
them and their erstwhile accused who are, on some of the
incontrovertible evidence of the State, seen
violently pulling and
pushing the deceased into the fire.  They are the ones who, at
various times during the ordeal that
their grandmother went through
in their own hands, even on their version, were demanding that the
deceased must get into the burning
rondavel and take out Samkelo and
Sihle.  Their active role in all these activities is hardly
surprising regard being had
to the fact that Samkelo was the direct
nephew of accused no.8 and somehow very closely related to accused
no.1 and 4.  Sihle
was also the nephew of accused no.7 and the
direct nephew of the erstwhile accused no.6.  In the torture
that the deceased
went through, on his own evidence, accused no.2
says that the deceased mentioned his long departed mother and this
also drove him
to participate in pulling the deceased to the fire.
[105]
The evidence of the State, especially that of the
section 204
witnesses which was never really cogently challenged beyond mere
denials can be summarized with relative ease.  It was that,
all
the accused were present at the Manundu homestead, the home of
accused no.8.  They actively participated in questioning
Zintle
with varying degrees of participation.  Zintle’s
manhandling and even assault was followed by the assault on
her
grandmother, the deceased.  The deceased was then driven to her
homestead.  All the accused participated in driving
her to her
homestead.  From the Manundu homestead and all the way to her
homestead, the deceased was dragged pulled, kicked
and assaulted in
various ways. Notsebenzo was walking along but on the way she decided
to start at the Msiya homestead where she
and the other people from
the Western Cape had put up for the night.  She was alerted to
the fire at the deceased’s
homestead.  She saw that the
rondavel was burning from the back.  She went there and got
inside the homestead.
She saw the accused, excluding accused
no.7 assaulting, dragging and kicking the deceased at her homestead.
The deceased
was put inside the rondavel which was closed and secured
with a wire.  When all of this was happening, the actors were
the
accused including accused no.6, except accused no.7 whom she did
not see in that yard.  Accused no.8 took from the rondavel
the
bag of Nonkcithakalo, the daughter of the deceased.
[106]
The accused all left for their taxi which was en route to the Western
Cape.  The accused were either in the taxi with
Nontsebenzo and
some were just outside their taxi when a child said that the deceased
had escaped.  Nontsebenzo saw all the
accused chasing the
deceased.  Again accused no.7 was not present.  They caught
up with her behind a toilet at another
homestead.  The deceased
was brought back, assaulted and dragged back into her homestead.
The accused admitted participation
in this assault after she had
escaped and was back at her homestead.  However, they falsely
claim not to have participated
in chasing her, not to have been aware
that she had escaped, not to have brought her back.  They only
acknowledge being in
her yard and assaulting and dragging her to get
her into the burning rondavel as she was refusing.  They all
admit working
together in holding her or pushing her in trying to put
her into the rondavel but failed because of the flames.  This is
the
part that is clearly shown on the video footage which explains
why they admit participation on this occasion.  This is clearly

not out of honesty on their part.  They were all liars who
unashamedly spewed nonsensical falsehoods with straight faces.

