S v Khumalo en Andere (655/89) [1991] ZASCA 70; 1991 (4) SA 310 (AD); [1991] 2 All SA 341 (A) (29 May 1991)

S v Khumalo en Andere (655/89) [1991] ZASCA 70; 1991 (4) SA 310 (AD); [1991] 2 All SA 341 (A) (29 May 1991)

The Supreme Court of Appeal held that the trial court erred in convicting all appellants of murder based solely on their participation in stone-throwing at the deceased's house. The evidence did not establish that every member of the crowd shared a common intent to kill, nor that all were actively associated with the fatal assault. Only those appellants who were proven to have participated in the actual attack on the deceased at the post office houses, or who admitted involvement, could be convicted of murder. The remainder were guilty only of public violence. The court also found that the identification evidence against certain appellants was insufficient, and their convictions were set...

Citation
[1991] ZASCA 70
Parties
Appellant: Kenneth Khumalo; Appellant: Eric Tros Gubula; Appellant: Abel Kutu; Appellant: David Lekhanyane; Appellant: Myner Gudlani Bovu; Appellant: Zuko Xabendilini; Appellant: Andrew Lekhanyane; Appellant: Elisha Matshoba; Appellant: Justice Bekebeke; Appellant: Zonga Mokgatle; Appellant: Ronnie Zenzile Masiza; Appellant: Wellington Seqwelo Masiza; Appellant: Barry Bekebeke; Appellant: Scalo Boy Jafta; Appellant: Xoliswa Dube; Appellant: Elizabeth Bostaander; Appellant: Evelina de Bruin; Appellant: Gideon Madlongolwane; Appellant: Zolile Yona; Appellant: Albert Tywilli; Appellant: Jepfrey Sekiya; Appellant: Sarel Jacobs; Appellant: Roy Swartbooi; Appellant: Neville Witbooi; Appellant: Ivan Kazi; Respondent: Die Staat
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 May 1991
Case Number
655/89
Procedural Posture
Criminal Appeal / Appeal Against Convictions and Sentences
Outcome
Appeals of appellants 16, 24, and 26 against conviction and sentence succeed; their convictions and sentences are set aside. Appeals of appellants 11 and 20 against conviction for murder are dismissed. Appeals of appellants 10, 11, and 20 against death sentences succeed; death sentences are set aside and replaced...
Judges
E M Grosskopf, Smalberger, Nienaber
Legal Topics
Common Purpose, Identification Evidence, Public Violence, Sentencing Principles, Mens Rea, Actus Reus
Criminal Law Common Purpose Identification Evidence Public Violence Sentencing Principles Mens Rea Actus Reus

Case Brief

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Parties

Kenneth Khumalo

Appellant

Eric Tros Gubula

Appellant

Abel Kutu

Appellant

David Lekhanyane

Appellant

Myner Gudlani Bovu

Appellant

Zuko Xabendilini

Appellant

Andrew Lekhanyane

Appellant

Elisha Matshoba

Appellant

Justice Bekebeke

Appellant

Zonga Mokgatle

Appellant

Ronnie Zenzile Masiza

Appellant

Wellington Seqwelo Masiza

Appellant

Barry Bekebeke

Appellant

Scalo Boy Jafta

Appellant

Xoliswa Dube

Appellant

Elizabeth Bostaander

Appellant

Evelina de Bruin

Appellant

Gideon Madlongolwane

Appellant

Zolile Yona

Appellant

Albert Tywilli

Appellant

Jepfrey Sekiya

Appellant

Sarel Jacobs

Appellant

Roy Swartbooi

Appellant

Neville Witbooi

Appellant

Ivan Kazi

Appellant

Die Staat

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Convictions and Sentences

Legal Issues

  1. 1 Whether the appellants were correctly convicted of murder based on common purpose.
  2. 2 Whether the identification evidence against each appellant was reliable and sufficient.
  3. 3 Whether the trial court erred in rejecting the alibi defences of certain appellants.

Ratio Decidendi

The Supreme Court of Appeal held that the trial court erred in convicting all appellants of murder based solely on their participation in stone-throwing at the deceased's house. The evidence did not establish that every member of the crowd shared a common intent to kill, nor that all were actively associated with the fatal assault. Only those appellants who were proven to have participated in the actual attack on the deceased at the post office houses, or who admitted involvement, could be convicted of murder. The remainder were guilty only of public violence. The court also found that the identification evidence against certain appellants was insufficient, and their convictions were set...

Court Disposition

Appeals of appellants 16, 24, and 26 against conviction and sentence succeed; their convictions and sentences are set aside. Appeals of appellants 11 and 20 against conviction for murder are dismissed. Appeals of appellants 10, 11, and 20 against death sentences succeed; death sentences are set aside and replaced...

Orders

  • Convictions and sentences of appellants 16, 24, and 26 are set aside.
  • Convictions of appellants 1, 2, 3, 4, 5, 6, 8, 12, 13, 14, 15, 17, 18, 19, 21, 22, 23, and 25 for murder are set aside and replaced with convictions for public violence.