IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: AR 212/2025
In the matter between:
SIBONGISENI NDLOVU FIRST APPELLANT
LUCKY NXUMALO SECOND APPELLANT
SIZOLWETHU SIBIYA THIRD APPELLANT
MXOLISI HLENGWA FOURTH APPELLANT
and
THE STATE RESPONDENT
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from : the Regional Court, Pietermaritzburg (sitting as court of first
instance):
1. The appeals of the first and second appellants against their convictions on
count 5 are upheld.
2. The convictions and sentences imposed on the first and second appellants on
count 5 are set aside.
3. In respect of the first and second appellants, it is ordered that the sentences
imposed on counts 2, 3 and 4 shall run concurrently with the sentence imposed on
count 1.
2
4. In respect of the third appellant, it is ordered that the sentences imposed on
counts 2, 3, 4 and 5 shall run concurrently with the sentence imposed on count 1.
5. The sentence purportedly imposed on the fourth appellant on count 5 is set
aside.
6. Save as aforesaid, the appeals against conviction and sentence are
dismissed.
___________________________________________________________________
JUDGMENT
_________________________________________________________________________
Andrews AJ (Nirghin J concurring)
Introduction
[1] The moment a crowd arrogates to itself the powers of arrest, prosecution,
adjudication and punishment, the rule of law gives way to the rule of the mob. Courts
have a duty to ensure that such conduct is met with an appropriate and unequivocal
response.
[2] This matter concerns a disturbing instance of vigilante violence in which
members of a community elected to take the law into their own hands. Four men
suspected of involvement in criminal activities were apprehended by members of the
community, subjected to sustained assaults and denied the protection of a lawful
process. Three of those men died. A fourth survived the ordeal and testified at the
trial.
[3] The appeal arises from proceedings in the Regional Court, Pietermaritzburg.
On 20 January 2025 the first, second and third appellants, who were accused 1, 2
and 4, respectively, in the court a quo, were convicted of three counts of murder, one
count of attempted murder and one count of kidnapping. The murder counts related
to the deaths of Silindile Mbanjwa (count 1), Bheki Mtshali (count 2) and Siza Ntanzi
(count 3). The attempted murder count related to Nduduzo Mbatha (count 4), whilst
the kidnapping count related to Mr Mbatha (count 5). The fourth appellant, accused 6
in the court a quo, was convicted of the three murder counts and the attempted
murder count, but was acquitted on all three kidnapping counts.
3
[4] On 24 January 2025 the first, second and third appellants were each
sentenced to 20 years' imprisonment on each of the three murder counts, 10 years'
imprisonment on the attempted murder count and eight years' imprisonment on the
kidnapping count. It was ordered that the sentences imposed on counts 3, 4 and 5
run concurrently with the sentence imposed on count 2, resulting in an effective
sentence of 40 years' imprisonment for each of the first, second and third appellants.
The fourth appellant was sentenced to life imprisonment on each of the murder
counts and 12 years' imprisonment on the attempted murder count. The effect of the
sentence imposed on count 5 is addressed later in this judgment.
[5] Leave to appeal against conviction and sentence was granted to the first,
second and third appellants on 17 February 2025. The fourth appellant enjoys an
automatic right of appeal in respect of the murder convictions.
Factual background
[6] The charges against the appellants arose from an incident during which the
complainant, Mr Mbatha, and three other men, namely Mr Mbanjwa, Mr Mtshali and
Mr Ntanzi, were accused by members of the community of having been involved in
criminal activities in the area. The events culminated in a series of assaults upon the
complainant and the deceased, resulting in the deaths of Mr Mbanjwa, Mr Mtshali
and Mr Ntanzi, whilst Mr Mbatha survived.
[7] The evidence revealed that, during the course of the day, the complainant and
the deceased came under the control of various members of the community and
were ultimately taken to the vicinity of the Sibiya homestead where a substantial
crowd had gathered. What followed was a prolonged and violent sequence of events
involving numerous individuals.
[8] The State's case rested primarily on the evidence of the complainant, Mr
Mbatha. He was the only eyewitness who testified regarding the roles allegedly
played by the respective accused persons during the incident.
4
[9] In broad outline, the State alleged that the first appellant was involved in
mobilising community members and remained present during the incident; that the
second appellant participated in the assault upon Mr Mbatha; that the third appellant
was involved in events preceding the assaults and remained present whilst they
unfolded; and that the fourth appellant joined the incident at a later stage and
actively participated in the assaults.
[10] The evidence further revealed that a large number of community members
were present. Witnesses described the situation as tense and volatile. As the events
unfolded, the crowd grew substantially and, on the evidence, ultimately numbered
about 100 people. Members of the crowd actively participated in assaults upon the
complainant and the deceased.
[11] The role played by the complainant's father during the early stages of the
incident also featured prominently in the evidence. After being fetched by the first
appellant, Mr Mbatha's father attended at the Sibiya homestead where he found Mr
Mbatha and Mr Ntanzi already tied together and injured. He assaulted Mr Mbatha
before later departing, leaving Mr Mbatha and the deceased in the hands of an
increasingly hostile crowd.
[12] At the conclusion of the trial, the regional magistrate convicted the first,
second and third appellants on three counts of murder, one count of attempted
murder and the kidnapping count relating to Mr Mbatha. The fourth appellant was
convicted on the murder and the attempted murder counts and was acquitted on the
kidnapping counts. Accused 3 and accused 5 were acquitted on all charges.
Grounds of appeal
[13] The appellants challenge both their convictions and sentences on various
grounds. Broadly stated, they contend that the regional magistrate misdirected
herself in her assessment of the evidence of the complainant, Mr Mbatha, who was
the sole eyewitness implicating the appellants in the commission of the offences. The
the sole eyewitness implicating the appellants in the commission of the offences. The
appellants further contend that the State failed to establish the requirements for
liability based on the doctrine of common purpose and that the evidence was
insufficient to sustain the kidnapping convictions.
5
[14] The appellants also challenge the sentences imposed upon them. They
contend that the regional magistrate over -emphasised the seriousness of the
offences and the interests of society, whilst failing to attach sufficient weight to their
personal circumstances, relative youthfulness, prospects of rehabilitation and the
circumstances in which the offences were committed.
Issues for determination
[15] The issues arising for determination in this appeal may conveniently be
grouped under four broad headings.
[16] The first issue is whether the regional magistrate correctly accepted the
evidence of Mr Mbatha as credible and reliable notwithstanding that he was a single
witness in relation to the material events and notwithstanding her rejection of
portions of that same evidence when acquitting accused 3 and accused 5.
[17] The second issue concerns the convictions for murder and attempted murder.
In this regard, it must be determined whether the State proved beyond reasonable
doubt that each appellant possessed the requisite mens rea and that the
requirements for liability based on the doctrine of common purpose were
established.
[18] The third issue concerns the kidnapping conviction on count 5. Central to that
enquiry is whether the State established beyond reasonable doubt the unlawful and
intentional deprivation of the freedom of movement of Mr Mbatha and whether the
evidence established participation by the first, second and third appellants in that
offence, either directly or through the doctrine of common purpose.
[19] The fourth issue is whether the sentences imposed by the regional magistrate
are vitiated by misdirection or are otherwise so severe as to warrant interference by
this court.
6
Applicable legal principles
The approach of a court of appeal
[20] The approach by a court of appeal as set out in S v Francis,1 is explained as
follows:
‘In the absence of any misdirection the trial court’s conclusion, including its acceptance of
a witness’s evidence, is presumed to be correct. In order to succeed on appeal, [the
appellant] must therefore convince the court of appeal on adequate grounds that the trial
court was wrong in accepting [the witness’s] evidence – reasonable doubt will not suffice
to justify interference with its findings. Bearing in mind the advantage which a trial court
has of seeing, hearing and appraising a witness, it is only in exceptional cases that the
court of appeal will be entitled to interfere with a trial court’s evaluation of the oral
testimony.’ (References omitted.)
[21] It is well established that an appellate court exercises restraint when
reviewing a trial court’s factual findings and credibility assessments. An appeal is not
a rehearing or a retrial. The appellate court’s task is to determine whether the trial
court materially misdirected itself on the facts or the law, or whether its conclusions
are clearly unsupported by the evidence. In the absence of a material misdirection,
the trial court’s factual findings are presum ed to be correct and will not be disturbed
unless they are shown to be plainly wrong. This deference reflects the trial court’s
advantage in seeing and hearing the witnesses and in assessing their demeanour
and evidence in the context of the trial as a whole.2
[22] In S v Hadebe ,3 the Supreme Court of Appeal reaffirmed that an appellate
court may not interfere with a trial court’s factual findings merely because it might
have reached a different conclusion. Interference is justified only where the trial court
materially misdirected itself or where its conclusion is one that could not reasonably
have been reached on the evidence.
1 S v Francis 1991 (1) SACR 198 (A) at 204d-e.
have been reached on the evidence.
1 S v Francis 1991 (1) SACR 198 (A) at 204d-e.
2 R v Dhlumayo and Another 1948 (2) SA 677 (A) (Dhlumayo) at 705 – 706.
3 S v Hadebe 1997 (2) SACR 641 (SCA) at 645e–f.
7
[23] The appellate court must therefore identify a material misdirection, or a finding
that is plainly wrong, before interfering with the trial court’s factual findings or
credibility assessments. It is insufficient that another view of the evidence is
reasonably possible.
