IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BISHO )
CASE NO.: CC 9 /2024
In the matter between:
THE STATE
and
MONELISI SO DIDI ACCUSED 1
LINDOKUHLE NDLEBE ACCUSED 2
SIPHOSETHU NKOMO ACCUSED 3
MOSULI MGILANE ACCUSED 4
APHELELE QONGO ACCUSED 5
JUDGMENT ON SECTION 174 OF CPA
ZONO AJ:
Introduction
[1] The accused persons in this matter were charged and arraigned for
kidnapping, assault with intent to do grievous bodily harm and murder. The
said offences are said to have taken place at or near Fort Hare University in
Alice. It is said that the other or a ll of the accused persons were acting in
concert and in the execution of a common purpose in committing those
offences. Lubabalo Nguta was the victim in all the counts facing the accused
persons.
[2] All five accused persons pleaded n ot guilty to all the charges levelled against
them. In terms of Section 115 of the Criminal Proc edure Act 51 of 1977
(CPA), accused No 3 indicated that he h ad nothing whatsoever to do with all
the offences as he was not present when the offences were committed.
Accused No 1, N o 2, No 4 , and No 5 did not make t heir statements of
defence. They stated that they are reserving their statements of defence. All
the accused persons are legally represented herein. Mr Pakade represents
accused No1 and No 4; Mr Mtshabe represents accused No 2 and No 5; and
Mr Nombambela represents accused No 3.
[3] Seven state witnesses were called to testify about the events of 07th October
2023, namely, Athule Khwatsha, Masibulele Weyi, Sihle Malunga, Xanti
Dilanga, Doctor Sithandiwe Kunyuza, Masithembe Nofemela and Siyasanga
Kondlo. After the evidence of these witnesses the state closed its case.
[4] After the closure of the state’s case all accused persons indicated their
intention to apply for a discharge in terms of section 174 of Criminal
Procedure Act 51 of 1977 (CPA). The applications were made on behalf of all
the accused persons . The applications were opposed by the state.
[5] Accused may be discharged at the close of case for prosecution. Section 174
of CPA provides:
“If, at the close of the case for the prosecution at any trial, the court is of the
opinion that there is no evidence that the accused committed the offence
referred to in the charge or any offence of which he may be convicted on the
charge, it may return a verdict of not guilty.”
[6] The key words in the text is “ No evidence that the accused committed the
offence. ” The words “no evidence” in section 174 of CPA mean no evidence
upon which a reasonable person might convict the accused1. There should
not be any possibi lity of a conviction unless accused testifies in a self -
incriminating manner. Failure to discharge in those circumstances is a breach
of the Constitutional guarantee of fairness. In Lubaxa2 Nugent AJA (as he
then was) had the following to say:
“18. I have no doubt that an accused person (whether or not he is
represented) is entitled to be discharged at the close of the case for the
prosecution if there is no possibility of a conviction other than if he enters the
witness box and incriminates himself . The failure to discharge an accused in
those circumstances, if necessary mero motu, is in my view a breach of the
rights that are guaranteed by the Constitution and will ordinarily vitiate a
conviction based exclusively upon his self -incriminatory eviden ce”.
[7] At the close of the stat e case, when discharge is considered , the first question
to be asked is:
(i) is the re evidence on which a reas onable man might convict;
(ii) if the answer to question is yes, there should be no discharge and the
accused should be placed on his defence.3 Credibility of State witness at this
stage plays no major role, unless the evidence is beyond belief4. The
evidence may be ignored if it is of such a poor quality that no reasonable
person could possible accept it.
1 S v Khayapa 1979 (1) SA 842 (A) at 838 F
2 S v Lubaxa 2002 (2) ALL SA 107 (A) Para 18
3 S v Schuping 1983 (2) SA 119B at 121A
4 S v Mbetha 1983 (4) SA 262 (C)., and many cases cited therein
[8] Consequently the applicable test is that the prosecution must establish a
prima facie case against the accused person. A proof beyond reasonable
doubt, which is a test applicable at the end of the criminal case is not
applicable5. If the party on whom lies the burden of proof , goes as far as he
reasonably can in producing evidence and that evidence calls for an answer
then in such case , he has produced prima facie proof , and in the absence of
an answer from the other side, it becomes conclusive proof.6 In what follows I
deal with the relevant parts of the evidence tendered by the prosecution with a
view to establish if there is a case to answer.
