S v Mncube (CCP42/2021) [2023] ZAKZPHC 15 (15 February 2023)

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[2023] ZAKZPHC 15
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S v Mncube (CCP42/2021) [2023] ZAKZPHC 15 (15 February 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG,
NORTH
WESTERN CIRCUIT
Case
No: CCP42/2021
In
the matter between:
THE
STATE
And
MBUSO
MNCUBE

ACCUSED
JUDGMENT
MOSSOP
J:
Introduction
[1]
At the beginning of this trial, Mbuso
Mncube, hereinafter referred to as ‘the accused’, stood
charged with seven counts.
They were:
(a)
Three counts of rape;
(b)
A count of robbery with aggravating
circumstances;
(c)
A count of housebreaking with intent to
commit rape;
(d)
A count of theft; and
(e)
A count of murder.
Greater particularity of
these allegations will be provided as I deal with each of the counts
in this judgment.
The plea
[2]
When the charges were put to him, the
accused pleaded not guilty to all of them. He was represented at
trial by Mr MADIDA, who confirmed
that the pleas were in accordance
with his instructions and who then read a statement in terms of
section 115 of the Criminal Procedure
Act 51 of 1977 (the Act) into
the record. In essence, the accused elected not to disclose the basis
of his defence but made certain
admissions in terms of section 220 of
the Act in a separate document. These admissions related to two
photographic albums and a
sketch plan and a post mortem report
pertaining to the victim in the murder count, being count 7 to the
charge sheet.
[3]
The seven charges put to the accused cover
a wide span of years. The earliest offence was alleged to have been
committed by him
in October 2012 and the last offence in November
2019. There was a considerable number of witnesses who were called to
testify
at his trial, 19 in all, and the evidence was heard over a
continuous period of four weeks.
The section 174
application
[4]
At the closure of the State case, Mr MADIDA
brought an application in terms of section 174 of the Act in respect
of all seven charges
that the accused then faced.
[5]
Section 174 of the Act reads as follows:
‘
If,
at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the accused

committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may return a verdict
of
not guilty.’
[6]
Mr Sokhela, who appears for the State, did
not oppose the application in respect of counts 1, 4, 5 and 6. The
reason for the State
adopting that position is understandable: it
presented a substantial volume of evidence on these counts but none
that implicated
the accused in any of those charges. The position
fell squarely within the provisions contemplated in section 174 of
the Act: no
evidence was presented that the accused committed those
crimes. The application for a discharge was consequently granted in
respect
of:
(a)
Count 1, being a charge of rape
allegedly committed on 28 October 2012;
(b)
Count 4, being a charge of
housebreaking with intent to commit rape, allegedly committed on 22
April 2017;
(c)
Count 5, being a charge of rape
allegedly committed on 22 April 2017; and
(d)
Count 6, being a charge of theft
allegedly committed on 22 April 2017.
[7]
The application for a discharge was,
however, opposed by Mr Sokhela in respect of counts 2, 3 and 7. The
submission by Mr MADIDA
that there was no case for the accused to
answer on those counts was quite frankly, astonishing, and, in my
view, failed to show
an appreciation of what evidence had, in fact,
been led through multiple witnesses. After hearing both counsel, I
declined to discharge
the accused on those three counts. Thus the
accused was placed on his defence on:
(a)
Count 2, being a count of rape of Ms N
[....] A [....] K [....] (Ms K [....]), allegedly committed on 27
April 2013;
(b)
Count 3, being a count of robbery with
aggravating circumstances where the complainant is also Ms K [....],
allegedly committed
on the same date; and
(c)
Count 7, being a count of murder in
which the accused is alleged to have murdered a Ms C [....] L [....]
( B [....]) on or about
31 October 2019. The charge sheet initially
stated the date in respect of this charge to be 11 November 2019 but
an application
for the amendment of the charge was brought by the
State to reflect that date as being 31 October 2019 and was granted.
[8]
When discharging the accused, I briefly
gave reasons for doing so. I see no reason to expand upon those
reasons. Two complainants
who were allegedly separately raped by the
accused could not identify him and the State failed to produce any
forensic evidence
linking him to either of those rapes or the other
offences that were alleged to have occurred at the same time to those
complainants.
There literally was no evidence that the accused
committed those crimes. I attempted to ascertain later during
argument from the
State how the accused had been linked to those
offences in the first place in the absence of any evidence
implicating him. I am
not sure that I understood what I was told and
I remain uncertain how this occurred. I see no profit in narrating
and analysing
in this judgment the evidence led on those charges in
respect of which the accused was discharged. I shall, however, have
more
to say about the discharge of the accused at the end of this
judgment.
[9]
I shall then deal only with the evidence
that was led in respect of counts 2, 3 and 7. In doing so, I shall
not deal with this evidence
in the sequence in which the evidence was
led, but in sequence with the charges as they appear in the
indictment. As a matter of
fact, at the trial the State first led
evidence on the last count, count 7, before dealing with the other
counts.
The evidence
Counts 2 and 3
[10]
Count two was a charge of rape, the State
alleging that the accused had raped Ms K [....] on 27 April 2013.
Count 3 was a charge
of robbery with aggravating circumstances, the
State alleging that the accused had, on the same day, robbed Ms K
[....] of two
cellular telephones and R3 000 in cash.
[11]
Ms K [....] testified that she resided at
Phase 3, Glencoe and that on 27 April 2013 she had returned home from
working for two
months in Ladysmith. She alighted from her bus at the
Emadeleni bus stop at about 16h00. She was burdened with some parcels
that
she was carrying and a male person approached her, greeted her
by her first name, and asked if he could assist her with her parcels.

At the time, she thought that she knew the person and thought he was
someone who went by the name of ‘Bafana’. Throughout
her
evidence she referred to this man as ‘Bafana’. She
greeted him by calling him ‘Bafana’. The man did
not
correct her and say that was not his name so she continued in the
belief that he was, indeed, the person that she knew as ‘Bafana’.

I shall continue to refer to him, as Ms K [....] did throughout her
evidence, as ‘Bafana’.
[12]
Bafana helped her by carrying her bag while
she carried the parcels. She eventually reached home and her arrival
was a joyous moment
in her family’s life. Everyone was happy to
see her after her absence in Ladysmith. She was in a happy mood and
later thought
it would be a good idea to go out and celebrate that
evening with friends. She changed her clothing and met three of her
friends
at a tavern called ‘Ebareni’, which is to be
found in the same location where she resides. She arrived at the
tavern
at about 20h00 hours and bought some drinks for her friends.
She was, however, hungry and after approximately an hour she left the

tavern to go to a nearby tuck shop to get something to eat. On her
way to the tuck shop, she again encountered the man who she
believed
to be Bafana. He asked where she was going to and she explained and
he then followed her. She continued to believe that
the person she
was walking and conversing with was Bafana. She described the tuck
shop as being about a ten-minute walk away from
the tavern. At the
tuckshop, she met her friend, Mr S [....] M [....] (Mr M [....]) who
worked at the Glencoe Magistrate’s
Court and she spoke with
him. He asked her whether she knew the person who had accompanied her
to the tuck shop and she said that
she did and that his name was
Bafana. Mr M [....] then called Bafana into the tuck shop and warned
him not to do anything to Ms
K [....] because, so he claimed, he knew
her very well. Bafana laughed and said that he would do nothing to
her. Ms K [....] and
Bafana then left the tuck shop and both
proceeded back to the tavern.
[13]
The man believed to be Bafana did not,
however, join Ms K [....] and her friends at the tavern. Around
midnight, Ms K [....] suggested
to her friends that it was time to go
home but her friends wanted to carry on drinking. Ms K [....] did not
want to remain and
so she said her goodbyes and left the tavern.
Outside the tavern, she encountered Bafana again and he walked over
to her holding
a bottle of alcohol, later described as a bottle of
beer. She asked him what he wanted. He said he was going to accompany
her.
She responded by saying that she had not asked him to do so.
However, she disclosed to the court that because she still believed

the person to be Bafana, a person she knew, she allowed him to
accompany her. Bafana suggested a different route home, to which
she
ultimately agreed. The route that he favoured took them on an unlit
road close to the cemetery.
[14]
In the vicinity of the cemetery, Bafana
suddenly assaulted her by slapping her in the face and she fell to
the ground. He then dragged
her by her feet across the tarred road
into the cemetery. She screamed and tried to fight back, to no avail.
In the cemetery, Bafana
ordered her to undress but she refused to do
so. He then produced a knife and said that if she did not comply with
his instructions
he would kill her. He then placed the knife on the
right side of her neck and she had no option but to comply. She
undressed. He
instructed her to lie on her back on the ground and he
then inserted his penis into her vagina and had intercourse with her.
He
then stopped and instructed her to assume a different position on
her side. She complied and he then had intercourse with her again
in
that position. Before he had intercourse with her for a third time,
she suggested to him that he should use a condom because
either of
them could be ‘sick’. He had condoms with him and put one
on and then had intercourse with her in a style
that she described as
‘doggy style’, that is while she was on her hands and
knees he penetrated her from the rear.
Thereafter, Bafana removed the
condom, threw it to the ground, but then instructed her to lie on her
stomach. He put on another
condom and penetrated her again in that
position until he was finished. He removed the second condom and cast
it onto the ground.
[15]
Ms K [....] dressed herself and they left
the cemetery together. She explained that she tried to keep calm,
always conscious of
the fact that Bafana was armed with a knife. The
route home chosen by Bafana took them through a hostel. En route to
the hostel,
Bafana told her to hand over her new Nokia cellular
telephone. She did so. Upon arrival at the hostel, Bafana announced
that they
were now going to go to his place. Ms K [....] initially
remained quiet upon hearing this but then saw a couple standing next
to
a motor vehicle and screamed to them that she had just been raped
by the person that she was with. The people standing by the motor