Single witness evidence
[24] The State’s case rested substantially on the evidence of Mr Mbatha. The fact
that a witness is the sole witness on a material issue does not, in itself, render his or
her evidence unreliable or legally insufficient. Section 208 of the Criminal Procedure
Act 51 of 1977 (CPA) provides:
‘An accused may be convicted of any offence on the single evidence of any competent
witness.’
[25] The statutory provision does not dispense with the requirement that the
evidence must establish guilt beyond reasonable doubt. The evidence of a single
witness must be approached with caution, but the cautionary rule is not a mechanical
requirement of corroboration or an independent rule of law. 4 The court must consider
the witness’s credibility and reliability, the internal and external consistency of the
testimony, the witness’s opportunity to observe and recall the events, and any
material contradictions or improbabilities. The ultimate enquiry is whether, after the
evidence has been weighed in the light of the probabilities and the evidence as a
whole, it is satisfactory and sufficiently reliable to sustain a conviction.
[26] In S v Sauls and Others ,5 the Appellate Division emphasised that there is no
formula for assessing the evidence of a single witness and that the court must have
regard to the witness’s merits and the factors that affect credibility. The Supreme
Court of Appeal reaffirmed that approach in Stevens v S ,6 emphasising that the
evidence of a single witness must be approached with caution, but that the court's
task remains to determine whether, despite shortcomings, defects or contradictions,
it is satisfied that the truth has been told.
it is satisfied that the truth has been told.
4 S v Ganie and Others 1967 (4) SA 203 (N) at 206H, as referred to in Ribisi v S [2024] ZAGPPHC
1301 para 25. See also S v Webber 1971 (3) SA 754 (A) from 757E.
5 S v Sauls and Others 1981 (3) SA 172 (A) (Sauls) at 180E–G.
6 Stevens v S [2005] 1 All SA 1 (SCA) para 17.
8
[27] More recently, in S v Singama ,7 the court reiterated that s 208 permits a
conviction on the evidence of a single competent witness, but that such evidence
remains subject to a careful assessment of its reliability and sufficiency. Accordingly,
the question is not whether Mr Mbatha’s evidence was corroborated, but whether,
considered in its entirety, it was clear, satisfactory and sufficiently reliable to prove
the accused’s guilt beyond reasonable doubt.
Identification
[28] Identification evidence must be approached with caution because the honesty
of a witness does not necessarily establish the reliability of the identification. A
witness may give evidence in good faith, genuinely believing that the person
identified was the perpetrator, while nevertheless being mistaken.
[29] In S v Mthethwa ,8 Holmes JA emphasised that human observation is fallible
and that identification evidence should be assessed with circumspection. Relevant
considerations include the lighting and visibility at the scene, the witness’s
opportunity and duration of observation, the distance between the witness and the
person observed, whether the witness previously knew the person identified, and the
circumstances in which the identification was made. These factors are not
exhaustive.
[30] The court must evaluate the identification evidence in the context of the
evidence as a whole . No individual factor is necessarily decisive, and the
assessment must be undertaken holistically, having regard to the witness’s
opportunity to observe, memory, and description of the perpetrator, as well as any
inconsistencies or possible suggestive influences. The ultimate question is whether,
on the totality of the evidence, the identification is sufficiently reliable to establish the
accused’s guilt beyond reasonable doubt.9
Common purpose
7 S v Singama [2026] ZAWCHC 83 para 88 onwards.
8 S v Mthethwa 1972 (3) SA 766 (A) at 768A-C.
9 S v Kapa [2023] ZACC1; 2023 (1) SACR 583 (CC) paras 34-39.
9
[31] The convictions on the murder and attempted murder counts were founded
substantially upon the doctrine of common purpose. It is trite that t he doctrine of
common purpose is a mode of imputing criminal liability to persons who, having
associated themselves with the commission of an offence, may be held responsible
for the conduct of the perpetrators. It does not, however, dispense with the State’s
obligation to prove, beyond reasonable doubt, every element of the offence charged,
including the requisite mens rea. The doctrine must therefore be applied with due
regard to the individual accused’s conduct and state of mind. 10
[32] Where the State relies on active association in circumstances in which no
prior agreement has been proved, it must establish that the accused: (a) was present
at the scene where the violence was committed; (b) was aware of the assault upon
the victim; (c) intended to make common cause with those perpetrating the assault;
(d) manifested that shared purpose by performing some act of association with the
conduct of the perpetrators; and (e) possessed the requisite mens rea in respect of
the commission of the offence. These requirements were authoritatively articulated in
S v Mgedezi and Others ,11 and subsequently applied and affirmed by the
Constitutional Court in Makhubela and Another v S.12
[33] The enquiry is directed at whether the accused, through his or her conduct
and state of mind, became an associate in the criminal enterprise. Active association
may be inferred from the totality of the circumstances, but the inference must be
consistent with the accused’s guilt and exclude any reasonable possibility that the
accused did not share the common purpose. Mere presence at the scene,
knowledge that an offence is being committed, or even approval of the conduct of
others, is insufficient. The State must prove conduct demonstrating active
association, together with the requisite intention in respect of the offence in
question.13
Mens rea
question.13
Mens rea
10 S v Thebus and Another [2003] ZACC 12; 2003 (6) SA 505 (CC) (Thebus) para 49.
11 S v Mgedezi and Others 1989 (1) SA 687 (A) (Mgedezi) at 705I-706C.
12 S v Makhubela and Another [2017] ZACC 36; 2017 (2) SACR 665 (CC) paras 35-38.
13 See Mgedezi at 7 05I-706C; S v Safatsa and Others 1988 (1) SA 868 (A) at 894D -E and 896A -
E; Thebus para 49.
10
[34] The State was required to prove not only participation, but also the requisite
fault element in respect of each offence. The applicable principle is that an accused
acts with dolus eventualis where he or she subjectively foresees the possibility that
the prohibited consequence may result from the conduct and nevertheless reconciles
him- or herself with that possibility.
[35] The enquiry is therefore both subjective and twofold: first, whether the
accused actually foresaw the possibility of the consequence; and, secondly, whether
the accused accepted or was reconciled with its occurrence. Objective foreseeability,
or what a reasonable person ought to have foreseen, is insufficient. The distinction
between dolus eventualis and conscious negligence lies in this volitional element: in
the former, the accused proceeds despite accepting the possibility of the
consequence, whereas in the latter the accused foresees the possibility but remains
confident that it will not occur. These principles emerge from the line of authority
including S v Sigwahla ,14 S v Ngubane,15 and S v De Oliveira .16 More recently, the
Supreme Court of Appeal cautioned in Humphreys v S ,17 that ‘recklessness’ or
objective negligence must not be conflated with dolus eventualis , which requires
proof of the accused's actual foresight and reconciliation with the possibility of the
prohibited consequence.
[36] In relation to the murder counts, the regional magistrate found that the
appellants acted with dolus eventualis. The concepts of common purpose and dolus
eventualis are distinct. Participation in the conduct of others does not, without more,
establish the intention necessary for a conviction of murder. 18 Dolus eventualis is
established where an accused subjectively foresees the possibility that death may
result from his conduct and nevertheless reconciles himself to that possibility and
persists in the conduct.19
Kidnapping
14 S v Sigwahla 1967 (4) SA 566 (A) (Sigwahla) at 570B-E.
Kidnapping
14 S v Sigwahla 1967 (4) SA 566 (A) (Sigwahla) at 570B-E.
15 S v Ngubane 1985 (3) SA 677 (A) at 685E-H and 687A-C.
16 S v De Oliveira 1993 (2) SACR 59 (A) at 65D-I.
17 Humphreys v S [2013] ZASCA 20; 2013 (2) SACR 1 (SCA) para 17.
18 Thebus para 49; S v Makgatho [2013] ZASCA 34; 2013 (2) SACR 13 (SCA) para 9.
19 Magasela v S [2025] ZASCA 8 paras 32-34.
11
[37] Kidnapping consists of the unlawful and intentional deprivation of a person's
freedom of movement or, in appropriate circumstances, the unlawful detention of a
person against his or her will.20
[38] The essence of the offence is the unlawful interference with another person's
liberty. The deprivation need not be of any particular duration. What is required is
proof that the complainant's freedom of movement was intentionally curtailed without
lawful justification.
[39] As in every criminal prosecution, the State bears the onus of proving each
element of the offence beyond reasonable doubt. Where it relies on the doctrine of
common purpose, the State must prove not only the unlawful deprivation of liberty,
but also the facts establishing the particular accused’s criminal liability for that
conduct.
[40] The enquiry is necessarily fact -specific. It requires consideration of the
circumstances in which the complainant was deprived of his freedom of movement,
the identity of the persons responsible for that deprivation, and the extent to which
other participants associated themselves with such conduct.
[41] In the present matter, these considerations assume particular significance
given the evidence concerning the movement of the complainant and certain of the
deceased before their arrival at the Sibiya homestead , the involvement of various
individuals at different stages of the incident, and the subsequent participation of a
large crowd.
