IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO.: CA &R 77/25
Reportable Yes
In the matter between:
SIYAMTHANDA RUMBU Appellant
and
THE STATE Respondent
ORDER
The following order was issued:
1. The appeal against the conviction is upheld.
I I L_ _ _______.1____
2. The appellant’s conviction of murder and robbery with aggravating
circumstances and his sentences of 20 years and 10 years
imprisonment respectively are set aside.
3. The order of the court a quo is hereby substituted with the
following order:
3.1 The accused is found not guilty in respect of both murder
and robbery with aggravating circumstances set out in counts
1 and 2 of the charge sheet.
REASONS FOR THE ORDER
GRANTED ON 15 APRIL 2026
NOTYESI AJ
Introduction
[1] The Appellant stood trial in the Regional Court, KwaMaqoma, on three
counts. In count 1, he was charged with murder, it being alleged that on or about
2 October 2016, and at or near Tini’s Location, Fort Beaufort, in the Regional
Division of the Eastern Cape, he unlawfully and intentionally killed one
Mzukisi Nikani by stabbing him with a knife.
[2] The charge further alleged that count 1 fell within the ambit of section
51(2) of the Criminal Law Amendment Act 105 of 1997 (“the CLAA”), which
prescribes a minimum sentence of life imprisonment unless the court finds the
existence of substantial and compelling circumstances justifying the imposition
of a lesser sentence. In count 2, the Appellant was charged with robbery with
aggravating circumstances, as defined in section 1 of the Criminal Procedure
Act 51 of 1977, in that on or about 2 October 2016, an d at or near Tini’s
Location, Fort Beaufort, he unlawfully and intentionally assaulted the
complainant, Vuyokazi Duda, and with violence took from her an amount of
R400, being her property. The aggravating circumstances alleged were that a
knife or similar object was used during the commission of the offence. This
count was likewise read with the provisions of section 51(2) of the CLAA. In
count 3, the Appellant was charged with assault with intent to do grievous
bodily harm, in that on or about 2 October 2 016, and at or near Tini’s Location,
Fort Beaufort, he unlawfully and intentionally assaulted Nompucuko Qeqe by
stabbing her with a knife or similar instrument, with the intent to cause grievous
bodily harm.
[3] The Appellant pleaded not guilty to all the charges. He was legally
represented throughout the trial and elected to proceed without assessors in
terms of the Magistrates’ Courts Act 32 of 1944.
[4] At the conclusion of the trial, the Appellant was convicted on counts 1
and 2 and acquitted on count 3. In respect of count 1, he was sentenced to
twenty (20) years’ imprisonment, and in respect of count 2 he was sentenced, to
ten (10) years’ imprisonment, of which two and a half (2½) years were ordered
to run concurrently with the sentence imposed on count 1. The effective
sentence was twenty-five (25) years’ imprisonment.
[5] Aggrieved by the outcome, the Appellant applied for and was granted
leave to appeal on 29 April 2025. Leave was granted against conviction only.
The appeal was accordingly heard before this Court on 15 April 2026,
whereupon the following order was made:
(a) The appeal against conviction is upheld.
(b) The convictions of murder and robbery with aggravating
circumstances, together with the sentences of 20 years’
imprisonment and 10 years’ imprisonment respectively, are set
aside.
(c) The reasons for the order would follow.
[6] These are the reasons for the order.
[7] The crisp issue for determination was whether the Appellant was properly
convicted by the Regional Court.
Material Facts
[8] The salient facts giving rise to this appeal may be summarised as follows.
In discharging its onus, the State called four witnesses. The first witness,
Nompucuko Qeqe, testified that in the early hours of 2 October 2016, at
approximately 03h00, she was asleep at her home when she heard Vuyokazi
Duda calling her name. Vuyokazi informed her that Mzukisi was dying. The
witness knew the deceased, Mzukisi Nikani, as a person who repaired electrical
appliances for her.
[9] The witness immediately went outside to ascertain what had occurred.
