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[2026] ZAGPJHC 455
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S v Mbatha (SS060/2023) [2026] ZAGPJHC 455 (22 April 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number: SS060/2023
(1)
REPORTABLE: No
(2)
OF INTEREST TO OTHER JUDGES: No
(3)
REVISED: Yes
In
the matter between:
The
State
v
Sandile
Sibekezelo Mbatha
Heard: 11-15, 21, 22 November, 04,05,
17 December 2024, 27 January, 03 April, 07 April, 17 April, 17-18
July, 10 September, 03 October,
14 November 2025.
Delivered: 14 November 2025, revised
22 April 2026.
JUDGMENT
Yacoob, J:
1.
Mr Sandile Mbatha stands charged with 2
counts of murder read with s 51(1) and part 2 of Schedule 2 of Act
105 of 1997, 2 counts
of attempted murder, two counts of pointing a
firearm, alternatively something a person is likely to believe is a
firearm, and
two counts of kidnapping. The two people with whose
murder Mr Mbatha is charged are Mr Katleho Letseli and Mr Tshidiso
Ramallo.
The State relies on Mr Mbatha having acted in common purpose
with his companions in the assault and murder charges.
2.
Mr Mbatha pleaded not guilty to all
charges, choosing not to give a plea explanation. Formal admissions
were made regarding the
identity of the two people with whose murder
he was charged, the chain of custody and post-mortem reports relevant
to the two bodies,
and crime scene photographs.
3.
The State called three witnesses: the two
people who were the complainants in the attempted murder charges, and
the investigating
officer. After the State closed its case, an
application was brought by Mr Mbatha in terms of s 174 of the
Criminal Procedure Act
51 or 1977 (“the CPA”), which was
dismissed. Thereafter, Mr Mbatha elected to change his legal
representative, which
led to some delays as the new representative
had to be furnished with the transcripts of the evidence and read
himself into the
matter.
4.
When the trial resumed, Mr Mbatha testified
in his own defence.
THE STATE CASE
5.
The first state witness was Mr Sifiso Irvin
Nhlapo. He testified that on the evening of 21 January 2023, around
9pm, he was with
his friend Mr Ramallo and they met a person who was
the friend of Mr Mbatha. Mr Ramallo was admiring the tyres on the
friend’s
car, which was a Nissan Almera. It was parked at an
intersection, and Mr Mbatha’s car was parked behind it. The
friend took
a beer from his own car and in so doing realised that the
headlights from Mr Mbatha’s car, a VW Polo, were missing.
6.
The friend asked Mr Nhlapo and Mr Ramallo
if they know something about the headlights. Mr Mbatha was in the
tavern, Toto, at the
time. Around this time Mr Letseli (the other
deceased) and Olwethu Mahlobo (the second State witness and
complainant) arrived.
Mr Mbatha’s friend telephoned him to come
out of the tavern.
7.
Mr Nhlapo is a recycler and was collecting
cans and bottles, and according to him Mr Ramallo was a car washer
but he did not have
any cars to wash at that time. According to Mr
Nhlapo, he knew Mr Letseli just by seeing him around the streets, and
Mr Mahlobo
as a car guard, but he was not close to the two of them.
8.
Mr Mbatha came running out of the tavern
and had a firearm and a knife, and instructed the four men to get
into his car. They did
not want to get into the car, they were
afraid.
9.
Mr Nhlapo testified that Mr Mbatha said
“where are my lights I am going to cut your throats today”.
All four of them
got into the back seat of the Polo and Mr Mbatha
drove towards a BP filling station. The friend of Mr Mbatha was
driving in his
own car and following.
10.
According to Mr Nhlapo after they stopped
at the BP he was hit with a bottle on the right side of his head
above his ear, by Mr
Mbatha from the driver’s seat. Under
cross-examination he stated that the assault occurred when Mr Mbatha
was outside the
car, through the driver’s window. He
demonstrated to the court that he has a scar. He said it was one of
the bottles he had
collected, he had got into the car with his
collection, although Mr Mbatha’s friends took it from him at
the BP. Mr Mbatha
kept repeating that he was going to slaughter the
four of them and asking where his lights were. Mr Mbatha’s
friends came
to the other side of the car and hit Mr Letseli with
another bottle.
