Story audio is generated using AI
An Eastern Cape man who was sentenced to 20 years in jail for murder and 10 years for aggravated robbery was set free after the Makhanda high court set aside his conviction and sentence.
On October 2 2016, at Tini location in KwaMaqoma, Mzukisi Nikani was fatally stabbed and Vuyokazi Duda violently assaulted and robbed of R400.
Siyamthanda Rumbu was arrested and and subsequently convicted and sentenced in the Fort Beaufort regional court.
Rumbu applied for and was granted leave to appeal on April 29 2025.
The appeal was heard on April 15 this year and both convictions were set aside.
Providing the reasons, acting judge Mvuzo Notyesi said the state had failed to prove its case against Rumbu.
Notyesi, with judge Denzil Potgieter agreeing, said the regional court had relied on the doctrine of common purpose, even though it was neither pleaded in the charge sheet nor proved during the trial, and no amendment to the charge sheet was sought prior to judgment.
“Undoubtedly, it was manifestly wrong for the court to adopt such an approach of relying on common purpose.
“It was impermissible for the court a quo [the original court hearing the matter] to invoke the doctrine of common purpose in the circumstances of this case, where the accused had not been informed of that possibility, nor did the evidence establish common purpose.
“Self-evidently, the court a quo committed a misdirection in this regard.
“The conviction of the appellant cannot stand,” Notyesi said.
“First, the only evidence presented by the state was that the appellant was part of a group of four men who subsequently committed the offences.
“Ms Duda, the complainant in the robbery, testified that the appellant was not one of the two people who robbed her.
“The appellant was neither seen nor identified as the person who killed the deceased.
“There was simply no evidence that the appellant had committed either of the offences [murder and robbery with aggravating circumstances].
“There was no suggestion or evidence that the appellant was acting in furtherance of a common purpose with those unknown assailants or that he was part of an agreement or a participant in their actions.”
Notyesi said Nompucuko Qeqe, a state witness, was a single witness who had apparently consumed alcohol, and her identification of Rumbu was not corroborated.
He said the other state witnesses gave materially different accounts of the events.
“This court also takes into account that these witnesses had also consumed alcohol throughout the day until approximately 3am.
“There was no evidence regarding the impact of such consumption.
“Nonetheless, this is a factor to be considered in assessing the risk of mistaken identification and suggestibility.
“The court failed to consider these factors.
“The witnesses contradicted themselves regarding the extent of the visibility provided by the mast light.
“In these circumstances, this court cannot safely conclude that the identification by a single witness was reliable.”
Notyesi said he was not convinced that Qeqe’s identification of Rumbu was proved beyond reasonable doubt to be reliable.
He said he was satisfied that Rumbu provided a reasonable explanation for his innocence.
“The evidence of the appellant, together with that of his witness, was not shown to be improbable or false.
“In my view, there remains a reasonable possibility that the appellant’s explanation is true.
“The appellant’s version was that, on the day in question, he was at a tavern with his friend where they consumed alcohol, and that he returned home at approximately 2am.
“If this explanation is accepted, it is possible that he was not present at the scene when the offences were committed.
“An accused person bears no onus to convince the court of the truthfulness of his or her explanation.
“The state, on the other hand, must prove the guilt of an accused beyond reasonable doubt.
“Has the state proved the guilt of the accused in this case? The answer is a resounding no.”
Daily Dispatch