Upon exiting her gate, she observed the deceased lying on his back near the
gate. She called out his name, but he did not respond. At that moment, a person
whom she identified as the Appellant suddenly appeared and grabbed her by the
front of her clothing. She testified that she knew the Appellant as he resided on
a nearby street. The witness further testified that the Appellant was armed with
a sharp object, which she estimated to be approximately 15 cm in length. She
grabbed the Appellant’s wrist in an attempt to restrain him, and a struggle
ensued. During the altercation, she was overpowered and fell to the ground,
whereupon she called out to her sister for assistance.
[10] She testified that she informed her sister that the Appellant had attacked
her. The Appellant then freed himself and fled the scene. Her sister arrived
shortly thereafter and assisted her. The police and an ambulance were
summoned. At that stage, the deceased was still alive and complained that he
was feeling cold. The witness was unable to state when the deceased passed
away. He was subsequently taken to East London for medical attention.
[11] During the scuffle, the witness heard the Appellant say, “You talk too
much.” She further testified that she observed two unknown young men
standing near the deceased. She was unable to identify them and did not observe
them committing any acts of violence. Importantly, they did not interact with
her. The witness sustained only a minor graze to her finger when she fell and
did not suffer any further injuries. She testified that visibility at the scene was
afforded by high -mast lighting situated approx imately 100 metres away, which
was illuminated at the time. She maintained that she was able to identify the
Appellant under these lighting conditions and that her identification was not
mistaken. However, she conceded that she did not witness the Appellant
stabbing the deceased or committing the robbery. She further stated that she
does not know who attacked and killed the deceased, as she found him already
lying on the ground.
[12] The second State witness, Victor Banjwa, testified that at approximately
03h00 on 2 October 2016, he was asleep at home with his girlfriend, Andiswa
Nonyathi, when she woke him and informed him that someone was crying
outside. He advised her not to go outside due to the late hour; however, she
nonetheless did so. Approximately three minutes later, she called out his name
repeatedly. He then dressed and went outside. He remained inside the yard,
near the corner, from where he observed a group of four men and four women
outside. Upon enquiring from his girlfriend as to what was happening, she urged
him to come out as they were about to be raped. He was reluctant to leave the
yard as he was alone and outnumbered by four unknown men. He recognised
the women as persons residing nearby but was unable to identify any of the
men. He armed himself with half a brick and threw it at one of the men who
was standing over his girlfriend. He then threw another brick towards the group.
He also observed a man lying on the ground near the road, bleeding. The
witness testified that visibility was poor and that, although there were street
lights, they did not provide sufficient illumination to enable identification.
[13] He confirmed under cross -examination that he could not identify any of
the four male assailants.
[14] The State further called Vuyokazi Duda. She testified that she knew both
the Appellant and the deceased. On the day in question, she had been in the
company of the deceased. They had initially been at the home of Nompucuko
Qeqe before proceeding to the deceased’s home, where they consumed alcohol,
including approximately one litre of Paarl Perlé. At about 03h00, they decided
to return to Nompucuko’s residence. Whilst en route, they were confronted by
four men who split into two groups. Two approached the deceased, whilst the
other two confronted her. The men demanded money and cellphones. One of
them inserted a knife into her mouth, forced her to the ground, tore her clothing,
and robbed her of R400 in cash and tobacco. She testified that she was unable to
identify any of the assailants and did not know who had assaulted the deceased.
[15] She further testified that she screamed and called out to Nompucuko
Qeqe for assistance. When Nompucuko arrived, the deceased was already lying
on the ground. One of the men approached Nompucuko, and a struggle ensued.
She heard Nompucuko say, “Siyamthanda, what are you doing?” Shortly
thereafter, Andiswa emerged and called for Victor, who then came out and
threw stones at the assailants, causing them to flee. She then attended to the
deceased, whom she found bleeding. Attempts to summon an ambulance were
unsuccessful, and the police were contacted. She confirmed that she could not
identify any of the perpetrators. Although she had consumed alcohol, she
maintained that this did not impair her ability to observe events.