11.
There were then four vehicles in convoy and
they were driven to an area between Diepkloof and Orlando, which Mr
Nhlapo identified
as the crime scene in the photographs. There Mr
Letseli was taken out of the vehicle and Mr Mbatha hit him with his
fists and kicked
him. Mr Mbatha also had a knife and was attacking
with the knife. Mr Mahlobo was then taken out and put in the boot of
a Toyota
Yaris, one of the other friends’ cars. Mr Ramallo was
taken into the boot of Mr Mbatha’s car and Mr Nhlapo heard a
gunshot. He had seen Mr Mbatha holding a gun.
12.
Mr Nhlapo was the last to be taken out of
the car, he was then made to sit on the ground, and told to remove
his hands from his
face. The assailants then saw blood running down
onto his chest from the head wound. He pretended to collapse and
acted like he
was dead or unconscious. The assailants then drove off.
13.
Mr Ramallo and Mr Letseli were lying on the
ground bleeding. Mr Ramallo was making sounds like he was struggling
to breathe and
Mr Letseli was covered in blood. Mr Nhlapo ran to his
home and cleaned himself, and then went back to the crime scene to
ask people
to come and help. He was scared and shocked. He then went
back home and slept. The next morning he heard that people were dead
at the place. He later went to the hospital for treatment and it took
about two weeks for the injury to heal.
14.
Mr Nhlapo did not know Mr Mbatha before the
incident, he learnt his name because people were calling him
Bab’uMbatha. He identified
Mr Mbatha from an identity parade.
The identity parade form was handed up as an exhibit with no
objection at the close of the State’s
case.
15.
Mr Nhlapo admitted during cross examination
that customers are searched when entering the tavern and not
permitted to take weapons
inside, however, he was insistent that Mr
Mbatha did in fact have the weapons with him when he came out.
16.
Under cross-examination he was asked about
a person called Maczol, and he said that Mbatha’s friends were
chasing this person,
at the time when he, Mr Nhlapo, was inside Mr
Mbatha’s car. He then disclosed that they went past Maczol’s
place before
going to the BP. It was put to him that Mr Mbatha went
inside Maczol’s place and Mr Nhlapo denied this. He said they
never
stopped there.
17.
Mr Nhlapo added during cross-examination
that Mr Mbatha got back into the car at the crime scene and tried
unsuccessfully to run
over Mr Letseli with the vehicle, while Mr
Nhlapo was still inside. He could see what was happening from the
video screen on the
vehicle which displayed what was happening.
18.
He conceded that there were many things
that happened that night and he may have forgotten some of the
details. When it was put
to him that Mr Mbatha’s girlfriend was
there, Mr Nhlapo agreed that a woman was with Mr Mbatha who kept
saying leave these
guys or take them to the police. Mr Nhlapo
believed it was a side chick not a girlfriend because a girlfriend
would not have allowed
Mr Mbatha to assault someone so badly.
19.
It was put to Mr Nhlapo that at Maczol’s
place Mr Mbatha instructed Mr Nhlapo to get out of his car and
remained with only
his girlfriend and Mr Mahlobo, Mr Nhlapo denied
this. He then denied knowing anyone who was a car guard, although he
had previously
testified that Mr Mahlobo was a car guard. Mr Mbatha’s
version that was put to Mr Nhlapo was that Mr Mbatha then went to
drop off the girlfriend with only Mr Mahlobo in the car, and Mr
Nhlapo denied this.
20.
It was also put to Mr Nhlapo that Mr
Mahlobo was “released” after they tried to telephone
Maczol, and this was denied.
Mr Mbatha’s version that he never
went to the crime scene was also denied. Mr Nhlapo testified that Mr
Mahlobo told him he
had been assaulted after Mr Mbatha dropped the
girlfriend off.
21.
It was put to Mr Nhlapo that Mr Nhlapo was
trying to save him from the community which was assaulting him at the
tavern, and he
denied this.
22.