vehicle asked what had happened and she explained. Bafana fled. The
couple took her to the Glencoe Police Station where she reported
the
matter and confirmed that she believed her rapist was Bafana. She was
then taken to Dundee Hospital, where she was examined.
The medical
report revealed tears to lower part of her labia majora and tears
around the anus. An evidence collection kit was used
to preserve
specimens taken from Ms K [....]’s body.
[16]
Ms K [....] testified that she was in pain
after her ordeal, especially when urinating. She was given some
painkillers and some
tablets ‘to clean my womb’. The
South African Police Services (SAPS) came to her home later that day
and she mentioned
to them the two condoms in the cemetery. She was
then taken to the cemetery and the two condoms were located and
placed in a plastic
bag by a member of the SAPS.
[17]
Ms K [....] sincerely believed that her
rapist was Bafana and she pointed him out to the SAPS when they
decided to arrest him. Bafana
denied that he had done what Ms K
[....] alleged.
[18]
Under cross-examination from Mr MADIDA, Ms
K [....] denied that the cemetery was used either as a public
thoroughfare or as a dumping
site. It was also put to her that in one
of two statements that she made to the SAPS, she stated that she had
been raped 10 times.
This fact is also recorded on the medical
examination form. She said that she could not recall if she had said
that, but, if she
did, it was incorrect. She confirmed that she had
been raped four times.
[19]
As regards the other items mentioned in
count three, no reference to a second cellular telephone was made by
her and she was extremely
vague about whether she had been robbed of
R3 000. She could not remember being in possession of that
amount of money and
said that if she was, that it was possible that
it may have fallen out when she was dragged across the tarred road to
the cemetery
by Bafana.
[20]
Mr M [....], whose full names are S [....]
A [....] 1 M [....], is a former court interpreter at the Glencoe
Magistrate’s
Court. He testified that he knew Ms K [....] from
the location where they lived. On a date that he could not remember,
but which
he was certain fell within the year 2013, at around
midnight, he was at a tuck shop. Ms K [....] walked in to the tuck
shop. He
was there because his friend, a Mr Ramogoti, was running the
tuckshop that evening and had telephoned him to tell him that it was

almost closing time and that he required Mr M [....] to come and
fetch him. After Ms K [....] entered the tuck shop, Mr M [....]

chatted with her as he knew her and asked her who she was with at
that late hour of the night. She replied that she was with a
male
person. Mr M [....] could not remember the name that she mentioned
but confirmed that he had recorded the name in a statement
that he
had made the day prior to him testifying. His memory was refreshed
from the statement and he confirmed that Ms K [....]
had said that
the man’s name was ‘Bafana’. The man Ms K [....]
was with did not immediately come into the tuck
shop so Mr M [....]
walked out of the tuck shop to see Bafana and called him to come into
the tuck shop. When he saw the man come
into the tuck shop he said to
himself that it was Mbuso Mncube, the accused.
[21]
Mr M [....] testified that he knew the
accused from the Sithembile location. He had known him for a long
time which he estimated
being longer than six years. Mr M [....]
greeted the accused and said to him:
‘
Mbuso,
now that you are in the company of this lady please do not do
anything harmful to her.’
The accused just smiled
in response.
[22]
Mr M [....] testified that he knew what
type of person the accused was. This was because he often observed
him at his place of employment,
the Glencoe Magistrate’s Court.
He watched as the accused and Ms K [....] then left the tuck shop. Mr
M [....] said that
he thought that the accused might be courting Ms K
[....] and was using the name ‘Bafana’ or that it was a
name that
he used that Mr M [....] was not aware of.
[23]
According to Mr M [....], approximately
three or four weeks after this encounter with Ms K [....], she
arrived at his house and
said that she had been raped by the person
who she was with on the night that she saw Mr M [....] at the tuck
shop. She confirmed
that she had opened a case with the SAPS. Mr M
[....] confessed that he had not actually known Ms K [....]’s
name prior to
her coming to his house but had only known her by
sight. Having been told by her what had happened, Mr M [....]
testified that
he then explained to her that the person she was with
was not Bafana but was the accused. She was surprised to hear this.
He confirmed
that he was never approached by the SAPS until the day
before he was called to give his evidence.
[24]
Mr MADIDA commenced his cross examination
by asking Mr M [....] to describe his relationship with the accused.
Mr M [....] said
that there was no bad blood between the two of them
and that he knew the accused as being a youngster from the location
but noted
that he was frequently in court as a suspect in cases. A
number of questions were put to him about why he had not approached
the
SAPS with the information that he possessed. He said that upon
being told by Ms K [....] of what had occurred and that she had
opened a case with the SAPS, he expected that the SAPS would come to
him and take a statement from him, but they never did. Mr MADIDA
said
that the accused would deny ever having spoken to Mr M [....] at the
tuckshop and later a more expanded version was put to
Mr M [....] in
which it was indicated that the accused would deny having been at the
tuck shop or that he had spoken to Mr M [....]
or that Mr M [....]
had seen him on that day. Mr M [....] indicated that if that was what
he would say, then the accused would
be lying.
[25]
The court ascertained from Mr M [....] that
the tuck shop was fitted with electric lighting and that when he had
spoken to the person
introduced to him as ‘Bafana’, he
was standing about half a metre away from him.
[26]
The State did not call the medical
practitioner who examined Ms K [....] at the Dundee Hospital.
Instead, a certificate in terms
of section 212(4) of the Act,
completed by Dr Charmaine Hlatswayo, was handed in without any
significant objection from the defence.
Count 7
[27]
The State alleges that the accused murdered
one C [....] L [....] ( B [....]) (the deceased) on 31 October 2019
at [....] M [....]
1, Sithembile Township, Glencoe. She was at the
time of her death a young girl of 15 years, yet it was alleged that
she was the
girlfriend of the accused, a male presently aged 30.
[28]
The deceased’s aunt, Ms Z [....] B
[....] (Ms B [....]) who raised the deceased from the age of 9
months, testified that the
deceased was, unfortunately, a wilful
child who had left her homestead in favour of staying either at her
friend’s home or
at her uncle’s home. At the time that
she met her demise she was thus not residing with Ms B [....].
[29]
On 5 November 2019, Ms B [....] received a
report that her niece may have been murdered by the accused. She went
home and addressed
a family meeting and it was resolved that the
family would first attempt to look for the deceased themselves before
the SAPS were
informed of the family’s suspicions. A search of
the area yielded no positive result, but Ms B [....]’s nephew,
Mr
S [....] N [....] 1 B [....] (Mr B [....]), however, did come
across the accused on a road in the area while conducting the search

for the deceased. Ms B [....] was later informed by Mr B [....] that
the accused denied any knowledge of the deceased’s whereabouts.

The family was not able to locate the deceased and consequently, the
next day, 6 November 2019, Ms B [....] escalated the matter
and
reported her suspicions to the SAPS.
[30]
Mr B [....] testified and confirmed that he
went looking for his cousin on 5 November 2019. He knew the accused
and suspected that
the accused was in a love relationship with the
deceased. At around 16h00 on that day, he went to a house that he
knew was occupied
by the accused’s friends but did not find the
accused there. He returned home and was leaving home at about 18h30
the same
day to go to gym when he encountered the accused in the
company of one S [....] 2, whose real name is S [....] 1 P [....] and
one
S [....] 3 M [....] 2. Mr B [....] asked to speak to the accused
but was told that he would have to wait as the accused was going
to
visit at a next-door house. Mr B [....] waited and the accused did
return. Mr B [....] asked the accused of the whereabouts
of the
deceased. The accused said that he had not seen her for quite a while
but when he had last seen her there had been an altercation
between
the two of them. During the altercation, the accused had assaulted
the deceased. This had occurred inside a house in an
area known as M
[....] 1 which he and the deceased then occupied (the M [....] 1
house). Having assaulted the deceased, the accused
informed Mr B
[....] that he had locked her in the house and left. He advised that
upon his return to the house the deceased was
gone, apparently having
exited through a small window taking all her belongings with her. The
accused informed Mr B [....] that
he had heard that the deceased was
staying at the home of another of her boyfriend’s, namely a
gentleman named ‘Lucky’,
whose surname was unknown to
him, at a place known as eMadosheni.
[31]
Mr B [....] did not let matters lie and
followed up on what the accused had told him. The next day, 6
November 2019, he went to
eMadosheni and tracked down the person
known as ‘Lucky’. Lucky informed him that he was not the
deceased’s boyfriend
but was merely an acquaintance of hers. He
did not know where she was staying, having last seen her in
eMadosheni a week before
Mr B [....] had tracked him down.
[32]
Under cross examination. Mr B [....]
confirmed his aunt’s evidence that the deceased was,
unfortunately, a troublesome child.
Mr MADIDA informed Mr B [....]
that the accused denied ever speaking to him and that he would deny
that he had quarrelled with
the deceased or locked her in the M
[....] 1 house. He would also deny mentioning the name ‘Lucky’
to Mr B [....].
Mr B [....] was unphased about these previews of what
the accused would allegedly say. He said that he had not known who
Lucky
was and he had only tracked him down because of what the
accused had told him.
[33]
Ms B [....] 1 M [....] 2, who was referred
to by her nickname of ‘S [....] 4’ and who is the
biological sister of the
accused, testified. To avoid confusion,
there being two Ms M [....] 2s who testified, I shall refer to her in
this judgment as
she was referred to at trial, namely as ‘S
[....] 4’. S [....] 4 was called as a witness in terms of
section 204 of
the Act and was warned regarding the evidence that she
was about to give. She stated that she understood what was required
of her.
[34]
She testified that she knew the deceased,
who was in love with the accused. She knew this to be the case
because the accused would
bring her to the family home where the
deceased would occasionally overnight. The deceased, furthermore,
told her that she was
the accused’s girlfriend. The deceased
was known to her by the name of ‘N [....] 2’.
[35]
S [....] 4 testified that on 31 October
2019, the accused had telephoned her at around 09h00 and asked her to
come to him. She found
him at some shops with friends of his and the
accused then informed her that he had killed the deceased and that
this had occurred
‘before the previous day’. S [....] 4
asked him what they had quarrelled about and the accused said that he
had found
the deceased in his house with another man. The accused
instructed her to go to the M [....] 1 house alone and informed her
that
if word got out about what had happened there he would know that
she had been the source of the leak as she was the only one who
knew
what had happened. The accused refused S [....] 4’s suggestion
that he takes the deceased’s body to the deceased’s
home,
because he said that her family would then know that he had killed
her.
[36]
The accused then gave her a key to the M
[....] 1 house. The reason for her being given the instruction to go
there was not revealed
at this juncture. She agreed to comply with
the accused’s instruction. However, after leaving the accused,
she came across
a friend of hers who she referred to as ‘Fidodo'.
Notwithstanding that she had recently been warned by the accused to
go
on her own, she requested Fidodo to accompany her to the M [....]
1 house, which Fidodo agreed to do. At the M [....] 1 house, S
[....]
4 gave the house key to Fidodo and asked her to unlock the door and
go inside. Fidodo did so. In a bedroom, Fidodo discovered
a body
lying on a bed, or as S [....] 4 stated, ‘she found a person
sleeping.’ The body was entombed under blankets
and was lying
on its back with its eyes open, staring at the ceiling. The blankets
were partially removed by Fidodo but she did
not expose the lower
body of the person on the bed. When S [....] 4 entered the room she
saw that the upper part of the person’s
body was clad in a
sweater. A white foam had been extravasated from the body’s
mouth. S [....] 4 recognised the body as being
that of N [....] 2,
the deceased.
[37]
S [....] 4 explained further in her
evidence that she and the accused, while being family, were always at
loggerheads with each
other and that she, generally, was afraid of
him. She later conceded under cross examination that her relationship
with the accused
could accurately be described as ‘toxic’.
[38]
Having found the body of the deceased, S
[....] 4 returned home with Fidodo, who urged her to tell S [....]
4’s mother. S
[....] 4 did so and her mother’s response
was that the accused must immediately hand himself over to the SAPS.
The witness
then took the house key back to the accused and relayed
their mother’s instruction to him about surrendering himself to
the
SAPS. The accused declined to do so but said that they would be
able to see through the deceased’s eyes as to who she had
last
seen before dying.
[39]
S [....] 4’s evidence was that she
lived at the home of her stepfather, as did her mother. Later on the
evening of 31 October
2019, S [....] 4 was at home when the accused
telephoned her and indicated that he wanted food. He did not come
into the home to
get it but said that he could be located outside.
Food was taken to him by S [....] 4 and her boyfriend, S [....] 2. S
[....] 2
apparently did not know of the events of earlier that day.
The three of them thereafter went to the M [....] 1 house. At the M
[....] 1 house, the accused instructed S [....] 2 to take the
blankets off the body of the deceased and place them on the floor.