[16] The State also led the evidence of Andiswa Nonyathi. She testified that at
approximately 03h00, she heard cries outside and went out to investigate. She
observed the deceased lying on the ground, Vuyokazi seated nearby, and a man
standing over her. She then observed four men in total: one standing over
Nompucuko, one over Vuyokazi, one near the deceased, and another whose
precise position she could not clearly describe. Upon going outside, she was
accosted by one of the men, who stripped and assaulted her, stabbing her while
she called for assistance. After she called her boyfriend, Victor emerged and
threw a brick, whereupon the four men fled the scene. She testified that
visibility was poor and that she was unable to identify any of the assailants. She
did not observe the Appellant stabbing the deceased.
[17] At the close of the State’s case, the Appellant successfully applied for his
discharge in respect of count 3. The defence thereafter adduced the evidence of
the Appellant and one witness, Asenathi Lowana.
[18] The Appellant testified that on the night in question, he had been at
Luke’s Tavern in the company of Asenathi Lowana, consuming alcohol. They
left the tavern at approximately 02h00 and proceeded towards his home, passing
near the residence of Nompucuko Qeqe. As they were passing, he heard
Nompucuko say, “Here they are coming.” He did not understand the remark and
responded by telling her to stop what she was doing. He testified that although
he recognised her voice, he could not see her due to poor v isibility. He denied
any involvement in the offences and disputed that he had killed the deceased or
robbed Vuyokazi Duda. He further suggested that Nompucuko falsely
implicated him due to a prior incident in which one of his associates had been
accused of robbing a member of her family.
[19] The Appellant’s version was corroborated by Asenathi Lowana, who
confirmed that they had been together at the tavern, that they left at
approximately 02h00, and that the Appellant proceeded home thereafter. He
denied that the Appellant was involved in the commission of the offences.
The findings of the court a quo
[20] The central issue before the court a quo was whether the Appellant had
killed the deceased and committed the offence of robbery. Having analysed the
evidence, the court a quo became satisfied that the evidence of Nompucuko
Qeqe was sufficient to place the Appellant at the scene. The court a quo was
also satisfied that the Appellant was sufficiently identified and placed at the
scene of the offences. The court therefore concluded that on the application of
the doctrine of common purpose, the Appellant was guilty of both murder and
robbery with aggravating circumstances. The court had invoked the doctrine of
common purpose at the end of the trial when it was delivering the judgment.
The common purpose was not averred in the charge sheet.
[21] The main ground of appeal is that the court a quo had erred in its
assessment of the evidence and consequently, incorrectly concluded that the
guilt of the Appellant had been proved beyond a reasonable doubt. Counsel for
the Appellant had submitted that on a proper application of the factors set out in
S v Mthetwa 1, the identification of the Appellant by the witness, Nompucuko
Qeqe, was unreliable. In Mthetwa, the court has emphasised that it is not enough
for the identifying witness to be honest; what was crucial was that the reliability
of the witness’s observations should be tested. This depends on various factors,
such as lighting; visibility; eyesight; the proximity of the witness; the
1 S v Mthetwa 1972 (3) SA 766 AD.
opportunity for observation, both as to time and situation; the extent of prior
knowledge of the accused; the mobility of the scene; corroboration;
suggestibility; the accused’s face, voice, build, gait, and dress; the result of any
identification parade; and, of course, the evidence by or on behalf of the
accused. The list is not exhaustive. These factors, or such of them as are
applicable in a particular case, are not individually decisive, but must be
weighed against one another in the light of the evidence and the probabilities.
[22] Counsel for the Appellant had contended that the court had not
considered these factors in light of the entirety of the evidence adduced at trial.
It was further pointed out that the court ought to have taken into account the
allegation that Nompucuko Qeqe had consumed alcohol at the time she
identified the Appellant. The primary contention was that the court a quo had
unduly preferred the evidence of Nompucuko Qeqe, while disregarding the
evidence of the Appellant and that of his witness.
