S v Nakani (SS15/2015) [2017] ZAWCHC 54 (22 February 2017)

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[2017] ZAWCHC 54
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S v Nakani (SS15/2015) [2017] ZAWCHC 54 (22 February 2017)

IN THE HIGH COURT
OF SOUTH AFRICA
(
WESTERN CAPE
DIVISION, CAPE TOWN
)
CASE
NUMBER
: SS15/2015
DATE
: 22 FEBRUARY 2017
In
the matter between:
THE
STATE
and
LINDANI
NAKANI
Accused
JUDGMENT
BOQWANA, J
INTRODUCTION
The
accused was arraigned for trial before this Court on an indictment in
respect of a charge of murder, read with the provisions
of the
Criminal Law Amendment Act 105 of 1997 (“the
Criminal Law
Amendment Act&rdquo
;) on the basis that the offence he is charged
with is mentioned in
Part I
of Schedule 2 of the
Criminal Law
Amendment Act, in
that the death of the deceased was planned or
premeditated.
The
State alleges that on or about 3 July 2014 and at or near 24995 N2
Gateway, Delft, in the district of Bellville, the accused
unlawfully
and intentionally killed Busiswa Centane Rwayi (“the
deceased”), an adult female person, by shooting her
with a
firearm.
The
State was represented by Mr Moeketsi throughout the trial.  For
the greater part of the trial the accused was not legally

represented, up until the close of his case. At the commencement of
the trial the Court took some time to explain to the accused
his
right to legal representation and that should he not be able to
afford to pay for his own lawyer he may be assisted at the
State’s
expense by approaching Legal Aid. The accused advised the Court that
he wished to conduct his own defence.
The Court explained to
him the seriousness of the offence that he faced, the complexities
that may arise during the trial and the
reliance of the State on the
applicability of the minimum sentence of life imprisonment in the
event that the accused were to be
found guilty of the offence.
The Court also explained that it would be in his best interest to
exercise his right to legal
representation, as complex issues of law
and fact may arise in this case.  The accused advised the Court
that he was aware
of the seriousness of the case and had elected to
conduct his own defence and pleaded with the Court to proceed with
the matter.
The Court proceeded on that basis.  The Court
reminded the accused of his right to legal representation at various
stages
throughout the trial.
At
the plea stage the accused was unsure whether to plead guilty or not
guilty.  Having listened to the accused it was evident
that he
was not admitting to all the elements of the offence that he was
charged with by the State.  In that regard the Court
entered a
plea of not guilty.
In his plea explanation
the accused informed the Court that he acted irrationally and did not
think straight as a reasonable person
should have.  Mr Moeketsi
then asked the Court to ascertain from the accused what he meant by
that explanation, so as to ensure
that the Court was not dealing with
a case of pathological criminal incapacity and furthermore the State
had to be clear as to
what the defence of the accused was in this
instance.  Having enquired from the accused it was unclear from
the explanation
he offered at that stage whether a mental illness or
defect or any other reason was present necessitating the referral of
the accused
for mental observation.  The Court allowed the
matter to proceed on the basis that if it became apparent during the
trial
proceedings that there was a basis to refer the accused for
mental observation the Court would make a determination at that
appropriate
stage.
EVIDENCE
The State called 17
witnesses in total.  The accused testified in his defence and
also called two witnesses.  The Court
explained the rights of
the accused, the manner in which the proceedings would unfold and the
law throughout the various stages
of the proceedings.  A
trial-within-a-trial was held in respect of the part of the evidence
of a State witness, Colonel Jacobus
Fredericks (‘Fredericks’).
Both parties applied for hearsay evidence to be admitted regarding
certain witnesses,
I deal with those issues later.
THE STATE’S CASE
The
State’s first witness was Nonyameko Manengela (‘Manengela’).
Manengela testified that she was a member
of the SAPS stationed
at Delft Police Station.  She has been a member of the South
African Police Service (“SAPS”)
for 6 years.  Her
function involved assisting people and attending to complaints in the
Delft area.  On Thursday 3 July
2014 she was on duty at work.
She got a call from radio control at 10:49.  At the time she was
with Constable Ndzotyana,
who was the driver driving a police van.
They were on duty attending to complaints.  The call related to
a shooting
at the N2 Gateway at 24 Section.  At this stage they
were not far from the police station and were still patrolling. They
immediately went to the place from where the complaint came.
They saw a silver Toyota Yaris motor vehicle alongside the house.

The driver’s side of the motor vehicle was open and the road
was full of people.  Manengela noticed a lady lying on
the road.
This lady was red by her stomach with blood.  She quickly called
an ambulance.  When the ambulance arrived
the lady was certified
dead.
She
noticed bullet cartridges in the street alongside the Toyota Yaris
vehicle and alongside the house.  She called all the
necessary
people to come to the scene, such as the photographer, IPID and the
morgue van.  The morgue van came and took the
body to the
mortuary. Constable Vuyolwethu Mini (‘Mini’) who was the
photographer came to the scene of crime.
Mini photographed the
scene and took the cartridges with him.  Manengela could not
state what IPID stood for except that the
first letter stood for
independent.  The IPID would be called in situations where a
police official or a State official was
involved in a shooting and
not in all shootings.  When she saw the lady who was lying on
the ground she noticed that the lady
could not move. She could
however not make a decision on her own that the lady was dead.
She could recall that there were
13 cartridges that she found.
In
cross-examination she testified that they received the complaint from
the radio controller.  When she got to the scene she
did not see
the suspect but she got information from the police station that the
suspect was a police official and therefore she
had to call the
IPID.  The cartridges were alongside the house and the vehicle
was also alongside the house.  She testified
further that nobody
gave any information about what happened when they tried to ask.
The
next witness was Mini who testified that he worked for the SAPS at
Delft Service Point Local Criminal Record Centre (“LCRC”).

He has been working for the SAPS for 7 years.  He joined the
LCRC in January 2010.  As a member of the LCRC his duties

involved working as a photographer, draughtsman, videographer and
lifting of fingerprints at crime scenes.  To be a member
of LCRC
he underwent training at various training institutions.
On
3 July 2014 he was on duty where he attended a crime scene.
Whilst he was outside doing his duties he was called via the
SAP
radio and was informed that there was a crime scene at the N2 Gateway
at Delft that he had to attend as a photographer.
When he
reached the crime scene it was already cordoned off.  The first
person that he met was a female police person wearing
police clothing
and her name was Constable N V Manengela (‘Manengela’).
He asked her about what happened and
she explained what she heard
when she got to the scene. He asked her to point out where the crime
scene started and where it ended
and all the evidence that could be
found.  He then took his scene report where he made notes of the
crime scene and drew a
rough sketch of the crime scene on it.
After that he made notes on the same report.  He then went to
the vehicle that
he was using and took out the cones.  He placed
the cones alongside the exhibits that he had marked at the crime
scene.
He drew a rough sketch of the crime scene and took
photographs.  After the crime scene was pointed out to him by
Manengela,
he saw the deceased female lying in the road and a Toyota
Yaris, silver in colour, standing in front of the house.  The
door
of the Toyota Yaris motor vehicle was open.  Alongside the
motor vehicle on the ground were cartridge cases and bullets.

Other bullets were inside the motor vehicle.  At the scene of
crime he would make a mark showing which point belongs to which

exhibit.  In this instance point C was a cartridge case.
He collected the exhibits and took photographs of what time
the
exhibits were taken. He then placed the exhibits in a bag at each
point of the crime scene.  After he finished placing
each
exhibit in a bag he took the exhibit bag and started taking photos of
the whole crime scene standing at a distance.
He also took a
photograph of each exhibit close by.  He then picked up all the
exhibits and placed them in a large bag which
he marked with a case
number, the station, the charge and the LCRC reference numbers.
Manengela informed him that he had
to go to the Delft Police Station
where she said the suspect’s motor vehicle was.  Manengela
informed him that there
was also a firearm in the motor vehicle in
the front. He went to the Delft Police Station after he received that
information.
When he was there he took photos of the motor
vehicle on the inside and of a firearm.  As he entered the gate
of the police
station there was an Avanza motor vehicle, white in
colour, and there was a police officer standing next to the motor
vehicle.
He approached the police officer and introduced
himself and told the policeman what he was doing there.  The
police officer
introduced himself as Colonel Fredericks.
Fredericks is the one who pointed out the Avanza that was facing him
and there
was a firearm inside.  There was a magazine next to it
and the firearm itself had another magazine inside.  Without
touching
anything on the inside of the motor vehicle he took
photographs of the motor vehicle.  Thereafter he took
photographs of the
firearm and the magazine that were found inside
the vehicle.  The magazine that was alongside the firearm was
empty.
He noticed that the magazine did not have bullets
because it had holes.
Fredericks
removed the bullets from the magazine in front of him as he was
preparing to place the exhibits in  exhibit bags.
He
separated the exhibits from each other so they could be taken for
storage to the Delft Police Station.  Fredericks opened
the
firearm by pressing the release button, cocked the firearm, locked it
whilst it was open to make sure it was on safety and
that there was
no bullet inside, so that it could be taken to Delft.  That is
the procedure that is needed to be followed
according to the
teachings that Mini had received from the police.
According
to his observations there were no bullets in the chamber of the
firearm.  The magazine had 15 bullets in it.
The type of
firearm that he was talking about was a Z88 9mm pistol. And this
firearm is used by police officers as a firearm that
can fit on the
waist of a police officer.  As a member of the LCRC and as a
police officer he had knowledge of firearms and
of this particular
firearm and how it was used.  According to his knowledge and
training, the firearm was designed to carry
15 rounds of bullets;
however it is possible that it could carry 16 bullets in total.
That would happen when it is cocked
and a space is left for another
bullet to fit.  By putting an extra bullet in the space one
would make it possible for it
to carry 16 bullets.  After he
took the photograph and Fredericks had checked that the firearm was
safe, it was placed in
the exhibit bag.  He wrote a note in his
scene report.  The exhibit bag was taken by Fredericks and it
was sealed.
He made Fredericks sign along the entry that he
made.
After
everything was done Mini went to another crime scene because it was a
busy day.  After he finished with that crime scene
he went to
the office where he opened the cupboard (or locker) and placed the
exhibits in the cupboard.  He locked the cupboard
to make
certain of the safekeeping of the exhibits - he did that because the
person in charge of the storage had gone home already.
The
following day on 4 July 2014 he took out the exhibits and went to the
person who was in charge of the storeroom, Benita Valerie
Pietersen
(‘Pietersen’).
Pietersen
took a register that was referred to as the SAP459 and registered all
the exhibits that were going to be stored according
to the LCRC.
Pietersen wrote down each and every exhibit that he gave to her and
that all happened in front of him.
He signed on the register
itself to say that she had written down all that he had given to
her.  Pietersen also signed to
confirm that she had received the
exhibits from him.  After that she took the exhibits and locked
them in storage where they
would stay until they were taken to the
Forensic Science Laboratory in Plattekloof.
He
took the exhibits to the Plattekloof Forensic Laboratory himself.
He wrote everything that he did in the docket he used
to write
statements about the exhibits that were in safekeeping.  He
typed a statement himself and double checked that what
was in the
statement coincided with the exhibits.  He then signed at an
appropriate place and attached the statement to the
exhibit bag.
Mini
further testified that the photos that he took were downloaded and
placed on a CD.  The CD and the docket with the photos
were
placed with the SD card which was sent to him by the downloader.
When he received the CD and the docket he placed them
onto the
computer and compiled a photo album.  After compiling a photo
album he deposed to an affidavit relating to the crime
scene.
He did not do an affidavit about what he did at the police station in
relation to the motor vehicle he found there.
Photos
1 to 35 were crime scene photos and photos 36 to 43 were photos that
he took at the police station.  Photo 41 is a photograph
that
had a magazine with holes where one would see the bullets.
During his testimony he marked with a red pen and wrote the
letter Y,
indicating that the holes were in the magazine in photo 41.  He
testified that photo 42 was a firearm which had
a magazine inside and
the firearm appeared to be on a safety mode.  The affidavit
relating to the crime scene as well as key
to the photo plan and
photos were handed in as exhibit “A”.  Mini further
referred to a forensic affidavit which
detailed the exhibits that he
collected on 3 July 2014 at the scene at 24995 N2 Gateway, Delft.
The forensic investigation
affidavit was handed in as exhibit “B”.
Mini read into the record the contents of the affidavit relating to
exhibits
1 to 19, which related to cartridge cases and bullets that
he collected at the crime scene.  He indicated that there was a

typing error in relation to exhibits 17, 18 and 19 respectively which
stated that the relevant cartridge cases were found on the
ground
next to the door of the house.  He indicated that the relevant
statement should read as ‘found on the ground
next to the
house’.  According to Mini, exhibits 1 to 19 were put
inside a forensic bag with number PA3000904653 until
they could be
taken to the Ballistic Unit in Panorama.
On
4 July 2014 he booked exhibits 1 to 19 into the Forensic
SAP459/416/2014 register at CR and CSM, Delft Service Point and
placed
it in the exhibit room for safekeeping until it could be sent
to the Ballistic Unit in Panorama.  On 15 July 2014 he sealed

exhibits 1 to 19 into forensic exhibit bag PA3000904653 and took it
by hand to the Forensic Science Laboratory in Panorama.
In
cross-examination he testified that he received police basic training
from 12 January 2009 to June 2009. He then attended Philippi
Police
Academy and started working in Maitland Police Station where he
completed his police training.  In January 2010 he
went to the
LCRC in Bellville. He was sent for training as a crime investigator
in Paarl where he received training to lift fingerprints,
take photos
and videos.  He completed his training in the same year.
In June of the same year he started visiting crime
scenes doing
investigations.  He then specialised in lifting fingerprints up
to January 2014.  In February 2014 photographers
and fingerprint
lifters were combined as a unit and he started working as a
photographer at crime scenes, which is what he still
does.  Based
on the training he received as a police officer a firearm is not
supposed to be left in the manner that he found
in the white Avanza,
as it posed a danger to anyone who came across it.  A firearm
must be kept in a holster placed at the
waist of the police officer
or in the safe.  He conceded that questions must be asked
regarding the manner in which the firearm
in question was found in
the vehicle.
The
next witness was Pietersen.  She testified that she has worked
at Delft Service Point as an exhibit clerk since 1 November
2012.
The Service Point is part of the SAPS, but she is not a police
officer.  Her duties are to receive exhibits, book
them in the
459 register, sign for them and put them in a store room.  She
had the keys of the store room.  The police
individual who
brought the exhibits to her would sign for the exhibit, and the same
will happen when exhibits are booked out of
the store room.
She
referred to an extract of the exhibit register, SAPS459, which was
handed in as exhibit “C”.  The register
contains
information about the exhibits: when they were received by her and
from whom and how many she received and what the exhibits
were and
where they were taken, by whom, and when they were taken.  In
this instance the register recorded that she received
one bag
containing bullets and cartridges and there were 19 exhibits in
number that were given to her by Mini.  Mini took
the exhibits
took the laboratory in Plattekloof and he signed to that effect.
The
next witness was Mandlakhe Cyprien Ntshingila (‘Ntshingila’).
Ntshingila testified that he was the police
officer working for the
SAPS Railway Police.  He has been working for the SAPS for 26
years, having started in 1990.
He started in Kwazulu-Natal at
the police and in 2004 came to Cape Town to work for the Railway
Police.  He is a section commander
who patrols on the trains. He
knows the accused and the accused was part of his team, he was the
accused’s supervisor.
On
3 July 2014 he was on holiday at his Kwazulu-Natal home when he
received a telephone call from the accused at approximately 11

o’clock, saying that he had shot his girlfriend.  He did
not ask what led to that because he was not sure what really

happened.  The accused informed him that he was at Delft Police
Station.  Ntshingila then informed his commander and
told him to
go there.  The accused advised him that he was in the company of
Fredericks.
In
cross-examination he testified that he did not know how to answer a
question in relation to how the accused was when he called
him, all
he could say was that he spoke softly.  He had not experienced
any problems with the accused as a person who worked
under his
supervision, they got on very well.  He conceded that the
accused felt at ease speaking to him about his personal
issues and in
particular his situation at home.
A
question relating to an application by the accused for a transfer to
the Eastern Cape was put to him.  He recalled the issue
of the
transfer but could not comment about what happened after the
application was sent, as that was something beyond his involvement.

He testified that a committee dealing with transfers had sat and
approved the accused’s transfer but they were waiting for

authorisation.  It is not clear why there was a delay for him to
be released.  In re-examination Ntshingila testified
that the
accused had told him that he had moved out of his home because the
situation was not pleasant and was staying at the Pinelands
Police
Barracks.  He had informed him that things were not pleasant
with the person he was staying with, which person was
a woman.
This conversation took place between 2013 and 2014.
The
State then called Arnolene Elana Eshla Joseph (‘Joseph’)
as its next witness.  Joseph testified that she was
a forensic
officer at Tygerberg Mortuary.  Her duties were to collect the
bodies at crime scenes.  She would then take
them to the
Forensic Pathology Service at Tygerberg.  They get to know about
the bodies when they receive a call through Metro
Control.  They
will then go directly to the scene after receiving the details of the
scene.  On 3 July 2014 she was on
duty when she received a call
from Metro Control.  She was with her colleague Friedel Arendse,
who was the driver of the vehicle
that they used to go to the scene.
When they arrived at the scene they first saw a Constable, whom she
could not remember,
who took them to the body that was lying in the
street.  He told them what happened and they received a
declaration of death,
where the individual was certified through
Metro Ambulance as deceased.  The body was lying on the ground
with bloodstains
and with full clothes on.  It was covered with
a blanket.  They took the blanket off from the body and the
floor.
The blood was by the stomach.  They then contacted
Joseph’s superior via radio at Control to say that they had
received
the body.  The superior gave them the WC number that
the computer generates.  The WC number is for the identification

of the deceased and for the post mortem.  After they had tagged
the body they bagged it and placed it on the stretcher.
They
tightened the stretcher so that the body could not move and placed it
in the back of the vehicle which they use to transport
the bodies to
the mortuary.  The body sustained no further injuries.  At
the mortuary they offloaded the body and put
it in the fridge.
The vehicle they were using was a “
bakkie”
.
Joseph’s affidavit in terms of Section 212 of the Criminal
Procedure Act 51 of 1977 (“The
Criminal Procedure Act&rdquo
;)
was admitted as an exhibit, stating the time that they had received
the body, which wa
s 15:02
, the name of the constable that they
received the body from, which was Constable Manengela, and the
details of the WC body tag
number, which was WC/14/1552/14.  The
rest of the affidavit confirmed the evidence that Joseph’s had
already given.
The
next witness for the State was Wayne Jeremy Claassen (‘Claassen’).
He testified that he was employed by the Department
of Health,
Pathology, as a Senior Forensic Officer.  He has been employed
at the Pathology Unit for 9 years.  His duties
were to attend at
the crime scene and assist the pathologist with the post mortem.
He does so by removing the deceased’s
body out of the
refrigerator and pointing it out to the pathologist.  After the
autopsy is done, the body is sealed in a body
bag.  An affidavit
in terms of
Section 212
of the
Criminal Procedure Act, deposed
to by
Claassen, was handed in as  exhibit “E”, where
Claassen had stated that he removed a body of an adult female
that
was marked with body tag number WC/14/1552/14 out of the refrigerated
storage.  He pointed out the body to Dr Estavao
Afonso, the
authorised person who performed the post mortem examination on
WC/14/1552/14.  After the post-mortem examination,
the same body
was returned to the refrigerated storage by him. Whilst the body was
in his custody it sustained no further injuries
or wounds.
Another
affidavit in terms of
Section 212
(7) and (8) of the
Criminal
Procedure Act, belonging
to Claassen, was also handed in as Exhibit
“F”.  In this affidavit Claassen stated that on 7
July 2014 in performance
of his duties he received an exhibit bag
with serial number PA6002038142 containing projectile (left hip).
PA600203814 containing
projectile (left buttock).  PA6002038139
containing projectile (left buttock inferior).  PA6002038141
containing projectile
(left abdominal wall), a corduroy jacket,
trousers and black vest, for ballistics.  The exhibits are
marked WC/14/1552/14
from Dr EB Afonso of the Forensic Pathology
Laboratory Tygerberg and they were sealed.  On 7 July 2014 he
handed the exhibits,
still marked with WC/14/1552/14, to Warrant
Officer Serfontein from Parow SAPS stationed at Franzi Van Zijl
Drive, Tygerberg.
He handed the exhibits to Warrant Officer
Serfontein in his office at the mortuary.  Serfontein was based
at the mortuary
only for exhibit purposes and for documentation from
the SAPS side.  He was asked by the prosecutor whether he knew
where
Warrant Officer Serfontein was. He responded by saying that it
came to his attention that Serfontein had resigned, he did not know

when he resigned.  This came to his attention at the end of last
year.  Warrant Officer Serfontein was sick and did not
come
back.  At this point he did not know of his whereabouts.
What normally happened was that the elements would be
handed over by
the warrant officer to the investigating officer dealing with the
specific case.
The
next witness was Fredericks.  Fredericks was stationed at
Ravensmead SAPS.  He has been working for the SAPS for 29

years.  He worked at Delft as an Operation Commander before he
was transferred to Ravensmead.  His sole responsibility
was to
visit crime scenes.  He has people working under his command.
On
3 July 2014 he was on duty and dressed in full uniform and driving a
marked vehicle, numbered 811.  He was driving a “bakkie”

