IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION, BHISHO]
CASE NO.: CC09/2023
In the matter between: -
THE STATE
and
MLULEKI XULU ACCUSED 1
DUMISANI MPOFANA ACCUSED 3
BANTU MARALI ACCUSED 4
LINDI MBINYASHE ACCUSED 5
UNATHI KAKALALA ACCUSED 6
MFUNISELI MBINYASHE ACCUSED 7
NOMBULELO KITISE BAKANI ACCUSED 8
ZWELANDILE BOY-BOY KITISE ACCUSED 9
YANGINKOSI SOLANI ACCUSED 10
NKOSINATHI DYANTYI ACCUSED 11
LUNGISA MTYANA ACCUSED 12
ZANDISILE KITISE ACCUSED 13
NOMBUZO MBINYASHE ACCUSED 14
MVELISI XULU ACCUSED 15
THOBANI VENA ACCUSED 16
JUDGMENT ON MERITS
NORMAN J:
[1] The State arra igned sixteen (16) accused persons: Mr Mluleki Xulu
(Accused No.1), Mr Neliso Nkohla (Accused no.2), Mr Dumisani Mpofana
(Accused No, 3), Mr Bantu Marali (Accused No. 4) ,Mr Lindi Mbingashe
(Accused No.5) , Mr Unathi Kakalala (Accused No. 6), Mr Mfuniseli
Mbingashe (Accused No. 7), Ms Nombulelo Kitise Bukani (Accused No. 8),
Mr Zwelandile Boy -Boy Kitise (Accused No. 9), Mr Yanginkosi Solani
(Accused No. 10), Mr Nkosinathi Dyantyi (Accused No. 11), Mr Lungisa
Mtyana (Accused No. 12), Mr Zandisile Kitise (Acc used No.13), Ms
Nombuzo Mbingashe (Accused No. 14), Mr Mvelisi Xulu ( Accused No.
15) and Mr Thobani Vena (Accused No. 16). They are charged with four
counts of murder; four counts of kidnapping and one count of public
violence.
[2] All the accused persons are legally represented at this trial. The State is
represented by Mr Philisane. Mr Tshingana represents the 1 st and the 15 th
respondents. Accused No.s 2, 6, 10, 12 and 14 were initially represented by
Ms Dyantyi from the Legal Aid Board. After she resigned from the Legal
Aid Board, Mr Nomlala took over from her and represented the accused.
Mr Dengana represents Accused No’s 3, 4, 5 and 7. Mr Nabela represents
Accused No’s 8, 9, 11 and 16. Mr Heshula represents Accused No. 13.
[3] The allegations levelled against all the accused persons were that on or
about 31 December 2022 and at or near Ndindwa Administrative Area,
Debenek in the district of Middledrift , in the Eastern Cape , the accused
persons either individually or acting in concert with ot hers in the execution
of common purpose did unlawfully and intentionally kill the following
deceased persons : an adult male person Lwando Makinana ( in Count 1) ;
(Count 2) an adult male person Ziphozihle Thimba;( Count 3) an adult
female person Nwabisa Melane; and in (Count 4) an adult male person
Vuyo Clifford Lamani. I shall refer to the four deceased persons as ( the
deceased) except where they are referred to by name.
[4] In counts 5, 6, 7 and 8 , the State alleged that the accused persons either
individually or acting in concert with others in the execution of common
purpose did unlawfully and intentionally deprive the deceased persons ( in
Counts 1,2,3 and 4), of their freedom of movement by grabbing them from
their places or homes and taking the m to an open space near Dyantyi
homestead where they brutally assaulted, tied them with cable wires and
burnt them with fire.
[5] In Count 9, the State alleged that on the same date and place the accused
persons and diverse other persons , acting in concer t , did unlawfully
assemble with common intent to forcibly disturb the public peace and
security and to invade the rights of other persons, they unlawfully and
intentionally grabbed and dragged the deceased persons to the street where
they brutally assaulted them and burnt them to death.
[6] The State also indicated and cautioned the accused persons that in the event
of any sentence against them, in particular with reference to counts 1 to 4
that the Deputy - Director of Public Prosecutions shall apply to the court to
have the provisions of section 51(1) of the Criminal Law Amendment Act,
105 of 1977 be invoked which provisions relate to a discretionary minimum
sentence of life imprisonment because the murders were planned or
premeditated and they were com mitted by a group of persons acting in
furtherance of a common purpose or conspiracy.
[7] All the accused persons pleaded Not Guilty to all the charges. They all
reserved their rights not to disclose the basis of their defense. All the
accused further confirmed that they were advised of the competent verdicts
applicable and also of the provisions of the minimum sentences relied upon
by the State in the indictment. All the legal representatives confirmed their
instructions in this regard.
[8] On 22 September 2025 an application was made to the court by the Head of
the Correctional Centre in terms of section 49 E of the Correctional Matters
Amendment Act (Act 5 of 2011), on the basis that Accused No. 2, Mr Neliso
Nkohla, due to his medical condition had to be released on warning. The
court received evidence from a professional nurse, Ms Cikizwa Hloyi and
from Mr Nkohla’s sister, Ms Thenjelwa Baneti. Upon consideration of all
the medical records and the evidence led in relation to the medical condition
of accus ed No. 2, the Court released him on warning subject to certain
conditions.
[9] On 23 September 2025, the State made an application that the court should
direct in terms of section 159 (2) (bb) of the Criminal Procedure Act 51/
1977 (the CPA), that the tri al should proceed in the absence of Accused
No.2. There was no opposition to that application. Upon considering all the
relevant factors the court directed that the trial shall continue in the absence
of Accused No. 2.
[10] On 30 September 2025, Mr Nomla la who represents Accused No. 2
informed the court that Accused no. 2 passed away on 24 September
2025. A copy of his death certificate was admitted as Exhibit “N6”.
[11] This judgment therefore shall not deal with the case against Accused
No.2. Any ref erence to him will be in relation to the testimony of the
State witnesses.
THE CASE FOR THE STATE
Mr Silindokuhle Kongo
[12] The State led the evidence of the first witness Silindokuhle Kongo. He
testified that on the day in question there was a tradit ional ceremony at
Mr Dyantyi’s homestead. A group of community members were
consuming alcohol. He was seated under a tree with other people. He
referred to those people as Bhuti Lindi (Accused No. 5), Bhuti Dikeni
Dyantyi, De Klerk and Boy-Boy (Accused No. 9). Accused No. 9 (Boy –
Boy) asked him whether it was true that he was the person who was
stealing electric cable wires (the cables). He told him that he did not steal
any cables. Buti DeKlerk said to him :” My neighbour please tell the
truth otherwise you will be burnt ”. He then told them that he saw cables
at Lwando’s place under the bed. Lwando is the deceased in Count 1.
Boy-boy (Accused No. 9) indicated that they must go to the elderly men
of the community who were in another house. Upon their arri val at the
house where the elders were, there was a discussion between the elders
and Buti Mluleki Xulu, (Accused no.1). Accused No.1 suggested that
they must approach Lwando’s father so that they could go to Lwando’s
place.
[13] Other men were also called. They were in the neighbouring houses
between the Dyantyi and the Mbinyashe families. The community
proceeded to the homestead of Lwando’s father. Thereafter the
community went with Lwando’s father to his parental home (the great
house) where Lwando was staying. Bhuti Lindi (Accused No. 5), Bhuti
Mluleki (Accused No. 1) and Boy-boy (Accused No. 9) entered Lwando’s
place. They found Lwando inside the house and brought him outside.
Lwando was being assaulted as he was brought out of the house. The
bags that contained the cables were also taken out. Lwando was caused to
carry them. Accused No.15 instructed Kongo to carry the cables but he
refused.
[14] Lwando was being assaulted by the people who entered the house first
and when he was outside he was assaulted by the community members.
He mentioned that he saw accused numbers No’s 1 (Bhuti Mluleki), No. 2
(Bonita), No. 9 (Boy -Boy), No.12 (Nonose) and No.15 (Ta Mr)
assaulting Lwando. Lwando was being assaulted with sticks all over hi s
body.
[15] Thereafter Lwando was taken to Dyantyi’s place where he was burnt. On
the way to Dyantyi’s place, Lwando was walking on his own and he was
carrying the bags with cables. His girlfriend, Nwabisa was walking next
to the community members and sh e was crying. At some point Nwabisa
started shouting at the community members. As they were approaching
Dyantyi’s place Nwabisa was assaulted by Somi (who is not an accused
herein). He also observed one other female Vuvu who was also assaulting
Nwabisa.
[16] Lwando and Nwabisa were placed on an open field along the gravel road
next to Dyantyi’s place. Accused No. 5 (Buti Lindi) asked Lwando who
was he stealing the cables with. Lwando mentioned Tar Mibra (who is
also known as Marinki but his name is Zip hozihle Thimba, the deceased
in count 2) and Vuyo Lamani (the deceased in Count 4). It was then
suggested that Ziphozihle must also be fetched. The community
proceeded to Ziphozihle’s place where they found his father ( Mr
Sebenzile Jola) feeding the dogs. Kongo was also part of the group that
went to Ziphozihle’s home.
[17] Accused No. 5 (Buti Lindi) enquired from Mr Jola about the whereabouts
of Ziphozihle. He answered that he was home. Ziphozihle got out of the
house. Somi and Unathi (Accused No. 6) as saulted him. They were
carrying sticks and knobkerries and were assaulting Ziphozihle on his
body. Bonita (Accused No.2) hit him with a knobkierrie on his head and
he fell down. They also took Ziphozihle to the place where Lwando and
Nwabisa were and left him there. It was suggested that Vuyo Lamani
must also be fetched.
[18] At this point this witness met his friends who asked for a zol and he
remained behind. They watched people going up and down the street. The
same thing happened with Vuyo. He was fet ched from his home and he
saw people that were assaulting him. He was also brought to the same
place where the other three were, namely, Lwando, Nwabisa and
Ziphozihle. When the community arrived at the same spot with Vuyo
Lamani, a tyre was already there.
[19] Tata ka Somi ( Accused No. 7) tied them up. Mr Dyantyi (Accused No.
11) and Masizole were assaulting Lwando. Mr Dyantyi was carrying a
pliers demanding his money from Lwando and he pulled out Lwando’s
big toe nail with a pliers. They used the cables to tie Lwando up. He,
together with Tira, were smoking dagga.
[20] As they were standing not far from the place where all four deceased
persons were placed, he saw one Lufundo going to his car where he went
to siphon petrol using a 5 litre bottle. The car was parked close to them.
Thereafter they saw fire but did not see who started the fire. He stated
that there were many people who had formed a circle around the victims.
There were other people who were trying to stop them from what they
were doing.
[21] He was asked :
Q: Were there people who were trying to stop?
A: Yes there were .
Q . Where were the four people in relation to the fire ?
A . They were in the fire.”
[22] He saw Nwabisa running into the Dyantyi homestead. The family
members of that homestead refused to let her in an d they drove her away.
Somi arrived and took her back into the fire.
[23] Under cross-examination by Mr Tshingana he was questioned whether or
not dagga had any effect on his mental faculties, his vision and his
appreciation of the events of the day. His evidence was that it did not. On
the day in question he did not consume any alcohol but had smoked
dagga. He stated that Lwando was his paternal aunt’s child.
[24] The incident happened around 16h00 in the afternoon. It was put to him
that accused number 1 and 15 tried to intervene to stop the community
but without success. His evidence was that although he could not dispute
what they were saying, he was adamant that those accused persons
(number 1 and 15) had assaulted Lwando.
[25] Upon being questioned about the delay in him making a statement to the
police was that after the incident he ran away from home to eNdevana
because he heard that he, too, was going to be burnt. He was asked why
he was not burnt with the others and his response was that Lindi ( No. 5)
assured him that they will not do anything to him because they wanted
the truth and the people who were stealing cables. He was a bit far from
the deceased persons when they were burnt to death.
[26] It was put to him:
Q: Would you dispute if some or all of the accused were there to stop the fire?
A. Yes some of the accused were trying to stop.
Q. Accused No.1 and No.15 will say they tried to stop the community to no avail.
Can you dispute that ?
A. I cannot dispute it.
[27] It was put to him that accused numbers 1 and 15 would deny that they
assaulted any of the deceased persons. His response was that he could not
dispute that. This response was pursued by Ms Dyantyi in her cross –
examination. His response was that they did assault Lwando but the
question was about intervening and he said they did say they should not
be burnt.
[28] Under cross-examination by Ms Dyantyi he stated that there were plus/
minus 40 people that went to Lwando’s place . He mentioned the people
again that assaulted Lwando as number 15, 12, 9, 1 and 2. Ms Dyantyi
put the version of accused no.12 as follows : On the day in question he
attended a traditional ceremony at Vuyo’s place. He stayed there
throughout the day an d he was drinking alcohol with, among others,
Anele Kitise. He only left that homestead when he heard screams of
Lwando’s sister probably at the time that the deceased were being burnt .
The witness stated that he did not see accused No. 12 and he was not
present at Ziphozihle ‘s place.
[29] The version of accused No. 6 was put to him: It was put to the witness
that accused No. 6 was at his home sleeping. When he woke up he heard
from one Zamile who was passing his homestead that community
members were g athering near Dyantyi’s place. At that stage people were
going to Ziphozihle’s place. The witness disputed that version and stated
that accused No. 6 was present and was amongst the people that went to
Ziphozihle’s place. It was put to him that accused No. 6 denied that he
assaulted Ziphozihle. The witness was adamant that he did.
[30] It was further put to him that accused No.6 went to Vuyo’s place where
there was a traditional ceremony and a group of people came to the
homestead where he was. He received a call from one of his maternal
aunts and went home. Kongo stated that he was not at Vuyo’s place
because he remained next to the shop and therefore did not know what
happened at Vuyo’s place.
[31] Under cross-examination by Mr Dengana, the witness was a sked whether
there was a mention of the purpose for which the deceased persons were
brought to the place next to Dyantyi’s homestead. The witness responded
that it had been mentioned that they would be burnt. He further stated that
before the date in question there was an agreement that when people were
found with cables they would be burnt. He stated that on the day there
was no decision except what his neighbour mentioned to him that he must
tell the truth otherwise he would be burnt.
[32] The witness co nfirmed that the Mbinyashe homestead where there was a
traditional ceremony was the home of accused no.5. It was suggested to
him that accused No. 5 would not leave people working at his home and go
to Dyantyi’s place and/ or to Lwando’s place leaving peo ple in his
homestead. The witness insisted that accused no.5 left the people at his
homestead and went to Dyantyi’s place where the deceased were placed.
[33] He was asked whether there was anyone holding Lwando as they were
walking to Dyantyi’s place. He answered that Lwando was not held by
anyone because as he was brought out of the house he was being assaulted.
He was being assaulted as he was walking to the place next to Dyantyi’s
place. Nwabisa was also not held by anyone. Initially Nwabisa was
walking alongside the people but when they got up to the road she was
then assaulted as well. He disputed that Nwabisa was walking on her own
free will when she was assaulted.
[34] He repeated that he was not in a position to identify the people that ignited
the fire because people had formed a circle around the persons that were
being burnt. He was standing further away from them.
[35] The witness was asked about the cables and he stated that he didn’t know
who they belonged to but it was alleged that the y were stolen from a
certain home from eMatshaweni in the upper area of the village. It was put
to him that accused number 5 and 7 will tell the court that from 30
December 2022 to 31 December 2022 they had a traditional ceremony
which was performed in ac cordance with customary practices, it was
expected of the family members to be present and they remained there and
never went to the scene. He referred to accused no. 7 as Somi’s father.
They did not even witness the incident because they were busy with th e
ceremony. He disputed that version and stated that accused no. 5 and 7 left
the ceremony and went to the spot where the deceased were burnt. He
stated that accused No. 5 and No.7 were present at the scene.
[36] He testified that Lwando was asked by Li ndi (accused No.5) about his
accomplices and Lwando mentioned Vuyo Lamani and Ziphozihle. When
he was confronted with what he had told the police. In his statement to the
police he had mentioned that it was Somi’s father (accused No. 7) who had
questioned Lwando about that. He confirmed that he made a mistake
because the person who questioned Lwando was accused No.7.
[37] He was also questioned about the name of the person he gave in his
statement to the police as the person who asked Ziphozihle’s father about
the whereabouts of Ziphozihle. He stated that he confused the names of
Lindi and Boy – Boy. He clarified that the person who asked Ziphozihle’s
father was Boy - Boy. He was asked about Ziphozihle’s willingness to go
with the group. His response was t hat there were signs that Ziphozihle
wanted to speak but was not afforded an opportunity to speak as he was
assaulted.
[38] He testified that he saw Somi’s father ( accused No. 7) assaulting Lwando
before tying him up at the place where they were going to be burnt. He
was asked directly by Mr Dengana whether he saw accused No.7 tying up
Lwando. When asked about accused no.7 assaulting Lwando , his evidence
was very clear that accused No.7 had already assaulted Lwando before
tying him up. He stated that happened at the spot where they were burnt.
[39] Under cross- examination by Mr Nabela he stated that when the incident
happened there was light. He could see what was happening at the door of
Lwando’s place. He was smoking outside Lwando’s home when Lwando
was being beaten up by many people. He saw accused No. 1 , No.5 and
No.9 assaulting Lwando. When he got out he was assaulte d. He disputed
that his vision was obscured because he had smoked dagga. The version of
accused No.9 was put to him: He will deny that he ever assaulted Lwando,
Nwabisa, Vuyo and Ziphozihle. The witness responded that he assaulted
them. Accused No. 9 will say he never joined the group going to Lwando’s
home. His response was that he was there. He was asked whether he was
forced by the group to go to all the places where there were suspected
thieves, His response was that he was taken by the group and force d to go
to Lwando’s place but thereafter he went to other places on his own.
[40] Accused No. 11 ‘s version was put to him : He will deny that he ever
assaulted Lwando or pulled his toe nail and ear with a pliers. He
responded that he assaulted him when he was next to his home and at that
stage there were not as many people as there were when they were burnt.
He was adamant under cross – examination that he saw accused no. 11
assaulting Lwando, he saw him pulling Lwando’s toe nail with a pliers and
his ear with a pliers.
