IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
APPEAL CASE NO: AA03/2024
( l) REPORT ABLE: ~/NO
(2) OF INTEREST TO OTHER JUDGES:ftS /NO
(3) REVISED: ~/NO ~
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Date' Signatur
In the matter between:
ZAMBAGEORGEBRUTUSBVUMA APPELLANT
And
THE STATE RESPONDENT
JUDGMENT
2
NGOBENI J
[1] The appellant was convicted by the court a quo as per Kganyago J, in the Limpopo
Division of the High court, held at Polokwane on 3 counts which are constituted as
follows:
(i) One count of murder in terms of provisions of section 51 (2) of the Criminal
Law Amendment Act 105 of 1997 (Act 105 of 1997), in circumstances that are
found in Part 11 of Schedule 2 of the said Act,
(ii) Kidnapping ,
(iii) Attempt to defeat the administration of justice.
The appellant was sentenced as follows:
(i) Fifteen (15) years direct imprisonment for murder,
(ii) Five (5) years imprisonment for kidnapping ,
(iii) Twelve (12) months imprisonment for the attempt to defeat the administration
of justice.
The sentences in counts 2 and 3 were ordered to run concurrently with the sentence
in count 1. Leave to appeal to the Full Court of this Division on the convictions and
sentences on all counts was granted on petition by the Supreme Court of Appeal.
The appellant appeared with his two co-accused in the court a quo, and he
appeared as accused number two in the trial court.
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[2] The appellant's grounds of appeal against the decision of the court a quo is mainly
that the court erred in finding that the appellant acted in the furtherance of a
common purpose of killing the deceased (Crosby Xikombiso Ngwenyama) with his
co-accused . The appellant argues that the state failed to prove common purpose to
commit murder against him.
[3] The second ground of appeal is that the restriction of movement by the appellant on
the deceased was not unlawful because the appellant had requested the police to
open a charge of Malicious Damage to Property (MITP) and housebreaking against
the deceased, and therefore on the charge of kidnapping the state failed to prove its
case and the trial court erred in finding otherwise.
[4] The third ground of appeal is that the court a quo failed to consider that the meeting
that took place at Tarentaal was arranged by the mother of the appellant who even
gave the witnesses money to travel, not the appellant himself. The state did not
therefore prove the charge of attempted defeating the ends of justice against the
appellant.
[5] The sentence on the count of murder that was imposed on the appellant is
challenged on the basis that the court a quo erred in not finding that there were
compelling and substantial circumstances which warranted deviation from the
prescribed minimum sentence. The court a quo over-emphasized the prevalence of
the offence and the interest of society, overlooking the personal circumstances of
the appellant.
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[6] The summary of the evidence that led to the conviction of the appellant is that on 05
September 2018, the deceased in this matter broke the window panes of the home
of accused number two, being the appellant , on allegations that the mother of the
appellant owed him. The deceased ran from the scene, but he was later on found by
the first state witness, Sbusiso Fortune Mohlares and Stabo Ernest Ramodike who
brought him to the home of accused number 2 where he had broken the windows.
[7] They found accused number 1 (Naughty/Latty) and 3 (Boss) who then tied the
deceased and jointly assaulted him. Accused number 1 phoned accused number 2
(Zamba/Appellant) , who came to the scene with one Nhlamulo and another person
who did not play any part in the events of that night. The appellant and Nhlamulo
also joined in assaulting the deceased. During the assault the deceased lost
consciousness, and they would pour him with water for him to wake up or regain
consciousness. The police were called to the scene, and the deceased subsequently
died in hospital as a result of severe blunt force trauma to the head, intracranial
bleeding and severe brain edema and collapsed left lung.
[8] The appellant argues that because he only assaulted the deceased with an open
hand that wouldn't be fatal to an extent that he must be held liable for the death of
the deceased. When the appellant arrived at the scene the deceased was already
tied and it cannot therefore be said that he kidnapped the deceased . He was not
present when his mother told the state witnesses that they must not tell anybody
about what happened . I must however on the aspect of assault state from the outset
that even if that was the position that the appellant only slapped the deceased once,
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where common purpose is alleged there is no room for requiring proof of causation
on the part of the participants, all what the state has to prove is the intention to
participate in the act that is performed by the others. 1
[9] It is trite law that a court of appeal will not interfere with the trial court's decision
unless if it finds that the trial court misdirected itself as regards its findings or the law.
To succeed in an appeal, the appellant needs to convince this court on adequate
grounds that the trial court misdirected itself in accepting the evidence of the State
and rejecting his version as not being reasonably possibly true. There are well
established principles governing the hearing of appeals against findings of fact. In
the absence of demonstrable and material misdirection by the trial court, its findings
of fact are presumed to be correct and will only be disregarded if the recorded
evidence shows them to be clearly wrong2.