on his way from the police premises towards Delft South.  As he
was leaving the premises he noticed a white Toyota Avanza
pulling
into the police station very fast. At that moment the vehicle stopped
next to the vehicle he was driving, where he was
seated by the
driver’s side.  At the time he was with a passenger.  He
saw the accused that is in court jumping
out of his vehicle.  He
had a brown leather jacket.  He pulled up his hands and made
some remarks.  I revert to
the issue of the remarks later on.
When the accused got out
of the vehicle he immediately noticed that the accused was a police
officer, as he knew where the accused
was stationed.  When he
looked at the window from the driver’s side he noticed a Z88
black pistol that was lying in
front on the passenger seat of the
white Toyota Avanza.  He tried to calm the accused down while
his right hand was on his
shoulder.  After that he requested the
keys to the vehicle which were given to him.  He made sure that
the doors of the
vehicle were properly locked and that was done in
the accused’s presence.  He also explained to the accused
that he
was a commissioned officer and if he could willingly point at
the crime scene where the incident took place. The accused fully
agreed with him and he also mentioned that he wanted to see his
girlfriend.
TRIAL-WITH-A-TRIAL
At
this point, I stopped the proceedings and enquired from Mr Moeketsi
whether the evidence being led was not entering into the
terrain of
confessions and admissions as provided for in
Sections 217
;
218
;
219
and
219A
of the
Criminal Procedure Act.  A
debate ensued on this
issue.  After due deliberations, and the fact that the accused
was not legally represented, it was unclear
whether he objected to
the leading of this evidence.  Having explained the applicable
provisions of the
Criminal Procedure Act and
the requirements of
section 35 of the Constitution of the Republic of South Africa, Act
108 of 1996, to him, the accused stated
that he objected to the
leading of that evidence because he was not in his ‘sober
senses’ when he made the utterances
he did to Fredericks.
I
accordingly ruled that a trial-within-a-trial be held in respect of
both the utterances made by the accused to Fredericks and
the
pointing out as a measure of caution, in view of the lack of clarity
as to what the nature of the evidential material that
would be led by
the State was.  At one point Mr Moeketsi, for the State
submitted that the evidence constituted a confession
but then urged
the Court to allow the leading of the evidence and make the
determination after the case whether or not the evidence
is
admissible (although he later submitted that those were admissions).
That in my view was an inappropriate manner of dealing
with this
evidence, as an enquiry had to be conducted on whether the pointing
out was done freely and voluntarily and within the
provisions of
section 35 of the Constitution.  Included in this enquiry were
utterances that Fredericks stated the accused
made when the accused
stopped and approached him.
A
trial-within-a-trial commenced and Fredericks testified that the
accused made utterances to him and when he did so he was normal
and
sober.  He initially was talking very fast but he calmed him
down.  He told him he was a commissioned officer and
the accused
was not allowed to tell him anything if he did not want to because it
could later be used as evidence.  He then
asked him if he could
point out the crime scene willingly which he did.  He conceded
that he did not explain any of the Constitutional
Rights of the
accused before the pointing out took place.  He only informed
the accused of his rights at the police station.
In
cross-examination of the trial-within-a-trial he testified that the
accused was the one who came to him, when he entered the
police
station and made utterances.  He stopped the accused from
speaking further and said he was a commissioned officer.
He
once again admitted to not  having explained the accused’s
constitutional rights.  The accused did not lead
any evidence
during the trial-within-a-trial and elected to remain silent.
During
argument of the trial-within-a-trial, Mr Moeketsi submitted that
there were two issues under consideration.  The first
being the
utterances at the police station, which in his view were made
voluntarily when the accused approached Fredericks.
According
to him, Fredericks was minding his own business or his work, when he
was just approached by the accused.  The manner
in which the
utterances were made by the accused was just spontaneous.
Fredericks testified that the accused was in his sober
senses. He was
normal according to his observation when making the utterances he
did.  Mr Moeketsi accordingly submitted that
the utterances are
admissible and should be found as such.
The
second issue related to the circumstances surrounding the pointing
out.  In this regard, he submitted that the accused
ought to
have been informed, amongst others, that he was not compelled to do
the pointing out and about the implications thereof
as well as his
other constitutional rights.  He submitted that the pointing out
cannot be admissible.
The
accused on the other hand contended that it could not be said that he
uttered those words in his sober senses because the situation
was
abnormal, which is an issue around which the whole case revolved.
According to him Fredericks might not have known the
accused’s
condition when he uttered those words. Therefore, the utterances
could not be admitted.
Having
considered the evidence and the submissions made by the State and the
accused in respect of the trial-within-a-trial I ruled
the pointing
out to be inadmissible as conceded by the State.  As regards the
utterances made by the accused at the police
station when he
approached Fredericks, I took a more cautious approach and made a
provisional ruling that the utterances made by
the accused to
Fredericks prior to the pointing out of the crime scene were
inadmissible at that stage, and that I would revisit
this ruling at
the end of the trial, once I had had a look at the entire evidence.
I later corrected the statement and required
the State to address me
on this issue before the end of its case, which it did, so that the
accused could know what the ruling
was before the close of the
State’s case (being mindful of the observations of the court in
S v Molimi
2008(3) SA 608 (CC) at paras 41 and 47).
I
took a more cautious approach particularly because the accused was
not legally represented and I wanted to have an opportunity
to listen
to other evidence by the State and take a decision after having
listened to all of the evidence of its case.  The
accused had
indicated during argument that the context of the utterances should
be taken along with other evidence because the
point that he was not
in his ‘normal and sober senses’ when making such
utterances to Fredericks was the issue around
which the whole case
centred.  In S v
Muchindu
2000(2) SACR 313 (WLD) at 316f
the court held that:
“
A
ruling on admissibility in a trial-within-a-trial is interlocutory,
and may be reviewed at the end of the trial in the light of
later
evidence
.”
See
S v Mkhwanazi
1966(1) SA 736 (A) at
742(H)-743(A). The court held further in
Muchindu
at 316g:
“
This
principle in itself shows that subsequent evidence in the main trial
may decisively affect the determination of the issues
in the
trial-within-the-trial.  If subsequent evidence may, why not
also earlier evidence?
”
I
must stress that I did not wait until the end of the trial, heeding
to the warning in
Molimi
supra
.  In
S v Ndhlovu
and Others
[2002]3 ALL SA 760 at para 19 the court referring to
S
v Ramavhale
1996(1) SACR 639 held that:
“
Ramavhale
makes clear that unless the State obtains a ruling on the
admissibility of the hearsay evidence before closing its case,
so the
accused knows what the State case is, he or she cannot thereafter be
criticised on the basis of the hearsay averments for
failing to
testify.
It also suggests,
rightly, that unless the court rules the hearsay admissible before
the State closes its case, fairness to the
accused may dictate that
the evidence not be received at all
.”
(Own emphasis)
Ndhlovu
was criticised in
Molimi
by holding that the admission of evidence late in the trial was not
prejudicial to the accused.  The principles stated above,
were
emphasised further in
Molimi
as
follows at para 38:
“…
The
Supreme Court of Appeal correctly acknowledged that vague provisional
rulings ‘may be prejudicial to an accused.
It conflates
the admissibility of the evidence with its weight and may leave an
accused unfairly in a state of uncertainty’.
The court
nevertheless found that the inexplicit and late admission of the
hearsay evidence was not prejudicial to the applicant
.”
The
court in Molimi went on further to state at para 41:
“
A
timeous and unambiguous ruling on the admissibility
of evidence in criminal proceedings is, as correctly contended by the
amicus, a procedural safeguard
.”
(Own emphasis)
Before
the close of the State’s case the State applied to have the
utterances admitted and for the Court to make a ruling
on this issue,
because the utterances were made spontaneously and voluntarily.
According to the State, the accused jumped
out of the vehicle and
started talking to Fredericks.  It was a spontaneous action from
the accused and it could not be said
that the words he uttered were
not made voluntarily.
According
to the State, the accused appeared normal and in his sober senses. He
was also not intoxicated.  The State contended
that the argument
that the accused was not in his sober senses fell away.  The
issue that the utterances were not done in
terms of the Constitution
was also diminished because if one had regard to s 35 of the
Constitution, a police officer has a duty
to explain constitutional
rights to a detainee or an accused person.  In this instance,
when the accused approached Fredericks,
Fredericks did not know what
the accused had done or was going to tell him.  He had no
knowledge of the particular incident
that the accused was involved
in.  It was therefore impossible for him to say “stop,
don’t speak” and start
informing the accused about his
rights.  Under these circumstances, it could not be said that
the accused’s rights to
a fair trial were infringed.
According to the State, having given a provisional ruling, the Court
could after listening to
the rest of the evidence of the State make a
ruling that the utterances were admissible, and in any event there is
nothing like
a provisional ruling.
The
accused on the other hand submitted that he could not think normally
like a reasonable normal person when he made those utterances
and
those utterances were stated without him being informed of his
Constitutional Rights.  According to him, Fredericks had

admitted that he was taught as a policeman that obtaining evidence in
a manner violating the constitutional rights of the accused
may be
inadmissible in a court of law.  The accused further submitted
that a person under a traumatic situation cannot be
regarded as
acting out of his will or voluntarily. He therefore disagreed that
the utterances were voluntary and submitted that
they must be
considered inadmissible.  Furthermore, leaving the firearm in
the manner he did in the vehicle, as a trained
policeman, showed that
he was not in his normal state of mind.
Having
considered the evidence and submissions made before the end of the
State’s case I ruled that the utterances were admissible
and
reasons were reserved.  For convenience I deal with my reasons
at this juncture even though the ruling was, in terms of
the
sequence, before the State closed its case after the witnesses for
the State had testified, but for the recall of one witness,
which I
deal with shortly.
When
the accused approached Fredericks, he simply got out of his vehicle,
threw up his hands and started talking.  Fredericks
had no idea
what the accused was going to say.  He was going about his work
and minding his own business when the accused
started speaking.
I am of the view that the words were indeed made voluntarily and
spontaneously most importantly.
The accused was not asked
questions prior to making such utterances.  There is also no
evidence that he was threatened or
induced by promise or threat by a
person of high authority before making the utterances to Fredericks.
There is also no evidence
that he was intoxicated.  The accused
does say he was not in his normal and sober senses. Whilst I view the
utterances made
as an admission as opposed to a confession, due to
the fact that the accused had open to him a defence, even though the
utterances
amounted to an admission of certain facts which could be
incriminating against him, I considered a factor that is ordinarily
taken
into account in confessions, which is whether the accused was
in his sound and sober senses when making those utterances.

According to DT Zeffert
et al,
South African Law of Evidence
(formerly Hoffmann and Zeffert), 2003 at 478:
“
The
test is whether the accused was in sufficient possession of his or
her understanding as to have known what he or she was saying.
It has been pointed out that this
does not require that an accused be in a state of quiet serenity free
of physical or mental discomfort
,
and confessions have been admitted despite the fact that they have
been made in a great temper, or in pain after suffering a bullet

wound, or in the state of nervous excitement
.”
(Own emphasis)
It
should be accepted that the accused was emotionally and
psychologically distressed when he uttered those words.  He may

have uttered the words without having reflected on the situation that
had occurred. That however does not make the utterances involuntary.
In
my view, the accused was aware of what he was saying albeit suffering
from emotional discomfort.  According to the observations
of
Fredericks, he appeared normal, although initially he was talking
very fast.  This should be expected from a person who
had just
experienced a traumatic encounter.
As
regards Frederick’s failure to explain the constitutional
rights to the accused, he had no knowledge about the incident
and
what the accused had done before he came.  According to s 35 of
the Constitution, a duty arises to inform a person of
the rights
listed in that section, who is arrested, detained or is an accused.
In this case, Fredericks did not know that
the accused was a suspect
when he got out of his vehicle, raised his hands and started
talking.  He could therefore not immediately
stop him and
promptly inform him of his constitutional rights. That was
impractical and impossible. Neither can it be said that
the
utterances were made in violation of the accused’s
constitutional rights nor that they should have been made after his

constitutional rights were explained to him.  It could not be
said that the admission of the utterances rendered the trial
unfair
or was detrimental to the administration of justice.
The
opposite is however true when it comes to the pointing out which the
State correctly stated was inadmissible.  In that
case
Fredericks knew that the accused was a suspect and ought to have
explained his constitutional rights before proceeding to
the pointing
out.
Ultimately
the accused and the State were not left to ‘range around
vaguely’ on the question of the ambit of the admitted
evidence
as the ruling was unequivocally made before the end of the State’s
case.  It would not have been in the interest
of justice to
exclude that evidence, and the accused could still raise his
defence.  The essence of it is to ensure that the
accused knows
what evidence is admissible or inadmissible before the end of the
State’s case.
To cure whatever
prejudice, after the utterances were ruled admissible, Fredericks was
recalled as part of the main trial, to allow
for questioning on the
words which he said the accused said to him.  I deal with this
evidence here for convenience, although
it was led at the end of the
State’s case.
RETURNING
TO THE MAIN TRIAL
:
Fredericks
testified that the accused uttered the following words:
“
Colonel
you must arrest me now, I just killed my ex-girlfriend.  We both
came from Bellville Court, she had an interdict against
me and that I
must hand in my firearm that was the instruction from the court.”
Fredericks
was cross-examined by the accused.  He was asked about the
statement he made during his evidence, when he said ‘he
further
explained’ as to what had led to the further explanation by the
accused.  He stated that he did not ask for
any further
explanation from the accused, the accused spoke continuously.
The words he mentioned were the accused’s
precise words.
He testified that he did not know the personal life of the accused.
He could not determine the accused’s
state of mind, to him the
accused appeared fine.  He emphasised, however, that he was not
a psychologist.
Continuing
with Fredericks’ other evidence in the main trial, Fredericks
testified that he went to the police station with
the accused where
he informed him about his rights and that he was being arrested for
murder.  The vehicle that the accused
drove to the police
station was still in the yard at the station.
He
took a statement in the presence of the accused.  During the
taking of the statement the accused requested to phone Colonel

Ntshingila, his superior.  He did not know what the conversation
between the accused and Ntshingila was about, as he was busy
with the
statement.  After writing his statement he waited for the
photographer.  When the photographer came he went
to the vehicle
that the accused had driven to the police station and explained to
the photographer about the vehicle and about
the firearm that was
lying in the vehicle.  The photographer took photos of the
firearm.  He then requested the photographer
if he could handle
the firearm after he had taken the photos.  At the time his
hands were covered with surgical gloves.  He
picked up the
firearm and saw that there was still a magazine in the firearm; he
placed the firearm on safety.  He took out
the magazine.  Whilst
he was opening the firearm there was a bullet in the chamber that
fell out.  He counted the bullets
in the magazine and there were
13 rounds of a 9mm firearm.  The firearm was then safe to handle
as he placed it on safety.
He also picked up a
magazine, that was empty, that was lying on the passenger side
because it was an exhibit. He took the firearm,
two magazines, 14 9mm
rounds and also the identify document of the accused and placed it in
a forensic bag, which he sealed in
the presence of the accused.
He
handed the exhibit in at the SAP13 register under 2505.  The
accused was present at the time the photographer took photographs
of
the vehicle and when the exhibits were taken, and was also present
when Fredericks took the photographer to the vehicle.
The 9mm
firearm belongs to the SAPS.  When booking exhibits into the
SAP13 he hands them in and the person in charge would
have to record
that the evidence had been handed in by a particular person.
SAP13 is an official register book of the SAPS.
He testified
that the photographs on photo 13 to photo 43 of exhibit “A”
were photographs of the vehicle that the accused
drove to the police
station.  He testified that photo 40 was a photo of the firearm
and the empty magazine which was on the
passenger side.
An
extract of the SAP13 register was handed in as exhibit “G”.
Fredericks testified that he completed the information
from column
one to four which recorded information such as the serial number, the
date on which he handed in the exhibits, the
place where the exhibits
were kept, which is the police station, the CAS number, the charge
and that the exhibits were captured
on the CAS system, information
that he handed in a 9mm Z88 pistol with serial number Q053330, 2 9mm
magazines; 14 9mm rounds and
1 police ID card.  There is also
information indicating that the exhibits handed in, in the SAP13,
were captured.  Also
information about himself, that he found
the exhibits in the vehicle of the suspect, details of the accused
and Fredericks’
signature that he handed in the property in the
exhibits.
There
is also a signature of the community service centre member who
received the exhibits.  There is also an indication that
the
exhibits were being received by the investigating officer and sent to
the laboratory.  There is also information that
the firearm was
transferred over to the firearm register 16/97.
A
clerk working in that section wrote about the transferring of a
firearm but he could not say who it was.  From his experience
as
the head of Vispol it is his duty to go through the SAP13 to see that
the firearm corresponds with the book itself.
He
testified that a PR test was done by members of the LCRC to find out
if the accused person handled the firearm.  This is
called a
residue test.  He could not say who did the PR test, but it was
done on the accused.  It was not done by the
person who took the
photos.  The time he was approached by the accused who drove his
vehicle to the police station was at
10am.  He recognised the
accused as a police officer because he had worked at the section of
Railway Police for about 26 years.
The accused was stationed at
Bellville Railway Police.
There
was lack of clarity as to the name of the supervisor whom the accused
requested to call, whether it was Captain Ntingila or
Ntshingila, and
this is probably an issue of the language and pronunciation by
Fredericks.
He
knew that the accused wanted to speak to Ntshingila because that is
what the accused told him.  He did not know what the
accused and
Ntshingila spoke about.  He confirmed that the motor vehicle
depicted in photographs 36 and 43 was the accused’s.
In
cross-examination he testified that the accused was a disciplined
member, very neat in his uniform and his private vehicle that
he
drove was very neat inside and outside.  When he asked the
accused whether he was in possession of the firearm, the accused

answered in the affirmative and when he looked through the window he
saw the firearm in the front seat.  He also testified
that in
terms of the Firearms Control Act 60 of 2000 (‘the Firearms
Act’) the firearm should be on the person, that
is, in the
person’s possession and specifically in the holster.  The
firearm was lying in the vehicle, which meant that
it was in the
control of the accused.  If the accused was found to be
negligent he could be charged internally for carelessness.
Each
and every police officer is trained to handle a firearm and how to
keep it safe.  The police officer must see to it that
the
firearm is safe and that the key of the safe is in his or her
control.  In terms of the
Firearms Control Act the
safe should
have two keys and any officer who wants to possess a firearm
afterhours should make an application for that and the
safe is then
inspected.  The police officer knows what the procedure is and
how to handle a firearm and where the firearm
should be kept.
The accused appeared to be normal when he approached him at the
police station.  When asked further
in cross-examination whether
or not it was normal for a person who had the training of the accused
to leave the firearm in such
an unattended manner, he responded that
because the accused knew the procedures pertaining to the safekeeping
of the firearm, as
a police officer he could have been charged
internally for his behaviour.  When asked whether the accused’s
firearm
was seized at any stage at Delft Police Station before the
incident took place, his answer was that he had no knowledge of
police
officers having visited the accused’s house and having
taken his firearm from his possession.  The person who reported

the matter to him was the accused.  There is a possibility that
someone could have notified the police like a member of the
public or
anyone.  He did not dispatch any member of the police while he
was at the station.  It is possible that the
people that were at
the scene first received a complaint without his knowledge and he did
not monitor the police radio at that
stage because he was outside the
vehicle having a conversation with the accused that morning.
The
next witness, Valericia Leslie-Ann Van Wyk (‘Van Wyk’),
testified that she was employed at the Delft Police Station.

She is not a member of the SAPS but a SAP Admin Clerk seeing to all
SAP13 exhibits in the SAP13 office.  She does not receive

exhibits or dispose of exhibits.  She carries over all the
firearms from the original transfer, i.e. the original SAP13
register,
to the firearms register.  She was referred to an
extract in SAP13 firearms register marked as exhibit “H”.

In the document is the detailed description of the exhibit handed in,
which is a 9mm Z88 pistol with serial number Q053330; 2 9mm
magazines
and 14 9mm rounds and one police identification card.  The
document also contains the name and address of the finder
and the
circumstances under which and the place where the exhibits were found
or seized, the suspect or the owner and the signature
of the person
handing in exhibits and the signature of the community service
member.  In the document it is written that the
finder of the
exhibits was Lieutenant Colonel Fredericks of Delft SAPS.  It is
stated that the exhibits were found in possession
of the suspect and
the suspect is Lindani Nakani, 36 years old.  The signature of
the person who found the exhibits is also
contained in the document.
The document also contains Van Wyk’s signature because the
firearms register was transferred
from the original register, which
is the SAP13 register.  Transfer means the carrying over of the
firearm out of the original
SAP13 register to the firearm register.
In this instance it will be transferred from exhibit “G”,
which is an
extract for the SAP13 register, to exhibit “H”,
which is an extract of the SAP13 firearms register.  All
firearms
that are booked in the SAP13 register must be transferred to
a separate firearms register and that is what transfer means, to keep

proper control and proper record of firearms because the firearms
differ from other exhibits.  When they go to the laboratory
and
come back they need to be booked back in the firearms register.
The
next witness was Martinus Johannes April (‘April’).
April testified that he was stationed at the Delft SAPS,
working as
an SAP13 exhibit official pertaining to all firearms and ammunitions
found.  His duties entailed receiving exhibits
from the
Community Service Centre (‘CSC’) which are then booked by
the members of the SAPS into exhibit registers and
to make sure the
exhibits are dispatched to the laboratory and returned to  where
they originated from as per instructions
given to him.  He has
worked for the SAPS for 13 years and has been performing the duties
of an SAP13 officer for the same
number of years.  His
handwriting appeared in column five and column six of exhibit “H”.
In column 5 entry
97 he wrote that on 8 July 2014 he booked out the
firearm to a Mr Lamla Dalisi of IPID Investigations and dispatched it
to the
Plattekloof Laboratory.  The document also contains the
signature of the investigating officer and the date that he entered,

1 September 2014, which is when he received the firearm or the
exhibit bag from the Plattekloof Laboratory.  He received the

exhibits back from the laboratory in Plattekloof and not from the
investigating officer.  On 21 September 2014 he received
a
disposal order to transfer the firearm to Bellville Railway SAPS, to
dispose of the firearm because it belonged to that unit,
he had to
dispose or transfer it to that unit.  He handed over the items
to Captain Erasmus of Bellville Metro SAPS.
The signature of
Captain AC Erasmus appears on number 4 column 6 of the document.
The thick black line appearing in the document
simply indicates that
he inspected the SAP13 register so that his commander could see which
exhibits are completely out of the
register.  This is the
practice that they use in their office to cancel it out.  The
accused did not have any cross-examination
for this witness.
The
next witness called by the State was Mogamat Sedick Davids
(‘Davids’).  Davids testified that he is employed
at
Imperial Logistics and Woolworths.  During 2014 he was a driver
still working for Imperial Logistics Registration Services,
still at
Woolworths.  On 3 July 2014 he came from work out of nightshift
between 10 and 11 o’clock and went straight
to bed.  In
about a quarter of an hour at home in bed he heard gunshots.  He
could not count how many gunshots he heard,
but it was a lot. It was
about 10 to 15 shots. He stood up and opened the door and saw over
the road there were people standing
around a vehicle.  He opened
the door and went to the scene.  He saw a woman behind the
driver seat behind the steering
wheel of the driver seat and could
not see that she was shot because he could not see the wound.
He saw the hands of the
woman, the arm and the body.  He could
not see there were bloodspots on her body and on the arms.
There were a lot of
people there, they tried to put the woman on the
passenger seat and then tried to start the vehicle.
They
said they want to take her to hospital but they could not start the
car.  He did not recognise any of the people that
were trying to
start the vehicle.  As they started the vehicle they asked him
to take her to hospital and then he walked away
to his house.
As he walked he looked around and saw them carrying a woman behind
him to his house where the vehicle was standing.
He turned
around and told them that he could not take the woman in his vehicle
to the hospital or day hospital because she was
badly hurt.
When they saw that he was not going to take the woman to a doctor or
hospital they just left her there in the
street.
A
few minutes later after that, a white vehicle came down the road and
someone got out and felt the pulse of a woman.  He,
that is the
driver of this vehicle, said she is gone and he got back into the
vehicle and drove off.  He did not see the registration
number
of the vehicle but he thought it was a private vehicle.  By that
time he was already inside the house standing behind
the security
gate until the police came and cordoned off the area.  He knew
this person that he saw sitting behind the driver’s
seat (and
badly injured) from seeing her and not by name or on a talking
relationship.  While the people were busy trying
to render
assistance she was still alive.  There were no intervals between
the shots, it was from one to however number, it
was like
“
ba-ba-ba-ba
finish and
klaar”
.  He
recognised the woman as the person who resided at the house where the
vehicle was.  The house depicted in photos
9 and 10 where there
is a vehicle is the house where the deceased lived.  The vehicle
that is depicted in photo 1 is his vehicle.
Davids marked photo
1 with a letter B with a red pen to depict his motor vehicle, which
is blue and white in colour.
In
cross-examination Davids testified that he lived at an address in
Magalies Street. His house was about three houses from the
deceased’s
house.  He started staying at that address in 2013.  He
never noticed any other person in that house.
He did not see
who committed the act to the deceased.  When he came out he did
not see any act happening and did not know
who committed that act.
He confirmed that he did not know what happened except what he heard.
The
next witness was Mogammad Shamiel Kariem (‘Kariem’).
Kariem testified that he is currently employed by the
Provincial
Government of the Western Cape, Department of Health Division, at
Tygerberg Hospital.  He has been in the employ
of the Department
since 2008.  As an employee of the Department of Health he is a
Senior Paramedic having been designated
in the rank in 2013 in
December.  His duties are to provide primary healthcare and
emergency assistance to victims or patients
in need, so in this
particular case his core duty was to assist a gunshot victim.
On arrival the patient was code blue and
was deceased.  His core
duty was to declare the patient dead.  He therefore filled out a
declaration of death form.
When he arrived at the scene the
patient was lying on the road on her back.  He walked up toward
the patient;  she was
pale, obviously deceased, and had most
likely bled internally or externally.  He viewed the patient’s
injuries and the
patient had sustained gunshot wounds towards the
abdomen and thoracic region on the left-hand side.  Information
came via
the community.  Any community member phones into the
dispatch centre.  Depending on the nature of the case involved
they
send the most senior and most qualified ambulance personnel to
the scene and those would be the paramedics if it is a gunshot
wound.
What they basically do is to assist at the scene.
If any medical assistance is needed they will initiate it.  If
not
they will do a declaration of death on scene.  If the
patient had signs of life they will make their way to the hospital.

