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[2025] ZAKZPHC 80
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Magubane and Others v S (AR6/2023) [2025] ZAKZPHC 80 (5 September 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR6/2023
In the matter between:
XABISO
MAGUBANE
First
Appellant
SBULELO
NDUMO
Second
Appellant
SABELO
MNGOMEZULU
and
Third
Appellant
THE
STATE
Respondent
ORDER
On
appeal from:
Estcourt Regional Court (sitting as a court of first
instance):
1.
The appeal is upheld
2.
The conviction and sentence of the appellants are set aside.
JUDGMENT
Chithi J (Seegobin J,
concurring)
Introduction
[1]
The three appellants in this matter, together with their erstwhile
co-accused, stood
charged with one count of murder before the
Regional Court in Estcourt. The charge against the erstwhile accused
4 was withdrawn
before the commencement of the trial, while the
erstwhile accused 1 was acquitted of the charge. During the trial the
first appellant
was accused 2, the second appellant was accused 3 and
the third appellant was accused 5.
[2]
It was alleged that on or about 10 June 2020 and at or near
KwaBhekuzulu in the Regional
Division of KwaZulu-Natal, the
appellants and their co-accused unlawfully and intentionally killed
Nsuku Mbongwe, a male person.
This charge was read with the
provisions of section 51 (2) and Part Il of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
('the CLAA'). The respondent
also alleged that in committing the offence the appellants and their
co-accused acted in furtherance
of a common purpose.
[3]
On 6 July 2022, following upon the trial of the matter the appellants
were found guilty
of murder in terms of section 51 (2) of the CLAA.
On 12 July 2022 the appellants were each sentenced to 15 years
imprisonment and
for the purposes of
section 103
of the
Firearms
Control Act 60 of 2000
the appellants were automatically deemed unfit
to possess firearms. The appellants now appeal to this court both
against their
conviction and sentence having been granted leave to
appeal by the trial court on 28 November 2022.
Grounds of appeal
[4]
The appellants did not file any notice of appeal. However, the
grounds upon which the appellants seek to assail their conviction
and
sentence as distilled by this court from their respective
applications for leave to appeal are as set out below. (a) In
relation
to their conviction the appellants contend that the learned
magistrate erred:
(i)in finding that the
appellants, in committing the offence, acted with a common purpose.
(ii)
in accepting the evidence of Ms Nombuso Cynthia Mbongwa ('the
complainant')
who was a single witness was clear and satisfactory in
all material respects despite the contradictions and inconsistencies
in
her evidence.
(iii)
in finding that the contradictions in the complainant's evidence were
not of a material
nature so as to render her evidence not worthy of
any credence.
(iv)
in accepting the version of the complainant which was not
corroborated by any independent
witness.
(v)
in finding that there was no reason for the complainant to falsely
implicate
the appellants when the appellants did not have to
speculate as to why the complainant falsely implicated them.
(b)
In relation to sentence the appellants contend that the
learned
magistrate erred: (i)
in imposing a sentence of 15 years imprisonment as
such sentence was
grossly excessive and disturbingly inappropriate so as to induce a
sense of shock.
(ii)
in failing to sufficiently consider their respective personal
circumstances,
including the fact that they were all first offenders.
In relation to the second appellant the learned magistrate erred in
failing
to sufficiently consider that the second appellant had two
minor children.
(iii)
in finding that there were no substantial and compelling
circumstances which justified
the court to depart from imposing the
prescribed minimum sentence.
(iv)
in over-emphasising the seriousness of the offence, and without
paying sufficient
heed to the interest of society and the purpose of
punishment, namely deterrence, prevention, reformation and
retribution.
(c)
In addition, the third appellant contended that
the learned
magistrate:
(i) committed a
procedural irregularity by failing to specifically explain the
provisions of s
93ter
of the Magistrates' Court Act 32 of 1944
('the MCA') to the third appellant.
(ii) descended into the
arena on several occasions and this created the impression that she
was biased in favour of the respondent.