[41] The version of accused No. 9 was put to him : He will say it was Kongo
who called him and Mac Ngcivana. They told this witness they are older
than him therefore he must go to them. Kongo disputed that version. His
response was that they approached him. It was put to him that Boy - Boy
would deny that he asked him about the cables. He insisted that he did and
was assisted by De Klerk. After he told them about the cables at Lwando’s
place accused No. 9 said he must come with him to inf orm the community
and they went to the community members who were seated at
Mbinyashe’s home. It was put to him that accused No. 9 remained at
Dyantyi’s place serving liquor. The witness disputed that and insisted that
he went with him to the communit y and he was also present at Lwando’s
place. He stated that he left for Ndevana because after the incident he was
phoned by a certain lady and was advised to leave because he was going to
be burnt. Under re - examination he stated that on that day he was s cared
and stressed. He stated that there were people who were saying he was
going to be burnt but Mluleki and others said nothing will happen to him.
The evidence of Mr Kholekile Joseph Makinana
[42] He was born in 1951 and resides at Ndindwa Location. He is the father
of Lwando , the deceased in Count 1 . He was at his home when a group
of people arrived and asked him to come with them. These people were
members of his community. He enquired where they were going .
Accused No.1 and No. 15 told him t o go and knock at her son’s door.
Indeed he walked with them to his parental home ( the great house) where
Lwando was. He knocked and called out his name. Lwando opened the
door. When he opened he had his back to the door as he was playing with
Nwabisa, h is girlfriend. He tapped him on his shoulder and asked him
what have you done? Before he could answer some members of the
community grabbed Lwando and started beating him up.
[43] He noticed three people that grabbed him. He identified Mluleki(
Accused N o.1) , Boy – Boy Kitise ( Accused No. 9), and Lindi
Mbinyashe ( Accused No. 5) as the three people that entered the house
and grabbed Lwando as the others were outside. He mentioned all the
accused before court by their names and surnames as people who we re
present at her parents’ house. He saw Lwando being assaulted and being
tied up. They were taken to Dyantyi’s place .
[44] When they were at Dyantyi’s place he sat next to them. They were being
beaten up with sticks , stones others were carrying knob kierries. He
observed one of Nwabisa’s eyes protruding out of its socket and hanging
on her face. He saw Dyantyi ( Accused No . 11) taking out a pliers and
extracted Lwando’s teeth whilst he was still alive. He observed that
Lwando’s legs were fractured. He said to Lwando : “ Lwando my child
just die because you can never be healed “ . He observed blood oozing
from him. His br other’s child, Thabisa, arrived and took him away
saying that he cannot remain there as Lwando and the other three were
going to be burnt. She took him home and told him not to leave the
house. Before Thabisa arrived to fetch him from where he was seated
with Lwando and Nwabisa , Ziphozihle was brought there and he fell and
died, according to him. Ziphozihle was also assaulted when he was
brought to that place. He could not identify each individual that was
assaulting the deceased as they were too many.
[45] Under cross – examination by Mr Tshingana he confirmed that the group
found cables under Lwando’s bed. Both Nwabisa and Lwando’s hands
were tied at the back. He disputed the version of accused No. 1 and 15
that they were not part of the group that w ent to his house but joined the
group when it was going to the major house. It was put to him that
accused No. 2, 6, 10 and 12, never went to his homestead. The witness
was adamant that they were there , he knows them well as they stay in the
same village.
[46] Under cross - examination by Mr Dengana he stated that when Lwando
was leaving home he was held by accused No.1 Mluleki Ngcivana; No. 5
Lindi Mbinyashe, and No. 9, Boy -Boy Kitise. The witness mentioned
these accused persons by their names and su rnames. He clarified that he
did not see how Nwabisa was taken outside the house. He testified that
Nwabisa’s child was crying pleading with them not to kill her mother. He
testified that Nombulelo (No. 8) was full of blood, Nombuzo ( No. 14)
was also fu ll of blood, Zandisile Kitise ( Accused No. 13) was pressing
on Lwando’s testicles and Nonose (No.12) was cutting Nwabisa’s
ligaments. The blood on Nombulelo and Nombuzo was from the
deceased persons.
[47] It was put to him on behalf of Accused No. 4 th at his version was that on
the day in question he was at home the whole day sleeping. The witness
disputed that by saying he was there.
[48] It was also put to him that Accused no. 5 and 7 never went to his place as
they were busy with the ceremony at the ir home. After that accused No.
7 proceeded to his parental home when he met this witness who asked
him to intervene . Accused No. 7 disputed that he responded in the
manner testified to by the witness but he told the witness that he was not
going to be a ble to stop such a large group of people. Makinana was
adamant that he said : “ Malume do you want to die , you want to be put
here as well.”He stated that the meeting that did not materialize on the 30
December 2022 at the community hall was called by the community .
Sebenzile Jola was asked to call the meeting and he volunteered to assist
him.
[49] When cross- examined by Mr Nabela he was asked whether he was not
aware that the community would come to his home. His response was
that his wife was buried the previous week and when seeing the
community he was happy to see them , as a first reaction, because he
thought they came to pay respects for his loss. It was put to him that
accused No. 9 will tell the court that when he heard from Kongo that the
community was going to his house first and then to Lwando’s great home,
he told this witness. The witness disputed that. He also told this witness
that there were cables that had been seen under the bed in Lwando’s room
and the witness volunteered to go and take out the cables. The witness
disputed that version. It was put to him that accused no. 9 did not go to
his house as he remained at accused No. 11’s homestead serving alcohol
to people who were there. The witness disputed the version put to him.
He estimated the people that were at his house to be approximately 2000.
He did not see any weapons on them when they went to his home but
only saw that they were armed when they were at the great house
instructing him to knock . He did not know whether they were hiding
them.
[50] Mr Nabela asked the witness to specify who was using a stick and who
used stones. He asked about the role played by Accused No. 4 at the
scene. It is to be noted that he indicated that although he was not
representing No. 4 he wan ted to test the answer. The witness stated : He
said No. 4 (Marali) was using a stick, Nonose (12) a stick, Nombulelo
(No.8) was hitting him with stones, Nombuzo(No. 14) was hitting with
stones;( No. 15) was using sticks; Thobani ( No . 16) was using s ticks .
Kitise was carrying a knob- kierrie ( No.9) ; Nonose (No.12) was cutting
Nwabisa’s ligaments ; Number 11 was extracting Lwando’s teeth ; No. 7
was carrying a tyre. It was put to him that Nombulelo will deny that she
was full of blood. The witness stated that as they were throwing stones at
the deceased blood sprayed on them. No.13 was pressing on Lwando’s
testicles.
[51] He disputed the version of Accused No. 8, that she was not present at his
home or that she was full of blood. He also disputed the version of
accused No. 11 that he was not present at the scene. He also disputed the
version of accused No. 9 that he was n ever present when the deceased
were kidnapped, assaulted and killed. It was put to him that in his
statement to the police he did not mention Accused Nos. 9, 8 and 11. The
witness was adamant that they were there. It was suggested that he only
mentioned the accused because he knows them and he had seen them in
court. His response was that they were present at the scene and were
involved in the commission of the offences.
[52] Mr Heshula put to the witness that there was bad blood between this
witness and accused No. 13. He put No. 13 ‘s version as follows : He was
not at the home of the witness. He was out in the veld looking after his
livestock and thereafter he went home to eat. He heard the noise and
came back with the intention of visiting the Dyantyi homestead, When he
was near Dyantyi’s homestead he noticed that there was a group of
persons assaulting some people. Some of them were carrying tyres. He
then decided to go back home as he did not want to be part of what was
happening. It was suggested that this witness was implicating him
because there is bad blood between them. The witness disputed that.
[53] In re- examination he testified that Accused No. 7 put the tyre next to the
victims. He repeated that Nonose Mtyana (Accused No. 12) cut
Nwabisa’s ligaments with a knife. He testified that he was involved in a
stick fight with No. 13 but they were in good terms after the fight.
Mr Sebenzile Jola
[54] He resides at Ndindwa Location. He was born in 1953 and was 71 years
of age when he testified. He is the father of Ziphozihle Thimba ( the
deceased in Count 2) . He heard Mvelisi ( Accused No. 15) calling out
his name asking about the whereabouts of his son. He opened the door to
his bedroom and he realized that there were many people that were
already inside the dining room. He observed that they were carrying
Ziphozihle. He observed Unathi ( Accused No. 6) and Bonnita (
Accused No.2) . There was also Mac and De Klerk. He was trying to put
on his shoes when he heard that Ziphozihle was being assaulted. He
heard Unathi asking “who are you fighting ?“He proceeded to his kraal
and realized that they had killed him and he was full of blood. Bonnita
hit him on top of his head. Mvelisi Xulu ( Accused no. 15) said he must
follow them if he wished to know where Ziphozihle was. He followed
them and they were walking fast. They placed Ziphozihle where Lwando
and Nwabisa were. Nwabisa and Lwando were tied up with a rope. He
went to Ziphozihle and realized that he was dead because he was lying
face down. He just hugged him. After they placed Ziphozihle there they
left to fetch Vuyo. They brought Vuyo and placed him next to Ziphozihle.
[55] He saw Mluleki and Lindi carrying tyres. They were making fire on a
tyre but it was not getting ignited. Th ere were girls who brought paraffin.
After that the fire was ignited. The fire appeared from the direction of
Lwando and Nwabisa and it looked like petrol fire. There was a child
who was crying begging them not to kill her mother. Nwabisa moved
away from the fire and she had lost one eye. She came out of the fire and
headed to the Dyantyi’s homestead where there was a circumcision
ceremony. She was chased away by the people who were there and was
pushed into the fire. Nonose ( Accused No. 12) cut her li gaments with a
knife . She became powerless and she was burnt.
[56] He identified the people who went to fetch his son as Lindi ( Accused no.
5); Unathi (Accused No. 6 ) ; and accused No.2 . Lindi and others were
carrying iron rods, Mvelisi and Unathi were carrying sticks. Bonnita was
carrying an iron rod. He heard that the deceased were accused of stealing
cables from houses that were unoccupied. He did not see anyone
intervening.
[57] Under cross – examination by Mr Tshingana the witness disputed t he
version of Mr Kongo that he was out feeding dogs when the community
arrived at his place. He also disputed that Ziphozihle came out of the
house on his own. He testified that Nwabisa’s ligaments were cut by
Nonose when the deceased persons were being burnt. He confirmed the
version of Accused No. 1, Mr Mluleki Xulu that he was never at his
house. He did not see Accused No. 1 intervening. He last saw Mvelisi
when he went to fetch Ziphozihle.
[58] It was also put to him that : “Then accused No. 1 would further come and
testify that upon seeing that his efforts to intervene were in vain, he
decided to step back and stood with the non - participating community
members before the fire was even started “. This witness stated that he
only saw him burning up a tyre with some ladies. He disputed the version
of Accused No. 15 that he never spoke to him on that day. He insisted that
he was called out by accused No. 15.
[59] Under cross – examination by Ms Dyantyi , the version of Unathi (
accused No. 6 ) , wa s put to him that he would deny that he was at the
home of this witness. He denied the version of Unathi. He also denied
that Unathi was at Dosina’s house where this witness had gone to ask to
use their telephone. He stated that Unathi was the person who was asking
Ziphozihle: “Who are you fighting with ?”.
[60] He testified that Nonose ( Accused No. 12 ) was not part of the group
that went to fetch his son , but he was part of the group that went to fetch
Vuyo Lamani. He reiterated that it was Nonose that cut Nwabisa’s
ligaments and pushed her back into the fire. By that time his son,
Ziphozihle had been burnt already. He disputed Accused No.12’s version
that he was at Bande’s homestead , he arrived there in the morning and
remained there throughout.
[61] Upon being asked by Mr Dengana that Lindi will deny that he was
making fire at the scene because he was not there as there was a
ceremony at his home. He stated that even if there was a morning
ceremony at Lindi’s home it had been concluded by 17:00 . He disputed
that version.
Ms Nelisa Lamani
[62] This witness is the sister of the deceased Vuyo Lamani, the deceased in
Count 4. On 31 December 2022, there was a traditional ceremony at
Bande’s place. Vuyo was there and Nonose ( Accused No.12) was
following Vuyo wherever he was going. Around 16h00 to 17h00,
Bonnita( No.2) arrived in the company of Yanga(No.10), Dudu( No.3)
and Unathi ( No.6) . Yanga and Bonnita went to Vuyo and said they
wanted him. Vuyo stood up and proceeded to him. They held hi m in an
embracing manner and left with him. Vuyo asked where were they taking
him. They proceeded on the route and when they were close to a second
homestead from Bande’s place , a group of people appeared. They heard
people screaming saying Vuyo was being assaulted.
[63] They followed the group until they reached the place where there were
three other people . Vuyo was the fourth one. When they arrived she
enquired from Mluleki who those people were. Mluleki said to her this is
Lwando’s girlfriend, he hit her and moved h er, and he said the other one
was the dog from Lamani’s family. She observed people who were
making fire on the side. Those people were: Lindi (No.5) , Nombulelo
(No.8) , Nombuzo (No.14), and Inga. Thembakazi was carrying a 5 litre
container pouring paraffin where the four people were. Mfuniseli( No.7)
and Melikhaya Dyantyi were carrying tyres.
[64] She identified accused No. 5 as Lindi Mbengashe, No.8 as Nombulelo
Bukani. She identified ( Accused No.2),Dudu Dumisani
Mpofana(Accused No.3); Unathi Kakal ala( Accused No.6) and
Yanginkosi Solani ( Accused No.10) . She stated that there were others
who were hitting the deceased persons . He identified those as Masizole
Dyantyi and Zubandile Dawethi. They were hitting the four persons that
were lying on the ground. They were using iron rods and sticks. Mfuniseli
Mbinyashe ( No.7) and Melikhaya were pulling tyres. She left to phone
to report that Vuyo had been burnt to death. She tried to call the police
but no one was picking up. She ran out of airtime and proceeded to the
shop. On the street she met Lindi( Accused No.5) in the company of
Mluleki ( Accused No.1) and Mvelisi ( Accused No.15) . Lindi asked her
where was she going and whether she wanted to die like the dog of her
parental home. She understood this to be a reference to Vuyo.
[65] She testified that when Mfuniseli and Melikhaya were dragging tyres,
they threw them on Ziphozihle and Vuyo and made fire on them. The fire
had been ignited at that stage. She heard that they were burnt because
they were selling cables. She observed only one person who was tied up
Lwando.
[66] Under cross - examination by Mr Tshingana and when confronted with
allegations in her statement she testified that she never told the police that
Accused No.1, Mluleki Xulu wa s starting the fire. She said she only
mentioned Lindi Mbinyashe. She testified that Accused No. 1 was part of
the group that was assaulting the deceased because he did assault
Nwabisa. She stated that Accused No. 15 was standing far from the scene.
He disputed the version that Accused No.1 tried to intervene and when he
failed in doing so he went to stand far with his brother. This witness
disputed that and stated that Accused No.1 was standing close to the four
people who were burnt.
[67] She testified that Accused No.1 hit Nwabisa with an iron rod. It was put
to her that accused No. 1 and 15 will testify that at no stage was this
witness present where the four people were burnt. They only saw her
when she was on her way to the shop as they were going home. She
disputed that version as being untrue. It was put to her that those two
accused were also going to tell the court that the reason the witness was
not there is because she was looking after Vuyo’s father because Vuyo
had attempted to a ttack his father on that day. The witness disputed that
version.
[68] Ms Dyantyi under cross - examination put the version of the accused she
represented that this witness did not go to Bande’s place. The witness
disputed that . She also disputed their ve rsion that they did not follow the
group that took Vuyo. She reiterated her evidence that Vuyo was taken by
Yanga , Bonita, Unathi and Dudu. Nonose left with those people at the
same time as they were leaving with Vuyo. She disputed their version
that Vuyo had attempted to stab their father.
[69] Mr Dengana under cross- examination established that the person known
as Dudu was indeed accused No.3. She disputed the version of accused
No.3 that he did not take Vuyo away from his homestead or that he was at
the scene of the incident. It was also put to her that Accused No. 7 would
deny that he dragged a tyre and placed it on top of the persons who were
burnt. The version of accused no.5 was also put to her that he would
deny making the fire or committing any of the offences.
[70] The witness was adamant that both Accused No. 5 and 7 were present at
the scene. It was put to the witness that Accused No.5 will tell the court
that she was falsely implicating him because she holds a grudge against
him because the y used to have a love relationship , and he ignores her
when they come home during the December holidays. The witness
disputed that and indicated that was not true as she did not need anything
from him. In her statement to the police she mentioned that ot her people
were dragging tyres but did not identify them by name including Accused
No.7.
[71] When asked by Mr Nabela about the fact that although Ms Nombulelo
Sizani is mentioned in her statement A3 , it is not stated that she was one
of the people who started the fire. The witness agreed that there was a
time that she told the police that she was not feeling well and had to stop
making the statement. She accepted that the police did not write down
that reason on the statement. She disputed the version of Accused No.8
Nombulelo that she was not present at the scene and did not start the fire.
[72] Mr Heshula put it to the witness that Accused No. 13 would testify that
he was not part of the persons who assaulted and burnt the deceased. The
witness stated that she did not see him at the scene. She corroborated the
evidence of Mr Jola that she was standing closer to the scene and was
able to see what was happening.
Constable Phithi
[73] She is a member of the South African Police Services. She has b een a
member for 12 years and was stationed at Debe Nek. She received the
report about the incident from the Station Commander. It was at night.
She, together with Sgt . Mgudlwa proceeded to Ndindwa Location. Upon
their arrival around 21h00 they asked for directions to the scene from
women who were just standing there. She stated that the person who
called the police was told to wait for the police van as it was at night.
Upon arrival at the scene they saw bodies of the burnt deceased persons.
There were dogs who were feeding on those bodies. The people who
came to the scene refused to give the police information as they feared for
their lives as they had been threatened not to get closer to the police.
They called a member of the family of one of the de ceased, Luvuyo
Lamani’s sister, Nelisa Lamani. This witness took down the statement
from her. They secured the scene. They were not able to have the bodies
identified as they were severely burnt. Some of the deceased were still
burning around their legs and the police asked for water to extinguish the
fire.
