IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Not reportable
Case no. CA&R 155/2025
In the matter between:
MASIBULELE TOM First appellant
LOYISO SICHOLO Second appellant
FEZEKILE NDONGENI Third appellant
and
THE STATE Respondent
JUDGMENT
LAING J
[1] This is an appeal against conviction and sentence. The appellants were
convicted of the murder of Mr Mandilakhe Njali on 1 April 2022 at Braelyn Extension
10, East London, and were sentenced to life imprisonment.
In the court a quo
[2] The state presented the evidence of Mr Mzwanele Mqonqo, who testified that
he had been with his girlfriend, Ms Zodwa Vuyoleko, on the day in question. They
had encountered the three appellants, who asked them whether they had seen Ms
Vuyoleko’s brother, Mr Njali. They alleged that he had been causing trouble in the
area. A short while later, Mr Mqonqo and his girlfriend came across the appellants
again, who were assaulting Mr Njali. He had an open wound on his face, injuries to
his legs, and broken fingers. The first and third appellants were wielding lengths of
electric cable, the second was using a knobkierie. They told the witness that Mr Njali
had stolen a TV, a laptop, and food. Mr Mqonqo attempted to intervene. Ms Vuyoleko
ran to call her father, who arrived with her other brother, Mr Baxolele Vuyoleko. They
managed to calm the situation. Mr Njali’s father asked him what he had done with
the items that he had taken. Mr Njali was unable to answer; he had been severely
beaten. The witness, his girlfriend, and Mr Vuyoleko took Mr Njali to a nearby
hospital where he died soon afterwards.
[3] Under cross -examination, Mr Mqonqo stated that about seven other
community members had been present, mostly women. They had been standing at
some distance away. Only the three appellants had carried out the assault. The
witness said that Mr Njali had been in possession of a backpack at the time, but did
not see whether it had contained any stolen items. He agreed that Ms Vuyoleko’s
father had shouted at Mr Njali, accusing him of stealing. He denied, however, that Mr
Njali’s family had assaulted him or that other community members had joined in.
[4] Ms Vuyoleko corroborated much of Mr Mqonqo’s testimony. They encountered
the three appellants while walking to Ms Vuyoleko’s home. Later, they saw Mr Njali
and told him that the appellants were looking for him. When they heard that the
appellants had found Mr Njali, they went to investigate and found him being
appellants had found Mr Njali, they went to investigate and found him being
assaulted. Ms Vuyoleko differed from Mr Mqonqo in relation to what weapons each
of the appellants had used, but she confirmed that they had been armed with a stick
and lengths of electric cable. They had chased Ms Vuyoleko away. She went to fetch
her father, who arrived about 30 minutes later with her brother. The appellants said
that Mr Njali had stolen various items. Ms Vuyoleko’s father asked Mr Njali what he
had done with the items but Mr Njali had been unable to speak. Approximately 20
members of the community were present, standing at some distance away. Ms
Vuyoleko was adamant that the appellants, no-one else, had assaulted Mr Njali.
[5] Ms Vuyoleko’s father, Mr Dongisiswe Thabakaswe, testified that his daughter
had come to his home to inform him that Mr Njali was being severely assaulted.
They proceeded to the scene, where Mr Thabakaswe found Mr Njali lying on the
ground with foam coming from his mouth. He did not see who had assaulted him. He
asked his son, Mr Baxolele Vuyoleko, to take Mr Njali to hospital.
[6] Testifying in his own defence, the first appellant said that the local community
had been summoned to a meeting on the date in question. They had discussed the
rampant crime rate in the area and named Mr Njali as a suspect. By chance, he
happened to have been in the nearby vicinity. Members of the community confronted
him and demanded that he open a backpack that he was carrying. They discovered
various lengths of electric cable. Some of the community members began to hit Mr
Njali. His sister, Ms Vuyoleko, arrived, together with her boyfriend and her son. She
accused Mr Njali of theft and struck him on the head and on the body with a piece of
plank. Ms Vuyoleko’s son also assaulted him, saying that he had stolen his
cellphone. The first appellant said that he had been part of a crowd of onlookers,
demanding that Mr Njali tell the truth. Shortly afterwards, Mr Vuyoleko arrived,
followed by Mr Thabakaswe. They, too, began to beat Mr Njali, calling him a thief. Mr
Thabakaswe expressed his gratitude to the commun ity that Mr Njali was still alive.
The first appellant denied that he had participated in the assault. He refuted the state
witnesses’ version of events, saying that they were guilt ridden because of their
involvement in the incident.
[7] During cross-examination, the first appellant admitted that he had demanded
from Mr Njali the details of the items that he had stolen so that they could be
from Mr Njali the details of the items that he had stolen so that they could be
recovered. Mr Njali had no visible injuries before Ms Vuyoleko and other family
members arrived. He denied that the remaining appellants had been involved in the
assault.