Factual background
[5]
The facts giving rise to the appellants' conviction and ultimate
sentence, which are the subject of this appeal, are set out
as
follows. During the night of 9 August 2020, a cellular phone was
stolen from the Mngomezulu household and the deceased was the
person
who was suspected of having stolen it. On 10 June 2020, at about
9h00, a group of people went to the deceased's home. The
deceased was
not home, however his mother and his sister, who is the complainant
herein, were. The complainant was the sole witness
to testify on
behalf of the respondent in this case. The complainant's evidence
will be considered against that of the appellants,
which will be the
focus of this judgment.
The evidence
[6]
The complainant testified that upon the arrival of this group of
persons they asked
for the whereabouts of the deceased and was told
that the deceased was presently not at home. Immediately thereafter
her mother
asked the group as to the reason for looking for the
deceased. In response, the group alleged that the deceased had stolen
a cellular
phone from the Mngomezulu household. Upon the group making
this allegation, her mother permitted them to search for the cellular
phone in the deceased's room. The group did not find the cellular
phone in the deceased's room. The group then left her home.
[7]
After a short while the complainant's attention was caught by a
noise, which emanated
from the direction of the pathway in the
vicinity of their neighbour's house. Amid this noise was a voice of
someone who was crying.
At that stage her mother left the house and
went towards the direction where the noise emanated from. The
complainant then followed
her mother. Upon their arrival at the scene
on the pathway, they found a group of people assaulting the deceased.
The deceased
was tied with a rope, with his hands tied up behind him
and around his neck. The group forced the deceased to walk with it
along
the pathway while he was naked. The complainant described that
what the group was doing was "driving the deceased". As
it
was driving the deceased the group continuously assaulted him along
the way. The group did not want anyone from the Mbongwa
homestead to
come closer. The complainant watched the events unfold from about 4
metres away.
[8]
In relation to the presence and participation of the appellants and
their erstwhile
co-accused, she testified that although the erstwhile
accused 1 was present at the scene, she did not see what he was
carrying.
The first appellant was carrying a spear. The third
appellant was carrying a stick with a steel bolt. The third appellant
was carrying
a stick.
[9]
She stated that when this group crossed the main road, she, however,
managed to get
closer to the deceased. She enquired from him if he
knew anything about the cellular phone. At that stage the deceased
told her
that he had sold the cellular phone to a local Pakistani
shopkeeper at the Mabaso homestead. The Pakistani shop was around 100
metres away from the scene. The complainant then left the scene in
order to retrieve the cellular phone from the Pakistani shopkeeper.
However, when the Pakistani shopkeeper saw the complainant
approaching, he evaded her by running into the mealie fields.
[10]
The complainant then went back to the scene and found the group
assaulting the deceased. She then decided
to go back to the Pakistani
shopkeeper, this time in company of one Thabani. On this occasion the
Pakistani shopkeeper released
the cellular phone to the complainant.
The complainant then went back to the scene and handed back the
cellular phone to Ms Pinky
Mbongwa who had claimed the cellular phone
to be hers. After the cellular phone was handed over to the owner,
the group of people
started disbursing. However, after the
complainant handed the cellular phone to the owner, the first
appellant stabbed the deceased
with a spear on his head. At that
stage, everybody left including the first appellant.
[11]
The complainant testified that she, together with her brother, who
was a distant relative, untied the
deceased and put him in her
sister's motor vehicle and transported him to a local clinic. From
there the deceased was conveyed
by an ambulance to the Estcourt
Provincial Hospital. Upon arrival at the hospital, the deceased was
attended to by the doctors
who were already waiting for him. The
complainant was then advised to go home and told that if the hospital
wanted anything from
her, she would be contacted. At about 22h00 she
received a call from the hospital and was told that her brother had
passed away.
In reply to a question from the court, the complainant
testified that when the first appellant stabbed the deceased all the
people
were still at the scene.