[74] They called for all the stakeholders such as photographers LCRC and the
vehicle from the pathologists and a detective on stand -by. The detective
W/O Mtshemla who was on standby arrived and the scene was handed
over to him. The report they received at the scene was that it was alleged
they had stolen cables. She confirmed the corpses that were depicted in
the photo album “Exhibit A”. Under cross - examination by Mr
Tshingana she stated that she wrote down just the information and not the
details because Mr Mtshemla was going to use her as a witness. Under
cross – examination by Ms Dyantyi she testified that it appeared that the
deceased were tied up in two’s.
Detective - Sergeant Hlanganisani Melane
[75] He is a member of the South African Police Services holding a rank of a
Sergeant . He is stationed at the Chungwa Police Station in Debe Nek.
He is the investigating officer in this case. He is also the officer that
arrested some of the accused persons. He had made statements in relation
to those arrests. Those statements A56 and A57 were entered into
evidence. He explained how he effected arrest of Accused No. 14 on 28
June 2023 at Ezigodlo. He testified about how he explained her
constitutional rights at the time of arrest and detention. He conveyed
them to her in isiXhosa.
[76] On 5 July 2023 they received information from informers that Accused
No.12 and 13 were at their homes. He proceeded to Ndindwa. Upon
arrival at Mr Kitise’s ( Accused No. 13) he introduced himself,
established his identity, informed him of the charges and read to him his
constitutional rights when he arrested them and when he detained them.
In his evidence he went into detail about the nature of the rights explained
to these accused persons individually.
[77] On 19 December 2023 , he arrested Thobani Vena , accused no.16 . He
had been looking for him in relation to the incident. Thobani was
mentioned by Mr Jola and Khongo.
[78] Under cross – examination he was ask ed by Mr Tshingana about the
rights explained to accused No.1 and the statement made by him , the
time it took interviewing him, whether he read the statement back to him.
He was adamant that the signatures on the statement were appended by
the accused in his presence. He had asked him about the different
signatures. It was put to him that Accused No.1 will tell the court that
certain rights were not explained to him and that he was threatened when
he was arrested.
[79] This was disputed by the witness wh o stated that he read everything back
to the accused and he said he was not threatened. The witness stated that
he read all the constitutional rights to the accused and disputed the
suggestion that certain rights were not explained to him. The warning
statement was handed in as “Exhibit D” on behalf of accused No.1.
[80] Ms Dyantyi enquired from the witness why an identification parade was
not held. The response was that the people of that village knew each other
very well. It was put to him that Mr Jola testified that the ladies who were
involved in the incident were not before court. The witness responded
that the people of the village knew each other and Jola mentioned accused
No.14 whose address was also confirmed by their informers.
[81] Mr Dengana put to the witness that Kongo did not mention Lindi
Mbenyashe as someone who took Nwabisa back into the fire. The witness
said the people listed in the statement were those mentioned by Kongo.
[82] He was asked about the person Nombuso that M r Jola mentioned. He
stated that in his statement he mentioned her. He stated that an
Identification Parade was not held because the people of the village knew
each other. It was suggested to him that he assumed that Nombuso
Mbinyashe was the same person. He stated that informers mentioned the
address of Nombuso at Zigodlo. It was put to him that Mr Sebenzile Jola
stated that the ladies that were involved in the incident were not in court.
[83] When questioned by Mr Dengana he confirmed that Kongo did not
mention accused No. 5 as one of the people that took Nwabisa back into
the fire. He responded that he read back the statement to Kongo.
[84] When being cross – examined by Mr Nabela he conceded that he made a
mistake by saying Jola mentioned accused No . 16 in his statement. He
was mentioned in Kongo’s statement. He stated that Jola assisted the
police in looking for accused no.16
[85] Mr Heshula took issue with the delay in the arrest of Accused No. 13
whereas the case was opened in January 2023 and so me of the statements
were taken in January 2023. The witness explained that they effected
arrests some hours after the 31st December and continued until they found
accused no. 13 on 7 July 2023.
Warrant Officer Melisizwe Mtshemla
[86] He has been a member of the South African Services for 20 years. He
holds a rank of a Warrant Officer. He is the chief investigator of the case.
He testified that as a Commander he gets involved in the investigations
and works hand in hand with the dete ctives in arresting the suspects. He
was invited to the scene by Constable Phithi. He arrived around 11pm on
31 December 2022. The scene was illuminated by lights coming from the
two police vehicles. Constable Phithi pointed out the scene to this
witness. He then took over the crime scene from her. He saw burnt
bodies. He described the gruesome scene as follows: He observed
scattered brains, there was smoke coming from their bodies; Some of
their limbs were detached from their bodies. There was a woma n that he
could identify by a portion of her private parts. He saw three male bodies
and one female. The people at the scene gave him the details of what
happened, the fact that the people that were burnt were regarded as
criminals. They also told him about who was involved in the incident. He
took down the information. The people that gave him information were
Ms Nelisa Lamane, Mr Sebenzile Jola and Mr Kholekile Makinana.
After statements were taken he then effected the arrests.
[87] He described how they arrested accused No.1 on 1 January 2023 and the
commotion that ensued at the tavern where accused no.1 took them with
the aim of showing them other people that were involved in the incident.
The community members at the shebeen started attacking the police. The
police then pulled Xulu and left the shebeen. When they reached the
police van there were two young men Neliso Nkohla ( accused no.2) and
Dumisani Mpofane (accused 3) who were saying Xulu cannot be arrested
alone because they also assaulted and burnt the deceased.
[88] At that point stones were being thrown at the police. This witness
opened the door and told them to get in if they wanted to be arrested.
They entered on their own. They drove and when they reached the upper
part of the village they stopped the van. He enquired as to their names
and found that they were mentioned by the witnesses. He then took them
out of the police van and informed them of their constitutional rights.
Thereafter they were put back into the van. He obser ved that they had
consumed alcohol.
[89] On 5 January 2023 he went to the Mbinyashe homestead where they
arrested Mr Lindi Mbenyashe ( No.5 )and his father (No. 7) . They also
arrested Unathi Khakalala, Nombulelo Kitise, Khanya Sizani,
Nozolwandile,Unathi Bekelana, Nobantu Mahlali. They informed them of
their constitutional rights. They took them to the police station where
they informed them of their rights as well. He issued a J50 to Knysna
where Yangenkosi Solani ( accused no.10) . He was not present when
Yangenkosi and Accused No.16 were a rrested but was involved in the
arrest of all the others. Yangenkosi was arrested by Sergeant Mtotoyi
from Kysna. He testified that although it was said some cables were
found nothing was brought to the attention of the police.
[90] Under cross – examination by all the representatives the complaint was
that the constitutional rights of all the accused were not explained to
them. He explained how accused no. 15 was arrested. This witness
denied that he threatened accused no. 1 because he co – operated with the
police and offered to show them other people who were involved in the
incident. He explained in detail what transpired at the home of accused
no.15 when he was arrested as he was found in the bathroom putting on
his takkies. He disputed that he wa s naked when the police found him in
the bathroom.
[91] When cross – examined by Mr Dengana he confirmed that he was
present when accused no. 5 and 7 were arrested. It was put to him that
Neliswa in A3 and A48 did not mention the name of accused No. 7 . His
response was that if his name does not appear on the statements then it
was not mentioned to him.
[92] The versions of all the accused persons were put to the witness and he
disputed them. He confirmed that he sent Sgt. Mtotoyi to arrest Accused
No. 10 ( Yanginkosi) and 16 ( Thobani) in Knysna.
[93] He confirmed that accused no. 13 was arrested after a period of about 4
to 6 months was because he was running away. It was put to him that the
accused will deny that his rights were explained. H e explained that some
of the accused refused to sign the form that indicates that their rights were
explained he recalled that Lindi and Bonnita are some of those who
refused to sign.
[94] He was asked about the fact that Lufundo was not arrested and yet he is
the one, according to Khongo, who brought petrol. He responded that
many suspects ran away.
Sergeant Mfundo Solani
[95] The next witness was Sergeant Mfundo Solani . He is a photographer for
the South African Police Services attached to the Loca l Criminal Record
Centre in King William’s Town ( LRC) . He took the photographs of the
deceased persons and thereafter compiled a photo album. He attended the
scene at about 23: 50 on the day of the incident. He was called by W/O
Mancu to attend to th e scene. Upon arrival he was shown the scene by
W/O Mtshemla. They used a torch and lights from several cars to
illuminate the scene. He explained each of the photographs on the photo
album. Under cross – examination by Mr Tshingana he stated that he did
not see any scattered brains at the scene.
Medical evidence
[96] The State led the evidence of Dr Ongama Ntloko. He duly qualified as a
medical doctor in 2011. He is also registered with the Health Professions
Council of South Africa (HPCSA). He has been working in the Forensics
department since 2019.
[97] He works at the Bhisho Mortuary Forensics. He did not examine the
bodies and did not compile the post – mortem reports in respect of the
deceased persons. They were done by Dr John who had retire d by the
time this evidence was led. Dr John worked at the same mortuary as Dr
Ntloko. He had been working with Dr John for six years prior to Dr
John’s retirement. He is familiar with the method of examining bodies
and compiling post -mortem reports. Dr John was a Chief Medical
Officer in Mdantsane but worked in Bhisho.
DR 868/2022 : Deceased ; Vuyo Clifford Lamani
[98] On 1 January 2023 a male person’s body was examined by Dr Dominic
Thadathilankal John ( Dr John) , a pathologist. The body was id entified
as DR 868/2022 and it belonged to Vuyo Lamani. The body was
identified by Ms Nelisa Lamani as that of Vuyo Lamani. His date of birth
was 02 September 1982. Dr John examined the body of the deceased. He
found that the body was extensively charred. It had also sustained heat
fractures on the right and left thighs. There were heat ruptures all over
the body. There were intestinal loops protruding out on the left side of
the body. He had two lacerations on the forehead and another one on the
root of the nose. The brain was congested. The wall of the chest internally
was cherry red. There was minimal soot (smoke in the trachea) . Lungs
were congested. Other organs such as liver, intestines, pancreas, spleen
and kidneys were partly cooked. The genita ls were burnt. The chief
findings were that this was a charred body. There were antemortem
features of being burnt. Death occurred due to burns. The chief post -
mortem findings were charred body and antemortem features seen . Dr
John found that the post- mortem findings were consistent with death due
to burns. The post mortem report of Vuyo Lamani was admitted as
Exhibit “K”
DR 869/2022 : Deceased :Lwando Makinana
[99] The body of Lwando Makinana was identified by his father, Mr
Kholekile Makinana. Hi s date of birth was 03 July 1992. The post –
mortem was conducted on 1 January 2023. Dr John found an extensively
charred body. The ankles were tied together with an electric cord. He
found lacerations of the upper lips. There were lacerated wounds on the
forehead, frontal, right parietal, left temporal, left parietal, occipital (
back of the head) . There were heat ruptures at various places. There were
intestinal loops protruding out. The chest wall was cherry red internally.
There was no soot seen in t he trachea. Lungs were congested. Internal
organs were congested. External genital organs were burnt. The cause of
death was that the post - mortem findings were consistent with death due
to burns. The chief post mortem findings were : ‘ extensively charr ed
body’; and ‘Antemortem features seen’ . The post -mortem report of
Lwando Makinana was admitted as Exhibit “L”.
DR 870/2022 : Deceased : Ziphozihle Thimba
[100] The body of the deceased was identified by his father, Mr Sebenzile Jola.
His date of birth was 28 January 1985. The body was extensively charred.
It had heat fractures of the lower limbs. There were heat ruptures all over.
Some burnt electric cord was found around the trunk and upper limbs.
There was a lacerated wound on the left side of the forehead and left ear.
The skull was intact but the scalp tissues were cherry red internally. There
was minimal soot in the trachea. The lungs were congested. Other organs
were pale. There were antemortem features seen. The cause of death was
due to burns. The intestines, liver, pancreas, spleen and kidneys were all
pale. The chief post- mortem findings were charred body and antemortem
features were seen. Dr John found that the post -mortem findings were
consistent with death due to burns. The post – mortem report of
Ziphozihle Thimba was admitted as Exhibit “M”.
DR 871/ 2022 : Deceased : Nwabisa Melane
[101] The post – mortem examination on the body of the deceased was done
by Dr John on 1 January 2023. She was identified by Ms Noxolo Mavis
Melane, her mother. The deceased was born on 25 April 1993. The
deceased had a lacerated wound on the right parieto occipital. The body
had heat ruptures at various places. She had incised wounds at the back
of distal legs. The brain was partly cooked, th ere was heat haemotoma,
the chest wall was cherry red. There was minimal soot in the air
passages. Lungs were congested. The intestines, liver, spleen, pancreas
were congested. His kidneys were pale. There were antemortem features
that were seen. The chi ef post- mortem findings were charred body and
antemortem features were seen. Dr John found that the post mortem
findings were consistent with death due to burns. The post – morterm
report of Neliswa Melane was admitted as Exhibit “N”.
[102] Under cross – examination by Mr Tshingana , Dr Ntloko agreed that it
was conclusive evidence that the four deceased succumbed to the burnt
wounds. He was asked whether any of the deceased succumbed to assault
wounds. His response was that when the deceased were burnt they were
still alive. He was not able to tell whether the lives of the deceased
persons could have been saved if they had received medical help. The
reason was that according to him some of the recorded assault injuries
may have been distorted when the d eceased were burnt. He was asked
how accurate is science in determining the cause of death. His response
was that if the question related to the probable cause of death, without
any other positive finding, burns do cause death. He also testified that
burns do cause fractures especially where there are superficial bones. He
was asked whether he was able to identify what was used to burn them.
His response was that muscles turn cherry red because of the carbon
monoxide which means that something was used to burn the body.
[103] He stated that apart from the physical burns inhalation of smoke could
cause death. He also testified that if the person is comatose one will not
get soot in the trachea because of the decreased respiratory effort. He
testified that when there is a finding of congested internal organs that
means that there was no oxygen to those areas. He explained that the
minute there is a finding of charred body it is close to being coal like. He
concluded that with charred bodies it was hig hly unlikely that the
deceased persons would have survived. If a person sustains burns that are
above 60% it becomes difficult to survive. Looking at the bodies of the
deceased persons their extensive and ruptured organs there was no chance
of survival.
[104] The State closed its case. At the close of the State’s case Mr Tshingana
brought an application on behalf of accused No.1 and 15 for their
discharge in terms of section 174 of the Criminal Procedure Act 51 of
1977. That application was subsequently withdrawn. Mr Nabela , on
behalf of accused No’s 8, 9 and 16 brought a similar application. A
similar application was made on behalf of accused No. 9 in respect of
Counts 6,7 and 8. I delivered a written judgment in relation to the section
174 applications. I do not deem it necessary to repeat the reasons given
therein suffice to state that all the applications were dismissed and a
judgment in relation thereto forms part of the record in this matter.
Defense case
Accused No. 1 ‘s evidence
[105] Accused No.1 gave evidence . He testified that he is 49 years old. Prior
to his arrest he was residing in Port Elizabeth. He was born at Ndindwa
location. Accused No.15 is his brother. On the day in question he was
amongst the group that went to Makinana’s home, although he arrived
later. He is the one who came out with a bag that contained cable wires.
[106] He accepted that he is one of the first people to enter the house of Mr.
Makinana. Upon entering the house they took out the cables underneath
the bed. Lw ando was present. When they put the cables out before the
community members Lwando was taken by the community members and
they left with him. The cables were in the bag. He disputed that Lwando
was assaulted. He did not have any instructions to assault Lwando. There
was never a discussion about that. He disputed that Lwando was assaulted
at all. He corroborated the evidence of Kongo that Lwando was caused to
carry the bag that contained the cables. He testified that he did not see
Nwabisa when Lwando was being taken by the community members. He
also confirmed that Lwando was taken to an open field near Dyantyi’s
homestead.
[107] He went to report to the elders that the cables were found. The elders
indicated to him that they saw the young men carrying the cables. He
only saw Nelisa Lamani much later in the day as he was going home to
lock up the livestock. When asked was it before or after the incident his
answer was : “I saw her as I was coming from the place where people
were assaulting them and I interv ened on their behalf and I left.” He
disputed that he was at the scene as testified by Neliswa. He also
disputed that he assaulted Nwabisa with an iron rod.
[108] He said that as he was intervening he heard people saying the victims
must be burnt. He w as intervening with his hands. The reason he
intervened was that the elders had said they must not be assaulted. When
he could not intervene successfully he took his brother and left. At that
time the crowd had started burning the deceased persons. He was not part
of any meeting where it was decided that thieves of cables must be hunted
down and killed. He disputed the evidence of Warrant Officer Mtshemla
that he said he was going to take the police to the others who were part of
burning the deceased. He was asleep when the police arrived at his home.
It was the police that said he must point out the people and immediately
people ran out of the tavern. He disputed that his constitutional rights
were explained to him.
[109] He stated that it was not correc t that Accused No. 3 was already standing
next to the van when he was put in. He did not hear accused No.3 saying
to W/ O Mtshemla he had also assaulted the victims and he should also be
arrested.
[110] He denied that he saw Lindi (accused No. 5) on that day . He denied that
there was a discussion about cables in his presence between De Klerk ,
Kongo and Lindi. He stated that Kongo was making a mistake that he
went to Lwando’s place because the elders said he must go there to check
the cables. When asked about who the elders were his response was the
Mangali family and Ngcivana families . He did not know the young
people that were there. He did not see people who were carrying stones.
He saw some carrying sticks others were carrying nothing. There were
many people assaulting the victims. He was using his hands to intervene
whilst people were assaulting the deceased persons with sticks. He did
not call the police. He did not report back to the elders that people were
being assaulted and were threatening to burn them with tyres.
[111] He was angry because the people in the group that was assaulting the
deceased persons were telling him that he was new there. He said he did
nothing else because he was overwhelmed by anger as he was the only
person who was int ervening. He disputed that Neliswa was there as he
met her later in the day as he was going home. There was no bad blood
between him and the state witnesses. He did not take the cables to the
elders but simply placed them before the community. Under - cross
examination he stated that when he reported to the elders that the cables
were found the elders said a van must be called so that people can be
dealt with. He disputed that he started the fire. Under re -examination and
contrary to what he had stated earlier when asked whether the elders from
where they were sitting they could hear and see what was happening his
answer was that they could not see because the place was steep.
Thereafter he closed his case.
