THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable / Not Reportable
Case no: CC70/2019
In the matter between:
THE STATE
and
SITHEMBISO HEMENI Accused 1
CHRISTIAN SOBUTYU Accused 2
SOLEMZI DUKISO Accused 3
MAKHOSANDILE YOLWA Accused 4
SONGEZO MATHO Accused 5
ZUKILE MDINGI Accused 6
MISIZA MAMZA Accused 7
MHONGI KIVIET Accused 8
MICHAEL NDELENI Accused 9
AMANDA BOOI Accused 10
MTHETHINZIMA ZATHU Accused 11
Coram: Honourable Acting Justice SI Smith
Heard: 03 February 2026
Delivered: 03 February 2026
Neutral citation: The State versus Sithembhiso Hemeni & 10 others
CC70/2019 [2026] ZAWCHC … (03 February 2026)
This judgement is delivered electronically by circulation to the parties’ legal representatives’ email
addresses and will be deemed to have been delivered on 03 February 2026.
JUDGMENT
INTRODUCTION
[1] The accused are charged with 1 Count of murder, 1 count of attempted murder
and 2 counts of kidnapping.
[2] The State alleges that the accused on 01/04/2018 and at or near Kayamandi,
Stellenbosch wrongfully and intentionally killed Mawanda Naku by binding his limbs
with wire and assaulting him repeatedly by punching and kicking him; by using
sticks, belts, golf clubs and a pole to beat him over his entire body and by pouring
salt on his wounds.
[3] The State alleged that the murder was committed by a person, group or syndicate
acting in the execution or furtherance of a common purpose or conspiracy, and
therefor section 51(1) of Act 51 as of 1997, Part 1 of Schedule 2 to the Act is
applicable.
[4] I n respect of Count 2 the State alleges that accused 1 to 11, at the time and
place, stipulated in Count 1, intentionally attempted to kill Siphamandla Tobo by
assaulting him repeatedly and in various manners, including beating him with sticks
over his entire body.
[5] In respect of Coun ts 3 and 4 the State alleged that accused 1 to 11 on the date
and place mentioned above wrongfully and intentionally deprived Mawanda Naku
and Siphamandla Tobo, both adult males, of their freedom of movement by taking
and det aining them against their will. The accused all pleaded not guilty. All the
accused elected not to give a plea explanation. They were all informed of the
minimum sentences applicable in respect of Count 1.
SUMMARY OF THE EVIDENCE FOR THE STATE
[6] On the morning of 01//04/2018 the Comp lainant in Counts 2 and 4, Siphamandla
Tobo (herein after referred to as Tobo) was confronted by accused 1, 2, 4, 5, 6, 7
and 11, while he was walking from I -Zone Kayamandi. Accused 1 and 2 informed
Tobo that they were lookin g for him and his friend Mawanda Naku (The deceased
mentioned in Counts 1 and 3)
[7] They informed Tobo that they have information that Tobo and the deceased knew
where the plasma television and laptop, stolen from the house of accused 1 a few
days prior, was. Tobo denied any knowledge of the items. He was then assaulted
with fists and sticks and taken with force and under threat of assault to the
deceased’s home.
[8] At the deceased’s home, both Tobo and the deceased were assaulted and taken
to Tapira’s p lace, where accused 1 thought the items were. The State witness
Pindile Nyalambiza is known as Tapira.
[9] On their way to Tapira’s place the deceased escaped from the men and ran. He
was stopped by accused 3, who just arrived on the scene, and taken back to re-join
the group. Accused 3 also joined the group of men. Both Tobo and the deceased
was continuously assaulted by the group, now consisting of accused 1 to 7 and
accused 11.
[10] By the time they reached Tapira’s (stage 2 of the incident) the crowd
surrounding Tobo and the deceased grew in number. Both Tobo and the deceased
were visibly injured and bleeding.
[11] While waiting on the arrival of Tapira, accused nr 8, 9 and 10 joined the group
outside at Tapira’s place. The grandfather of Tobo, Frank To bo (previously an
accused, now deceased) joined the group. Frank Tobo joined in the assault of Tobo
and the deceased, by hitting them with his walking stick over their bodies and heads.
Accused 9 assaulted Tobo and the deceased with the same walking stick. Accused 8
assaulted the deceased with a stick.
