S v Mlambo and Others (CC31/2019) [2023] ZAGPPHC 2063 (27 March 2023)

S v Mlambo and Others (CC31/2019) [2023] ZAGPPHC 2063 (27 March 2023)

The court found that all accused were placed at the scene and actively participated in the assault on the deceased, either by direct physical acts or by associating themselves with the ongoing attack. The evidence from multiple eyewitnesses was accepted as reliable, and discrepancies were found to be minor and not material. The doctrine of common purpose was applied, as the accused formed an intent, at least in the form of dolus eventualis, and must have foreseen that their participation in the continuous assault would lead to the deceased's death. The medical evidence confirmed the cause of death as head injuries consistent with the assault described by witnesses. Accused 1, 2, and 3...

Citation
[2023] ZAGPPHC 2063
Parties
Applicant: The State; Defendant: Jacob Bhuti Mlambo; Defendant: Mishack Mabusa Matshiya; Defendant: Mfundo Innocent Mlambo; Defendant: Phillip Madoda Jwara; Defendant: Fihliwe Letty Masango; Defendant: Thomas Moses Kabini; Defendant: Paulinah Zanele Masango; Defendant: Lancelot Sipho Mthimunye; Defendant: Simon Patrick Nxumalo; Defendant: Paulinah Nurse Sibiya; Defendant: Tryphina Ntombifuthi Sibiya
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 March 2023
Case Number
CC31/2019
Procedural Posture
Criminal Trial / Conviction and Reasons
Outcome
All accused (1 to 11) convicted of murder under common purpose. Accused 1, 2, and 3 additionally convicted of kidnapping. Accused 4 to 11 acquitted on kidnapping.
Judges
G T Avvakoumides
Legal Topics
Murder, Kidnapping, Common Purpose, Dolus Eventualis, Criminal Procedure Act, Criminal Law Amendment Act
Criminal Law Murder Kidnapping Common Purpose Dolus Eventualis Criminal Procedure Act Criminal Law Amendment Act

Case Brief

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Parties

The State

Applicant

Jacob Bhuti Mlambo

Defendant

Mishack Mabusa Matshiya

Defendant

Mfundo Innocent Mlambo

Defendant

Phillip Madoda Jwara

Defendant

Fihliwe Letty Masango

Defendant

Thomas Moses Kabini

Defendant

Paulinah Zanele Masango

Defendant

Lancelot Sipho Mthimunye

Defendant

Simon Patrick Nxumalo

Defendant

Paulinah Nurse Sibiya

Defendant

Tryphina Ntombifuthi Sibiya

Defendant

Procedural Posture

Criminal Trial / Conviction and Reasons

Legal Issues

  1. 1 Whether the accused are guilty of murder under the doctrine of common purpose.
  2. 2 Whether the accused are guilty of kidnapping by unlawfully depriving the deceased of his freedom of movement.
  3. 3 Whether the evidence of state witnesses is reliable and sufficient to convict the accused beyond reasonable doubt.

Ratio Decidendi

The court found that all accused were placed at the scene and actively participated in the assault on the deceased, either by direct physical acts or by associating themselves with the ongoing attack. The evidence from multiple eyewitnesses was accepted as reliable, and discrepancies were found to be minor and not material. The doctrine of common purpose was applied, as the accused formed an intent, at least in the form of dolus eventualis, and must have foreseen that their participation in the continuous assault would lead to the deceased's death. The medical evidence confirmed the cause of death as head injuries consistent with the assault described by witnesses. Accused 1, 2, and 3...

Court Disposition

All accused (1 to 11) convicted of murder under common purpose. Accused 1, 2, and 3 additionally convicted of kidnapping. Accused 4 to 11 acquitted on kidnapping.

Orders

  • Accused 1 to 11 are found guilty of murder (read with section 51(1) of the Criminal Law Amendment Act 105 of 1997).
  • Accused 1, 2, and 3 are found guilty of kidnapping.