Accused No. 3 : Mr Dumisani Mpofana ( sworn)
[112] He testified that on 31 December 2022 he was at Bande’s place. He
arrived there very early in the morning. He found Mvuseleli Salman,
Siyabulela Lamani, Mzwanele Mamkeli and Mazizo Tyelo. After
slaughtering and cooking he went home. He went to the tave rn and
thereafter went home. On his way home he met two officers, one was
wearing a balaclava. They said nothing to him but simply arrested him.
He found accused No. 1 inside the police van. He heard about the
assault on the victims when he was at the pol ice station. He testified
that he knows all the state witnesses. He was asked about the fact that
Mr Makinana referred to him as Soqo. He confirmed that the surname
Soqo is his second surname. He also confirmed that his nickname is
Dudu. He denied that he went to Mr Makinana’s place on that day. He
disputed the evidence of Neliswa that he arrived at Bande’s place around
4 or 5 pm on that day. He further disputed that he was in the company
of Yanga and Bonnita when he arrived at Bande’s place. He dispute d all
the evidence of Neliswa in so far as it related to him. He also disputed
the evidence of Mr Mtshemla that he and Accused No. 2 were next to
the van demanding to be arrested.
[113] Under cross – examination by Mr Philisane he denied the evidence of
Neliswa that he was in the company of Yanga and Bonnita, he never saw
them at Bande. He denied that he fetched Vuyo or that he was with
Accused No. 6 at Ziphozihle’s place. He heard noth ing about people who
were assaulted. He denied that he assaulted Vuyo. He disputed that his
rights were explained to him. He also disputed that the people from the
tavern were violent towards the police. Accused No. 3 closed his case.
Accused No. 4 : Mr Bantubonke Marali ( sworn in )
[114] He testified that he only heard in the evening about the death of the
deceased persons. He was not present when the victims were assaulted or
burnt. He disputed that he was present at Mr Makinana’s home. He
testified that Mr Makinana mentioned him because he saw him in court.
He stated that Mr Makinana lied that his son was fractured and that meant
he could lie about him.
[115] When cross - examined by Mr Philisane, he conceded that he did not
challenge the evidenc e of W/O Mtshemla that when he arrested him he
acted upon information received from Kongo and Jola. He was known to
the witnesses and he also knew them. He never heard about stolen cables.
He also conceded that he did not challenge the evidence of Mr Makin ana.
He was at his home he was never part of the group. He testified that he
went to Mbinyashe’s place.
[116] In re- examination the court was referred to the record where there was a
challenge to the evidence of W/O Mtshemla and Mr Makinana. Accused
No. 4 closed his case.
Accused No. 5 : Mr Lindi Mbinyashe ( sworn in )
[117] He testified that there was a traditional ceremony at his grand parent’s
home on 30 and 31 December 2022. He stayed there the whole day. He
only went out to buy airtime from a shop located on the upper part of the
village around 5 pm. He met accused No.1 and No. 15 as he was from the
shop and was meeting him for the first time that day. He did not attend
the circumcision ceremony at Dyantyi’s place. He testified that Kongo
was m aking a mistake when he said he was at Dyantyi’s place. He
disputed that he went to Lwando’s home. He did not see Boy - Boy (
Accused No. 9) that day.
[118] He disputed that he assaulted Lwando. He stated that De Klerk and
Dikeni arrived at his home to eat meat. Dyantyi’s place where the victims
were taken is about 200 metres from his home. He did not see the group
that took Nwabisa and Lwando to the area next to Dyantyi’s place. He
did not go there on that day. He did not see Lwando on that day. Mr
Makinana and Mr Jola were mistaken in mentioning him. He disputed
that he started the fire and was not in possession of a tyre. He did not see
the deceased on 31 December 2022. He knows Ms Nelisa Lamani they
were once in a love relationship. He ended the relationship around 2015
due to distance as he had moved to Mpumalanga. He knew Vuyo and did
not see him on the day in question.
[119] He testified that Ms Lamani was making a mistake by implicating him .
He stated that as he was conversing with Accuse d No’s 1 and 15 Neliswa
went past them. Nelisa was in the company of Nomalady. They greeted
them and left. He conversed with Accused No.1 and 15 and he left them
as he had to collect livestock. He was at home at night on 5 January 2023
when he was arrest ed. His rights were not explained to him by W/O
Mtshemla. He took him to another house where he told his father to dress
up. He denied that he uttered any words to Neliswa. Upon being cross –
examined by Mr Tshingana he stated that he heard about the people who
died late that day.
[120] Under cross – examination by Mr Nabela he stated that he never saw
Accused No. 9. On that day. When cross - examined by Mr Philisane he
stated that Mr Thimba / Jola and Mr Makinana wanted to hold a meeting
about cable ties a t her grandparents (main ) home. They told them to go
outside the yard. No cables were stolen from their home and they did not
want to get involved in those discussions. He denied any involvement in
the assault or burning of the deceased persons. He deni ed that he was at
the places where they were fetched from. Accused No. 5 closed his case.
Accused No . 6 : Unathi Khakalala’s evidence
[121] He testified that he never attended any meeting where a decision was
taken that people who stole cable wires sh ould be burnt. On 31
December 2022, he attended festivities at Dyantyi’s place. He arrived
there around 5 am because the initiate had to be washed in the morning.
He consumed alcohol at the ceremony. He left between 12 pm and 13h00.
When he got home h e went to sleep because he was feeling drunk. He
woke up around 15h00 and washed. When he was throwing water his
neighbour Zamile called him and told him that the community was busy
pointing at a certain direction. He appeared to be drunk. When he looked
at the direction that was being pointed out he saw many people, young
and old, men, women and children. They were coming towards him . He
spoke to Khongo and enquired from him about what was happening.
Khongo told him that they were from Lwando’s place to fetch the cables
and Lwando said Marinki was also involved. He described the situation
as being chaotic. He decided to get back into his home. He saw the group
entering Ziphozihle’s home. His friend Siyamthanda arrived and they
both went to Bande’s pl ace. He heard the noise coming from Dyantyi’s
place. At Bande’s place he sat next to a rondavel. He mentioned the
people that he was conversing with at Bande’s place.
[122] Whilst conversing his maternal aunt called him inviting him to join them
at the beach for New Years Eve in Port Alfred. He went home , washed
his shorts, vest and Tshirt. He went to borrow a scrubbing brush from his
uncle’s home” Dosina”. He found Mr Sebenzile Jola talking on the
phone reporting that people had been burnt. He went h ome to wash his
sandals. There was no bad blood between him and Mr Jola, Mr Makinana
and Ms Lamani. He went to the initiation school with Khongo. They
usually differ with him because they usually talk to him about his
problem of smoking drugs. He did not take part in any assault of any of
the deceased , kidnapping or burning them. He denied hitting Ziphozihle
with a stick as testified by Khongo. The witnesses , Mr Khongo. Mr Jola
and Ms Lamani were mistaken when they implicated him. He was
arrested on 5 January 2023 as he was sleeping at his home.
[123] When he was questioned by Mr Dengana he testified that he did not see
Accused No. 3 at Bande’s place. He testified that the evidence of Ms
Lamani that he was in the company of Mr Dumisani Mpofana (accused
no.3), when he arrived at Bande’s place, is not correct. Under cross -
examination by Mr Philisane he testified that he did not meet Bonnita
and Yanga at Bande’s place. He denied embracing Vuyo and taking him
to the place where they were burnt. He denied that he was involved at all
in the kidnapping, assault or burning of the deceased people. He closed
his case.
Accused No. 7 : Mr Mfuniseli Mbinyashe ( sworn in)
[124] He is 65 years old. On 30 December 2022 , a cow was slaughtered at his
parental home. Jola sought permission to speak and he requested people
to listen to him. It appeared that he wanted to talk about community
issues. He told him that no such issues could be discussed at his home
when he was having a traditional ceremony. He told th em to hold their
meeting outside his yard. Jola and Makinana went to call the women as
well. They went outside the yard. When they returned alcohol was
served. The following day Jola and Makinana enquired why people were
there and not the hall as they had agreed the previous day. Jola got up
and told him that they were going to Dyantyi’s place. He said because
there were no trees at Dyantyi’s place, his neighbour, they were seeking
permission to sit at his house under the trees. He agreed.
[125] Around 4 pm or 5pm he thought of his livestock. As he was leaving his
father’s home he saw a lot of people behind Dyantyi’s house on the street.
He went down to see what was happening . Another group came with
Ziphozihle. He crossed the road and he met Makinan a who asked him to
intervene. He told him why would he ask him to intervene when he
himself was not intervening. An argument between them ensued and he
decided to leave Makinana. At some point he took an eight year old girl
through Dyantyi’s gate and told her to go home. He then stood next to a
pole . He knelt because he wanted to see whether it was his child that
was being assaulted. He saw Lwando and Nwabisa and had been
assaulted already and were seated there. He disputed that he tied Lwando
up . He te stified that maybe when he was kneeling Khongo thought he
was tying up people whereas he was looking through the legs of the
people. He stood there until another group came with another child. He
left when it became quiet when the victims had died. He nev er saw fire.
He then left. He denied that he brought a tyre or that he took part in the
burning of the deceased.
[126] Under cross - examination by Mr Tshingana he testified that it was not
normal practice to announce matters that affected the community. He
testified that the youth does not take decisions without discussing matters
with the elders. He never heard about the alleged decision by the youth
to hunt down and kill thieves that were troubling their homes. When he
was cross - examined by Mr Philisane he testified that when there is
something happening the elderly people would gather and would be at the
forefront. He confirmed that Accused No. 5 is his child. He never heard
about people stealing cables. He never went to Makinana’s house he was
busy. Even if he saw cables cut he would not take action as that is a
responsibility of the owner of the house to report. When asked about the
elders sending Xulu to fetch cables from Lwando’s place; his answer was
that he was at his home at that stage. Accused No. 7 closed his case.
Accused No. 8 : Ms Nombulelo Bukani ( sworn in )
[127] She stated that on the 31 st December 2022 she was at home with the
children and was looking after her father who was not well. She denied
the State’s evidence. She stated that she is Nombulelo Bukani and not
Sizani. She disputed the evidence of Neliswa Lamani that she was part of
the people who were making fire. She disputed that she threw stones at
the deceased and also denied that she was full of blood. She knew all the
State witnesses as they are all staying in the same village. She disputed
that she was part of the group that kidnappe d, assaulted and burnt the
four deceased persons. She heard about the incident around 4 pm on the
31 December 2022.She heard from her father who entered the house
exclaiming that he heard from Jola that his son had been killed. She was
arrested on 5 January 2023 at night.
[128] Her constitutional rights were not explained to her. Under cross -
examination by Mr Philisane she stated that she is Nombulelo Kitise but
she uses Bukani. Later she testified that on her identity document the
surname appearing there is Bukani. The reason she is known as Kitise is
because her mother is married into the Kitise family. She accepted that
on the indictment there is no Sizani but Bukani. She closed her case.
Accused No. 9 Mr Zwelandile Kitise ( sworn in )
[129] He confirmed that he is known as Boy - Boy. He knows all the State
witnesses. There was no bad blood between them. On the day in
question he left his home around 10 and went to Dyantyi’s home (
Accused No. 11’s home) where there was a circumcision ceremony. He
was with the community members , namely, Mack Ngcivana, De Klerk
Ngcevana and Melikhaya Dyantyi. He saw Silindokuhle Khongo when
he was calling him. He said to him he cannot call him becau se he is
young. At that time he was busy serving alcohol. Silindokuhle went to
them and told them that he would like to inform them that he is not a
cable thief. He explained to them that he saw the cables at Lwando’s
place . He did not hear De Klerk say ing to Silindokuhle if he was not
telling the truth he would be burnt. De Klerk suggested that Lwando’s
father must be told.
[130] He testified that it was De Klerk who went to Lwando’s place. He said
the elders must be told but he did not go to the elder s. He denied that he,
together with No.5 and No.1 , went to where Lwando was residing and
came out with cables. He disputed that he assaulted Lwando. He could
not see what was happening because of the big kraal at Accused No. 11’s
home. He denied that h e was part of the group that kidnapped and burnt
the deceased persons.
[131] Under cross – examination by Mr Tshingana he testified that it was De
Klerk who said Lwando’s father must be told . He disputed that it was
accused No.1 who said that. When bein g questioned by Mr Dengana he
confirmed that Boy – Boy is his nickname. He disputed that Lindi was at
Dyantyi’s place. He also disputed that he went with No.1 and No.5 to Mr
Makinana’s home. He was never in the company of Accused No. 5 on
that day. He closed his case.
Accused No. 10 : Mr Yanginkosi Solani ( sworn in)
[132] On the day in question he was at home at Ndindwa village. He left his
home after 2 pm. He went to the forest to look for a missing cow as he
was asked to do so by her maternal aunt. He did not find it. He went back
home. On his way back home he met Bonnita who was going to Bande’s
place. He went to Bande’s place with Bonnita in order for him to inform
his aunt about the cow. He found Nonose ( Accused No.12 ),Mvuseleli,
Siyabulela Lamani ( Vuyo’s brother) , Notititi Jola, Nonzame Jali and
other people. He is related to Vuyo.
[133] He asked Nonose whether he had seen his aunt and Nonose told him that
he was at Mbese homestead next to Bande’s place. People were drinking
at Bande’s place. He went to Mbese’s to report to his aunt and returned to
Bande’s place. As they were seated Mvuseleli said there were many
people coming to Bande’s place. He did not pay attention because he
thought they were coming to the ceremony. Xolisa Gidi went to
Siyabulela and asked him about Vuyo and further said Vuyo’s name was
being mentioned as one of the people who were stealing cables. This
witness asked who else was being mentioned and Xolani said it was
Lwando and Ziphozihle. He further told that others had been taken. He
heard a person saying here is Vuyo. He went to look and then told Xolisa
that Vuyo was standing infront of a group of community members.
Thereafter the group left with Vuyo. Mvuseleli said they must follow the
group but Bonnita sa id they came to Bande’s place for alcohol.
Mvuseleli and Xolisa left . He did not drink. He told Bonnita that he was
leaving . He went home and Bonnita said he was going home. He did not
leave his home. He heard at night about the people who were burnt . He
was arrested on 6 June 2023. He disputed the evidence of Makinana and
Lamani.
[134] Under cross – examination by Mr Dengana he confirmed that he is known
as Yanga. He did not see Dumisani Mpofana (Accused No. 3) on that
day. Neliswa was telling lies when she said he arrived at Bande’s place in
the company of Dumisani. Under - cross examination by Mr Philisane
his evidence was that he could not be at the forest and be at Makinana’s
home at the same time. He stated that he conveyed that to Ms Dyant yi
but could not recall whether she had put it to Makinana. He stated that he
was with Bonnita at Bande’s place between 4pm to 5pm. He disputed that
he embraced Vuyo as testified by Lamani. She stated that Neliswa did not
know how Vuyo went out. He said h e told her legal representative that
but she did not raise it with Lamani. He was not part of any meeting that
decided to burn people. He said none of the witnesses testified that he
assaulted Vuyo or Lwando. He denied that he, together with, Bonnit a,
Mpofana and Unathi embraced Vuyo and took him to the group of
community members. He closed his case.
Accused No. 11 : Mr Nkosinathi Dyantyi
[135] There was a circumcision ceremony for his grandson at his home on the
day in question. He was not pre sent at the scene. He was alone at home
and no one was helping him as he was attending to people who were
bringing alcohol. He knows Kongo and confirmed that he stayed in the
village. He denied removing Lwando’s toe nail with a pliers. He was not
present when the deceased persons were burnt. He denied that he
extracted Lwando’s teeth with a pliers. The only time he left his house
was to look for a sheep that was going to be slaughtered in the veld. He
found it and slaughtered it. He left home around 6: 30 pm., when it was
time to enkraal his goats. He asked people to leave because his goats
would not enter the kraal if there were many people. Thereafter he
remained home.
[136] Under cross – examination by Mr Tshingana he stated that there was a
meeting that was held outside his premises. He testified that they
discussed it and decided that they would ask them where they got the
cables from. When asked whether Accused No. 1 was told to go and
follow the group that was going to fetch the cables. He did n ot hear that
because he had a hearing impairment.
[137] When cross- examined by Mr Philisane he testified that he attended the
meeting that was held by community members. There were many people
he could not recall all of them . He mentioned Mluleki (accus ed no.1),
Boy- Boy ( Accused No.9) and Dumisani Mpofana(accused no.3) . He
could not dispute that Lindi and Yanga and Mvelisi were present. He
testified that the resolution was that people had to go and ask them where
they got the cables. He confirmed tha t three people were mentioned and
they are those who died. Those who accused him of pulling out a tooth
and toenail of someone, that he did not know because he was at home.
There was no bad blood between him and the State witnesses. He heard
that Nwabis a had entered his house but did not know whether she was
turned back or not. He did not consume alcohol on that day as he last
drank alcohol in 1974. He disputed the evidence of the State that he
participated in the assault and burning of the deceased. Hi s response was
that he was not there. He went to the scene in the morning because he
wanted to see if it was true that they were burnt. Later he stated that when
something is happening you are scared you cannot go. He was afraid but
did nothing . He could not stop many people. He could not call the police
because it was not his yard.
[138] He was also cross – examined by Mr Nabela he repeated that he was part
of the meeting that related to cable thieves. He stated that people were
called from Mbinyashe’s homestead because Mbinyashe stated that they
must hold a meeting outside his yard. When asked about the resolutions
he stated that he left the meeting as he was going to prepare for his
ceremony. He testified that the issue of cable theft was a big pr oblem in
the village because to replace them would cost R10 000.00. He stated that
it was reported to the police several times. He was not told why Nwabisa
had to be burnt for cable theft. He closed his case.
Accused No. 12 : Lungisa Mtyana ( sworn in )
[139] He testified that Nonose is his nickname. He knew the male deceased
persons but did not know Nwabisa. There was no bad blood between him
and all the state witnesses. He was not part of the meeting that discussed
theft of cables. He stated th at he was at Bande’s place. He remained
there the whole day. He was serving liquor. He was not present when
Lwando was fetched. He did not follow Vuyo around. When asked
whether he left Bande’s place he stated that he left with Vuyo because
Vuyo asked him to accompany him to fetch his cigarette from where he
was staying. They left and Vuyo went into his home. Vuyo quarreled
with his sister and he told him that he will find him at Bande’s
homestead. Vuyo went inside a rondavel at Bande’s place. They st ayed
next to the kraal and consumed liquor. Around 4 pm Yanga and Bonnita
arrived. Bonnita consumed alcohol but Yanga does not partake in liquor.