[12] While the assault took place Tobo and the deceased were surrounded by
community members and could not escape. Accused 10 joined in the group and
while they were being beaten, accused the deceased of robb ing her, and stabbing
her in the past. She threw salt on the deceased.
[13] Constable Uys of the SAPS arrived on the scene. He observed that both Tobo
and the deceased were injured and bleeding. The deceased’s hands and feet were
bound. The deceased was s urrounded by the community members who were irate.
Constable Uys was informed by community members that they will not release the
deceased until they have found the items that were stolen. He was told that he was
not welcome and should leave. Constable Uys managed to take Tobo to the SA P
van. Due to the volatile atmosphere, Constable Uys feared for his life and left to take
Tobo to Stellenbosch Hospital. He handed Tobo over to the nursing staff and
returned to his office. Tobo voluntarily left the hospital without receiving any medical
treatment.
[14] As Tobo was removed from the scene by Constable Uys, Tapira arrived. The
deceased was unresponsive at first. Tapira shook him and took the wire off his feet.
The deceased was then able to stand up and give Tapi ra further information about
the stolen items. The deceased was then taken to Zama Zama by the community
members. Accused nr 8 held the deceased by his hands, “towing” (taking the
ordinary meaning of the word: pulling or dragging behind one.) him to Zama Z ama.
At Zama Zama, they were informed that the person identified by the deceased as the
buyer of accused 1’s items had passed away some time ago. The deceased was
returned to Tapira’s by community members.
[15] Approximately 30 minutes after Constable Uys returned to his office, he was
called to Tapira’s again. They managed to retrieve the deceased, who was injured.
Before the deceased was taken from the scene, accused 11 was involved in a verbal
confrontation with him and slapped him.
[16] The deceased w as transported to Stellenbosch hospital; He succumbed to his
wounds the same day.
[17] The Pathologist Dr D.K Abrahams’s chief Postmortem findings are as follows;(
the likely cause thereof explained by Pathologist Dr Alfonso, in absence of Dr
Abrahams who retired in 2023).
1.) External sig ns of extensive blunt trauma over the vertex of the scalp and
multiple sites of the scalp. Multifocal subcutaneous haematoma of the scalp
also the right temporal muscle. (Caused by blunt force trauma)
2.) The brain showed traumat ic subarachnoid haemorrhage with contusions
(likely caused by an unsupported fall, where the head contacts the ground
with maximum force).
3.) Multifocal linear tramline abrasions and multifocal areas of contusions of
extremities and the torso and back. (Cause d by a rod like object – like a
broom, pipe or whip)
SUMMARY OF THE EVIDENCE FOR THE DEFENCE
[18] A few days before the 01/04/2018 accused 1’s home was broken into and his
plasma television and laptop was stolen. He was informed that Tobo and the
deceased had information about where the items are. On 01/04/2018 he met
accused 2, 4, 5, 6 and 7 at a tavern, explained the situation. They all decided to go
and look for Tobo. Close to Tapira’s place they saw Tobo and confronted him. Tobo
was uncooperative and did not want to tell the truth. Tobo was threatened with
assault and slapped. He was taken to the deceased house. After they collected the
deceased, and information that the items may be at Tapira’s place, they took Tobo
and the deceased to Tapira’s. On th eir way there, the deceased tried to escape by
running away. He was stopped by accused 3 who arrived on the scene. The
deceased was assaulted by other community members, who then joined the group
walking to Tapira’s. Accused 3 was then also part of the gro up. At Tapira’s the
community members assaulted Tobo and the deceased.
[19] Accused 8, 9 and 10 arrived and formed part of the group. Frank Tobo assaulted
Tobo and the deceased with a walking stick. Other members of the community
including accused 9 also assaulted Tobo and the deceased with their hands and
sticks. The group then took them inside Tapira’s tavern to protect them. Tapira was
not home. They waited for him to arrive. Tobo escaped Tapira’s tavern and ran to a
house where he hid. The people of th at house assaulted Tobo. He was bleeding
when the group retrieved him from them.
[20] The South African Police arrived at the scene and spoke to the community
members. Tobo was taken from the scene by the police.
