IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO. CA&R 56/2025
Of Interest
In the matter between:
NOPINKI NONGOMA APPELLANT
and
THE STATE RESPONDENT
JUDGMENT ON APPEAL
Rugunanan J
[1] On 3 October 2024, at the conclusion of the State’s case in its prosecution
of the appellant in the Regional Court, Ngcobo, on a charge of murder the
appellant, acting through her legal representative, closed her case and did
not testify. She did not call witnesses during the trial and was ultimately
convicted. A mandatory sentence of life imprisonment was imposed on 4
October 2024. Her appeal to this Court against her conviction and sentence is
prompted by the automatic right in s 309(1) (a) of the Criminal Procedure Act
51 of 1977.1
[2] The appellant is implicated in the murder of Sindlogothla Dish (the
deceased) by events that occurred in Clarkebury on 12 August 2022. The charge
alleges that the deceased was assaulted with objects unknown to the State and
that the appellant acted in furtherance of a common purpose with other persons.
The findings in a report of a post -mortem examination indicate that the
deceased sustained a laceration on the head with multiple bruises on the back
and front of the upper torso. The cause of death is noted to have been ‘brain
damage secondary to head injury by blunt force trauma’.
[3] The appellant pleaded not guilty to the charge. Although not having
tendered a plea explanation, she did not dispute the identity of the deceased and
the findings in the report. In the conduct of the trial, the presiding magistrate
was assisted by two assessors. The State led evidence from two witnesses,
Ms Dorothy Dish, the deceased’s grandmother, and Mr Mbingileli Nongoma,
the appellant’s husband. Both witnesses were extensively cross -examined but
considering that they did not expressly concede or admit anything pertinent to
the appellant’s version, the propositions put to them do not amount to
exculpatory evidence since the appellant elected to remain silent. Put another
way, where an accused person chooses not to testify to rebut the State’s
1 Leave to appeal under s 309B of the Criminal Procedure Act 51 of 1977 is not a requirement. The automatic
right of appeal is in respect of both conviction and sentence - see S v Ncitha (987/2024) [2026] ZASCA 53 (15
April 2026). The appeal was initially (erroneously) prosecuted in the Makhanda High Court but by direction of
the Acting Judge President, the Honourable Mr Justice Nhlangulela, the appeal was referred for hearing in the
Mthatha High Court, being the forum in which it initially should have been prosecuted. The appellant had
properly and timeously filed an application for condonation and at the commencement of the hearing of the
matter - her oversight and the concomitant delay in prosecuting the appeal were condoned.
evidence against them and only challenges such evidence under cross -
examination, the case has to be decided on the version of the State as questions
put to a witness during cross-examination do not constitute evidence.2
[4] In principle, an accused person is presumed innocent and has the right to
remain silent and not to testify during proceedings. But the fact that the person
is under no obligation to testify does not mean that there are no consequences
attaching to the decision to remain silent during trial. If there is evidence calling
for an answer, and the accused chooses to remain silent, a court may well be
entitled to conclude that the evidence is sufficient to prove the guilt of the
accused. Whether such a conclusion is justified will depend on the weight of the
evidence. In that regard, the prosecution is not relieved of its duty to prove the
elements of the offence and hence the guilt of the accused beyond reasonable
doubt.3
[5] The issue on appeal is whether in the absence of the appellant’s answer to
the allegations in the charge, the evidence adduced by the State was sufficient to
have proven her guilt beyond reasonable doubt. The focus is essentially on
whether the trial magistrate correctly evaluated the State’s evidence on common
purpose. This involves factual issues as is evident from what follows in this
judgment. Tritely, appellate interference with the factual findings of a trial court
may occur only if the manner in which the evidence was evaluated, is wrong.4
[6] The essence of the doctrine of common purpose is that if two or more
people act together for the purpose of committing a crime the conduct of each of
them to achieve that purpose is imputed to the others. 5 The liability
2 See Ndlovu and Another v S (A851/11) [2014] ZAGPPHC 1054 (20 March 2014) para 31 and the footnote
thereto in which reference is made to S v Katoo 2005 (1) SACR 522 (SCA) at 529e, and S v Boesak 2001 (1) SA
912 (CC) at 923E-F.
3 S v Boesak supra para 24.
912 (CC) at 923E-F.