Yanga asked about Athi’s mom and he told him that he was at Mbese ‘s
place.
[140] A group of people appeared and they stood next to another homestead.
Xolisa told him that Lwando was found to be the person who was stealing
cables and they were found from him. He told him that they came to
fetch Vuyo. He was shocked that Vuyo was involved in cable theft. He
did not join the group but left the homestead after sunset. He heard when
he was at the tavern at night that the deceased persons were burnt. He was
arrested in July 2023. He disputed that he brought Nwabisa back into the
fire and cut her ligaments. He corroborated the evidence of Ms Lamani in
the following respects : He arrived at Bande’s place early in the morning.
Vuyo was also at Bande’s place.
[141] Under cross – examination by Mr Tshingana he stated that Nelisa came
from her home and that time Vuyo ha d been taken already. She could not
have seen how Vuyo was taken because she was not there. When cross -
examined by Mr Dengana he testified that he did not see Accused No. 3
at Bande’s place. When cross – examined by Mr Philisane he testified
that he heard about the cable theft in the area. He disputed the version of
Mr Jola that he cut Nwabisa’s ligaments as being untrue. He stated that
Nelisa Lamani was telling lies about him because she was not at Bande’s
place. He stated that he saw Nelisa getting out o f her home when people
had gone away with Vuyo already. He was adamant that Nelisa was never
at Bande’s place on that day. He disputed that Vuyo was assaulted at
Bande’s place. He was present when Vuyo was taken at Bande’s place.
He heard at the tavern t hat people were burnt but had no interest in
knowing who was burnt and why. Later he stated that the names of the
deceased persons were mentioned. When asked whether he was not
bothered to hear that Vuyo was burnt , his response was that he does not
get bothered by issues in connection with thieves. Accused No. 12
closed his case.
Accused No: 13 : Mr Zandisile Kitise ( sworn in )
[142] He also resides at Ndindwa Location. He was born there. He grew up
together with Mr Makinana. Before the incident he was in bad terms with
Mr Makinana. He denied that he was present when the deceased persons
were burnt. He also disputed the state’s evidence that he tried to evade
arrest. On the day in question he was in the veld looking after livestock.
Between 14h30 an d 15h15 he went back home because he was hungry.
As he was in the village he heard noise around the Dyantyi homestead.
He went home to prepare food for himself. After he had his meal he went
to Dyantyi’s homestead. Before he could get into the premises he realized
that there were people behind Dyantyi’s home. When he looked he saw
that there was chaos. He decided that the situation was not suitable for
him and he went home.
[143] Under- cross examination by Mr Philisane he stated that he heard about
the meeting but he was not present at the meeting. There was no bad
blood between him and the other witnesses other than Mr Makinana. He
disputed the evidence of Mr Makinana that the issue between them was
resolved. He stated that went to Dyantyi’s place in t he morning and left
and was not there the whole day. He decided not to go to Dyantyi’s place
for fear of being associated with the chaos that was taking place there. He
saw children pushing tyres, there were others beating up people but did
not see who th ey were. When this was happening it was around 15h00
and there was sufficient light for him to see what was happening. He
went home and did nothing . He did not report the incident to the police.
When asked by the court he testified that he saw people being beaten with
sticks by many people. He associated the tyres with the assault because
during the struggle days there were always tyres involved. Thereafter
accused No. 13 closed his case.
Accused No. 14 : Ms Nombuzo Mbinyashe( sworn in )
[144] She testified that on the day of the incident she was at Ndindwa. He
knew the state witnesses and her co – accused. There was no bad blood
between them. She was not at the meeting where it was decided that cable
thieves were to be burnt and was not aware of that resolution. A cow was
slaughtered at her home. She was busy at home and was not present
when the deceased persons were fetched from their homes and burnt next
to Dyantyi’s place. She denied that she was one of the people who were
making fire at the scene because she was not there. She stated that when
Mr Sebenzile Jola and others were trying to hold a meeting at her home
they said they did not want women present at the meeting. They told the
meeting that they were going to hold a meeting. They said they did not
want women because women had empathy and she had no reason to go
there because she was busy.
[145] Under – cross examination by Mr Philisane she denied any knowledge
about the meeting at the hall, cable theft or that there were cable thieves.
She stated that she never heard about cables that were found at Lwando’s
place. She only heard when it was said people were going to fetch cables
from Lwando. She heard about that on the 30 th December 2022. She
stated that Makinana was telling l ies. She did not see people going to
Lwando’s place to fetch cables. Accused No. 7 is her brother. She stated
that Jola and Makinana wanted to hold a meeting at their home but her
brother chased them away. She was not present when they were chased
away. She stated that the meeting was held outside their homestead. She
was fetching water from the tap next to the kraal and she heard that they
were quarelling because others wanted to hold the meeting there and
others wanted it to be held at the hall. She kn ew the deceased persons
except Nwabisa who was not from their village. His brother , No. 7 was
with him most of the time and he only went out to collect livestock.
Thereafter he went to his house and did not go back to the great home. He
left the people th at had come to the ceremony because it was late at
around 17h00. She did not know the purpose of the meeting but was
surprised that women were not going to attend . She disputed that she
associated herself with the burning of the deceased by making the f ire.
Accused No. 14 closed her case.
Accused No. 15 : Mvelisi Xulu ( sworn in )
[146] He confirmed that his nickname is Ta Mr. He is 44 years old. He
confirmed that accused no.1 is his brother. He knows all the state
witnesses. He disputed the evidence of Lamani and Jola in so far as it
related to him. They were making a mistake because h e never went to
Jola’s home. He also disputed the evidence of Kongo that he is one of
the people who went to fetch Vuyo from Bande’s place. He went to
Makinana’s home when people were already there and he did not enter
his house. He denied assaulting a nyone on that day. He was not part of
any meeting where a resolution about cable thieves was taken. He lives
with his family. He confirmed his arrest by W/O Mtshemla and Sergeant
Melane. He and his brother lived with their parents and their wives. Their
mother is still alive but their father passed on during January 2024 when
they were already in custody.
[147] He committed suicide as a result of their incarceration. On 31 December
2022 , he attended the ceremony that was at Dyantyi’s place. He denied
that he was part of the group that went to fetch Vuyo from Bande’s place.
On that day he did partake in alcohol. He was not employed before his
arrest but was using his father’s truck to deliver goods for people. He
left Dyantyi’s place to Makinana’s place when he heard that people were
going to fetch cables from Makinana’s homestead. He decided to use the
big gate at the Makinana homestead because there were many people next
to the small gate. He denied that he forced Kongo to carry cables because
he was far from him. He was questioned whether he was where Lwando
was and what role did he play when Lwando was being beaten and taken
to the place next to Dyantyi’s place. He stated that he played no role
because he went up the street to Dyantyi’s homestead. When asked when
did he leave Dyantyi’s place to go to the place where people were burnt.
His response was that he went out and he saw people and the noise and he
tried to intervene.
[148] He stated that accused no.1 took him away from the scene when he saw
that people were going to be burnt. He also stated that Kongo confirmed
that they intervened. They could not call the police because people said
no- one would carry a cellphone. This was said during the commotion.
At the stage when his brother to ok him away from the scene the fire had
not started. He confirmed that he met Lamani late when he was with
accused no’s 1 and 5 and she was going to the scene. She was seeing her
for the first time that day.
[149] Under – cross examination by Mr Philisane he stated that he did not hear
about meetings to deal with crime at Ndindwa. He did not see any
meeting outside Dyantyi homestead except for old people from other
places. There were elderly people from Ndindwa. When he got there the
meeting was over. Later he disputed that he said anything about a
meeting. When asked why did he associate himself with the group, his
response was that when he arrived at Dyantyi’s homestead he heard that
cables were going to be fetched. He wanted to see where they we re
taken out, what type of cables were they and where would they say they
got them from. He stated that he did not enter Makinana’s home he stood
outside.
[150] He disputed Kongo’s evidence that he entered the house. He stated that
Lwando was carrying the cables. Lwando was being beaten up by a group
of people that were inside the yard. He could not dispute that accused
nos’ 1; no.9 and no. 5 were the first to get inside the house. He stated that
he moved away from the group when they were going down with Lwando
and Nwabisa because he was drunk and did not want to take the uphill to
Dyantyi’s homestead. He disputed Kongo’s evidence that this witness
asked him to carry the cables. When he got to Dyantyi’s house he did not
find the cables. The cables were not taken to the elders. Jola was
accusing him falsely because he never went to his house and did not
assault his son. He said Kongo confirmed that this witness never went to
Jola’s house. He went to the group he was with before and they said they
were behind the house. He was intervening by using his hands and getting
between people. At that time they were being beaten. When he could not
stop them he went to stand next to the fence. He disputed the evidence of
Jola that he was assaulting the victims.
[151] He was asked :
Q: You say your brother came to you where you were when people
were being burnt?
A : Yes
[152] He confirmed that he went home and did not go to the elders to ask them
to stop the commotion. He did not see a need to report to them. U nder re-
examination he stated that when he entered Dyantyi’s place he did not
know whether they had meeting or not. He was not given an instruction
by the elders about cables and was therefore not obligated to report to
them. He did not know what was do ne about the cables by the
community, maybe they had meetings but he was not part of those
meetings. Some people were assaulting Lwando and some were
watching. The number of the accused does not match the number of the
people that were at Dyantyi’s place. Accused No. 15 closed his case.
Accused No. 16 : Thobani Vena
[153] He is 37 years old. He has two children who are 12 and 6 yrs old. Prior to
his arrest he was doing odd jobs in the residential areas. He was arrested
on 19 December 2023, almost a yea r after the incident. He resides at
Ndindwa. He was arrested by Sgt . Melane. He was arrested around 3 pm
from a house where he had gone to fix a leaking tap. He was told by the
police that he was a suspect in the case where people were killed on the
31st December 2022. He did not explain his constitutional rights. He told
the police that he was not present where people were killed.
[154] On that day he was at Mbinyashe’s place where there was a traditional
ceremony. He arrived there around 10 am. He ate meat and drank alcohol.
Thereafter he went to Dyantyi’s place where the initiate was returning
home. He left Mbinyashe’s home around 12pm. He sat in the house that
was in front of Dyantyi’s homestead where the initiate was. He stayed
there and drank u ntil sunset. A young man came to fetch the initiate
around 7 pm. He did not hear any noise because at the house where the
initiate was music was being played. He disputed the evidence of
Makinana that he was part of the group that took Lwando. He stated t hat
he was not there and Makinana was making a mistake. He went home
around 7 pm.
[155] Under cross – examination by Mr Philisane he stated that on the 30 th
December 2022 , there was a meeting outside the yard of the Mbinyashe
homestead. He went to fetc h his phone at some stage but returned to the
Mbinyashe homestead. There were many people that attended the
meeting. He disputed that he was amongst the people that assaulted
Lwando and Nwabisa. The third house that was in front of Dyantyi’s
homestead was about 150 metres from Dyantyi’s homestead. He did not
hear any noise even when he went outside to urinate. He heard the
following day when he was at the tavern that people were burnt by the
community members. He disputed the evidence of Makinana that he was
part of the group that assaulted Lwando and also burnt him and the
others. It was put to him that Sgt . Melane was looking for him and could
not find him hence it took long to arrest him. The meeting was about the
theft of cables. He described the c ables as the black cables that were cut
from the Eskom poles. He closed his case.
Legal submissions
Mr Philisane
[156] The State submitted that the court should find all the accused persons
guilty on all the charges. Mr Philisane submitted that the evidence points
to the guilt of the accused persons and that their version of events was
clearly false and it should be rejected. He relied on S v Chabalala 2003
(1) SACR 134 (SCA) at 139 I – J where the Supreme Court of Appeal
stated:
“The correct approach is to weigh up all the elements which point towards the
guilt of the accused against all those which are indicative of his innocence,
taking proper account of inherent strengths and weaknesses, probabilities and
improbabilities on both sides and, having done so, to decide whether the
balance weighs so heavily in favour of the State as to exclude any reasonab le
doubt about the accused's guilt.”
[157] He relied on the doctrine of common purpose as espoused in S v
Mgedezi S v Sefatsa & Others 1988 (1) SA (A) and
[158] He had analysed all the evidence of the State witnesses and of the
accused persons and submitted that the State had succeeded in proving its
case beyond reasonable doubt against all the accused and that their
versions are not reasonably possible true and they must all be rejected. He
further submitted that the witnesses had placed all the a ccused persons at
the scene of crime. He submitted that the State’s witnesses were credible
and consistent in their testimonies. Where there were contradictions, he
submitted, those were not material. The issue of the identity of the
perpetrators was not an issue as all the people were known to one another.
He submitted that this is a case where the doctrine of common purpose
comes into play as indicated in the indictment. All the accused acted
together for a certain common purpose to achieve, which is the killing or
and/ or burning of the thieves of cable wires. This had happened by first
convening meetings in the various places at Ndindwa Administrative
Area, the community was tired of theft that was going on and an
agreement was taken that thieves of cabl es must be searched and burnt to
death.
[159] The people that were associated with stealing were identified and were
forcefully taken away from their homes without their consent, they were
assaulted and were placed next to Dyantyi’s home and were burnt to
death. Mr Dyantyi had testified that theft of cable wires was reported to
the police on numerous occasions, but nothing was done and they had to
pay about R10 000,00 to Eskom to fix the situation, that is why the
community in meetings they had come to that agreement. What this
means is that, all the accused were aware of the agreement. That is why it
was indicated that there must be no cellphones when all the homesteads
were visited up to the place where the victims were placed and burnt.
Mr Tshingana
[160] Mr Tshingana for accused No’s 1 and 15 submitted that the onus to prove
the guilt of the accused beyond reasonable doubt rests entirely on the
State. There is no obligation on the part of the accused to prove their
innocence. Where the State has proven a prima facie case against the
accused, the accused are dutybound to provide a reasonable explanation
to answer to the allegations so proven. He submitted that it was common
cause that accused no.1 did attend to the homestead of Mr Makinana to
look for cabl es on the instructions of the elders. It is further common
cause that accused no.15 was also at Mr Makinana’s homestead. It is a
further undisputed fact that accused no.1 did not go to Mr Jola’s
homestead.
[161] He identified that what is in dispute is wh ether the accused kidnapped,
assaulted and burnt to death any of the deceased persons. He also
submitted that it was common cause that the deceased had died due to
burns as sustained from a fire as they were all alive prior to them being
burnt as testified by Dr Ntloko. He relied on Sphanda v S (A607/2017)
[2021] ZAGPPHC 186 (29 March 2021) at paragraph 39 where the court
stated:
“[39] As indicated supra that in criminal proceedings the State bears the onus to prove the
accused’s guilt beyond a reasonable d oubt, the accused’s version cannot be rejected
solely on the basis that it is improbable. It is only when the trial court has made a
finding on credible evidence that the accused’s explanation is false beyond a
reasonable doubt. The corollary is that, if the accused’s version is reasonably possibly
true, the accused is entitled to an acquittal. It is trite that in an appeal the accused’s
conviction can only be sustained after consideration of all the evidence and the
accused’s version of events.”
[162] He submitted that the court has to find, first of all, whether the accused
did kidnap Lwando Makinana and Nwabisa Melane by their presence and
by the role played by accused no.1 at Makinana’s homestead when cables
were recovered. He also submitted that the court must also find as alleged
by the State whether accused no.1 and 15 did kidnap the other two
deceased by acting in furtherance of a common purpose. Whether the
accused had, together with the group of people killed the deceased in
furtherance of commo n purpose and whether by so doing they caused
public violence.
[163] He further submitted that the evidence of Lamani in respect of accused
no.1 is that of a single witness. It should not be accepted as true, correct
and reliable considering the material contradictions in her evidence and in
that event, the court should accept as reasonably true the accused version.
He submitted that the State is relying on circumstantial evidence in
linking the accused with the kidnapping and killing of the deceased. In
this regard, he relied on S v Reddy & Others 1996 (2) SACR 1 (A) at 8
C-D on assessment of circumstantial evidence.
[164] He urged the court to reject the evidence of the State as being unreliable
and not credible. He relied also on S v Thebus & Another 2003 (6) SA
505 (CC) at paragraph 18. Referring to that judgment he stated that at
paragraph 19 the Constitutional Court identified two different forms of
common purpose. He submitted that there is no evidence before court that
the accused had prior agreement with their co -accused to commit the
crimes in questions, not even by way of active participation. He
submitted that it would appear to him that the group had, in a spur of a
moment, whether individually and/or collectively decided to assault the
deceased rather than to give them to the elders to account.
[165] He submitted that the court should give the accused the benefit of doubt
and acquit them on all counts including those of kidnapping. He
submitted that in the event that the court rejects accused no. 1’s version in
relation to the assault of Nwabisa Melane, the court should return a
verdict of guilty only on common assault.
Mr Dengana
[166] Mr Dengana criticized the evidence of Kongo especially in relation to
accused nos. 3 and 4. He submitted that alt hough Kongo had submitted
that he knows accused nos. 3 and 4 but he never mentioned them as
people that had gone to the house of Makinana. He concluded therefore
that these accused persons were not there. He submitted that Kongo
proved himself to be untrus tworthy witness in several respects which he
outlined in his argument. Those were that sometimes in his evidence he
said accused no.7 tied up the deceased persons but later changed his
version to say only Lwando was tied up. The second area was that in hi s
evidence he said after Lwando and Nwabisa were placed at the spot near
Dyantyi’s place, it was accused no.5 who asked Lwando to name the
other persons. This was contrary to the version that he had given to the
police in Exhibit “B” to say it is accused n o.7 who asked that question.
Third, in his evidence in court he said accused no.5 who asked about the
whereabouts of Ziphozihle upon their arrival at his home, whereas in his
statement to the police it was Boy -Boy( accused no.9) who had asked
that question. He did not mention in his statement at some stage accused
no.7 was tying Lwando. He mentioned that when the victims tried to
escape from the fire accused no.5 would throw them back into the fire
and that aspect was not contained in Exhibit “B”.