[21] After the police arrived on the scene , accused 1, 2, 3, 4, 5, 6, 7, and 10 left the
scene. Accused 9 and 11 had already left the scene. Accused 8 was on the opposite
side of the road and saw how the deceased was taken away by the crowd. They
returned 10 minutes later. The police arrived and r emoved the deceased from the
scene.
THE FOLLOWING IN COMMON CAUSE
[22] On 01/04/2018 at Kayamandi, Stellenbosch accused 1, 2, 4, 5, 6 and 7
confronted Tobo and accused him of stealing and having knowledge of where the
items of accused 1 is. Tobo was taken to the deceased’s house. From there both
Tobo and the deceased were taken by the group to Tapira’s place. On their way
there, the deceased tried to escape. He was caught by accused 3, who then arrived
on the scene, and taken to re -join the group.Accompanied by accused 1 to 7, Tobo
and the deceased was taken to Tapira’s place.
[23] While at Tapira’s place, accused 8, 9 and 10 joined the group. Other members
of the community also gathered around Tobo and the deceased. They all waited on
Tapira to arrive. Accused 9 beat both Tobo and the deceased with a walking stick.
Accused 10 accused the deceased of robbing her and stabbing her. She threw salt
at the deceased. Constable Uys removed Tobo from the scene at Tapira’s.
[24] Mawanda Maku’s cause of death was blunt trauma to the head, torso and
extremities and the consequences thereof.
[25] Tobo and the deceased were known by the community as 2 men who committed
theft, robbery and housebreaking within the community.
[26] It is not dispute that both Tobo and the deceased were assaulted by members of
the community and that both sustained open bleeding wounds.
[27] It is in dispute that the 11 accused acted in the furtherance or execution of a
common purpose to kill the deceased, attempted to kill Tobo and depriv e them of
their freedom of move ment by taking and detaining them against their will. In
essence it is the defence of accused 1 to 8 and accused 11 that they were
incorrectly identified as members of the community who participated in the
kidnapping and assault of Tobo and the deceased.
APPLICABLE LAW AND ANALYSIS
[28] Common purpose was not averred in the change sheet in respect of Counts 2, 3
and 4. In Ntuli 1 the accused was convicted applying the doctrine of common
purpose. The State neither averred Co mmon Purpose in the charge shee t nor
1 Ntuli v. The State (128/23) [2025] 2A SCA 114
proved it during the trial. The Court ruled that it violated the accused right to a fair
trial.
[29] In the matter at hand, the charge sheet indicates that the State alleges that all
the accused committed all 4 of the offences. Furthermore, on the evidence
presented by the State during the course of the trial, the State clearly relied on the
doctrine of Common Purpose in respect of all 4 Counts. The kidnapping and assault
alleged by the State forms part of a continuous act. There is no trial by ambus h,
which violates the accused’s Constitutional Right to a fair trial.
[30] The onus to prove beyond reasonable doubt the allegations in the charge sheet
lies with the State. An accused may be acquitted if his or her version of the incident
can be reasonably possibly true. Before a court can make a finding on the facts, all
the evidence must be evaluated together, and be tested for the probability thereof.
[31] If focus is placed to intently upon separate and individual parts of the evidence,
doubt may ari se if it is evaluated in isolation. Such doubt may be set to rest when
separate and individual parts of the evidence is evaluated with all the available
evidence 2
[32] Kidnapping consists in unlawfully and intention ally depriving a person of his/her
freedom of movement 3 The physical or forcible removal of a person is not a
requirement as the crime is also committed where a person is imprisoned or
concealed where they happen to be. 4
2 S v. Mbuli 2003 (1) SACR 77 SCA
3 Snyman’s Criminal law 7th edition – updated 2019 by S.V Hocter at page 417.
4 Snyman’s Criminal law at page 418.
[33] Unlawful deprivation of freedom may be justified by official capacity, for example
where a SAPS (South African Police Service) member lawfully arrests someone, or
where a citizen’s arrest is effected in respect of Section 42(1)’(a) of the C.P.A
[34] The doctrine of Common Purpose is applied to facilitate the conviction for
murder of each separate member of a group. If 2 or more people, having a common
purpose to commit a crime, act together to achieve that purpose, the conduct of each
of them in the execution of that purpose is impute d to the others. 5 Burchell’s
definition of common purpose: Where 2 or more people agree to commit a crime or
actively associate in a joint unlawful enterprise, each will be responsible for a specific
criminal conduct, committed by one of their members, wh ich falls within their
common design. 6
[35] Where there is no proof of a previous agreement to commit the offence, there
are 5 requirements set out in Mgedezi 7 that must be complied with before a
conviction on common purpose can follow.