[8] The second appellant corroborated most of the first appellant’s version. He
denied having assaulted Mr Njali. He said that community members had assaulted
Mr Njali with sticks and ‘switches’ before Ms Vuyoleko had arrived with her boyfriend,
her son, and other members of the family. They joined in the attack, which became
more intense. Mr Vuyoleko trampled on Mr Njali’s head, asking him why he was
stealing other people’s possessions. The second appellant said that he had asked
Mr Njali why he did not simply say where he had concealed the items that he had
stolen. The second appellant refuted the version provided by the state witnesses,
suggesting that they ha d implicated the appellants because they had ‘sold out’ Mr
Njali.
[9] The third appellant provided further corroboration. He said that Mr Njali had
refused to cooperate when requested to open his backpack; this had led to the
assault. He denied having been involved. The attack on Mr Njali became more
serious after Ms Vuyoleko, her son, and other family members joined in. Mr Vuyoleko
stood on Mr Njali’s throat. Mr Thabakaswe later thanked the community members for
having left Mr Njali alive. The third appellant said that Ms Vuyoleko had implicated
the appellants because she kn ew them from elsewhere; she had only just arrived in
the community and did not know many people. Mr Mqonqo implicated the appellants
out of loyalty to Ms Vuyoleko.
Judgment
[10] In a brief judgment, the court a quo referred to the post -mortem report,
observing that Mr Njali had suffered multiple long bone fractures. He had been
beaten to death. The court dealt with the doctrine of common purpose, stating that
the key issue was whether the appellants had actively associated themselves with
the killing of Mr Njali. It rejected, unhesitatingly, the possibility that Mr Njali’s family
members had been responsible. Whereas family members may sometimes act
violently against another, said the court, they would not go so far as to kill a brother
or a son. Furthermore, the court did not accept that a community could watch family
members kill one of their own and then do nothing when three innocent members of
members kill one of their own and then do nothing when three innocent members of
the community were charged. The court convicted all three appellants.
[11] Regarding sentence, the court a quo emphasised that members of a
community should not be allowed to take the law into their own hands. It
acknowledged, inter alia, the findings set out in the pre -sentence reports before
deciding that there were no substantial and compelling circumstances to justify a
departure from the prescribed sentence. It imposed life imprisonment.
On appeal
[12] The appellants have an automatic right to appeal. Regarding conviction,
counsel referred to S v Van der Meyden ,1 where Nugent J stated that a trial court’s
conclusion must account for all the evidence; none of it may simply be ignored. 2
Similarly, in S v Chabalala,3 the Supreme Court of Appeal, per Heher AJA, held that
the proper approach was to weigh up all the elements that pointed towards the guilt
of the accused against all those that indicated his or her innocence, properly
considering inherent strengths and weaknesses, probabilities and improbabilities on
both sides, and then decide whether the balance weighed so heavily in favour of the
state as to exclude any reasonable doubt about the accused’s guilt. A trial court must
avoid the temptation to latch on to one seemingly obvious aspect without assessing
it in the context of the full picture presented in evidence.4 Counsel contended that the
court a quo had erred in its assessment and rejection of the appellants’ evidence. It
erred in finding that the state had proved its case beyond reasonable doubt.
[13] In contrast, counsel for the state pointed out, with reference to S v Francis ,5
that the powers of a court of appeal to interfere with a trial court’s findings of fact
were limited. In the absence of any misdirection, a trial court’s conclusion was
presumed to be correct because it had the advantage of seeing, hearing, and
appraising a witness. It was only in exceptional cases that a court of appeal would be
1 1999 (1) SACR 447 (W).
2 At 450A–B.
3 2003 (1) SACR 134 (SCA).
4 At para 15.
5 1991 (1) SACR 198 (A).
entitled to interfere with a trial court’s evaluation of oral testimony. 6 This was
reiterated in S v Hadebe and Others.7 In the absence of a demonstrable and material
misdirection on the part of the trial court, its findings of fact must be presumed to be
correct and will only be disregarded if the recorded evidence showed them to be
clearly wrong. 8 Counsel argued that the court a quo weighed the evidence of the
state witnesses against that of the appellants, correctly considering the matter in its
totality. Furthermore, counsel asserted, with reference to Director of Public
Prosecutions, Limpopo v Molope and Another ,9 that simply because the court did
not refer to certain aspects in its judgment did not mean that these were not
considered.
[14] I am inclined to agree with the state. From the record, it is apparent that the
court a quo engaged closely with the testimonies of the various witnesses, seeking
clarity where necessary and placing questions of its own to satisfy its understanding
of the events that occurred. Whereas the judgment was noticeably terse, there is no
indication that the conclusion reached was not based on the evidence presented.
