IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: BHISHO)
Case No: CC 09/2023
In the matter between:
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 Bukani Accused 8
Zwelandile Boy -Boy Kitise Accused 9
Yanga Solani Accused 10
Nkosinathi Dyantyi Accused 11
Nombuzo Mbinyashe Accused 14
Mvelisi Xulu Accused 15
Thobani Vena Accused 16
and
The State Respondent
JUDGMENT
On application for leave to appeal
NORMAN J :
Introduction
[1] The applicants herein were accused persons in the criminal trial that
resulted in their convictions and sentence. The State relied on the
doctrine of common purpose in proving their guilt and on the provisions
of section 51 (1) of the Criminal Law Amendm ent Act , 105 of 1977 ,
that the murders were premeditated and were committed by a group of
persons acting in furtherance of a common purpose . The 4 deceased
persons ( 3 males and 1 woman) were kidnapped and burnt to death by a
group consisting of the accused persons , the applicants herein, who were
positively identified by the witnesses that knew them well.
[2] They were convicted on 4 counts of murder , 4 counts of kidnapping and
1 count of public violence. In respect of each murder counts (Counts 1 t o
Count 4) they were each sentence to undergo life imprisonment. In
respect of each of the kidnapping charges (Counts 5 to 8) they were
sentenced to 8 years imprisonment; and for public violence (Count 9),
they were each sentenced to undergo 3 years impri sonment. All the
sentences were ordered to run concurrently. They were each effectively
sentenced to life imprisonment.
A. Application for leave to appeal by accused No’s 1 and 15 (
against sentence only ; accused no’s 6 ,10 and 14(against both
conviction and sentence)
[3] The applicants herein were accused numbers 1 and 15 , 6,10 and 14 at the
trial (the applicants). I shall refer to them by the same numbers they
retained at the trial. Applicants numbers 1 and 15 seek leave to appeal
against sentence only whereas applicants numbers 6, 10 and 14 seek leave
to appeal against both their convictions and sentence.
[4] Mr Tshingana submitted that in respect of applicants 1 and 15 this court
failed to take into account the ages of the applicants in that they were
relatively young when the offences were committed; the court ought to
have taken into account the fact that in cases of mob justice not everyone
contributes to the crime the same; the court failed to take into account the
fact that accused numbers 1 and 15 tried to intervene although it was too
late at the time they tried to do so and that ought to have warranted a
deviation from the prescribed minimum sentence; that the court erred in
finding that there was prior planning of the killing of the deceased
persons and the court over -emphasised the punishment over
rehabilitation; the court failed to take into account that applicant numbers
1 and 15 had suffered a lot as a result of the incident because they also
lost their father who committed suicide; the court ought to have taken into
account the time spent in prison awaiting trial; that accused number 15
had a child born whilst he was incarcerated and that ought to have been
considered as a mitigating factor; that applicant number 1 was a
breadwinner; these factors looked at cumulatively ought to have
constituted substantial and compelling circumstances justifying an
imposition of a lesser sentence; the court erred in finding that the State
had proved its case beyond reasonable doubt considerin g the fact that Mr
Kongo, one of the main witnesses of the State, had smoked dagga on the
day in question; that in so far as applicant number 6 is concerned, even
Mr Kongo stated that he did not see him at the scene.
B. Applications for leave to appeal by accused numbers 3,4,5 and 7
[5] Mr Dengana who appeared for applicants numbers 3, 4, 5 and 7 applied
for their leave to appeal against both conviction and sentence on the basis
that: The court erred in its application of the doctrine of common purpose
and in this regard relied on S v Mgedezi1. He submitted that there was no
evidence proving that accused numbers 3, 4, 5 and 7 were parties to the
prior agreement to kill cable thieves as testified by Mr Kongo. He
submitted that any conviction based on common purpose constituted an
error. The court ought to not have found applicant number 3 guilty as he
was not implicated in any criminal act. That all of the accused persons,
the fact that they were mentioned by the witnesses does not mean that
they satisfied all the requirements set out in Mgedezi that would apply to
accused numbers 4, 5 , and 7 as well. He also relied on Mabaso v S 2 and
argued that the fact that there were some contradictions between the
witness’s evidence and the statements that they have made to the police
ought to have re sulted in the court finding them to be untrustworthy
witnesses. He submitted that some of the contradictions made by Mr
Kongo were sufficient to disqualify him as a reliable witness. He made
the submissions in relation to the evidence of Mr Makinana and Ms
Lamani. The pouring of petrol could never have been part of the plan. He
submitted that the accused should have been acquitted on all the counts.