3 S v Boesak supra para 24.
4 Pillay v S (451/2022) [2023] ZASCA 113 (27 July 2023) para 15; R v Dhlumayo 1948 (2) SA 677 (AD) at 678.
5 Jacobs and Others v The State [2018] ZACC 4 para 128.
requirements for a common purpose fall into two categories. The first arises
where there is a prior agreement, express or implied, to commit a common
offence. Regarding the second requirement, there is no prior agreement or none
is proven. The liability arises from an active association and participation in a
common criminal design with the requisite blameworthy state of mind. 6 For an
accused participant in a common purpose to be found guilty of murder, the
following prerequisites laid down in S v Mgedezi and Others 7 (Mgedezi) must
be proven by the State: (a) presence at the scene of the violence; (b) awareness
of the assault on the victim; (c) intention to make common cause with those
who were actually perpetrating the assault; (d) manifestation of the common
purpose by performing some act of association with the particular conduct of
the others; and (e) the intention (mens rea) to commit the crime.
[7] In relation to the last-mentioned of the requisites, murder, by definition, is
a crime of intention. Proof of intention requires a subjective test. An accused’s
subjective mental state may be inferred from the objective facts proved by the
State and from general human experience. In S v Dladla en Andere 8, the test
was expressed as follows:
‘By bepaling of die dader subjektief die moontlikheid van die gevolg voorsien het en hom
daarmee verenselwig het, sal wel afleidings gemaak moet word op grond van die objektiewe
waarskynlikhede, wat op algemene menslike ervaring berus.’
[8] The author Snyman 9 observes that the court must to the best of its ability
try and place itself in the position of the accused at the time of the commission
of the act and then try and ascertain what the accused’s state of mind was at that
6 S v Mgedezi and Others 1989 (1) SA 687 (A) at 705I -706B and S v Mahlangu and Another [2012] ZAGPJHC
114.
7 S v Mgedezi and Others supra at 705I-706C; see also Burchell et al, Burchell’s Principles of Criminal Law ,
Juta 6th ed at 451-452; and C R Snyman, Criminal Law, Lexis Nexis 7 th ed at 228 and the authorities cited in fn
38 thereto.
8 S v Dladla en Andere 1980 (1) SA (1) (AD) at 4H.
9 C R Snyman, op cit at 168.
moment. The author goes on to say 10 that in deciding by way of inference what
an accused thought or foresaw at the critical moment a court undoubtedly
considers objective factors such as the type of weapon used, the seriousness of
the injury or depth of the wound, the part of the body wounded as well as the
objective probabilities of the case and general human experience.
[9] The active association requisite in Mgedezi ensures that the doctrine is
not applied too broadly and serves to curb too wide a liability. 11 The corollary is
that: (a) the mere presence of the accused as a passive spectator or bystander in
the company of others is not sufficient to establish active association and cannot
serve as a basis for holding the accused liable for the crime that has been
committed; (b) the court must carefully examine the individual role of each
participant in a common purpose, and the specific evidence against each
participant and not ‘tar each accused’ with the same brush 12 meaning that the
State is required to prove that each accused participant had the requisite mens
rea for the unlawful outcome at the time the offence was committed; 13 and (c)
each participant must have been present when the fatal blow was struck.14
[10] In summing up the discourse on common purpose, the authors Burchell et
al15 citing authority, appositely emphasise:
‘A collective approach to determining the actual conduct or active association of an
individual accused has many evidential pitfalls. The trial court must seek to determine, in
respect of each accused person, the location, timing, sequence, duration, frequency and nature
of the conduct alleged to constitute sufficient participation or active association and its
relationship, if any, to the criminal result and to all the prerequisites of guilt. Whether or not
10 Snyman op cit at 169.
11 Snyman, op cit at 228; S v Jacobs 2019 (1) SACR 623 (CC) at 646g.
10 Snyman op cit at 169.
11 Snyman, op cit at 228; S v Jacobs 2019 (1) SACR 623 (CC) at 646g.
12 See Snyman op cit at 228 and the authorities cited in the footnotes thereto; see also Burchell et al, Burchell’s
Principles of Criminal Law, op cit at 452 and the cases analysed.
13 S v Jacobs supra at 646h.
14 S v Jacobs supra at 646e.
15 Burchell et al, op cit at 452-453 and the cases mentioned.
active association has been appropriately established will depend upon the factual context of
each case.’16
[11] The evidence on record indicates that the assault on the deceased
occurred at various places. According to Ms Dish (hereafter ‘the witness’) at
about 10 o’clock on the day in question the appellant together with somebody
named Lizo and a group of community members unknown in number whom she
described as ‘vultures’, visited the deceased. The previous evening a group of
people led by someone named Megilile had also been looking for him, but did
not find him. The deceased resided in a backyard flat situated on her property.
