IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A318/2023
1.
2.
3.
4 MAY 2026
DATE
REPORTABLE: ¥eS I NO
OF INTEREST TO OTHER JUDGES: ¥eS/NO
REVISED· ~NO
In the matter between:
KHEHLA KUBA YI
MAFUMIS I KUBAYI
and
THE STATE
First Appellant
Second Applicant
Respondent
The matter was heard in open court. The judgment is handed down electronically by
circulation to the parties' legal representatives via email and uploading to the electronic
file of this matter on Caselines . The date of the judgment and order is deemed to be
March 2026.
JUDG M E NT
1
MAZIBUKO J (REID J CONCURRING )
INTRODUCTION
[1] The first appellant , Khehla Kubayi ('Khehla'), and the second appellant,
Mafumisi Kubayi ('Mafumisi'), were arraigned before the Pretoria Magistrates
Court, Gauteng Division ('the trial court') with one count of murder in that on 16
March 2019 they acted in furtherance of common purpose and killed one Lesedi
Kekana ('the deceased') by first attempting to stab him with a knife, thereafter
pushing him from the seventh floor of a block of flats and causing him to fall to
his death.
[2] They were duly informed of the implications of section 51 provisions of the
Criminal Law Amendment Act 105 of 1997 in relation to the offence they were
facing. They were legally represented during the trial.
[3] They pleaded not guilty and exercised their right to remain silent.
[4] They were convicted, and, a sentence of 8 years imprisonment , half of it
suspended for a period of 5 years, was imposed.
[5] The trial court granted leave to appeal against conviction.
THE DECISION OF THE TRIAL COURT
[6] The issue before the trial court was, firstly, whether Khehla and Mafumisi acted
in common cause to cause the deceased's death. Secondly , whether Mafumisi
tried to stab the deceased , and lastly, whether the deceased was pushed by
Khehla leading to his fall to death or he jumped over the railing.
[7] The trial court was satisfied that Khehla and Mafumisi both participated and
acted in common purpose in killing the deceased , when Mafumisi aimed at
stabbing the deceased and the deceased dodged the knife, and, thereafter ,
Khehla pushed the deceased, who then fell and suffered injuries that caused
his death.
GROUNDS OF APPEAL
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[8] In summation , the appellants contend that the trial court, among others, erred
in:
[8.1] Rejecting Khehla's alibi that he was not present during the chase of the
deceased and his crew, and at the time the deceased was injured.
[8.2] Rejecting the appellants' reasonable, possibly true version in substance,
without giving reasons and or based on inconsistencies or contradictions
which were irrelevant and/or immaterial to the key dispute of whether the
deceased jumped or was pushed.
[8.3] Placing the burden of proof on Khehla and Mafumisi, thereby calling
upon them to be detailed and prove the truthfulness of their versions.
[8.4] Finding that the appellants acted in furtherance of common purpose
without providing any reasons as to how there was prior planning
between Khehla and Mafumisi. In the alternative, how the acts of one
were imputable to the other.
ISSUE
[9] The issue for determination in this appeal is whether the trial court correctly
found that the appellants caused the death of the deceased whilst acting in
common purpose.
STATE'S CASE
[1 O] In order to prove the guilt of the appellants, the state relied on the evidence of
Constable Edward Mahlangu ('Constable Mahlangu'), Constable Dumisani Abel
Khoza ('Constable Khoza'), Malunga Mulaudzi ('Malunga') and Harvey Magano
('Harvey').
Testimony of Constable Edward Mahlangu
[11] The evidence of Constable Mahlangu was to the effect that he effected the arrest
of the appellants when they came to him in the police station. He also took
statements from other witnesses in the matter.
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[12] Under cross-examination , he testified that Khehla told him that the deceased
jumped over the balcony wall.
Testimony of Constable Dumisani Abel Khoza
[13] Constable Khoza testified that he was a photographer and a crime scene
investigator . The photo album depicted the photographs and measurements of
the scene of crime.
Testimony of Malunga Mulaudzi
(14] Malunga testified that on the morning of 16 March 2018 , between 2h00 and 4h00,
he was with the deceased at The Wall Flats in his flat on the fifth floor. They then
decided to visit their friend, Bridget Mothapo ('Bridget') , on the sixth floor. Whilst
on the sixth floor, he acceded to the deceased's request for water. Whilst inside
Bridget's flat to get water for the deceased , he heard the deceased arguing with
another male. The argument was over the fact that the other male was talking to
Bridget, whilst she was together with the deceased . While he was standing
beside Bridget, he saw the deceased on the seventh floor being threatened by
Khehla. Khehla was holding the deceased by his shirt. He went upstairs to pull
the deceased from that situation.