They would attach a heart rate monitor as confirmation along with
other techniques they use to listen for a heart sound, breathing
as
well as looking at the general presentation of the patient.
Once they establish this, they will fill out 2 forms, which
are the
patient report form (which they log) and the declaration of death
which they hand over to the SAPS.  A declaration
of death was
handed in as exhibit “J”.  Kariem noticed entrance
and exit wounds on the patient.  They are
trained to find these
wounds.  He confirmed the person depicted on photo 5 and 6 was
the patient that he declared dead on
3 July 2014.  The accused
had no cross-examination for this witness.
The
next witness for the State was Benedict Terence Hill (‘Hill’).
Hill testified that he was a member of the
SAPS stationed at the
Ballistic Section of the Forensic Science Laboratory in the Western
Cape.  As a member the SAPS he had
12 years’ service and
had been working in the ballistic section of the Forensic Laboratory
for 6 years and 9 months. His
duties included identification and
examination of ammunition, fired exhibits and firearms.  They
also do crime scene examinations
where they attend crime scenes and
process the crime scenes.  Part of it is also microscopic
individualisation of exhibits.
All testimonies and
consultations are part of his daily tasks.  His position is that
of a Forensic Analyst.  He underwent
3 years in service training
covering all his work, has passed all the training and has been
declared competent to exercise his
duties.  He has been regarded
as an expert on ballistics.  He deposed to an affidavit
regarding his examination and findings,
which he signed.  In
regard to this matter he read his affidavit into the record stating
amongst others that on 3 July 2014
during the performance of his
official duties he examined a silver Toyota Yaris sedan with
registration number CA525710 at 24995
N2 Gateway
Section 24
Delft in
respect of Delft CAS140/07/2014. The intention and scope of his
investigations comprised vehicle examination and scene
reconstruction
photography.  He noted various holes appearing in the backrest
of the driver’s seat, marked A, the centre
console also known
as the glove box, marked B, entrance and exit holes at the front
passenger seat, marked C, a bullet entrance
hole inside of front
passenger seat, marked D, a bullet exit hole in the side of the front
passenger seat, marked C1 and a bullet
exit hole in the side of the
front passenger seat, marked D1.  One fired bullet retrieved
from underneath the driver seat,
and the bullet retrieved from inside
the centre console, was sealed in forensic bag numbers PA50007119000
and PA50007119001 respectively.
Upon
completion of the observations mentioned above he came to the
conclusion that the hole that was found in the backrest of the
driver
seat was caused by the bullet being fired from the front and outside
to the rear of the vehicle from the driver’s
side to the
passenger side with a downward trajectory and the end of the bullet
path unknown.
The
holes appearing in the side of the front passenger seat were caused
by the bullets being fired from the rear and outside to
the front of
the vehicle at the driver’s seat to the passenger’s side
with downward trajectory and the end of the bullet
path unknown.
Other
holes appearing in the side of the front passenger seat were
connected and caused by a bullet being fired from the rear and

outside to the front of the vehicle at the driver’s side to the
passenger’s side from a downward trajectory and the
end of the
bullet path unknown.  The damage (the entrance hole) mentioned
in the central console or the glove box could
be connected to either
of the holes caused by the entrance of the bullet in the side of the
passenger seat.
The
direction and trajectory of the bullet that caused the hole appearing
in the centre console could not be determined with certainty.
Hill
attended the autopsy performed on the black female by Dr Afonso with
reference WC 14/1552/2014 at Tygerberg Forensic Pathology
Service on
7 July 2014.
The
intention and scope of this forensic examination comprised the
terminal ballistics.
During the autopsy he
observed and documented the following:
1.
Multiple wounds with the appearance
of bullet entrance and exit wounds on the right arm of the deceased.
2.
Multiple wounds with the appearance
of bullet entrance and exit wounds on the right and left side stomach
area of the deceased.
3.
Multiple wounds with the appearance
of bullet entrance and exit wounds on the back and buttocks of the
deceased.
The
conclusion that can be drawn from the observations made during the
autopsy, is that the wounds were caused by shots from the
right side
to the left side of the deceased.
On 7 July 2014 during the
performance of his duties he received 2 sealed evidence bags from
case administration of the ballistic
section as follows:
1.
One sealed evidence bag with number
PA5000711901 containing the following exhibit:
1.1.One
9mm calibre fired bullet marked by him 128646/14/1.
2.
One sealed evidence bag with number
PA5000711900 containing the following exhibit:
2.1.One
9mm calibre fired bullet marked by him 128646/14/2.
On 11 July 2014 he
received six sealed evidence bags from case administration of the
ballistic section, namely:
1.
One sealed evidence bag with number
PAB000238695 containing the following exhibits:
1.1.One
9mm parabellum calibre Z88 semi-automatic pistol with serial number
Q053330, with two magazines.
1.2.Fourteen
9mm parabellum calibre cartridges not marked by him.
1.3.One
SAPS identification card with ID 7809185928089 and parcel number
70629048 not marked by him.
1.4.One
sealed evidence bag with number PA6002038139 containing one 9mm
calibre bullet marked by him 128646/14/3.
1.5.One
sealed evidence bag with number PA6002038140 containing one 9mm
calibre fired bullet marked by him 128646/14/4.
1.6.One
sealed evidence bag with number PA6002038141 containing one 9mm
calibre fired bullet marked by him 128646/14/5.
1.7.One
sealed evidence bag with number PA6002038142 containing one 9mm
calibre fired bullet marked by him 128646/14/6.
1.8.One
sealed evidence bag with number PA6002038145 containing three 9mm
calibre fired bullets marked by him 128646/14/7-/9 individually.
The intention and scope
of the forensic examination comprised:
1.
The examination and identification of fired
bullets;
2.
Firearm mechanism examination;
3.
Microscopic individualisation of fired
bullets.
He
examined and visually inspected the cartridges and found that they
each consisted of a cartridge case primer and bullet and were

designed and manufactured to be fired a centre fire firearm.
He
examined and tested the pistol and found that it functioned normally
without any obvious defects.  Ammunition used for test
purposes
was marked as 33OTC1 and 33OTC2 on the cartridge cases and 33OTP1 and
33OTP2 on the bullets and was fired in the pistol.
He examined
and tested the mechanism of the pistol and found it to be
self-loading but not capable of discharging more than one
shot with a
single depression of the trigger.  He also found that the device
was manufactured and designed to discharge centre
fire ammunition.
He
examined the fired bullets and compared the individual and class
characteristic markings transferred to them by firearm components

during the firing process, using a comparison microscope and found
the bullets were fired from the firearm.
The
conclusions arrived at were based on facts established by means of an
examination process which required knowledge and skill
in forensic
ballistics.  On 11 July 2014 he sealed the exhibits in the
evidence bag with number PA5000159242K and filed it
in the case file
with lab 128646/14.
Exhibits
and the test mentioned were sealed in an evidence bag with number
PA5000159235 and filed in the case file with lab 128646/14.
The
exhibits were sealed in an evidence bag number PW4000438051 and
handed over to the case administration of the ballistic section.
He
retrieved the fired bullets underneath the driver’s seat.
With the exhibits there is normally a covering letter attached
to the
evidence bag and the investigating officer’s particulars are
usually on there.  He is not certain who brought
the exhibits
but there was a covering letter with the exhibits that were forwarded
to the laboratory in Plattekloof.
He was referred to a
letter handed in as an exhibit “L” which he confirmed to
be the letter accompanying the exhibits.
He was not sure who
wrote the letter but it appeared that the letter was signed on behalf
of the investigating officer by a person
with the name of Lamla
Tyhalisisu.  He also deposed to an affidavit which he read out
in court as part of his evidence.
In the affidavit he stated
that he received a sealed bag with number PA3000904653 from the case
administration of the ballistic
section containing a number of items,
being:
1.1
One 9mm parabellum calibre fired cartridge
case marked as 128646/14/CS1.
1.2
He received sealed bag PA5000659887
containing one 9mm calibre fired bullet marked by him 128646/14/CS2.
1.3
He also received one sealed evidence bag
number PA5000659886 containing one 9mm parabellum calibre fired
cartridge marked by him
128646/14/CS3.
1.4
There were various other 9mm fired bullets
that he referred to and cartridges.  It is not necessary to go
through each of them
because the evidence was not challenged by the
accused and it is apparent on the record.
The
intention and scope of this forensic examination comprised the
examination and identification of fired cartridge cases and fired

bullets and microscopic individualisation of fired cartridges and
fired bullets.
On
28 July 2014 he found in ballistic case filed with lab 128646/14 also
with Delft CAS140/07/2014 and a sealed evidence bag with
number
PA5000159235M containing two 9mm parabellum calibre fired cartridge
cases marked 33OTC1 and 33OTC2 respectively and three
9mm calibre
fired bullets marked 33OTB1, 33OTB2 and 128646/14/1 respectively.
He
examined the fired cartridge cases and fired bullets and compared the
individual and class characteristic markings transferred
to them by
firearm components during the firing process using a comparison
microscope and found the cartridge cases mentioned were
fired in the
same firearm as the test cartridge cases.  The bullets were
fired from the same firearm as the test bullets.
The
conclusion was established by means of an examination process which
required knowledge and skill in forensic ballistics.
The
exhibits and tests were disposed on 30 July 2014 where the exhibits
were sealed in an evidence bag with number PA50001592218
and filed in
the case file with lab 128646/14.  On 30 July 2014 the test and
the exhibits were sealed in an evidence bag with
number PA50001592221
and filed in the case file LAB 128646/14.
The
exhibits comprised of 15 fired cartridges and 4 fired bullets.
The 4 fired bullets could have been together as ammunition,
bullets
in the cartridge cases.  The bullets were fired by the firearm,
but before they were fired they could have been together
as
ammunition components, but all of them were fired from the same
firearm.
He
came to the conclusion that the 19 exhibits that he received, the
firearm cartridge cases and the fired bullets, were compared
with the
test he made on exhibit “K” and they were fired from the
same firearm.
The
firearm that he received, examined and investigated was a 9mm Z88
semi-automatic pistol according to the description in exhibit
“K”.
This firearm is mostly used by members of the SAPS.  When it is
loaded, a magazine can load 15 cartridges
and if one loads that
magazine into a weapon one can also load one round into the chamber
of the weapon.  So in total a fully
loaded firearm under normal
circumstances can have up to 16 rounds ready in the firearm to fire.
If it is proven that there
was only 1 firearm and 2 magazines on the
scene, then he would agree with the question that was put to him by
the prosecutor that
if a firearm carries 15 rounds, the fired
cartridges that were collected could have been fired from the empty
magazine that was
found next to the firearm.
He
could not say whether all the shots were fired from the specific
magazine at once but it was possible.  The accused did
not have
any cross-examination for this witness.
The
next witness for the State was Bongeka Mhambi (‘Mhambi’).
Before the commencement of this witness’ evidence
the
prosecutor indicated that he would apply to the Court for the
admission of hearsay evidence in terms of the Law of Evidence

Amendment Act 45 of 1998 (“The Law of Evidence Amendment Act”)
Section 3(1)(c), in respect of evidence of certain of
the witnesses
he would like to call.  I ruled that such evidence must be dealt
with as and when the State sought to lead the
evidence of the
particular witness. Save to state that having enquired from the
accused and having explained the requirements of
the law with regards
to the admissibility of hearsay evidence, he indicated that he had no
objection to this witness, Mhambi, being
called, because she was well
acquainted with the relationship between the accused and the deceased
and would reveal exactly what
took place. I decided that the State
should address me on the admissibility of this evidence in view of
the fact that the accused
was not legally represented.  I still
required that the State should satisfy the Court that it was in the
interest of justice
that this evidence be admitted.  The Court
provisionally allowed the evidence with the view to allowing the
State to satisfy
the Court that all the requirements in terms of the
relevant section 3(1)(c) had been met at the end of the State’s
case.
I deal more fully with the issue of hearsay evidence
later in the judgment.
Mhambi
testified that the deceased was her friend and her manager at the
Refugee Centre at Home Affairs.  They met in 2010
when Mhambi
came to Cape Town.  She knew the accused because the accused was
her friend’s boyfriend.  According
to her knowledge the
relationship between the accused and the deceased started in 2010.
She came to know about this relationship
because she was informed by
the deceased of a young man that she was in a relationship with.
She first saw the accused in
2010 when he came from work.  They
met at the KFC where they picked the accused up with the deceased’s
vehicle.
The deceased told her that she looked up to the
accused.  The accused and the deceased stayed together at
Kensington from
2010.  According to what she was told by the
deceased their relationship started off well.  Mhambi stayed in
Bellville
while the deceased lived in Kensington.  She would
normally get a lift from the deceased who would drop her off in
Kensington
and then she would take a taxi home.  Before catching
a taxi they would sit together and talk for about an hour and from
there
she would go home and then meet the deceased the following
day.  The deceased informed her that the accused would complain

about why it took her so long for her to get home, questioning how
long it took from Maitland to Kensington.  The deceased
informed
her that the accused told the deceased that she valued friends more
than him.  In 2011 the deceased fell ill and
she landed up in
hospital.  Mhambi met the accused at the hospital a couple of
times until the deceased was discharged.
The accused and the
deceased continued with their relationship and they still stayed
together at Kensington.  In 2012 they
moved to Delft.
During the course of 2012 they would have their arguments and the
accused left Delft towards the end of 2012
to live at the barracks in
Pinelands.
An
example of their arguments happened when a relative of the accused
passed away in the Eastern Cape.  They wanted to go to
the
burial with the deceased’s vehicle. They first had to service
the vehicle before they left and the accused had promised
that he
would pay to have the vehicle serviced.  The deceased informed
the accused that since the kilometres were close to
have the vehicle
serviced for free at a Toyota dealership, he did not have to pay.
They left for the Eastern Cape without
servicing the vehicle with the
deceased saying that she will only service the vehicle when they
returned.  The accused gave
money that was to be used to service
the vehicle to the deceased and when they came back from the Eastern
Cape he had no money
with him.  It is then that the argument
started that she did not support him at the stage when he had to go
to the funeral.
The deceased told her that the accused insulted
her saying she was evil.  This incident took place in 2012.
There is
a stage where the accused went to their workplace in 2012
when they were about to knock off from work.  As she was already

out of work she heard someone calling her and it was the accused
standing next to the Avanza.  She learnt from the deceased
that
the reason the accused had moved out was because of the arguments
that they normally had.
When
the accused came to the workplace in 2012 he inquired from her where
the deceased was. She informed him that the deceased had
left the
workplace earlier because she had to go to the Eastern Cape.
The accused informed Mhambi that he was going to take
Mhambi home.
Whilst they were on their way back home he informed her that he had
caught her friend, the deceased, with a
man at their house.  She
then enquired from the accused about what the accused saw the
deceased doing with this man because
according to the deceased the
man was just a friend of hers.  The accused informed Mhambi that
her friend had not told her
the truth.
In
2013 she was told by the deceased that the accused punctured the
tires of her vehicle.  She came to know about this because
the
deceased would drive from Delft to Parow to pick her up for work.
The deceased told her she had to take a taxi to work
because the
tyres of her vehicle were punctured.  The deceased told her that
she suspected the accused because the accused
wanted to get her
stressed out.  The accused had been complaining about the man he
found with her in the house stating that
he did not believe that the
man was not her boyfriend.  At one point, the deceased sent
Mhambi pictures of her legs on the
phone.  She asked the
deceased what had happened and the deceased told her that the accused
assaulted her by trampling on
her legs during an argument about the
boyfriend.
The
deceased informed her that she was afraid that if she went to the
doctor a case might be opened and she was reluctant to do
that.
The deceased did not open a case but went to work with pants on so as
to hide the injuries from their colleagues.
One day as they
were at work the accused went to their place, Mhambi just greeted and
left with the deceased. This was in 2013
after the assault had taken
place.  When the deceased came back from meeting with the
accused she informed Mhambi had that
the accused had come to
apologise to her.
Still
in 2013, the deceased informed her that the accused had gone to see
her at their home to show her documents that he wanted
to be
transferred to the Eastern Cape but that he was not being given the
transfer that he wanted.  According to the deceased,
the accused
handed his firearm to her and told her that the best thing was for
her to kill him.  The deceased informed Mhambi
that she did not
take the firearm; the accused then left.
One
time the accused arrived at their house Mhambi was there.  He
was still dressed in police uniform.  The accused had
something
in his hand like a file.
He
wanted to speak to the deceased. He walked past and went to the
bedroom.  At this stage Mhambi and the children were watching
TV
whilst the deceased was busy cooking.  The deceased did not
follow the accused immediately.  The accused stood at
the door
of this bedroom and told the deceased “I wanted to speak to
you”.
The
deceased then went to the bedroom, Mhambi heard the noise as if
someone was calling her. She dropped the volume of the TV and

listened but could not hear anything.  She heard something like
a commotion as if people were fighting.  She peeped through
the
bedroom door because it was not closed.  She found the deceased
lying on her back and the accused on top of her, holding
her.
The deceased asked Mhambi not to come in because the accused was
trying to commit suicide and that Mhambi should go
and call members
of the public.  The deceased told Mhambi that she had shoved the
accused’s firearm under the bed and
she could feel that he was
going to overpower her.
As
Mhambi was about to go and call for help a young man approached and
she asked him to come and assist.  The deceased followed
her to
a neighbour’s house.  At the neighbour’s house they
closed themselves in the bedroom and called the police.
They
only went out of that house after they heard that the police van had
arrived.  The police wanted to know what was going
on and they
explained to them that the accused wanted to commit suicide.
They then wanted to know where he was and Mhambi
told them that he
was still inside the house.  The police called the accused and
he came out. This incident happened in 2013.
After that
incident the accused went home to the Eastern Cape.  The next
morning Mhambi and the deceased went to the accused’s
workplace
in Bellville to speak to a person by the name Butsi or Butho because
the deceased wanted advice on what she could do
because she did not
want to open a case against the accused.  They did not find the
person that they were looking for.
In
2014 the deceased called her and informed her that she had locked
herself inside her bedroom and the accused was there.
She asked
Mhambi to call the police.  Mhambi called the police and they
went to the deceased’s house.  According
to the deceased
after the police had arrived at the house the accused left.  At
some stage in 2014 she received a phone message
from the accused
informing her that her friend was filthy in that she infected him
with AIDS.  She did not answer him back;
she only showed the
message to the deceased’s sister.  She knew that the
friend the accused was referring to was the
deceased because the
friend he would talk about when he spoke to her was the deceased.
Mhambi
went to stay with the deceased at the deceased’s house in March
2014.  They stayed there together and the deceased
informed her
that she was afraid of the accused and had taken the decision to
obtain a protection order against him.  In June
she and the
deceased went on leave at the same time.  When they returned
from leave the deceased had to go to court for the
protection order,
if her memory served her well that should have been on 3 July 2014.
The deceased had a temporary protection
order at the time or an
interim protection order and the deceased informed her that she had
to go to court again.  She came
to know that the protection
order was against the accused.  The day before she had to go to
court the deceased told her that
she just had a gut feeling that the
accused was going to kill her and he would kill her in court.
She informed the deceased
that the accused will never have guts of
doing that in front of the public because there would be witnesses.
She then wanted
to know from Mhambi what they were going to do with
the children, (i.e. the deceased’s two children).  Mhambi
told the
deceased that she must make a will so that they would know
what they should do with the children.  The deceased said no,
she
was not going to make a will at all, people that are left behind
will see what to do with the children.  On the day that the

deceased had to go to court Mhambi received a call informing her that
the deceased was shot.  In cross-examination Mhambi
testified
that when she met the accused for the first time she did not know
where he lived permanently.  It was the deceased
that told her
that she lived with the accused at 10
th
Avenue in
Kensington.  The deceased had informed her that the house was
hers.  She had visited the accused and deceased
in Kensington.
When she first met the accused he appeared to be a very supportive
person towards his partner.
She
made a statement to the police when they visited her at the
workplace.  She confirmed that the signature that appeared
in
the statement was hers.  A police officer took a statement from
her and wanted to type it; he came back and read it to
her.  The
accused asked Mhambi about a scratched out section that was contained
in her police statement.  She answered
that a typed statement
contained a part that differed from what she told the police. They
scratched it out to correct it and she
had to initial that portion.
Having been questioned about the statement the witness stated that
she was informed by the deceased
that the accused had gone to her
house and they argued but she did not inform her what the argument
was about and that the accused
assaulted her.  The accused put
to the witness that he was dissatisfied with the part of the
statement that was scratched
out because he did not understand why
the police would type something that was different to what Mhambi
told them.  The statement
of Mhambi was handed as exhibit “N”.
Mhambi
testified further that she had no knowledge of any stage where the
deceased and the accused broke their relationship.
She did not
know what triggered the text message from the accused that her friend
was a whore and had infected him with AIDS.
She did not know
the reason why the accused sent such a message. He never told her.
The deceased was assaulted in 2013 and
there were messages that were
sent to the deceased by the accused and the deceased would inform her
about those messages.
When asked about what she meant by the
word ‘dumped’ which appeared in her statement, namely,
“Lindani was being
dumped by Busiswa”;  she
responded by saying that the deceased told her that when the accused
moved to the barracks
he informed her that the distance would
actually allow her the freedom that she needed and it would have been
over between them.
She never heard anything about breaking up.
She did not know about any text message that the accused sent to her
directly after
he allegedly found out about the deceased’s
unfaithfulness towards him.  She conceded that the deceased told
her that
she was not afraid of the accused.  It was put to her
that the reason that the deceased mentioned that she was not afraid
of the accused was because the accused had not yet known the names of
her boyfriends which the deceased slept with in the accused’s

house.  Mhambi testified that she had no knowledge of what the
accused knew about the deceased’s conduct.  When
Mhambi
was being driven by the accused from her workplace, the accused told
her that he caught the deceased with a man “romancing”,

the accused told her he caught this young man with his head between
her legs.  She could not remember what her comment was
when he
told her about this but she initially said that she had no knowledge
of that. In her police statement Mhambi mentioned
that the accused’s
firearm was taken from him due to the abuse by the accused.  She
elaborated on this issue by stating
that the deceased told her that
someone from Pretoria came and took the accused’s firearm.
It was put to her that that
information was incorrect.  The
accused mentioned that his firearm was taken because he submitted his
sick note from the doctor
that cited stress and that had nothing to
do with the deceased. The accused put to Mhambi that he was
confronted by the deceased
regarding the issue of the tyres in 2014,
Mhambi mentioned that she heard about the incident about the tyres
being punctured in
2013.  It was also put to her by the accused
that the accused told the deceased that it must have been her
boyfriends that
she had been sleeping with in his house that must
have been fighting with her there.  Mhambi testified that the
deceased mentioned
that it was the accused, although she did not see
him puncturing the tyres.
Mhambi
testified further that the deceased had informed her that whilst they
were living together, the accused paid the rent whilst
she was buying
groceries.  This was apparently an arrangement that the parties
had agreed upon.  She was however informed
by the deceased that
the house that was in Delft was bought by the deceased; the deceased
did not count the accused in on that.
It was put to her that
the accused co-owned the house with the deceased by virtue of his
contribution towards the renovation of
the house and the household in
general.  Ms Mhambi responded by saying that the person who
could answer as to why she saw
the house as hers was the deceased.
She
could not comment on the allegations that the deceased continued to
build a house at her Eastern Cape home whilst the accused
was paying
the rent for them in Kensington thereby progressing her home while
the accused was being used to pay the rent in Cape
Town.
She
testified that the accused, having observed the mistakes that he
mentioned about the deceased, he should have left her.
She was
informed by the deceased that at one stage, the deceased had opened a
case against the accused which she withdrew, if her
memory served her
well. That she should not be confused with the application of the
protection order.  She was challenged
about what she meant in
her written statement when she said that the deceased later told her
that she was afraid of the accused
as the abuse was escalating, she
stated that the abuse she was referring to was the assaults by the
accused.  She confirmed
that she received a message from the
accused that her friend had infected him with AIDS.  She could
not recall a message from
the accused stating that she thought that
the accused would not found out about the deceased’s
unfaithfulness.  The
accused found it strange that Mhambi could
not remember this message. When asked about why the deceased wanted
the accused to be
disarmed she stated that it was because the
deceased was afraid because she did not know what the accused would
do with the firearm.
She only heard about the HIV issue from
the accused.  She showed the deceased the message that came from
the accused about
her HIV status but the deceased did not comment.
If the deceased knew that she was HIV positive maybe she did not want
her
to know about her status as she did not mention anything about
it.
The
deceased told her that the accused at one point went to her house.
When she did not open the door he went to knock at the window.