The two of them then tried to shift the deceased’s body and
place it on the blankets on the floor. The accused, however,

concluded that the deceased was too heavy. The witness noted at that
stage that the deceased was naked from the waist down. The
accused
then stated that what was needed was a wheelbarrow. Accordingly, at
23h30 that evening, a wheelbarrow was located and fetched
from the
home of a Mr M [....] 4 Z [....] 1 (Mr Z [....] 1) and two motor
vehicle tyres were purloined from another neighbour’s
home.
[40]
S [....] 4 testified further that the
deceased’s body was wrapped in blankets and placed on the
wheelbarrow and she was wheeled
away to an area known as KwaDamane.
The two tyres purloined from the neighbour were carried by S [....]
4, allegedly on the orders
of the accused. S [....] 2 and the accused
took turns in pushing the wheelbarrow. At the appointed spot, the
deceased’s body
was taken off the wheelbarrow and placed on the
ground. One tyre was placed around the head, neck and shoulders of
the deceased
and the other tyre was placed around her upper legs.
Using some wood, the body and the tyres were set alight. It burnt
from approximately
01h00 until 05h00 on the morning of 1 November
2019, when what remained was put in a plastic packet that was found
nearby. The
remains were then thrown into a place where dead cows are
apparently thrown. S [....] 4 went home, apparently with the
intention
of telling her mother of precisely what had occurred but
did not do so until the accused had left the general area of Glencoe
sometime
later. The witness then said that she had, in fact, told her
mother earlier some time before 11 November 2019, being the date upon

which the accused and S [....] 4 were arrested. S [....] 2 was also
arrested that day. When she was arrested, she saw the accused
in the
SAPS van and she pointed out who S [....] 2 was to the SAPS.
[41]
When questioned by the SAPS, S [....] 4
testified that she initially denied any knowledge of what became of
the deceased. However,
she later pointed out where the deceased’s
body was burnt. Before she did so, she stated that she had been
assaulted by the
police who had come to arrest her.
[42]
Under cross-examination by Mr MADIDA, S
[....] 4 confirmed that despite the knowledge that she acquired from
her brother, the accused,
concerning his wrongdoing she had at no
stage approached the SAPS independently to report what he had told
her. She also confirmed
that she did not mention her and her
boyfriend’s role in the destruction of the deceased’s
body. She mentioned a further
detail, not previously mentioned in her
evidence in chief, that when the SAPS arrived to arrest her in
addition to the assault
on her that she had previously mentioned,
which consisted of slaps to her head leaving her with a ringing noise
in her ears, she
also had a rubber tube pulled down over her head and
face. After this occurred, she then pointed out the place where the
deceased’s
body was. S [....] 4 stated that before she effected
the pointing out, the SAPS had told her that she needed to:
‘
speak
the truth for me to be freed.’
[43]
Mr MADIDA put it to S [....] 4 that the
accused had been severely assaulted by the SAPS but her response was
that she had no knowledge
of that because he was already in the
custody of the SAPS when they arrived at her home to arrest her. An
interesting proposition
was then put to the witness by Mr MADIDA. He
suggested that the accused had not made any statement to the SAPS
because he knew
nothing of the allegations that he was facing whereas
S [....] 4 had spoken freely to the SAPS because she had independent
knowledge
herself of the death of the deceased. This brought an angry
outburst from the witness who said that the accused could not deny
what he had done. She said, further, that she was only in the
position that she was in because of the accused’s conduct.
Everything that she knew of the matter had been obtained from the
accused.
[44]
Mr MADIDA stated, further, that his
instructions were that the accused never made any statement to the
SAPS and because the relationship
between him and her was admittedly
toxic, she was not the person to whom he would have confessed if he
had, indeed, done anything
wrong. The accused would also deny that he
had killed the deceased and it was further suggested by Mr MADIDA
that the witness and
her boyfriend, S [....] 2:
‘
may
best answer who killed the deceased’.
The court intervened at
this point and asked if it was now being put to the witness that she
and her boyfriend had killed the deceased.
This was not what the
accused was saying according to Mr MADIDA. Mr MADIDA then put it to S
[....] 4 that it would have been ‘disingenuous’
for the
accused to kill the deceased in a place where he would be a suspect
and then confess to the witness, with whom he did not
have a good
relationship. S [....] 4 was adamant that her knowledge of the matter
was derived entirely from the accused. She said
that she barely knew
the deceased, had nothing against her and only knew her through the
accused’s association with the deceased.
[45]
An issue that had perplexed the court in
her evidence in chief was clarified by S [....] 4 in her
cross-examination by Mr MADIDA.
She stated that she had been sent to
the M [....] 1 house by the accused on the morning of 31 October 2019
in order to ascertain
whether the deceased was actually dead. In her
view, when she saw the deceased with Fidodo, the deceased was dead
because she was
not breathing.
[46]
A second interesting proposition was then
put to S [....] 4 by Mr MADIDA. It went along these lines:
‘
It’s
because of the toxic relationship you had that you had to drag in the
accused to get rid of him.’
Again, the court sought
clarity from Mr MADIDA on whether he was alleging that the witness
and her boyfriend were the true murderers
of the deceased. After
certain submissions were made by Mr MADIDA, which do not need to be
dwelt on, it again emerged that it was
not being suggested that S
[....] 4 was the true murderer.
[47]
Mr MADIDA then put it to the witness that
the accused could not have been involved in a murder at the M [....]
1 house because he
had been ordered to vacate that place by a
protection order issued by a court that had been granted in favour of
his mother. This
was roundly rejected by the witness who said the
accused always wanted things his way and always wanted to have the
last say. She
was, however, unable to say why the accused had not
been arrested for breaching the protection order when he later
assumed occupation
of the house, contrary to the terms of the order.
[48]
S [....] 4 confirmed under cross
examination that when they went to the M [....] 1 house on the
evening of 31 October 2019, the
accused had been the person who made
the decisions and gave the instructions. It was the accused that
instructed that a wheelbarrow
be obtained and all three of them had
gone to the homestead from which it was acquired. The accused had
personally entered the
home of the lender, Mr Z [....] 1. S [....] 4
initially stated that a human body could not fit into the wheelbarrow
that they acquired
from Mr Z [....] 1. She later qualified her
evidence on this aspect and indicated that the body could be
transported by wheelbarrow
as it overhung the edges.
[49]
Mr MADIDA suggested to S [....] 4 that she,
indeed, possessed keys to the M [....] 1 house and that she and S
[....] 2 lived there.
She denied this and said that the accused had
taken the house keys away from their mother. It was also put to S
[....] 4 that there
was bad blood between the accused and S [....] 2,
her boyfriend, that ultimately led to each knifing the other in a
street fight.
This was vehemently denied by S [....] 4.
[50]
An unsworn statement that S [....] 4
admitted making was then introduced and later handed up. In the
statement, the witness stated
that she had not been telephoned by the
accused on the morning of 31 October 2019 and nor did she possess his
telephone number
and the accused did not know her number. When
confronted with the statement, S [....] 4 stated that she had been
confused but admitted
that it contradicted her oral evidence. The
statement was undated and despite everyone’s best efforts, it
was not possible
to ascertain when it had been made.
[51]
The witness was then taken through her
formal section 204 statement in granular detail by Mr MADIDA. She
conceded that there were
several mistakes in the statement. For
example, there was no reference to her friend Fidodo proceeding to
the M [....] 1 house
with her. There was, to be accurate, a reference
to Fidodo in the statement after the events at the M [....] 1 house
were narrated,
but the version captured in the statement made it
appear that the witness had proceeded by herself to that house.
[52]
S [....] 4 then revealed that before she
was arrested, the SAPS had come to her house and questioned her. She
also revealed that
the accused had instructed her to delete his
cellular telephone number from her cellular telephone in case her
telephone was checked.
She indicated, further, that whilst the body
of the deceased was being burnt she had moved away from the accused
and sat next to
a tree, stating that she could not watch someone
being burnt in front of her.
[53]
Mr MADIDA then put the accused’s
version to the witness. This was the first occasion that the court
was apprised of what it
was that the accused said happened and I
accordingly mention the initial version put in some detail. The
version that was revealed
was that the accused had been arrested in
February 2019 on two counts relating to the erstwhile counts seven
and eight, which were
withdrawn at the commencement of the trial. The
murder count then became count 7. He remained in custody on those
counts until
August 2019, when the charges against him were
withdrawn. In September 2019, whilst at his father’s home at
Matiwane, near
Ladysmith, he was arrested on the murder charge, that
is count seven in these proceedings. The accused remained in custody
until
an undisclosed date in 2020 when, the murder charge was
withdrawn and he was released. Having been released from custody he
went
to his father’s home, only to be told that the SAPS were
looking for him and he was then arrested on the same day that he
was
released and charged with counts one to four that form part of this
trial. Whilst he was in custody, the murder charge, count
seven in
this matter, was reinstated.
[54]
Thus it was put to S [....] 4 by Mr MADIDA
that the dates that she mentioned, namely 31 October 2019 and 1
November 2019, being
the dates upon which she discovered the
deceased’s body at the M [....] 1 house and the date upon which
the body was disposed
of, were both ‘improbable and impossible’
because the accused was allegedly in custody at those times. The
defence
as fully revealed was thus an alibi, it being averred that
the accused could not have been involved in the murder of the
deceased,
and the subsequent disposal of her body, because he was not
in the area as he was in custody. This version was denied by S [....]