[36] The requirements set out in Mqedezi were confirmed in the unreported judgment
of The State v Shane Jacobs. 8 In a later appeal the conviction was confirmed by the
full court to the Supreme Court of Appeal. The judgement and order of the full court
of appeal stands as n o majority decision was reached in this matter in the
Constitutional Court 9
[37] The 5 requirements set out in Mgedezi:
5 Criminal Law C.R Snyman 6th edition 2013 (Lexis Nexis) page 257.
6 Principles of criminal law (4th edition) Jonathan Burchell at page 467
7 Mgedezi 1989 (1) SA 687 (A) 705
8 S v Shane Jacobs. High Court of South Africa, North West Division, Mafikeng- unreported
judgement handed down on 9 September 2013 in Case NOCC33/11
9 Jacobs and others v. State [2018] ZACC 4
1.) The accused presence at the scene where the violence was being committed.
2.) Awareness of the assault on the person, by someone else
3.) Intent to make common purpose with the person/persons committing the
assault (conscious sharing of a common purpose)
4.) A manifestation of sharing a common purpose by performing some act of
association with the conduct of the others.
5.) The intention to kill.
[38] A passive spectator, tacitly approving of a perpetrators criminal act, does not
justify a finding of active association. There must be “some act” of association.
[39] It is sufficient that intent takes the form of dolus eventualis. Therefor if an
accused foresaw the possibility that the acts of the participants with whom he or she
associates him or herself, may result in Y’s death and reconciles him or herself to
this possibility, the 5th requirement set out in Mgedezi has been complied with 10
[40] Withd rawal or dissociation from the common purpose, may in certain
circumstances be sufficient to escape liability. The accused must have a clear and
unambiguous intention to withdraw, before it is no longer possible to desist from, or
frustrate the commission of the crime 11
[41] Tobo gave a detailed, chronological and consistent version of the incident that
took place on 01/04/2018. During his evidence he became emotional about the
death of his friend Mawanda Maku, explaining that he is currently serving long t erm
10 Govender 2023 2A SCA 60
11 Snyman’s Criminal law at page 231
imprisonment as punishment for some of the offences he had committed and that the
deceased should not have died at the hands of community members, for his
offences.
[42] He testified that he and the deceased were notorious in the community for theft,
robbery and housebreaking in th e area. He knew, at the time of the incident, all the
accused, either by name or by seeing them regularly in the area where they lived. He
and the deceased used to hang out at the shop and beg for small change from the
community. This part of his evidence was conceded to by most of the accused.
There are minor discrepancies in his evidence, but it does not detract from the
evidence as a whole.
[43] The other eyewitnesses to the incident observed the taking of Tobo and the
deceased to Tapira’s place. They laid emphasis on different details as they observed
the beating of Tobo and the deceased at Tapira’s place.
[44] The core group made up of accused 1 to 7 and 11 took Tobo and the deceased
to Tapira’s place. It is clear from th e evidence of members of that core group that
they threatened Tobo and the deceased with violence, and assaulted them, before
they reached Tapira’s place. They confirm the evidence of the State that the
deceased tried to escape, was caught and brought back to the group. Their own
evidence confirms that Tobo and the deceased was taken and held at Tapira’s
against their will.
[45] It was always the intention of the core group to find the property belonging to
accused number 1. Accused 1’s insistence on findin g his items, not only initiated the
incident, but also led to a prolong interrogation and assault on both Tobo and the
deceased. It was never the group’s intention to affect a citizen’s arrest or to inform
the SAPS (South African Police Service) that Tobo and the deceased had taken the
items. They had ample opportunity to do so when Constable Uys arrived on the
scene and spoke to the community. Accused 1 to 7 cannot justify why they left the
scene without accused 1’s items when the SAPS arrived. The communi ty members
took photographs of the incident. Accused 1 thought that it may lead to trouble and
left the scene when the police arrived.