[23] On the contrary, counsel for the State had submitted that the evidence of
Nompucuko Qeqe had sufficiently placed the Appellant on the scene at the time
of the incident. Relying on the case of Nkomo & Others v State 2, counsel
submitted that both the Appellant and Nompucuko Qeqe had confirmed that
they knew each other for a long time prior to the incident, and that it was not
very dark at the scene, according to Nompucuko Qeqe. Based on those
2 Nkomo & Others v State (130/2022) [2024] ZASCA 61 (26 April 2024).
considerations, counsel for the State submitted that there was no room for a
mistaken identification and, therefore, the identification of the Appellant by Ms
Qeqe is reliable, so the contention of the State was.
[24] The State conceded that there was no reference to, or indication of,
reliance on the doctrine of common purpose in the charge sheet, nor was any
application made to amend the charge sheet in terms of section 86 to include
such averments. The State further conceded that there was no proof of a
common purpose during the trial. In this regard, the State acknowledged that the
court a quo erred in finding that the Appellant had acted in furtherance of a
common purpose with the other unknown assailants.
[25] The State’s counsel relied on the authority of Ntuli v S,3 where the court
a quo ’s reliance on the doctrine of common purpose on the conviction of the
Appellant had been found to amount to a material misdirection and thus
entitling the court to interfere with the court a quo’s determination of the guilt
of the Appellant and accordingly set aside the conviction.
[26] In Ntuli v S, the court held that the failure by the State to plead common
purpose in the charge sheet, to seek an amendment to the charge sheet at any
stage before judgment, or to prove common purpose, deprived Mr Ntuli of the
opportunity to properly prepare and present his defence, which is central to the
right to a fair trial. The convictions and sentences on counts 6 to 8 were
3 Ntuli v S (128/2023) [2025] ZASCA 114 para 15.
accordingly set aside, thereby reducing Mr Ntuli’s effective sentence to 15
years’ imprisonment for the remaining convictions.
Findings and evaluation
[27] It is common cause that, in convicting the Appellant, the court a quo had
relied on the doctrine of common purpose, even though it was neither pleaded in
the charge sheet nor proved during the trial, and no amendment to the charge
sheet was sought prior to judgment. It is on that basis that the State concedes
that the conviction should not stand. This must be examined.
[28] In Msimango v S,4 the court held:
‘Undoubtedly, the approach adopted by the regional magistrate of relying on common
purpose which was mentioned at the end of the trial is inimical to the spirit and
purport of s 35(3)(a) of the Constitution of the Republic of South Africa, Act 108 of
1996 (the Constitution) under the heading “Arrested, detained and accused persons”.
In fact it is subversive of the notion of the right to a fair trial which is contained in s
35(3)(a) of the Constitution which provides in clear terms that:
“(3) Every accused person has a right to a fair trial, which includes the right-
(a) to be informed of the charge with sufficient details to answer it.”’
4 Msimango v S (698/2017) [2017] ZASCA 181 (01 December 2017).
[29] In Msimango v S , the court further considered, in detail, the right of an
accused to a fair trial and remarked:
‘It also stated that the requirement embodied in s 35(3) is not merely formal, but
substantive. It goes to the very heart of what a fair trial is. It requires the State to
furnish every accused with sufficient details to place him or her in a position to
understand the actual charge he or she is facing. In the language of s 35(3)(a), this is
intended to enable such an accused person to answer and defend himself or herself in
the ensuing trial. Its main purpose is to banish any trial by ambush. This is so because
our criminal justice system is both adversarial and accusatory.’
[30] Undoubtedly, it was manifestly wrong for the court a quo to adopt such
an approach of relying on common purpose. It was impermissible for the court a
quo to invoke the doctrine of common purpose in the circumstances of this case,
where the accused had not been informed of that possibility, nor did the
evidence establish common purpose. Self -evidently, the court a quo committed
a misdirection in this regard. This Court is therefore entitled to interfere with the
findings of the court a quo.