When she did not open he broke the window.  She had no knowledge
about the accused’s suspicions that there was a high

possibility that the deceased was with one of her boyfriends that she
used to sleep with in the house and hence she did not open.
She
mentioned that the person who would be able to answer that was the
deceased.
She
also could not answer on the allegation that the deceased never loved
the accused but was using him.  She once again stated
that the
only person who could give that answer was the deceased.  She
repeated by stating that the deceased never mentioned
the word
‘dumped’ to her but said that maybe now that the accused
had gone to live at the barracks he was going to
leave her alone.
When
asked to clarify what she meant about what she was referring to in
her statement when she said the accused became jealous of
the
deceased, she mentioned that it was at the stage when the deceased
informed her that the accused was asking her why she came
home late
and how long it took from work in Maitland to Kensington.  She
never heard of the accused lying in hospital because
of the abuse
that he allegedly received from the deceased.  She confirmed
that she only knew the relationship between the
accused and the
deceased from the deceased’s point of view and she only knew
what she was told.  The deceased mentioned
to her that she had
made an application for an order against the accused but she did not
tell her what was stipulated in that order
or what the conditions of
the order were.  Mhambi confirmed that she did mention in her
written statement that:
“
...when
the abuse was continuing, even after she was dumping him she decided
to apply for an interim against him.  On the day
she passed
away, she was at court following the interdict process.”
She
testified that the abuse she was referring to was the assault which
she conceded took place in 2013.  She was unable to
confirm
whether there were any other assaults closer to the time or leading
to the deceased applying for an interdict against the
accused.
She did not remember the deceased mentioning to her in 2014 that she
was assaulted.  The continuation of the
abuse that she mentioned
in her written statement related to the 2013 assault.  She
conceded that the reason for the deceased
applying for the interim
protection order was not for the continuing abuse as she mentioned in
her written statement.  She
however maintained that she did not
know the reason why the deceased had applied for the interdict.
She
conceded that when the deceased lay in hospital the accused was the
person who called everyone pertaining to the deceased’s

situation.  The accused put to her that as a friend of the
deceased, Mhambi should have spoken to her friend and advised her

about things that she was doing wrong and that could have avoided the
situation that the accused finds himself in.  Mhambi
testified
that she did not understand why the accused was blaming her.
Furthermore the deceased had not relayed things to her in
the manner
the accused was putting to her in court.
The
next witness of the State was Nomvuyo Centane (‘Centane’).
The State advised the Court that this witness would
also lead hearsay
evidence in the same manner as the previous witness Mhambi.  The
Court ruled that her evidence will be dealt
with in the same manner
as Mhambi’s evidence.  Centane testified that she was
employed by the Department of Home Affairs.
The deceased was
her younger sister who came right behind her.  She knew the
accused in this matter because he was her younger
sister’s
partner.  Their relationship started in 2010.  Her sister,
the deceased, was married and had problems
in her marriage. Her
husband would assault her and come home late.  She was informed
by the deceased that whilst the deceased
was still in her marriage
she and the accused would call each other.  The deceased told
her that she and her husband stayed
in separate bedrooms.  She
informed her that the accused advised her to get out of the marriage
because she would be in danger.
The deceased then left this
marriage.  She went to stay with the accused at a flat in
Kensington.  Whilst they were staying
at the flat in Kensington
they had their own personal arguments. When they had these arguments
the accused would leave and go to
the nearest police station.
She was not present when these arguments were taking place in
Kensington but her sister would
tell her about what had happened.
Whilst they were having arguments they would quarrel, raise their
voices and mostly it
was about the motor vehicle that belonged to the
deceased.  The deceased would argue that the accused could not
just take
the vehicle without her permission.  She however could
not remember each and every argument that they had.  When the
relationship started it started well. It was on and off.  They
stayed together at Kensington and from there they moved to Delft
to
rent. And that was in 2011.  Whilst they were renting at their
house in Delft they also had arguments.  There was
a stage when
the deceased informed her that the accused had to go to a funeral of
his relative in the Eastern Cape.  He then
borrowed her motor
vehicle and money.  According to the deceased she refused to
give him money informing him that she had
no money.  He then
asked her how she could say that she did not have money when he had
been paying rent for the flat.
He said that he knew that the
deceased had money in the bank. The deceased informed her that she
informed the accused that the
vehicle that she had given him was
enough.  After their trip to the Eastern Cape the deceased and
the accused continued staying
together.
In
January 2011 the deceased fell ill and was admitted at the Melomed
Hospital in Bellville.  Whilst the deceased was in hospital,
the
accused was very supportive. The deceased was in a coma for about two
weeks.  One would have thought that the accused
was working at
the hospital because he would just report for duty at his work and go
straight to hospital.  Her family would
hear everything about
the deceased’s condition from the accused.  The accused
made his own investigations and wanted
to find out from the doctor
what was wrong with the deceased.  The doctor informed him that
he drew blood from the deceased
and found that she was HIV positive.
After the deceased was discharged from hospital the accused inquired
from her why she
did not inform him about this.  According to
the deceased she informed him that she was not yet ready to tell him
or talk
about it.
The
deceased told her that she informed the accused to use a condom and
he refused.  The deceased further informed her that
the accused
went to test himself and found out that he was negative.
According to the deceased the accused informed her that
he will never
sleep with a person whom he loves using a condom.  According to
the deceased she and the accused stayed together
and never used a
condom.
In
the middle of 2012 the accused and the deceased had arguments because
the accused suspected that the deceased had affairs.
He did not
want any friends close to her.  The accused would tell her that
she valued friends more than him.  He would
also say she would
go to Mzoli’s Place and leave him behind at the house.
The accused left and went to stay at the
police barracks.  The
deceased said she was quite happy about him moving out as she thought
the relationship would work well
if they no longer stayed together.
She did not know what circumstances led to the accused moving out of
their common place.
The deceased told her that maybe the
arguments would cease to exist if the accused was no longer there.
The accused continued
to stay in Pinelands but according to the
deceased he would go to her at night.  According to the deceased
he wanted to find
out whether there was no man around at her place.
Towards the end of 2012 the deceased told her that she was separating
from
the accused because she had had enough of him.  She had had
enough of the way that he was treating her.  The deceased
also
wanted a transfer, even if it was at the same level, because she
wanted to get away from him.  She tried applying in
Durban but
she was not successful and in the Eastern Cape as well but she just
wanted something that would move her out of Cape
Town.  When
asked whether by separation she meant termination of the relationship
or just taking a break from the relationship.
Centane
testified that towards the end of 2012 the deceased had told her that
it was over between her and the accused, she
had had enough.
She does not know what happened but in 2013 the accused and the
deceased were together again for a while.
She thinks it was for about
a month or less.  At that time the deceased informed her that
she had forgiven the accused.
The deceased and the accused
separated again and they never went back together.  She was told
by her sister, the deceased,
that there was no peace in their
relationship because most of the time they were arguing.  The
deceased informed her that
the accused would call her a whore and
that they would not just separate because he came to Cape Town
because of her.  He
also would inform her that she had AIDS and
that she had infected him.  According to the deceased he also
informed her that
if she was not in the relationship with him then no
other person would get her.  Although they were separated in
2013, the
accused did not stop insulting her; he would send her
messages, some of which the accused would send to Centane.  She
could
not remember the content of all those messages but they were
along the lines that the deceased was a whore and that she had
infected
the accused with AIDS and that she had used him. The accused
sent these messages to her.
Still
in 2013 the accused assaulted the deceased in front of the children.
He trampled on her leg with boots and it turned
green to black.
He did that on her face as well, close to her eyes, which had a
blackish mark.  The deceased called
her and informed her that
she was assaulted by the accused.  At the same moment the
accused called her and informed her that
he was on his way to her and
that the deceased was on her way to open a case against him.
The accused came to fetch her with
his own vehicle and she went with
him to Delft.  When she got to Delft she could see her sister’s
leg was swollen and
black and she could hardly walk.  She wanted
to know from the deceased what happened because she wanted to hear
her side of
the story.  The deceased informed her that as usual
the accused came there and insulted her and she did not keep quiet,
she
responded back, insulting him as well. He then assaulted her.
The
deceased further informed her that she was going to withdraw the case
against the accused - apparently she had laid a charge
against him.
Centane then left Delft.  Her sister informed her approximately
the next day or two that after the incident
she had withdrawn the
case.  The deceased informed her that the accused’s
relatives had gone to her from Langa. They
apologised and begged her
to withdraw the case because the accused was a breadwinner.  The
deceased said it was not her intentions
to let the accused lose his
job because she was also aware that the accused was a breadwinner.
Still
in 2013 the accused called the deceased into the bedroom.  The
deceased’s younger daughter was very close to the
accused.
When the deceased was called into the bedroom by the accused this
younger daughter followed.  According to
the deceased whilst in
the bedroom the accused told her to kill him and he showed her the
firearm; the deceased refused.
After that the accused informed
the deceased that he was going to commit suicide and he was going to
do that in front of her.
He said people and relatives would
want to know what happened and this would remain with the deceased
for the rest of her life
and she would never forget about it. The
deceased informed her that the accused took the firearm and placed it
in his mouth.
The deceased then struggled with him because she
wanted to remove the firearm from him.  At the end she was able
to remove
it from him.  The firearm fell onto one side and the
deceased was able to run away with Mhambi, who was also present.

Mhambi and the deceased ran and locked themselves in the neighbour’s
bedroom.  She did not know who had called the police
between the
two of them but the police were called and they came.  She did
not know what the police did but the accused left.
The younger
child was present when this happened.  The child mentioned to
her teacher at crèche that her father had
a firearm which he
placed in his mouth.  The deceased informed her of what the
teacher said.  The teacher then informed
the deceased that this
was domestic violence and that she could not leave things to happen
like that.  All this information
she heard from the deceased.
In
2014 the accused would call the deceased but she would refuse to
answer his calls.  If she did not answer his calls he would
send
her rude messages and that was a continuing thing.
Another
incident took place in 2013 when the accused and the deceased where
living together for a short period.  According
to the deceased
the accused slept over at the house and requested the deceased to
accompany him, but she refused.  The accused
left and then came
back.  On his return the door was open and he came in. At that
time she was seated in the company of another
young man and they were
sitting on the couch.  The accused also informed Centane about
the young man that he had found at
the house.  According to the
accused the young man had an affair with the deceased and the
deceased informed her that it was
not the case,  the young man
was just a man that she knew.  The accused told her that the
young man was about to lick
the deceased because his tongue was out
and the deceased had opened her thighs.  The deceased denied
that.  The accused
said this was the deceased’s
boyfriend.  He insulted her saying that she was a whore.
Still
in 2013, at some stage the accused called his neighbour and opened
the drawer showing him pills whilst insulting the deceased
saying
that she had AIDS, that she was sick and was hiding her ailment.
At that stage there was no relationship at all between
him and the
deceased.  He continued insulting her stating that he had come
to Cape Town because of her and she had infected
him with AIDS and he
rented the flat with her whilst he was paying less money than her.
In
2013 the accused sent Centane messages that he was sending to the
deceased.  He would insult her and at times he would call

Centane until his airtime was finished.  During those calls he
would complain to her about the deceased.  This issue
(the
sending of the messages) happened in 2013.
Messages
that were sent by the accused in 2014 were even more or less the same
as in 2013 where he would insult the deceased accusing
her of
infecting him with AIDS and that she was a whore and that she had
used him and that he regretted meeting her because if
he did not meet
her he would have finished building the house at his homestead.
In
2014 the accused stopped reporting to her as he did in 2013.
She then told the deceased:
“
There
is something that he wants to do, this person might kill her.”
At
some stage in 2013 the accused had been knocking on the window and
the deceased did not open.  He knocked at the window
until it
broke and that was the bedroom window where the deceased normally
slept.  The deceased woke up with the broken window
and
suspected that it was broken by the accused.
In
2014, it could have been towards the end of May or the beginning of
June, she visited the deceased.  The accused came in
without
knocking. He came in and started shouting like he would normally do.
He said he wanted his money and that she had
used him.  The
deceased told him that he was making a noise.  She went into the
bedroom whilst he was shouting.
The deceased went to the
bedroom and locked herself in.  The accused did not sit down but
stood there shouting.  Centane
asked the accused what he
actually wanted from a person who was a whore.  She told the
accused that there were so many girls
out there and if she was in the
accused’s shoes she would have left the deceased.  The
accused did not answer her, he
just continued saying that the
deceased used him.  He spoke about his money and that he came to
Cape Town because of her.
She asked these questions to the
accused because her sister had locked herself up in the bedroom.
She and the accused were
at the front room of the house.  While
she was sitting there at the house she saw police coming in.
When the police
came the deceased came out of the bedroom.  When
the accused wanted to speak to the police, the police told him that
he was
not the complainant.  The accused then went into the
toilet but as he was about to get into the toilet the police pulled
him.
The police wanted to know what he came there to do.
The accused said it was his house.  The police instructed him to

leave.  The police informed the deceased to have her doors
locked at all times.
During
the June holidays in 2014, the deceased left for the Eastern Cape and
left the children with Centane.  The deceased
had a feeling that
she could not trust this person because he could also kill the
children.  Although she worked together
with the deceased they
did not see each other all the time.  The deceased came to her
on a particular day and told her that:
“
...this
man was going to kill her. And he was going to kill her by using a
firearm.”
She
knew about the protection order that was obtained by the deceased
against the accused for domestic violence.  The deceased
told
her around April or May that she had taken a decision to take out an
interdict against the accused.  She was told by
the deceased
that the house the deceased was staying at was bought by the
deceased.
In
cross-examination she testified that the accused was jealous of his
girlfriend and he did not trust himself.  Centane was
confronted
with the police statement that she made.  The copy that the
accused had did not contain a signature.  She
confirmed that she
had signed the statement immediately after the typed version was
given to her.  She could not answer how
it came about that the
accused had received a copy of the statement that did not contain a
signature of the deponent.  She
confirmed that the accused was
very generous to the deceased but could not answer the question that
was posed to her of why then
would the deceased have the nerve to
sleep with boyfriends in the accused’s house.  According
to her that was for the
deceased to answer, because Centane did not
live in Delft.
She
was asked whether an abusive man would leave a woman in a house and
go and sleep in garages or other places because of being
insulted by
her, as was mentioned by Centane in her police statement.
Centane responded by saying that she would not be able
to answer that
as she never caught the deceased sleeping with a boyfriend in the
accused’s house.
Centane
disputed that the house the deceased lived in belonged to the
accused.  It was put to her that the accused lay in hospital
in
2010 due to severe depression resulting from the abuse from the
deceased.  She answered that she could not remember that
and was
hearing it for the first time that the accused was being abused.
She confirmed that she was told by the deceased
that she insulted and
swore back at the accused because he swore at her.  She could
not answer about financial commitment
issues between the deceased and
the accused as that was an issue between the two people.
She
did not know when the accused met the deceased.  She confirmed
that the accused came to complain to her about the deceased
a number
of times.  She could not remember the accused telling her about
the deceased being secretive after the accused had
told her about his
results (that he was HIV negative).  The deceased consented when
he said that he would not use a condom
with a person that he loved.
She confirmed having said to the accused how could the deceased trust
what the accused had told
her as she was also given and shown the
same paper by Zukisa (her ex-husband) who allegedly infected her with
AIDS.
Centane
testified further that the deceased had told her that the accused
came to Cape Town of his own free will and voluntarily.
She
confirmed that she knew that the deceased was HIV positive before the
accused came to Cape Town.  Upon being asked whether
she asked
the deceased whether she had told the accused about her status, she
responded by saying  that she did not say anything
because it
had nothing to do with her and that the deceased was not a minor, she
was an adult and it was not her place to tell
her what to do.
She testified that as an adult when one meets someone and they do not
know where that person had been, one
would use a condom to protect
themselves.  She did not know what the accused’s status
was when the accused met the deceased
because she is not a doctor.
She was challenged about mentioning in her statement that the accused
kicked the door open when
she was at the deceased’s house.
She testified that it was a typing error.  She had written her
statement and
it came back typed.  She was challenged that in
her evidence in chief she had mentioned that the accused came in. She
did
not mention the kicking of the door.  She denied that she
ever said that the accused was obsessed with the deceased and was

hearing it for the first time.  The deceased went to lock
herself up in the bedroom because she did not want to listen to
the
accused.  She was told by the accused that he found the deceased
wearing a nightie with another man.  The deceased
told her in
the presence of the accused that the accused called a neighbour by
the name of Request showing him ARV pills from the
drawer and the
accused did not deny that.  When it was put to her that the
deceased insulted the accused’s entire family
saying that some
members of the family were running mad, Centane stated that the
deceased had no right to insult the accused’s
family nor did
the accused have a right to insult her about her HIV status.
The accused told her that he caught the deceased
with another man
sitting on the couch about to lick her.  She did not know about
the alleged unfaithfulness of the deceased
as she did not stay with
her nor was she told by the deceased that she was unfaithful to the
accused.  The deceased was scared
of the accused because he was
dangerous and she was trying to move away from him and even tried to
apply for a transfer to the
Eastern Cape which was unsuccessful.
She conceded that when the accused mentioned to her that the deceased
was abusive towards
him, she said that the deceased had never healed
from the previous abusive relationship and when she looked at the
accused she
saw her ex-husband, Zukisa, who so much abused her.
She further testified that she even mentioned that if it were her,
she
would not have moved into another relationship as quickly as the
deceased did.  When asked about why she would then say the

accused was a dangerous person, she responded by saying that the
accused assaulted the deceased in front of the children and even

threatened to kill himself.  According to her, the accused could
have gone elsewhere where he could be treated better and
should have
left the deceased.  She had no knowledge of any meeting where
the deceased’s family sat down and discussed
that the firearm
of the accused had to be taken away from him.  She denied that
she strategized with the deceased in order
for her to go and apply
for an interdict against the accused.  Even if that were the
case, which she denied, it did not give
the accused the right to do
what he did to the deceased.  In fact the deceased never wanted
to go and apply for an interdict
as she said that it would not assist
because if the accused wanted to kill her he would kill her.
She also said she would
not have security people walking around with
her so that she could be protected and that even if she obtained the
interdict the accused would kill her as he had said he
was going to
kill her.  The accused denied having said this to the deceased.
The deceased told her that the accused
threatened her on
various occasions that he was going to kill to her.  She phoned
the deceased at one point and told her that
the accused was quiet and
must be thinking something.  The accused complained to her about
the deceased not wanting to be
sexually involved with him.  She
replied by saying that there was nothing that she could do as she
could not interfere with
bedroom issues.  There was a day that
the deceased ran away and went to sleep at Centane’s flat
saying that she was
tired of the accused’s threats.  At
that time the deceased and accused had already broken up and the
accused was not
living there.  The accused always threatened the
deceased and always went to her at the house at any time and
knocked.
The accused enquired as to why the deceased would not
apply for the protection order at that stage, if such things
happened.
The
deceased told her that the accused said if he did not have her no-one
would.  The assaults and the attempts to commit suicide
happened
at the stage when they were separated and the accused did not want to
accept that.  She conceded that the deceased
was a person who
insulted others.  She heard from the deceased that she had
broken up with the accused.
She
conceded further that the accused was very supportive when the
deceased was lying in hospital.  The accused informed her
that
he could not continue building a house at his homestead because of
the rent that he was paying and he was in financial constraint

because of the deceased.  The deceased disputed that and told
the accused that he could still do what he did whilst he was
in
Colesberg.  She had no knowledge of
lobola
negotiations.
She was not informed by the deceased neither was she informed by the
accused about that.  The accused
did inform her that he wanted
to get married to the deceased.  The deceased also informed her
about that. That was in 2010
when they were still living in
Kensington.  According to her, it was also the accused’s
responsibility to make sure
that he was not infected with AIDS by
using protection.  The deceased informed her that she told the
accused to use a condom.
She would not dispute that the
deceased insulted the accused.  The deceased told her that she
insulted the accused in response
to the insults that she received
from him.  She was told by the deceased that the accused’s
firearm was taken from him
at some stage.  She however did not
see the firearm being taken from the accused.  She did not know
why the firearm was
taken but it was not taken because of what the
accused was doing to the deceased.  It was taken for work
related reasons.
She heard again that the firearm was returned
to the accused.  When it was put to her that in her statement to
the police
she did not mention the things that she stated were told
to her by the deceased, she gave a statement as if she directly
witnessed
or had personal knowledge of what she was talking about.
To this she answered that at the time she was not 100% well.
The
next witness was Sithembele Gumede (‘Gumede’).
Gumede testified that he is a member of the SAPS and he has
been for
five years.  He is stationed at the Bellville LCRC where he
processes crime scenes by taking videos, photographs,
collecting,
packaging and dispersion of forensic material for examination and by
taking photos of wounds of the deceased at the
mortuary.  On 7
July 2014 at 09:11 in the morning, he took photos of the deceased
with WC 14/1552/2014 at Tygerberg Mortuary
Parow.
The
next was Dr Estevao Bernardo Afonso (‘Dr Afonso’).
Dr Afonso testified that he is stationed at the Faculty
of Sciences
at the University of Stellenbosch where he is employed as a
consultant specialist forensic pathologist.  He is
affiliated
with the Forensic Pathology Services of the Western Cape where he
conducts his duties at the Tygerberg Mortuary.
He has done in
excess of 2 000 post mortems.  On 7 July 2014 at 08:00
a.m., he examined a body of a female which was
pointed out to him by
forensic pathology officer, W Claassen, who identified the body as WC
14/1552/2014, whose age was reported
to be 37.  The individual
had been declared dead on 3 July 2014 at 11:18.  There were 42
gunshots on the body, including
entrance and exit wounds.  The
wound tracts travelled from the right to the left.  Seven
projectiles were recovered,
three from the clothing and four from the
body.  Internal injuries included bowel perforation, laceration
of the kidney and
fracture of the forearm, pelvis and the tenth rib
were noted.  The colour of the internal organs, which were pale,
was consistent
with blood loss.  He concluded that the cause of
death was multiple gunshot wounds.  Three loose lying bullets
were recovered
from the clothing and they were retained as evidence.
Fourteen wounds were present on the right forearm which represented

seven perforating gunshots to the limb.  This means the weapon
was fired seven times, so seven bullets entered the arm and
exited.
The wounds were measured at 6 and 7 millimetres.  Two wounds
were observed in the right lateral abdominal wall
approximately in
the posterior axillary line.  Another wound in the right lateral
abdominal wall in the axillary line.
Five wounds in the right
lateral aspect of the pelvis.  Six wounds in the right anterior
abdominal wall, wounds on the chest
abdominal wall, right lower back
and three exit wounds on the left hip.  Six exit wounds on the
left buttock.  Two gunshot
wounds that went through the tenth
rib laterally and fractured - or broke - the tenth rib.  The
force of the gunshot injured
the right lung causing the bruise on the
lung and resulting in a little bit of blood within the space around
the lung. There was
approximately 100 millimetres of blood in the
abdomen as a result of injuries.  There were twenty three
injuries in the small
bowel, seven within the firm tissue and two on
the ascending part of the colon, two in the rectum.  Pelvic
walls were fractured.
One gunshot injured the uterus.
The
wounds in the abdomen and pelvis with the round shape he interpreted
as being from direct shots.  The ones that looked
irregular and
larger in size he interpreted as being re-entrance wounds.  Some
of the seven wounds that entered and exited
through the arm
re-entered the body through the pelvis and the abdomen.  Given
the extensive nature of the wounds, even if
the deceased received
immediate surgical treatment, Dr Afonso doubted that the surgery
would have had a positive outcome.
The
last witness was Bongani Mxoli (‘Mxoli’), who worked for
the Independent Police Investigative Directorate (‘IPID’).

The accused’s case was allocated to him as an investigating
officer in February 2015 because the previous investigator, Mr

Tyhalisisu was off sick.  Mr Tyhalisisu passed on early in
2015.  He collected the post mortem, the chain statements
and
took statements from the sister of the deceased, two colleagues of
the deceased and other contents of the docket.  The
sister of
the deceased, Centane, gave him handwritten notes she said were from
the accused.  He subpoenaed the witnesses but
could not get hold
of two witnesses, Arthur Khanyile and Jeremy Claassen, who no longer
worked at the Tygerberg Hospital Mortuary.
He served the
accused with further particulars of the docket.  He did not go
through the contents and so did not know how
one of the copies of the
statements received by the accused was unsigned.  All of his
were signed.  He gave the accused
time to go through the docket
and the accused said he was satisfied.
In
cross-examination he testified there was no error in the statement
taken from Centane.  Centane made the statement to him
as if it
was her direct version and not from someone else.  He
investigated this case only, and not any other cases against
the
accused.
Before
the close of its case the State brought two applications to get the
hearsay evidence, as well as the utterances by Fredericks
which I
have already referred to, admitted as evidence.  Fredericks was
recalled at the conclusion of the State’s case
as already
indicated. I return to the issue of the admission of hearsay evidence
later in the judgment.  That concludes the
summary of the
State’s case.
The accused informed the
Court that he elected to testify and to also call witnesses after the
Court explained his rights, including
his right to remain silent.
DEFENCE
CASE
:
The
accused commenced his evidence by reading a document titled ‘
Love
Life’ or ‘Life of Love’
.  He was not sure
what prompted him to write this document.  The document details
his relationship with the deceased.
I do not intend to go into
the detail of what is contained therein as all of it is on record and
largely accords with the rest
of the accused’s testimony.
I may to the extent necessary refer to certain aspects of the
document during the course
of my judgment.
The
accused testified that he met the deceased sometime in August 2006 in
Philippi. He had just progressed from the Police College.
He
remembers the date because he was about to go to the station he was
allocated to in Namaqualand.  He approached the deceased
like a
gentleman and showed interest in her.  He asked for her
telephone numbers which she gave.  He started calling
her that
same evening and gave her his telephone numbers.  They could not
meet again as he had to report to work in Namaqualand.
He went
to Namaqualand and they continued calling each other.  She also
seemed to show interest in him.  They became
distant lovers as
she was working in Cape Town.  They met once at his brother’s
place in 2006 in Cape Town.  In
or about August/September 2006,
the deceased called to tell him that she was getting married.
He was shocked because he already
loved her from their telephone
conversations, although they were not physically engaged.  Their
communication ended.
In 2008, he got a transfer to be closer to
home in Kuyasa Police Station in Colesberg.  At the time he was
busy building his
home in the Eastern Cape.  Sometime in April
2009 he went home to monitor progress of the building.  He
received a Please
Call Me text message from the deceased’s
number.  The deceased was no longer on his contact list but when
he looked
at the number, it looked familiar.  When he called the
number he recognised her voice.  She told him that she was
coming
from hospital after giving birth to her daughter Aqhama, with
her then husband.  She told him that she and her husband were