[6] In so far as the sentence is concerned, he submitted that the evidence did
not prove active participatio n in the commission of the offences by
accused numbers 3 and 4 and the evidence implicating number 5 and 7 is
untrustworthy. The evidence does not meet the requirements in Part 1 of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997 and
therefore that part of the Act does not find application.
1 S v Mgedezi 1989 (1) SA 687 (A) at para 65 – 66.
2 Mabaso v S [2021] ZASCA 98 at para 29.
C. Application for leave to appeal by accused numbers 8,9,11 and 16
against sentence only.
[7] Mr Nabela appeared for applicants numbers 8, 9, 11 and 16 and their
application for leave to appeal is directed against sentence only. He
submitted that the court erred in finding that there were no substantial and
compelling circumstances justifying the imposition of a lesser sentence
especially in the light of the fact that the court had found that house
breaking and theft of cable wires were rife at Ndidwa Administrative
Area, Middledrift, that the community of that area was concerned about
the continued housebreakings and theft of cable wires; that the court had
accepted that stolen cable wires were found from on e of the deceased,
namely, Lwando Makinana; the court erred in not taking into account that
the applicants have been in custody for almost three (3) years before the
finalisation of the case. All the offenders were treated as first offenders,
personal issues of the applicants ought to have been taken into account,
especially number 11 who is seventy -seven (77) years of age. Another
court may take these factors cumulatively and confirm that they constitute
substantial and compelling circumstances which justi fy a lesser sentence.
He prayed for the granting of the application for leave to appeal against
sentence.
D. Opposition by the State
[8] Mr Philisane for the State relied on S v Bailey 3 that the court of appeal
will not interfere with the findings of the court where it is the trial court
that had observed the witnesses and taken the evidence and evaluated all
the factual evidence as correct. He also relied on S v Kgosimore4 that the
duty to impose sentence is primarily the prerogative of the trial court and
the court of appeal would not likely interfere with the sentence imposed
unless it is clear from the facts of the case that the trial court failed to
exercise its discretion properly or the sentence induces a sense of shock.
He submitted that the sentences imposed are appropriate in the
circumstances because the killing of four (4) human beings in the manner
in which they were killed deserved the kind of sentence as ordained by
the legislature. He submitted that the court should dismiss all applications
seeking leave against both conviction and sentence.
E. Discussion
Test for granting leave to appeal
[9] It is trite that in order to be granted leave to appeal in terms of s
17(1)(a)(i) and s 17(1)(a)(ii) of the Superior Courts Act ( the Act) 5, an
applicant for leave must satisfy the court that the appeal would have a
reasonable prospect of success or that there is some other compelling
reason why the appeal should be heard.
[10] If the Court is unpersuaded of the prospects of success, it must still
enquire into whether there is a compelling reason to entertain the appeal.
3 S v Bailey 2007 (2) SACR 1 (C).
4 S v Kgosimore 1999 (2) SACR 238 (SCA).
5 Section 17(1)(a)(i) and (ii) provides:
‘(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that –
(a)(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, incl uding conflicting
judgments on the matter under consideration.’
A compelling reason includes an important question of law or a discreet
issue of public importance that will have an effect on future disputes. The
merits remain vital and are often decisive.6
[11] It is worth mentioning that all of the matters raised herein were raised at
trial and were all considered in both judgments on conviction and
sentence. The applicants were all identified positively by the State
witnesses . They were identified by the people that they reside with in the
community and are well known to them. The deceased persons were
taken to one place where they were burnt alive. That evidence was met
with a bare denial from all the applicants. At trial how the deceased were
burnt was neve r placed in issue although now in this application an
attempt was made to say the pouring of petrol over them could not have
been part of the plan. The age of the applicants , including the elderly
ones and the roles they played in the killing of the dece ased were all
addressed in the main judgment. This court dealt with the issue of
whether life sentence was disproportionate considering the personal
circumstances of the accused and the seriousness of the crime and it
found that it was not. There is noth ing on the address by all Counsel in
this application that has not been addressed in the main judgments on
conviction and sentence.