[31] In S v Ntsele 5, it was stated that an appeal court can only interfere with
the findings of a trial court if it is persuaded that its conclusions are incorrect
and not supported by the facts. This is a classic case where the court a quo is
incorrect in its findings about common purpose.
5 S v Ntsele 1998 (2) SACR 178 at d-h.
[32] I agree with counsel for the State. The conviction of the Appellant cannot
stand. First, the only evidence presented by the State was that the Appellant was
part of a group of four men who subsequently committed the offences. Ms
Duda, the complainant in the robbery, testified that the Appellant was not one of
the two persons who robbed her. The Appellant was neither seen nor identified
as the person who killed the deceased. There was simply no evidence that the
Appellant had committed any of the offences set out in counts 1 and 2. There
was no suggestion or evidence that the Appellant was acting in furtherance of a
common purpose with those unknown assailants or that he was part of an
agreement or a participant in their actions.
[33] According to Nompucuko Qeqe, she only emerged from her house after
the deceased was already lying on the ground. She did not see anyone stabbing
or otherwise harming the deceased. I have already pointed out that there was no
evidence that the group was acting in furtherance of a common purpose.
Moreover, the State did not charge the Appellant on the basis of common
purpose.
[34] The identification of the Appellant is also unsatisfactory. I disagree with
the assessment of the evidence by the court a quo. Evidence must be assessed as
a whole and not in a piecemeal fashion. In S v Singh6, it was held:
6 S v Singh 1975 (1) SA 227 (N)
‘Because this is not the first time that one has been faced on appeal with this kind of
situation, it would perhaps be wise to repeat once again how a court ought to approach
a criminal case on fact where there is a conflict of fact between the evidence of the
State witnesses and that of an accused. It is quite impermissible to approach such a
case thus: because the court is satisfied as to the reliability and the credibility of the
State witnesses that, therefore, the defence witnesses, including the accus ed, must be
rejected. The proper approach in a case such as this is for the court to apply its mind
not only to the merits and the demerits of the State and the defence witnesses but also
to the probabilities of the case. It is only after so applying its mind that a court would
be justified in reaching a conclusion as to whether the guilt of an accused has been
established beyond all reasonable doubt. The best indication that a court has applied
its mind in the proper manner in the abovementioned example i s to be found in its
reasons for judgment including its reasons for the acceptance and the rejection of the
respective witnesses.’
[35] The court a quo was impressed by Nompucuko Qeqe and preferred her
version over that of the defence witnesses. However, the suggestion that the
defence evidence contained internal contradictions is not borne out by the
record. Nompucuko Qeqe was a single witness who had apparently consumed
alcohol, and her identification of the Appellant was not corroborated. The other
State witnesses gave materially different accounts of the events. This Court also
takes into account that these witnesses had also consu med alcohol throughout
the day until approximately 03h00. There was no evidence regarding the impact
of such consumption. Nonetheless, this is a factor to be considered in assessing
the risk of mistaken identification and suggestibility. The court a quo failed to
consider these factors.
[36] The witnesses contradicted themselves regarding the extent of the
visibility provided by the mast light. In these circumstances, this Court cannot
safely conclude that the identification by a single witness was reliable.
[37] In S v Sithole & Others,7 the court restated this salutary warning:
‘In the present case the learned magistrate quite correctly reminded herself of what
was said in R v Shakelele and Another 1953 (1) SA 656 (T) concerning evidence of
identification. It was pointed out in that case that an acquaintance with the history of
criminal trials reveals that gross injustices are not infrequently done through honest
but mistaken identification. A court must always bear in mind, then, that in all such
cases there is an inherent prospect that even an honest witness might mistakenly
identify a person. The fact that witnesses who attend identification parades sometimes
point out persons who are known not to have committed the offence serves to
underline the potential which exists for error.