not in good terms and her relationship with her husband was over.
She told him further that she had met with the elders of
the family
but they could not come to a real solution.  She told him that
she was considering divorce and he supported the
idea as things she
said about her relationship with her husband were intolerable.
On that day it was not very clear if they
were becoming lovers again
but she kept texting him asking how he was.  They would send
each other love messages and evidently
became lovers again.  By
this time she told him that she was sleeping in a room separate from
her husband.  He was also
having problems with his child’s
mother.  His relationship with the deceased developed to the
point that he introduced
her to his family.  They also started
engaging intimately initially using protection.  He went on to
do an HIV test which
came back negative and showed the results to
her.  He then told her that he did not like using a condom with
a person he loved
and planned to have a strong and lasting
relationship with her.  He assumed that as a person that just
gave birth, her HIV
status was negative.
Sometime
in 2010, the deceased asked him to relocate to Cape Town as she could
not live without him.  He told her that Cape
Town was expensive
and he had a lot of responsibilities to take care of.  He asked
her if they could both request transfers
to the Eastern Cape.
The deceased did not think it would be easy for her to get a transfer
as she was in a managerial position
at her workplace.  At the
time she worked for the Department of Home Affairs.  The
deceased told him:
“
I
do not see how you won’t be able to do what you are doing at
your home while in Colesberg when you are in Cape Town for
rather
because we are both working and we are going to assist each other.”
The
accused then stated that he did not think it was going to be easy but
asked her to give him a chance to finish their five-bedroom
house he
had already started to build.  The deceased insisted that they
would be able to assist each other financially.
He then agreed
to consider the transfer based on the commitments made by the
deceased.  He told his brother, Vuyani Memani,
about the
deceased’s requests and commitments but his brother discouraged
him from relocating to Cape Town because of a lady.
He was
reluctant but the deceased insisted.  The relationship between
her and her husband had deteriorated to the point that
she had
instructed lawyers to file for divorce.  The deceased’s
husband found out about the affair she was having with
the accused
and obtained information about the accused, i.e. where he worked and
lived, his identity number
etc,
which the deceased shared with
the accused.  She reported that her husband was abusive towards
her.  The accused advised
the deceased to move out of her home
where she lived with her husband as the situation there was
dangerous.  She was initially
reluctant but after having
considered his advice she got a place in Kensington and that was in
April/May 2010.  The accused
committed to her that when she
moved to Kensington he would assist her and indeed he did so.
She spoke about a deposit of
R8 000  that needed to be paid
for the Kensington flat and financial problems she had, such as
transport for children,
money to pay for instalments of her vehicle,
Toyota Yaris and asked for his assistance.  He assisted her by
depositing R1 500,00
a month in her account to pay rent for the
flat which was R3 000,00 at the time.
The
deceased then insisted that the accused visit Cape Town during his
rest days instead of his home.  That continued until
he got a
transfer to Cape Town.  The transfer came about upon him
noticing online that a Constable Afrika from the Bellville
Railway
Police Station wanted a transfer to Colesberg.  A cross transfer
between him and Constable Afrika was approved.
According to the
accused’s recollection, his report at Bellville Station in Cape
Town was on 20 June 2010.
Whilst
he was still visiting Cape Town they would have problems.  The
deceased would always attribute those to the abuse she
experienced in
her previous relationship.  He would tolerate her because the
deceased was very good in convincing people.
Due to problems
and arguments they had, he would experience constant and severe
headaches and was seen by a doctor, Dr Rawood.
He complained to
Dr Rawood that the pills he prescribed did not help.  Dr Rawood
then suggested that he be referred to a psychiatrist
as he might be
stressed.  He was referred to the Gatesville Melomed Hospital
and all that was before he moved to Cape Town.
He was then
admitted to this hospital for a week under the specialist
psychiatrist Dr Khalid Dhansay.  From there he was under
Dr
Dhansay’s supervision and undergoing sessions with him.
The accused then felt that he did not want to be dependent
on pills
and stopped the treatment and the sessions.  At some point he
had a squabble with the deceased about a conversation
he had with his
child’s mother regarding an alleged affair with a colleague
from Namaqualand.  The deceased insisted
on calling his child’s
mother to tell her the truth.  They would fight about little
things with the deceased. The deceased
would shout at him in front of
the children.  He would tell the deceased that he was not used
to that kind of treatment and
she would apologise sincerely stating
that she would not do what she did in future.  Unfortunately,
she continued.
According
to the accused, it was just in her blood that she would always shout
at him.  Unfortunately, the transfer processing
was at an
advanced stage so it was difficult to withdraw it.  The deceased
would justify the fights by saying that maybe it
is because they are
not used to each other and that is why they fight and perhaps things
would change when they live together.
One day when he was left
with the children, Aqhama and Lilitha, Lilitha asked the accused why
her mother was always ‘jumpy’
or ‘grumpy’
with him and that if she was a grown-up, she would not allow her to
do that.  Being surprised to hear
a child talking like that, he
explained to the child that when she becomes an adult she would come
across such situations.
He was so hurt that even the child
noticed this kind of behaviour from her mother.  He told the
deceased and she apologised
sincerely and said it would never happen
again as she usually did but she continued treating him in that
manner in front of the
children.
The
accused reported for duty in Cape Town in June 2010 as already
stated.  The treatment immediately changed, the deceased
was
somebody he never knew.  Even the respect she would show by
apologising to him got lost.  She would say anything
and would
be too proud to apologise and humble herself that she did wrong.
That hurt the accused so much.
During
the first month after he arrived, i.e. June 2010, and at the end of
that month, whilst he had gone to pay his accounts and
deposit the
money for the family for the building of the house the deceased told
him not to forget to pay the rent.  He paid
the full R3 000
and he did not have the nerve to ask her to give him back the R1 500
when he went back home.  It
became normal for her to call him
and ask him not to forget to pay the rent.  There were no
negotiations.
Problems
then cropped up as he was now struggling to send money home and that
affected the progress of the building of his house.
According
to the accused, he made a mistake by mentioning to the deceased when
they first met in December 2009 that by June 2010,
his house would be
complete and by October or December he would be getting married
regardless of whom he got married to.
That would have happened
if he did not get a transfer to Cape Town as he was now at an extreme
disadvantage.  He complained
to her that she did not live up to
her commitment and he was now getting into deep debts as he had to
complete his house at home
so he could not be mocked.  He
borrowed money from the banks to complete the house but he did not
know where he would get
the money to furnish the house.  He
again spoke to his brother, Memani, about this.  Memani stated
that women are sometimes
very careful about money and conservative,
he must risk and pay
lobola
and see if her behaviour towards
him financially would not change.  He was reluctant to do this,
but  his brother insisted.
He then spoke to another
“
homeboy
”, Mr Buti to get his opinion on the
matter.  Mr Buti also said the same thing.
In
the month of September, he was going to be paid a bonus,  he
then approached the deceased and asked her if he could send
elders
from his clan, in October or November, to the Dlamini’s to
negotiate the
lobola
.  The deceased told him that the
divorce with her estranged husband was not yet final.  She asked
him to wait for that
process to be finalised before he sent his
family to hers for negotiations.  That is the reason why he
never paid
lobola
in 2010 nor any other time.
He
then waited but another problem cropped up. The deceased told him
that she was building a house at her home in the Eastern Cape.

He confronted her about this as to how she could do that when his
house was on hold because of the rent he was paying.  She
then
suggested that they should look for a place in the townships in
places like Khayelitsha or Delft.  He was hesitant about
this
suggestion as Cape Town was notorious for police killings.  He
was afraid but had no choice as he wanted some financial
reprieve.
In
October/November 2010, the deceased’s divorce from her
estranged husband was finalised.  The accused and the deceased

were by then already experiencing a lot of problems.  At some
stage she refused him intimacy when he approached her.
She
pushed him away and at one point told him she is not a sex slave.
He was still attached to her in his heart but was questioning
whether
it would be a good decision to continue committing to a person who
had shown these characteristics in their relationship.
He spoke
to his brother about this.  His brother suggested that they get
an independent person to discuss the situation.
It sounded like
the matter was resolved.  She said it would not happen again but
it unfortunately continued.
One
morning in 2011, he sent a SMS to her stating that he had arrived
safe at work as the two of them normally did.  The deceased
did
not respond.  This was strange to him.  He started calling
and she did not pick up the phone. He got worried.
Time went by
and he asked for some hours off from Warrant Office Boshoff to check
what was happening at home.  He could not
be released due to
shortage of members.  Warrant Officer Boshoff said he would
release him at 4pm.  He patiently waited
until 4pm.  He
left for home and found the deceased still in her pyjamas very weak
and sick.  He took her to Gatesville
Melomed Hospital.  Her
situation deteriorated when she got there.  He showed a lot of
care for her and even asked her
to be taken to the Intensive Care
Unit (‘ICU’) when he found her lying on a bed with her
condition being very critical.
He cleaned her when she involuntarily
relieved herself.  He even called her family to tell them about
the condition, frequently
visiting at the hospital.  The doctor
informed him about the deceased’s CD4 count that was very low
and that she may
not survive.  He was shocked.  The doctor
asked if he was the husband or the father of the child to which he
said no.
He told the doctor who he was and how he landed in
Cape Town.  The doctor asked if he was told the deceased had HIV
and AIDS.
The deceased knew that when she was pregnant with
Aqhama.  The doctor thought the accused was the father of the
child and
that is why he informed the accused.  The accused was
shocked and did not know what to do.  The doctor asked if he
wanted
to be tested so he could find out what his status was.
He told the doctor that he was not ready.  He went to Parow to

pay the deceased’s lawyer who was busy with the divorce.
He went to the doctor’s surgery to do an HIV test.  The

doctor asked why he had come and he told her that he only found out
that day that his fiancé had AIDS.  The doctor
asked if
she could counsel him and he turned her down.  She asked if the
results turned out positive would he still be with
her and he said
‘yes’.  The doctor asked if he was a Christian and
there was no justification for the deceased
not to have told her
partner about her status.  The following day the doctor told him
that the results were negative.
He asked himself questions of
how the deceased could do that to him when he had not yet even gotten
married whilst she was already
divorcing.  It was his prayer
that she would be well and his prayers were answered.  The
deceased recovered and was able
to speak. He could not control his
happiness and phoned her sister, Nomvuyo.  Nomvuyo is referred
as Centane for the purposes
of the judgment.  The deceased fully
recovered.  On the day she was discharged the accused went to
pick her up.
Whilst giving her her prescription, the doctor
mentioned three words to the deceased, honesty, transparency and
openness.
The doctor told the deceased:
“
This
young man loves you so much, Colesberg is not nearby, it takes a man
to relocate for a woman.  You need to be open, transparent,
and
honest to each other.”
The
deceased did not know at that stage that he knew about her status.
They went to the vehicle and as he put the ignition
on she asked him
to switch it off.  He told her that he was all hers and that he
would support her, she should not worry he
was going to die where she
died.  The deceased started telling him that she was HIV
positive and she had AIDS, that she had
been infected by her husband
Zukisa.  She told the accused that when she told her husband
about her HIV status when she was
pregnant with Aqhama he was not
shocked.  She asked the accused if that was the end of their
relationship and he said no everything
was fine.  She further
stated that she was afraid of telling him because he was going to
leave her.  According to the
accused, if she had told him whilst
he was still in Colesberg he would have indeed left her as he would
not have been prepared
to get married to a person who was HIV
positive especially after all the deceased had ‘left him’
for another man. However,
in that present moment, in the vehicle, he
forgot about everything and focused on comforting and supporting her.
This was still
in 2010 when they lived in Kensington.
Also
in 2010 towards the end of the year the situation became very dire
and the deceased became somebody very strange, somebody
he did not
know and not the person he met in 2006.  She was emotionally
abusive to the accused.  She became somebody
who was very
disrespectful and did not apologise for the words that she would
speak to him.  He would sometimes go to the
garages or railway
stations to sleep there.  He would stay the whole night and in
the morning when the deceased was about
to go to work, would go back
home.  He would phone his brother, Memani, concerning what was
happening.  They had lots
of quarrels. She did not care about
him because he was already in Cape Town and she was building a house,
he still wanted a lot
of things at his home and she did not keep to
the commitment she made before he came to Cape Town.  He was
suffering financially
and was paying rent which in 2011 went up to
R3 300,00.  The accused went to live with his brother in
Kuyasa, Khayelitsha.
The deceased would phone and apologise.
He would forgive her and return home.  She would drive to his
brother’s
place to fetch him to go back to Kensington.
Since then he told himself that he will just tolerate what was
happening.
He could not go back to his brother’s house
because his brother could not understand why he would just forgive
the deceased.
The
deceased started telling him that she did not leave a child and she
would not leave her friends for the accused.  They
would quarrel
over such things without any resolution.  The accused reported
these things Centane.  Centane would understand
but the only
person who seemed not to understand these quarrels was her elder
sister, Sister Nomboniso. That is how difficult his
life was with the
deceased but he tolerated it.  He does not know why he tolerated
the situation and still asks himself that
question today.  He
surmises that maybe it was because they were living together and did
not have a place of his own.
He reckons that he could have
moved out of the house that they bought together in Delft.  The
accused went on to say:
“
I
mean right from the time we were still living in Kensington when I
count these incidents which took place and then I don’t
really
know what kept me to tolerate this kind of situation but it happened
that I did tolerate it up to this very unfortunate
situation I am
faced with today.”
Now
in 2011 towards the end of the year they moved out of Kensington and
went to live at the N2 Gateway in Delft.  Whilst they
were
living in Delft there were three bereavements in his family.
When his cousin brother passed away he did not get the
support he
needed from the deceased and the deceased apologised.  Again, he
had an incident of a person that he regarded as
a mother passing away
in 2012.  At the time, he was in deep debt. He did not have
money to contribute to the funeral.
He approached the deceased
and asked her to lend him money and was going to reimburse her during
his bonus month.  Without
any explanation, the deceased told him
that she did not have the money.  He was unhappy about this but
he accepted it and
decided that he would find other ways to get the
money.  Then he asked her if they could use her vehicle to
travel to the
funeral.  She said it was not a problem and told
him that he should make means to ensure that the vehicle is serviced
before
they left.  He then went to the bank and asked them to
increase his overdraft facility.  He is not sure whether he got

the money from the overdraft or the credit card.  He deposited
some of the money to his home to help with the funeral arrangements.

The deceased said there was no need to take the vehicle for service
as they could do that on their return from the Eastern Cape.
He
was unhappy about the deceased not assisting him financially.
He gave her R2 000 for the service of the vehicle.
The
deceased wanted to return it but he declined.  They travelled
together to the Eastern Cape to go to the funeral.
When they
returned back to Delft something happened which triggered a quarrel
and which reminded him of the deceased’s failure
to assist him
when he needed money for bereavement at his home.  The deceased
told him that the use of her vehicle was sufficient
and that the
accused was unappreciative.  She called him a gold digger,
digging from women.  They had an argument over
this issue and he
immediately suffered a terrible tension headache.  At the time
he was crying and phoned his family members
and Centane.  The
situation resulted in a terrible experience of mental, emotional and
psychological suffering because he
could not understand how she could
speak such words to him as she knew how he landed in Cape Town and
that he did not want to come
to Cape Town in the first place.
They
had a fight over her cell phone as she refused to give him the pin
number.  One time she went to a party.  He had
suspicions
that she was cheating on him but he was not sure.  This is
because there were a lot of strange things happening
in their
relationship.  She took the children and left him in bed.
That very night the accused’s colleagues from
Mount Frere in
the Eastern Cape called him.  This colleague told him that the
deceased was at a party and that the accused
should attend those
gatherings and that is all he said.  Since that party the
accused was very unhappy.  He did not speak
much to the deceased
except in relation to things that needed to be done at the house.
He approached her as his girlfriend
and she said: “what are you
doing? I do not know what you are doing.”  He was very
hurt.  He took the car
keys and went to look for a place at the
barracks.  He got a place late at night after having struggled
to get help.
The deceased kept phoning the entire day but he
ignored her calls.  When he eventually phoned her back she
apologised and
promised that what happened earlier will never happen
again.  He told her that he had already signed a contract to
stay at
the barracks. Despite the fact that he had signed a contract
that had conditions he agreed to go back to home to Delft.
Unfortunately,
the deceased became very abusive.  He lived
between the home in Delft and the police barracks spending the days
he was working
at the barracks as it was closer to the train that he
used to commute to work.  He later bought a vehicle.
On
one occasion he confided in a colleague, Mr Maqolo, about the
deceased refusing to have intercourse with him.  Mr Maqolo

retorted that it was unusual and that the deceased must be up to
something, she must be having a person she is involved with.
He
did not believe Mr Maqolo.  He discovered very, very late that
the deceased was unfaithful.
On
31 October 2012, the deceased was on stress leave.  The accused
slept at home in Delft.  He woke up in the morning
to fetch
something he had forgotten at the barracks.  He showered at the
barracks and went to do a few errands at transit
offices, then he
went back home in Delft.  He parked in front of the house and
found the door slightly open.  He pushed
the door and entered.
The door opens towards the lounge.  He entered the room and saw
a man on his knees getting out
of and between the deceased’s
thighs.  The deceased took a deep sigh and immediately the man
went to sit on the couch.
The accused was very shocked and
could not believe what he was seeing.  This man wore a tight
t-shirt.  The accused had
his firearm on which was visible as he
placed it on his left hand side inside the holster.  He stood
there stunned, shocked
and hurt.  This gentleman at some stage
said: “
Sorry Bhuti, I’d like to explain
.”
The man said nothing and the accused ordered him to get out of the
house.  He then cried vigorously rolling
himself on the floor of
the bedroom.  Then he said to her: “Now I know why you
have been behaving like this”.
And she was apologising saying:
“I am not in love with this guy, I am sorry I am not in love
with this guy, I am very sorry
I did not mean to hurt you.”
He
told her that she needed to look for her own medical aid as he could
not pay medical aid for another man’s woman and he
was not
thinking straight.  She tried to hold him and he pushed her
away.  He went to his vehicle, drove away and phoned
one of her
friends, Mhambi.  He told Centane who was also of the view that
the deceased was in love with the gentleman he
caught her with.
At a later stage they met at his house and spoke about what
happened.  The deceased denied any relationship
with the
gentleman he caught her with and Centane called him obsessed and he
was very hurt by that.  That clearly indicated
to him that it
was not the first time that the deceased had a man in their house.
It was possible that when he was at work
and sleeping at the barracks
that she had the opportunity to sleep with her boyfriends in their
house.  At some point, the
deceased told him that the gentleman
he caught her with was begging her and he was a law enforcement
officer whose name she did
not mention.  One morning he noticed
numerous missed calls on her cell phone.  He wanted to see those
missed calls but
she refused to open the phone which was password
protected and became very abusive towards him.  He told Sister
Nomboniso
about these incidents.  The deceased once told him
that her friends and family members will not listen to him but would
only
listen to her.  He was very shocked about that.  He
reckoned that the treatment that he was getting from the deceased
was
indicative of the fact that she found happiness elsewhere and ensured
that when she was at home there were problems so that
the accused
would not sleep at home but at the barracks.  Whenever they had
problems he would suffer from a severe headache
and would go to the
barracks.  He wondered as to why she was doing this.  At
some stage he told himself that he would
rarely visit his house
assuming that only being at his house contributed to the problems he
had.  He took a week and returned
again a week later because he
would miss the deceased’s younger daughter, Aqhama.  He
took the deceased’s children
as his own and would enjoy more
time with them than his own biological children often taking them to
places like the beach.
He did not share a biological child with
the deceased.  It was so painful for him to be faced with a
situation like this today.
He
contributed towards the tiling, plastering and painting of their
house and did not know that he was doing it for the deceased
and her
boyfriends.  The house was his as well and not just the
deceased’s as stated by Centane.  Their problems
went on.
They fought without any solution but he persevered and fought through
the difficulty.  He was now determined
to work next to his home
in the Eastern Cape.  He made efforts towards attaining this
goal.  Provincially those were
not successful.  He
escalated them to the national office citing the problems that he had
with the deceased and a report from
his psychiatrist.  His
efforts failed on a number of occasions, necessitating him to write
to the Minister of Police for his
intervention.  The response he
received from the Minister of Police was that this matter was
remitted back to the national
office of the police (i.e. the police
headquarters) and they would communicate with him in that regard.
Had his employer
considered the psychiatrist’s report, he could
have been transferred to the Eastern Cape and that could have
prevented the
situation he is faced with today.  The National
Commissioner of Police, Ms Ria Phiyega, told the panel within the
Department
of Police that the psychiatrist’s report was not
comprehensive. Members of the panel were free to call his
psychiatrist if
they had any queries or required clarity on anything
but they did not do that.  The matter got delayed.  He took
his
complaints further to the office of the Public Protector.
Whilst that was in process with his lawyers, the incident which
is
the subject of this case, occurred.
One
day, in 2012, when he was reporting for his duties, as he was about
to enter the police station he experienced loss of sight.

Immediately he became weak and then he had to bend down on the
ground.  He then closed his eyes and regained the sight.

He could feel right from there a terrible headache and something
hitting him sharply right above his eyes, like a sharp pain.
He
immediately felt a stiff neck but regained his sight.  He went
to the police station and reported the matter to his commander.

He was recorded as unfit for further duties.  He then drove back
to the Pinelands barracks where he lived during his work
days.
He took off his uniform, put his civilian clothes on and drove
himself to Gatesville Melomed Hospital to Dr Dhansay.

Unfortunately the doctor was ill on that day.  The accused was
booked in and sent to Kennilworth Psychiatric Clinic.
He was
examined at the clinic and was informed that his pulse was beating
abnormally low.  He was shocked and the nurse examining
him
calmed him down.  The following morning he lost some sight
whilst attempting to shower and fell.  He spent about
a week
there, then Dr Dhansay arrived.  He told Dr Dhansay about his
situation with the deceased and that he could not handle
the matter
in which he caught her with another man.  The doctor asked if he
could call and speak to her and he said he had
no problem.  The
doctor indeed called and met with her.  He was not told what
they spoke about. He accompanied the deceased
to her vehicle
thereafter.  After a week he was discharged from the psychiatric
clinic.  He went back to his house in
Delft, then the problems
started again after he asked her about why she was treating him in
the manner she did.  He left for
the barracks and did not sleep
at his house.  He informed Sister Nomboniso about this and she
was shocked.  This was
all towards the end of 2012.
In
2013 at times he slept at their house but did not have meaningful
communication with the deceased.  The situation became
permanent
and the only people he spoke with when at home were the deceased’s
children, particularly the younger child.
The quarrels
continued. The accused told the deceased that she was evil, having
caused him so much hurt after all the sacrifices
he had made for
her.  She started insulting him with his mother calling his
mother a witch.  He would tell her not to
insult his family, cry
and go to the barracks.  The deceased had no regard for his
feelings and to the deceased he was just
a non-living object.
This was a daily problem. It was difficult for him and the transfer
difficulties also added to the stress
he had.  It took him long
to get better and the best thing was to get out of the Western Cape
away from the deceased.
He could not endure the fact that he
caught the deceased with her boyfriend in the house where they (the
accused and the deceased)
slept together.  He could not handle
his situation and often booked off sick and was suffering from a lot
of headaches.
He got to be in denial and was under an extreme
depressive situation but was not attending his psychiatric sessions
as he ought
to have done.
At
one stage at his house, sometime in June or July 2013, he experienced
a severe tension headache and loss of sight and phoned
his work for
an entry to be made in the occurrence book.  He could not recall
if he went to the doctor but he went to work
a few days later.
When he arrived at work he was informed by either Sergeant Mbana or
Constable Mahlahla that they were sent
to visit him at the barracks
but he was not found at his place.  A disciplinary case was
opened against him but later withdrawn.
He did not have a good
relationship with this commander due to the transfer issues. He would
meet with the deceased from time to
time during his disciplinary
hearing as she worked in the same building where the hearing was held
and they would talk about Aqhama.
He would eventually go home.
His body and ‘system’ accepted his situation but the
feeling that the deceased was his
girlfriend of fiancé waned.
The deceased had harmed him spiritually, emotionally, psychologically
and made him lose
interest in her.  The deceased had been
refusing him intimacy.  They were informed at some point that
the barracks would
be converted into offices.  That was when he
was pushing for his transfer to be accelerated so as to avoid going
to live at
his house permanently again.  The barracks was the
place he could go to when he was insulted by the deceased at their
home.
On 13 September 2013, he asked Captain Ntshingila to
assist him with a phone call to the head office to find out about his
application
for a transfer.  The person he spoke to at the head
office informed him that his transfer was finalised and he lost all
hope,
because this meant he had to return to his house if he happened
to move out of the barracks.  He immediately felt a terrible

headache and asked to be booked off from further duties, which was
granted.  He went straight to the barracks and when he
arrived
there he took his bag which had his transfer documents  and
correspondence in it and drove to his house.  On
his arrival he
found the deceased with ladies he did not know and with Mhambi, whom
he knew.  The children were also there.
He asked to speak
to the deceased in the bedroom.  He showed her the documents and
correspondence and told her about the call
he had made earlier that
morning wherein he was informed that the transfer was declined.
He informed her that he had done
everything possible to try and be
rescued from the situation.  He told her that the police lie to
the media when there are
incidences of suicide.  She must give
the documents to the media so that the police could be exposed, that
they do not assist
their members.  He then drew his pistol.
He did not know what went wrong with him.  He fell on the floor,
his fingers
got stiff.  The deceased in the meantime grabbed the
pistol from him as he was placing it in his mouth.  His aim was
to squeeze the pistol and let it finish with him.  The deceased
asked him not to do that.  She managed to get the pistol
from
the accused as he was grabbing the trigger.  It did not fire.
It fell under the bed.  He had a sling on that
prevented her
from running away with the firearm.  The deceased was
screaming.  She called for Mhambi and asked her to
call people.
At the time the firearm was on the bed and he was weak.  He took
his phone and phoned his sister and told
her of what he has been
going through and that he could no longer attend to his family
responsibilities.  He told her that
they should forgive him and
look after he children as he was better dead.  His sister told
him to rather resign and go back
home and that they did not need his
money but needed him, his soul.  His brother also called him and
asked him not to commit
suicide and asked him to leave his house and
go to the barracks.  He decided to go to his brother’s
place but as he was about to do so the
police arrived.  He told
them about the trauma he had suffered because of the deceased.
The police asked him to go to
the police station. He did not see a
reason why he should go to the police station as what he had
attempted to do did not materialise.
At
one point he knocked at the door of their house in the evening and
the deceased did not open.  He went to knock at the bedroom

window but the deceased still did not respond.  He got injured
in the process as the window cracked.  He was convinced
that
there was someone inside (i.e. a man), as he had never knocked for
such a long time without the deceased opening the door.
He went
back the following day and asked the deceased why the door was not
opened and she said she was avoiding an argument as
she was going to
work the following day.  He was not satisfied with that answer
and told her that there was something that
she was busy with when he
was knocking, implying that she was with a man at the time.  The
deceased kept on denying that she
was cheating.
One
day he slept over at their house, the deceased insulted him.  He
could not hold his tears, he rolled himself crying and
this was
noticed by the deceased’s younger daughter.  The child
asked what was wrong and her mother told her that her
father was
sick.  The very same day, the deceased told him that she was
asked by the teachers what happened to the child’s
father as he
was crying.  Apparently the child told the teacher that the
accused was sick.  He was alarmed at the deceased
taking this as
a joke.  This situation affected him a lot.  The child also
saw him putting a firearm in his mouth on
the occasion he did and the
child spoke about that at school too.
On
13 September 2013 after the suicide attempt, he went to his brother’s
place. The following day, 14 September 2013, he made
arrangements to
go home to the Eastern Cape.  He went to the doctor who gave him
pills and prepared a sick note for him as
he was not feeling well.
He took the sick note to his workplace.  He was booked off for a
week and thereafter he was
due to go on annual leave.  He then
went to the Eastern Cape and stayed there for the whole of October
2013.  On 3 November
2013, he came back to Cape Town and
prepared to resume work on 7 November 2013.  As he was busy with
his duties, his commander
told him that they had been instructed that
the accused be posted ‘inside’ and for him to hand in his
service pistol.
He was told by Captain Whitely that in terms of
the police procedures once a person had anxiety, stress or something
like that,
they are obliged to take his firearm  He informed the
captain that because he was being disarmed, he would lose out on
overtime
pay.  That brought differences between him and the
captain.  He was unfortunately compelled to hand in his
firearm.
He asked what he needed to get his firearm back and
was advised to see a psychologist or a psychiatrist who may recommend
that
he gets his firearm back.  He went to his specialist
psychiatrist Dr Dhansay.  The accused handed in a letter from Dr