[167] In his evidence in court he had said accused no.7 was among the group
that went to fetch Lwando and yet that part of his evidence is not
contained in his statement. He had also stated in his statement that
accused no.7 assaulted the victims with a knobkerrie and he omitted to
mention this fact in his evidence. He therefore submitted that in Mabaso
v S [2021] ZASCA 98 at paragraph 29 it was that:
“[29] The contradictions in all statements made by witness and his testimony, which are
obviously material, should alert the high court to be on its guard and find such
witness to be an untrustworthy witness.”
[168] He criticized the evidence of Makinana where he had stated that he was
called by Thabisa to leave before the group was burnt. It was Thabisa
who informed him that a tyre was used in order to burn them. But later in
his statement he had stated that it was accused no.7 who brought a tyre to
burn the deceased persons. He submitted that it was a very serious
contradiction that negatively impacts on the credibili ty of Makinana’s
evidence. He had admitted in his evidence that he did ask accused no.7 to
intervene when the four victims were being assaulted. If that is so, it is
highly improbable that Makinana would have asked accused no.7 to
intervene if accused no.7 was one of the attackers.
[169] He submitted that Jola also did not implicate accused nos. 5,3,4 and 7 and
yet he is from Ndindwa Location. He also did not mention accused no.5
as one of the people who had been to his place that afternoon. He
submitted that Kongo had lied when he stated that accused no.5 had
attended at Jola’s place and had talked to Jola. Jola had testified that
accused no.5 was one of the persons who were making fire. He also
submitted that Jola had admitted that he was susceptible to making
mistakes and his version therefore cannot be relied upon.
[170] He submitted that Ms Nelisa Lamani implicated accused no.3 as one of
the persons who went to fetch Vuyo from Bande’s place and she
implicated accused no.5 and no.7 as having activel y participated in the
beating of the victims. When confronted with both her statements, she did
not mention accused no.7 in the attack of the victims. In this regard, it
was also submitted that Lamani too was not a trustworthy witness.He
requested the cou rt to apply the principles applied in Mabaso. He
submitted that in so far as the evidence relating to Vuyo being fetched
from Bande’s place, Lamani’s evidence stands as that of a single witness
and therefore her evidence has to be treated with caution. In this regard,
he relied on R v Mokoena 1932 OPD at 79 and also in Cupido v S [2024]
ZASCA 4 at paragraph 19.
[171] He stated that W/O Mtshemla had stated that he recorded everything that
Ms Lamani had conveyed to him and if not contained there, then it wa s
not conveyed to him. He submitted that accused nos. 3, 4, 5 and 7
testified and they denied having been anywhere near the scene of the
crimes. Accused no.7 had testified that he was from his parental home
when he saw the group of people. He went closer t o the group of people
to investigate what was happening. It is then that he was requested by
Makinana to intervene. He submitted that it was highly improbable that
accused nos. 5 and 7 being host of a ritual would have left their home to
attend the attacks alleged against them.
[172] On common purpose he relied on the decisions in Phathe v S [2024]
ZAGPJHC 504 paragraph 9 and also on S v Mgedezi, supra. In Sithole &
Another v S [2017] ZAGPPHC 169. He also relied on S v Viveiros 2000
(1) SACR 453 SCA at 455B
“A court is not entitled to convict unless it is satisfied not only that the explanation is
improbable but that beyond any reasonable doubt it is false. It is permissible to look at the
probabilities of the case to determine whether the accused's version is reasonably possibly true
but whether one subjectively believes him is not the test. As pointed out in many judgments of
this Court and other courts the test is whether there is a reasonable possibility that the
accused's evidence may be true.”
accused's evidence may be true.”
[173] He submitted that the State has failed to prove its case beyond reasonable
doubt in so far as accused nos. 3, 4 and 7 and they are entitled to be
acquitted on all counts. He further made submissions that regarding the
public violence charge which is count 9, he submitted that such charge
cannot sustain a conviction if one had regard to the definition and
elements of the charge.
[174] He referred in this regard to Le Roux & Others v S 2010 (2) SACR 11
SCA at paragraph 5:
“[5] At the outset, a nd in view of the appellants' argument that the incident we are concerned
with was not so serious as to amount to public violence, it is apposite to consider what
constitutes that offence. Public violence is described by Snyman as follows:
'Public violence consists in the unlawful and intentional commission, together with a
number of people, of an act or acts which assume I serious dimensions and which
are intended forcibly to disturb public peace and tranquillity or to invade the rights of
others.'
It is apparent from this definition that the salient features of the offence are that a group of
persons, acting in concert, must be shown to have committed an act or acts of sufficiently
serious dimensions which invaded the rights of others and disturbed public peace.”
[175] He submitted that the rights of others invaded in this matter would be
their right to life and therefore this charge amounts to duplication of the
charges of murder. The element of disturbance of public peace is lacking
in the matter becau se the acts of violence perpetrated in this matter were
directed at particular individuals. He submitted that the accused persons
therefore, on those basis, ought not to be convicted in respect of count 9
because it amounts to a duplication of a charges of murder and therefore
accused nos. 3, 4 5 and 7 ought to be discharged in count 9. He urged the
court to discharge all the accused on all the counts.
Mr Nomlala
[176] Mr Nomlala for accused nos. 6, 10, 12 and 14 argued that Kongo did not
implicate accu sed nos. 10, 12 and 14 in kidnapping and murdering the
deceased. He submitted that because Kongo had said he made a mistake
deceased. He submitted that because Kongo had said he made a mistake
by mentioning accused no.12, then on that basis accused no.12 ought not
to be found guilty on assaulting and murdering of any of the deceased
persons. He submitted that Makinana was clearly anxious because he
was looking at his son. He must have been nervous and anxious and
would not have observed clearly and identified the people who took part
in kidnapping and assaulting his son. He mentioned all the accused
persons simply because they were arrested for these cases. He submitted
that because Jola could not point out accused no.14 at court, therefore it
means that she didn’t take part in making the fire to burn the deceased
persons.
[177] He submitted that because on the witnesses’ versions, there were many
people, there was also smoke and considering their emotional state and
Jola’s poor eyesight, it must be inferred that he was not able to properly
observe everything which took place . Although he accepts the version of
Lamani that Nonose (accused no.12) never left Bande’s homestead, that is
consistent, according to him, with accused no.12’s version. However, he
part ways with her reasoning that Nonose was there to keep guard of
Vuyo and asked that her evidence in this regard is to be found to be false
beyond reasonable doubt. There is no evidence that the accused persons
that he represents were made aware about the decision to go and kidnap
and assault and kill Lwando and all the other deceased persons. He
submitted that if Makinana testified that accused no.14 and no.8 had
blood on them, for as long as that blood has not been tested, then it
cannot be said that it was that of the deceased persons. He also relied on S
v Thebus on the principles dealing with the doctrine of common purpose
and S v Mgedezi. He also relied on Shackell v S 2001 (4) ALLSA 279
(SCA) at page 288E-F.
[178] He submitted that the versions adduced by accused no.6, 10, 12 and 14
are reasonably possibly true and t hat they remained unshaken under
cross-examination. He stated that the legal position with regard to alibis is
that there is no onus on an accused to establish it and if it might
reasonably be true he must be acquitted. In this regard, he relied on R v
Biya 1952 (4) SA 514 AD. The alibi cannot be considered in isolation. He
submitted that the State failed to prove its case beyond reasonable doubt
and that all the accused persons ought to be acquitted on all the charges.
Mr Nabela
[179] Mr Nabela represen ted accused nos. 8, 9,11 and 16, similarly he was
critical of the evidence given by the state witnesses and also relied on S v
Sefatsa and S v Mgedezi who are already referred to above. He further
relied on S v Zwempi 2011 (2) SACR 227 (ECM) where Alkema J
analysed the requirements of common purpose at 248 -249 at paragraphs
51-53 as follows:
“[51] The definition embodies two elements or stages. The first stage refers to the
conditions which must be fulfilled before the principle of imputation of conduct ca n
operate; and the second stage refers to the scope and extent of imputing the conduct
of one party to the others. The second stage, to repeat, only comes into operation
when the conditions of the first stage are fulfilled.
[52] The conditions in the firs t stage which trigger the principle of imputation are either a
prior agreement or an active association in the joint venture. Any one of these
conditions must exist.
[53] The second stage of the definition imputes conduct to an accused which 'falls within
the common design or purpose'.”
[180] He submitted that the undisputed facts are that: it is common cause that
four deceased persons were kidnapped, assaulted and burnt to death by
Ndindwa community members. It is also common cause that the incident
occurred on 31 December 2022 at Ndidwa Administrative Area. It is also
common cause that the four deceased were burnt near the homestead of
accused no.11. His clients disputed that they took part in the perpetration
accused no.11. His clients disputed that they took part in the perpetration
of any of the alleged offences. He submitted that Kongo and Jola made no
mention of accused no.8 having committed any of the offences. It was
only Makinana and Nelisa who implicated her. Makinana said accused
no.8 threw stones and was full of blood whilst Ms Lamani testified that
she was amongst the ladies who were making fire. That meant that the
State had two different versions and the question to be asked is which one
should the court accept. He urged the court to prefer the version that
accused no.8 had given.
[181] In so far as accused no.9 is concerned. Accused no. 9 had also disputed
any involvement in the offences committed. All these witnesses knew
accused no.9 well. The only evidence against him was that he was the
first to enter the house where Lwando was and he assaulted him and got
out with him with cables. Both Kongo and Makinana said after accused
no.9 and others got out with Lwando, Lwando was then attacked by a
group of people. There was no evidence suggesting that accused no.9 did
anything else to Lwando. There was also no evidence t hat when the four
deceased were kidnapped and burnt, accused no.9 was present. He
submitted that accused no.9 can only be found guilty of assault with
intent to cause grievous bodily harm to Lwando only.
[182] In respect of accused No.11, Khongo had said accused no.11 was carrying
a pliers and he removed one of Lwando’s toe nails, whereas Makinana
had said he had extracted one of the Lwando’s teeth. Those two versions,
according to him, are irreconcilable and he submitted that accused No.11
should be given the benefit of doubt and should be acquitted on all
counts.
[183] In respect of accused No. 16, he submitted that accused he should be
acquitted on all counts as there was no evidence stating which role he
played and the court should also prefer his version and acquit him.
Mr Heshula
[184] Mr Heshula represented accused No.13. He submitted that the State relied
on the evidence of a single witness who implicated accused No.13. He
submitted that the cautionary principles relating to single witnesses m ust
be applied. Accused No.13 had given evidence stating that he was never
part and parcel of a meeting which was held by the members of the
community prior to the date of the incident. On the day in question, he
was looking after his livestock but because he was hungry, he decided to
go home to get some food. On his way to his homestead, he heard a noise
coming from nearer Dyantyi’s homestead because there was a traditional
ceremony. On his way back from his homestead going to Dyantyi’s
homestead he notice d that there was a commotion by community
members and decided not to enter Dyantyi’s home but decided to return
to his home.
[185] In this regard, he referred to the case of Shange & Others v S [2016]
ZAKZPHC 115; [2017] 3 ALLSA 789 KZP. The court found th at
common purpose where there is prior agreement amongst co -accused to
commit a crime in which instance all the participants will incur criminal
liabilities even if they are not present at the scene of the crime. He
submitted that there was no prior agreem ent amongst the co -accused but
they spontaneously joined in or participated in the commission of the
crime.
[186] He submitted that based on the foregoing decision, accused No.13 was
not part and parcel of any offences committed , hence he should be
acquitted. He further submitted that the prerequisites set down in Mgedezi
case were not satisfied in the case of accused No.13 and he asked that he
be acquitted in respect of all the charges that he is facing.
Analysis of the evidence
[187] It is trite that w hen the Court analyses the evidence and evaluates it , it
must take all the evidence into account. It cannot pick and choose for to do so
would flout the interests of justice. In S v Van der Meyden 1 Nugent J, (as he
then was) stated at page 450 paras a -b :
‘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.’
[188] In their publication; Principles of Evidence, Third Edition Schwikkard
and V an Der Merwe at paragraph 312 state as follows:
“It is a fundamental principle of our law that in a criminal trial the burden of proof rests on the
prosecution to prove accused’ s guilt beyond reasonable doubt. At the onset of the trial, in tandem with
the burden of proof, the state must also discharge the evidential burden. It will do this by establishing a
prima facie case against the accused. Once a prima facie case is established the evidential burden will
shift to the accused to adduce evidence in order to escape conviction.”
[189] Where there are considerations of circumstantial evidence, in particular
whether the inference sought to be drawn is the only reasonable
inference, one need not be concerned with “remote and fantastic
possibilities”. It is not incumbent upon the sta te to eliminate every
conceivable possibility based on speculation 2. When drawing the only
reasonable inference to the exclusion of all the other inferences, those
other inferences, must also be supported by the evidence and must not be
imaginary.
1 S v Van der Meyden 1999 (1) SACR 447 (W).
imaginary.
1 S v Van der Meyden 1999 (1) SACR 447 (W).
2 See: S v Reddy 1996 (2) SA 1 (A) and cases discussed therein).
[190] In David Papiki Komane v The State 3, Mbatha JA , writing for the Court
examined the sufficiency of circumstantial evidence to sustain a
conviction. She stated at para 37:
“[37] The sentiments expressed by this Court in S v Ntsele 1998 (2) SACR
178 (SCA) are relevant, where it held that the onus rests upon the State in
criminal proceedings to prove the guilt of the accused beyond a reasonable
doubt, not beyond all shadow of a doubt. The Court in Ntsele further held
that when dealing with circumstantial evidence, as in the present matter, the
court was not required to consi der every fragment individually. It was the
cumulative impression, with all the pieces of evidence made collectively, that
had to be considered to determine whether the accused’ s guilt had been
established beyond a reasonable doubt. The applicant’ s challen ge to the
evidence was in a piecemeal fashion. Courts are warned to guard against the
tendency to focus too intensely on separate and individual components of
evidence and view each component in isolation.”
[191] With those principles in mind I now proceed to analyse all the evidence.
Mr Kongo’ s evidence
[192] Kongo was suspected of being one of the cable thieves. He was forced to
go with the community members that went to Lwando’s place. His
observations just like those of the other witnesses and the accused
persons were those of persons who were observing a s cene that had many
people. I have to be mindful of that. He told accused No.9 that he had
seen cables at Lwando’s place under the bed and that is where the cables
were found. He was cross – examined at length . It is so that at some
stage he indicated tha t he was confused and clarified later that he had
confused Boy - Boy and Lindi. There were some contradictions in his
evidence but he was frank enough to correct those mistakes. The question
is whether those contradictions rendered his evidence unreliable . The
is whether those contradictions rendered his evidence unreliable . The
3 David Papiki Komane v The State (51/2019) [2022] ZASCA 55 (20 April 2022).
undisputed fact is that this witness knew all the accused before court very
well.
[193] They also knew him. His testimony was challenged under rigorous cross–
examination by the various legal representatives . He was able to make
concessions where he made a mistake and did not exaggerate in his
evidence. Where he was not present, for example, when Vuyo was
fetched, he said so. Most of his evidence was corroborated by various
accused persons. Those will become apparent as I analyse all the
evidence. He was very frank in that he admitted that he smoked dagga
with his friends but could observe what was happening. His evidence was
corroborated by Makinana and Jola in material respects , namely, the
sequence of how the victims were fetched, who entered Lwando’s place
first, how their sons were removed , the assault on them and where they
were placed and burnt. They did not identify the exact same accused
throughout , to expect that would have necessitated them to fabricate their
evidence given the number of people that were present and what was
happening at a particular time.
[194] There is an issu e of contradictions raised which arose between the
witnesses statements made to the police and their testimony before this
court. It relates to some of the accused not being mentioned or being
mentioned as , for example, questioning Lwando. It was submitt ed that
these are material contradictions which would lead to the evidence of
Kongo , for example being discredited and him being labelled an
untruthful witness.
[195] Although there are certain omissions in Kongo’s statement he never
deviated from his evi dence. In this regard, when one deals with the
deviations by witnesses , one should seek guidance from , inter alia, cases
such as S v Govender 4, S v Bruiners 5and S v Mafaladiso en Andere 6.
The principles articulated in those decisions is that not ever y deviation
from a witness police statement has a detrimental effect on the witness’s
evidence. Many things that the court must consider is that, first of all,
these statements are never taken in perfect situations. The timing of the
statements of Kongo, Ms Lamani, Mr Jola and Mr Makinana should be
considered. Neliswa had watched his brother being burnt and a statement
was taken from her that very evening.
[196] Mr Makinana’ had witnessed the gruesome assault on his son to such an
extent that he pleaded w ith him to die due to the injuries he sustained
before he was burnt. Mr Jola watched his son being brutally assaulted and
he believed that he died instantly. Kongo was fearing for his life and on
that fateful day he watched his cousin Lwando being brutall y assaulted
and burnt . These people had to relive their ordeal by recalling the events
of the day with reasonable precision when giving statements to the police
and giving evidence before this court.
[197] The issues that were omitted in the statements were responded to in the
oral evidence of these witnesses and they were cross - examined at length
on those issues. The court is enjoined to consider those holistically and
the import of those against all the other evidence. The omissions in
Kongo’s evidence, Jola’s evidence, Neliswa’s and Makinana’s evidence
and the corroboration of their evidence even by some of the accused must
mean that those omissions cannot have a fatal effect on their evidence.
[198] The court has also taken into account circumstan tial evidence which
related to whether or not there was agreement to burn cable thieves and
4 S v Govender 2006 (1) SACR 322 (EC),
5 S v Bruiners 1998 (2) SACR 432.
6 S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA).
the principles outlined in S v Reddy 7. I shall address that later in this
judgment. I find that the evidence that Kongo gave was not tailor made
to suit the State but it was credible and reliable. I accordingly accept it.
Mr Makinana’ s evidence
[199] Mr Makinana gave clear evidence and was able to recall the role played
by those accused persons that he identified at the scene of crime. He
recalled the events o f that day very well. He too, was cross - examined at
length. The only contradiction he made was whether Lwando was tied up
when he was carrying the cables. He said he was. His observations in
relation to the scene were mostly corroborated by the state wit nesses and
some of the accused persons. His evidence was not only corroborated by
the State witnesses but by the medical evidence and by the accused
persons in material respects. When he testified and gave different
surnames to some of the accused it appea red that he may have made
mistakes until the accused themselves testified and confirmed their other
surnames that were not on the indictment.