[1 O] This court, sitting as a court of appeal, must take into consideration the totality of the
evidence including the evidence led on behalf of the appellant , to determine what the
evidence of the state witnesses was, as understood within the totality of the
evidence and compare it with the factual findings made by the trial court in relation to
that evidence and decide as to whether the trial court considered all the evidence
before it, weighed it correctly and whether the trial court applied the law or applicable
legal principles correctly to the said facts in coming to its decision,
and lastly, determine whether the appellant was correctly convicted . In S v Shaik
1 S v Safatsa and Others 1988 (I) SA 868 (A), S v Williams en Ander 1970 (2) SA 654 (A), S v Kramer en Andere
1972 (3) SA 331 (A).
2 S v Monyane and Others 2008 (1) SACR 543 (SCA) at para 15.
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and Others3, it was clearly laid down that the act of one becomes the act of the other
if that act is done in pursuit of a common design.
[11] The test in criminal cases is well known. It was clearly set out in S v Van Aswegen4
where the following was stated:
"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 the evidence might be found to be false; 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."
[12] The following evidence delineates the role of the appellant in what led to the demise
of the deceased . It is important to quote directly from the transcribed court record so
that it can be clear as to what role did the appellant play, if any. On bundle 1 of 6,
paginated page 35, line 20, the first state witness said the following:
"Zamba was holding a Castle Light bottle, then he hit the deceased with that
Castle Light bottle on the back"
3 1983 (4) SA 57 (A).
4 200 I (2) SACR 97 (SCA) at para. 8.
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The evidence continues on paginated page 36 line 1 O"
"Was it a small bottle was it a ... was it a litre? ... 750 milliliter bottle. How did
he hit, did he throw it at ... throw it at the deceased or did he hit the deceased
holding on to the bottle ---He threw it at the deceased.
How many times? ---Once
A/right what happens from there? ---He started to kick him.
Court: Who ---Zamba's friend and Zamba.
Mr Mashiane: How did they hit him this time?
Court: Hit or kicking?
Mr Mashiane: Did they kick him or did the hit him? ---They kicked him while
he was lying on the ground.
Court: Where on the body ---On the stomach
Mr Mashiane: How many times are able to say they now kicked him? ---I did
not count, they kicked him for a long time.
What was Naughty doing at that stage? ---He was standing on the side.
Boss what was he doing? ---Boss was standing on the side".
[13] The involvement of the appellant is further shown on paginated page 37, line 10 on
Bundle 1 of 6 as follows:
"Mr Mashiane: Yes [indistinct]. .. ---They continued to kick the deceased.
Still on his stomach? ---And on the chest.
Yes. ---Then Zamba took a rock and started to hit the deceased with a rock
on the knee
How did he hit now the deceased with this rock, did he throw it at the
deceased did he hit the deceased holding on to it? ---He threw it at the
deceased ".
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Interpreter: I am trying to get clarity, the witness is indicating that the, the rock
was in the hand and he was hitting the deceased with the rock while holding
the ... while ... he was hitting the deceased with the rock while holding it on his
hand".
[14] The further evidence without quoting verbatim is that the deceased lost
consciousness three times. On the first two occasions when he lost consciousness ,
Naughty is the one who poured him with water and he regained consciousness , but
for the third time it is the appellant who poured him with water for him to regain
consciousness . When the deceased regained consciousness for the first time, it is
something that the appellant and his friend laughed about.
[15] When the witness was cross examined by Mr. van Tonder, he was clearly and
categorically taken through his evidence on the account of his evidence regarding
the role of each accused person in the court a quo, and where necessary I will quote
verbatim from the transcribed record, so that the context can be better understood.
He was also cross examined at length regarding the discrepancies in his evidence in
chief as compared to what he stated in the statement that he gave to the police. The
explanation of the witness with regard to that, was that he was afraid to say many
things, because he was told not to tell anyone.
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[16] There is a lot of case law on the aspect of contradictions, discrepancies and
omissions in a statement that is mainly made to the police, and in Johnson v Road
Accident Funds the following summary is quoted:
"the real test of truth does not lie in a comparison between what the witness is
alleged to have told someone else and what he now tells the Court. What a witness
is alleged to have told someone else leaves room for misstatements ,
misunderstandings and misconstructions . . . . Signing or otherwise confirming the
content of a previous statement does not remove the inherent deficiencies of the
hearsay nature of the evidence and all its other inherent faults. The best test of the
accuracy and truth of what a witness says lies in an independent assessment of his
actually spoken words. It lies in the Court's ability to observe and note any degree of
hesitancy or uncertainty which may or may not attend upon a concession by the
witness or his affirmation of a given fact. Ultimately this Court is the trier of facts of
the case and the credibility of a witness does not entirely depend on the score he
may achieve in testing inconsistencies between what he now says and what
someone else says he told them".