[15] He further stated that whilst on his way to the seventh floor, he met with Harvey,
who was briskly walking back in panic from the situation. He passed Harvey,
pulled the deceased by his hand and told him to walk away as he suspected the
appellants were drunk . As they started walking, he looked back and saw
Mafumisi holding a knife. Together with Khehla, Mafumisi chased them. He
started running whilst holding the deceased's hand. Seeing that they were not
running at the same pace, he let go of the deceased's hand.
[16] Harvey also started running. At the stairs, he stopped and looked back and saw
Harvey behind him, and the deceased was between 10 and 20 metres behind
Harvey. Mafumisi caught up with the deceased, and Khehla was slightly behind
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Mafumisi. Mafumisi tried to stab the deceased on his back but missed, as the
deceased moved away from the knife, thereby having his back against the
balcony wall. He estimated the height of which was just above his hip. Mafumisi
was on the right-hand side of the deceased, whilst Khehla and the deceased
were facing each other. Then Khehla pushed him over the balcony wall. The
deceased landed in the parking lot and got injured. Khehla and Mafumisi looked
over the balcony and saw the deceased falling.
[17] Under cross-examination , he reiterated that Khehla pushed the deceased,
denying that the deceased got hold of the railing before he jumped off. He stated
that after calling an ambulance , the deceased was taken for medical attention.
Later, he learnt that the deceased had passed away.
Testimony of Harvey Mkgwaneng Mogano
[18] Harvey testified and confirmed his presence on the morning in question , as
Mulunga stated. He stated that whilst in the flat, on the fifth floor, the deceased
left with Malunga. After about 15 minutes, he went outside to find out why Bridget
was telling the deceased not to go there. He saw the deceased on the sixth floor ,
arguing with people on the seventh floor. Seeing the deceased heading to the
seventh floor, he followed. On his way, he met Malunga. He went to Khehla and
Mafumisi, whose names he did not know then. Mafumisi had a large meat-cutting
knife. He realised the argument could lead to a fight as there was a knife involved,
so he told the deceased to walk away and not fight. Though he did not know what
they were arguing about, he decided to apologise to Khehla and Mafumisi and
left with the deceased.
[19] Whilst, they walked away, Malunga was in front; he was in the middle; the
deceased was behind him. When he looked back, he saw Khehla and Mafumisi
running towards them , Mafumisi still holding the knife. They reached the
deceased , and Mafumisi tried to stab the deceased, but the deceased managed
deceased , and Mafumisi tried to stab the deceased, but the deceased managed
to dodge the knife. The deceased was facing the appellants, with his back against
the balcony . Khehla then pushed the deceased, who fell on the parking lot on his
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face. He turned him over. The paramedics and the police arrived, and he was
taken by the paramedics .
[20] Under cross-examination , he reiterated that he was present and observed what
happened to the deceased, leading to his death. He denied that the deceased
and the twin brothers, Harry and Bokang, attacked Khehla. He also distanced
himself from his statement, which did not state that Khehla pushed the deceased .
[21] After a trial within a trial, the court ruled that his statement was not read back to
him, thereby depriving it of any evidentiary value.
DEFENCE CASE
Testimony of Khehla Kubayi
[22] In his defence, Khehla testified that on the day in question , whilst at his flat's
balcony on the seventh floor, with lyanda, he saw Bridget and started chatting to
her. The deceased emerged and swore towards them , stating that he was still
talking with Bridget. Listening to lyanda's advice, he moved and sat against his
flat's windowsill. The deceased came with Bokang and Harry. The deceased
asked what was going on and punched him. The deceased, together with Harry,
pinned him down against the windowsill whilst throttling him. Bokang also joined
in the attack. His brother, Mafumisi, came to his rescue, and the deceased
attacked Mafumisi. The other people, lthu, Nico, Kamo, David, and Mahlatsi, also
came to where he was. Kamo grabbed him by his jersey, thereby separating him
from the deceased and his crew, and placing him in his flat, where he remained
with Kamo and Mahlatsi. He saw Mafumisi chasing after the deceased and his
crew. He heard from Mafumisi that the deceased jumped over the balcony wall
and fell.
[23] Under cross-examination , he reiterated that the deceased was not with Harvey
and Malunga. He stated that after the incident, he and his brother called their
parents, who advised them to leave the block of flats for safety reasons.