[12]
During cross-examination the complainant testified that it was a
group of people of approximately 50
people who had come looking for
her brother. The group that was at the scene where the deceased was
assaulted was a lot bigger
than the group that came to her residence
to look for the deceased, as it included spectators. The complainant
testified that she
would not be able to describe how her brother was
assaulted. She stated that the reason why she was not able to
describe how her
brother was assaulted was because she was not paying
full attention as she was also moving up and down between the scene
of the
crime and the Pakistani shopkeeper and trying to call the
police. She testified that she could not be able to see if there were
any other people apart from the appellants and their erstwhile
co-accused who were present at the scene who also assaulted the
deceased because there were a lot of people.
[13]
She stated that what enabled her to identify who the appellants and
their erstwhile co-accused were,
was because they were the people
whom she knew. She testified that she did not see the erstwhile
accused 1 assault the deceased
at any stage, but the erstwhile
accused 1 was present at the scene whilst the deceased was being
assaulted. In relation to the
first appellant, she testified that
besides seeing him stab the deceased with a spear, she did not see
him participating in the
assault. In relation to the second
appellant, she testified that she saw him assaulting the deceased
when the deceased was on the
road. The second appellant assaulted the
deceased on his body. However, in reply to the court's question the
complaint testified
that she did not notice exactly on which part of
his body did the second appellant assault the deceased.
[14]
With regards to the third appellant, the complainant stated that she
was unable to say where exactly
on his body was the deceased
assaulted by the third appellant. In addition, she stated that she
did not see the third appellant
assaulting the deceased on his head.
The complainant was also unable to say whether the appellants and
their erstwhile co-accused
took turns to assault the deceased or
whether they were assaulting the deceased randomly. The complainant
agreed that it was possible
that she was unable to say with certainty
exactly what had happened and what she had observed was because the
scene was chaotic;
and the whole incident happened so fast.
[15]
The complainant testified that when she came back from the Pakistani
shopkeeper there were people who
were still assaulting the deceased,
but she could not specify who was assaulting him at that stage but,
he was still being assaulted.
The complainant stated that on her way
back from the Pakistani shopkeeper on the second occasion, she picked
up a bush knife on
the ground. This bush knife was taken from her by
Sphelele Majozi. However, she did not see anyone using the bush knife
to assault
the deceased. The complainant confirmed that she was not
any at stage during the assault of the deceased ever assaulted with
the
bush knife.
[16]
When it was put to the complainant whether the statement she made to
the police was read back to her,
she testified that she did not
recall exactly if it was read back to her. She stated that the reason
she did not recall was because
she was normally forgetful. However,
when it was put to the complainant that she could not dispute that
the statement was read
back to her, she agreed with this proposition.
She further agreed that she was satisfied with the contents of the
statement which
she thereafter signed. Moreover, she confirmed that
before the case started the prosecutor read the statement to her and
that she
was still satisfied with the contents of the statement.
[17]
The complainant was asked whether she informed the police that she
and her mother had been asked by
the group that was looking for the
deceased as to what he was wearing. She testified that she could not
remember, and that she
had difficulty remembering details as she
suffered from epilepsy. When the complainant was confronted about the
fact that she said
in her statement that she was assaulted with a
bush knife by Sphelele Majozi, she denied ever having said this to
the police. Moreover,
when the complainant was confronted about
having said in her statement that the first appellant stabbed the
deceased with a spear
in his head upon reaching the main road, before
she went to retrieve for the cellular phone from the Pakistani
shopkeeper, she
denied having said that. She persisted that the first
appellant stabbed the deceased after she handed over the cellular
phone to
its owner.
[18]
When the complainant was confronted about her failure to mention in
her evidence that Thabo Zuma was
also one of the persons who
assaulted the deceased, she stated that it was because she was never
asked about it. She stated that
when the deceased was being
assaulted, there was a big commotion. This concluded the evidence of
the respondent.
[19]
The appellants and their co-accused testified in the proceedings. The
erstwhile accused 1 and first
appellant admitted that that they were
present at the scene, but denied having participated in the attack of
the deceased or having
been in possession of the weapons, which the
complainant referred to. The second and third appellants, on the
other hand, denied
being at the scene whilst where the deceased was
assaulted. They testified that they were only present at the
deceased's home where
they had gone searching for the cellular phone.