Dhansay as part of his evidence, dated 18 December 2013, which read:
“
This
letter is provided at the request of the above and with his signed
consent.  It serves to confirm that I reviewed the
above on 20
and 28 November 2013.  Based on those two assessments I feel
that Mr Nakani is fully fit to resume all duties
at work including
the use of his firearm.  If there are any queries or concerns in
this regard please do not hesitate to contact
me at any stage.
Yours sincerely
Dr K
Dhansay”
He
lost out on some overtime money as a result of being disarmed and was
greatly disadvantaged.  Fortunately, when he got his
firearm
back at a later stage he was able to work for more money.
During
that time, he went to the deceased and told her about the
difficulties he was having at work and socially at home and had
it
not been because of her he would not have been in that situation.
He informed her that his firearm was taken and this
was very exciting
to her.  She would insult him saying that he is a man who was
scared of approaching women, he was a gold
digger and that from his
father’s side of the family they were mad people whilst his
mother’s side practiced witchcraft
and that is why he was the
way he was.  This hurt him so much.  He was disturbed by
these utterances spiritually, emotionally
and psychologically.
These were sent particularly as WhatsApp messages.  He asked her
what she wanted him to do as there
were a lot of men out there. These
things worked on him because he would not be able to sleep.  He
was told that the deceased
was cheating on him and was once seen with
a certain gentleman at Century City.  She denied that.  He
believed that she
could not be that disrespectful towards him if she
was not up to something.
One
morning he reported for duty and had a conversation with Constable
Gxagxisa about his situation and told him he would like to
be
reported unfit for duty and proceed to his house.  Constable
Gxagxisa advised him that this person was going to hurt him
and he
would end up doing something he never thought he would do.  He
told Constable Gxagxisa that he trusted himself and
‘such a
thing won’t happen’.  He went home and found the
deceased with the children.  He asked her
why she called him a
gold digger and had she forgotten that he came to Cape Town because
of her.  They argued and Lilitha,
the older daughter left and
came back with Request, a neighbour.  He explained to Request
that he wanted Request to be present
so that he could be called as a
witness.  They quarrelled in front of Request.  She pushed
him with the door as he was
leaving. At which point he lost control
of himself and beat her.  Immediately after that he drove away
and informed her sister,
Centane, of what had happened.  Centane
shouted at him asking why they always fought in front of the
children.  He asked
Centane to go to the deceased on his behalf
and ask for forgiveness for what happened that day.  His brother
also phoned to
tell him that the deceased called him to tell him
about what happened and that she was going to lay a charge against
him.
The deceased laid a charge of assault against him. That
was in November 2013.  Memani, his brother, and his uncle went
to
the deceased to ask her not to press the charges against the
accused.  The deceased told them that he pointed a firearm at

her which was not true.  She told them about the incident when
he knocked the window until it was broken.  She denied
that she
was cheating and agreed not to proceed with the case against him.
According to the accused, the matter was resolved.
The deceased
withdrew the case of assault against him.  After the matter was
resolved and the deceased had indicated that
she was swollen, he did
his best to get ointments to assist her and went to see how she was
doing at their house.  Things
looked like they were getting
better again.  He was still staying in both places, their house
and at the barracks.
He
mentioned a number of incidents to Centane involving the fact that
the deceased did not disclose her HIV status to him and she
was the
one that asked him to come to Cape Town.  Centane told him he
was negligent, he could not just stand by looking at
the person and
assume that she was 100% healthy. After their discussion Centane
understood and condemned the deceased’s behaviour
although she
was saying the deceased denied cheating on him.  He phoned
Sister Nomboniso who said she was going to talk to
the deceased.
Beginning
of 2014 he told the deceased about the rumours that their police unit
was to be converted to a Rapid Rail Response Unit
and that the
Pinelands barracks were to be converted to offices.  The
deceased told him that he left their home on his own
accord, no one
chased him and he could come back.  He informed her that that
would be the last resort. One day around February/March
2014 a
certain lady residing at the barracks told him about an affair that
the deceased had but refused to divulge the name of
the person that
the deceased allegedly had a relationship with, accusing him of not
satisfying the deceased in bed, saying that
he had a small penis.
He was embarrassed by this.  The lady seeing that the accused
was taking the matter seriously
changed and said she was joking.
He knew that she was not joking.  He asked the deceased about
this allegation but she
denied it.  He went with two fellow
police officers from Delft Police Station to the deceased at their
house to ask the deceased
to stop referring to him as a boyfriend.
The deceased would not give him a chance to talk, shouting. He
confronted her about
the allegations.  She shouted and insulted
him and he could not speak any further.  He just went into his
vehicle and
drove away.  At some point the lady from the
barracks gave him the name of the gentleman who had an affair with
the deceased.
It became clear to him that the deceased was busy
with a number of men.  He sent the deceased a text message about
the affair
and she denied that she was cheating.  The deceased
did not show any remorse, provocatively saying that the two of them
were
united by her.  When he initially found out about the name
of the person the deceased had a relationship with he asked her
to
move out of their house and go live with her boyfriends.  He
gave the keys of the house to the deceased and told her that
he was
no longer interested in that house.
After
he came to know the name of the person the deceased had an affair
with he wanted to know when the whole thing started.
He phoned
Memani and Buthi.  Buthi picked up that he was not well and
asked him to go back to the doctor.  He told Buthi
not this time
around, if he must die he would rather die.  He told Centane
about the affair and about the deceased wanting
to infect the world
with HIV and AIDS.  Centane shocked him stating that the accused
came with HIV and AIDS from Colesberg.
He was shocked by that
and that made him experience a terrible mental suffering.  He
decided to stop talking to Centane about
his situation with the
deceased as he did before.
After
he found the name of the man who was having an affair with the
deceased he investigated his number and phoned him.  He

confirmed that he knew the deceased and that the deceased was his
ex-girlfriend and they met in 2012 and that is when the accused
moved
to the barracks.  The man confirmed that he met the deceased at
Samora Machel.  This man confirmed that he slept
more than twice
or thrice at the deceased’s house with the deceased and had
sexual intercourse with the deceased.  This
gentleman also told
him that the deceased told him about the things that the accused went
through and he felt embarrassed.
Police came to his house at
some point and asked for his firearm having been called by the
deceased.  He was grabbed violently
by the police and told to
leave.  He told himself he will never set his foot at their
house.
The
deceased accused him of bursting her vehicle tyres.  He told her
she must go look for people who did that to her, her boyfriends,
and
leave him alone.  During that period, i.e.  after the
accused was chased out of the house, he sent text messages
or
WhatsApp messages.  The deceased knew that the accused was a
worshipper of God, a God-fearing man and she pretended to
be one when
she was not.  The accused did not speak to the deceased for a
while and decided to focus on his responsibilities
at his Eastern
Cape home.  He told his sister that he would take leave and go
home to the Eastern Cape in October, the month
after his September
bonus month.
On
25 June 2014, he was on leave and received a call from the police, a
Warrant Officer from the Bellville Police Station, Voortrekker
Road,
stating that he had a document to serve to him and asked him to make
a turn there.  The accused went there.  On
his arrival he
was shown an interdict.  When he saw it he started crying.
He saw that the interdict was applied for
in April 2014 and he was
told to appear in court on 3 July 2014.  He took leave again
until the evening of the day he was
going to appear in court just to
deal with his situation.
On
3 July 2014 he woke up from the barracks and went to the Bellville
Court as instructed.  On arrival in court the deceased
was
present.  The magistrate asked if they were continuing with
‘this’, (the interdict), the deceased said ‘yes’.

He told the magistrate that he was opposing the interdict.  He
told the magistrate that he was asking for his firearm to be
excluded
from the provisions of the interdict for it had nothing to do with
it.  He handed the letter from Dr Dhansay as an
exhibit.
The magistrate, having looked at it said the application (of the
deceased) was more recent than the letter.
The magistrate said:
“
I
am not going to attend (sic) this, I am going to look into it on the
30
th
or 31
st
July
.”
Then
the matter was postponed to the 30
th
July 2014.  The
accused told the Court:
“
I
am working with this firearm and now I will have a problem if this
happens that I am being disarmed
.”
The
magistrate told him that he had to rearrange his duties with his
commander.  The Court turned to the deceased and asked:
“
how
do you feel, lady
”, the deceased said: “
to be
honest, Your Worship I am not feeling safe at all
.”
As the Court gave the ruling, he fell down on his face on the podium
that was in front of him and he was crying.
The matter was
postponed without considering his requests.
He
immediately suffered from a terrible tension headache.  He
became very weak, he struggled to reach his vehicle in the yard.

All his joints were just weak.  It was very cold that day. It
was like he was seeing some bubbles like one would experience
when it
is sunny.  He lost his sight a little bit.  He felt like
his head was stuck.  He was wondering even today
how he got to
the barracks.  He was fortunate to be still alive.  From
the court in Bellville, he went to his vehicle.
He sat a bit in
his vehicle.  He closed his eyes trying to regain his sight.
As he was driving, he thought of going
straight to the doctor and to
get himself in hospital. There, he could get something that could
make him sleep for two to three
days.  He wanted to forget about
what happened in Court.  He drove to the barracks.  He
cannot say how he got to
the barracks in the condition that he was
in.  On his arrival at the barracks, he took his pyjamas,
slippers and service pistol
with both magazines.  The provincial
instruction of the police was that when one was going to be admitted
in hospital for
a long time the service pistol had to be handed in.
He took his clothes and his pistol with the purpose of going to
Gatesville
Melomed Hospital.  He drove out of the barracks. He
could not remember which route he took, that he happened to have
landed
at his house in Delft.  He was just lucky that he did not
get involved in an accident on that specific day.
He
could not know how, what he could slightly remember on arrival at his
house was that he parked his vehicle opposite the front
door of his
house.  He got out of the vehicle. As he could slightly
remember, he parked his vehicle parallel to the deceased’s

vehicle.  They met at the time and he thought she was getting
something out of the vehicle.  They met in front of the

accused’s vehicle, which was opposite the door of the house.
The accused then went on to state:
“
It
is like I said, what more do you want from me. And it is like she
insulted me.  M’Lady as indicated already before
this
Court of Law, my condition at the time, it was in a very bad
situation that I can’t remember everything that took place
on
the specific day.  So what happened, and I can slightly
remember, was she insulted me.  Then I can’t recall
how I
drew my pistol and how everything took place.  I can’t
recall how I landed in the Police Station, which route
I used.
That is how I perished.  It is what I can state before this
Court of Law that happened on that day.  Looking
onto the
evidence before the Court of Law a lot of things are astonishing,
having astonished me, in that I am asking myself a lot
of questions.
How I hadn’t been involved in an accident or something because
I have seen Captain (indistinct) statement,
my commander that I
phoned him on that day which I can’t remember.  M’Lady
on a speaking (sic) ...” –
meant   to be
(honestly speaking):  “... this is regrettable, remorseful
and I’ve got no words to actually
or precisely state, how
regrettable, or rather remorseful the condition, I am faced with,
is.  It is hard that it happened
.”
The
accused went on to state that on the following day, i.e. 4 July 2014,
his brother visited him at the police cells in Bellville
Police
Station.  He asked his brother what happened and where was his
vehicle.  His brother was shocked to hear him asking
those
questions as he told him that he phoned him.  His brother asked
him what he was going to do with the slippers and the
plastic bag he
was given by the police at Delft.  Then he told his brother that
he was leaving from the barracks, and was
actually heading to
Gatesville Melomed Hospital.  How he landed in this place and
how ‘
this happened’
he could not recall, it was
hard but his brother was also trying to comfort him about ‘
this
thing’
.  He asked his brother whether they had met the
deceased’s family.  His brother said they were afraid
because the
accused was still inside and therefore maybe if he were
to get bail they could go and meet with the deceased’s family.

Unfortunately he never got bail and his family never went to see the
deceased’s family.  The accused went on to state
the
following:
“
M’Lady,
this is very, once again and again, unfortunate, regrettable
situation that existed in my life, that somebody’s
life got
lost out of my hands.  I have become severely depressed.
The results of the position I found myself in, and
my emotional
state, was deteriorating.  Yes, it is very regrettable
situation, I am faced with.  The passing of Busiswa
out of my
hands, I don’t know how to describe it. It is such a very
unfortunate situation that I can’t explain how
it really
happened.  I don’t know what happened onto me.  I
acted out of insanity, I acted out of myself.
When I look at
the surrounding things that took place on that specific day, I was
not myself.  I can’t believe myself
today, that truly, I
am the one (indistinct) and the charge against me, and unfortunately
somebody passed on, out of my hands.
It is such a regrettable,
I don’t know what to say, situation that I am faced with.
This is very hard.  It has
been such a long time, a lot of
things, which happened, and I didn’t think M’Lady, that
at that stage, things would
go as far as to somebody’s life
lost out of my hands.  I don’t know. I should think, if
such a provocation that
after so much that has happened which Busiswa
did, cheated on me, and sleeping with her boyfriend’s in my
house, and she
provoked me further, with the interim protection had
triggered my unfortunate depression and anxiety to the point that I
could
no longer be in a capacity to be able to be acting like any
other reasonable, and normal person, in the manner that everything
took place.  It is such a regrettable situation, M’Lady,
once again, that I was distressed and I think the reality that
I
accepted that Busiswa did all these things, made me to experience
severe depression and deep-seated emotional distress. And I
think
unfortunately, if these things hadn’t existed, I couldn’t
be faced with this unfortunate situation.  It
is hard that I am
faced with this very difficult situation.  I don’t know
before this Court of Law what to say.
I so wish that they
couldn’t have ever been anything that had, after so much
terrible experiences of my relationship which
was fraud (sic)
[meant
to be fraught]
with difficulties with
Busiswa, wouldn’t have had anything that triggered the
situation once again.  This is, the unfortunate
situation that
I’m faced with, and this is how I can say this took place.
I can’t recall everything that took
place on that specific
day.  I don’t know what happened. I shouldn’t be
alive. And I don’t know it is hardly
M’Lady, to
understand some of the things, how they were done.  If one is
looking onto, inasmuch as I can’t talk
about that, the 7
th
April, the 25
th
June 2014, nothing happened.  The 25
th
,when
I found out about this thing to the 3
rd
July 2014, nothing happened.  How, which people were looking
onto things, (indistinct), this kind of unfortunate situation
that
triggered all which happened, and which resulted to me being in a
situation where I could no longer reason, where I could
because of
the situation that I experienced, had my ability or power, to control
my emotions as that of a normal person.
How I wish that it
didn’t happen.  It is unfortunate, and regrettable and a
regrettable situation that I’m faced
with and honestly it
happened, unfortunately out of being intended
.”
(sic)
[I think it is a mistake,
it is supposed to be unintended].
“
M’Lady…
it happened unfortunately without being intended.  It was not
intended to have happened, M’Lady.
It was a very
unfortunate situation that happened.  Unfortunately it was not
intended.  It happened out of the fact that
at the time, I was
not myself. I was not in my normal blameworthy state of mind. And the
evidence as having been produced before
this court of law also shows
that the situation was not normal at all.  It is such a
regrettable and unfortunate situation
M’Lady, that I am seeing
myself, in this position.  It is unfortunate but not abilities
that I can make things get back
to where they were. If it was
possible, I will make things to be as they were. It is hard. And it
is very, very regrettable
.”
The
reason I have quoted this verbatim shall become clear later.
Much of the accused’s evidence that followed was the
same.
The accused kept repeating what is quoted above in different ways and
adding that he was not in his normal state of
mind, acting
reasonably, distinguishing between right and wrong.  He was also
shocked when he was told by his brother what
had happened.  He
did not know what happened to him on that day.  He asked for
forgiveness from the deceased’s
family and his family for the
tragic incident and for the passing of the deceased out of his
hands.  This is something that
he never thought would happen one
day.  He wished that their parents were in court to hear what he
had to say.  It was
unfortunate that the person whom he loved at
the end of the day passed on out of his own hands.
The
accused was cross-examined extensively.  His cross-examination
went on for a couple of days.  When pressed about whether
the
treatment by the deceased annoyed him, he maintained that it stressed
him.  He was asked about why he did not leave her,
he stated
that he loved her a lot.  When he left and she asked for
forgiveness he would return home because he loved her a
lot.
I
do not intend to repeat the evidence that he gave in
cross-examination as it is all on record.  The accused repeated
much
of his evidence in chief in cross-examination.  I would
however highlight other important aspects that arose during his
cross-examination
to the extent necessary, in my analyses of the
evidence.
The
next witness for the accused was Masithande Booi (‘Booi’)
who testified that the accused was his nephew, born in
the same
village as he.  The accused had asked him to go and apologise as
an elderly person in a quarrel involving him and
the deceased.
The deceased accepted the apology and he could not remember which
year that was.  In cross-examination,
he could not say exactly
what the quarrel was about, save to say that the deceased and the
accused had a misunderstanding between
each other as lovers.
Vuyani
Memani (‘Memani’) was also called by the accused as a
witness.  The accused applied for admission of hearsay
evidence
to be led by this witness on the same basis as the State.  The
State had no objection.  Memani testified that
he is the
accused’s brother.  He knew about the relationship between
the accused and the deceased since they started
dating, if he was not
mistaken in 2006.  They broke up in 2007 because the deceased
was going to get married.  The accused
got a transfer to work in
Colesberg between 2008 and 2009.  The accused told him that the
deceased called to say that she
wanted the accused by her side
because she was divorcing her husband.  The deceased said they
will assist each other.
In 2009 or 2010, the accused came from
Colesberg and shared a flat with the deceased in Kensington.
The accused complained
that the deceased did not stick to the
agreement and he was paying rent for the flat alone which was in the
region of R3 000.
The deceased was also busy building a
house at her parental home.  Because of the quarrels in the
relationship between the
accused and the deceased, he advised the
accused to marry her as they might be able to pull everything
together.  The accused
told him he was waiting for the
deceased’s divorce to be finalised.  The accused and the
deceased carried on staying
together.  The accused informed him
about their quarrel that involved the deceased refusing to have
sexual relations with
him.  He and a person by the name of
Nonyosi visited the deceased in the accused’s home to try and
resolve the issue.
The deceased told them that she was not a
sex slave.  They came to an understanding after those
discussions.  A few days
later the accused complained again that
the deceased was coming home late.  When confronted about
friends she said she would
not leave her friends.  A few months
later and at midnight the accused informed him that he and the
deceased had a fight and
the accused went to sleep at the garage near
the house.  They would have fights on different occasions and
the accused even
slept at the police station. It was now clear to him
that the accused was not happy in the relationship anymore.
This resulted
in the accused seeking a transfer to the Eastern Cape.
The accused and the deceased eventually left to live in Delft.

Fights between the accused and the deceased involved sex, money and
friends, these fights did not stop.  The accused went
to live at
the barracks.  The accused and the deceased would visit each
other.  In 2013, the accused mentioned that the
deceased was
seeing someone else.  He caught her with another man in the
house.  She was seated on the chair wearing
something short with
this man’s head between her upper legs.  He was surprised
to hear this.  The accused called
him and another person by the
name of Buthi to try and negotiate the issue.  Then there was
another discussion involving a
case of assault that the deceased had
opened against the accused.  The deceased refused to drop the
charges.  The case
was eventually withdrawn.  After that
the deceased reported to him that the accused broke the window at
their home.
He asked his brother why he did  such a thing,
to which he responded that the deceased did not want to open for
him.
The issue of the broken window was resolved.  The
couple forgave each other.  As time went by, and in 2014, the
accused
told him that the deceased was applying for an interdict
against him.  The accused was hospitalised twice at hospital in
Wynberg.
His brain was not functioning properly, that is not to say
he was insane.  Every time the accused and the deceased had
fights
the accused would be hospitalised.  The first time was at
Gatesville and he was there for two weeks.
The
accused was not happy with the interim court order against him by the
deceased.  The accused told him that he was not happy
because
the deceased did not want him to go to the house or talk to her
friends and his pistol was going to be taken from him.
The
accused once asked for the deceased’s financial assistance for
a funeral back home and she called him a gold digger.
The
accused was once removed by the police from his house with the
deceased.  The deceased was admitted at the Bellville Melomed

several times.  She was very sick and could not do anything for
herself.  The accused took care of the deceased.
The
accused told him about an affair the deceased had with a gentleman
from the Flying Squad.  This gentleman told him he
was not the
only one sleeping with the deceased.  The accused complained
about expenses he went through because of the deceased.
At one
point, whilst the accused was living in Kensington together with the
deceased, the accused arrived at his residence with
his bags saying
that he had an altercation with the deceased and wanted to live with
him for a while.  He agreed that the
accused could stay with him
until he had a plan.  The very same night, the accused was
called by the deceased, pleading with
him to go back home so they
could talk.  They had an argument, the deceased persuaded him
until he gave in.  The deceased
came to fetch him.
The
accused told him he would appear in court on 3 July 2014.  He
told the accused he would go to court to support him even
if he
worked the nightshift.  On the morning of 3 July he overslept
and woke up past nine.  He thought he should go to
court.
Whilst he was on his way there and still in the area of Khayelitsha,
the accused phoned and told him that he killed
the deceased.
The accused then said they must meet at the police station in Delft.
He phoned again immediately and
said he must not go to the police
station but to his house.  He went to the house and it was
cordoned off.  The deceased’s
vehicle was parked in front
of their house and her body was a little bit further from the
vehicle.  The accused had not arrived.
The accused arrived later
with the police van. He went to the accused at the police van and
asked him “
why did he do this, was there no other way to do
things
”.  He did not respond and both of them cried.
People
were called, such as the grandmother of the kids that stayed in
Langa, but he did not see them arriving.  Later the

investigating officer phoned him and said he must go and fetch the
accused’s belongings.  He was given a plastic bag
and the
vehicle.  The vehicle contained pyjamas and slippers.  He
took them as well as the vehicle.  The following
day he went to
see the accused at the Bellville Police Station.  The accused
asked him what happened and he also posed the
same question to the
accused.  It came out that the accused was not fine, he was
still in shock.  He was crying as Memani
was talking to him.
The accused did not even realise that he saw him at the crime scene
the day before.  He told the
accused that, he, that is the
accused, was the one who phoned him and also phoned them back at home
(in the Eastern Cape) but he
looked like he did not know that.
He would visit the accused frequently.  After a few days he
asked the accused whereto
he was taking the plastic that was found in
the vehicle.  The accused informed him that when he left the
court he was not
right at all.  He had a headache, he was giving
a thought to being admitted to hospital.  He saw that the
accused was
starting to remember what really happened.  He asked
the accused to tell him what really happened.  The accused told
him that he remembered going to court.  In court, they had a
session and the last thing he remembered was that he had a headache

and dizziness.  He went home to go and fetch some things because
he thought he was going to be admitted in hospital.
It looked
like the court ordered that the firearm be taken away from him.
He did not succeed in his arguments regarding the
firearm.  Even
when the accused was in Goodwood Prison, he would visit him but it
was difficult for him to get what really
happened from the accused.
The accused could only remember the headache and when he left court.
How it came about for
him to arrive at home, he did not know.
When he asked the accused about the shooting part the accused would
cry.  He
decided to stop asking him about the incident until he
got to a point where he remembered.
In cross-examination, he
confirmed that the majority of his evidence was based on what was
reported to him by the accused and the
deceased.  At the
accused’s arrival in Cape Town everything was fine, but things
started to take another turn three
months after his arrival.  He
told the accused that instead of evicting the deceased out of the
house, he could rather sell
his vehicle and go and live at an
informal settlement.  The accused told him that he wanted to go
home and be away from the
deceased.  He sought a transfer to the
Eastern Cape because of the challenges in the relationship. When the
accused told him
about his unhappiness about the interdict, he told
the accused to argue his case in court.  He confirmed that he
had a conversation
with the accused at the crime scene.
REFERRAL OF THE
ACCUSED FOR PSYCHIATRIC OBSERVATION
At
the end of the defence case, when both parties had closed their
cases, the Court was of the view that the defence raised by the