[46] The only reason why they left the scene when the SAPS arrived and took Tobo
from the scene was to try and disassoci ate themselves from the offence s that were
perpetrated against Tobo and the deceased.
[47] The version of the accused that the deceased’s wounds were inflicted by
members of the community when he tried to escape, is, considering the
overwhelming evidence against them, not probable.
[48] The evidence of the accused’s that Tobo’s wounds were inflicted when he
escaped from inside Tapira’s tavern, was caught and assaulted by the owners of the
house where he hid, is not truthful. If there was an inkling of trut h to this version, it
would have been an integral part of their defence.
[49] During cross-examination of the state witnesses, this version was not brought to
the court’s attention. It never formed part of their narrative. The evidence of the State
that they could not enter Tapira’s place, as he was not present, and that they were
outside all the time, was not placed in dispute. During cross -examination it was
never suggested to Tobo or any of the other State witnesses that he escaped and
was beaten by oth er people. This narrative only arose when accused 1 started
testifying. This narrative was belatedly conjured up by the accused to explain or
justify the assault and wounds inflicted on Tobo. Their lack of credibility is evident
from the inconsistency of their narrative.
[50] All the accused were present at Tapira’s and saw that both Tobo and the
deceased were already wounded and bleeding. The deceased limbs were bound
before the police arrived on the scene. At some stage he lost consciousness and
was init ially unresponsive when Tapira arrived on the scene. The evidence of the
accused that Tobo and the deceased was still in good health and only mildly injured
is rejected as false.
[51] The kidnapping and assault on Tobo and the deceased had its origin in t he
determination of the core group to locate the property of accused 1. Their intention
was to kidnap and hold captive, and to violently interrogate Tobo and the deceased
to confess to stealing and or selling the property of accused 1.
[52] The kidnapping and assault of Tobo cannot be s eparated from that of the
deceased. It was a continuous act involving kidnapping and assault of both Tobo and
the deceased. Accused 8, 9 and 10, who arrived on the scene at Tapira’s place
actively associated themselves with the intention of the core group.
[53] All the accused were present on the scene when Tobo and the deceased were
held captive and the assault took place. All of them were aware that Tobo and the
deceased were assaulted. All the accused consciously shared a common purpose.
Accused 1 to 9 and accused 11 manifested their sharing of common purpose
participating in the assault on both Tobo and the deceased, while they were held
captive.
[54] Accused 10 was not a passive spectator. Nor did she tacitly approve of t he
criminal act performed by the other. While the beatings took place, she verbally
accused the deceased of robbing her and stabbing her. She laid her hands on some
salt and threw it at the deceased. She performed an act of association with the
conduct of rest of the group.
[55] Tobo received no medical treatment for his wounds. He decided to attend to his
wounds with the assistance of his friends. The evidence shows that his wounds were
serious in nature as he was bleeding from open wounds to his head.
[56] There is no medical evidence to show that his wounds were life -threating. The
evidence also shows that the deceased bore the brunt of assault.
[57] I find that the State has proven beyond reasonable doubt that accused number 1
to 11 in the furtherance of a common purpose:
1) Foresaw th e possibility that the acts of the participants with whom they
associated themselves, may result in the death of the deceased, and
reconciled themselves to this possibility.
2) Foresaw the possibility that the acts of the partic ipants with whom they
associated themselves may result in grievous bodily harm inflicted on
Siphamandla Tobo and reconciled themselves to this possibility.
3) Removed the deceased from his home and/or held him captive, thereby
unlawfully and intentionally depriving him of his freedom of movement.
4) Removed Siphamandla Tobo from the place he was and/or held him captive,
thereby unlawfully and intentionally depriving him of his freedom of
movement.
[58] Accordingly, accused 1 to 11 is convicted of:
Count 1: Murder
Count 2: Assault with the intend to do grievous bodily harm (as a competent verdict
to a charge of attempted murder in terms of Section 256 of the CPA)
Count 3: Kidnapping
Count 4: Kidnapping
___________________________
S I SMITH
Acting Judge of the High Court
Appearances:
Counsel for the State: Mr. T Kwetane
Counsel for Accused 1, 4, 5, 9: Mr. W Fischer
Counsel for Accused 2, 3, 6, 7: Ms. S Viljoen
Counsel for Accused 11, 12: Ms. N Abdurahman