4, who said that the accused was not in custody.
[55]
At the conclusion of her cross examination,
the court sought clarity from S [....] 4 on certain aspects of her
evidence. The first
aspect was how the deceased’s body was
carried in the wheelbarrow. The witness explained that the body hung
over the edge
of the wheelbarrow and did not fit within the bin of
the wheelbarrow. Finally, the witness was asked how the remains of
the body
had been handled before being disposed of in the light of
the fact that the body had been burning for some five hours before it

was ultimately discarded. The witness explained that using bits of
wood the accused had put the unburnt pieces of the body into
the
wheelbarrow and had then placed the body in a dam to cool off where
after it was disposed of.
[56]
S [....] 4’s evidence was followed by
the evidence of Mr Z [....] 1, whose full names are M [....] 4 N
[....] 3 Z [....] 1,
the owner of the wheelbarrow that was allegedly
used to transport the deceased’s body. Mr Z [....] 1 confirmed
that he had
been asleep when he was awakened by a telephone call from
S [....] 4. He was asked where he was and he replied that he was at
his
house, asleep. S [....] 4 said she was standing on his veranda
and asked him to open up. He put some clothes on and opened the
kitchen door, having first switched on the lights. He saw S [....] 4,
her boyfriend, S [....] 2, and the accused outside his house.
All of
them then entered his kitchen. He was told that they required to
borrow his wheelbarrow as the accused’s mother had
chased him
from her house and he needed to transport his belongings to a shack
that was then being occupied by S [....] 2. The
accused said to Mr Z
[....] 1 that he, Mr Z [....] 1, knew his mother and that she:
‘
has
lots of stories’
and that he was required
to leave his mother’s house failing which she would call the
SAPS. Mr Z [....] 1 asked why the accused
then did not use the
wheelbarrow that he knew was at the accused’s stepfather’s
house and the answer that he received
was that the wheelbarrow was
kept at a place where the accused’s stepfather keeps his goats
and sheep and he did not want
to risk any of them escaping at night
while he retrieved the wheelbarrow. Mr Z [....] 1 was initially
reluctant to hand over his
wheelbarrow because he was concerned that
stolen items might be transported in it and that might lead to him
getting into trouble.
All three of his nocturnal visitors then begged
him to change his mind and he ultimately relented. He told S [....] 2
where to
find the wheelbarrow in his house and S [....] 2 then
fetched it. It was agreed that the wheelbarrow would be returned to
him later
in the morning of the next day.
[57]
The return of the wheelbarrow did not occur
as promised and in the afternoon of the next day, Mr Z [....] 1 saw S
[....] 2 in front
of his house and asked where his wheelbarrow was.
At about 21h00 that night the wheelbarrow was returned to him by S
[....] 4 and
S [....] 2. Mr Z [....] 1 then saw that his wheelbarrow
was damaged in two ways: the bin area had been widened and there were
now
holes in the base of the bin that allowed him to observe the
front wheel through the base of the bin, which was not the case
before
he lent the wheelbarrow to his nocturnal visitors. He also
observed that there was a black coating on the inside of the bin. He

requested an explanation from S [....] 4 and S [....] 2 and was told
that two sacks of coal had been loaded into the wheelbarrow.
[58]
A few days later, Mr Z [....] 1 testified
that he smelt an unpleasant odour in his home. To him it smelt as
though the smell was
emanating from inside his home rather than
entering his home from an outside source. He finally determined that
the smell was coming
from the wheelbarrow. He indicated that the
smell was like the smell that is caused when a rat is poisoned and
subsequently dies.
He removed the wheelbarrow from the inside of his
house and approached S [....] 4’s mother, complaining that the
wheelbarrow
had been returned to him in a stinking condition. He was
most anxious that S [....] 4’s mother come and smell the
wheelbarrow.
She was not prepared to do so and simply told him to
wash the wheelbarrow down with some sheep dip. Mr Z [....] 1, in
fact, said
that the wheelbarrow smelled like ‘nyarrastag’,
a word that the interpreter was not familiar with but which Mr Z
[....]
1 said meant it smelt terrible. He further described the
substance coating his wheelbarrow as being like a liquid from a
leaking
engine. He did not follow the advice of S [....] 4’s
mother of simply washing the wheelbarrow with sheep dip but went
home,
got out his bicycle and pedalled off to the police station. At
the police station, he was attended to, he explained why he was there

and was then taken home by the SAPS who then left with his
wheelbarrow. He made a statement to the SAPS that day, which was 27

November 2019. No further evidence was led by the State regarding the
examination of the wheelbarrow.
[59]
Mr Z [....] 1 was asked by the court if he
required the wheelbarrow to be returned to him at the conclusion of
the trial. Unexpectedly,
he burst into tears and said that he could
not have it back because of what had occurred with the wheelbarrow.
It would also bring
bad luck to his home if he took it back.
[60]
Under cross-examination from Mr MADIDA, Mr
Z [....] 1 denied that he was not on good terms with the accused. No
amount of questioning
on this point could get him to change his views
on this aspect. In fact, he displayed physical signs of amazement at
the proposition.
When told that the accused would deny that he had
come to his house in order to obtain the wheelbarrow, Mr Z [....] 1
would again
not be moved, stating that three people came to his house
and the accused was one of them.
[61]
Mr Z [....] 1 stated that the wheelbarrow
was taken from his home on 2 November 2019 in contradistinction to
the date provided by
S [....] 4, namely 31 October 2019. Mr MADIDA
put it to Mr Z [....] 1 that the accused could not have been present
in his house
on the night that the wheelbarrow was taken because he
was already in custody. This was disputed by Mr Z [....] 1, who said
that
all this had occurred before the accused was incarcerated. It
was also put to Mr Z [....] 1 that the reason why the accused and
he
were on bad terms was that Mr Z [....] 1 had chased his nephew away
from his home and his nephew had gone to the accused for
assistance.
The accused had then confronted Mr Z [....] 1 about this. Mr Z [....]
1 categorically disputed this, saying that he
had not chased his
nephew away at that time, it only being done recently, and that the
accused had consequently never approached
him over this issue.
[62]
Finally, Mr Z [....] 1 was asked by Mr
MADIDA whether the deceased’s body could have been accommodated
in his wheelbarrow.
To assist in this exercise a photograph of the
deceased, while she was still alive, was handed in as an exhibit. Mr
Z [....] 1
said that he believed that his wheelbarrow could carry
something like a body.
[63]
Next to testify was the person who was
referred to by the other witnesses as ‘S [....] 2’. He,
as was S [....] 4, his
girlfriend, was introduced by the State as a
section 204 witness. He was accordingly warned by the court that he
would be required
to incriminate himself but that if he answered all
questions truthfully and frankly, he would be indemnified against
further criminal
prosecution. He stated that he understood.
[64]
He commenced his evidence by revealing his
real names. They are S [....] 1 Agrippa Agreement P [....] , but I
shall continue to
refer to him as ‘S [....] 2’, which
name is apparently derived from a nickname that he bears, namely ‘S
[....]
2lity’. He is in a relationship with the accused’s
sister, S [....] 4, and referred to the accused as his
brother-in-law.
He knew the deceased as ‘N [....] 2’.
[65]
He confirmed that his involvement in the
matter had commenced on 31 October 2019. He had gone to his
girlfriend’s home and
when he arrived she was busy on a
telephone call from the accused. The accused wanted her to bring him
something to eat and he
went with S [....] 4 to deliver the food to
the accused. The accused was given the food when they found him and
he and S [....]
4 then walked to a store at KwaGogo to buy some
cigarettes. When they returned from the store, they again encountered
the accused.
He then demanded that they accompany him to the M [....]
1 house. S [....] 2 was reluctant to go there due to the lateness of
the
hour but he ultimately did go because of two factors: firstly, he
saw that the accused was in possession of a knife and secondly,

because his girlfriend instructed him not to decline the invitation
to proceed to M [....] 1.
[66]
At M [....] 1, the house was unlocked, and
S [....] 2 and S [....] 4 waited in the kitchen while the accused
went into a bedroom.
The accused then emerged and said that a
wheelbarrow was needed. S [....] 4 then telephoned Mr Z [....] 1 and
confirmed that he
was at home. S [....] 2 apparently had no idea at
this stage why a wheelbarrow was required. All three then proceeded
to Mr Z [....]
1’s home. On the way there, S [....] 4 managed
to inform him why the wheelbarrow was needed, explaining that the
accused
had killed his girlfriend and he needed a wheelbarrow to move
her dead body. At Mr Z [....] 1’s home, all three entered the

home and the accused humbled himself when talking to Mr Z [....] 1,
according to the witness. The accused explained that he needed
to
remove his items from the M [....] 1 house and to do so he required a
wheelbarrow. The wheelbarrow was ultimately secured from
Mr Z [....]
1 and they then returned to the M [....] 1 house. The wheelbarrow was
due to be returned to Mr Z [....] 1 later the
next day according to S
[....] 2.
[67]
Back at the M [....] 1 house, the
wheelbarrow was placed in the kitchen and the accused entered a
bedroom. He asked S [....] 2 to
help him carry the deceased‘s
body. S [....] 2 helped carry the body to the wheelbarrow, the body
being rolled in a bed spread.
The accused then instructed him to push
the wheelbarrow and made S [....] 4 carry two tyres that had been
taken from a neighbour’s
home. S [....] 2 indicated that when
he stopped pushing the wheelbarrow from time to time he would receive
a kick from the accused,
who would order him to carry on pushing. The
witness indicated that he was afraid of the accused and described him
as a troublesome
person in the area. They walked along the road and
eventually entered a gate at the farm belonging to Damane. After
having entered
a second gate on the same farm he was told to stop and
the body was taken out of the wheelbarrow. Sticks were fetched as
well as
offcuts of trees, which were quite long and heavy according
to S [....] 2. The accused then took the two tyres and placed one on