Evaluation
The evidence of Mr Mbatha
[42] The principal attack directed at the judgment of the regional magistrate
concerns her evaluation of the evidence of Mr Mbatha. Counsel for the appellants
submitted that Mr Mbatha was not a credible witness and that the magistrate
misdirected herself in accepting his evidence as reliable in respect of the appellants
20 S V Hoctor and C R Snyman Snyman's Criminal Law 8 ed (2025) 437-440; See also S v Hemeni
and Others [2026] ZAWCHC 70 paras 32-34.
12
whilst rejecting portions of that same evidence when acquitting accused 3 and
accused 5.
[43] The criticism was advanced on several fronts. It was contended that Mr
Mbatha's evidence contained material contradictions, that aspects of his evidence
were inconsistent with the medical evidence, that he was evasive under cross -
examination, that his evidence was influenced by prior drug use, and that the
magistrate applied the cautionary rule selectively rather than consistently across his
testimony as a whole.
[44] It is necessary at the outset to emphasise that the regional magistrate was
acutely aware of the fact that Mr Mbatha was a single witness. Her judgment
demonstrates a careful appreciation of the caution required when evaluating such
evidence. Importantly, she did not accept Mr Mbatha's evidence uncritically. On the
contrary, she rejected aspects of it and ultimately acquitted accused 3 and accused 5
on all counts.
[45] In particular, the magistrate expressed reservations regarding Mr Mbatha's
evidence concerning accused 5. She found that certain evidence had only emerged
after probing during cross -examination and bore the hallmarks of an afterthought.
That finding ultimately contributed to the acquittal of accused 5.
[46] The appellants contend that once the magistrate found Mr Mbatha unreliable
in respect of accused 3 and accused 5, she was obliged to reject the entirety of his
evidence. That submission cannot be sustained. Our law does not require a court to
accept or reject a witness's evidence wholesale. A court is entitled to accept portions
of a witness's testimony whilst rejecting others, provided there is a rational basis for
doing so. 21 The question is not whether Mr Mbatha proved to be a perfect witness
but whether the portions of his evidence relied upon by the magistrate were shown to
be sufficiently reliable to support the findings ultimately made.
21 Sauls at 180E–G.
13
[47] The magistrate's treatment of Mr Mbatha's evidence reveals a witness -by-
witness and allegation-by-allegation assessment rather than a blanket acceptance of
everything he said. The fact that she rejected those aspects of the evidence she
regarded as inadequate tends, if anything, to demonstrate a cautious and critical
approach rather than an uncritical one.
[48] The appellants nevertheless submitted that the magistrate's credibility findings
were internally inconsistent. Particular reliance was placed upon the magistrate's
observations that certain aspects of Mr Mbatha's evidence emerged only under
cross-examination and bore the hallmarks of an afterthought. It was argued that,
having made those findings and having identified contradictions in portions of Mr
Mbatha's viva voce evidence, the magistrate could not thereafter properly conclude
that he was a reliable witness on the remaining disputed issues. The submission,
however, overlooks that the magistrate's criticism was directed at specific aspects of
the evidence relating principally to accused 5, rather than to the entirety of Mr
Mbatha's testimony. The question is not whether Mr Mbatha was a flawless witness,
but whether the evidence ultimately relied upon by the magistrate remained
sufficiently reliable, notwithstanding the shortcomings she identified.
[49] Counsel's submission appeared to proceed from the premise that, because
Mr Mbatha was a single witness, his evidence had to be free from criticism before it
could be relied upon. That is not the test. Whilst it has often been stated that the
evidence of a single witness should be clear and satisfactory in every material
respect, the authorities make it plain that there is no rule requiring a witness to be
without fault before his evidence may be accepted. As was emphasised in Sauls, the
court must weigh the evidence, consider its merits and demerits, and decide whether
it is truthful and reliable notwithstanding shortcomings, defects or contradictions. The
it is truthful and reliable notwithstanding shortcomings, defects or contradictions. The
fact that a court rejects certain aspects of a witness's evidence does not necessarily
preclude acceptance of other portions found to be reliable. The true enquiry is
whether the evidence ultimately relied upon is satisfactory on the material issues
requiring determination.
14
[50] The true enquiry is therefore whether the criticisms raised by the appellants
were of such significance that the magistrate's acceptance of the evidence
implicating the appellants constituted a material misdirection.
[51] Having considered the record in its entirety, I am unable to conclude that such
a misdirection has been established.
[52] Counsel further relied upon the fact that, during the application for leave to
appeal, the prosecutor did not oppose the granting of leave and expressly indicated
that another court might reasonably arrive at a different conclusion. That
circumstance must not be overstated. The test applicable to leave to appeal is
whether there exists a reasonable prospect that another court may differ. The issue
before this court is materially different. The question is whether the convictions and
sentences are vitiated by material misdirection or are otherwise unsustainable on the
evidence. The concession nevertheless occurred against the background of certain
difficulties apparent from the record, including inconsistencies in the conviction and
sentencing proceedings. Those difficulties require careful consideration by this court
but do not diminish its obligation independently to determine whether any identified
irregularity materially affected the convictions or sentences ultimately imposed.
Contradictions and inconsistencies in Mr Mbatha's evidence
[53] The appellants submitted that the regional magistrate failed to give adequate
weight to numerous contradictions and inconsistencies in Mr Mbatha's evidence.
These included alleged discrepancies concerning the assaults perpetrated upon him,
the implements used during the assaults, the involvement of certain accused
persons, the evidence relating to his father, and omissions in his police statement.
[54] It is trite that not every contradiction or inconsistency renders a witness
unreliable. As held in S v Mkohle ,22 contradictions per se do not justify rejecting a
unreliable. As held in S v Mkohle ,22 contradictions per se do not justify rejecting a
witness’s evidence, as they may merely be indicative of error. Human recollection is
imperfect, and discrepancies are to be expected where a witness recounts traumatic
events occurring over an extended period. The proper enquiry is whether the
22 S v Mkohle 1990 (1) SACR 95 (A).
15
contradictions are material and whether, considered in the context of the evidence as
a whole, they affect the witness’s reliability on the issues to be decided.23
[55] The incident in question was not a brief or isolated event. On the evidence, it
unfolded over a considerable period, involved numerous participants, multiple
assaults and a volatile crowd environment. Mr Mbatha himself was subjected to
repeated assaults and witnessed assaults upon the deceased. In such
circumstances some inconsistencies in recollection were inevitable.
[56] A number of the contradictions relied upon by the appellants were of a
peripheral nature and related principally to the detail of particular assaults rather than
the identity of the persons whom Mr Mbatha implicated. The regional magistrate was
alive to these shortcomings and expressly acknowledged that Mr Mbatha was not an
unblemished witness. The fact that she rejected portions of his evidence
demonstrates that she did not approach his testimony uncritically.
[57] Particular criticism was directed at Mr Mbatha's evidence concerning the
alleged use of a rubber hammer by the second appellant, as well as the omission of
certain details from his police statement. It was submitted that these omissions
demonstrated a tendency on Mr Mbatha's part to embellish his evidence.
[58] The omissions relied upon by the appellants were, moreover, not confined to
minor details. Counsel pointed to the absence from the complainant's police
statement of reference to the alleged blowing of the trumpet by the first appellant, the
use of a rubber hammer by the second appellant, the role allegedly played by
accused 5 in tying hands, and the later assertion that the fourth appellant assaulted
the complainant and deceased with a bush knife. It was contended that these were
not peripheral matters but important features of the State's case , which only
emerged during the course of the trial. These criticisms required careful scrutiny and
emerged during the course of the trial. These criticisms required careful scrutiny and
formed part of the broader enquiry into the reliability of Mr Mbatha's evidence.
23 S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) at 593f-594g, and also Meintjies v S (Appeal)
[2025] ZAWCHC 239 para 15.
16
[59] While omissions from a prior statement may, in an appropriate case, affect
reliability, they do not invariably justify the rejection of a witness's evidence. A police
statement is seldom intended to constitute a complete record of all details later
mentioned in court. 24 The significance of any omission depends upon the nature of
the omitted fact and the context in which the statement was made.
[60] The appellants further criticised Mr Mbatha's evidence concerning events
involving his father and alleged inconsistencies in this regard. Those criticisms were
fully ventilated during cross -examination and were matters which the regional
magistrate expressly considered in her assessment of the evidence.
[61] Having regard to the record in its entirety , I am not persuaded that the
identified inconsistencies were of such a nature or degree as to render Mr Mbatha's
evidence wholly unreliable. Nor am I persuaded that they demonstrate a material
misdirection on the part of the regional magistrate. The critical question remains
whether the evidence implicating each appellant was reliable notwithstanding those
imperfections.
Identification and reliability
[62] The appellants further contended that the regional magistrate failed properly
to evaluate the reliability of Mr Mbatha's identification of the various accused
persons. Particular emphasis was placed on the fact that the incident unfolded in a
chaotic environment involving a large crowd, multiple assaults and considerable
confusion. It was submitted that Mr Mbatha's ability accurately to identify the
perpetrators was consequently compromised.
[63] The submission must be considered against the totality of the evidence.