There is, in the absence of a demonstrable and material misdirection, no reason to
interfere with the court’s findings of fact. In that regard, it is highly improbable that
the main perpetrators of the assault, as vicious as it was, were Mr Njali’s own sister,
brother, and father — as well as Ms Vuyoleko’s 11- or 12-year-old son. For the family
to have brutally beaten one of their own in full view of the community members
present, thanking them for having spared Mr Njali before loading him into a motor
vehicle and taking him to a local hospital, is entirely implausible.
[15] The state witnesses were consistent in their testimonies that the three
appellants, nobody else, had assaulted Mr Njali and caused the injuries that led to
his death. This evidence on its own was sufficient to discharge the onus —
his death. This evidence on its own was sufficient to discharge the onus —
irrespective of who inflicted the fatal wound. The doctrine of common purpose was
correctly applied. If there had been any basis upon which to reject the state
witnesses’ evidence, then the doctrine was still capable of application, even on the
appellants’ version. Where there is no prior agreement to commit a criminal act,
6 At 204C–E.
7 1997 (2) SA 641 (SCA).
8 At 645E.
9 2020 (2) SACR 343 (SCA), para 55. See, too, S v Barendse and Another 2023 JDR 1714 (WCC), para 21.
liability arises from an active association with and participation in an offence,
accompanied by the necessary intention.10 The erstwhile Appellate Division listed the
requirements in S v Mgedezi and Others .11 These can be summarised as follows
within the context of the present matter: (a) X must have been present at the scene
where the assault was committed; (b) X must have been aware of the assault on Y
by somebody else; (c) X must have intended to make common cause with the
person or persons committing the assault; (d) X must have manifested his or her
sharing of a common purpose by performing some act of association with the
particular conduct of the others; and (e) X must have intended to kill Y.12
[16] On the appellants’ version, Mr Njali had acquired a reputation as a
troublemaker (a phara phara ). The community wished to call him to account. The
appellants were present when the community confronted Mr Njali and they were
most certainly present at and aware of the assault that followed. From their ability to
recall what was said to Mr Njali, how he responded, what was retrieved from his
backpack and the explanation that he gave, how community members began to hit
him with sticks and switches, and the injuries that he sustained, it is simply
improbable that the appellants never participated. At the very least, the first and
second appellants demanded that Mr Njali tell the truth and reveal the whereabouts
of the stolen items. This was done so that they and other young men in the
community could retrieve them. The first and second appellants undoubtedly
intended to make common cause and to share a common purpose with the
community members present to bring about instant justice. Whereas there was no
evidence that the third appellant spoke to Mr Njali, there was, nevertheless, every
indication from his testimony that he, too, associated himself with the attack and
shared the same common purpose. He was at the scene from the beginning until the
shared the same common purpose. He was at the scene from the beginning until the
end and could describe it in fine detail. If he had any qualms about making common
cause with the others, then he would have unambiguously stepped away from the
scene and disassociated himself from the attack. He did not. The third appellant’s
failure to have done so amounted to a manifestation of his having shared a common
10 S V Hoctor Snyman’s Criminal Law 7 ed (2020), at 227–8.
11 1989 (1) SA 687 (A), at 705I–706C.
12 Hoctor, ibid.
purpose with the others to ensure that justice was meted out — on the community’s
own terms.
[17] For the appellants to have shared a common purpose to kill, it was
unnecessary for intention in the form of dolus directus to have been present.13 In S v
Papu and Others ,14 a full bench confirmed, per Chetty J, that dolus eventualis was
sufficient. All that was required was for the appellants to have foreseen the possibility
that the conduct of the community members with whom they associated could have
resulted in Mr Njali’s demise — and that they reconciled themselves to such
possibility. The unhappiness of the community members at the meeting beforehand,
together with the sheer ferocity of their assault upon Mr Njali, using sticks and
switches, would undoubtedly have given rise to the foreseeability of his death in the
minds of the appellants. Their decision to have remained at the scene and to have
continued their participation in the attack, irrespective of the nature or extent of their
individual roles, was enough. They accepted the possibility that Mr Njali could have
been killed.
[18] It was, however, the court a quo’s finding that the three appellants alone
carried out the assault. For the reasons already explained, this must be presumed to
be correct. The record does not demonstrate that such finding was clearly wrong and
that it must be disregarded. I am not persuaded that this is an exceptional case,
warranting interference.
[19] Turning to sentence, counsel for the appellants cited S v Fazzie and Others,15
where the erstwhile Appellate Division, per Van Winsen AJA, confirmed that the
determination of sentence was pre-eminently a matter of discretion for the trial court.
Where it is clear, however, that the trial court ought to have had regard to certain
factors but failed to do so, or that it ought to have assessed the value of such factors
differently from how it did, then this would constitute a misdirection, entitling a court
differently from how it did, then this would constitute a misdirection, entitling a court
of appeal to consider sentence afresh. 16 Counsel submitted that the court a quo
should have found that there were substantial and compelling circumstances. These
13 Hoctor, op cit, at 229.
14 2015 (2) SACR 313 (ECB).