They were however, betrayed by their own incoherence as they tried to
sing together, the concoction of lies trying to make a coherent
line
of a musical item.  They clearly had no choice but to admit
their participation as the video footage clearly depicts
them abusing
their 92-year grandmother, the deceased, to her ultimate death as
earlier described.  Eventually she died of
blunt force trauma
and second and third degree burns.
[107]
The deceased was found in a drum which had water with her head down
and her legs protruding up wards.  What a degrading
and inhumane
treatment.  I must admit to having been shocked to the core,
that the nonagenarian suffered such violent abuse,
was paraded half
naked, burned alive in what one of the accused, if Nonkcithakalo is
to be believed, said “this is hell”
as they were pushing
her into the burning rondavel.  They were literally roasting
her.  All of this was done by the accused,
the sons and
daughters of that community in broad day light in the presence of the
members of the community who were present, not
far away, at the
Manundu homestead where they had gathered for a cleansing ritual.
They allowed an elderly woman, on baseless
accusations of witchcraft,
to die so degradingly and not peacefully in her sleep as it should
happen with people her age in a normal
society.
[108]
The people of Majuba and I dare say, all those who were there on that
day, those who watched an elderly woman being violated
by children
who were literally her grandchildren, what happened to our principle
of Ubuntu in Majuba.  Have they all become
such cowards that
they could not stand up and say, even those perceived, rightly or
wrongly, to be the worst amongst them, will
not be treated like that
in the name of humanity.  I hope that the children who were
there in numbers will not emulate this
cruelty on any person.
The violence and torture inflicted on Mablangwe because of some
baseless and senseless accusation
of witchcraft will forever remain a
stain in the history of Majuba.  I suggest that the community of
Majuba should gather
together and rescind the unlawful resolution
that the accused said was taken which, effectively, was that a person
suspected of
practicing witchcraft would be burned.  If the
resolution is not rescinded, future generations might do that to some
of you
and torture you like they did to Mablangwe, the deceased if
you live to an old ripe age like she did. This must stop now so that

no other person is ill-treated and killed like Mablangwe was on 15
March 2020.
[109]
This brings me to the issue of accused no.7 who did not testify.
His plea explanation was that he had left the Manundu
homestead to
catch a taxi back to work. On the way he was engulfed with anger and
returned back to the Manundu homestead.
He participated in
questioning Zintle and even pouring water on him which was in a
container.  The evidence of the State which
I accept was that it
was paraffin that was in that container and he therefore clearly lied
in this regard in his plea explanation.
He further says that he
participated in driving, dragging and assaulting the deceased to her
homestead.  However, before he
reached the deceased’s
homestead, he received a call which resulted in him not actually
entering the deceased’s homestead.
The evidence of
Nonkcithakalo was that even though she tends to confuse the two
Velemani brothers, the former accused no.6 and
accused no.7, they
were both also there.  According to Nonkcithakalo accused no.7
is the one who not only participated in
dragging the deceased into
the rondavel, he is the one who set it alight from the front and she
saw him doing this and even heard
him saying this is hell.  At
that time the deceased was inside the rondavel.
[110]
There are some problems with the evidence of the State in this
regard.  It is so that the State’s own witness Nontsebenzo

testified that she did not see accused no.7 in those premises after
she arrived.  It was argued by the prosecutor that the
fact that
she did not see him did not mean that he was not there.  On this
basis and on the basis of Nonkcithakalo’s
evidence that she saw
him there, so submitted counsel for the State, this Court should
conclude that he was there.  This approach
to evidence where the
burden that the State has is that of proof beyond reasonable doubt is
fraught with problems as I will show
hereunder.  It indirectly
suggests that accused no.7 must prove that he was not there.  I
do not think that this approach
is supported by our jurisprudence as
I understand it.  Secondly, the witness who implicated accused
no.7 in the criminal activities
that were taking place at the
deceased’s homestead told the court that she normally confused
accused no.6 and no.7.
She also testified that she was dizzy on
that day.  Finally, the evidence of Nontsebenzo, whose evidence
was very reliable
and credible was that she did not see accused no.7
at all in those premises.  Finally, the video evidence in which
all the
accused including accused no.6 can be clearly seen, does not
show accused no.7 being one of those who were there at that stage.
[111]
Our criminal jurisprudence is that where there is a possibility that
an accused person might be innocent he must be given
the benefit of
doubt.  The above legal position was aptly stated by Nugent J in
Van
Der Meyden
[2]
in which the learned Judge remarked as follows:
“
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt and the

logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent.  The process of reasoning

which is appropriate to the application of that test in any
particular case will depend on the nature of the evidence which the