6
Testimony of Mafumisi Kubayi
[24] Mafumisi gave evidence to the effect that whilst inside a flat he shared with his
brother, Khehla, Kamo and David, he heard some commotion as if people were
fighting. On investigation , he found that the deceased , Harry and Bokang were
surrounding and throttling Khehla. The deceased struck Khehla with a clenched
fist. When he asked what was going on, the deceased attacked him by grabbing
him by the t-shirt between the chest and the neck and warned that he would hurt
him and Khehla. He removed the deceased's hand from his chest and went
inside the kitchen. Khamo went outside and separated the deceased from
Khehla. David reprimanded the deceased and prevented him from entering the
flat.
[25] He then heard Bridget from the sixth floor telling the deceased to stop. Seeing
that Khehla was still under attack, he grabbed the knife, went outside and wielded
it, telling Khehla's two attackers to leave their place. Seeing the knife in his
possession , the attackers let go of Khehla and retreated backwards . Khamo
pulled Khehla inside the house. He chased after the attackers. One of them ran
up until the emergency stairway, whilst the other turned the corner. He was about
4 to 5 metres behind them. He grabbed the railing and stopped. He heard lyanda
saying, "Hey, wena, what are you doing?" and when he looked to his left, he saw
the deceased jumping over the railing. He ran back to their flat whilst David went
downstairs to where the deceased had fallen.
[26] Under cross-examination , he stated that the deceased never entered their flat' '
David blocked him. He did not know why Khehla did not testify about his torn t-
shirt. He denied that among the people he chased were Malunga and Harvey, as
none of them was fat, only tall. He said he was in possession of the knife to scare
them away.
Testimony of lyanda Phika
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[27] lyanda confirmed his presence on the day in question. His evidence was that the
other two persons came out of Bridget's flat afterwards, not that they came to the
seventh floor with the deceased .
Testimony of Bereng Kamogelo Panyane
[28] On the day in question, he was with Khehla, Gusty, and others. They had a meal
together . They left for their respective rooms. Whilst in his room, he heard noise,
opened a curtain and saw two people pinning Khehla against the window. They
were hitting each other with clenched fists. He went and separated them , then
pushed Khehla into the flat. They met up with Mafumisi , who was leaving the flat
with a knife in his hand. They remained there until Mafumisi came back, who then
told them that the deceased had jumped over the rail and fallen. Under cross
examination , he testified that, although he had this information , he did not tell the
police upon their arrival or thereafter.
DISCUSSION
[29] It is trite that the court of appeal will only interfere with the trial court's factual
findings where the trial court has materially misdirected itself on facts.
[30] In order to succeed on appeal, the appellants must persuade this Court, on
adequate grounds, that the trial court misdirected itself in accepting the State's
evidence and rejecting their version as not being reasonably possible true.
There are established principles governing the hearing of appeals against
findings of fact and law. In the absence of demonstrable and material
misdirection by the trial court, its findings of fact are presumed to be correct.
They will be disregarded only if the recorded evidence clearly shows they are
wrong.1
1
S v Monyane and Others 2008(1) SACR 543 (SCA) at para 15.
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[31] The state bears the onus to prove its case beyond reasonable doubt. The
accused needs only to give a reasonable , possibly true version. The Court does
not need to believe him.
[32] It is not disputed that Khehla and the deceased's altercation regarding their
interest in conversing with Bridget led to the deceased moving from the 6th floor
to the 7th floor in a fighting mood. A fight ensued between the deceased and
Khehla. The deceased's friends and those of Khehla, including Mafumisi, also
got involved. Seeing the knife held by Mafumisi and, at the advice of Harvey to
walk away and not fight, the deceased and his crew walked away. Mafumisi
chased after them.
[33] It was disputed that: a) The deceased was with Harvey and Malunga when he
had a fight with Khehla and Mafumisi. b) Mafumisi was with Khehla when he
chased after the deceased and his crew. c) The deceased was pushed over the
railing, and d) Mafumisi and Khehla acted in common purpose in killing the
deceased.
[34] In order to answer these questions , it is noteworthy that the appellant's
conviction arose from events that occurred in the early hours of the day in
question, when the flat was lit. All witnesses, both for the State and for the
defence, testified that nothing obstructed their observation of what was
happening. However, they differ in terms of whether Harvey was the one who
was with the deceased or whether it was the twin brothers, Harry and Bokang.
Further, whether the deceased was pushed or he jumped over the railling out
of his own accord.
[35] 'A conspectus of all the evidence is required. Evidence that is reliable should
be weighed alongside such evidence as may be found to be false.