Whilst it is true that the assaults occurred in circumstances that were both volatile
and disorderly, the matter does not concern the identification of strangers observed
fleetingly under difficult conditions. The evidence established that Mr Mbatha was
fleetingly under difficult conditions. The evidence established that Mr Mbatha was
acquainted with the appellants prior to the incident. His evidence therefore involved
recognition rather than first-time identification.
24 S v PHK 2023 (2) SACR 234 (FB) para 19.
17
[64] Recognition evidence is generally more reliable than identification evidence
involving unknown persons, although even recognition evidence must be
approached with caution. The fact that a witness knows a person does not eliminate
the possibility of mistake. It merely constitutes one of the factors to be considered in
assessing reliability.25
[65] The evidence further reveals that the events in question were not momentary.
According to Mr Mbatha, the incident unfolded over an extended period and involved
a number of separate episodes occurring at different locations. He claimed to have
observed the appellants at close proximity and, in several instances, to have
interacted directly with them. These are factors that the regional magistrate was
entitled to take into account when assessing reliability.
[66] It was nevertheless argued that Mr Mbatha's own circumstances diminished
the reliability of his observations. Reliance was placed upon the fact that he was
himself being assaulted, that he sustained injuries during the incident and that he
admitted to prior drug use. It was submitted that these factors affected both his
perception and recollection of events.
[67] These considerations were undoubtedly relevant and required careful
scrutiny. They do not, however, lead inexorably to the conclusion that Mr Mbatha
was incapable of making reliable observations. The regional magistrate was alive to
these concerns and evaluated his evidence against the probabilities, the medical
evidence and the evidence of the remaining witnesses before concluding that his
identification of the appellants was reliable.
[68] Of particular significance is the fact that the regional magistrate did not simply
accept every identification made by Mr Mbatha. As already indicated, she rejected
aspects of his evidence relating to accused 3 and accused 5 and acquitted them.
This demonstrates that she distinguished between those aspects of the evidence
This demonstrates that she distinguished between those aspects of the evidence
she regarded as reliable and those she did not.
25 Nkomo and Others v S [2024] ZASCA 61 paras 17-18.
18
[69] The question on appeal is not whether another court may have approached
the evidence differently. The question is whether the regional magistrate's
acceptance of Mr Mbatha's identification evidence was so unreasonable that it
constitutes a material misdirection. Having regard to the fact that the appellants were
known to Mr Mbatha, the duration of the incident, the opportunities available to him
for observation and the magistrate's cautious approach to the evidence generally, I
am unable to conclude that such a misdirection has been established.
[70] It becomes necessary, therefore, to examine the evidence implicating each
appellant individually in order to determine whether the findings of the regional
magistrate were justified on the evidence.26
The first appellant (accused 1)
[71] The case against the first appellant differed materially from that against the
remaining appellants. Unlike the second appellant and the fourth appellant, Mr
Mbatha did not attribute any direct act of assault upon either himself or any of the
deceased to the first appellant. The State's case against him rested primarily upon
his alleged conduct before and during the incident, his position within the community
and the role he allegedly played in mobilising members of the community.
[72] Mr Mbatha testified that the first appellant stated that ‘the dogs must be killed’.
The first appellant denied having made any such statement. It was argued on appeal
that the magistrate erred in relying upon this evidence because it stood alone and
was not corroborated by any other witness.
[73] That submission cannot be upheld merely because the evidence was
uncorroborated. As already noted, s 208 of the CPA permits a conviction on the
evidence of a single competent witness. The absence of corroboration is a factor to
be weighed in assessing reliability, but it is not decisive.27
26 Dhlumayo at 705-706.
27 Ngcobo v S [2025] ZASCA 12 para 12.
19
[74] The first appellant further contended that the magistrate attached undue
significance to his position as an induna and impermissibly reasoned that he ought to
have prevented the crowd from carrying out the assaults. It was submitted that the
evidence rather demonstrated that the crowd was uncontrollable, that large numbers
of persons participated in the assaults and that even police officers who arrived at
the scene were unable to restore order.
[75] There is force in the submission that criminal liability cannot be founded
merely upon the first appellant's status as an induna or upon a perceived failure to
intervene. The doctrine of common purpose requires proof of active association and
the requisite mens rea . A person's standing within a community cannot, without
more, substitute for those requirements.
[76] The magistrate's finding, however, was not based solely upon the first
appellant's status as an induna. The evidence accepted by the magistrate was that
the first appellant played a central role in the unfolding events. He personally fetched
Mr Mbatha's father and brought him to the Sibiya homestead, where the complainant
and Mr Ntanz i had already been tied together and assaulted. After Mr Mbatha's
father assaulted the complainant and departed, the first appellant remained present
as the crowd became increasingly hostile and the violence escalated. The magistrate
further found that he failed to take meaningful steps to prevent the assaults and
thereby associated himself with the treatment meted out to the complainant and the
deceased. In addition, the magistrate accepted Mr Mbatha's evidence that, when
asked what should be done with the victims, the first appellant stated that they
should be killed.
[77] Particular criticism was directed at the evidence concerning the blowing of a
trumpet. It was submitted that Mr Mbatha failed to mention in his police statement
that the first appellant blew a trumpet to summon members of the community and
that the first appellant blew a trumpet to summon members of the community and
that aspects of the evidence suggested that a younger person may have been in
possession of the instrument. It was accordingly argued that the trumpet evidence
bore the same hallmarks of embellishment that led the magistrate to reject other
portions of Mr Mbatha's testimony. The criticism is not without force. However, the
significance of the issue lies less in whether the first appellant personally blew the
20
trumpet than in whether the evidence, viewed holistically, established that he played
a role in mobilising members of the community and thereafter associated himself
with the conduct of those who assaulted the complainant and the deceased. The
magistrate's finding in that regard did not rest solely on the trumpet evidence.
[78] At this stage it is sufficient to note that the criticisms advanced on behalf of
the first appellant are not directed solely at identification but also at the inferences
drawn from his conduct and presence at the scene. The ultimate determination of
those issues must await consideration of the doctrine of common purpose in the light
of the evidence as a whole.
[79] The question is therefore not whether the first appellant personally assaulted
any of the victims. The question is whether the evidence established beyond a
reasonable doubt that, through his words and conduct, he actively associated
himself with the actions of those carrying out the assaults and shared the requisite
intention. That enquiry is inextricably linked to the broader issue of common purpose
and will be revisited later in this judgment.
The second appellant (accused 2)
[80] The State's case against the second appellant rested principally upon the
evidence of Mr Mbatha that he actively participated in the assaults. Unlike the
position of the first appellant, Mr Mbatha attributed direct acts of violence to the
second appellant.
[81] Mr Mbatha testified that the second appellant repeatedly assaulted him with
the steel handle of a rake and later struck him with a rubber hammer. According to
Mr Mbatha, the second appellant ceased the assault only after he noticed that Mr
Mbatha had sustained a bleeding injury to his knee. The second appellant denied
these allegations and contended that the magistrate ought not to have accepted Mr
Mbatha's evidence in this regard.
[82] In argument , considerable emphasis was placed upon perceived
[82] In argument , considerable emphasis was placed upon perceived
inconsistencies in Mr Mbatha's evidence concerning the implements allegedly used
during the assault. It was submitted that the evidence relating to the rake was
unsatisfactory and that the reference to a rubber hammer emerged only during the
21
oral evidence and did not feature in Mr Mbatha's police statement. It was further
argued that the medical evidence did not conclusively support the allegation that the
injuries were inflicted in the manner described by Mr Mbatha.
[83] These criticisms were fully canvassed during the trial and carefully considered
by the magistrate. Whilst the omission of the rubber hammer from Mr Mbatha's
statement was a relevant factor bearing upon reliability, it was not, in itself, decisive.
Statements made to the police are often incomplete and are not intended to
constitute exhaustive records of every detail later recounted in evidence. The
significance of such an omission depends upon the surrounding circumstances and
must be assessed together with the evidence as a whole.28
[84] It is also necessary to bear in mind that the second appellant was not
implicated solely by reference to a single isolated act. Mr Mbatha's evidence was
that the second appellant actively participated in the assault upon him over a period
of time. The magistrate had the benefit of observing both witnesses testify and
ultimately accepted Mr Mbatha's account in preference to the denial advanced by the
second appellant.
[85] The appellants further criticised the magistrate's reliance on the medical
evidence, contending that she accepted corroboration in relation to the second
appellant whilst rejecting comparable evidence relating to accused 3. It was
submitted that this demonstrated an inconsistent approach to the assessment of the
evidence.
[86] In my view, that submission elevates individual discrepancies beyond their
proper significance. The magistrate's reasoning must be read as a whole. Her
acquittal of accused 3 was not based solely on the absence of medical
corroboration, but upon her broader assessment of the reliability of the evidence
implicating him. The fact that she reached a different conclusion in relation to the
second appellant does not of itself demonstrate a misdirection.
second appellant does not of itself demonstrate a misdirection.
28 PHK para 19.
22
[87] More fundamentally, the evidence against the second appellant differed
materially from that against the first appellant and the third appellant. Mr Mbatha
placed the second appellant amongst those who physically assaulted him. The
credibility finding in relation to the second appellant therefore rested upon direct
evidence of participation rather than upon inference alone.