The second state witness, Mr Olwethu
Mahlobo, testified that he was on the street outside Dodo’s
pub, on 21 January 2023 around
9pm. He was helping people to park
their cars.
23.
Mr Mbatha passed with his girlfriend and
asked Mr Mahlobo to check on his car, which was not within his sight
at that time, but
Mr Mbatha told him it had a registration number
starting with KG. Mr Nhlapo did not go and look at the car
immediately; he was
busy with other people parking their cars. About
30 minutes later Mr Mbatha came running out of the tavern, and Mr
Mahlobo followed
him to his car. The car did not have headlights and
Mr Mbatha asked him where his headlights were. Mr Ramallo and Mr
Nhlapo were
also there and Mr Mbatha asked them too. He learnt
Mr Mbatha’s name from Mr Mbatha’s friends calling him
that
at the BP garage.
24.
Mr Mbatha then took out a gun and asked
them again where the lights are, and forced them into the car. Mr
Mbatha’s friend
was in front with a Toyota Etios. Mr Mbatha
told his friend to guard the three and went and fetched Mr Letseli
who had been washing
a car, and put him also in the Polo. Mr Mbatha
went back into the tavern and came back with his friends. Mr Mbatha
and his friends
hit Mr Mahlobo and the other three with Savanna
bottles, asking where the lights were.
25.
Mr Letseli then said that Maczol had taken
the lights and Mr Letseli pointed him out. Mr Mbatha’s friends
ran after him and
did not catch him. They then returned and got into
their cars and asked Mr Mahlobo to show them where Maczol stays.
There were
four cars, the Polo, a Yaris, an Etios and a Corsa bakkie.
All four cars drove to the BP. Maczol stays close to the BP. They
went
past Maczol’s place but the gate was closed and they
turned around and went to the BP. Nobody alighted at Maczol’s
place.
26.
At the BP Mr Mbatha and his friends
continued assaulting the four of them with bottles and shouting they
will slaughter them. The
four cars then went to the open veld which
is the crime scene where the deceased were discovered. They put Mr
Mahlobo in the boot
of Mr Mbatha’s Polo. While he was in the
boot he heard Mr Letseli crying. He said he could see what was
happening from the
boot because he removed the boot cover, it was a
hatchback. He also stated he was assaulted with a steering lock.
27.
Afterwards the Polo drove off and he made a
noise and Mr Mbatha stopped and put him in the rear seat. Mr Mbatha
then drove to his
own residence, and went inside and changed. He then
made Mr Mahlobo hold the knife to put his fingerprints on it, and put
it in
the boot. He also took a picture of Mr Mahlobo and made
him say his name and place of residence for a video. He was then
released and went home, it was around 2am.
28.
Mr Mahlobo recalled that Mr Mbatha’s
girlfriend had asked Mr Mbatha why they did not take the four to the
police station.
Mr Mbatha told her to be quiet, she knows nothing. It
was the first time Mr Mahlobo had seen Mr Mbatha.
29.
Under cross-examination Mr Mahlobo said Mr
Mbatha was not carrying anything when he came out of the tavern. He
had never been inside
the tavern but he knew that sometimes people
were searched and sometimes not. He insisted that the car of Mr
Mbatha’s friend
was an Etios not an Almera. According to him
they were first assaulted in the car outside the tavern, not at the
BP, although the
assault continued at the BP. They kept threatening
to castrate them. The difference between slaughter and castrate was
the problem
with the interpreter. He confirmed that Mr Nhlapo had had
his bottles and cans with him in the car. He had no cellphone but he
had a watch so he knew the time. Under cross examination Mr Mahlobo
stated that he was placed in the Yaris boot not the Polo. There
was
no subwoofer in that boot. He did not hear the gunshot.
30.
Mr Mbatha had got into the Yaris and tried
to drive over Mr Letseli. He knew this because he heard people
shouting to him to stop.
Mr Mbatha’s friend later drove off
with Mr Mahlobo in the boot. The vehicles then stopped and Mr Mbatha
took him out of the
Yaris and put him in the rear seat of the Polo.
Mr Mbatha and one of his friends were in the Polo, and the girlfriend
was in an
Almera.