The appellant and Lizo demanded the deceased in connection with alleged
housebreakings and thefts committed by him in the community. The appellant
together with Lizo and the witness presented themselves inside the deceased’s
flat. The other group members stood outside. The witness testified that Lizo
assaulted the deceased with a stick several times on his head while the
appellant, with open hand, simultaneously slapped the deceased in his face
approximately four times. The deceased was then forcefully pushed out of his
flat while putting up resistance.
[12] Following the abovementioned incident the unfolding of events appears
from the excerpts of the testimony given by the witness. I interject to mention
that reference to the accused in the quoted extracts must be understood to be a
reference to the appellant:
16 Thebus and Another v S (CCT 36/02) [2003] ZACC (28 August 2003) para 45; see also S v Le Roux and
others 2010 (2) SACR 11 (SCA) para 17 emphasising consideration of the conduct of the individual accused.
See also the authors’ citation of Dewnath v S (269/13) [2014] ZASCA 57 (17 April 2014) para 15 whereat the
following appears: ‘The most critical requirement of active association is to curb too wide a liability. Current
jurisprudence, premised on a proper application of S v Mgedezi & others, makes it clear that:
jurisprudence, premised on a proper application of S v Mgedezi & others, makes it clear that:
(i) There must be a close proximity in fact between the conduct considered to be active association and the
result; and
(ii) Such active association must be significant and not a limited participation removed from the actual
execution of the crime.’
[13] Proceeding from the incident that took place in the deceased’s flat, the
witness, at that time emotionally traumatised and crying, stated:
‘They both assaulted pushing the deceased person out and then everyone of that other group
that was outside, they assaulted him and even undressed him, the upper body. Everyone was
armed. They assaulted him proceeding to the accused’s home at that time … By the time they
reached the accused’s homestead the deceased was half naked on the upper body.’
[14] While the group proceeded to the appellant’s home the witness went on to
say that:
‘They were just assaulting him simultaneously. Whoever was armed would deliver the blows.
… All over the body.’
[15] The group, including the appellant, made their way to the appellant’s
home which, according to the witness was at a distance of about sixty metres
away. She did not follow but remained on her premises from where she
observed that:
‘… they drove the deceased to the accused’s home and assaulted the deceased person just in
the premises of the accused person’.
[16] In response to a question whether the witness was, from that distance,
able to see who assaulted the deceased, she responded:
‘The people that were there, there were many and I said that due to my state of mind, I could
not properly observe …’
[17] Elsewhere, she elaborated:
‘.. they placed him right in front of the houses there and they did as they wished … some
were carrying sticks and some were carrying bush knives … and they even had utterances
that you should kill the dog’.
[18] She explained what happened thereafter:
‘…they loaded [the deceased] into a wheelbarrow and proceeded to the Xtinxi locality. The
accused person was amongst that crowd that proceeded to Xtinxi. Only [her] husband was
left behind.’
[19] In the narrative elicited from Ms Dish it appears that she did not follow
the group to the abovementioned locality but testified that later in the afternoon
the group came back and again assaulted the deceased at the appellant’s home.
The deceased returned to his place at which stage an uncle of his was present.
The deceased was partially naked and had just about taken his last breath.
[20] In the testimony introduced by the appellant’s husband, he estimated the
distance between his homestead and the deceased’s to have been two -hundred
meters. He narrated that the appellant and two men (who had approached him
earlier that morning enquiring of the deceased’s whereabouts) brought the
deceased to the appellant’s home. One of the men was Lizo. The appellant’s
husband testified that he observed the appellant raise her hand in which she held
a ‘switch’ (understood to be a whip) as if to gesture deli very of a blow upon the
deceased whereupon the deceased in response to a question about what he had
done with items of clothing he was alleged to have stolen, answered that the
goods were at Ekteni (i.e. Xtinxi). The husband was clear that the appellant did
not strike the deceased or assault him in any manner, but once the deceased had
answered the question about the stolen items, the appellant went to Ekteni along
with two other persons to retrieve them. Realising that he said this he then
immediately retracted and stated that she did not go to Ekteni and remained at
home. From a reading of the record it appears that not much detail of any
significance was elicited from the husband, the magistrate in any event finding
him to have been an unsatisfactory witness who sought to adapt his evidence to
avoid incriminating the appellant by suggesting that he made a mistake about
her going to Ekteni.