[88] Whether that participation is sufficient to sustain the convictions for murder
and attempted murder is a separate question. The second appellant accepted no
involvement in the fatal assaults and contended that, even if portions of Mr Mbatha's
evidence were accepted, the requirements of common purpose and the necessary
mens rea were not established. Those issues are more conveniently considered
when dealing with the doctrine of common purpose and the evidence relating to all of
the appellants collectively.
[89] At this stage, however, I am not persuaded that the magistrate's acceptance
of Mr Mbatha's evidence implicating the second appellant in the assault upon the
complainant constituted a material misdirection or a finding that is plainly wrong. The
challenge raised by the second appellant is directed less at identification than at the
legal consequences flowing from the conduct attributed to him. Those matters will be
considered later in this judgment.
The third appellant (accused 4)
[90] The case against the third appellant differs materially from that against both
the second and fourth appellants. Mr Mbatha did not attribute any direct assault upon
either himself or the deceased to the third appellant. Indeed, under cross -
examination, Mr Mbatha conceded that the third appellant did not assault him either
at the Sibiya homestead or later on the road.
[91] The State's case against the third appellant rested substantially upon his
alleged involvement in the events preceding the assaults and his continued presence
alleged involvement in the events preceding the assaults and his continued presence
during the ensuing violence. Mr Mbatha testified that the third appellant, together
with accused 5 and Mzwe, was present when he and Mr Ntanzi were woken and
instructed to accompany them. According to Mr Mbatha, the third appellant was
23
present when Mzwe assaulted him and Mr Ntanzi after they were reluctant to go with
them.
[92] The evidence further established that the third appellant drove the vehicle in
which Mr Mbatha and Mr Ntanzi were transported to the Sibiya homestead. It was
common cause that the third appellant transported Mr Mbatha and Mr Ntanzi from
Green Gate to the Sibiya homestead, although he disputed that either had been
compelled to accompany him and maintained that they entered the vehicle
voluntarily.
[93] The third appellant contended that he acted at the request of his father and
merely assisted in locating certain individuals whom members of the community
suspected of criminal conduct. It was submitted that there was no evidence that he
assaulted anyone, that he coerced anybody into entering the vehicle, or that he
actively associated himself with the later assaults carried out by the crowd.
[94] Particular reliance was placed upon the magistrate's decision to acquit
accused 3 and accused 5. It was argued that the evidence implicating the third
appellant in the kidnapping conviction was not materially different from the evidence
relied upon against accused 5 and that the magistrate's differing treatment of the two
accused disclosed an inconsistency in the evaluation of the evidence.
[95] The submission cannot be dismissed out of hand. Unlike the second appellant
and the fourth appellant, the case against the third appellant is not founded upon
direct participation in the assaults. His criminal liability depends primarily upon what
role he played in bringing the complainant and the deceased into the situation that
ultimately developed into the mob attack, and whether he thereafter associated
himself with the conduct of those who carried out the assaults.
[96] The evidence nevertheless places the third appellant at the centre of the
events preceding the assaults. On Mr Mbatha's version, he was present when Mr
events preceding the assaults. On Mr Mbatha's version, he was present when Mr
Mbatha and Mr Ntanzi were confronted, present when they were compelled to
accompany the group, and directly involved in transporting them to the Sibiya
24
homestead. The magistrate accepted that evidence and rejected the third appellant's
explanation.
[97] The question is not whether the third appellant personally inflicted any
injuries. The issue is whether the evidence establishes beyond a reasonable doubt
that he knowingly associated himself with the conduct of those who deprived the
complainant of his liberty and thereafter associated himself with the conduct giving
rise to the assaults and deaths. That enquiry overlaps substantially with both the
kidnapping and common purpose analyses and cannot properly be divorced from
them.
[98] In evaluating the magistrate's findings, it must be remembered that the role
attributed to the third appellant was qualitatively different from that attributed to
accused 3 and accused 5. Whether those differences were sufficient to justify the
convictions ultimately entered against him is a matter that must be assessed when
considering the requirements of common purpose and the kidnapping co nviction in
light of the evidence as a whole.
[99] The acquittal of accused 5 does not, without more, render the conviction of
the third appellant inconsistent. The magistrate's concern regarding accused 5 was
not that he was absent from the events at Green Gate, but rather that aspects of the
evidence implicating him were regarded as unreliable and, in certain respects,
appeared for the first time during cross -examination. By contrast, the magistrate was
satisfied beyond reasonable doubt that the third appellant was involved in the
transportation of Mr Mbatha and Mr Ntanzi to the Sibiya homestead and rejected his
explanation as not reasonably possibly true. The differing outcomes therefore flowed
from the magistrate's assessment of the reliability of the evidence against the
respective accused and do not in themselves demonstrate a misdirection.
[100] At this stage, I am not persuaded that the magistrate's acceptance of the
[100] At this stage, I am not persuaded that the magistrate's acceptance of the
evidence placing the third appellant at the scene and in the transportation of Mr
Mbatha and Mr Ntanzi constitutes a material misdirection. What remains to be
determined is the legal significance of that conduct and whether it was sufficient to
25
establish the offences for which he was convicted. Those issues are best addressed
in the ensuing discussion of common purpose and kidnapping.
The fourth appellant (accused 6)
[101] The case against the fourth appellant stands on a markedly different footing to
that of the other appellants. Whereas the convictions of the first and third appellants
rest substantially upon principles of common purpose and active association, the
State alleged that the fourth appellant personally participated in the assaults which
resulted in the deaths of the deceased and the attempted murder of Mr Mbatha.
[102] Mr Mbatha's evidence was that the fourth appellant was not present when the
assaults commenced. According to him, the fourth appellant arrived at a later stage
after he (the complainant) and the deceased had already been subjected to assaults
by members of the community. The significance of this evidence is that it excludes
any suggestion that the fourth appellant was involved in the initial detention of the
complainant and the deceased or in the early stages of the assaults.
[103] Mr Mbatha testified that upon arriving at the scene, the fourth appellant
instructed his son to fetch a bush knife, described as the implement ordinarily used
to deal with ‘paras’, and thereafter joined in the assault. Mr Mbatha further testified
that the fourth appellant used the bush knife to strike both him and the deceased. In
relation to Mr Mtshali, Mr Mbatha was emphatic that the fourth appellant struck him
on the head with the bush knife.
[104] The fourth appellant denied these allegations and contended that the regional
magistrate ought not to have accepted Mr Mbatha's evidence. It was submitted on
appeal that the conviction rested exclusively upon the evidence of a single witness
whose testimony was unreliable and who had contradicted himself on numerous
aspects of the case.
[105] It was further argued that the circumstances prevailing at the scene rendered
[105] It was further argued that the circumstances prevailing at the scene rendered
reliable identification difficult. Reliance was placed upon the fact that a large crowd
was present, that numerous assaults were occurring simultaneously, and that Mr
Mbatha himself was under attack and sustained injuries during the course of the
26
incident. It was contended that these circumstances materially diminished the
reliability of Mr Mbatha's observations.
[106] These factors undoubtedly required careful consideration. They must however
be evaluated against the fact that Mr Mbatha knew the fourth appellant before the
incident and that his evidence constituted recognition rather than the identification of
an unknown person. Moreover, Mr Mbatha's evidence concerning the fourth
appellant was not vague or general in nature. He attributed specific conduct to him,
namely the fetching and use of a bush knife and the infliction of particular blows
upon himself (the complainant) and the deceased.
[107] Significantly, the regional magistrate found that Mr Mbatha was a credible
witness in relation to the fourth appellant and accepted his evidence regarding the
latter's participation in the assaults. The magistrate's finding was informed not only
by her assessment of Mr Mbatha's evidence but also by her rejection of the fourth
appellant's version as not reasonably possibly true. As previously stated, this court
may interfere with those credibility findings only where a material misdirection has
been demonstrated or where the findings are plainly wrong.29
[108] Unlike the position of the first and third appellants, the challenge mounted by
the fourth appellant is directed less at the application of the doctrine of common
purpose and more at the reliability of the evidence placing him at the heart of the
fatal assaults. The enquiry therefore turns principally upon whether the magistrate
was justified in accepting Mr Mbatha's evidence as reliable notwithstanding the
criticism levelled against it.
[109] Having regard to the evidence as a whole, I am not persuaded that the
regional magistrate misdirected herself in accepting Mr Mbatha's evidence
concerning the fourth appellant's participation in the assaults. The criticisms
advanced on appeal do not demonstrate that her findings were unsupported by the
advanced on appeal do not demonstrate that her findings were unsupported by the
evidence or that they were clearly wrong.
29 Dhlumayo at 705-706.
27
[110] The legal consequences of the conduct attributed to the fourth appellant,
including whether it established the requisite mens rea for the murder and attempted
murder convictions, will be considered together with the broader discussion of
common purpose and criminal liability which follows. In relation to the factual findings
themselves, however, no basis has been established for appellate interference.
Common purpose
[111] The murder and attempted murder convictions of the first, second and third
appellants rested substantially upon the doctrine of common purpose. Different
considerations arise in relation to the fourth appellant, whose liability was based
principally upon allegations of direct participation in the assaults.