15 1964 (4) SA 673 (A).
16 At 684A–C.
were apparent from the evidence, especially the uncontested fact that they were all
first offenders.
[20] Counsel for the state referred to S v Malgas ,17 where the Supreme Court of
Appeal, per Marais JA, reiterated that a court of appeal cannot, in the absence of a
material misdirection, approach the question of sentence as if it were the trial court. It
cannot substitute the sentence arrived at simply based on preference. This would
usurp the trial court’s discretion. 18 Counsel mentioned several aggravating factors in
the present matter: Mr Njali never placed anyone’s life in danger; he had no chance
of defending himself against the appellants, who were armed and who outnumbered
him; the appellants beat him to death, using excessive blunt force to break several of
his bones in the process; they displayed a total disregard for human life; the
appellants took the law into their own hands, instead of reporting suspected criminal
activities to the police; and they showed no remorse for their actions, blaming Mr
Njali’s own family for his death. Vigilante justice, said counsel, must not be tolerated.
[21] Shortly after the decision in Malgas, the Constitutional Court, in S v Dodo ,19
emphasised the concept of proportionality regarding the period of incarceration to be
imposed for the offence committed. The court stated that an ‘offence’ comprised all
the factors relevant to the crime itself, as well as the personal circumstances of the
offender. To warrant the deprivation of his or her freedom, it was necessary to show
that the period of incarceration was reasonably required to curb the offence and to
punish the offender. It must be proportionate to the offence. 20 In S v Vilakazi ,21
several years later, the Supreme Court of Appeal confirmed the relevance of the
principle. The period of incarceration must be proportionate to what the offender
deserved, no less and no more. A prescribed sentence cannot be assumed, a priori,
deserved, no less and no more. A prescribed sentence cannot be assumed, a priori,
to be proportionate in any case and must be determined upon consideration of the
circumstances. The essence of Malgas and Dodo was that disproportionate
17 2001 (2) SACR 1222 (SCA).
18 Para 12.
19 2001 (1) SACR 594 (CC).
20 Para 37.
21 2009 (1) SACR 552 (SCA).
sentences must not be imposed; courts were not vehicles for injustice. 22 The court
went on to hold, however, that:
‘In cases of serious crime the personal circumstances of the offender, by themselves, will
necessarily recede into the background. Once it becomes clear that the crime is deserving of
a substantial period of imprisonment the questions whether the accused is married or single,
whether he has two children or three, whether or not he is in employment, are in themselves
largely immaterial to what that period should be, and those seem to me to be the kind of
“flimsy” grounds that Malgas said should be avoided.’23
[22] In the present matter, the appellants were all in their mid - to late 30s at the
time of sentence. Both the first and second appellant have children who stay with
their respective mothers; they contribute towards their maintenance. The third
appellant has no dependents. Neither the first nor the second appellant completed
secondary school; the third appellant passed grade 12. All the appellants were
employed as construction or general workers, earning incomes commensurate with
such positions. None had any previous convictions.
[23] There was, overall, nothing remarkable about the personal circumstances of
any of the appellants. Against this must be balanced the brutal killing of Mr Njali,
involving ‘multiple long bone fractures’, as the post -mortem report described his
injuries. He would have died an agonising death, in full view of the community
members present but ultimately alone and at the mercy of the appellants. Whereas
the frustration and anger of a community in the face of rampant crime and apparent
apathy on the part of the police may explain the context in which the killing occurred,
vigilante or mob justice can never be condoned. For a community to assume
responsibility for administering its own notion of justice to individuals suspected of
criminal activities invites the anarchy and terror that characterise a society in which
criminal activities invites the anarchy and terror that characterise a society in which
the rule of law no longer operates. In the present matter, with reference to the Zinn
triad,24 the nature of the crime and the interests of society considerably outweigh the
personal circumstances of the appellants. The prescribed sentence was not
disproportionate to the offence.
22 Para 18.
23 Para 58.
24 S v Zinn 1969 (2) SA 537 (A), at 540G.
[24] Consequently, I would make the following order:
The appeal against conviction and sentence is dismissed.
______________________________
JGA LAING
JUDGE OF THE HIGH COURT
I agree.
______________________________
SG POSWA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES
For the appellant: Adv Charles
Instructed by: Legal Aid, South Africa
Makhanda Local Office
MAKHANDA
Email: HenryC@legal-aid.co.za
For the respondent: Adv Van Rooyen
Instructed by: Director of Public Prosecutions
MAKHANDA
Email: MVanrooyen@npa.gov.za
Date heard: 22 April 2026.
Date delivered: 5 May 2026.