They thereafter went in search of the deceased at Estcourt. After
they had located
the deceased, they brought him to KwaBhekuzulu and
left him with other people by the tap that was in the near the third
appellant's
homestead.
The
issues
[20]
The following are the issues which this Honourable Court must
determine: (a) whether the provisions
of s
93ter
of the MCA
were explained to the third appellant;
(b)
whether the respondent proved the guilt of the appellants beyond
reasonable
doubt; and,
(c)
whether the appellants in committing the offence acted with a common
purpose.
The party's
submissions
[21]
Mr
Mthembu
, on behalf of the first and second appellants,
argued that the complainant's evidence was not credible. The
complainant was not
certain about many of the important aspects of
the incident. She did not know how many times, and where on his body,
the deceased
was assaulted by the appellants. The complainant
contradicted the statement she made to the police as to when the
deceased was
allegedly stabbed by the first appellant. Given that the
scene was chaotic with more than 50 people being present, including
spectators,
the complainant conceded that she could not say with
certainty whether the appellants in assaulting the deceased, took
turns or
assaulted him randomly.
[22]
The complainant conceded that she was forgetful, as she suffered from
epilepsy. Not only was the complainant
forced, in light of the
circumstance to leave the scene on two occasions, but there was a
time when she had to call the police.
[23]
Mr
Mthembu
therefore submitted that the complainant's
evidence, as a single witness, was not clear and satisfactory in
every material respect.
Consequently, the appellants should have been
acquitted. Insofar as the issue of common purpose, Mr
Mthembu
submitted that the complainant's evidence did not prove the
appellants and erstwhile accused had acted in common purpose.
[24]
Mr
Geldenhuys
, for the third appellant, aligned himself with
Mr Mthembu's submissions. However, in addition, Mr
Geldenhuys
submitted that there was no real corroboration for evidence of the
complainant. He argued that the respondent failed to call Ms
Pinky
Mbongwa, who was available, and could have corroborated the
complainant's version. The postmortem report did not corroborate
the
complainant's version. There was no evidence, which was led by the
respondent, that the injuries which the deceased sustained
were
consistent with the injuries which could have been inflicted by the
weapons allegedly used by the appellants to assault the
deceased. In
these circumstances, Mr
Geldenhuys
went on to argue, that it
was essential for the doctor who conducted the post-mortem
examination on the body of the deceased to
have been called. He
argued that this evidence would have lent some credibility to the
complainant's version. He submitted that
this was a serious murder
case which was hastily handled by the respondent.
[25]
In relation to the issue of common purpose, Mr
Geldenhuys
,
argued that by the complainant's own admission, people were coming
and going at the scene. The complainant too had to leave and
come
back to the scene on two occasions. In addition, the complainant
herself had testified that when she handed over the cellular
phone to
the owner, the group had dispersed. From this set of circumstances,
it could not be inferred that the appellants acted
with a common
purpose
[26]
Concerning
the question of whether the provisions of s
93ter
were
explained to the third appellant, Mr
Geldenhuys
conceded that
this was not his strongest argument and did not persist with it.
[27]
Mr
Khanyile
, on behalf of the respondent, argued that while
the complainant's evidence was not without blemish the appellants
were however,
correctly convicted. However, when this court pointed
the numerous discrepancies which were apparent on the complainant's
evidence,
Mr Khanyile readily conceded that he could not take the
matter any further.