Discussion and analysis
[9] Athule Khatshwa testified in court for the state as follows :
Whilst at the tavern, Athule was approached by the Accused No 3 who
claimed that the tekkies he was wearing were his (accused 3). They agreed to
exchange cell phone numbers as he effectively stated that he wou ld first had
to contact the person from whom he got the tekkies to advise him that
accused No 3 is claimin g to be the owner thereof . The tekkies were
apparently obtained from the deceased, Lubabalo Nguta.
[10] On 07th October 2023 Accused No 3 came with accused No 1, No 2, and No 4
at Athule‘s room. Athule took the tekkies out of his wardrobe . Accused No 1,
No 2, No 3 and No 4 requested Athule to take them to the person from whom
the tekkies were obtained as they said that there were other mis sing items,
like laptops they were looking for. The loadshedding had just started. They
went to the deceased room.
[11] On their arrival at deceased room accused No 1 and No 2 indicated their
surprise to see that the person they were visiting (deceased) w as the same
person who was assault ed in the previous week. According to Athule the
deceased was interrogated and such interrogation was accompanied by his
5 S v Hepworth 1928 AD 265
6 Ex parte Minister of Justice: In re R v Jacobson and Levy 1931 AD 466 at 478
assault. No weapon was used. They were demanding that the deceased must
tell the truth about the miss ing items . Athule was then excused as it was clear
that he had nothing to do with the stolen good s. There were other two
gentlemen who arrived at the deceased room in addition to accused No 1 to
No 4.
[12] Accused No 4 seemed very dangerous and merciless and accused No 2
strangled the deceased. However, accused No 4 was using his bare hands to
assault the deceased. Accused No 1 and No 3 requested other accused
persons to stop beating the deceased with a view to give him a chance to
speak as they wanted to know the whereabouts of other items.
[13] Masibulele Weyi testified. He was part of the people who went to Athule’s
room and thereafter to deceased ’s room. Of importa nce, on their arrival at the
deceased room accused No 1, No 2 and No 4 assaulted the deceased with
hands. He was taken to Ayona. When he was taken to Ayona the deceased
was held with his hands by Masibulele, Accused No 2 and shakes. At Ayona
the room was s mall; therefore, only accused No 1 and No 2 went inside with
the deceased. When they were entering the room the deceased was not held
or supported.
[14] As they were coming out of the room accused No 1 and No 2 were angry and
shouting , saying that he was misleading them and he was lying. Accused No
2 put a hand on his back. The deceased made mention of Jabavu.
Masibulele, accused No 1, No 2 and No 4 took him to Jabavu. As the
deceased did not want to go to Jabavu, they dragged him . At J abavu accused
No 1, No 2 and No 4 continued to assault the deceased as they had nothing
in their possession. They thereafter took him out of the door . Masibulele went
back to his residence.
[15] Sihle Malunga testified. Nothing much was said by Sihle, exc ept to introduce
accused No 5 into the scene. Accused No 5 wanted to push the deceased as
others were talking to the deceased as if they were ta lking to the child. At
times they were p atting him on his shoulder.
[16] Xanti Dilanga testified. He was a Se ction 204 witness. Xanti and his
roommate met accused No 5 as they were following the noise that was
coming from down stairs. They knocked at D16 and accused No 4 opened for
them. They saw a y oungman sitting on a half broken cha ir and that he was
swollen. It was difficult to identify the person sitting on a half broken chair
because he was so much swollen on the front part of the face; the other eye
was almost closed whilst the other one was not so mu ch damaged. It was the
deceased who was sitting on a hal f broken chair. Present in the room was
accused No 1, No 2, No 3 and No 4 together with another guy and his
girlfriend.
[17] Xanti testified that accused No 1, No 2 and No 4 were assaulting the
deceased with hands, fists and feet(kicking) on the upper body. According to
him accused No 5 joined them and assaulted the deceased. They assaulted
the deceased as they were asking the whereabouts of their stolen goods.