[21] In his assessment of the evidence, pondered in a lengthy judgment
obscure of linear reasoning, the magistrate misdirected himself in material
respects. It is to be noted that at some point in his judgment the magistrate
commented that he may have recorded his notes incorrectly. He found the
appellant’s husband to have been an unreliable witness but made a factual
finding that the husband had said that the appellant was in possession of a stick
or that she had probably been carrying a stick. In the absence o f explicit and
direct evidence, he concluded that the appellant used the stick to assault the
deceased at her home. This is not apparent from the husband’s testimony and
cannot be inferred from Ms Dish’s bald assertion that everyone were carrying
sticks, particularly if she did not explicitly testify that she saw the appellant
armed with a stick.
[22] A further attribute of the magistrate’s judgment is his uncritical reliance
on the evidence presented by Ms Dish. Preceding what occurred at the
appellant’s home are the events that took place in the deceased’s flat. The
version presented by Ms Dish was that the assaults by Lizo and the appellant
were simultaneous. The contention that this was improbable was rejected by the
magistrate.
[23] In my view the magistrate erred in failing to consider the impracticality
and the improbability of a simultaneous assault by the appellant, an unarmed
participant, who would have had to bring herself within the striking zone of
another participant wielding a stick. Common sense suggests that this construct
is not mere conjecture. It raises disquiet about the reliability of the evidence by
Ms Dish as well its acceptance by the magistrate especially without clear
indications of being properly cognisant of var ious factors that unequivocally
would have affected the weight of her testimony about the events that
subsequently followed.
[24] Among these factors are: (a) Ms Dish’s age, almost eighty years old, and
emotional state at the time; (b) her poor eyesight yet despite her protestation to
the contrary she accepted that due to the distance she could not properly observe
what occurred at the appellant’s home; 17 (c) her acknowledgment that her
hearing was poor because of a foreign object in her ear; and (d) her inherent
bias towards the appellant due to a history of poor neighbourly relations
occasioned by the deceased’s delinquency in the community.
[25] To a greater degree which is fundamental to the State’s case is its reliance
on common purpose. On that level the magistrate’s judgment does not exhibit
an analysis of the evidence, particularly that of Ms Dish, with the degree of
enquiry and attention postulated by the authorities mentioned earlier.
[26] The magistrate concluded that both liability requirements for a common
purpose were present. In that regard he grossly erred. He concluded that there
was a prior agreement because the group had agreed to meet the previous day.
Other than Ms Dish having testified that a group of people led by someone
named Megilile presented at her place the previous evening, evidence indicating
that the appellant was privy to that group or evidence suggesting that it was the
same group of individuals that presented the next day with Megilile among
them, is significantly lacking.
[27] In determining the active association, the magistrate adopted a globular
approach. This demonstrates a failure to have determined the active association
17 The fallibility of human observation calls for caution. See S v Mthetwa 1972 (3) SA 766 (AD) at 768A -C
where the following is said: ‘Because of the fallibility of human observation, evidence of identification is
approached by the courts with some caution. It is not enough for the identifying witness to be honest: the
reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility,
and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the
extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the
accused’s face, voice, build, gait, and dress; the result of identification parades, if any 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 one against the other, in the
light of the totality of the evidence and the probabilities…’
of the appellant as a participant in a common criminal design. Ms Dish’s
persistent reference to the pronoun ‘they’ cannot as a collective be singularly
attributed to the appellant. It was required of the State to prove the appellant’s
conduct beyond reasonable doubt and that she had the requisite intent
concerning the outcome; and moreover, that the appellant was present when the
fatal blow/s were struck. In that regard, and laying emphasis once again on the
onus issue, the admission of the findings in the post-mortem report takes the
matter no further. In the present factual context the deficiencies in the State’s
evidence and the magistrate’s erroneous evaluation of the evidence strongly
suggests that active association was not properly established and that it was too
widely imputed to the appellant. In the circumstances, the deficiencies in the
State’s case did not oblige the appellant testify.
[28] In the result I make the following order:
1. The appeal against the conviction for murder is allowed.
2. The conviction for murder and the sentence of life imprisonment are
set aside.
____________________________
M. S. RUGUNANAN
JUDGE OF THE HIGH COURT
I agree.
____________________________
M. MHAMBI
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the Appellant: N L Ntsepe, Instructed by Smith Tabata Inc., Mthatha
(Ref: Mr Joel Erasmus/Shaneez 050Z00270000001); Tel 043 -703 1863; Email:
joele@smithtabata.co.za ; shaneezw@smithtabata.co.za
For the Respondent: T Qebeyi , Office of the Director of Public
Prosecutions, Mthatha (Ref: Mr Qebeyi); Tel: 078 295 8969 or 047 -501 2671;
Email: TQebeyi@npa.gov.za
Date heard: 13 May 2026.
Date delivered: 01 September 2026.