Court has before it.  What must be borne in mind, however, is
that the conclusion which is reached (whether it be to convict
or to
acquit) must account for all the evidence.   Some of it
might be found to be unreliable, and some of it might be
found to be
only possibly false or unreliable, but none of it may simply be
ignored.”
[112]
In light of Nonkcithakalo’s self-confessed confusion about the
two brothers, Sikhokele and Kakudi and her self-confessed
dizziness
on that day, her evidence is, at best, unreliable for the purposes of
conviction when it comes to which one of the two
brothers played
which role.  This is to the extent that it is not supported by
other evidence.  In other words, not all
her evidence is
unreliable.  It becomes more unreliable if consideration is
given to the fact that Nontsebenzo, whose evidence
was very clear and
credible in most material respects, did not recall seeing accused
no.7 at the deceased’s homestead at
any stage.  The guilt
of accused no.7 cannot therefore be said to have been proved beyond
reasonable doubt in respect of the
count of murder.  However,
that is not the end of the story.  The State did ask that he be
convicted of assault with
intent to do grievous bodily harm.
This is on the basis that it is a competent verdict for murder.
I need say no more
about this as the participation of accused no.7 on
the assault on the deceased as she was at and being driven and
dragged and kicked
from the Manundu homestead to her homestead, is
not in doubt.
The
doctrine of common purpose.
[113]
This brings me to the doctrine of common purpose on which the State
relied in seeking the conviction of the accused on the
count of
murder.  The four accused excluding accused no.7, were present,
with some of the people who were also charged but
against some of
whom charges were withdrawn for one reason or another were present
and all participated in questioning, assaulting
the deceased in
various ways dragging, putting and pushing the deceased into the
fire.  There can be no doubt that they all
actively participated
in the criminal activities that happened that day all the way to and
especially at the deceased’s homestead.
When she escaped
after being closed in the rondavel, they all pursued her, brought her
back, tortured her and pulled, dragged and
pushed her into the
furnace that the rondavel had become.
[114]
the legal position as regards the doctrine of common purpose was
endorsed by the Constitutional Court which not only quoted
S
v Mgedezi
with approval but also went on to state the law as follows in
Thebus
[3]
:
“
In
our law, ordinarily, in a consequent crime, a casual nexus between
the conduct of an accused and the criminal consequence is
a
pre-requisite for criminal liability.  The doctrine of common
purpose dispenses with the causation requirement.  Provided
the
accused actively associated with the conduct of the perpetrator in
the group that caused the death and had the required intention
in
respect of the unlawful consequence, the accused would be guilty of
the offence.  The principal object of the doctrine
of common
purpose is to criminalize collective criminal conduct and thus to
satisfy the social “need to control crime committed
in the
course of joint enterprises”.
Therefore
accused no.1, 2, 4 and 8 acted together in the conduct which resulted
in the criminal consequence of the deceased losing
her life.
The
imputation of witchcraft and arson.
[115]
The accused have also been charged in terms of
section 182
of Act 9
of 1983 which in part reads:
“
182
(1) Any person who-
(a)
imputes to any
other person the causing, by supernatural means, of any disease in or
injury or damage to any person or thing, or
who names or indicates
any other person as a wizard; or
(b)
in
circumstances indicating that he professes or pretends to use any
supernatural power, witchcraft, sorcery, enchantment or conjuration,