31.
Mr Mahlobo denied that any community
members were assaulting them, he was insistent that it was Mr Mbatha
and his friends. Mr Mbatha
also assaulted him at Mr Mbatha’s
residence with his open hand. He was not protecting them from
any crowd and he was
never dropped at Maczol’s place. He heard
his friends screaming.
32.
Sgt Mbonambi, the investigating officer,
testified that he received the docket with statements from the two
witnesses. They mentioned
the name Mbatha and an incomplete car
registration. They received information from informers and found Mr
Mbatha. He went with
Mr Mahlobo to the residential address and there
was a silver Polo there. They then got the full registration number
of the vehicle
and found it was registered to Mr Sandile Mbatha.
Eventually they found Mr Mbatha at the Primary school where he is a
teacher.
The deputy principal called Mr Mbatha and the police were
given an empty room to meet him in. Mr Mbatha told him he doesn’t
know who killed those people. On being asked if he has a firearm Mr
Mbatha said he only had a toy one which is at his place. They
went to
Mr Mbatha’s place and Mr Mbatha showed him where the gun was.
It was a toy gun that fires blanks. It would make a
sound like a real
firearm
33.
Mr Mbatha was arrested at the school and
advised of his rights.
34.
Sgt Mbonambi only knew about a knife that
was found in the clothing of the deceased. He did not take
fingerprints but sent it for
DNA analysis. No other knife was found.
Mr Mbatha told him there was no tracker on the vehicle so he did not
follow up on that.
THE
DEFENCE CASE
35.
Mr Mbatha testified that he was at the
tavern on the night in question with his girlfriend, Nobuhle Ngcobo.
He had gone there after
getting a call from an acquaintance, Jack. He
was in his Polo Vivo GT, a hatchback. It had a small boot and it had
a subwoofer
in it which took up much of the boot space. When he
parked and was walking to the tavern he heard someone saying they
will look
after the car and he did not know the person.
36.
They were searched when entering the tavern
and nothing was found on him. He did not have a knife or a firearm.
When in the queue
his friend Jack was going out to his car. When he
was inside and looking for a place to settle, his friend called him
and told
him to come outside. The first time he did not go, and the
second time he did. He did not run because his friend had not
explained
anything.
37.
As he was walking to his vehicle, he saw
Jack and the vehicle and that it had no headlights. He was taken
aback. He could see that
there was an altercation behind his car. He
then went back to fetch Ms Ngcobo. He was then emotionally drained.
He placed Ms Ngcobo
in the vehicle. Only then he went and asked about
the headlights, this was the person who had said he would look after
it. This
was Mr Mahlobo.
38.
Mr Mbatha was in a state of confusion and
heartbroken and defeated, and asked Mr Mahlobo what was going on.
There were other people
there, pointing at other people and asking
questions and being assaulted. Nobody said anything to him and he did
not assault anyone.
39.
Then suddenly a person appeared and
everyone told him that is the person who took the headlights, Maczol.
He and others ran after
Maczol but could not catch him so they
decided to follow in the cars. The girlfriend Ms Ngcobo was still in
the car. Mr Mbatha
did not force anyone to get in he just told them
to get in. He first said he instructed all of them to get in, then
that he only
told Mr Mahlobo and then he saw all of them get in. They
drove in the direction Maczol had gone and did not find him. Mr
Mbatha
then asked Mr Mahlobo if he knew where Maczol stays and he
said yes.
40.
Mr Mbatha denied assaulting anyone at the
BP. He also denied that Mr Nhlapo had his recycling with him, he
claimed there was not
space for Mr Nhlapo’s recycling in the
car.
41.
They then went to Maczol’s place at
Mahlobo’s direction. The four men disembarked and knocked but
nobody was there.
Mr Mbatha was confused and in (emotional) pain and
Ms Ngcobo wanted to go home. Mr Mbatha then asked Mr Mahlobo to call
Maczol
and gave Mr Mahlobo his phone to do so, and at this time they
were driving to drop off Ms Ngcobo. The others had been left behind
at Maczol’s.
42.
