IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
High Court Case No.: A97/12 
DPP Referece No.: .9/2/5/1-56/12 
In the appeal between-

And

THE STATE 									Respondent
Coram:	DLODLO J & VAN STADEN AJ
Heard:	8 June 2012

Judgment: 8 June 2012

JUDGMENT

Van Staden. AJ
1. The twenty-four year old appellant, Mr Thulani Dyantyana, was charged with two other accused on two counts of murder and one count of assault with intent to do grievous bodily harm. The alleged crimes were committed on 3 November 2006.
2. The other two accused were acquitted on all the charges, but the appellant was convicted of the murder of a person with the name of Mandisi Nobila also known as Mchelwa (“the deceased”) and acquitted on the other charges. In the charge sheet in respect of the murder of the deceased, it is alleged that the appellant killed the deceased by hitting; him with a blunt object and by stabbing him with a sharp object.

3. The appellant was sentenced to ten years imprisonment of which four years were suspended on certain conditions. The appellant applied for leave to appeal against conviction and such leave was granted.
FACTUAL BACKGROUND
4. On the day in question-troublemakers kicked in the doors of some houses in Samora Machel township.. Apparently some of the inhabitants of these houses were assaulted and their belongings Stolen. A group of at least fifty members of the community assembled and went from house to house to track down those whom they believed to be responsible. The two state witnesses, Ms. Thandaswe Mgidi (“Mgidi”) and Mr Monlabu Mayembela (“Mayembela”) were, according to their evidence, forced by this group to assist in locating some of the.perceived perpetrators.

RELEVANT LEGAL PRINCIPLES

DISCUSSION OF EVIDENCE AND JUDGMENT

11. There was furthermore a crucial contradiction in the evidence of Mgidi as opposed to that of Mayembela. Mgidi described a person by the name of Zamazama as also being part of the group, whereas Mayembela referred to accused no. 2 as Zamazama. Mayembela testified that it was very dark when the events took place and that one could hardly see anything. His
evidence was that the deceased, was held by the appellant when he emerged from the house where he was staying.
12. The confusion that reigned on the night in question was described by Mayembela as follows:
“
13. The magistrate described Mgidi as an important witness and stated that her evidence of identification must be approached with caution, because she was a child at the time when the incident occurred. He specifically referred to the fact that Mgidi’s evidence deviated from the statement that she made and that she contradicted Mayembela in respect of Zamazama. Despite her evidence that accused no. 2 and 3 were involved and assaulted one of the deceased with a plank and bricks, they were acquitted. Her evidence in that respect and obviously also her evidence that the appellant assaulted the deceased with a golf club, were obviously not accepted by the magistrate. In respect of the appellant however, the magistrate relied on the fact that the two state witnesses knew her better than the other two accused before the court.
14. In respect of the credibility of Mgidi, the magistrate concluded that it is quite likely that her youth played a major when her evidence in court was not clear and deviated form the contents of her police statement. Rather than regarding her youth as a factor necessitating a cautionary approach, the magistrate utilized it as a factor explaining the shortcomings of her evidence.

15. In my view the evidence of Mayembela was of a better quality than that of Mgidi. He testified that the appellant and the other two accused were the guards looking after him and the deceased. He also testified that the appellant chased Mchelwa when he attempted to escape.

16. In convicting the appellant as opposed to the other two accused the regional magistrate relied heavily on the fact that he was better Known to both the witnesses than the other two accused and his identification was therefore regarded as more certain. The other two accused were acquitted because their identification were not proved beyond reasonable doubt. I cannot see how this distinction can be justified.
17. The magistrate did not specifically refer to the doctrine of common purpose, but that was obviously the only basis upon which the appellant could have been found guilty. In my view, although there was evidence justifying a finding that the appellant and also the other two where present at the scene of the murder and formed part of the group of persons/there was no acceptable evidence that they associated themselves with the murder of the deceased. It is not at all clear whether a decision was taken by the group to kill the deceased or by individual members of the group and at what stage such a decision was taken. Applying the legal principles referred to in paragraphs 7 and 8 above* the inference could not be made that the appellant associated himself with the murder of the deceased.

18. Although the alibi evidence of the appellant was correctly rejected, the deficiencies in the states case was of such a nature that the giving of a false alibi did not strengthen the states case to such a degree that the appellant’s guilt was proved beyond reasonable doubt. See paragraph 9 above.
19. In my view it is reasonably possible that the appellant might be innocent.
CONCLUSION
20. In all the circumstances I believe that the conviction of the appellant on Count 1 was not justified and I would set aside the conviction and the sentence of the appellant and find him not guilty.

W H Van Staden
Acting Judge of the High Court

I agree and it is so ordered.

D V Dlodlo
Judge of the High Court