The provisions of s
93ter
[28]
In dealing with the issues which this court must determine it is
convenient to start off with the issue of whether the provisions
of s
93ter
of the MCA were explained to the third appellant. Before
its amendment by the Judicial Matters Amendment Act 15 of 2023, which
came into effect on 3 April 2024, s
93ter
read as follows:
'(1)
The judicial officer presiding at any trial may, if he deems it
expedient for the administration of justice— (a) before
any
evidence has been led; or
(b)
in considering a community-based punishment in respect of any person
who has been convicted of any offence, summon to his assistance
any
one or two persons who, in his opinion, may be of assistance at the
trial of the case or in the determination of a proper sentence,
as
the case may be, to sit with him as assessor or assessors: Provided
that if an accused is standing trial in the court of a regional
division on a charge of murder, whether together with other charges
or accused or not, the judicial officer shall at that trial
be
assisted by two assessors unless such an accused requests that the
trial be proceeded with without assessors whereupon the judicial
officer may in his discretion summon one or two assessors to assist
him.'
[29]
In
Chala
and Others v Director of Public Prosecutions, KwaZulu-Natal and
Another
[1]
it
was held that:
'it
should always appear from the record of proceedings in cases where s
93ter
is required to be invoked, that a proper explanation is
given by the magistrate to accused persons of the choice they have in
the
appointment of assessors, together with a brief exposition of the
import of that choice and as to what is required of them. The
record
should also reflect, after having given such explanation and
requesting such response from accused persons, in cases where
they
elect not to have assessors, that the magistrate nevertheless still
considered whether such course was advisable in the particular
case
before him or her. All of this should appear on the record.'
[30]
This
section, which is in peremptory terms, requires of a regional
magistrate before which an accused is charged with murder to
be
assisted by two assessors at the trial, unless the accused requests
that the trial proceeds without assessors. Only in that
instance
where the judicial officer becomes entitled to exercise his or her
discretion whether to summon one or two assessors to
assist him or
her.
[2]
[31]
The record
in this case shows that not only were the provisions of s
93ter
explained
to the appellants on 3 March 2021 but also, on 3 May 2022 after the
third appellant was joined as accused number 5 in
the proceedings on
28 June 2021.
[3]
[32]
The concession by Mr
Geldenhuys
no longer to persist to argue
that the trial court failed to explain the provisions of s
93ter
was therefore well made. He was correct not to pursue this point
any further during his argument as his contention that the trial
court failed to explain the provisions of s 93ter to the third
appellant was not borne by the record.
Whether
the respondent proved the guilt of the appellants beyond reasonable
doubt
[33]
Concerning the question whether the respondent proved the guilt of
the appellants beyond reasonable
doubt, it is trite that where the
'trial
judge does not misdirect himself on the facts or the law in relation
to the application of a cautionary rule, but, instead,
demonstrably
subjects the evidence to careful scrutiny, a court of appeal will not
readily depart from his conclusions. '
[4]
[34]
It is trite that the powers of a court of appeal to interfere with
the findings of fact of a
trial court are limited:
'In
the absence of any misdirection the trial court's conclusion,
including its acceptance of a witness' evidence is presumed to
be
correct. '
[5]
[35]
It is common cause that the complainant was a single witness. The
trial court held that although
the complainant was a single witness,
it was satisfied that she gave her evidence in a clear and concise
manner despite the contradictions
and omissions in her evidence. It
was satisfied that the truth had been told. It is these findings
which the appellants attack.
[36]
As a court
of appeal, 'this court must determine' as regards to the conviction,
what the evidence of the State entailed,
as
understood within the totality of the evidence led, including
evidence led on the part of the appellant, and compare it to the
factual findings made by the trial court in relation to that
evidence, as to whether the trial court considered all the evidence
before it, weighed it correctly and then determine (a) whether the
trial court applied the law or applicable
[6]
legal
principles correctly to the said facts in coming to its decision, and
(b) whether the appellant was correctly convicted. '
[37]
In doing
so, an appropriate point of departure are the provisions of
section
208
of the
Criminal Procedure Act 51 of 1977
, which provide that an
accused person may be convicted on the evidence of a single witness.
[7]
[38]
In order
for the court to convict on the evidence of a single witness it must
be clear and satisfactory in all material respects.
[8]
It is
equally trite that 'evidence of a single witness does not necessarily
need to be free of all conceivable criticism' but the
requirement is
that it should be 'substantially satisfactory in relation to the
material aspects or be corroborated' .