[112] As already indicated, the regional magistrate found that the State had not
proved the existence of a prior agreement amongst the participants. The convictions
must therefore be considered through the prism of active association as
contemplated in Mgedezi.
[113] The evidence establishes beyond dispute that the complainant and the
deceased were subjected to sustained and vicious assaults by numerous members
of the community. Equally clear is the fact that the crowd was large, volatile and, at
times, seemingly uncontrollable. Captain Ndwandwe testified that members of the
community openly expressed the desire that the complainant and the deceased
should die. The police officers who attended the scene were unable to disperse the
crowd and were chased away. The regional magistrate herself described the incident
as a ‘free for all’.
[114] These features of the evidence are important because the existence of a large
and violent crowd does not, without more, establish common purpose on the part of
every person present. The doctrine does not impose liability by association alone.
The State remained obliged to prove, in respect of each appellant, conduct
demonstrating active association together with the necessary mens rea.
demonstrating active association together with the necessary mens rea.
[115] The third appellant further contended that the fatal consequences which
ultimately ensued were too remote from his initial conduct to justify liability for
murder. It was submitted that he could not reasonably have foreseen that the
28
situation would escalate into sustained mob violence, that additional participants
would join the crowd, or that the fourth appellant would later arrive and participate in
the assaults using a bush knife. The submission, however, overlooks that the case
against the third appellant was not founded solely upon his role in transporting the
complainant and Mr Ntanz i to the Sibiya homestead. The magistrate found that, by
bringing them to the homestead and delivering them into an already volatile situation,
he played a material role in creating the circumstances in which the ensuing violence
occurred.
[116] The significance of the third appellant's continued presence lies not merely in
the fact that he remained at the scene. Presence alone would not suffice. The
evidence accepted by the magistrate was that he participated in bringing the
complainant and Mr Ntanzi to the Sibiya homestead, remained present while the
assaults escalated, and did nothing to distance himself from or oppose the conduct
of those carrying out the attacks. It was that combination of prior involvement and
continued association with the unfolding violence that underpinned the finding of
common purpose.
[117] There is however merit in the proposition that mere presence is insufficient.
Had the evidence against the first and third appellants gone no further than placing
them at the scene, the convictions could not stand. The evidence accepted by the
regional magistrate, however, went beyond mere presence. In the case of the first
appellant, the magistrate accepted that he summoned members of the community,
remained present throughout the incident and expressly associated himself with the
violence by declaring that the victims should be killed. In the case of the third
appellant, the magistrate accepted that he participated in events that brought the
complainant and the deceased into the custody of those who ultimately assaulted
them and thereafter remained associated with the enterprise as the assaults
them and thereafter remained associated with the enterprise as the assaults
unfolded.
[118] Counsel further submitted, with reference to S v Maxaba en Andere ,30 that
common purpose is not a device by which criminal liability may be imposed upon
30 S v Maxaba en Andere1981 (1) SA 1148 (A) at 1155E-G.
29
persons whose participation in events was peripheral or whose conduct falls short of
the requirements of the offence charged. That proposition is undoubtedly correct.
The doctrine does not relieve the State of the obligation to establish conduct
demonstrating active association and the requisite mens rea on the part of each
accused.31 The difficulty with the submission in the present matter is that the
magistrate's findings went beyond mere presence at the scene. In relation to the first
appellant, the evidence accepted by the magistrate established participation in
mobilising members of the community and encouragement of the violence. In
relation to the third appellant, the evidence established that he fetched and
transported Mr Mbatha and Mr Ntanzi to the Sibiya homestead and thereby played a
material role in placing them in the circumstances that ultimately culminated in the
assaults. The convictions therefore rested not upon mere presence, but upon
conduct from which active association was inferred.
[119] The position of the second appellant is materially different. On the evidence
accepted by the magistrate, he personally participated in the assaults upon Mr
Mbatha. His involvement was therefore not inferential but direct. The question in his
case is not whether there was active association but whether the nature of his
participation, viewed in the context of the overall attack, justifies liability for the
ultimate consequences that followed.
[120] The fourth appellant likewise occupied a different position. According to Mr
Mbatha, he arrived after the assaults had commenced, armed himself with a bush
knife and personally assaulted both the complainant and the deceased. His liability
does not depend exclusively on conduct attributable to others but on his own alleged
participation in the violence.
[121] The appellants further argued that the evidence failed to establish the
necessary intention for murder and that, at best for the State, the evidence may have
necessary intention for murder and that, at best for the State, the evidence may have
supported convictions for culpable homicide. Reliance was placed upon the absence
of any prior plan to kill, the spontaneous nature of the crowd violence and the chaotic
circumstances in which the assaults occurred.
31 Thebus para 49.
30
[122] The absence of a prior agreement does not preclude a finding of dolus
eventualis. The enquiry remains whether the accused subjectively foresaw the
possibility that death might result from their conduct and nevertheless reconciled
themselves to that outcome. Such foresight may be inferred from the surrounding
circumstances, provided that the inference is the only reasonable one to be drawn
from the proven facts.32
[123] The evidence accepted by the magistrate established that the complainant
and the deceased were subjected to prolonged assaults by a large crowd using an
assortment of weapons and implements. The violence was sustained, public and
severe. On the State's accepted version, the appellants who remained involved
throughout the incident could not have been unaware of the very real possibility that
death or grievous bodily harm would result.
[124] It was further submitted that the regional magistrate failed expressly to
analyse the issue of mens rea at the stage of determining guilt and only later referred
to dolus eventualis during sentencing proceedings. That criticism has some
substance. Although the conviction judgment contains a detailed discussion of
common purpose and active association, it does not undertake a separate analysis
of whether the State had established the requisite intention for murder in respect of
each appellant. The enquiry on appeal, however, remains whether the evidence
ultimately accepted by the magistrate was sufficient to establish the requisite mens
rea. The absence of an express analysis of intention does not, in itself, constitute a
material misdirection if the proven facts justify the conclusion reached. It therefore
remains necessary to consider whether the conduct attributed to the appellants,
viewed against the backdrop of the sustained and escalating violence, was sufficient
to establish subjective foresight of death or grievous bodily harm and reconciliation
with that possibility.
with that possibility.
[125] The difficulty for the appellants is that the magistrate's findings were not
founded solely upon their presence at the scene. She found that each appellant, in
32 Sigwahla at 570B-E.
31
differing ways, actively associated himself with the events that culminated in the
assaults. In the case of the first appellant, this included his role in mobilising
members of the community and his continued involvement as the violence unfolded.
In the case of the third appellant, it included his role in bringing Mr Mbatha and Mr
Ntanzi to the Sibiya homestead and placing them in circumstances that exposed
them to the violence that followed. The second and fourth appellants were found to
have participated directly in the assaults. Having considered the evidence holistically,
I am unable to conclude that those findings were unsupported by the evidence or
that they constitute a material misdirection.
[126] I am satisfied that no basis has been established for interference with the
regional magistrate's findings on the murder and attempted murder counts. Although
the conviction judgment did not contain a separate and explicit analysis of dolus
eventualis, the evidence accepted by the magistrate established active association
on the part of the appellants and, in my view, justified the inference that each
subjectively foresaw the possibility that death might result from the sustained
assaults and nevertheless reconciled himself to that possibility. The evidence
therefore supports a finding that the appellants possessed, at the very least, the
requisite form of dolus eventualis in relation to the fatal consequences of the
assaults. I return later to the effect, if any, of the kidnapping conviction on the overall
outcome of the appeal.
The kidnapping conviction
[127] The conviction on count 5 requires separate consideration. Unlike the murder
and attempted murder counts, the enquiry is not directed at participation in the
assaults themselves but at whether the State proved beyond a reasonable doubt that
Mr Mbatha was unlawfully and intentionally deprived of his freedom of movement
and whether each of the appellants was criminally liable for that deprivation.
and whether each of the appellants was criminally liable for that deprivation.
[128] The evidence establishes that the events giving rise to the kidnapping count
commenced at Green Gate. Mr Mbatha testified that he and Mr Ntanzi were asleep
in an abandoned structure when accused 4, accused 5 and Mzwe Nzuza arrived.
According to Mr Mbatha, Mzwe assaulted him and Mr Ntanzi when they were
32
reluctant to accompany them to the Sibiya homestead. Mr Mbatha stated that he
ultimately agreed to go because he feared further assault if he refused.
[129] Mr Mbatha further testified that he and Mr Ntanzi entered a vehicle and were
transported to the Sibiya homestead. He stated that Mzwe travelled with them and
that the canopy of the vehicle was closed and locked. On his version, he and Mr
Ntanzi did not voluntarily accompany the group but did so because they feared
continued violence should they refuse.
[130] If Mr Mbatha's evidence is accepted, the unlawful deprivation of his liberty
commenced before his arrival at the Sibiya homestead. The kidnapping was
therefore complete before the later assaults at the homestead and on the road
commenced. The critical question is whether the State proved the participation of
each appellant in that deprivation of liberty.
The third appellant
[131] The evidence against the third appellant differs materially from that against
the remaining appellants. It was common cause that he transported Mr Mbatha and
Mr Ntanzi from Green Gate to the Sibiya homestead, although he disputed that
either was compelled to accompany him and maintained that they entered the
vehicle voluntarily.
