The appellant, Benzani Nxumalo, was one of 15 accused charged in a large criminal trial involving a syndicate responsible for hijacking heavy trucks and other vehicles and exporting them, mainly to Mozambique, between 1999 and 2005. He was convicted in the Free State High Court on ten counts, including robbery with aggravating circumstances, kidnapping, and contravention of s 9(1)(a) of the Prevention of Organised Crime Act 121 of 1998, and sentenced to an effective 25 years’ imprisonment. Leave to appeal was granted only in respect of convictions on counts 19–22. Counts 19 and 20 related to a hijacking and kidnapping near Frankfort on 16 July 2004, where the appellant was linked to the crime through circumstantial cell phone evidence placing his phone near the scene and in contact with other implicated numbers. Counts 21 and 22 related to a hijacking and kidnapping between Memel and Senekal on 27 July 2004, where the only evidence against the appellant was limited cell phone contact the day before the offence, while his phone was shown to be in Gauteng at the time of the crime.
The appeal was partially upheld. The convictions and sentences on counts 21 and 22 were set aside. The appeal was otherwise dismissed, and the effective sentence of 25 years’ imprisonment remained unchanged.
The case reaffirms the South African approach to evaluating circumstantial evidence in criminal matters, emphasising that guilt must be the only reasonable inference from the totality of the evidence. It also underscores that mere association or limited cell phone contact is insufficient to establish liability in the absence of proof of presence, participation, conspiracy, or common purpose.