[17] When it was put to the witness, Mohlares by the legal representative of the appellant
that the appellant only slapped the deceased once with an open hand, the witness
denied that version, and that appears on paginated page number 101 of Bundle 1 of
6 as follows:
5 200 I (I) SA 307 (C) at 3 I OH -31 I E, S v Bruiners 1998 (2) SACR 432 (SE), S v Mafaladiso en and ere 2003 (I) SACR
583 (SCA) (30 August 2002).
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"Thereafter Zamba once slapped the deceased ---Can you repeat the
question again. Yes
Zamba slapped the deceased once ---No"
[18] In a quest to ascertain as to what caused the death of the deceased the state also
called a paramedic who came to the scene, as there is evidence that the deceased
fell from a stretcher as he was about to be loaded onto the ambulance. The
evidence of the paramedic with regard to that aspect is that the distance from which
the deceased jumped from the stretcher was estimated to be 30 cm after the
deceased apparently regained consciousness , as the witness Joseph Mthjembi
testified that when the deceased jumped they were still bending. He also said that
there were no objects such as stones or bricks where the deceased fell.
[19] He disputed that the deceased fell on the ground on an object or objects. When
cross examined on visibility or illumination the witness said that the source of light
was from the house and the police vehicle. His version that there was light from the
house is the same as the version of the first state witness about the lighting at the
second scene. The first defence witness, Stabo Ernest Ramodike also testified that
they could see well because of the lights from that home.
[20] The first defence witness also confirmed that the appellant kicked the deceased. In
fact, the first defence witness testified that the appellant and Naughty kicked the
deceased until he was unable to do anything as he was no longer moving. On
paginated page 148, line 20 of Bundle 2 of 6, the first defence witness stated that all
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of them when they were busy assaulting the deceased they were also assaulting him
on the head. He clarified that by all of them he was referring to Zamba (the
appellant), Naughty and the boy who came with Zamba.
[21] On paginated page 158 to 159, line 20, when the first defence witness was cross
examined, he answered as follows:
"Who did that who picked him up and dropped him? ---That boy who came
with Zamba is the one who picked him up, and while he was in the air Zamba
was kicking him at the time he was in the air, and he was kicking him on his
stomach and on the chest.
Mr Mashiane: ...
Did that happen once? ---It did not happen once.
Yes, tell us how many times can you recall? ---It happened many times that
they would pick him up and throw him a little bit far.
And then Zamba would continue with kicking him? ---Yes"
[22] The first defence witness also said that the appellant told them that if the police
approach them they must tell them that they do not know anything about the incident
that transpired, being the incident where they assaulted the deceased. The appellant
also told them that if they were arrested he would appoint a legal representative for
them and would also pay bail for them.
[23] In response to all these allegations against him the appellant says that he only
assaulted the deceased with an open hand. The evidence by the one state witness
and the first defence witness is that the appellant poured water on the deceased .
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The appellant on the other hand says that Nhlamulo is the one who went to fetch the
water with a bucket to pour on the deceased when he realized that the deceased
was no longer moving. His further version is that when the police arrived Nhlamulo
told them that the deceased was assaulted by members of the community, and he
did not correct that as he was afraid of Nhlamulo.
[24] The appellant confirmed that his mother called the first state witness (Sbusiso) and
the first defence witness (Ramodike) to Tarentaal because she wanted to know as to
what happened with regard to the person who broke the windows. The evidence of
the two witnesses mentioned is that the appellant was also there. The appellant also
confirms that he was there because that is where they keep the meat but denies any
involvement. There was actually no need for the witnesses to tell the mother of the
appellant as to what transpired , because common sense must have dictated that,
that was the course for the police to follow. The only probable version is that they
wanted to sway the witnesses from telling what they knew or saw. The evidence of
the fifth defence witness (Mathebula) was not long because after the deceased fell
down he went to the toilet, and he was there for about 25 minutes, and he did not
witness most of the things which the other witnesses testified about.
[25] The state in this case relied on provisions of section 51 (1) of Act 105 of 1997 on the
basis that the appellant and his co-accused acted in the furtherance of a common
purpose, and the court a quo in evaluating the evidence before it rightly relied and
applied the principles on the doctrine of common purpose as laid down in S v
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Mgedezi6
• The Constitutional Court in Thebus and Another v the State7 approved
the principles on the doctrine of common purpose as laid down in Mgedezi, supra.