imputes the cause of death of, injury or grief to, disease in, damage
to or disappearance of any person or thing to any other person;
or
…
shall
be guilty of an offense and liable on conviction –
…
(2)
Where any person in respect of whom an offense referred to in
paragraph (a) or (b) of subsection (1) was committed, is killed,
it
shall be presumed, until the contrary is proved, that such person was
killed in consequence of the commission of such offence.”
[116]
It is the evidence, not of State witnesses, but that of the accused
themselves who explain why Zintle was questioned which
led to the
brutal assault and eventual death of the deceased.  It is
accused no.4 and one Nicholas who told the people about
what they
said Zintle had said at Mkhulu’s tavern.  Accused no.4 who
says that he was present when Zintle said that
Samkelo who had just
been burried that very same day was in fact not dead.  What
Zintle actually said, if anything at that
tavern, is known only by
accused no.4.  The assault on Zintle led to her mentioning the
name of the deceased whom the accused
alleged, had been warned after
the death of Sihle in 2018 that what happened to Sihle should not
happen again.  It is not
clear from the accused themselves what
it is that happened to Sihle except that he died.  The deceased
had been warned, so
say the accused, in a community meeting that her
homestead would be burned and she would be barnished.  The
accused make it
clear that they acted in the manner they did and
ill-treated the deceased because she had said that Sihle and Samkelo
where in
a trunk in the rondavel.  They wanted her to take them
out.  Very strangely, in as much as they distanced themselves
from setting the rondavel alight, they made no attempt to take the
water in the drum next to the rondavel to extinguish the fire
so that
the deceased can take out Sihle and Samkelo.
[117]
If they did not set the rondavel on fire one would have expected them
to make attempts to extinguish the fire as it is normally
done in
rural commities.  Indeed, while the rondavel was on fire at the
back they put the deceased in there, closed the door
and secured it
with a wire.  There is no evidence that inside the rondavel they
asked the deceased to show them the trunk.
They did not take
the trunk out of the rondavel if it was set alight by a person other
than themselves.  This makes it so
highly improbable as to be
false that they are not the ones who set it alight.  On the
conspectus of all the evidence, including
the fact that there were
many people there mostly children, I am of the view that any one of
the accused including former accused
no.6 might have caused the
fire.  Both Nontsebenzo and Sowisa did not see the rondavel
being set alight.  They did not
know who did that but
Nontsebenzo testified that when she arrived the rondavel was burning
at the back.
[118]
When the deceased was put inside the rondavel it was already burning
at the back.  This makes nonsense of the accused’s

assertion that the purpose of dragging the deceased into the rondavel
was so that she could take Samkelo and Sihle out.  If
that was
the reason and not to burn her alive, it is very difficult to
understand why they basically locked her in there and left
for their
taxis which were en route to the Western Cape.  They must have
set the rondavel alight because they wanted her to
burn inside the
rondavel.  But she escaped and they chased her and brought her
back.  At this stage the fire was too
strong and the roof was
collapsing or had collapsed.  Dragging her there is inconsistent
with getting her to take out Sihle
and Samkelo and consistent with
their intention to kill the deceased in the circumstances.
[119]
It is not known who started the fire at the back.  Nonkcithakalo
testified that the rondavel was set alight from the
front by accused
no.7.  However, it was brought to the attention of the court
that in her statement to the police Nonkcithakalo
had said that it
was the erstwhile accused no.6, Sikhokele who set the rondavel on
fire.  That being the case, Nonkcithakalo
cannot suddenly change
in evidence and now say it was accused no.7 and not Sikhokele.
Sikhokele’s trial was separated.
To the extent that he
might be the one of the five accused who caused the fire, the
doctrine of common purpose cannot and does
not generally apply in
respect of an accomplice who is not before court either as an accused
or as a section 204 witness.
He was not tried in this Court as
his trial had been separated.  The same considerations apply to
Zukhanye Manundu.
This therefore, means that all the accused
cannot be found guilty of arson on the basis of common purpose.
[120]
As for the imputation of witchcraft to the deceased, the evidence of
the State, even the accused’s evidence properly
understood
makes it clear that it was the sole reason for their actions.
They themselves say that they dragged her to the
burning rondavel for
her to take out people they had buried on the basis that she had
allegedly said they were in a truck.
The evidence makes it
clear that the deceased was not just questioned.  When she did
not “speak the truth” they
assaulted her and dragged
her.  They were forcing her to admit knowing what happened to
Samkelo and Sihle.  Clearly because
of torture and fear she
would at times say she would speak but did not.  As for accused
no.2 he explained that the deceased
had also mentioned his own mother
who had died a long time ago.  I therefore find that all the
accused imputed witchcraft
as provided for in section 182 of Act 9 of
1983.
[121]
I am therefore satisfied that the State has proved its case beyond
reasonable doubt in respect of the counts of imputing witchcraft
and
murder as well as assault with intent to do grievious bodily harm.
[122]
There were two section 204 witnesses, Nontsebenzo Yalwa and Sowisa
Tyhokolo who actually testified.  Their evidence was
very
crucial in assisting the State to prove its case.  They both
testified honestly and answered all the question even under