the upper and one on the lower part of the deceased’s body.
Using paper taken from his pocket, the body was set alight by
the
accused, who was talking to himself as he did so. As the fire burned,
the accused added more wood to it. When it was about
to get light,
the accused tilted the wheelbarrow and put the body into it again and
then took it to a dam and put it in the dam
to cool off. He then put
it in a plastic bag that he found there.
[68]
S [....] 2 testified further that whilst
the body burnt, the accused would hit its head with a piece of wood
and, generally, strike
the burning body. After the body was disposed
of, they all went home. He did not report the matter to the SAPS
because he was afraid
of the accused. His fear was inspired by a
threat allegedly made by the accused who told him that if whatever
had happened that
evening ever came to light, he, S [....] 2, would
follow the deceased. After the events in question, he and the accused
would meet
from time to time but the matter was never discussed.
[69]
S [....] 2 indicated that he was
subsequently arrested on 11 November 2019. The SAPS asked him where
the deceased’s body was
buried but he responded that she was
not buried but had been burnt and then told them where this had
occurred. The SAPS took him
to the place where the burning occurred
but when they arrived there the SAPS canine unit was already in
attendance and had already
recovered the deceased’s remains. He
made a section 204 statement to the SAPS the same day and remained in
custody for a
week, after which he was released.
[70]
Cross examined by Mr MADIDA, S [....] 2
denied that he had interacted with the deceased’s body before
the wheelbarrow was
fetched, as previously testified to by S [....]
4. He would not be swayed by the previous evidence of his girlfriend
and rejected
her evidence on this point. He also deviated from her
evidence when he said that two phone calls had been made to Mr Z
[....] 1,
one to see if he was at home and the second to inform Mr Z
[....] 1 that they were standing outside his house. He corrected
himself
when he initially testified that Mr Z [....] 1 had fetched
the wheelbarrow after having decided to lend it to them but, on
reflection,
he agreed that he had been advised by Mr Z [....] 1 where
to find the wheelbarrow and he had fetched it when they were inside
Mr
Z [....] 1’s house. Regarding why he had never reported the
events to the SAPS on the night in question, he said that it was

dark, it was late, and it was not easy for him to get to the police
station. Mr MADIDA put it to him that he could have used a
cellular
telephone to telephone the SAPS but S [....] 2 said that he did not
have one.
[71]
S [....] 2 denied the suggestion put to him
by Mr MADIDA that he and his girlfriend resided in the M [....] 1
house. With regard
to the accused’s allegation that he acted as
though it was his own home when he had not paid ilobolo, S [....] 2
stated that
he worked with the accused’s stepfather doing
plumbing work and, as a consequence, the accused’s stepfather
permitted
him to enter his residence, not the M [....] 1 house, which
belonged to the accused’s mother. He categorically denied that

he ever resided at the M [....] 1 house. He also denied Mr MADIDA’s
suggestion that he had been in a fight with the accused
or that he
had stabbed the accused. But he did agree with Mr MADIDA that the
relationship between the accused and S [....] 4 was
toxic. S [....] 2
described the version put to him by Mr MADIDA that the accused could
not have done the things he was described
as doing because he was
incarcerated as a ‘lie’. He also denied that S [....] 4
had a key to the M [....] 1 house.
[72]
The next witness called by the State was N
[....] 4 L [....] N [....] 5, also known as ‘Fidodo’. As
with S [....] 2,
I will call her by the name by which she was most
frequently referred to in evidence, namely ‘Fidodo’.
[73]
Fidodo stated that she knew the deceased,
who was the girlfriend of the accused, and said that she knew her as
‘N [....] 2’.
She testified that she was called by S
[....] 4 sometime during 2019 who told her that she had a problem.
The accused had allegedly
sent two boys to her to give her the key to
the M [....] 1 house because ‘water had allegedly come into the
house’.
[74]
At this point the interpreter, Ms van Wyk,
very correctly in my view, informed the court that the exact words
used by Fidodo were
the following:
‘
Sekungene
amanzi endlili’,
which is a phrase that
can have both a literal and figurative meaning. Literally, it does
mean that water has entered the house,
but it may also figuratively
mean that trouble, or death, has entered the house.Both counsel, who
are isiZulu speaking, confirmed
this meaning.
[75]
Fidodo knew the house S [....] 4 was
referring to but not its number. It was the M [....] 1 house. She
also knew that it belonged
to the accused’s mother and that the
accused occupied that house. She and S [....] 4 set off for that
house. As she opened
the door to the house, S [....] 4 said that the
accused had had a fight with his girlfriend and that he had found her
in the company
of another man. He then stabbed his girlfriend and the
other male. Fidodo explained that as a consequence of this
information she
thought that when she entered the house she would
find two injured persons and would have to call an ambulance. She
rather presciently
stated that she no longer expected to find
flooding in the house.
[76]
In the second room that she went into in
the M [....] 1 house she saw someone sleeping on the bed. She touched
the person’s
legs and then moved up towards the head. The
person was covered and she could not see who it was. She then moved
the blankets covering
the person to the side and saw that the
person’s eyes were wide open and that she had an injury to her
right temple on which
there was some tissue paper. The body was naked
but the body’s clothing was placed on the side of the body. She
recognised
the person as N [....] 2, the deceased. She waved a hand
over the deceased’s face to detect breathing, but there was
none.
[77]
She testified further that she called S
[....] 4 into the bedroom but she was unwilling to come close to the
bed. They then exited
the house. In her view, S [....] 4 did not
appear to be shocked whereas she described herself as having:
‘
a
fast-beating heart’.
Having left the M [....]
1 house, Fidodo said that she gave the house key to S [....] 4. They
then returned to the latter’s
home where they found S [....] 2
and S [....] 4’s mother. S [....] 4 told her mother of what
they had discovered at the M
[....] 1 house. S [....] 4’s
mother said S [....] 4 must call the accused and tell him to
surrender himself to the SAPS.
[78]
S [....] 2 left the home and returned with
the accused. S [....] 4, her mother, the accused and S [....] 2 then
went into the house
and Fidodo remained outside. The accused then
exited the house, uttering the word:
‘
Abagcwali’,
which apparently means ‘I
will not do what they tell me to do’ in Tsotsi language. Fidodo
then left her friend’s
home. She did not report the matter to
the SAPS as she knew the accused had a relative who worked at the
Glencoe Police Station
and thought that this person would report to
the accused if she, Fidodo, reported what she knew to the SAPS.
[79]
Fidodo testified that she had been
threatened by the accused two days after she saw the deceased’s
body. The accused stated
that she was sticking her nose into other
people’s matters, which she should not do and suggested that
they might destroy
evidence ‘using Fidodo’, whatever that
may mean. She relocated to Johannesburg shortly thereafter. She
revealed that
it was she who got a message to the first state
witness, Ms B [....], the aunt of the deceased, advising her of where
to look for
the deceased. The message was relayed to Ms B [....]
through Fidodo’s sister.
[80]
Under cross examination, Fidodo said she
regarded S [....] 4 as a sister and that this affinity may have been
the reason why S [....]
4 requested her to accompany her to the M
[....] 1 house. She disagreed that the accused had been in custody at
the time that she
went to the M [....] 1 house. She responded further
that he was not in custody but he had ‘conditions’ that
he was
required to sign that would come to an end in January. Asked
how she knew this, she said the accused was like a brother to her and

she liked to hang out with him when he was smoking.
[81]
The mother of the accused is Mrs S [....] 5
P [....] 1 M [....] 2, who I will refer to as ‘Mrs M [....] 2’.
She was
the next witness to testify. She confirmed that she knew the
deceased, who she knew as ‘N [....] 2’. She indicated
that she was aware that S [....] 4, her daughter, had received a
telephone call on 31 October 2019. S [....] 4 left the home after