The trial court did not just mention the principles on common purpose, but applied
each principle to the facts of the case.
[26] In Thebus, supra, the court declared as constitutional the common law principle
which requires mere active association instead of causation as a basis of liability in
collaborative criminal enterprises. The Constitutional Court even quoted from the
book by Burchell and Milton at 393 where common purpose is defined in the
following terms:
"Where two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise, each will be responsible for specific criminal conduct
committed by one of their number which falls within their common design.
Liability arises from their common purpose to commit the crime".
[27) The argument by the appellant is that his attribution to the whole assault on the
deceased was a slap with an open hand, and therefore not the one who delivered
the fatal blow, which from the evidence is not correct, and the trial court correctly
rejected that version by the appellant based on the evidence that was presented
before it. The appellant actively associated in the assault of the deceased , and
6 1991(1) SACR 150 (T), where there is no proof of a previous agreement between the perpetrators , the
following requirements must be met for one to be found guilty based on common purpose:
(i) the perpetrator must have been present at the scene of the crime and not as a passive spectator ,
(ii) the perpetrator must have been aware of the unlawful act on the victim,
(iii) the perpetrator must have intended to make common cause with the others committing the unlawful act,
(iv) he/she must have performed an act of association with the conduct of the others,
(v) the perpetrator must have had the intention to commit the unlawful act or to contribute to that act.
7 2003 (6) SA 505 (CC).
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liability was rightly attributed to him because of the collaborative criminal enterprise
he engaged with, with the other co-perpetrators on the second scene (scene).
[28] The appellant arrived at the scene and found that the deceased was tied. He never
ordered that the deceased · be untied. When the deceased gained consciousness
after he was poured with water for the first time, he laughed with his friend about that
aspect. It is actually clear from the evidence that was presented that serious assault
on the deceased started after the appellant and his friend Nhlamulo arrived at the
scene. The deceased never lost consciousness before they arrived. He however lost
consciousness three times after their arrival, and on the last occasion the appellant
is the one who resuscitated the deceased. The appellant and his co-perpetrators
could by that stage already see that their actions are capable of causing death to the
deceased8, hence they kept on resuscitating him by pouring him with water. The
appellant never disassociated himself with the actions of the other people who
assaulted the deceased.
[29] One of the undisputed advantages of the trial court is that it has the advantage of
observing the candour of the witnesses such as how soon do they answer
questions , any hesitation , openness , frankness , directness, lack of restraint,
straightforwardness , plain-spokenness and many other attributes which the appeal
court does not have advantage of. The findings of the court a quo on the convictions
cannot therefore be faulted.
8 As in Jacobs and Others v S 2019 (I) SACR 623 (CC), where the assault of the deceased on the second scene was
found to have been a continuation of the assault on the first scene even though the appellants were not there on the first
scene where the deceased was assaulted by community members. In the case at hand the appellant continued with what
was started on the first scene where he was not there.
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[30] On sentence, the court a quo convicted the accused persons, including the appellant
on murder by do/us eventua/is in terms of section 51 (2) of the Criminal Law
Amendment Act 105 of 1997. That is contradictory to the fact that the court a quo
also found that they acted in the furtherance of a common purpose. The court a quo
misdirected itself and mixed issues on the circumstances upon which the accused
were convicted , and that led to the misdirection on sentence . As the court a quo
found that they acted in the furtherance of a common purpose, then the sentence
should have been life imprisonment in terms of section 51(1) of Act 105 of 1997.
[31] This court, sitting as a court of appeal is empowered by section 322 (6) of the
Criminal Procedure Act 51 of 1977 to impose a sentence that is different from the
one already imposed, including increasing the sentence. The state on the aspect of
sentence said that it does not appeal the sentence as it is satisfied with the sentence
that the court a quo has imposed. This court will therefore not interfere with the
sentence that was imposed by the court a quo, as the parties were not given an
opportunity to fully address this court on the possibility of the alteration of the
sentence imposed.
[32] In the result the following order is made:
(i) The appeal against the convictions and sentences is dismissed .
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Judge of the High Court
I agree
Judge of the High Court
I agree
A. Van Wyk
Acting Judge of the High Court
I
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Appearances
Counsel for the Appellant
Instructed by
Counsel for the Respondent
Instructed by
Date of the hearing
Date of delivery 17
Mr. C.R. Van Tonder
Van Tonder Attorneys
Advocate L. Mashiane
Office of the Director of Public
Prosecutions , Polokwane
23 May 2025
20 June 2025
17