According to Mr Mbatha he was never at the
crime scene. He did however have a toy gun under his seat but it was
broken and could
not fire. They then went to Mr Mbatha’s place
with Mr Mahlobo, and he left Mr Mahlobo outside with the car and the
phone
and let Ms Ngcobo in. He went outside again and Mr Mahlobo said
he did not get hold of Maczol. Mr Mbatha never got his lights either.
Mr Mahlobo said they will find the lights, but they didn’t. Mr
Mahlobo told him you will find me and told him he was in grade
10D at
a certain school, but Mr Mbatha did not remember the school name. Mr
Mahlobo then left. He did not see anyone assault Mr
Mahlobo. He did
not try to drive over anyone.
43.
Mr Mbatha confirmed that his vehicle had a
video screen that showed what was happening behind the car when in
reverse. He
also confirmed that his vehicle did not have a
tracker system.
44.
Mr Mbatha first said he did not see Jack
again after driving to the BP. They only spoke on the phone. Later he
said that while they
were looking for Maczol he saw Jack but he told
Jack he was going to leave Ms Ngcobo at home. Jack drives a white
Almera. He did
not see a Yaris or a Corsa Bakkie. Mr Mbatha said that
a person would not fit in the boot of the Polo.
45.
Under cross examination Mr Mbatha said that
he was not with friends on the day. He does not know why the
witnesses said his friends
referred to him as Mbatha, Jack called him
Sandile on the phone. He does not know how the witnesses knew his
name. When being
asked about the gun under cross examination he
said he moved it from the side and put it under the seat, and that
may have been
how the witnesses saw it.
46.
Mr Mbatha denied instructing the men to get
into his car, he said he asked them to please get into his car. He
denied Ms Ngcobo
saying anything other than asking him to take her
home. He denied that he was upset, he said he was heartbroken. He did
not speak
to Ms Ngcobo about what they were doing but she must have
heard them talking about looking for Maczol when they got out of the
vehicle.
47.
Mr Mbatha did not call Ms Ngcobo to testify
as he was not in a relationship with her anymore, he does not have
her contact details
and she was in the process of relocating. He did
not report the theft of his headlights because the previous time it
had happened
reporting it did not help. He did not tell the
investigating officer about Jack or Ms Ngcobo and had no reason for
doing that.
48.
Mr Mbatha denied having said to Ms Ngcobo
that she must be quiet because she does not know about things. He
also denied having asked
the other three people to get in his car, he
was only focused on Mr Mahlobo and they just followed him. He has no
idea why the
people who were helping him now accuse him.
ANALYSIS
49.
The State must prove the case against the
accused beyond a reasonable doubt. This must be established on a
conspectus of all the
evidence adduced. There is no onus or
obligation on the accused. If the court finds the accused’s
version to be reasonably
possibly true, the court must acquit.
50.
That being said, the accused is not
entitled to have his evidence as a single witness accepted without
due analysis. The fact that
he failed to call corroborating
witnesses, and that there is no evidence of his version other than
his own say-so, may lead to
a conclusion that the probative value of
the evidence is less than it otherwise may have been.
51.
It was submitted on Mr Mbatha’s
behalf that Mr Nhlapo was simply lying in his evidence, and was
deliberately misleading the
court. It was submitted that Mr Nhlapo
lied that he had no idea why he was accused of stealing the
headlights. There is nothing
in the evidence that supports this
conclusion.
52.
There were certain inconsistencies in the
evidence. In my view none of these were material. Whether there was
an Etios or an Almera
or both is neither here nor there. On the
material issues, the State witnesses corroborated each other and in
my view are reliable.
53.
Mr Mbatha’s version that he was
completely unconcerned by Jack’s phone calls, despite the fact
that Jack called him
twice, and walked with no sense of urgency
towards the vehicle, does not ring true. Nor does his claim that he
spoke to nobody
at all to ask what was going on. He did not speak to
Jack, even though Jack was the one who called him. He slowly and
calmly “placed”
Ms Ngcobo in his car before going to see
what the commotion was about. He did not speak to Jack. He did not
notice Mr Mahlobo being
assaulted. He simply asked Mr Mahlobo to come
to one side and spoke to him and him alone. He did not speak to Ms
Ngcobo and tell
her what was happening. When Maczol was noticed,
suddenly the community stopped assaulting the three other men and
they were able
to go and chase Maczol, and then get into Mr Mbatha’s
car. He did not even notice Jack following him until he went to drop
Ms Ngcobo home. The State witnesses learned his name by some unknown
means and implicated him for no reason. He is unable to even
find his
ex-girlfriend on social media.