Xanti slapped the deceased as he said he (Xanti ) knows the stolen items. The
deceased seemed to be collapsing and Xanti often p ut his head up. Iron rod
or a pipe that is used to hang the towels was brought and all accused persons
gave each other chances to assault the deceased. Accused No 5 came with a
plastic bag and he put it on deceased face (suffocate). They stopped
assaulting him when he said that the stolen items we re with one Diago.
[18] Xanti assisted the deceased to stand as he ( deceased ) was unable to stand
on his own as they were g oing to Di ago’s place. Xanti did not know where
they met accused No 3, he just assaulted the deceased without having asked
anything. He picked the broomstick and assaulted the deceased. Accused no
5 did the same until the broomstick was broken.
[19] When they were going out of Diago’s room accused No 3 and N o 5 were
assaulting the deceased. They were also dragging him on the stairs. The
deceased was extremely weak at that time. Accused No 5 often poured water
over the deceased stating that he wanted him to be active , he was using five
litre bucket. Accused No 3 and Nkanyiso joined to pour water on the
deceased. The deceased was on the ground helplessly assaulted (kick ed) by
Accused N o 1, No 2, No 3 and No 4 as accused No 5 was pouring water on
the deceased.
[20] The deceased was lifted by other students to his residence. Xanti and Diago
were ahead of them as Diago wan ted to show Xanti his room. The others
were left in the open space. Xanti saw the deceased again when he was on
the ground lying motionlessly with few people standing a distance away from
him. Xanti and Diago assu med that the deceased was dead. They changed
their direction. At that time accused No 1, No 2 and No 4 were walking away
from the deceased motionless body, towards the main gate.
[21] As state d above, Dr Kunyuza testified in this court as a Medical Practitioner
who examined the body of the deceased. Post Mortem report was admitted as
an exhibit. It is demonstrably cle ar that the deceased sustained multiple
serious injuries on different parts of his body . The deceased death was
recordedly caused by “blunt trauma to the head ”.
Count 1 - Kidnapping
[22] It is crystally clear from the evidence that the deceased was not only confined
in places , spaces or rooms against his will at the instance of the accused
person s, he (the deceased) was forcefully taken from one place to the other
by or at the instance of the accused persons . The deceased was forced to go
(eg to Diago’s room) even when he was visibly weak and physically unable to
stand on his own. That demonstrates that he was kept and always has been
in the control of the accused person s. In those circumst ances the deceased
did not exercise his freedom of movement.
[23] Kidnapping consists in unlawfully and intentionally depriving a person of his
freedom of moveme nt and/ or if such person is child his custodians of their
control over him . The crime of kidnapping is committed by depriving a person
of liberty of move ment .7 It is unimaginable that the deceased could
exercise his freedom of movement when his movements were physically
controlled and restrained by the accused persons. It could not conceivably
be suggested that the accused person s, when they were hand ling the
deceased , coincidentally intended him to exercise his freedom of
movement.8 The evidence before this court prima facie complies with
definition of kidnapping .
[24] During argument in this court no argument was specifically directed to this
count of kidnapping. General submissions were made, mainly focused and
directed to the count of murder. C ounsel for the accused persons did not
suggest during argument that the deceased was not entirely in the control of
the accused persons. I sa y this mindful of accused No 3 p lea explanation of
Alibi. I am of the opinion that there is prima facie case establi shing an offence
of kidnapping; therefore, the accused persons must be placed on their
defence in respect of this count or charge.
Count 2 - Assault with intent to do grievous bodily harm
[25] Assault consists in unlawfully and intentionally: (a) applying force to the
person of another directly or indirectly; or (b) threatening another with
immediate personal violence in circumstances which l ead the threatened
person to believe that the other intends and has power to carry out the threat.9
[26] Prima facie evidence exists that the accused persons were not only present at
the scene when the deceased was assaulted, they actually perpetrated the
crime of assault with intent to do grievous bodily harm. There is prima facie
evidence that accused persons applied force to the deceased.