[9]
[39]
The trial
court in dealing with a cautionary rule simply concluded that the
complainant gave her evidence in a clear and concise
manner despite
the contradictions and omissions in her evidence. It therefore found
it was satisfied that the truth had been told.
In evaluating the
evidence, the 'trial court is required to weigh up all the evidence
which comprise all the elements which point
towards the guilt of the
accused against all those elements which are indicative of his
innocence'.
[10]
The
conclusion reached must account for all the evidence.
[40]
In this case it does not appear that the trial court sufficiently
considered that the complainant's
evidence was riddled with
contradictions of a material nature. Initially during her evidence in
chief, the complainant was adamant
that the erstwhile accused 1 was
not only present at the scene but also assaulted the deceased. During
the trial court's questioning,
she conceded that she did not see the
erstwhile accused 1 assaulting the deceased. When she was pressed
under cross-examination,
whether it was possible for her not have
seen what happened clearly, due to chaotic nature of the scene, and
the number of people
that were present, the complainant admitted that
this was possible. During her evidence in chief, the complainant was
adamant that
the first appellant stabbed the deceased after she had
handed the cellular phone to the owner. However, when she was
confronted
about the fact that she had stated in her statement to the
police that the deceased was stabbed before she went to recover the
cellular phone, she was unable to proffer any cogent explanation
except blame this discrepancy on the police. It is well to remember
that at the time when the complainant made the statement, the events
were still fresh in her mind as opposed to when she testified,
which
was almost two years later.
[41]
While the complainant had denied ever having been assaulted with the
bush knife at the scene when her
attention was directed to her
statement where she alleged that she was assaulted by Sphelele Majozi
with a bush knife, she distanced
herself to these allegations.
Moreover, when the complainant was confronted about her failure to
mention that Thabo Zuma also assaulted
the deceased with a stick, she
again, shifted the blame to the prosecutor, alleging that she was
never asked about it. Above and
beyond these contradictions, the
complainant admitted that she was forgetful due to being epileptic.
It also goes without saying
that when the complainant left the scene
on two occasions, she would not have been able to see whether the
deceased was assaulted,
and if so, who assaulted him, what was used
to assault him, where on his body was he assaulted and what was the
extent of the injuries
he sustained from such assault. As if that was
not enough, the complainant admitted that she was not able to see
properly because
she was busy phoning the police. In fact, during her
evidence in chief the complainant was adamant that all the appellants
and
their erstwhile coaccused assaulted the deceased. She stated that
what enabled her to notice the appellants and their erstwhile
co-accused was because they were the people that were known to her.
In saying this the complainant singled out the appellants simply
because she knew them. It would have been easy for her to say that
there were also other people who assaulted the deceased who
were
unknown to her. The complainant did not say whether the appellants
continuously assaulted the deceased from the time she first
came to
the scene to the time she handed over the cell phone to its owner.
[42]
In addition, sight should not be lost of the fact that the
complainant was not an unbiased witness.
The deceased was her
brother. Moreover, this was a moving scene where there were more than
50 people who were coming and going.
In my view, the complainant was
not a satisfactory witness whose evidence a court could safely rely
on to convict. In all these
circumstances, it is difficult to
understand how the trial court was in a position to conclude that the
evidence of the complainant
was clear and satisfactory.
[43]
The complainant's evidence clearly yearned for some corroboration.
Despite the respondent having indicated
during the pre-trial
conference that it intended to call three witnesses, the respondent
failed to call these witnesses. This was
a serious case where the
deceased suffered injuries at the hands of a mob which was determined
to meet punishment upon him, having
been suspected of stealing a
cellular phone. The deceased did not deserve to die. All that was
required was for him to be subjected
to the due process of the law
after he was caught, more particularly in view of the cellular phone
having been recovered. This
court sympathises with the family of the
deceased and the way the deceased came to meet his death. However,
this court is constrained
by the evidence. Where there is no credible
evidence upon which the conviction was founded, this court is bound
to acquit. This
court agrees with Mr
Geldenhuys
that this case
was prosecuted hastily, not to mention the fact that it was not
properly investigated. I say so because some of the
people whose
names appeared on the complainant's statement were never even
charged. Perhaps had the evidence of Dr Neethianathan
Naidu, who
conducted a postmortem examination on the body of the deceased, been
led, it could have lent some corroboration to the
complainant's
evidence.