54.
Mr Mbatha also contradicted himself about
where the toy gun was and when it would have been seen by the
witnesses. It is too coincidental
that it was a gun that could make a
sound like a real gun, but on that particular day it was broken.
55.
None of these contentions hold together. In
my view Mr Mbatha’s version is not reasonably possibly true. Mr
Mbatha was not
open with the court and his evidence is rejected.
56.
Mr Mbatha was clearly attempting to paint
himself as a kind and gentle person who would never do anything
violent. However, his
own evidence that he took Ms Ngcobo and put her
in the car supports the proposition that he is a person who would, as
testified
by the State witness, tell Ms Ngcobo to be quiet because
she knows nothing about it. A person who treats a woman as an object
rather
than a person. He was attempting to make an impression on the
court about the sort of person he is, which has failed.
57.
Much was made of the fact that Mr Mbatha
has a right to silence and therefore no obligation to assist the
police. That is true.
However, the right to silence does not extend
to a right to avoid inferences being made when one does not disclose
exculpatory
evidence. The right to silence is an incident of the
right not to incriminate oneself, not an absolute right which allows
one to
raise all sorts of defences at trial and then blame the police
for not having discovered things which were in the witness’s
own knowledge, such as the presence of Jack and Ms Ngcobo. The right
to silence protects Mr Mbatha insofar as the State may not
rely on
the possibility that his evidence may fill gaps in its case. This of
course is what s 174 achieves.
Similarly,
argument was submitted regarding the duty of the state as a litigant
in civil matters. Those arguments are not relevant
here because the
circumstances are entirely different. In a civil matter, the state
has the same onus to discharge as any other
litigant, and its
powerful position is mitigated by its duty as a litigant. In a
criminal matter, that position is catered for
by the imposition of a
higher onus. Certainly this does not entitle the state to behave
unethically, but the state’s duty
regarding evidence and
investigation is
more than catered for in
the fair trial requirements coupled with the higher onus.
59.
The state’s witnesses made a good
impression on the court. Their evidence was sometimes incomplete and
sometimes inconsistent,
but not in any material respect. Much was
made of the fact that Mr Nhlapo said that Mr Mbatha drove over one of
the deceased, and
the post-mortem did not show such injuries.
However, Mr Nhlapo’s evidence was that there was an
unsuccessful attempt to do
so, not that he was successful in driving
over.
60.
Both Mr Nhlapo and Mr Mahlobo’s
evidence was convincing, their demeanour and their descriptions of
sounds and actions had
the ring of truth. Neither of them saw
everything, and they did not pretend to.
61.
The attempt to criticise the state for not
investigating whether Mr Mbatha’s vehicle had a tracking system
when he told the
investigating officer it did not is misplaced. The
police do not have to go and look for skittles. The responses of a
witness or
later an accused are part of the investigation and can be
taken into account.
62.
Overall, on the conspectus of the
evidence, I am satisfied that the witnesses properly identified Mr
Mbatha, that they clearly identified
his role in the proceedings, and
that they established his involvement. I am satisfied that it has
been established that Mr Mbatha
acted in common purpose with others
in what resulted in the deaths of Mr Letseli and Mr Ramallo, and in
the assaults of Mr Nhlapo
and Mr Mahlobo. I am satisfied too that he
used the toy gun as if it was a real one to threaten the complainants
and force them
into the vehicle.
63.
As a result, I find Mr Mbatha guilty on all
charges.
S YACOOB
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
For the State:
Mr M Mbaqa, Office
of the Director of Public Prosecutions,
Johannesburg.
For
the Defence:
Instructed by:
Mr
B.N Forbay
Mr
K. Malepe
B.N Forbay
Attorneys