accused appeared to be that of non-pathological criminal incapacity.
To that end, in view of the fact that the accused was
unrepresented
and the fact that no expert evidence was led in regard to his mental
state, the Court thought it important to obtain
expert evidence so
that an assessment could be carried out on the question of criminal
capacity, by the Court having regard to
all the evidence before it.
The Court requested the parties to address it on whether the
accused should be referred for mental
observation in terms of section
78(2) of the Criminal Procedure Act 51 of 1977 (‘the
Criminal
Procedure Act&rsquo
;).
Section 78(2)
states that:
“
If
it is alleged at criminal proceedings that the accused is by reason
of mental illness or mental defect or for
any
other reason
not criminally
responsible for the offence charged, or if it appears to the court at
criminal proceedings that the accused might
for such a reason not be
so responsible, the court shall in the case of an allegation or
appearance of mental illness or mental
defect, and may, in any other
case, direct that the matter enquired into and be reported on in
accordance with the provisions of
s79
.”
The
Court advised the accused of the provisions of
section 77(1)(A)
which
gave it a discretion to order legal representation for the accused if
it is of the opinion that substantial injustice may
be caused.
After some discussion on this point, the accused asked the Court to
assist him in obtaining legal representation
for purposes of
assisting him to make representations to the Court regarding the
issue of possible transfer for psychiatric evaluation
raised by the
Court. A legal representative, Mr Theunissen, was appointed by the
Legal Aid on behalf of the accused.  The
matter was postponed to
afford Mr Theunissen an opportunity to prepare argument on behalf of
the accused.  Having listened
to argument by both parties the
Court ordered that the accused be committed to Valkenberg Hospital
for an enquiry in terms of
section 78(2)
read with
section 79
of the
Criminal Procedure Act.  Subsequent
to the referral, the Court
received a psychiatric report on observation case from Valkenberg
Hospital authored by Professor S Kaliski,
a forensic psychiatrist and
Dr N Dyakalashe, a specialist psychiatrist.  The accused
challenged the report in terms of
section 78(4)
of the
Criminal
Procedure Act.  Professor
Kaliski was called to testify.
He stated his qualifications and experience including the fact that
he is currently the Head
of the Clinical Unit of the Forensic Mental
Health Service and an associate professor in the Department of
Psychiatry at the University
of Cape Town.  He read the report
into the record.  The report essentially found under the heading
‘
Mental State’
, that no symptoms of mental illness
were evident.  In the ward, his behaviour, that is the accused,
and functioning, was normal.
He impressed as being of average
intelligence.  The assessment was that no psychiatric cause
could be determined for the amnesia.
His poor recall of some
details was probably due to his intense emotional state.  His
actions at the time were purposeful
and goal directed and therefore
not due to automatism.  The report further stated that the
accused was not mentally ill and
was not certifiable in terms of the
Mental Healthcare Act 17 of 2002, that he was fit to stand trial and
was able to appreciate
the wrongfulness of the alleged offence, and
act accordingly and that the disposition fairest to the defendant
would be for the
Court to continue with its findings.
In
cross-examination by the State Professor Kaliski testified that in
the last 26 years he has compiled about 3 000 reports
and the
manner in which the report was compiled was standard.
When
asked by the defence to define non-pathological incapacity, he
testified that it is a term created by the courts, it is not
a
medical term.  According to him, non-pathological incapacity was
not an on-going condition but a temporary state that occurs
during
the commission of the alleged offences defined by the courts.
It implies that a person is not mentally ill and does
not have a
problem with his or her brain
per se
.  The psychiatric
term is automatism.  Automatism is the
sine qua non
of
the defence of non-pathological criminal incapacity.  In order
to succeed with the defence of non-pathological criminal
incapacity
there must be evidence of automatism during the alleged offence.
Automatism is a psychiatric term derived from
epilepsy and there are
certain kinds of epilepsy.  There is epilepsy called complex
partial seizures when during the seizures
the person may carry out
what looks like purposeful actions but they are not.  They carry
out aimless actions and the reason
is because their higher cognitive
functions are not working. So automatism really means a person
carries out apparently purposeful
or purposeless actions which are
not under direct control of the cognitive functioning which is one’s
ability to plan, to
be aware of what is going on around him or her,
an appreciation of what he or she is doing. A person who has
automatism has no
appreciation of what they are doing at all.
Virtually every time a person has a seizure they have automatism.
The accused
was checked whether he suffered from epilepsy on 7
September 2016 through an EEG test.  He was found to be normal.
90%
of automatisms are caused by epilepsy but there are other causes
such as presence of a head injury, low blood sugar due to, for

instance, taking too much insulin.  It is very rare for a person
with emotional stress to display automatism especially if
there is
some sort of planning beforehand.  The depressive episodes have
no relationship to epilepsy.  The psychiatrists
used deductive
reasoning to come to the conclusion that a person did not behave in a
state of automatism.  Professor Kaliski
was challenged a great
deal by Mr Theunissen on this aspect who stated that to be Court’s
function.  I return to this
issue later.
He
further testified, that is Professor Kaliski, that the findings were
based on information given by the accused in the interviews
conducted
by him, Dr Dyakalashe and a social worker.  The accused was also
observed by nursing staff.  A panel was held
where the accused
was represented and various people asked him questions.
Professor Kaliski also received court transcripts.
He compiled
the report from all that information.  The accused’s
counsel requested the information used to compile the
report which
was provided, although it was said to be unusual.  Professor
Kaliski testified that automatism can be excluded
in this case
because in automatism one produces behaviour or actions which they
had rehearsed many, many times before - the accused’s
actions
at the time of the offence were no such actions.  Everything he
did he had to be thinking purposefully and planning
what he was
doing.
They
also do blood tests to exclude syphilis and HIV as those may affect
how the person thinks.  The big disorder they are
worried about
is epilepsy.  HIV can cause subcortical dementia, which is a
form of dementia, which can manifest in uncontrolled
inappropriate
behaviour as well as cognitive impairment.  The tests showed
that the accused did not have HIV.  In this
case because of the
history of the headaches they thought they would exclude it.
The accused came with medication prescribed
and they noted that. The
psychologists form part of the panel and they would give their
input.  The psychiatric report and
the file from Valkenberg were
marked as exhibit “W” and “X” respectively.
Although
Mr Theunissen indicated that the accused would be calling any
witnesses on this aspect of referral, the accused was ambivalent
on
this issue as he kept referring to a report by Dr Dhansay that he
would have liked to be taken into account as part of the enquiry

during his referral.  I adjourned the court proceedings several
times to allow Mr Theunissen to arrange for the calling of
Dr Dhansay
as a witness.  After a number of postponements, Mr Theunissen
indicated that the accused did not wish to call Dr
Dhansay.  It
was placed on record that Dr Dhansay wrote a report in support of the
accused’s application for transfer,
that the accused suffered
from severe depression, for which he was treated between 2010 and
2012 and that he was hospitalised in
both instances. It was also
confirmed by Mr Moeketsi that the State did not dispute that Dr
Dhansay had compiled a report with
those contents.
Having
considered the psychiatric report from Valkenberg and the evidence of
Professor Kaliski and having listened to the submissions
by both the
State and the defence on the referral of the accused and in the
absence of evidence rebutting the evidence of Professor
Kaliski and
the psychiatric report, the Court accepted the findings by Professor
Kaliski and Dr Dyakalashe and adopted it as its
findings and ordered
the trial to proceed.  Both parties were given an opportunity to
re-open their cases in view of the fact
that the referral of the
accused for psychiatric evaluation was done at the instance of the
Court after the close of their cases
and Professor Kaliski gave
evidence thereto.  Both parties indicated that they will not
reopen their cases.
Mr
Theunissen indicated that he will continue to represent the accused
for the rest of the trial and that was confirmed by the accused.
Each party was given an
opportunity to address the Court in argument.
HEARSAY EVIDENCE
Hearsay
evidence was led by Mhambi and Centane for the State.  As
already indicated, although the accused had indicated that
he would
not object to hearsay evidence being adduced concerning utterances
alleged to have been made by the deceased to the witnesses,
I was
still of the view that, because the accused was not legally
represented, the State still needed to satisfy the Court that
it was
in the interest of justice that the evidence be admitted in terms of
s3(1)(c) of the Law of Evidence Amendment Act.
The State
applied for that evidence to be admitted and I allowed it.
In
S v Ndhlovu and Others
2002(2) SACR 325 (SCA), Cameron JA
stated that at 337D that:
“
...a
trial court, in applying the hearsay provisions of the 1988 Act, must
be scrupulous to ensure respect for the accused’s
fundamental
rights to a fair trial
.”
I
am of the view that the fair trial rights of the accused against whom
the State sought to have evidence admitted were observed
in this
present matter.  The accused was informed by the Court of the
relevant provisions of section 3(1) of the Law of Evidence
Amendment
Act and they were explained to him in great detail.  The case in
Hewan v Kourie N.O. and Another
1993(3) SA 233 (T) at 239B-G
dealt with the manner in which the Court should deal with the
provisions of Section 3(1)(c).
In
a criminal case when considering all the factors set out in section
3(1)(c) the Court in determining whether it would be in the
interests
of justice to admit hearsay evidence, the overriding factor in
assessing each of the factors listed therein would be
whether it
would impact on an accused’s right to a fair trial in terms of
s35(3) of the Constitution 1996. See
S v Molimi
supra
at paras 36 and 42.  I will now deal with the factors set out in
section 3(1)(c).
As
regards the nature of the proceedings, this being a criminal trial,
it is apparent that some of the hearsay evidence led by Mhambi
and
Centane is of an incriminating nature and may be, if sufficient
weight is attached to it, considered as evidence which may,
viewed
with other evidence, lead to the conviction of the accused.
This Court is well aware of that fact and the general
reluctance a
court should have in admitting such evidence as cautioned in
S v
Ramavhale
1996(1) SACR 639 (A).
In
regard to the nature of the evidence, the manner in which the
evidence led by Mhambi and Centane came to the fore, was as a result

of the relationship they had with the deceased and the accused.
Mhambi was a very close friend of the deceased.  She
was the
person to whom the deceased confided about her relationship with the
accused.  They worked together in the same workplace
and often
spent time together talking about the relationship of the deceased
and the accused.  Mhambi had at some point stayed
at the
deceased’s house in Delft. Centane on the other hand was a
sister of the deceased to whom both the deceased and the
accused
reported their problems in the relationship.  The two witnesses
also witnessed some of the incidents as illustrated
in their evidence
and were also sent text messages by both the deceased and the
accused.  I cannot detail all of their evidence
again, as the
bulk of it had to do with what they were told by the deceased
regarding the nature of the relationship with the accused,
that
appears in the summary of their evidence.
As
to the purpose for which the evidence was tendered, the obvious
purpose was to show the tumultuous or troubled relationship between

the accused and the deceased and utterances made by the deceased to
them up until her death.  It served to corroborate the
case of
the State as to what the circumstances were, leading to the killing
of the deceased and to suggest that the deceased had
made statements
to them such as that the deceased told them that if he could not have
her no one will.
In
assessing the probative value of statements, the reliability and
completeness of the manner in which the State witnesses had
relayed
the words of the deceased is important.  The reliability and
completeness of whatever it was the deceased said to
them is also
important.  The bulk of the utterances alleged to have been made
by the deceased were confirmed by the version
that the accused put to
the witnesses.  He however disputed some of the utterances
including the context in which those were
made.  Without getting
into the details or mentioning all of them, I will mention those he
disputed that I thought were crucial
to the assessment.  Those
are, firstly, the statement that was made by Mhambi that the deceased
told her that the accused
said to the deceased if he could not have
her no one will as I have already indicated.  Secondly, the
statement that the deceased
had a gut feeling that the accused was
going to kill her, shortly before she was due to appear in court for
the hearing of the
interim protection order and that the accused
would kill her in court.  Centane also mentioned a statement by
the deceased
that the accused said he would kill her.  The
accused also disputed that he was abusive to the deceased and in fact
averred
that it was the deceased that abused him emotionally,
psychologically and socially.  He also disputed that he was
dangerous
and that he assaulted the deceased.  According to him,
the assault was once and that matter was resolved.  He also
disputed
that “he was dumped by the deceased” as alleged
by Mhambi in the statement to the police and that they were no longer

in a relationship.  There are other disputed facts which can be
found in the record.
The
accused also pointed to discrepancies between the statements made to
the police and the testimony of the witnesses, and the
fact that
Centane, in her police statement, did not state that the content of
the statement or some of it were statements told
to her by the
deceased.  To this end, the accused argued that the evidence of
these witnesses was not credible and should
be disregarded by the
Court.
The
Court is mindful of the close relationship that the deceased had with
these witnesses, and therefore caution should be applied
in assessing
the evidence that is potentially incriminating to the accused,
especially regarding the statements made about the
deceased telling
the witnesses that the accused was going to kill her or that she had
a feeling that he was going to kill her.
The
State argued that the statements made by the witnesses largely
accorded with the content of the application for the interim

protection order made by the deceased, which the accused introduced
to the Court for purposes of cross-examining the State witnesses.

I will not focus too much on the content of the application for the
protection order itself.  I am alive to the fact that
it was
introduced by the accused with the view to using parts of it to
contradict the testimonies of Mhambi and Centane.
It should be
remembered that the accused was not legally represented, therefore
the content of the application, whilst it is before
the Court,
should also be treated with caution.
The probative value in my
view of the evidence of Mhambi and Centane did not only depend on the
quality of the evidence, but also
on the totality of the evidence
that was presented.  This would include the evidence of the
other State witnesses, especially
where the evidence was closely
related to that which the hearsay statements referred to.  The
State submitted that the evidence
of the said witnesses on the whole
went to show that the deceased, as a result of the problems that
characterised her relationship
with the accused, went to the extent
of informing other people and even applying for an interdict.
Therefore, before the
alleged offence was committed there were
problems which led to the committal of the offence. The accused’s
own version put
to the witnesses confirmed some of their evidence.
I have already alluded to the fact that some of the context and
statements
were disputed by the accused during the versions that he
put to the witnesses.  There was other evidence by the State
witnesses
which could not have been fabricated which may serve to
strengthen the probative value of the evidence of Mhambi and
Centane.
The
reason why the maker of the statements did not give evidence is
obvious, the deceased passed away.
As
to the aspect of prejudice, some of the evidence is prejudicial to
the accused as would be in any incriminating evidence.
On the
other hand, as the accused stated the evidence of these witnesses
serve to bring light to the nature of the relationship
with the
deceased.  The evidence was fully canvassed in court, witnesses
were challenged in cross-examination and argument
was held on whether
on the grounds set out in section 3(1)(c) of the Law of Evidence
Amendment Act it should be admitted.
Given these safeguards,
the interests of justice justified the admission of this evidence.
In
my view, even though some of the evidence may be prejudicial to the
accused, there is no risk that his fair trial rights would
be
infringed if the Court in the interests of justice admitted this
evidence.  It is under this overall protection that any

prejudicial evidence is admitted during a criminal trial, obviously
with the added caution, that such evidence is hearsay and that
the
Court should be vigilant in admitting it without good and compelling
reasons.  It would have been illogical or not sensible
in my
view for the Court to disregard that evidence.
The
accused also applied for the admission of hearsay evidence to be led
by his witness, Memani regarding the nature of his relationship
with
the deceased as well as the utterances by the deceased and the
accused to this witness.  The State did not object to
the
admission of the evidence of this witness and no further enquiry was
required, as section 3(1)(a) was fulfilled by virtue of
that
agreement.  In any event the interests of justice would have
similarly called for this witness’ evidence to be
admitted.
This witness was also
intergral in the relationship between the deceased and the accused.
He also received telephone calls,
complaints, messages from the
deceased and the accused and was involved in meetings trying to
resolve problems between the accused
and the deceased.
ASSESSMENT OF EVIDENCE
The summary of the
evidence of Mhambi, Centane, the accused and Memani paints a picture
of a very troubled and tumultuous relationship
between the accused
and the deceased.  I do not wish to repeat the evidence, as what
I have outlined in respect of each of
these witnesses sufficiently
reveals the turbulent nature of this relationship.  It was an
unhappy relationship from the outset,
filled with emotional stress
and turmoil.  It appears that even before the accused moved to
Cape Town, when visiting the deceased
on his off days in 2010, the
couple had fights and arguments and he was not happy with the manner
in which the deceased treated
him in front of the children.  He
lay in hospital for twee weeks due to depression, during that period,
but yet he moved to
Cape Town and the two lived together.  There
was always hope that things would get better.  He made a number
of discoveries
in Cape Town including that the deceased was not
prepared to keep to her promise that she would assist him financially
when he
moved to Cape Town, whilst expecting him to pay the full rent
and still build his house in the Eastern Cape.  She was on the

other hand building a house at her own homestead.  He was also
dismayed to discover that the deceased had contracted HIV but
had
failed to disclose that to him.  He nonetheless stayed in the
relationship and endured the treatment he felt he was being
subjected
to.  He further caught the deceased with another man in a
sexually compromising state. This and other reports from
colleagues
about the deceased’s unfaithfulness strongly devastated him and
caused severe emotional stress.  This indeed
was a bitter
relationship, filled with hardships, regrets, doubts and suspicions
as depicted by the evidence by both sides.
From the evidence of
the accused it is clear that this manifestly affected him in many
ways, he was hurt, disappointed, humiliated,
he felt betrayed and he
was deeply scarred.  As he puts it, he was affected emotionally,
psychologically and socially and
felt like he was treated like a
non-object.  The deceased too seemed to be unhappy, Mhambi and
Centane who told her side of
the story gave accounts of messages and
conversations they had with the deceased which showed her misery.
She applied for
an interdict against the accused.  It is so that
the accused intended to oppose it and refuted the allegations made by
the
deceased against him as he did not know what its purpose was.
He further disagreed with the version of the State witnesses
relating
to his alleged treatment of the deceased.  In cross-examination,
he testified that he and the deceased were no longer
together and he
made a decision to no longer set foot at his house.  He
therefore did not see the purpose of the interdict.
He
concluded that there was a conspiracy to dispossess him of his
working tool by the deceased and her family which indeed caused
him a
lot of stress as he put it, it reminded him of all the things that
had happened in the relationship in the past and triggered
a
depressive emotional situation that he had never experienced before.
Whatever the purpose of the interdict was, it extremely
devastated
the accused.  Perhaps it is appropriate to state what the
contents of the interim court order were, at this point,
as they were
canvassed during cross-examination.  In terms of the order the
accused was ordered inter alia:
Not
to assault or threaten to assault the complainant, i.e. the
deceased/children.
Not
to enter the complainant’s, i.e. the deceased’s,
residence/premises at 24995 Muhavura Street, N2 Gateway Leiden

Delft.
There
was also an additional order that the firearm of the accused be
seized by a member of the SAPS at Pinelands which was key
to the
triggering of the severe stress.  The return court day was 3
July 2014.  I am mindful of the fact that the accused
refuted
the allegations made against him by the deceased and felt that she
had no right to keep him away from their house and was
unhappy about
his firearm being taken away from him.  Whatever the issues
around the interdict were, the point is it existed
and as the accused
put it in his evidence it worsened his already dilapidated emotional
state and triggered “the whole thing”.
That forms the background
of the issue to be determined by the Court.  The issue before
the Court lies on whether the elements
of the crime the accused is
charged with were proved.
ISSUES TO BE
DETERMINED
Murder is defined as an
unlawful and intentional killing of another person. The elements are
therefore:
Unlawful;
Killing;
Of
a person and;
Intention.
See
Jonathan Burchells’
Principles of Criminal Law Fourth
Edition
at page 563.
It
is common cause in this case that the deceased was shot and killed
with a pistol belonging to the accused.  It is also common
cause
that she died from multiple gunshot wounds resulting from the
shooting.
It
seems to be accepted by the accused that the deceased was shot and
killed by him. This is apparent from the version he put to
the State
witnesses that the deceased died at his hands and from his own
evidence that he caused the death of the deceased.
Therefore,
from the evidence, the accused does not dispute that he shot and
killed the deceased on the day in question, nor that
his action
caused her death.  What is placed in issue is the question of
his criminal capacity at the time of the incident.
In a
nutshell, the version of the accused is that he cannot recall what
took place during the incident.
LEGAL POSITION
Burchell
correctly observes at 247 that:
“
[p]ersons
are responsible for their criminal conduct only if the prosecution
proves, beyond reasonable doubt, that at the time the
conduct was
perpetrated they possessed criminal capacity or, in other words the
psychological capacities for insight and for self-control
.”
The State must prove beyond reasonable doubt that, at the time of the
fatal attack, the accused had the necessary capacity.
According
to
Burchell
the test is whether an accused had criminal
capacity to appreciate the wrongfulness of his or her conduct and the
capacity to act
in accordance with this appreciation (at 247).
He advocates that criminal capacity is examined in the context of
cognitive
faculties (i.e. the individual’s capacity to think,
perceive and reason, the capacity by which humans learn, solve
problems
and make plans) and the connective faculties which is the
capacity for self-control and the ability to exercise free-will.
Our
courts have over the years analysed the meaning of these concepts
culminating in the judgment of
S v Eadie
2002(1) SACR 663
(SCA) that crystallised what criminal capacity and in particular
non-pathological incapacity is and how courts
should apply the
principles arising therefrom.  Navsa JA in
Eadie
supra
went through a history of cases that dealt with this topic and
carefully analysed findings of various courts and in particular
the
approach that had been followed in previous judgments of the SCA and
by academic writers.
For
purposes of this case, the starting point is to understand what
criminal incapacity is.  Navsa JA points out at para 26
of
Eadie
that:  “
In our law, criminal incapacity due to mental
illness is classified as pathological incapacity.  Where it is
due to factors
such as intoxication, provocation and emotional
stress it is termed non-pathological incapacity.  The term
non-pathological
incapacity was coined for the first time by Joubert
JA in
S v Laubscher
1988(1) SA 163 (A) at
167D-I
.”
Apparently
by coining this term Joubert JA wanted to differentiate this defence
from that of mental illness created by
section 78
of the
Criminal
Procedure Act.  The
application of this term as well as the law
developed with a number of decisions that applied it.
Incidentally a number of
decisions that Navsa JA looked at in
Eadie
involved the killing of a person by someone that he or she had a love
or close relationship with, at some point or the other, which
is
similar to the facts in the present matter.  The distinction in
those cases might lie on the nature of the defences raised
and other
nuances on the facts applicable in those other cases.  For
instance, in the case of
S v Francis
1999(1) SACR 650 (SCA)
the accused had a relationship with the deceased.  He was
strongly attached to her and was jealous
of the attention that she
gave to other men.  On the day of the offences, the accused in
that case had been drinking heavily.
In the evening, he went to
the deceased’s home where he found the deceased’s
father.  An altercation ensued between
the two men. The accused
just fired a shot at the deceased’s father’s head which
passed close to his ear.  The
accused then started kicking down
the deceased’s bedroom door and entered the room.  He held
the deceased hostage.
Various people and the police attempted
to talk to him.  To cut it short, he shot and killed the
deceased.  The accused
contended that he acted in a state of
non-pathological criminal incapacity with the result that either he
was unable to distinguish
right from wrong or if he could he was
unable to control his actions.  The Court agreed with the
evidence of the psychiatrist
called by the State that there was a
series of deliberate actions by the accused before, during and after
the acts in question
and he was able to distinguish between his
victims.  In that case it was also found that he lacked
credibility.  In
S v Kok
2001(2) SACR 106 (SCA) the
accused was a superintendent in the SAPS.  It appears that a
dispute arose between the accused’s
wife and a colleague.
After work one afternoon the accused was called by his wife telling
him that the sheriff had come to
attach the property.  He went
home and found his wife and child in a distressed mood and proceeded
to the colleague’s
home with his pistol.  The accused shot
at both his colleague and her husband and they were killed.  He
contended that
he lacked criminal capacity denying that he acted
consciously and voluntarily or was capable of forming an intention to
kill.
His evidence was supported by a psychiatrist who said
that he was suffering from major depression and a condition known as
post-traumatic
stress disorder.  It appeared that the accused
was subjected to stress, particularly in relation to his duties as a
policeman.
In that case the Court held at 115 I – 116 B:
“
Loss
of temper, that is to say failure to control one’s emotional
reactions, is not to be confused with loss of cognitive
control (see
S v Henry 1999(1) SACR 13 (SCA) at 20d-f).  The fact that he
could recall these events some days later indicates
that he knew what
he was doing and is inconsistent with the hypothesis that he was
re-enacting some memory in a dissociative state
.”
The
Court went on to say:
“
It
may be that the appellant whether consciously or subconsciously,
subsequently repressed his memory of the events he described
to Dr
Dunn
.”
Navsa
JA observed further in
Eadie
that from the decisions of the
SCA it was clear that the Court approached defences of
non-pathological incapacity with caution
and the approach has been to
carefully consider the accused’s
actions
before, during
and after the event.  The Court took into account whether there
was planned, goal-directed and focused behaviour.
Navsa JA went
on to say that the SCA has repeatedly stated that a detailed
re-collection of events militates against a claim of
loss of control
over one’s actions (at paras 43 and 44).  I am alive to
the fact that the accused in this case asserts
that he could
“slightly” remember the events he recounted on the day
just before the incident.  I return to this
issue later.
Perhaps
it is also relevant to refer to the decision of
S v Arnold
1985(3) SA 256 (C) where the accused shot and killed his wife.
It was contended on behalf of the accused that, at the time
when the
fatal shot was fired, because of emotional stress he did not have the
criminal capacity and hence could not be held criminally
liable for
the shooting.  The accused said he could not remember aiming the
gun and pulling the trigger.  He stated that
he heard the shots
going off, saw his wife suddenly going down and he found himself with
his arm outstretched, gun in his hand
pointing towards the place
where the deceased had stood with his finger on the trigger.  He
was remorseful afterwards.
Burger J found that he was indeed
upset about the events prior to the incident. He further found that
the State had not proved
that the accused either could have
appreciated the wrongfulness of the act or, if he did, that he was
able to act in accordance
with such appreciation.
The
SCA in
Eadie
criticised Burger J in
Arnold
for readily
accepting the accused’s
ipse dixit
or ‘say-so’
about his state of mind because the evidence showed that his
behaviour was focused and goal directed before,
during and after the
event.  According to the SCA that was not given adequate weight
by Burger J.  The SCA found that
the test for criminal
incapacity as laid down by the decisions of that Court, which stood
for decades, was J misapplied by Burger
J. It further found that
these principles were also misapplied in other High Court decisions
that Navsa JA referred to.
The
SCA in
Eadie
supra
went on to state at paragraph 65:
“
To
maintain the confidence of the community in our system of justice the
approach of this Court, established over almost two decades
and
described earlier in this judgment, should be applied consistently.
Courts should bear in mind that the phenomenon of
sane people
temporarily losing cognitive control, due to a combination of
emotional stress and provocation, resulting in automatic
behaviour,
is rare.”
It
went on to say that:
“
It
is predictable that accused persons will in numbers continue to
persist that their cases meet the test for non-pathological criminal