terminating the call and returned about 1,5 hours later. When she
returned, she was with Fidodo. She was informed by S [....] 4
that
both of them had gone to the M [....] 1 house and discovered the
deceased there. After hearing what S [....] 4 told her, she
informed
S [....] 4 that she should tell the accused to hand himself over to
the SAPS. She gave this instruction remotely as she
is personally
afraid of the accused. S [....] 4 left the house and later returned
with the accused and she, S [....] 4, S [....]
2 and the accused,
then entered the house to discuss the matter further. She confirmed
that the accused did not take her instruction
to surrender himself to
the SAPS well and uttered the word ‘Asigcwali’ as he left
the house.
[82]
Mrs M [....] 2 testified further that at
around 20h00 that evening, after the television programme ‘Uzalo’
had just
finished on the television, S [....] 4 had received a
telephone call and heard her say
‘
Are
you not coming to have food at home?’
A short while later, S
[....] 4 and S [....] 2 took a lunch tin filled with food and left
the house. She did not know who had telephoned
S [....] 4 but assumed
that it was the accused. She did not see S [....] 4 or S [....] 2
again that evening.
[83]
She testified that the next day, 1 November
2019, S [....] 4 arrived home between 06h00 and 06h30, looking tired,
dirty and shocked.
S [....] 4 told her how the body of the deceased
had been disposed of. Asked by Mrs M [....] 2 why it had been
necessary for this
to happen, S [....] 4 said the accused had said
that he was ‘destroying evidence’. Upon hearing this, Mrs
M [....]
2 stated that she did not feel well.
[84]
Mrs M [....] 2 said further that she did
not see the accused again but confirmed that Correctional Service
officials would come
to her house for the accused to sign something
from time to time. Mrs M [....] 2 testified that the accused stayed
at the M [....]
1 house and that he had the keys to that house. She
did not have keys to the house. The SAPS also came to her house
periodically,
asking about the disappearance of the deceased. She
told them nothing because of her fear of the accused. S [....] 4
apparently
adopted the same approach to the SAPS, denying any
knowledge of the whereabouts of the deceased.
[85]
At one stage, Mrs M [....] 2 testified that
she had gone with the SAPS to the M [....] 1 house. As she lacked
keys to unlock the
house, she authorised the SAPS to break the lock
on the door, which they then did, using a piece of iron. The house
was searched
and some items were seized by the SAPS, apparently to be
taken to forensics for examination. She also saw some items that
appeared
to be blood stained.
[86]
After she was taken home by the SAPS, Mrs M
[....] 2 testified that she telephoned the accused’s biological
father, who lives
at Ladysmith, and asked him if he knew where the
accused was. She was told that the accused was with him. She then
telephoned the
accused who took her call and said that, contrary to
what his father had told Mrs M [....] 2, he was at eMondlo, near
Vryheid.
She advised him to hand himself over to the SAPS as they
were now worrying her. He apparently agreed to do so.
[87]
Mrs M [....] 2 then took a taxi to the
Glencoe Police Station to give them the accused’s father’s
telephone number.
She told the SAPS that they would find the
accused’s father at work at a place called ‘Sharp Sharp’
and he would
then give them instructions on how to find the accused.
The next morning, the accused’s father telephoned her and told
her
that the accused had been found by the SAPS.
[88]
Mrs M [....] 2 said that not much time
passed and then she saw eight SAPS vehicles arrive at her house. She
was informed that they
were looking for S [....] 4 and S [....] 2. S
[....] 4 and S [....] 2 were then placed in separate vehicles and
they all left.
She heard the accused calling ‘Mother, mother’
from a police van and she responded by saying that he should no
longer
call her as things had gone wrong. She did not see him again
although he did telephone her from time to time.
[89]
Mrs M [....] 2 testified further that the
accused had once assaulted her, grabbing her with both his arms and
pushing her. She managed
to break free from his hold and fled. The
accused allegedly said to her that killing her was nothing and that
he would not even
invite his friends to do that.
[90]
Under cross-examination from Mr MADIDA, Mrs
M [....] 2 confirmed that she had not initially reported what she
knew to the SAPS.
She changed her mind concerning the date upon which
S [....] 4 and S [....] 2 were arrested, after having initially said
that it
was 1
November
2019 she changed the date to 11
November 2019. This came about, she
explained, because she had reflected on the issue overnight, her
evidence continuing over a
period of three days. I must add that they
were not three full days but were truncated days shortened due to
load shedding. Responding
to a series of questions posed by Mr MADIDA
about who stayed in the M [....] 1 house, Mrs M [....] 2 ultimately
answered that the
accused stayed there. She stated, specifically,
that during September, October and November 2019 until he was
arrested, the accused
stayed at the M [....] 1 house. She confirmed
that she had obtained a court order over the M [....] 1 house that
required the accused
to leave it, but she confirmed that he had not
done so and had remained there:
‘
due
to his stubbornness’,
as she put it.
[91]
Mrs M [....] 2 denied Mr MADIDA’s
suggestion that she did, indeed, possess a key to the M [....] 1
house. She also denied
that S [....] 4 and S [....] 2 stayed at that
house and she stated emphatically that S [....] 4 had never lived
there although
she might stay over for a night from time to time. It
was put to her that S [....] 2, in fact, resided at the house and
acted as
if it was his house yet had not paid ilobolo for S [....] 4.
This was denied. Mrs M [....] 2 did concede that it irked the accused

that S [....] 2 had not paid ilobolo but she said that it had nothing
to do with the accused. The accused’s stepfather was
an adult
and owned the house that they lived in and could decide who came to
the house, and not the accused. Mr MADIDA postulated
that Mrs M
[....] 2 had obtained a protection order because of this, but she
said it had nothing to with her husband’s home
– it
involved the M [....] 1 house.
[92]
Mrs M [....] 2 admitted that S [....] 2
came to the house where she resides but that he had never spent the
night there. She confirmed
that S [....] 2 is regarded as a family
member. It was put to her that S [....] 2 and the accused were not
treated equally by the
family. She denied this. Mrs M [....] 2 stated
that she knew nothing of an event when S [....] 2 allegedly stabbed
the accused
but she confirmed that the accused had previously taken S
[....] 2’s money and a pair of jeans belonging to him and
stated
that the accused always caused the trouble. Mrs M [....] 2
also knew nothing of a protection order allegedly obtained by her
long-term
partner, Mr P [....] 2 G [....] M [....] 5 (Mr M [....] 5),
with whom she has resided for 16 years, against the accused. Mr
MADIDA
stated that because of this protection order, the accused had
been rendered homeless and had to go and stay with his biological

father. Mrs M [....] 2 agreed he had gone there but denied that it
was because of the existence of a protection order obtained
by Mr M
[....] 5.
[93]
Mr MADIDA put it to Mrs M [....] 2 that the
accused had been arrested at his biological father’s home in
September 2019. The
answer he received to this proposition was that
the accused had been arrested many times. It was then put that the
accused was
released from custody in 2020 but was re-arrested the
same day that he was released. Mrs M [....] 2 knew nothing of this.
She strongly
denied that when the accused was allegedly released in
2020 she had paid for a metered taxi to take the accused to his
father’s
home at Matiwane, Ladysmith. She also denied that the
accused was in custody on 31 October 2019 and 11 November 2019. When
it was
put to her that there was a civil disturbance about the
whereabouts of the deceased, who at that stage could not be located
and
that members of the disgruntled community had come to her house
and one S [....] 3 M [....] 2, also known as ‘Khehla’
or
‘Yellowman’, was shot, she stated that he had been shot
but that had nothing to do with the civil disturbance and
the
shooting had happened before that event.
[94]
An involved proposition was put to Mrs M
[....] 2 by Mr MADIDA that rather than having assaulted her, the
accused had been her saviour
when she had been attacked by Mr M
[....] 5 with a hammer. She had allegedly escaped the assault as a
consequence of the accused’s
intervention and fled and had been
taken to hospital by ambulance. Mrs M [....] 2 denied this
vehemently, stating that the only
time she had been in an ambulance
was when she had fallen from a ladder at her place of employment.
[95]
Warrant Officer Stanley Frank Holloway is
employed by the SAPS and is in charge of the canine search and rescue
squad, based at
Newcastle. He received a request from the Station
Commander of Glencoe SAPS to use his dog to attempt to locate the
body of the
deceased at a place called KwaDamane. He agreed to assist
and his dog located a place at KwaDamane where certain charred bones
were discovered. His dog then picked up a further smell which led him
to some abandoned silos not too distant from the place of
the
burning. In the one silo, at a depth of about 5 metres below ground
level, he observed a plastic package teeming with maggots.
After he
had repelled down into the silo, he removed the plastic bag with the
maggots and ascertained that what appeared to be
inside it was the
charred remains of a human being. The photographs admitted by consent
reveal that a substantial portion of a
body was recovered. It is
difficult to be certain as no expert evidence was called by the
State, but it appears that what was recovered
was part of the torso
of a body.
[96]
Lieutenant Colonel Bongiwe Ngobese is the
station commander of SAPS Glencoe. Whilst on duty on 6 November 2019,
she heard on the
radio that a complaint of a missing child had been
made at her police station. She immediately returned to the police
station and
interviewed the first state witness, Ms B [....]. She
activated certain police officers as a result of what Mr B [....]
told her
and they proceeded to the M [....] 1 house. The house was
locked. Looking through the windows as best as they could, they were
not able to detect that anything was amiss. Certain other police
divisions were activated and the matter was investigated further.
On
10 November 2019, a Sunday, members of the Local Criminal Records
Centre (LCRC) joined Col. Ngobese at the M [....] 1 house.
Mrs M
[....] 2 was also present and she gave permission for the lock on the
front door to be broken because she did not possess
a key to unlock
the front door.
[97]
Col. Ngobese testified further that the
lock was broken and once in the house the LCRC, who were in
attendance at her request, darkened
the house by drawing the curtains
on the windows in order that a substance might be used to determine
if there were traces of blood
present. The colonel was advised by the
LCRC that the test had been successful and that blood splatter was
detected in the house.
More specifically, it was found on a sofa and
on a bed in one of the bedrooms. After that test was done the toilet
area was inspected
and a black plastic packet was found. In it was a
towel that appeared to have blood-like spots on it. Also seized were
a pair of
grey tracksuit pants which were dirty. All the exhibits
were collected for onward transmission to the laboratory.
[98]
Col. Ngobese testified further that the
next day, Monday, 11 November 2019, after receiving a telephone
report, she telephoned Warrant
Officer Holloway and requested his
services. She then proceeded to call KwaDamane and spoke to the owner
of the farm and received
his permission to investigate further on his
property. She confirmed that at the farm Warrant Officer Holloway had
released his
dog, who had found a place where it appeared that a body
had been burnt and where bone fragments were located. Col. Ngobese
called
police officials to preserve the scene whilst the search
continued further. She testified that it appeared as though some of
the
bone remains found were from the part of the body where the leg
and the hip joined each other. Warrant Officer Holloway’s
dog
then led them to an abandoned silo complex where a plastic packet
infested with maggots was observed. Warrant Officer Holloway
went
into the silo and retrieved that packet and the witness observed some
bones as well in the packet which she thought may also
be bones from
the hip area.
[99]
Col. Ngobese testified that she then
contacted the accused’s mother, asking her where the accused
was and was told that he
was at Matiwane, near Ladysmith, about 40
kilometres from Glencoe. The accused’s mother said that Col.
Ngobese should contact
the accused’s father at a place known as
‘Sharp-Sharp’, where he both resided and worked. Col.
Ngobese and her
team then proceeded to Sharp-Sharp in three police
vans. She located the accused’s father’s workplace and
made contact
with him. He confirmed that the accused was at his home.
She asked him to telephone his son to make sure that he was, indeed,
still
at his home but the accused’s father did not have any
airtime. Using her cellular telephone, Col. Ngobese purchased some
airtime for him and the accused’s father then telephoned his
son and confirmed that he was still at his home.
[100]
On the way to the accused’s father’s
home, the resourceful Col. Ngobese stopped her convoy of SAPS
vehicles at a taxi
rank and persuaded a taxi owner to transport her
officials in his taxi to the accused’s father’s home.
This was done
to avoid alerting the accused to the fact that the SAPS
were there to arrest him. A taxi with tinted windows was graciously
supplied
by its owner. In this fashion, the accused was found at his
father’s home and was taken into custody without any
resistance.
His rights were explained to him by Col. Ngobese. The
accused was then taken to Glencoe SAPS. The colonel testified that
she then
went back to KwaDamane while a separate detachment went to
arrest S [....] 4 and S [....] 2 in Glencoe.
[101]
Back at KwaDamane, Col. Ngobese noted that
a photographer and a mortuary van had arrived and a short while later
the canine van
arrived with S [....] 4 and S [....] 2 in it. She
thought for a minute that something had gone wrong but was advised
that they
had requested to be taken to KwaDamane as they wanted to
point out where the deceased’s remains could be found. Col.
Ngobese
explained that she read them their rights so that they might
withdraw from the exercise if they wish to do so. They did not wish