[200] Those were Yanginkosi Solani and Nombulelo Kitise. For example, he
mentioned No. 10 and said he has two surnames Ngcivana and Solani. He
showed a clear state of mind and was able to recall the events of that day
with reasonable precision. He was honest in stating that at certain times
there were too many people assaulting the deceased that it was difficult to
identify and recall all of them. That was an indication that he really knew
the people he saw at his great home and at the scene and had observed
their actions .
7 S v Reddy 1996 (2) SACR 1 (SCA).
[201] He disputed that Accused No. 1 intervened where the deceased were held.
He left befor e the deceased were burnt. On accused No.1’s version he
intervened when the deceased were being burnt. An issue was made that
he could not have seen tyres being brought. On the evidence of Lamani
and Jola tyres were part of the preparation to burn the dec eased. They
were placed on some of the deceased ( Ziphozihle and Vuyo)and the fire
was ignited.
[202] On the issue of bad blood alleged by accused no.13, Makinana explained
what the quarrel was and according to him they were in good terms. On
his version accused No, 13 had seen people being assaulted, he saw tyres
at the scene but distanced himself from being at the scene and from
participation. Makinana did not exaggerate the participation of accused
no.13. He was pressing on Lwando’s testicles, accordin g to his evidence.
That direct evidence was met with a bare denial and motive based on bad
blood between them. It is the evidence of accused No. 13 that he decided
to go to Dyantyi’s place when he saw people being assaulted and tyres
being brought. He placed himself at the scene. That has got nothing to do
with any alleged motive.
[203] The contradiction about Lwando being tied up when he was carrying the
cables is not major because the photographs in the photo album show
Lwando being tied up. Not only tha t, Constable Phithi, testified that
when they arrived at the scene the deceased were tied up in two’s . That
minor contradiction had no bearing on his evidence as a whole. I am
satisfied that Makinana gave credible and reliable evidence. I accept his
evidence.
Mr Jola’ s evidence
[204] His evidence that when his son Lindokuhle was placed at the place where
they were burnt , Lwando and Nwabisa were already there ; in this regard
he corroborated the evidence of both Makinana and Kongo in material
respects. He also corroborated the evidence of both Kongo and Makinana
that Nwabisa escaped from the fire and was brought back into the fire.
This aspect is also corroborated by Accused No. 11 who stated that he
heard about that . He corroborated the evidence of Kongo that Accused
(No. 5) , Unathi (No.6) were amongst the group that went to fetch
Ziphozihle. He corroborated the evidence of Kongo that petrol was
siphoned from a car because according to him the fire from Lwando and
Nwabisa’s side was like a petrol f ire. He corroborated the evidence of
Neliswa Lamani that Accused No. 1 did not intervene . She said accused
no.1 was standing close to the four people that were being burnt.
[205] His evidence that Accused No.12 cut Nwabisa ‘s ligaments is not only
corroborated by Makinana but by medical evidence that Nwabisa “ had
incised wounds on the distal legs”. Jola testified that his eye sight had
deteriorated from the time of the incident and he had difficulty
identifying some of the accused on the dock. He had mentioned that
accused no. 1 and 5 were assisted by girls who brought paraffin in
making the fire. Neliswa Lamani corroborated his evidence when she
testified that she saw accused no’s 8 , 14 , 5 and Inga making the fire.
[206] The evidence of Jola was c orroborated by medical evidence and by
Kongo, Lamani and Makinana. He was an honest witness, He did not
want to point out the ladies that were making fire due to his impaired
eyesight. He disclosed that to the court on his own. He gave clear and
credible evidence. I accept his evidence as credible and reliable.
Ms Nwabisa Lamani’ s evidence
[207] This witness gave her evidence in a straight-forward manner. She did not
exaggerate in giving account of her observations on the day in question .
Her evidence is corroborated by that of Mr Jola in the following respects:
Both mentioned before this cour t that accused no. 5 was making fire at
the scene. She identified two women who were also making fire but in
her case she identified them as Accused No. 8 and 14.
[208] She witnessed the assault on Nwabisa by accused no.1 with an iron rod.
She saw accused no.’s 2, 3, 10 and 6 , when they arrived at Bande’s place
and how they took Vuyo away. She saw accused no.7 pulling tyres and
placed them on Ziphozihle and Vuyo and made fire on them. She saw
accused no.1 not intervening bur standing close to the four victims that
were burnt. I accept her evidence as reliable and credible.
Constable Phithi
[209] Her evidence related to her being the first to arrive at the scene and
securing it. She found the 4 corpses at the scene. She identified those on
the photo album. They called all the relevant stakeholders to come to the
scene. She observed that the decease d were tied up in two’s. She was
clear that she wrote down just information and not details as Lamani was
going to be used as a witness. She testified about what she did when she
arrived at the scene. She corroborated the evidence of Neliswa Lamani
that s he gave a statement to the police at the scene of the crime. She
stated that people were afraid to give the police information as they had
been threatened not to get closer to the police. Upon the arrival of W/O
Mtshemla she then handed over the scene to him. She also corroborated
the evidence of W/O Mtshemla that he found this witness at the scene
when he took charge thereof. She confirmed the bodies that were in
Exhibit A. The evidence of Constable Phithi was not challenged. I
accordingly accept her evidence as credible and reliable.
Sergeant Melane
[210] Sergeant Melane testified about the procedure he followed when he was
effecting arrest on the accused persons. Although all the accused persons
claimed that their constitutional rights were never ex plained, this witness
was adamant that their rights were explained. None of the accused
seemed to have challenged their arrest or even lodged complaints with the
Station Commander about the issue of the alleged failure of the police to
explain their consti tutional rights. Having listened to all the evidence I
have no reason to doubt that the police complied with their obligations in
explaining the constitutional rights of the accused upon arresting and
detaining them.
[211] The accused make a blanket atta ck that not all of their rights were
explained, they do not specify what those rights were and how were they
prejudiced by such failure. I accordingly reject the version of the accused
persons in this regard and I accept the evidence of this witness that a ll the
constitutional rights of the accused were explained upon arrest and
detention. I also accept the reason he advanced about the delay in
arresting Accused No. 13. I accordingly accept the evidence of this
witness as reliable and credible.
Sergeant Mfundo Solani
[212] The evidence of Sergeant Solani was not challenged. The photo album
was admitted into evidence with the consent of all the parties. The
photographs in the album depicted what he found at the scene. I
accordingly find that he gave credible and reliable evidence. I
accordingly accept his evidence.
Dr Ntloko’ s evidence
[213] Dr Ntloko’s evidence was not challenged. He clarified the impact of the
burns on the bodies of the deceased. He gave evidence on matters that fell
squarely within his expertise. I accordingly accept his evidence.
W/O Mtshemla
[214] W/O Mtshemla was cross – examined at length. He was not shaken under
cross- examination. His evidence that the people of the village knew one
another was not challenged. He recalled the process followed by his team
in investigating and arresting the accused with ease. He was questioned
about the version of accused no. 15 that when they arrested him was
taking a bath and was naked. It was also suggested that they pushed the
father of this witness as they entered. He responded that it was not
possible to take a bath whilst accused no. 15 was putting on his takkies.
He also questioned the fact that he would have seen his father being
pushed if he was at the same time taking a bath. As I recall the evidence it
was put to this witness that accused no. 15 was going to call a witness in
this regard. No such witness was called. I accept his evidence as reliable
and credible.
Accused No. 1: Mr Mluleki Xulu
[215] There are irreconcilable differences in his evidence. First, his instructions
to his counsel was that he was not the first to arrive at Mr Makinana’s
home. That is what was put to the witnesses. He testified that he arrived
later. He does not explain how he was the first person to get the cables
under the bed if he arrived late. If he was not part of the conversation in
the morning with De Klerk and Kongo and Lindi, how did he end up
being instructed by the elders to go check the cables. The only logical and
reliable evidence in this regard is that of Kongo that he was taken to the
elders to tell them who was stealing the cables. The reason Kongo did
that was because De Klerk had told him as his neighbour that he must tell
the truth otherwise he would be burnt. He denied that L wando was
assaulted as he was being taken away from his home by the group.
[216] In fact, he testified that Lwando was not assaulted at all when he was
taken to Dyantyi’s place. This was his way of distancing himself from the
evidence of Kongo that he, together with accused no.5 and no.9 , were the
first people to assault Lwando before he was assaulted by the community
members. He denied even seeing Nwabisa but later in his evidence he
stated that Nwabisa was next to Lwando. That was intended to mislead
the court. He wanted to distance himself from Nwabisa because Ms
Lamani had witnessed him assaulting Nwabisa with an iron rod.
[217] He had testified that the elders told him that they saw the young man
carrying the cables. When asked how could they see t hem as they were in
bags. His answer was that some cables were in the bag and some were
carried by hand.
[218] Later his version changed and he stated that the place was steep and the
elders could not see anything. He was changing his version depending on
the questions being asked.
[219] He did not call the police because the elders did not say to the people they
must call the police. This, too, was contrary to what he stated earlier that
the elders had said a van must be called . He advanced the reason for not
calling the police to be that : He could not call the police because he was
angry.
[220] Initially h e gave an impression that he remained where the elders were
and he never went to the scene. On his version he intervened
unsuccessfully when the group had started burning the victims. The
question is whether by intervening he disassociated himself from the
offence? I do not think so. I say so for these reasons: He was present
when Lwando and Nwabisa were taken out of Lwando’s home. When he
and those he was with took out the cables he did not take them to the
elders instead he placed them before the community.
[221] The community left with Lwando. He simply followed the group without
asking where were they being taken and why because the cables had been
found. He associated himself with the actions of the group in depriving
Lwando and Nwabisa of their fr eedom of movement. When they were
being assaulted he was present. He is mentioned by Kongo and Neliswa
as having assaulted the deceased persons.
[222] On his version the four victims were being burnt when he tried to
intervene. He had associated himself with the actions of the group by
assaulting the deceased even though the cables had been retrieved by him
at Lwando’s place.
[223] All the deceased were taken to one spot. He was present at that spot
according to the state witnesses. He did nothing to in tervene until they
were being burnt. If he tried to intervene the next question would be at
what stage and how? How effective was the intervention? He was using
his hands against many people who were carrying sticks and iron rods.
Khongo said he heard hi m trying to intervene. The act of burning the
victims was consistent with what Kongo had been told would happen to
thieves of cables. On his version, he intervened only when the
community members had started burning them. Jola saw accused him
(no.1) and no.5 carrying tyres and making fire.
[224] If they were being burnt as a result of his contribution in making the fire
there was no disassociation from the conduct of burning them. Why did
he make the fire in the first place , it must have been to facilitate the
burning of the victims. He waited a nd tried to intervene by using his
hands when they were being burnt. His attempt to intervene at that stage
was too late and disingenuous, in my view. I reject that he attempted to
intervene the fact that Kongo heard him saying must not be burnt does not
mean that to have been effective intervention. Besides on his version
when he intervened people were being burnt.
[225] In Nube v S 8 , the Supreme Court of Appeal dismissed the appellant’s
contention that he disassociated himself from the planned robbery. In
dismissing the contention, the court held that ‘the day of the heist; and his
unexplained failure to disclose suffic ient information pertaining to the
planned heist which would have allowed Grootboom [the police officer]
to foil it.’ The Supreme Court of Appeal indicated that to effectively
8 Nube v S (SCA) (unreported case no 091/15, 30 -9-2015) (Bosielo JA (Pillay and Dambuza JJA, Van der
Merwe and Govern AJJA concurring)) at para 23.
withdraw it might require one to divulge information to the police in
order to stop the planned unlawful act.
[226] In S v Musingadi and Others9, the Supreme Court of Appeal held that a
sufficient disa sociation would depend on the , inter alia, the
circumstances; manner and extent of involvement; how far the crime had
progressed; the timing and manner of disengagement; and in some
instances, the preventative measures the person took to prevent the
completion of the crime. On the facts and on his version his intervention
does not meet the threshold set out to qualify as sufficient disassociation.
Instead the deceased were being burnt and the crime was being completed
in his presence.
[227] The first form of common purpose is prior agreement which will be
established where the perpetrators previously agreed to commit an
offence. The Supreme Court of Appeal in S v Molimi10 found that:
‘The evidence shows that the first appellant initiated and then plan ned the
robbery in collaboration with the second appellant and accused 1.’ This is a
clear indication that an agreement between the parties was reached that they
want to commit robbery and that they acted in concert to commit this crime as
founded by the court after evidence was led. The court in S v Mzwempi11 found
that ‘prior agreement may not necessarily be express[ed] but may be inferred
from surrounding circumstances.’
[228] He did nothing to stop the assault on the victims or even before steps
were taken to burn them. Most importantly, on his version, although the
elders had said a van must be called he took no steps to call the police.
The reason he gave was that he was ang ry because the group said he was
new there. It is not his evidence that he was threatened when he tried to
9S v Musingadi and Others 2005 (1) SACR 395 (SCA)
10 S v Molimi and Another 2006 (2) SACR 8 (SCA) at para 34.
11 S v Mzwempi 2011 (2) SACR 237 (ECM) held at para 21.
intervene but ‘being accused of being new there” is what angered him.
But people were being burnt! I find that accused no. 1 deliberately gave
false evidence in an endeavour to minimize his role in harming the
deceased persons.
[229] He clearly gave false evidence because there was direct evidence
implicating him in the assault of Lwando at his home. It is a matter of
record that Lwando sustained lac erated wounds according to the medical
evidence. The evidence of the State in relation to him must be accepted.
On his version he remained at Dyantyi’s place. He was present when all
four deceased persons were taken to one spot assaulted and burnt. It i s
immaterial that he did not go to each home because the mandate was that
every time a person was mentioned they had to be brought to the same
place. They were assaulted and burnt at that spot. He assisted in making
the fire. A circle was formed around th em. The modus operandi was
exactly the same except in the case of Nwabisa who was the victim of the
circumstances. Her death was senseless , she was not a suspected thief
but was killed only because she shouted at the group and was associated
to Lwando as his girlfriend.
[230] It is not reasonably possibly true that he did not see anyone assaulting
Lwando when he was taken from his home. He referred to the people
there as the community but did not mention a single person that he was
trying to stop from b urning the deceased persons. I find that he actively
participated in the assault and burning of the four deceased persons which
resulted in their death as testified by the witnesses. He contributed by his
actions to the common purpose of identifying the t hieves for cables,
assaulting and burning them. The medical evidence corroborated the
evidence of the State that they all died due to burns. I reject the evidence
of accused No.1 as being unreliable and palpably false. I am satisfied
that the State prove d his guilt beyond reasonable doubt in respect of all
the charges preferred against him.
Accused No.3 : Mr Dumisani Mpofana
[231] His approach was to deny everything. The setting alight of four people
must have been a topical issue in the village but he heard nothing. He
even disputed that the people at the tavern were violent towards the
police. He was mentioned by accused No. 11 as one of the people who
attended a meeting outside his premises on that day. When all the
evidence is weighed up his versio n is improbable, unreliable and false
and I accordingly reject it. The State succeeded in proving its case
beyond reasonable doubt against accused No. 3.
Accused No. 4 : Mr Bantubonke Marali
[232] The accused in his defence stated that Mr Makinana lied ab out him. He
was mentioned by Jola in the statement to the police which was handed in
as an exhibit as one of the people who burnt the deceased. That evidence
was corroborated by that of Makinana. He went further to say that he had
lied about his son susta ining fractures and therefore he could lie about
him. His version that he was sleeping on the day in question was put to
Makinana and he responded that if he was sleeping he would not be
before court. He testified that this accused was using a stick at th e scene
in assaulting the deceased. This evidence was a response to a question put
to this witness by Mr Nabela who stated that he was testing the witness
even though he did not represent accused no. 4.
[233] Mr Mtshemla testified that this accused was a rrested on the strength of
the information he gathered about people who assaulted and burnt the
deceased persons. Makinana was adamant that the accused was present at
the scene. In his defence he proferred a bare denial . I accordingly reject
his evidence as false and I accept that of Makinana in so far as it relates
to him as it is credible and reliable. I also find that he associated himself
with the common design to burn the deceased.
Accused No. 5 : Mr Lindi Mbinyashe
[234] This accused is implica ted by Mr Makinana as one of the people that
entered his home and grabbed Lwando. He is also one of the accused
that held Lwando as he was leaving his home. He was present when
Ziphozihle was fetched from his home to the spot where he was burnt.
He was carrying an iron rod. He was seen by Jola carrying tyres together
with Accused No. 1 and were making fire on the tyre. When it was not
ignited some girls , according to Jola , brought paraffin and the fire was
ignited. He actively participated in the set ting alight of the deceased
whose bodies were described as charred by Dr Ntloko and Dr John who
examined and compiled post mortem reports in respect of each of the
deceased.
[235] Their death was due to burns sustained. The version that the accused put
up as a motive for Ms Lamani to implicate him was a fabrication. It was
false and intended to mislead the court. I accordingly find that he gave
false evidence and I reject it. I accept the state’s evidence and I am
satisfied that the State succeeded in proving its case against him.
Accused No. 6 : Unathi Kakalala
[236] He also denied being involved in any of the offences that he is charged
with. The version that he conveyed to his counsel was that he heard from
one Zamile who was passing his homestead t hat community members
were gathering at Dyantyi’s place. Later that version changed to this, he
heard from Kongo about what was happening when he saw people going
to Ziphozihle’s place. That version was denied by Khongo. Khongo gave
direct evidence that when Ziphozihle was taken out of the house it was
Somi and this accused who assaulted him. They were carrying sticks and
knobkierries and were assaulting him on his body. They also took him to
the spot where Lwando and Nwabisa were placed. He was impli cated by
Mr Kongo , Jola and Lamani in the assault of Ziphozihle and Vuyo. I
find that accused No. 6 actively participated in the assault and burning of
the deceased persons in furtherance of the common purpose mandate to
burn thieves of cables . I rej ect his version as being false and unreliable.
I accept the evidence of the State. I find that the state proved its case
beyond reasonable doubt.