Where a conviction depends on that evidence alone, a court must quite obviously be
satisfied that the witness is truthful. What is perhaps more important, though, is that
there must be no reasonable doubt that the witness is not mistaken. In our view that
will generally require something more than the mere assertion by the witness that he
has correctly identified the culprit, if the inherent risk of error is to be guarded
against. It may be that the person concerned is well known to the witness. Or it may
be that the person has some distinctive feature. But once one accepts that there is an
7 S v Sithole and Others 1999 (1) SACR 585.
inherent potential for mistaken identification, which a court is bound to do, it would
seem to us that without something more, the mere assertion by a witness that he
recognises the offender will seldom suffice.’
[38] I have already outlined the risks of mistaken identification by persons
under the influence of alcohol. The time of the incident is also a matter of
concern, as is the source of the lighting. The period of observation was not
established. There was a lack of corroboration for the evidence of Nompucuko
Qeqe. Furthermore, the version of the Appellant and his witness was not
meaningfully disputed. All these factors, considered cumulatively, give rise to
reasonable doubt.
[39] In S v Sithole and Others, the court held:
‘There is only one test in a criminal case, and that is whether the evidence establishes
the guilt of the accused beyond reasonable doubt. The corollary is that an accused is
entitled to be acquitted if there is a reasonable possibility that an innocent explanation
which he has proffered might be true. These are not two independent tests, but rather
the statement of one test, viewed from two perspectives. In order to convict, there
must be no reasonable doubt that the evidence implicating the accused is tr ue, which
can only be so if there is at the same no reasonable possibility that the evidence
exculpating him is not true. The two conclusions go hand in hand, each one being the
corollary of the other. Thus, in order for there to be a reasonable possibility that an
innocent explanation which has been proffered by the accused might be true, there
must at the same time be a reasonable possibility that the evidence which implicates
him might be false or mistaken.’
[40] I am not convinced that Nompucuko Qeqe’s identification of the
Appellant was proved, beyond reasonable doubt, to be reliable. On the other
hand, I am satisfied that the Appellant provided a reasonable explanation for his
innocence. The evidence of the Appellant, together with that of his witness, was
not shown to be improbable or false. In my view, there remains a reasonable
possibility that the Appellant’s explanation is true. The Appellant’s version was
that, on the day in question, he was at a taver n with his friend, where they
consumed alcohol, and that he returned home at approximately 02h00. If this
explanation is accepted, it is possible that he was not present at the scene when
the offences were committed.
Conclusion
[41] An accused person bears no onus to convince the court of the truthfulness
of his or her explanation. The State, on the other hand, must prove the guilt of
an accused beyond reasonable doubt. Where doubt exists as to the guilt of the
accused, such doubt must be resolved in favour of the accused. This accords
with the right to a fair trial and the presumption of innocence. Has the State
proved the guilt of the accused in this case? The answer is a resounding no. In
these circumstances, the conviction and sent ence on both counts —murder and
robbery with aggravating circumstances —cannot stand. The result is that both
the conviction and sentence fall to be set aside. It was on this basis that we
issued our order on 15 April 2026.
Order
[42] As a result, the following order was issued:
1. The appeal against the conviction is upheld.
2. The appellant’s conviction of murder and robbery with aggravating
circumstances and his sentences of 20 years and 10 years
imprisonment respectively are set aside.
3. The order of the court a quo is hereby substituted with the
following order:
3.1 The accused is found not guilty in respect of both murder
and robbery with aggravating circumstances set out in count
1 and 2 of the charge sheet.
M NOTYESI
ACTING JUDGE OF THE HIGH COURT
I agree:
D O POTGIETER
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Appellant : Mr H Charles
Instructed by : Legal Aid South Africa
Makhanda
Counsel for the Respondent : Adv T Kaleni
Instructed by : Director of Public Prosecutions
Makhanda
Heard on : 15 April 2026
Judgment Delivered on : 02 June 2026