Independently verifiable evidence, if any, should be weighed to see if it supports
any of the evidence tendered. In considering whether evidence is reliable the
quality of that evidence must of necessity be evaluated, as must corroborative
evidence, if any. Evidence must of course be evaluated against the onus on
evidence, if any. Evidence must of course be evaluated against the onus on
any particular issue or in respect of the case in its entirety. The
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compartmentalised and fragmented approach of the magistrate is illogical and
wrong.'2
[36] Where a single witness has an interest or bias adverse to the accused, the
evidence should be approached with particularcaution .3 The court should seek
to apply some kind of safeguard tailored to the particular reasons that make
their testimony suspect to avoid, as far as possible, an incorrect finding based
on their testimony. 4 Courts should assess the witness's testimony for its
reliability and credibility in light of the specific context of the case while being
mindful of the concerns that necessitate caution. 5
[37] Harvey testified that, upon arriving on the 7th floor, he went to the altercation
and fight scene, apologized on behalf of the deceased , though he did not know
what he was apologizing for. He then pulled the deceased, and they walked
away. The defence denies that Harvey was there and that he took the actions
he testified to. Mafumisi stated that he chased after the tall guys; none of them
was a big built person.
[38] During cross-examination at the trial within a trial, Constable Mahlangu testified
that when he spoke to Harvey, among other things he commented about
Harvey having gained weight. It needs to be indicated that this issue was not
clarified at any stage during the trial, especially when Mafumisi testified that he
chased after tall guys and none of them was big built. If Constable Khoza's
evidence in this point is accepted, Harvey was not big built at the time of the
incident, however at the time he testified he was.
[39] Harvey's evidence was more detailed than that of Malunga, whose presence at
the scene was not disputed. He stated how he heard Bridget warning the
deceased, who was on the sixth floor, arguing with someone on the seventh
2 S v Trainor (468/01) (2002] ZASCA 125; (2003] 1 All SA 435 (SCA); 2003 (1) SACR 35 (SCA) (26
September 2002).
3 R v Mokoena 1956 (3) SA 81 (A) at 85H; Sekoala v The State (579/2022) (2024] ZASCA 18 (21
February 2024).
February 2024).
4 Schwikkard and Van der Merwe Principles of Evidence (3rd ed 2012) at p 546.
5 Mohale v S (A634/2017) (2019] ZACC 376 (27 June 2019) at para (36].
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floor. How he followed the deceased to the seventh floor and explained the type
of knife Mafumisi held in his possession. Mafumisi did not deny the type of knife ,
as Harvey explained .
(40] The trial court considered the undisputed evidence that Harvey was the first to
arrive where the deceased landed on the parking lot after falling from the
seventh floor. It found that the fact that Harvey was the first to arrive at the
parking lot where the deceased landed indicated that he saw the deceased
falling from the seventh floor and immediately proceeded to where he landed.
It was also not disputed that Harvey was the one who resuscitated him and
spoke to him. In my view, considering all the factors around Harvey as
discussed , the trial court was correct in finding that Harvey was present at least
from the time he heard Bridget warning the deceased until he attended to the
deceased after his fall.
[41] I agree with the trial court that the evidence of Harvey was substantially
satisfactory in relation to material aspects and to a certain extent corroborated
by the evidence of the state and defence witnesses , and photo album on
reconstruction , depicting the location in the flat where the deceased was before
and after he fell to his death.
[42] To answer the question whether Mafumisi was with Khehla when he chased
after the deceased and his crew, and whether the deceased was pushed over
the railing or he jumped the railing . One must look at the evidence as to what
was happening just before the deceased and his crew started walking away.
Mafumisi testified that when he walked out of their flat, he found the deceased
together with his crew fighting Khehla. When he tried to find out, the deceased
attacked him, by holding him by hist-shirt . He freed himself from the deceased 's
hold and went inside the flat. The deceased followed him but was stopped to
enter the door though he had already passed the security gate. He came out
enter the door though he had already passed the security gate. He came out
with the knife. Seeing the knife Harvey advised the deceased not to fight but to
walk away. He apologized , pulled the deceased by his hand, and they walked
away. Whilst running he realized they were not at the same pace with the
deceased , he let go of him and started running on his own. He looked back and
realized, Mafumisi and Khehla had reached the deceased.
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[43] In S v Chabalala 2003(1) SACR 134 (SCA) at 139 par [15] Heher, AJA , with
reference to S v Van Aswegen 2001 (2) SACR 97 (SCA), said the following:
"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 reasonable
doubt about the accused's guilt."