to do so.
[102]
Col. Ngobese testified further that certain
community members were now present at the scene and in order to
assist S [....] 4 and
S [....] 2, and to protect them from any
possible community aggression, she put them into the back of her
double cab motor vehicle
and covered them with her jackets before
taking them to the police station. She testified that she did not
personally charge S
[....] 4 or S [....] 2. She confirmed that the
accused, S [....] 4 and S [....] 2 made their first court appearance
on 13 November
2019. When Mr Sokhela put the accused’s version
to her that he was already in custody prior to 31 October 2019, Col.
Ngobese
replied firmly that that was a lie. The cross examination of
Col. Ngobese by Mr MADIDA revealed nothing of any significance.
[103]
At the insistence of the court, the alibi
relied upon by the accused was put to Col. Ngobese. The alibi
postulated the arrest of
the accused in September 2019, and his
continued detention in SAPS custody until his release from that
custody at an undisclosed
date in 2020. Throughout the period of his
incarceration, which covered several months, it was now revealed that
he had allegedly
been kept in detention at the Wasbank Police
Station. Col. Ngobese stated that it was not possible for an accused
person awaiting
trial to be kept in detention for months at a police
station.
[104]
Brain (not Brian) M [....] 4 Mngomezulu
(Warrant Officer Mngomezulu) is a warrant officer in the SAPS and is
stationed at Glencoe.
He has 13 years’ experience. He was part
of Col. Ngobese’s team and accompanied her to Matiwane to
arrest the accused.
He personally did not enter the home of the
accused’s father but confirmed that the accused was found at
that home. He was
later involved in arresting S [....] 4 and S [....]
2 at S [....] 4’s residence. After he had arrested them, he
took them
to KwaDamane, at their request, because they wished to
point out where the deceased’s remains could be found. They
then assisted
in showing where the remains had been located already.
Thereafter, S [....] 4 and S [....] 2 were taken to Glencoe SAPS and
detained.
[105]
Warrant Officer Mngomezulu was confident
that the arrests had been carried out on 11 November 2019. He
confirmed that when S [....]
4 was first confronted with the
allegations against her, she declined to co-operate or respond. Mr
MADIDA put the accused’s
version to Warrant Officer Mngomezulu,
namely that on 11 November 2019 the accused was already in custody.
This was denied. It
was also suggested that the accused had been
severely assaulted and had now been taken both to Wasbank Police
Station and Elandslaagte
Police Station where the assault occurred
under Warrant Officer Mngomezulu’s watch. This was denied by
Warrant Officer Mngomezulu.
[106]
Sikhumbuso Prince Allan Moloi (Mr Moloi) is
an employee of the Department of Correctional Services. He is the
head of the Community
Corrections unit in Glencoe. The unit that he
heads up deals with former prison inmates who have been paroled after
serving a portion
of their sentence. He disclosed that on 18 December
2018, the accused had been placed on parole and his final liberation
day was
fixed as being 18 May 2020. His liberation day would be the
day upon which his period of parole came to an end and he would
finally
be a free man. Mr Moloi confirmed that he had dealt
personally with the accused.
[107]
Mr Moloi testified that a parolee is
required to perform some form of community service whilst on parole
and is required to subject
himself to monitoring by his unit. On the
issue of community service, the evidence of Mr Moloi was most
confusing. The documentation
that he provided, to which he made
frequent reference while testifying, indicated that when required to
perform community service
there had not been a violation, which to a
reasonable person’s understanding would mean that the community
service had been
done. This, however, was not the case: according to
Mr Moloi, the community service had not been done notwithstanding the
fact
that the records showed that there had been no violation. He was
never able to explain this disconnect satisfactorily. But the fact
of
the matter is that the accused had not done any community service.
[108]
As regards monitoring, he testified that
there are various types of monitoring. When a person is eligible for
parole, it is necessary
to first classify him or her as being either
high risk or some lesser form of risk. The accused, when he became
due for parole,
was classified as being high risk. As a consequence,
the accused would receive four visitations at his nominated
monitoring address
by Mr Moloi’s unit per month. In addition,
he was required to attend the Department of Correctional Services
offices in Glencoe
once a month. The accused would thus be subject to
five incidents of monitoring in any month. Practically, this did not
occur.
[109]
In all, Mr Moloi’s unit monitored the
accused on 11 occasions between 30 December 2018 and 24 October 2019,
paying visits
to his nominated monitoring address, which was the
address at which his mother and sister, S [....] 4, lived. On each
occasion
the accused was allegedly found to be present at that
address. On each occasion he signed a form confirming the monitoring
visit
and his presence when the visit had occurred. Clearly, the full
force of the monitoring program was not visited upon the accused:
he
ought to have been monitored on at least 55 occasions, as a high-risk
parolee, but was not. Significant among the 11 occasions
when he was
subject to monitoring are the dates of 10 October, 13 October and 24
October 2019. On each occasion, the accused was
at his nominated
monitoring address. The significance of these dates is that the
accused’s alibi was that he was already
in custody at the
Wasbank Police Station over this period. Mr Moloi testified that the
first instance when the accused was found
to be in default was on 11
November 2019, which is the date that Col. Ngobese stated that she
had arrested the accused.
[110]
As regards the accused’s visits to
the Correctional Services’ offices, according to Mr Moloi, the
accused made only
four over the period 22 December 2018 to 27 October
2019. He thus clearly did not comply with his obligations in this
regard either.
Interestingly, his last two visitations were made on
13 October 2019 and on 27 October 2019. These are significant dates,
as he
was allegedly already in custody then.
[111]
Under cross-examination from Mr MADIDA, Mr
Moloi confirmed that he lacked personal knowledge of the accuracy of
the information
captured in the documentation to which he referred in
his evidence. The functionary involved in capturing the information
was either
a Mr Groenewald, alternatively a Ms Sahib. He confirmed
that he was not able to authenticate any of the information in the
document
upon which he relied. He also confirmed that some of the
information in his documentation was incorrect: on 28 October 2019
the
document recorded that no violation had been committed by the
accused, when it ought to have shown that he had violated his parole

conditions. Mr MADIDA put it to Mr Moloi that the accused had, in
fact, made no visits to the offices of the Department of Correctional

Services as he was required to do because he was unaware that he was
obliged to do so. This was disputed.
[112]
Mr MADIDA then put a further version to Mr
Moloi on behalf of the accused, stating that whilst the accused’s
parole was intended
to be complete on 18 May 2020, he had in fact
received the benefit of a Presidential Amnesty in February 2020, but
he nonetheless
remained in custody as an awaiting trial prisoner. Mr
Moloi disputed the claim of a Presidential Amnesty, stating that the
offence
in respect of which the accused was placed on parole was not
the type of offence that would have attracted a Presidential Amnesty.

In fact, it was specifically excluded. Mr MADIDA confirmed his
client’s version that he had later been released from custody

when the charge upon which he was being detained, being the charge of
murder, was withdrawn. Mr Moloi had no knowledge of this.
Mr MADIDA
also put it to Mr Moloi that the accused had been in custody from 13
February 2019 to August 2019 and that Mr Moloi’s
information in
his documentation was therefore not accurate. That information
recorded that the accused had been subjected to monitoring
visits at
his home and was, on each occasion, present. Mr Moloi said that the
information in his documentation was accurate. Under
questioning from
the court, Mr Moloi confirmed that the raw data that underpinned the
information in his documentation would be
the forms signed by the
accused on each occasion that he was monitored at his home and which
he would be called upon to sign confirming
his presence at the time
of the monitoring visit. He confirmed that these documents still
existed and were contained in his unit’s
archives.
[113]
Mr Mandla Z [....] 1 is the person selected
by the State to deal with the relevant documents extracted from the
archives referred
to by Mr Moloi. To avoid confusing him with the
other Mr Z [....] 1 who testified about his wheelbarrow, I shall
refer to him as
‘Mr Mandla Z [....] 1’. He confirmed that
he was a monitoring official employed by the Department of
Correctional Services,
Dundee and, more particularly, was in the
Community Corrections unit. He knew the accused as he was a parolee
that had to be monitored
and he dealt with him. He was provided with
a copy of the documentation relied upon by Mr Moloi. He confirmed
that when a visit
was paid to the accused’s nominated
monitoring address, the accused would have to sign a document
confirming that he had
been present when the monitoring visit had
occurred. Apparently, this was not a document devoted only to the
accused but would
feature the details of other parolees as well who
would all be visited on the same day. Mr Mandla Z [....] 1 had
extracted all
the records of visitations made to the accused’s
nominated monitoring address and bundled them together. This was
received
as an exhibit.
[114]
It is perhaps advisable to describe what
this document is comprised of. There are up to five persons’
details recorded on
each page. The information about each person is
separated from the next person’s information by parallel lines
across the
page. Each person’s information is recorded between
those parallel lines and that information includes addresses,
programs
that the person is on, last status date, prison number, date
of birth and the like. Each person’s photograph also appears
in
in the block recording his personal information. If the visitation is
uneventful and the person being monitored is present at
the time of
the visit, the person being monitored signs in the block where his
personal information is recorded, as do the official
or officials
doing the monitoring.
[115]
Mr Moloi’s documentation recorded,
inter alia, that the accused had been monitored on 11 occasions
between 30 December 2018
and 24 October 2019 and that on each
occasion the accused had been present at his nominated monitoring
address. This, however,
was refuted by Mr Mandla Z [....] 1. Of the
11 visits referred to by Mr Moloi, only six had actually occurred. Mr
Mandla Z [....]
1 could not explain why Mr Moloi’s records
reflected more visits to the accused than had actually occurred.
[116]
The visits that had occurred, according to
Mr Mandla Z [....] 1, had taken place on the following dates: 27
January 2019, 10 February
2019, 11 February 2019, 24 February 2019, 3
October 2019, 13 October 2019 and 7 November 2019. The last-mentioned
date was not
a date on Mr Moloi’s list. The accused was present
on each of the monitoring visits, except the last date, when it was
recorded
that he was not at home. Thereafter, he was never at home,
with each subsequent entry recording that the accused was ‘Detained