[27] Not only open hands were used to perpetrate the crime of assault with intent
to do grievous bod ily harm, but also fists, booted feet, broom stick a nd iron
7 LAWSA Vol 6 Page 268, , Page 271 , Para 272 and 275
8 LAWSA Vol 6 Page 273 Para 276
9 LAWSA Vol 6 Page 248, Para 247
rod or pipe used to hang the towels were used. The assault and blows were
directed at the upper body of the deceased. The conduct of accused persons
prima facie complies with the definition of ass ault.
[28] In addition to the factual witness es, the state called the evidence of Dr
Kunyuza, Medical Practitioner who examined the deceased body. Multiple
injuries were fo und on the body of the deceased. Post-mortem report records
serious injuries that were found on the body of the deceased. No argument
was meaningfully advanced against the charge of assault with intent to do
grievous bodily harm. Most, if not all arrows were directed at the charge of
murder. I am not ob livious about accused No 3 plea statement . Multiple
tramline bruises are consistent with the use of broomstick, pipe or iron rod.
This charge has prima facie been established ; therefore, the accused persons
must be placed on their defence.
Count 3 - Murder
[29] Murder is the unlawful and intentional causing of death of another human
being. The essential elements of the crime are thus (a) the killing (b) of
another human being, which is ( c) unlawful and (d) intentional .10
[30] Before the assault was meted out to the deceased, the following are the facts
prima facie established:
The deceased was in his room and was able to do things on his own, and was
not dead. It is only when the deceased was in the control of the accused
persons that his physical strength depleted and became weak. He became
weak at the happenstance of the assau lt being severely meted out to him by
and at the instance of the accused persons. When the deceased was ta ken to
Diago’s room, he was weak and all accused persons were with him. Even
though the deceased was visibly weak, the accused persons continued to
assault hi m. They took turns to assault hi m with t he iron rod or pipe used to
10 LAWSA Vol 6 , Page 241 , Para 237
hang towels. Open hands, clenched fists, booted feet, broomstick, iron rod or
pipe used to hang the t owels were all used to assault the deceased.
[31] Clenched fists and booted fe et were c onceded to be consistent with blunt
trauma. The broomstick, pipe and iron rod are , too consistent with blunt
trauma. All of them are capable of causing the death as they are categorised
as blunt objects . Any of the above can cause person’s death. There is
accordingly prima facie evidence of murder against the accused persons. Dr
Kunyuza and the Post Mortem reveals that deceased death was caused by
blunt trauma to the head.
Conclusion
[32] This c ourt was invited to make credibility findings against the evidence of the
state wi tnesses. This invitation was mad e contrary to the concessions having
been made that at this stage credibility of state witnesses plays a limited role.
I am declining the invitation. I cannot reject the evidence of the state
witnesses unless I decide to find that their evidence is not creditworthy. That
will be premature. In the circumstances an application in terms of section 174
of CPA cannot succeed.
[33] I have no doubt in my mind that the evidence presented by the state calls for
an answer. Put differently, the state has established a prima facie case
against the accused persons. It is undoubtedly an evidence upon which this
court can convict.
Order
[34] In the result I make the following order:
[34.1 ] An application for a discharge in terms of Section 174 of CPA is
hereby refused.
________________________________
A.S ZONO
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the STATE : Adv Jones
Instructed by : National Prosecuting Authority
Bisho
Email:EJones@npa.gov.za
For Accused No 1and No 4 : Mr AA Pakade
Instructed b y : AA Pakade Attorneys
20 Currie Street
Quigney
East London
Email: admin@pakadeattorne ys.com
Tel:043 722 4007
Cell:073 900 6 205
For Accused No 2 and No 5 : Mr NZ Mtshabe
Instructed by : N.Z Mtshabe Inc
137 York Road
Mthatha
Ref: Mr NZ Mtshabe
Cell:082 2020 872
Email :ntsikanem@gmail.com
admnin@nzmtshabeinc.org.za
For Accused No 3 : Mr NS Nombambela
Instructed by : N.S Nombambela Inc
No 7 Beaufort Street
Mthatha
Ref NSN/tw/B -7978
Email:ns.nombambela.inc@gmail.com
Tel: 047 532 6542
Cell: 082 4717 371
Matter heard on : 7 March 2025
Date of delivery : 14 March 2025