[44] If the defence version should be accepted as reasonably possibly true, it is
important to assess what the case of Khehla and Mafumisi was. Mafumisi
testified that the deceased held him by hist-shirt , whilst Khehla was still under
attack by Harry and Bokang. After freeing himself from the deceased, he went
inside the flat and came out with the knife. He beat his feet down and chased
after the deceased and his crew whilst he wielded the knife, telling them to get
out of their place. Mafumisi said he had the knife because Khehla was still under
attack by the deceased and his crew. Khehla and Mafumisi as well as all the
defence witnesses corroborated each other that Khehla did not chase after the
deceased and his crew. It is not clear, though, why Mafumisi had to threaten
them with the knife and chase after them when his brother, Khehla whom he was
protecting , was already taken inside their flat.
[45] Mafumisi did not deny running after the deceased and his crew, which evidence
corroborates that of the deceased's crew that when they looked back, they saw
him and Khehla running after them , and he (Mafumisi) was in front of Khehla and
behind the deceased . In my respectful view, if Mafumisi was just threatening
them, there was no longer a need to do so. They were already running away and,
walking away from the fight. Further, there was no longer a need for him to run
walking away from the fight. Further, there was no longer a need for him to run
after them . He had already beaten his feet down and told them to get out of their
place, and they had gotten the message and left Mafumisi and Khehla's place.
[46] It was not clear what he intended to do with a knife on reaching them, as he was
running after them carrying the knife, if the purpose was just to threaten them.
The purpose of him carrying the knife is not explained, when the threat in the
form of the deceased and his crew is already retreating and removed , and the
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person threatened is already kept safe inside the flat. For the purpose of
threatening them, it seems it could have been sufficient for him to just stand there
with the knife, and or even shout at them.
[47] It is also not clear whether when the deceased dodged the knife, Mafumisi was
still scaring him not intending to stab and harm him. Mafumisi's testimony is
that he looked at the deceased and saw him jumping and falling after hearing
lyanda shouting at the deceased . It was not established during the trial as to at
what stage he lost sight of the deceased and his crew, as he was running after
them.
[48] In my respectful view, Mafumisi and Khehla were not just running after them to
scare them away but to fight them. The deceased and his crew did not just walk
away from the fight but ran away from Mafumisi who had a knife. They were
running from danger. They were chased after by Mafumisi who had a knife and
wielded it towards them. Harvey and Malunga testified that on reaching the
deceased , the knife was directed at the deceased, but he avoided it. He stood
diagonally to both Khehla and Mafumisi, whilst his back was against the railing.
Khehla pushed him, he then fell and died from the injuries he sustained when
he was pushed over from the seventh floor.
[49] If the deceased's crew was chased after as far as the stairs and there was no
swinging or wildering of a knife and pushing , what could have motivated the
deceased to jump over? It might remain unknown; however, the undisputed
evidence was that the deceased and his crew were already 10 to 15 metres away
from Khehla and Mafumisi's flat. The deceased had already seen his friends in
the stairs. In my view, respectfully , from the evidence, it is not far-fetched a
thought that the deceased was accosted by the two brothers, Mafumisi and
Khehla, was faced with danger or death by the knife. He dodged the knife.
However, he stood diagonally to Khehla and Mafumisi , he could not move
However, he stood diagonally to Khehla and Mafumisi , he could not move
anywhere else. Khehla pushed him and due to the position of where they were
and the height of the railing he then fell, got injured and later died.
[50] The court was alive to the fact that the state and defence witnesses, except for
the police officers, were not independent witnesses towards the matter, as
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Harvey and Malunga were friends of the deceased. The trial court noted that
the evidence needs to be analyzed , corroborated and scrutinized , and be
evaluated with a high degree of caution. I found no fault with the trial court's
assessment of the facts and application of the law.
[51) The trial court was correct to accept Harvey and Malunga's testimony as it was
clear, satisfactory , corroborated and consistent with independent verifiable
evidence like the corridor, location of the wall and the railing, the stairs and the
distance between Khehla and Mafumisi's room. Accordingly , the appeal against
conviction ought not to succeed.
[52) As a result, I propose the following order.
Order:
(i)The appeal against conviction is dismissed.
I agree, and it is so ordered.
NGM MAZIBUKO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
FMM REID
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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Date of hearing:
Judgment delivered:
Appearances :
For the appellants:
Attorneys for the appellant:
For the respondent:
5 February 2026
4 May 2026
Mr MS Monene
Malumbete & Makhubele Attorneys
Mr JJ Jacobs
National Director of Prosecutions
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