[132] The magistrate accepted Mr Mbatha's evidence that Mzwe assaulted the
complainant and Mr Ntanzi when they refused to accompany the group and that the
third appellant was present during those events. She further accepted that the third
appellant transported them to the Sibiya homestead despite their reluctance and
despite the coercive circumstances in which they had been placed.
[133] On those findings, the magistrate was entitled to conclude that the third
appellant knowingly participated in the unlawful deprivation of Mr Mbatha's liberty.
His liability did not depend solely on common purpose arising later at the scene of
the assaults but on his direct involvement in conveying Mr Mbatha from Green Gate
to the Sibiya homestead.
33
The first and second appellants
[134] The position of the first and second appellants is considerably different.
Neither was present when Mr Mbatha and Mr Ntanzi were confronted at Green Gate.
Neither was alleged to have participated in the decision to remove them from that
location. Nor did the evidence place either appellant in the vehicle which transported
them to the Sibiya homestead.
[135] The magistrate nevertheless concluded that liability for kidnapping extended
beyond those directly involved in the initial deprivation of liberty. Relying on the
proposition that kidnapping may constitute a continuing offence, she reasoned that
the complainant remained captive at the Sibiya homestead and , later, on the road ,
and that those who continued to associate themselves with that unlawful detention
became criminally liable for it.
[136] There can be little doubt that Mr Mbatha remained deprived of his freedom
after his arrival at the Sibiya homestead. According to the evidence accepted by the
magistrate, he and Mr Ntanzi were tied together, remained under the control of
others and were subsequently subjected to assaults while being moved from the
homestead onto the road.
[137] The difficulty, however, lies in determining whether the evidence established
beyond reasonable doubt that the first and second appellants actively associated
themselves with that continuing deprivation of liberty as required by the doctrine of
common purpose.
[138] In this regard the acquittal of accused 5 assumes significance. The evidence
placed accused 5 at Green Gate and associated him with events at the
commencement of the deprivation of liberty. Yet the magistrate concluded that the
evidence implicating him was insufficiently reliable and acquitted him on all counts.
[139] By contrast, the first appellant was first implicated at a later stage when he
arrived with Mr Mbatha's father at the Sibiya homestead, whilst the second appellant
arrived with Mr Mbatha's father at the Sibiya homestead, whilst the second appellant
was first implicated only after Mr Mbatha had already arrived there. Neither was
shown to have participated directly in the initial removal of Mr Mbatha from Green
Gate.
34
[140] The question is therefore whether their later conduct, viewed in the context of
the continuing detention, was sufficient to establish participation in the kidnapping
itself, as distinct from participation in the later assaults.
Was there a misdirection?
[141] In my view, the magistrate's reasoning presents a difficulty. Much of the
conduct relied upon to implicate the first and second appellants relates to the
assaults which occurred after Mr Mbatha had already been brought to the Sibiya
homestead. The fact that an accused subsequently associated himself with violence
perpetrated against a victim does not, without more, establish participation in the
earlier deprivation of liberty.
[142] Although kidnapping may be a continuing offence, liability still requires proof
that the accused intentionally associated himself with the ongoing deprivation of
liberty. Mere presence at the scene, knowledge that the complainant was not free to
leave, or failure to intervene is insufficient. The requirements of active association
remain applicable.
[143] This conclusion is not inconsistent with the findings made in relation to the
murder and attempted murder counts. The evidence establishing active association
with the assaults was not necessarily co -extensive with the evidence required to
establish participation in the deprivation of liberty. An accused may align himself with
the conduct of those perpetrating the assaults after the complainant has already
been unlawfully detained, without it following that he thereby became a participant in
the kidnapping itself. The two enquiries remain distinct , and each must be
determined with reference to the elements of the particular offence under
consideration.
[144] The reasoning employed by the magistrate appears, at least in part, to
conflate participation in the later mob violence with participation in the continuing
detention. In doing so, insufficient distinction was drawn between the conduct
detention. In doing so, insufficient distinction was drawn between the conduct
establishing common purpose in relation to the assaults and the conduct necessary
to establish common purpose in relation to the kidnapping count.
35
[145] In the result, whilst the evidence was sufficient to sustain the conviction of the
third appellant on count 5, I am not persuaded that the State established beyond
reasonable doubt that the first and second appellants actively associated themselves
with the unlawful deprivation of Mbatha's liberty in a manner sufficient to attract
criminal liability for kidnapping.
[146] The appeal of the first and second appellants against their convictions on
count 5 must therefore succeed.
Conclusion on conviction
[147] For the reasons already set out, I am satisfied that the regional magistrate
correctly approached the evidence of Mr Mbatha with the necessary caution and was
entitled to accept those portions of his evidence which she found to be reliable. No
basis has been established for interference with her factual findings relating to the
murder and attempted murder counts.
[148] The evidence further established beyond reasonable doubt that the fourth
appellant personally participated in the assaults, and that the first, second and third
appellants actively associated themselves with the conduct of those carrying out the
attacks. The convictions on counts 1, 2, 3 and 4 therefore fall to stand.
[149] Different considerations apply to count 5. Whilst the evidence established that
Mr Mbatha was unlawfully deprived of his liberty, I am not persuaded that the State
established beyond reasonable doubt that the first and second appellants actively
associated themselves with that deprivation in a manner sufficient to attract criminal
liability for kidnapping.
[150] Consequently, the appeals against the convictions of the first and second
appellants on count 5 fall to succeed. Those convictions, together with the sentences
imposed in respect of them, must accordingly be set aside. The appellants have
established no basis for appellate interference with their remaining convictions or
sentences. The appeals in those respects must therefore fail.
36
[151] The conviction of the third appellant on count 5 is, however, supported by the
evidence. The magistrate accepted that he participated in the events at Green Gate
and transported Mr Mbatha and Mr Ntanzi to the Sibiya homestead in circumstances
in which their freedom of movement had already been unlawfully curtailed.
[152] It follows that the appeals against conviction succeed only to the limited extent
reflected above.
Sentence
Applicable principles
[153] Sentencing is pre -eminently a matter for the discretion of the trial court. An
appellate court may interfere only where that discretion was not exercised judicially
and properly, where the trial court committed a material misdirection on the facts or
the law, or where the sentence imposed is shockingly inappropriate or vitiated by a
gross disparity between the sentence passed and that which the appellate court
would have imposed.33
[154] In exercising its sentencing discretion, the trial court is required to balance
the triad formulated in S v Zinn,34 consisting of:
(a) the gravity and nature of the crime;
(b) the personal circumstances of the offender; and
(c) the legitimate interests of society.
[155] The ultimate enquiry is whether the sentence imposed satisfies the
constitutional requirement of proportionality , namely, that the severity of the
punishment must not be disproportionate to the blameworthiness of the offender and
the harm caused.35
[156] Where a trial court has properly considered all relevant factors and exercised
its discretion judicially, an appellate court may not interfere merely because it would
have imposed a different sentence had it sat as the court of first instance .36 A mere
33 See S v Rabie 1975 (4) SA 855 (A) at 857D–F; S v Bogaards [2012] ZACC 23, 2013 (1) SACR 1
(CC) para 41.
34 S v Zinn, 1969 (2) SA 537 (A) at 540G–H.
35 S v Dodo [2001] ZACC 16, 2001 (3) SA 382 (CC) (Dodo) para 38.
35 S v Dodo [2001] ZACC 16, 2001 (3) SA 382 (CC) (Dodo) para 38.
36 S v Malgas 2001 (2) SA 1222 (SCA) (Malgas) para 12; S v Pillay 1977 (4) SA 531 (A) at 535A–B.
37
difference of opinion between the trial court and the appellate court does not justify
intervention.
[157] A misdirection by the trial court only justifies appellate interference if it is
material. As held in S v Pillay ,37 a misdirection is material if it is of such a nature,
degree, or seriousness that it shows that the trial court did not exercise its discretion
at all, exercised it improperly, or based its conclusion on a mistaken view of the facts
or legal principles. In the absence of a material misdirection, appellate intervention is
permissible only if the disparity between the sentence imposed and that which the
court of appeal would have imposed is striking, startling, or disturbingly
inappropriate.38
[158] Where the sentencing discretion is circumscribed by the minimum sentencing
regime under s 51 of the Criminal Law Amendment Act 105 of 1997 (CLAA), the
prescribed minimum sentence is the statutory starting point and standard sentence
to be imposed ordinarily .39 A sentencing court may deviate from the prescribed
minimum sentence under s 51(3)(a) of the CLAA only when satisfied that substantial
and compelling circumstances exist that justify the imposition of a lesser sentence.
[159] In evaluating whether substantial and compelling circumstances exist
under CLAA; the court must consider all traditional mitigating and aggravating factors
cumulatively. The ultimate test is whether the prescribed statutory sentence would
result in a clear, gross injustice because it is shockingly disproportionate to the
crime, the criminal, and the needs of society .40 An appellate court reviewing a
sentence governed by the CLAA must determine whether the sentencing court
properly applied this test before interfering with either the refusal or granting of a
deviation from the prescribed sentence.