[44]
Considering the evidence on record as a whole, this court is not
satisfied that the guilt of the appellants
was proved beyond
reasonable doubt.
[45]
As far as the question of whether the appellants acted with common
purpose in committing the offence,
if one considers the fact that a
group of people firstly went to the deceased's home for the recovery
of the cellular phone, it
would be inconceivable that they had formed
a common purpose to kill the deceased. In any event, had the
respondent believed that
the appellants in committing this offence
acted in furtherance of a common purpose it would not have charged
the appellants with
murder read with
s 51
(2) and
Part Il
of Schedule
2 of CLAA, instead, the respondent would have charged the appellants
with murder read with
s 51
(1) and
Part I
of Schedule Il of CLAA.
[46]
In view of the order which this court proposes, it is unnecessary for
this court to decide the question
whether the trial court's
persistent interventions during the course of the trial by putting
questions to the witness, which clearly
favoured the respondent's
case, rendered the trial unfair.
[47]
In the result, I make the following order:
1. The appeal
is upheld.
2. The
conviction and sentence of the appellants are set aside.
Chithi J
I agree.
Seegobin,
J
Date of hearing
30
May 2025
Date of judgment
05 September 2025
APPEARANCES
For the
1
st
and 2
nd
Appellants
Mr S.
Mthembu
Instructed
by
LEGAL
AID SOUTH AFRICA
Pietermaritzburg
Local Office
187 Hoosen Haffejee
Street
PIETERMARITZBURG
For the
3
rd
Appellant
Mr
Geldenhuys
Instructed
by
Not
provided
For
Respondent
Mr A.
Khanyile
Instructed
by:
DEPUTY
DIRECTOR OF
PUBLIC
PROSECUTIONS
286
Pietermaritz Street
PIETERMARITZBURG
Tel:
033 392 8700
[1]
Chala
and Others v Director of Public Prosecutions, KwaZulu-Natal and
Another
2015 (2) SACR 238
(KZP) para 28
[2]
S v
Gayiya
[2016] ZASCA 65
;
2016 (2) SACR 165
(SCA) para 8;
Director
of Public Prosecutions, KwaZulu-Natal v Pillay
[2023] ZASCA 105
;
2023 (2) SACR 254
(SCA) para 30.
[3]
Record, volume 1 at pages 6 and 12. Record, volume 1 at page 37:
lines 4 -9. Record, volume 1 at page 66: lines 17 - 23.
[4]
S v
Leve
2011 (1) SACR 87
(ECG), referred to in
S
v Prinsloo and Others
[2015] ZASCA 207
;
2016 (2) SACR 25
(SCA) para 183.
[5]
S v
Francis
1991 (1) SACR 198
(A) at 198 -199 and 204d, where the court referred
to
R v
Dhlumayo and Another
1948 (2) SA 677
(A) at 705. see also
S
v Hadebe and Others
1997
(2) SACR 641
(SCA) at 645e-f, and
Masango
v S
[2024]
ZAGPPHC 64 para 3.
[6]
Bulelani
v S
[2024]
ZAGPPHC 50 para 3.
[7]
Baisley
v S
[2024] ZAECMKHC 37 para 5.
[8]
R v
Mokoena
1932
OPD 79
at 80:
R
v Mokoena
1956 (3) SA 81
(A) at 85;
S
v Webber
1971 (3) SA 754
(A) at 758;
S
v Sauls and Others
1981 (3) SA 172
(A) at 179H-180G.
[9]
Rugnanan
v S
[2020]
ZASCA 166
para 23.
[10]
S v
Chabalala
2003 (1) SACR 134
(SCA) para 15. see also
S
v Trainor
2003 (1) SACR 35
(SCA) para 9.