[12] The reliance on the Mabaso decision as authority on contradictions made
by witnesses in police statements, is with re spect misplaced. That case is
distinguishable from the facts of the case on several grounds. First, in
Mabaso the statements that were found to have been unreliable were
made by a Mr Mvubu, who was an accomplice and a single witness
against the appellant. It was in that decision that the Supreme Court of
6 Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and
Others [2016] ZASCA 17; 2016 (3) SA 317 (SCA); 2016 (4) BCLR 487 (SCA); [2016] 2 All S A 365 (SCA)
paras 23 and 24.
Appeal found that the high court failed to exercise caution in evaluating
Mr Mvubu’s evidence. Second, the State had relied on a confession of a
Mr Ngomane who implicated Mr Mvubu as the person who recruited him
to partake in the killing of the deceased. The Supreme Court of Appeal
found that, that evidence was clearly inadmissible in terms of section 119
of the Criminal Procedure Act and that it constituted hearsay evidence
which was not corroborated by an y other evidence. The contradictions
that were referred to in all the three (3) statements that Mr Mvubu had
made and his testimony were found to be have been material and it is for
that reason that the Supreme Court of Appeal concluded that the high
court ought to have found the evidence of Mr Mvubu to be unreliable as a
single witness.
[13] Third, the dangers that were present in Mabaso case did not feature in the
case before this court for these reasons: the State had called several
witnesses whose evidence was corroborated by other witnesses, by some
of the accused persons and by medical evidence. The witnesses had
identified the applicants as they knew them and were known to the
applicants. The judgment on the merits spells out clearly, as testified by
the witnesses what the role of each of the accused persons was from the
time the deceased persons were removed from their homes or where they
were, up to the time when they were burnt to death. The evidence as a
whole showed the intent and the planning of how the deceased persons
were taken, some taken from the comfort of their homes, beaten up,
surrounded by the group, some tied up, the cutting of the ligaments of the
woman who tried to flee, all 4 put in one place and burnt alive. That
evidence was evaluated together with the evidence of the accused persons
who had denied any involvement and had distanced themselves from the
killing of the deceased persons. The applicants were positively identified
by the State witnesses. This court dealt with areas wher e there were some
contradictions in some of the evidence and found that those were not
material. In respect of sentence in relation to all the applicants , their
personal circumstances were all considered individually in the main
judgment .
[14] The principles set out in Mgedezi and how they were met in this case are
discussed in the main judgment.
[15] In S v Smith 7 , referred to with approval in , MEC for Health , Eastern
Cape v Mkhitha at para 17 , the Supreme Court of Appeal held that :
“[17] An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success on
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to conclude that
there is a reasonable prospect of success on appeal.”8
[16] The finding that there was stealing of cable wires did not assist the
accused persons because they distanced themselves from the killing of the
deceased and the reasons therefor. There were no factors that would have
influenced this court to deviate from the imposition of life imprisonment
as clearly stated in the main judgment. The period of incarceration prior
to conviction was also addressed in th e judgment and the reason that this
court did not consider it as a compelling and substantial circumstance to
warrant a deviation from the minimum sentence.
[17] Having considered the grounds advanced for impugning the decisions on
conviction and sentence , I am satisfied that the applicants in each of the
instances have not met the threshold that is set out in section 17 of the
7 S v Smith 2012 (1) SACR 567 ( SCA) para 7.
8 MEC for Health, Eastern Cape v Mkhitha ( unreported SCA case no. 1221/2015 dated 25 November 2016) at
para [17].
Superior Courts Act, above, that the appeal against both conviction and
sentence in respect of the applicants , where applica ble, would have a
reasonable prospect of success.
[18] I do not find any compelling reason to grant leave on any basis. It is for
that reason therefore that all the applications for leave to appeal must fail.
ORDER
[19] In the result I make the following order:
Each of the applications for leave to appeal ( in paragraphs
A,B and C) is dismissed.
________________________
T.V NORMAN
JUDGE OF THE HIGH COURT
APPEARANCES:
For Applicants – 1, 15, 6, 10, 14 : Mr Tshingana
Instructed by : Zibula and Krwempe Attorneys
King Williams Town
For Applicants – 3, 4, 5 and 7 : Mr Dengana
Instructed by : F.T.Dengana Attorneys
King Williams Town
For Applicants – 8, 9, 11 and 16 : Mr Nabela
Instructed by : Mankayi-Masoka Attorneys
King William’s Town
King Williams Town
For the Respondent : Adv Philisane
Instructed by :Director of Public Prosecutions
King Williams Town
Matter heard on : 07 April 2026
Judgment delivered on : 08 April 2026