cross-examination.  Their evidence, considered in its totality,
was credible in all material respects.  Even in circumstances

where Nontsebenzo should be considered as a single witness in some
respects, her evidence was very clear and credible.  I
therefore
grant both Nontsebenzo Yalwa and Sowisa Tyhokolo indemnity as
provided for in
section 204
of the
Criminal Procedure Act 51 of 1977
.
[123]
Before I conclude, I must thank the police of Sterkspruit for acting
promptly in responding to the complaint that there was
a fire at
Majuba.  Captain Dinga who is also the head of detectives in
Sterkspruit acted with the requisite dedication which
led to the
immediate pursuit by her and her team, of the suspects that very same
day.  The decisive action that was taken
by the police in this
regard is indeed commendable.  The investigation was thorough
and conducted with agility and care.
Unfortunately, the same
cannot be said about the members of the community of Majuba.  I
do not know what their problem is
and it is difficult to tell.
Is it because they were also afraid of the accused?  Accused
no.7 does say in his plea
explanation that he told them that they
were liars for not implementing the community resolution.  I do
not know if the men
of Majuba, the elders hid their tails behind
their legs when this gruesome crime was evolving in front of their
eyes and allowed
it to be completed.  They, in the process,
threw a vulnerable 92-year-old nonagenarian, to the wolves.
They must do
a serious introspection and ensure that that unlawful,
criminal resolution is rescinded or cancelled.  They must ensure
that
the death of Mablangwe does not become their legacy and it is
never repeated on anyone else.
The
results.
[124]
I am satisfied that on the basis of all the evidence, including the
evidence of the accused themselves, the State has proved
its case
beyond reasonable doubt and the accused are accordingly convicted as
follows:
1.
Accused no.1, 2, 4, 7 and 8 are found guilty of imputing witchcraft
on Nosayinethe Manundu.
2.
Accused 1, 2, 4 and 8 are found guilty for the murder of Nosayinethe
Manundu.
3.
Accused no.7 is found not guilty of the murder of Nosayinethe
Manundu.
4.
Accused no.7 is found guilty of assault with intend to do grievous
bodily harm on Nosayinethe Manundu.
5.
All the accused are found not guilty in respect of arson.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearance
Counsel
for the State:

L. POMOLO
Instructed
by:                                                         National

Director of Public Prosecutions
UMTATA
Counsel
for accused no.1 & 7:                               V

Ntshangase
Instructed
by:

Legal Aid South Africa
UMTATA
Legal
representative for accused no.2:                  B.

Krewu
Instructed
by:                                                         Legal

Aid South Africa
UMTATA
Legal
representative for accused no.4:                  E.B.

Sonqwelo
Instructed
by:                                                         Legal

Aid South Africa
UMTATA
Legal
representative for accused no.8:                  A.

Nohiya
Instructed
by:

Legal Aid South
Africa
UMTATA
Date
heard: 08 June 2022
Date
delivered: 17 June 2022
[1]
Olawale
v S
[2010] (1) All SA 451
(SCA) at 455 paras 13-15
[2]
S
v Van der Meyden
1999 (2) SA 79
(W) at 82 C - D
[3]
Thebus
v
s 2003
(6) SA 506 (CC) at para 34.