Accused No. 7 : Mr Mfuniseli Mbinyashe
[237] This witness had conveyed to his counsel a version that he and no.5 could
not leave their home because they had a traditional ceremony and they
were expected to remain at home. When he testified he placed himself
directly at the scene. He testified that he knelt because he wanted to see
if it was his child that was being assaulted. He saw Lwando and Neliswa
and they had been assaulted already. He proferred an explanation that
maybe Khongo saw him kneeling down and thought that he was tying up
people. He stood at the scene until another victim was brought. He left
when the people had died. He never saw fire. This is a person who was
obeying tradition and had to remain at home. He was , on his version ,
standing at the scene where people were being assaulted.
[238] Although there is medical evidence and also corro boration from the
accused persons and state witnesses that the deceased died due to burns ,
he still maintained that he never saw a fire. He does not explain how the
people died. Lwando was tied up . The photographs and the post –
mortem reveal that. He i s the person who was directly implicated as
having tied Lwando . His evidence weighed up with that of the State and
of all the accused stands out as false beyond any doubt. He misled the
court deliberately. I reject his evidence as false and I accept that of the
State. I find that he actively participated in furtherance of the common
design to burn the deceased that were seen as thieves of cables. I also
find that the State proved its case beyond reasonable doubt against this
accused.
Accused No. 8 : Ms Nombulelo Bukani
[239] She was implicated by Makinana , Lamani and Kongo. She disputed that
she threw stones at the deceased and her clothes were full of blood. She
denied that she was making fire . She tried to create doubt around her
name but the pers on that was arrested by Sgt . Melane was her as
reflected on the indictment. She admitted that she was also using another
surname Kitise. Makinana’s reference to her as Kitise was not misplaced.
I reject her evidence denying being present at the scene . I find that she
directly contributed in facilitating the burning of the deceased which was
achieved by the fire that she prepared with those mentioned by the state
witnesses. She had also assaulted the deceased persons by throwing
stones at them. I reje ct her version as false and I accept the evidence of
the State as it is credible and reliable. I am satisfied that the state proved
its case beyond reasonable doubt.
Accused No. 9 : Mr Zwelandile Boy- boy Kitise
[240] His evidence was also a bare denial. He was placed at the beginning of
the events of the day by Kongo. He denied going to Lwando’s place
although he was placed at the scene by Kongo and Makinana. The
version that was put to Makinana that he had told him t hat people were
going to his house and that there were cables seen under Lwando’s bed,
did not feature at all in his evidence. Accused No. 11 mentioned him as
one of the people that attended that meeting. He was placed at the scene
as having assaulted the deceased using a knobkierie. He held Lwando as
he was being taken out of his home. He had questioned Ziphozihle as
testified by Kongo. He assaulted Lwando according to the State witness
Kongo. Taking that evidence and weighing up with a bare denial and a
version that he himself did not deal with in evidence, leads one to the
only conclusion that he gave false evidence. He was at the scene.
[241] He participated actively in the questioning of Ziphozihle and the assault
on Lwando . He did , by so doing , contribute to the harm to the deceased
persons that led to their death. I accordingly reject his evidence as
palpably false. I find that the state succeeded in proving its case beyond
reasonable doubt against him.
Accused No. 10: Mr Yanginkosi Solani
[242] He is one of the people that fetched Vuyo from his home. Two houses
away from Bande’s homestead a group of people emerged and attacked
and assaulted Lwando. He was identified by Ms Lamani as one of the
people who were hitting the deceased persons at the scene. He raised an
issue that Ms Lamani was not at Bande’s place and she did not know how
Vuyo was taken out. That was never canvassed with Ms Lamani. His
denial that he was present at the scene was false and stands to be rejected.
I accordingly rej ect his evidence as false. The State succeded in proving
its case against him .
Accused No. 11: Mr Nkosinathi Dyantyi
[243] This witness corroborated the evidence of the State that there was a
meeting held outside his premises by community members. He also stated
that at that meeting it was decided that the suspects would be questioned
about the cables. He also corroborated the evidence of the state that the
three deceased were those that were suspected of having stolen cable ties.
He had heard that Nwab isa had entered his house but did not know
whether she was turned back or not. He disputed being present at the
scene. Kongo and Makinana placed him at the scene as having extracted
Lwando teeth and toe nail with a pliers. He changed his evidence later
and stated that he was afraid to go to the scene. He stated that he could
not call the police because the incident was not in his yard. He stated that
the issue of cable theft was a big problem. His consistent denial that he
was not present and did not as sault Lwando at the scene when weighed
with the entire evidence is clearly false . I find that he actively
participated in the common purpose to assault and burn the deceased
persons as alleged cable thieves. I accordingly reject his evidence as
false. I find that the state has proved its case beyond reasonable doubt.
Accused No. 12 : Mr Lungisa Mtyana
[244] This accused is referred to as Nonose in the record. The state witnesses
Makinana and Jola witnessed that this accused cut Nwabisa’s ligaments
with a knife. Their evidence is corroborated by the medical evidence as
referred to earlier in this judgment. This was after Nwabisa had attempted
to run away from the fire. Thereafter she was burnt to death. Makinana
testified that he was using a stick hit ting the victims. He was part of the
group that went to fetch Vuyo according to Jola’s evidence. Lamani
corroborated that evidence that this accused left Bande’s place when
Vuyo was taken. He denied being present at the scene. I am satisfied that
the pa rticipation of this accused at the scene was an act of active
participation in the common purpose to burn the deceased persons. I find
that the state proved his guilt beyond reasonable doubt. I reject his
evidence as palpably false. I accept the evidence of the State .
Accused No. 13: Zandisile Kitise
[245] He denied participating in the common design by pressing on Lwando’s
testicles. He raised motive based on bad blood between him and
Makinana. Makinana testified that they were in good terms. It is th e
evidence of accused No. 13 that he decided to go to Dyantyi’s place
when he saw people being assaulted and tyres being brought. He stated
that he decided not to get involved. He was not just an innocent
bystander because according to the State he pres sed on Lwando’s
testicles. That happened at the scene. He was therefore present at the
scene and actively participated in the assault of Lwando. He was
therefore part of the same common design to assault and burn the
deceased persons. I accordingly reject his evidence as false. I accept the
evidence of the state as reliable and credible. I also find that the State
proved its case beyond reasonable doubt.
Accused No. 14: Nombuzo Mbinyashe
[246] Ms Lamani saw this witness being part of the people who were making
fire at the scene. She simply denied being present there . She confirmed
that she is known to the witnesses. Makinana saw her pelting the
deceased persons with stones and blood “ sprayed “ on her clothes. She
was actively participating to advance the common goal of assaulting and
burning the deceased persons. I reject her version as being false . The
State proved its case beyond reasonable doubt. I accordingly reject her
evidence as false.
Accused No. 15: Mvelisi Xulu
[247] He was implicated by Kongo that he was part of the group that assaulted
Lwando. He was with the group that went to Jola’s home and he asked
from Jola about the whereabouts of Ziphozihle. He was present at the
scene . He invited Jola to follow them if he wished to see his son. It was
put to the witnesses that he tried to intervene at the scene saying the four
people should not be burnt. He had facilitated the presence of Lwando
and Ziphozihle at that place as he was part of the groups that fetched
them . He had actively participated by looking for them and placed them
where they were burnt. He witnessed the assault and the burning , on his
version, he tried to intervene. This attempt to intervene is irreconcilable
with his defence that he was standing far away from the scene. Later he
said his brother removed him from the scene. He even denied being
present at Makinana’s place because he stood at another gate. His
evidence was intended to distance himself from the offences. His alleged
intervention could n ot have been genuine because he had facilitated
placing the two deceased Lwando and Ziphozihle at the spot. He had
assaulted them . He had actively facilitated their presence at the scene of
crime.
[248] His evidence that it was before they were burnt whe n they left is
inconsistent even with his brother’s evidence ( accused no.1) who stated
that they left as the deceased were being burnt . The attempt to intervene
as alleged was after people were burning and was ineffective. He
advanced the common purpose because on his version they were told not
to carry cellphones inorder to avoid contact with the police. He obeyed
that instruction . I reject his evidence as false. I accept the evidence of
the State as it has proved his guilt beyond reasonable doubt.
Accused No. 16 : Thobani Vena
[249] He was identified by Makinana that he was assaulting the deceased
persons with a stick. He was therefore part of the group that assaulted
Lwando and the other deceased at the scene. He denied any presence and
any assa ult on anyone. By assaulting the deceased persons he actively
participated to advance the common design of assaulting and burning the
deceased. I reject his evidence as palpably false . I find that the State
proved its case beyond reasonable doubt. I acc ept the evidence of the
State as credible and reliable.
Discussion
[250] The question is whether the accused persons were, individually, mere
innocent spectators or bystanders or whether they were actively involved
as part and parcel of killing the four deceased persons? I have found that
each one of them actively participated in the killing of the the four
deceased persons. It was submitted that there was no agreement the
community acted on a spur of the moment. Those submissions go against
the undisputed positive facts:
[251] The case before this court is that prior to 31 D ecember 2022 there was an
agreement among the Ndindwa community members that cable thieves
would be burnt. On the 30 th December 2023 there was a meeting outside
Dyantyi’s place to discuss the very issue of cables. The decision was they
should be questioned as to where they got the cables from.
[252] The enquiry into who were stealing cables in the community started in the
morning at Dyantyi’s place where Kongo was asked by accused No.9
whether it was true that he was stealing cables. His neighbour urged hi m
to speak the truth otherwise he would be burnt. After Kongo indicated
that he saw the cables at Lwando’s place that was communicated to the
elderly men of the community.
[253] There was an issue that needed to be addressed and that was cable theft
and the identification of the cable thieves. Kongo had been warned by De
Klerk to tell the truth otherwise he would be burnt. At a meeting of the
30th December 2022, according to accused no.11, it was agreed that the
thieves would be questioned about where they got the cables from . The
usage of cellphones and contact with the police was prohibited according
to accused no. 15. Once mentioned they were fetched and taken to one
spot, near Dyantyi’s place.
[254] All three were rounded up in that fashion by a group of armed members
of the community and were assaulted and burnt. It is common cause that
many members of the community were present and were responsible for
fetching the thieves for placement at that same spot. That spot was on a
field on a gravel road . Kongo was also a suspect but as soon as he
mentioned seeing cables at Lwando’s place he was forced to go with the
community . As they were going other people were called and a large
number of people proceeded to Makinana’s home. There was a plan that
they would go to him and ask him to come with them to knock at his
son’s place.
[255] As soon as Lwando opened the door he was attacked. He was made to
carry the cables and walk to the spot already identified. His girlfriend was
also attacked and burnt just like him. One would have thought that once
the cables were found that would have been the end of the ordeal but no
the community took the suspected thieves with or without cables to the
same spot. The same process of fetching the mentioned culprit, assaul t
him and place him at the same spot happened to Ziphozihle and Vuyo. As
they were burnt they formed a circle around them to prevent escapes and
even cut the ligaments of Nwabisa. There was only one outcome that was
desired and that was burning them until they died. To suggest that all this
happened at the spur of the moment and was not planned is , with respect,
not consistent with the established common cause facts. This was a plan
to carry out “mob justice”. This became evident when Nwabisa was
subjected to the same treatment as the three males that included her
boyfriend. There was not a single member of the community that called
the police until after the demise of the deceased persons. I find that this
was a well executed plan to deal with the cabl e thieves in the most cruel
and horrific manner.
[256] When analysing the evidence I was mindful of the requirements to be met
as set out in S v Mgedezi & Others 1989 (1) 687 (A). Those are : The
accused must have been present on the scene of the crime; he must have
been aware of the assault; he must have been intended to make common
purpose with those committing the assault;he must have manifested his
concurrence with the common purpose by also performing some act of
association with others; and he must have intended to kill Y or to
contribute to his death. The evidence showed that the accused before
court , individually and collectively associated themselves with the
common purpose of killing the cable thieves by actively participating in
the assault and or preparations for burning them and by ensuring that they
actually burnt to death. It must follow that the State succeeded in proving
common purpose among all the accused .
[257] In Mawala v S12, the court held that common purpose is a ‘legal construct’
to assist the State in prosecution where evidence is insufficient to link offenders to
one another and to the crime. It is evident that the principle of common purpose is not
just a tool, but an effective mechanism created to serve justice. Without it the State
would have been in many instances clueless as to the true identity of the one wh o
committed the act. The common purpose principle makes it easier to not just punish
the true actor but also his co -conspirators who had the intention to commit such
crimes that caused the unlawful result.13
[258] On the alleged intervention buy accused N o.1 and 15 , on their version
they tried to intervene when the victims were being burnt. The crime was
being completed. Their attempt therefore did not meet the threshold of
sufficient disassociation. In S v Musingadi and Others 14, the Supreme
Court of Appeal held that a sufficient dissociation would depend on, inter
alia, the circumstances; manner and extent of involvement; how far the
crime had progressed; the timing and manner of disengagement; and in
12 Mawala v S (KZP) (unreported case no AR267/16, 12-10-2018) (Pillay J) at para 19.
13Andrew Jeffrey Swarts LLB (Unisa) is an aspirant prosecutor at the National Prosecuting Authority in
Upington. This article was first published in De Rebus in 2023 (Nov) DR 18.
14S v Musingadi and Others 2005 (1) SACR 395 (SCA)
some instances, the preventative measures the person took to prevent the
completion of the crime.
[259] I am satisfied that because the State relied on common purpose, it prov ed
beyond a reasonable doubt that the each of the accused persons had the
requisite mens rea concerning the unlawful outcome at the time the
offence was committed. That means that she or he must have intended
that criminal result or must have foreseen the possibility of the criminal
result or must have foreseen the possibility of the criminal result ensuing
and nonetheless actively associated herself, reckless as to whether the
result was to ensue 15. The deceased were burnt and their bodies were
referred to in medical terms as “charred”.
[260] I am satisfied that the State proved the guilt of each of the accused on all
the charges. It was submitted that if an accused was present when one
victim was fetched then he or she should be found guilty of kidnapping
that one person. That approach goes against the spirit and purport of
common purpose. The second form of common purpose is active
association. In Namane and Another v S 16 the court held that eac h of
them is responsible for the acts committed by the others, either foreseeing
the possibility that the others might perform an act in order to further
their common purpose, and ‘was indifferent to such acts and their
consequences’. The court indicated t hat the other party foresaw the
possibility that the one party might commit a crime and he who did not do
the actual offence, reconciled himself with that possibility, making him as
liable as the one who committed the offence.
15 S v Thebus, supra, para G-H (page 532).
16 Namane and Another v S (A196/2014) [2016] ZAFSHC 224 (15 December 2016).
[261] On the one count of p ublic violence I wish to address an issue that was
raised belatedly by Mr Dengana that a charge of public violence is not
competent as there were targeted individuals. He submitted that the
charge amounts to duplication of charges. Ordinarily an objection based
on duplication of charges is usually raised at the commencement of trial.
That is intended to afford the State an opportunity to apply itself to the
objection. He relied on S v Le Roux and Others 17. had regard to the
authority relied upon by Mr Den gana. At paragraph [5], the Supreme
Court of Appeal refer to the definition of Public violence as described by
Snyman to be:
“Public violence consists in the unlawful and intentional commission, together
with a number of people, of an act or acts which assume and which are
intended forcibly to disturb public peace and tranquility or to invade the rights
of others.”
[262] Public peace is understood to be the state of public order. It involves the
absence of public disturbances, violence or actions t hat scandalize the
community or shock the public’s sense of morality. What was
happening on the day in question at Ndindwa involved about 2000 people
according to Makinana, who fetched Lwando, Ziphozihle, Vuyo and
Nwabisa, subjected them to violent attac ks with iron rods, sticks and
knobkierries. This was all happening in public. They then burnt alive the
four victims, including a woman who was visiting her boyfriend Lwando
and was from another village, Qamdobowa. Those actions interfered
with the rights of , for example, the parents of the victims whose adult
children were forcibly removed from their homes, Nwabisa’s nine year
old daughter who cried pleading for her mother’s life, the unlawful
burning of human beings and leaving them for dogs to feed on their
corpses as testified by Constable Phithi. That, to me, fits in squarely with
17 S v Le Roux and Others 2010 (2) SACR 11 (SCA).
the definition of public violence. I accordingly find that there is no
duplication of charges. For all the reasons advanced in this paragraph,
the State succeeded in provin g beyond reasonable doubt that all the
accused committed public violence. In light of all the findings made
herein I am satisfied that the State has proved its case in respect of all the
charges against all the accused persons. I accordingly find Accuse d No’s
1, 3 to 16 Guilty on all the charges.
ORDER
[263] I accordingly find Accused No’s 1, 3 to 16 Guilty of:
1. Count 1 : Murder
2. Count 2 : Murder
3. Count: 3 : Murder
4. Count 4: Murder
5. Counts 5 : Kidnapping ( deceased in Count 1 )
6. Counts 6 : Kidnapping ( deceased in Count 2)
7. Count : 7 : Kidnapping ( deceased in Count 3 )
8. Count 8 : Kidnapping (deceased in Count 4)
9. Count 9 : Public Violence
________________________________
T.V NORMAN
JUDGE OF THE HIGH COURT
APPEARANCES:
For the STATE : ADV PHILISANE
Instructed by : Director of Public Prosecutions
Bhisho
For Accused nos. 1 & 15 : MR TSHINGANA
Instructed by : Tshingana Attorneys
King Williams Town
For Accused nos. 3, 4, 5 & 7 : MR DENGANA
Instructed by : Legal Aid South Africa
King Williams Town
For Accused nos. 2, 6, 10, 12 and 14 : MR NOMLALA
Instructed by : Legal Aid South Africa
King Williams Town
For Accused nos. 8, 9,11 and 16 : MR NABELA
Instructed by : Legal Aid South Africa
King Williams Town
For Accused no. 13 : MR HESHULA
Instructed by : MM Heshula Attorneys
East London
Matter heard on:
27 May 2024, 28 May 2024, 29 May 2024, 30 May 2024, 31 May 2024;
03 June 2024; 04 June 2024; 05 June 2024, 06 June 2024, 07 June 2024;
04 November 2024, 06 November 2024;
25 November 2024; 26 November 2024, 27 November 2024, 29 November
2024;
23 June 2025, 24 June 2025, 25 June 2025, 26 June 2025, 27 June 2025;
30 June 2025, 01 July 2025, 02 July 2025, 03 July 2025;
22 September 2025, 23 September 2025, 30 September 2025
Judgment delivered on : 01 October 2025 & 02 October 2025