incapacity.  The law, if properly and consistently applied, will
determine whether that claim is justified
.”
APPLICATION OF
PRINCIPLES TO THE FACTS OF THIS CASE
Applying
the facts of this case to the principles enunciated by the decisions
above, the accused in the present matter testified
essentially that
he suffered from emotional stress or severe depression that was
caused by the deceased’s actions and behaviour
throughout their
relationship and such was aggravated by the Bellville Magistrates’
Court’s interim protection order.
The
essence of the defence is that he could not recall the actual
shooting and what happened thereafter until the next day when
his
brother, Memani, came to see him at the police cells.  It is
therefore important to look at his recount of the events
of the day
coupled with the actions that manifested on the day in question.
When
recounting the events of 3 July 2014, the day of the incident, the
accused testified that he woke up in the morning from the
barracks.
He went to the Bellville Court as instructed.  He sat in front
of the office which was where the matter was going
to be heard.
The deceased appeared, he greeted her and they just sat there.
The registrar came out and called their
names.  They were
directed to another Court, which is the Family Court in Bellville.
The
magistrate asked if they were continuing with this. The deceased said
‘yes’.  The magistrate turned to him
and said he
must have familiarised himself with the contents of the interdict and
what was his position.  He told the magistrate
he was opposing
it.  He told the magistrate that he was working at the station
looking after the structure and it was important
that he has a
firearm.  He was asking that his firearm be excluded from the
provisions of the interdict as it had nothing
to do with it.
The magistrate said to him the fact that the firearm did not form
part of “this thing” did not
mean it could not be taken.
He
produced the report by Dr Dhansay.  Having looked at the letter,
the magistrate said:  “
This application is very recent
than this letter, I’m not going to attend to this, I am going
to look into it on the 30
th
or the 31
st
.
”
The matter was then postponed to 30 July 2014.  The magistrate
had earlier asked how the deceased felt about
the accused’s
firearm been taken, she said she was not feeling safe at all.
At this point, it is clear that the accused
remembered in detail what
was taking place in court and could appreciate his surroundings.
Moving
from there, he says that he fell on his face on a pulpit like
structure that was in court and cried.  He felt weak and

suffered from a terrible tension headache.  It was like he was
seeing bubbles, same as when it is sunny.  His sight was
sort of
lost a bit.  He felt like his head was stuck.  He went to
his vehicle, sat there a bit.  He tried to close
his eyes in
order to regain proper sight.  Suffering from all these
experiences, he drove.  Still, the accused could
remember in
detail what was happening at that point in time - even in that
condition (he had never felt like that before).
As
he was driving, he thought of going straight to the doctor to be
admitted.  He drove to the barracks, himself and by himself,
in
the condition that he was in.  On his arrival at the barracks he
took his pyjamas, slippers and service pistol with two
magazines that
must be handed in.  The accused still on this part could
remember the details of what he was doing, from driving
to the
barracks, taking his clothes, pistol and two magazines.  He also
remembered what thoughts were going through his mind
such as the fact
that he wanted to get himself admitted at the hospital for a few
days.
He
states that, according to the provincial instruction, when one is to
be admitted to hospital, they must hand in their firearm.
What
seems interesting about this comment is that the handing in of the
firearm would appear to have been primarily motivated by
the fact
that the accused was going to be admitted to hospital and for that
reason was obliged to hand the firearm in, in terms
of the provincial
instructions, and not necessarily, as it appears, to comply with an
interim Court order.
Be
that as it may, returning to the recounting of events, the accused
states that he does not know what happened to him after driving
out
of the barracks.  It would appear that his condition at this
point was deteriorating.  He remembers driving out of
the
barracks and does not know how he landed at their house in Delft
whilst his destination was going to the hospital.  He
also does
not remember which route he used.  He testified in
cross-examination that there are a number of routes to Delft
from the
barracks.  In fact there were three routes he could take from
the barracks to the house in Delft and he had no preferred
one. He
could take any route.  There was no straight road.  He
conceded that the drive from his house to the barracks
was quite a
distance.  Although he could not give an estimation of how long
it took, he testified that he would normally get
to his house from
the barracks within an hour.
He
conceded that the three routes had robots, turns, stop streets and
traffic circles.  He would have had to stop at the stop
signs
and traffic lights and be cautious of other vehicles necessitating
him to apply brakes, and drive the vehicle in a manner
watchful of
the road signs and looking out for other drivers.  In fact, he
testified that when he gets to Delft there are
lot of stop signs and
circles.  He did not get involved in an accident and did not
know how that did not happen.
A
conclusion that can be drawn from this evidence is that whilst the
accused was in intense emotional state, his cognitive faculties
were
still functional when he was driving to Delft.  In other words,
he could control the vehicle on the road.  His vehicle
was a
manually operated vehicle.  He therefore would need to change
gears, press pedals, and brakes.  He also conceded
that if there
was a psychological or physical impediment, he would not be able to
do that and if there was something disturbing
his focus he would
manoeuvre the vehicle appropriately.
Surely
these actions are not consistent with that of a person whose
cognition was disturbed during that period.
It
can be accepted that a lot of things were going through his mind
whilst he was driving because he was affected by the interdict,
but
that did not mean that his cognitive abilities were not functional.
At that stage, he must have been aware of his surroundings.
He
must have been aware of where he was going.  This is more so
because when he reached the house in Delft, he realised where
he was
and at this point he did not say “oops I am at the wrong place
and I need to turn around”. Especially because
he was not
supposed to be there as per the Court interim protection order.
So at least then he seems to have been conscious
of where he was,
albeit ‘slightly’, as he testified.  He did not act
surprised when he found himself at the Delft
house.  It is
strange that he would not remember anything on the road but gets to
remember his arrival at Delft and that he
parked his vehicle parallel
to that of the deceased at the Delft house.
Now,
when he reached the house at Delft, the accused starts to remember
the events vaguely.  He made it a point to stress to
the Court
that his remembrance was slight when he parked his vehicle and saw
the deceased’s vehicle parked opposite the house.
He
parked his next to hers.  They met and at the time she was
taking something out of the car.  He that it is like he
said
“
what more do you want from me
” and she insulted
him.  In fact he could slightly remember she insulted him.
He could not recall how he drew the
pistol and how everything took
place.  In cross-examination he said the curtain just closed.
He could not recall how
he landed in the police station, which route
he used.  He was astonished when looking at the evidence.
He asked himself
a lot of questions, how did he not get involved in
an accident.  He could not remember phoning his commander
(Ntshingila)
that day.  He was shocked to hear from his brother
about what he was told about the previous day.
The
accused described his condition that day in a number of ways which I
mentioned when I was summarising his evidence.  This
description
seems to suggest that the accused’s actions would have been
triggered by a state of heightened emotional stress,
caused by the
deceased’s behaviour over the years and provoked by an
interdict and insults that the deceased hurled at him
on the day of
the incident after asking her what she wanted him to do, having
obtained the interim order against him.  In
cross-examination he
stated that if nobody conspired against him for his firearm to be
taken away, he would not have deteriorated
to the point that resulted
in the existence of the situation he was faced with.
It
is interesting to note that whilst the accused states that he was
intending to go to hospital and not his Delft house, the description

of his condition that he mentioned and the statements he made in
relation thereto do not accord with someone who happened to find

himself at a place he was not intending to be.  He seems to be
justifying his presence at the house and actions that followed
when
he states for instance that if the deceased had not treated him the
way she had and further provoked him with an interim interdict
he
would not have been depressed to the point of losing his normality or
rationality.  It seems striking that the accused
who intended to
go to hospital, will suddenly find himself at the Delft house
immediately after the Court appearance and at the
time when he was
highly affected by what transpired in Court.
The
defence that the accused is raising is that of amnesia.
According to Du Toit
et al
Commentary on the
Criminal
Procedure Act
at
13-21:
“
For
purposes of criminal responsibility, amnesia is only relevant insofar
as it refers to the instance where something does not
register in the
mind of the accused at the time of the act because brain function is
impaired at that time
.”
No
one else was present when the accused shot the deceased. It was only
him and the deceased.  In assessing criminal capacity
Griesel J
in
S v Eadie
2001(1) SACR 172 (c) at 180g-I said:
“
.
..the
court must have regard not only to the expert medical evidence but
also to all other facts of the case, including the reliability
of the
accused as a witness and the nature of his proved actions throughout
the relevant period.  By the very nature of things,
he is the
only person who can give direct evidence as to his level of
consciousness at the time of the commission of the offence.
His ipse
dixit to the effect that his act was involuntary and unconsciously
committed or, as in the present case, that he had ‘lost

control’ must therefore be weighed and considered in the light
of all the circumstances and particularly against the alleged

criminal conduct viewed objectively.
”
In
this case the accused said he could not recall what happened.
Professor Kaliski testified that the whole point about automatism
is
that there should be no antecedent event that leads to the conclusion
that what the person did during automatism was a logical
extension of
what the person was doing before the automatism.
The
accused, when he reached his home in Delft, got out of the vehicle
which he had parked next to the deceased’s, had a conversation

with her and she then insulted him, he held a gun (which he does not
recall), and fired all the shots contained in the full magazine
that
carried at least 15 rounds directed at the deceased.  That
sequence is logical.
When
shooting at the deceased the accused would have had to pull the
trigger a number of times in order to fire shots aimed at the

deceased.  One can therefore deduce that he knew what he was
doing, because all his actions, getting out of the vehicle (having

driven to the deceased’s house and parked his vehicle next to
her’s), talking to the deceased, and shooting, (which
he cannot
remember), form a logical sequence. Therefore before the shooting
there was a prior rational action.
According
to Hill, the pistol that the accused was using required one to pull
the trigger for each shot.  The pistol that the
accused used was
not capable of discharging more than one shot with a single
depression of the trigger.  The accused would
have had to pull
the trigger for every shot fired in order to shoot all the bullets.
The accused agreed in cross-examination
at the end of the day that
for several shots to be fired there had to be movement of the index
finger backwards and forwards.
The finger was not just placed
there and bullets flowed automatically. It follows therefore, that
for that to happen there had
to be a level of consciousness.
According
to Professor Kaliski automatism can be excluded in this case because
in automatism one produces behaviours or actions
which they had
rehearsed many times before and the accused’s actions at the
time of the offence were no such actions.
Everything he did had
to be of a person thinking purposefully and planning what he was
doing.  Mr Theunissen submitted that
the accused as a policeman
had practices pulling a trigger many times.  The point is that
the action of pulling a trigger
in this case flowed from a logical
extension of events that would not have been rehearsed before, i.e.
the getting out of the vehicle,
talking to a person, being insulted,
and pulling a trigger as many times.  The circumstances would
have been different when
practicing as a policeman.  I find that
the actions of the accused were goal-directed; focused before, during
and after the
incident.  The accused was aware of his
surroundings and could appreciate the consequences of his actions.
His version
that he could not recall what happened due to heightened
emotional stress at the time of the incident is rejected as not being
reasonably possible.
The
evidence of the three witnesses, Ntshingila, Fredericks and the
accused’s brother, Memani, is crucial as it relates to
the
actions of the accused immediately after the shooting incident and of
the day in question.  It will be recalled that from
the case law
I have analysed above, the Court in testing the accused’s
evidence about his state of mind at the time of the
incident, would,
inter alia,
look at his prior and subsequent conduct or
actions.  After the incident, the accused drove himself in the
vehicle to the
police station to hand himself over and told
Fredericks that he had killed his ex-girlfriend.
In
cross-examination he testified that from his house in Delft to the
police station was a long way.  He conceded that when
driving
from the house to the police station he would encounter circles, and
some turns.  He would have had to drive carefully
and safely and
focus so as not to cause an accident, either to himself or other road
users such as pedestrians and drivers.
He agreed that if he was
not focused he could cause accidents.
In
the first instance to drive a vehicle when a comprehension of the
surroundings is not there, from the house in Delft to the police

station, is inconsistent with a complete black-out.  It must be
remembered that according to the accused the ‘
curtain
closed
’ during the incident and he could not remember what
he did thereafter for that whole day.  He woke up at the police
station the following day.
The
accused used a phone to phone his brother and told him that he killed
the deceased.  He further told him to meet him at
the police
station.  Immediately thereafter he called him again to say he
(his brother) must rather go to their house in Delft.
When his
brother got there, what the accused told him on the phone was
confirmed by what he saw.  The accused and the police
then
arrived.  So, the accused would have known that he was on his
way to Delft when he called his brother with the police.
That
is behaviour of a person who knew what had happened and what he was
doing.  Yes, the accused was emotional and crying
when Memani
saw him, but a person who was not aware of his surroundings would not
have been able to relate the incident and even
direct his brother on
the phone to where he was.
The
accused also phoned his commander Ntshingila and told him that he
killed his girlfriend.  In order to phone both his brother
and
the commander he would have had to find their numbers from the
phone.  When he went to hand himself over to the police,
he must
have driven there knowing that a wrongful act had been committed.
In other words, he could distinguish right from
wrong; hence he drove
to the police station and asked Fredericks to arrest him.
None
of the witnesses spoke of the accused looking like he had lost his
mind and was acting strange. Even if the witnesses are not

psychiatrists or psychologists, they would have at least been able to
testify about the actions they observed, especially the brother
of
the accused.  There is no evidence that the witnesses were
complicit regarding the information they received from the accused.

Most importantly, the State witnesses’ version was corroborated
by Memani.  Even without Fredericks’ evidence,
the other
two witnesses’ evidence sufficiently paint a picture of a
person who was acting rationally.
The
evidence by the deceased’s neighbour, Davids, should not be
forgotten.  He saw a white vehicle after the incident
and
someone got out and felt the pulse of the woman; he (this person)
said she is gone and he got back into the vehicle and drove
off.
Although this evidence was not explored much, it is possible that the
person in the white vehicle that the witness saw
was the accused.
I will however not give much weight to that since the witness did not
testify about the identity of the
person in the white vehicle.
Professor
Kaliski and Dr Dyakalashe acknowledged in their psychiatric report
that the accused’s poor recall of some detail
was probably due
to his tense emotional state.  As the Court said is
S v Kok
supra,
it may be that the accused’s lack of memory about
the events may be because the accused consciously or unconsciously
subsequently
repressed such memory, which is different from amnesia
that arose because of the cognitive faculties not functioning due to
emotional
stress (at the time of the incident).  Furthermore,
his lack of self-control, if any, could only serve as a defence if
the
accused was acting in a state of automatism.  As the Court
in
Eadie
concluded at para 70 inter alia:
“
...
It
must now be clearly understood that an accused can only lack
self-control when he is acting in a state of automatism.  It
is
by its very nature a state that will be rarely encountered
.”
The
rarity of the occurrence of this state was confirmed by Professor
Kaliski. While he acknowledged that severe depression may
cause
automatism he stated that it was rare and it was not the case with
the accused.
The
Court accepted the evidence of Professor Kaliski.  He was
criticised a great deal by Mr Theunissen.  While agreeing
that
ultimately it is the Court’s function to determine the
accused’s criminal responsibility for his actions at the

relevant time, non-pathological criminal capacity has an element of
automatism.  In my view, whilst expert evidence is not
solely
determinative of the question of criminal capacity, it is valuable as
part of the evidence to be looked at by the Court.
The
psychiatric report, as well as Professor Kaliski’s evidence,
was of great assistance to the Court and crucial.
The
assessment of the accused by the professional medical experts as well
as the evidence in Court brought valuable insights to
the questions
that the Court had to determine.  The report, and the evidence,
was clear and logical.  There was no evidence
to rebut it.
Whilst
the Court accepts that the accused suffered from severe depression
there was no evidence that the condition he suffered from
was
connected to automatism.  I take note of the fact that this
would have been the first time that the accused’s condition

would have caused him to act in the manner that he did.  There
was no evidence that he has ever been in a state of automatism
before
although he has been suffering from severe depression for a long
time.  Be that as it may the connection between his
emotional
state and his loss of memory on that particular day was not shown.
It must be remembered that the Court does not
only look at the
accused’s
ipse dixit
or say so.  It looks at
all the factors that I have referred to.
The
Court in
Eadie
further impressed at para 70 that “
in
future, courts must be careful to rely on sound evidence and to apply
the principles set out in the decisions of this Court
”.
I
am satisfied that an intention to kill has been shown.  This is
shown by the brutal nature of the attack on the deceased.
The
type of intention is clearly in the form of
dolus directus
.
All bullets contained in the magazine were used to kill the accused.
The nature of the wounds was such that there
was no chance of
survival.  She received 42 wounds with bullets entering, exiting
and re-entering her body.  It appears
that she was killed while
seated inside the vehicle.
There
is no doubt that the accused was unhappy with his firearm being taken
away from him.  In his evidence in chief he testified
that it
was important for him to have his firearm and that it allowed him to
work outside and get overtime pay.  It was important
for him to
get overtime pay because he had family responsibilities and he needed
the money that came with overtime. Hence, when
he was asked to hand
in his firearm the first time around, he went to the lengths of
obtaining a report from Dr Dhansay stating
that he was fit to use his
firearm again.  This shows how important having his firearm was
to him. The fact that he asked
the court to exclude it from the
interdict shows that he did not want the firearm to be taken away
from him.  It was a clear
trigger for his subsequent actions on
the day of the incident.
There
is another aspect that cannot be ignored.  The accused became
aware of the interim interdict on 25 June 2014 whilst he
was on
leave.  He was told that he had to hand in his firearm in terms
of the interim court order.  He told the policeman
that served
him with the interim interdict on 25 June 2014 that his firearm was
at work.  He did not ensure that it was handed
in.  He says
that he thought it was at work until he found it at his place at the
barracks with his Q20 oil that he used to
lubricate his hair shaving
machine.  He testified that he normally kept the firearm in the
safe with his Q20 oil.  He
was going to cut his hair as he was
going to resume work on the evening of 3 July 2014 and that is how he
discovered that the firearm
was in fact at the barracks and not at
work as he thought.  When he discovered that the firearm was not
at work but at the
barracks, he thought he would hand it in during
his nightshift on that day, that is, the 3
rd
July 2014.
He did not think the interim order would be ‘
upheld
’.
He did not take the firearm with him to court because he thought he
could hand it in later.
This
evidence seems like an attempt to explain why the firearm was not
returned from 25 June 2014 or at least shortly thereafter.
The
accused’s behaviour of not ensuring that the firearm was
returned forthwith leads to an inescapable conclusion that he
did not
want to return it.  He could have gone to the police station, to
ensure that it was handed in, if he thought it was
there.  It
was not enough to say that he thought it was there in the safe when
he was obliged by a court order to return it.
His behaviour
bordered on contempt.
Having
discovered that the firearm was not at the police station one would
have expected the accused to hand it in as soon as he
could or at
least immediately after appearing in court, on 3 July 2014, when he
saw that his request was not granted by the magistrate.
He
conceded that the Bellville Police Station is close to the court he
appeared in, i.e. the Bellville Magistrates’ Court.
Even
if one accepts that he left his pistol at home on 3 July 2014, he
should have then taken it to the police station in Pinelands,
which
is within his vicinity when he returned from court as the interim
order itself said that it must be seized by a police officer
in
Pinelands.  I understand that the accused says it would have
been incorrect procedurally for him to hand it in.  If
that was
the case, now that he had decided that he was not going to be able to
work, but would get himself admitted in hospital,
then he could have
first taken it to the Bellville Police Station before going to
hospital, or phoned his commander whilst he was
still at the barracks
to send someone to fetch it.  He did not need to take the
firearm to hospital first.  In any event,
he did not phone his
commander when he left the barracks informing him that he was going
to hospital and for him to dispatch someone
to come and fetch the
firearm at hospital.
I
do not accept that he was going to hand it in during his shift in the
evening.  He also testified that the reason for taking
the
firearm was to hand it in, in compliance with the provincial
procedure which required a firearm to be handed in if one was
to lie
in hospital for a long period.  The reason for handing it in
would have been to obey the provincial procedure and not
the court
order.
These
factors lead one to the irresistible conclusion that the accused
planned to go to Delft with the loaded firearm.  Whether
the
planning took place whilst he was driving or he changed his mind
about his destination along the way is another issue.
In any
event, even if the planning took place on arrival at Delft, the point
is, the accused took the firearm fully loaded, and
shot at the
deceased.  He went there to confront her about the interdict and
failed to hand in his firearm when he had an
opportunity to do so,
having been devastated by the prospects of losing it.
The
accused resented the deceased for what she had done to him.
This came across in his evidence.  He blamed her for
having
caused him to act in a manner he did.  He allowed the things he
alleges the deceased had done to him to well up until
he reached a
breaking point, and a heightened emotional state.  The Court is
not saying the accused was not severely affected
by the situation he
says he found himself in emotionally and psychologically, actions of
the deceased however are no defence to
the killing, unless it could
be shown that the accused lacked criminal capacity caused by the
stress.  While I do not doubt
that the stress was present and
played a significant role in the accused and deceased’s lives,
I cannot accept that it led
to a lack in criminal capacity.
The
accused may be remorseful and regretting his actions but that plays
no part in the question of whether he appreciated the wrongfulness
of
his actions and acted in accordance with that appreciation.
To
conclude, a lot of evidence was led in this case.  Most of the
evidence revolved around the troubled relationship of the
accused and
the deceased.  The witnesses on both sides made common cause on
the core issue of the turmoil in the relationship.
I do not
rely on the statements attributed to the deceased that the accused
was going to kill her.  Most of my assessment
was focused on the
day in question and the evidence that was directly relevant to the
questions of criminal capacity.  There
were some inconsistencies
in the evidence of the State witnesses, as pointed out by the
accused, that is, Mhambi and Centane’s
evidence, and their
police statements.  When the evidence was assessed on the whole,
those discrepancies did not warrant a
total rejection of their
evidence.  In any event I was careful about the fact that the
witnesses were close to the deceased
and did not focus my assessment
on the premonitions that were alleged to have been reported to them
by the deceased.  The
police officers that testified about the
events of the day in question could have no reason to fabricate their
evidence.
That is in any event not placed in issue by the
accused.  Their evidence as to the actions of the accused was
supported by
Memani.  Memani for the accused also gave clear
evidence.  He did not come across as seeking to protect his
brother.
He was open to the Court about the phone call that the
accused made to him, telling him that he had killed the deceased.
The
accused led extensive and comprehensive evidence. Whilst that was so,
his version was not sufficiently cogent and compelling
to raise a
reasonable doubt as to the voluntary nature of his actions.  It
therefore must be rejected as not being reasonably
possibly true.
I have already detailed reasons for this.
For
those reasons, I am satisfied that having considered all the evidence
before this Court, the State has been able to prove beyond
reasonable
doubt that the accused is guilty of murder and it was planned.
In the result, I make the
following order:
THE
ACCUSED IS FOUND GUILTY OF MURDER AS CHARGED
.
___________________________
BOQWANA,
J