Evaluation
[160] The appellants submitted that the regional magistrate over -emphasised the
seriousness of the offences and insufficiently considered their personal
seriousness of the offences and insufficiently considered their personal
37 S v Pillay 1977 (4) SA 531 (A) at 535E–F.
38 See S v Sadler 2000 (1) SACR 331 (SCA) para 7.
39 See Malgas paras 25–26.
40 See Malgas para 25; Dodo paras 38–40.
38
circumstances, their relative youthfulness, the absence of previous convictions and
the fact that the offences arose within the context of mob violence rather than a pre -
planned attack.
[161] The record does not support that contention. The magistrate considered the
personal circumstances of each appellant in considerable detail. She took into
account their ages, family responsibilities, employment histories, health conditions,
dependent children and prospects of rehabilitation.
[162] The magistrate further accepted that there had been no prior planning of the
attack and expressly recognised that the liability of appellants 1, 2 and 3 rested on
the doctrine of common purpose rather than upon the direct infliction of the fatal
injuries. The issue of dolus eventualis was not expressly analysed in the conviction
judgment.
[163] Of particular significance is the fact that the murder convictions attracted the
provisions of s 51(1) of the CLAA. The prescribed sentence was life imprisonment
unless substantial and compelling circumstances justified a lesser sentence.
[164] Counsel further submitted that the regional magistrate failed adequately to
recognise that the offences arose from a single course of conduct and were
inextricably linked in time, place and circumstance. Reliance was placed upon
authority dealing with the cumulative effect of sentences imposed in respect of
offences forming part of a single criminal enterprise. There is merit in the proposition
that a sentencing court must guard against an unduly severe cumulative sentence
where multiple convictions arise from substantially the same incident. The regional
magistrate was alive to that consideration. This is apparent from the concurrency
order she imposed in respect of counts 3, 4 and 5. The result was that the sentences
on those counts did not operate cumulatively in the full measure otherwise available.
Whilst a different court may perhaps have fashioned the concurrency order
Whilst a different court may perhaps have fashioned the concurrency order
differently, that doe s not establish a material misdirection warranting appellate
interference.
39
[165] The magistrate found that substantial and compelling circumstances were
present in respect of appellants 1, 2 and 3. She accordingly declined to impose life
imprisonment and instead sentenced each of them to twenty years' imprisonment on
each murder count.
[166] In doing so, the magistrate expressly relied upon their personal
circumstances, family responsibilities, prospects of rehabilitation and the fact that
their connection to the offences arose through the doctrine of common purpose in
circumstances where the mob violence had become uncontrollable.
[167] It was further argued that insufficient distinction was drawn between the
respective roles of appellants 1, 2 and 3. Whilst their participation differed in
important respects, the regional magistrate was alive to those differences. The
sentences imposed upon them reflected the fact that each was convicted on the
basis of common purpose rather than direct infliction of the fatal injuries. The
magistrate expressly regarded that consideration, together with their personal
circumstances and prospects of rehabilitation, as constituting substantial and
compelling circumstances justifying a deviation from the prescribed sentence of life
imprisonment. The mere fact that the appellants fulfilled different roles within the
events does not establish that the imposition of similar sentences constituted a
misdirection.
[168] That leaves the effect of setting aside the kidnapping convictions of the first
and second appellants. The first and second appellants each received eight years'
imprisonment on count 5. The magistrate ordered that the sentences imposed on
counts 3, 4 and 5 run concurrently with the sentence imposed on count 2.
Accordingly, the kidnapping sentence did not increase the effective sentence of forty
years' imprisonment imposed upon either appellant.
[169] Notwithstanding the absence of a material misdirection in many aspects of the
[169] Notwithstanding the absence of a material misdirection in many aspects of the
sentencing process, the cumulative effect of the sentences imposed requires closer
scrutiny. The offences arose from a single episode of vigilante violence occurring
40
over a limited period of time and forming part of one continuous course of conduct. 41
Although the regional magistrate recognised this consideration and ordered partial
concurrency, no reasons were furnished for structuring the concurrency order in a
manner that effectively required the first, second and third appellants to serve two
separate sentences of twenty years' imprisonment. Having regard to the substantial
and compelling circumstances found to exist, the basis upon which their liability was
established, and the totality principle applicable to sentencing, the resulting effective
sentence of forty years' imprisonment is disproportionate and justifies appellate
interference.
[170] In my view, the interests of justice would be adequately served by directing
that the sentences imposed on counts 2, 3 and 4 run concurrently with the sentence
imposed on count 1 in the case of the first and second appellants, and that the
sentences imposed on counts 2, 3, 4 and 5 run concurrently with the sentence
imposed on count 1 in the case of the third appellant. Such an order properly reflects
the seriousness of the offences, the loss of three lives, and the need for deterrence,
whilst avoiding a disproportionate cumulative effect. The effective sentence in
respect of the first, second and third appellants would accordingly be twenty years'
imprisonment.
[171] Different considerations apply to the fourth appellant. Counsel submitted that
the sentence of life imprisonment should likewise be interfered with and replaced by
a determinate term of imprisonment, contending that a sentence of 25 years'
imprisonment would be appropriate. I am unable to agree.
[172] Unlike the first, second and third appellants, whose liability arose through the
doctrine of common purpose and who were found by the regional magistrate to have
established substantial and compelling circumstances, the fourth appellant was
found to have participated directly and personally in the assaults. The evidence
found to have participated directly and personally in the assaults. The evidence
accepted by the magistrate established that he arrived armed with a bush knife,
associated himself with the ongoing violence and personally assaulted both the
complainant and the deceased. The magistrate concluded that no substantial and
41 Dlamini v S [2023] ZAGPPHC 468 para 26.
41
compelling circumstances existed which justified a departure from the prescribed
sentence of life imprisonment. Having regard to the nature and extent of his
participation, the gravity of the offences, and the absence of any material
misdirection, I am unable to conclude that the sentence of life imprisonment is
disproportionate or that a sentence of 25 years' imprisonment would adequately
reflect his moral blameworthiness.
[173] Furthermore, whilst the previous convictions recorded against the fourth
appellant are of considerable age and cannot be accorded significant weight for
sentencing purposes, they form part of the broader personal circumstances
distinguishing his position from that of the first, second and third appellants, all of
whom were treated as first offenders. The principal distinction, however, lies in the
nature and extent of the fourth appellant's participation in the offences and the
absence of substantial and co mpelling circumstances warranting a departure from
the prescribed sentence.
[174] A further difficulty arises in relation to the fourth appellant. The conviction
proceedings, properly construed, reflect that he was acquitted on count 5.
Notwithstanding that acquittal, the sentencing court purported to impose a sentence
of eight years' imprisonment on that count. In the absence of a conviction, no
sentence could competently be imposed. The sentence imposed on count 5 in
respect of the fourth appellant therefore falls to be set aside. As that sentence was
ordered to run concurrently with the sentence of life imprisonment imposed on count
1, its setting aside does not affect the effective sentence imposed upon the fourth
appellant.
Conclusion
[175] The offences themselves are exceptionally serious. Three people lost their
lives, and the complainant sustained very serious injuries. The victims were publicly
assaulted by a crowd that had elected to take the law into its own hands. The
assaulted by a crowd that had elected to take the law into its own hands. The
conduct constituted a particularly egregious form of vigilante violence.
42
[176] The interests of society and the need for deterrence were therefore important
considerations. The magistrate cannot be faulted for treating vigilante violence as a
serious aggravating feature deserving of substantial punishment.
[177] Cases of this nature continue to present themselves before our courts with
alarming frequency. Communities frustrated by crime sometimes resort to what is
euphemistically described as ‘community justice ’. That description is misleading.
There is nothing just about a process in which suspicion replaces investigation,
accusation replaces proof, and a crowd assumes for itself the functions of police
officer, prosecutor, judge and executioner. Such conduct strikes at the heart of the
rule of law.
[178] South Africa is founded upon constitutional values which require that every
person, irrespective of the allegations levelled against him or her, is entitled to the
protection of the law, the presumption of innocence, and a fair trial before an
independent court. When communities take the law into their own hands, they do not
strengthen the administration of justice; they undermine it. Vigilantism inevitably
carries the risk that innocent persons will be subjected to violence, humiliation,
permanent injury, or death without any lawful determination of guilt.
[179] The courts are therefore obliged to send a clear and unequivocal message
that so -called community justice has no place in a constitutional democracy
governed by the rule of law. Grievances concerning criminal conduct must be
reported to the police and dealt with through lawful processes. Resort to mob
violence cannot and will not be tolerated, regardless of the purported motives of
those who participate in it.
[180] In the circumstances, I would propose the following order:
1. The appeals of the first and second appellants against their convictions on
count 5 are upheld.
2. The convictions and sentences imposed on the first and second appellants on
count 5 are set aside.
43
3. In respect of the first and second appellants, it is ordered that the sentences
imposed on counts 2, 3 and 4 shall run concurrently with the sentence imposed on
count 1.
4. In respect of the third appellant, it is ordered that the sentences imposed on
counts 2, 3, 4 and 5 shall run concurrently with the sentence imposed on count 1.
5. The sentence purportedly imposed on the fourth appellant on count 5 is set
aside.
6. Save as aforesaid, the appeals against conviction and sentence are
dismissed.
____________________________
Andrews AJ
I agree, and it is so ordered.
___________________________
Nirghin J