in Ladysmith.’
[117]
Mr Mandla Z [....] 1 was cross examined by
Mr MADIDA. He revealed that, according to his records, the accused
had been arrested
during March 2019 and was detained thereafter at
Ladysmith Prison. Mr MADIDA confirmed this and said that he was
detained as an
awaiting trial prisoner. Mr Mandla Z [....] 1
confirmed that awaiting trial prisoners are kept at the prison. He
did not, however,
know when the accused had been released from
custody. He confirmed that his colleague, Khanyile, did the
inspections on 3 October
and 13 October 2019. Whilst Mr Mandla Z
[....] 1’s signature and personal information does not appear
on the form that the
accused was required to sign when visited, he
asserted that he had been present on both 3 and 13 October 2019 with
some students
for whom he was responsible. He lacked any objective
proof of his presence on those two dates. Mr Mandla Z [....] 1,
rather confusingly,
testified that the name of the official who
appeared on the visitation form is not necessarily the person who
actually carried
out the monitoring visit. He confirmed that even
where his name appeared, it did not mean that he had actually visited
the person
being monitored.
[118]
Further under cross examination, Mr Mandla
Z [....] 1 stated that the accused’s parole had been revoked in
December 2019.
More specifically, this had occurred on 9 December
2019. The accused then became a sentenced prisoner even though he
was, at the
same time, still awaiting trial on certain charges.
[119]
The version of Mr Mandla Z [....] 1 was not
too different to the accused’s version, although there were
some notable differences.
Mr MADIDA put the accused’s version
to him, which initially was that in November 2019 the accused had
been in the Ladysmith
correctional facility as an awaiting trial
prisoner. And it is in that month, not December 2019, that his parole
had been revoked.
Mr Z [....] 1 was firm that it had been revoked on
9 December 2019. The initial version put was then expanded upon by Mr
MADIDA.
Prior to the accused’s parole being revoked in November
2019, so this version went, there had been an earlier visit by
correctional
services employees to the accused who was imprisoned in
October 2019. In that month, the first attempt was made to revoke his
parole
but the accused had argued with the correctional officials,
saying that he had not yet been convicted of any offence that would

permit his parole to be revoked. In the face of that argument, the
officials had blanched and had left without revoking his parole.
But
they returned in November 2019 and formally revoked his parole. The
version proceeded further and Mr MADIDA stated that the
accused’s
sentence was due to lapse in May 2020, but in 2020 he received the
benefit of a Presidential Amnesty. His status
then changed and he was
no longer a sentenced prisoner but reverted to being an awaiting
trial prisoner. Thereafter, the charge
upon which he was awaiting
trial was withdrawn and he was released on an unknown date. The
version was again expanded upon and
Mr MADIDA stated that the accused
had remained in custody after being arrested in February 2019 until
August 2019 when the charges
were withdrawn against him. However, in
September 2019, he was arrested by the police and remained in custody
in Ladysmith until
November when his parole was revoked.
[120]
Mr MADIDA further disputed on behalf of the
accused all of the home visits allegedly made to the accused’s
nominated monitoring
address on the basis that the accused was in
custody. The only visit the accused acknowledged as having occurred,
was one made
in January 2019 but otherwise Mr MADIDA asserted that
there were no other home visits, ever. He also disputed that the
accused’s
signature appeared on the monitoring forms in respect
of which Mr Mandla Z [....] 1 testified. Mr Mandla Z [....] 1 said
that the
accused had signed them in his presence when he had been the
monitoring official and consequently disputed the accused’s
version. Finally, Mr MADIDA asserted that the accused would deny that
he had made any office visits as he was required to do as
part of his
parole conditions. Mr Mandla Z [....] 1 produced the registers of
both the Glencoe Police Station and the register
from his offices in
Dundee which showed that the accused had signed at the Glencoe Police
Station on 24 February 2019 and at the
Dundee office on 13 October
2019.
[121]
Captain Caiphus Mazibuko is currently the
investigating officer of the three rape cases before the court. He
was not the original
investigating officer in respect of those
offences but has taken over the investigation of those three counts
of rape. He confirmed
that none of the complainants in those three
charges were certain of who the person was that had raped them. Ms K
[....] had expressed
a view that the person who attacked her was
‘Bafana’, not the accused. This witness’s evidence
was very awkwardly
dealt with by Mr Sokhela. There was a reason for
this. The reason was startling, even shocking. The State had no
deoxyribonucleic
acid (
DNA) evidence that they
could produce to the court that linked the accused to any of the rape
victims, this notwithstanding that
specimens had been taken from each
complainant after their respective ordeals and certain physical
evidence, used condoms, had
been found in the cemetery following the
attack on Ms K [....]. While these specimens all existed there was no
admissible evidence
in respect of the buccal specimen apparently
taken from the accused. That such a specimen was taken permits of no
doubt. But when
and where that specimen was taken is apparently
unknown to the State and cannot be established. The court suggested
that the matter
could be resolved by simply, but carefully, taking
another specimen from the accused and delivering it to the relevant
laboratory.
Capt. Mazibuko said he had already thought of that and
had done it. He has been waiting for the analysis results since July
2020.
In nearly three years, he has not received the results of the
requested analysis.
[122]
Notwithstanding this devastating evidence
on behalf of the State, and the concomitant beneficial results for
the defence, Mr MADIDA
still saw it necessary to cross examine Capt.
Mazibuko, a potentially dangerous decision that could have backfired
spectacularly.
As chance would have it, it did not. Indeed, a
significant fact emerged namely that the seal number of the specimen
obtained from
Ms K [....] had also not been recorded on the form used
to record the chain of custody of the specimen.
[123]
After seeking an amendment of the charge
sheet in respect of the seventh count, the proposed amendment
reflecting that the date
of the murder was 31 October 2019 and not 11
November 2019 as then reflected on that charge, which amendment was
granted, and after
four weeks of evidence and the calling of 19
witnesses, the State closed its case.
[124]
As is to be expected, Mr MADIDA then moved
an application in terms of section 174 of the Act in respect of all
seven charges that
the accused was facing at that stage. I have
already dealt with the results of that application earlier in this
judgment.
[125]
After the ruling on the section 174
application, an application for an adjournment to the next trial day
was moved by Mr MADIDA.
It had three legs at its foundation but a
fourth was also mentioned. The accused wanted an opportunity to
consult with a witness
he wished to call, one S [....] 3 M [....] 2,
also known as ‘Yellowman’, who had previously been
mentioned in the evidence
relating to count 7, and he also wished to
consult with a State witness, one Lucky Justice Dlamini, apparently a
police officer.
The third ground was that the accused was not feeling
well with an upset stomach, a complaint that had been raised at the
commencement
of the day’s proceedings. Mr MADIDA mentioned, in
passing, a fourth ground, namely that he wanted time to consider the
effect
of the refusal of his application for a discharge of the
accused on all counts. I granted the application and adjourned the
matter
to the next day and directed that the accused receive medical
treatment for his stomach ailment overnight.
[126]
The accused appeared the next day without
complaint about his health and took to the witness box. As an opening
observation, it
would be accurate to state that Mr MADIDA took the
accused through his evidence in granular detail. Mbusomusha Tokyo M
[....] 2,
being the full names of the accused, informed the court
that he did not know the complainant on counts 2 and 3, Ms K [....],
nor
did he know Bafana Shange, who Ms K [....] identified as her
rapist. He confirmed that he did know Mr M [....] and described him

as a person that he had grown up in front of in the location. He also
knew the tavern that Miss K [....] mentioned in her evidence
but he
had never been there because as he put it, he doesn’t:
‘
mix
up with alcohol’.
[127]
On count seven, the murder count, the
accused confirmed that he knew the deceased, having been in a love
relationship with her which
relationship commenced in 2018. On the
very first occasion that he met the deceased he had proposed love to
her and she accepted
his proposal. This had occurred whilst they had
both been smoking in what he termed ‘my house’. This was
a reference
to the house at M [....] 1. He, however, described the
relationship that had then developed as not being a ‘good one’,

because while he was professing to only be in love with the deceased,
that was not true and the same applied to the deceased, namely
that
she professed to only be in love with the accused but that that was
not true either. He described it as a ‘cheating’

relationship.
[128]
The accused testified that he resided with
S [....] 4 and S [....] 2 in the M [....] 1 house yet described his
relationship with
S [....] 4 as also not being a good one and blamed
the presence of S [....] 2 for that fact. His complaint was that S
[....] 2
had not paid any ilobolo for S [....] 4 and a further
complaint was that his, the accused’s, food would be given to S
[....]
2 and he would get nothing to eat. He consequently had a fight
with S [....] 2. This commenced with a fist fight and then progressed

to a knife fight. S [....] 2 allegedly drew a knife first, and the
result was that the accused ended up being stabbed on his left

shoulder. When his mother came out of the house to see what was going
on, the accused told her that this was all happening because
S [....]
2 was allowed to enter ‘our premises’.
[129]
The accused described his mother, sister
and S [....] 2 as having lied in their evidence and said that they
were all involved in
falsely implicating him in the charges that he
faces. The accused testified that after his mother had obtained a
protection order
against him, he had never gone back to the M [....]
1 house.
[130]
There did not appear to be any carefully
thought-out presentation of the accused’s evidence and his
testimony was adduced
in an erratic manner that rendered it difficult
to comprehend what the version was that was actually being put
forward. For example,
the accused’s evidence on events in 2020
was first led in preference to events that had occurred in 2019. I do
not understand
why that was the preferred method of delivery of his
evidence and it certainly did not assist the court in comprehending
what it
was that the accused adhered to. Be that as it may, the
accused testified that he had been released from custody in August or
September
2020 when the murder charge had been withdrawn against him.
The charges were withdrawn at the Glencoe Magistrate’s Court
and as he exited the courthouse he went immediately to a house across
the road from the courthouse where he knew some boys resided.
There
he managed to secure the use of a telephone and called his mother.
She told him that he was not to show himself in public
but said that
she would instruct a metered taxi to pick him up and take him to his
father’s home in Matiwane. The accused
allegedly asked her what
his sin was when told this. He was duly picked up by a metered taxi
but was only taken as far as Wasbank,
as that was the extent of the
payment made by his mother to the taxi driver. His mother had,
however, given the taxi driver R150
to give to the accused to enable
him to hike from Wasbank to Ladysmith.
[131]
He testified that he eventually arrived at
his father’s homestead and met a woman who he described as
‘MaNcwane’,
who he had never previously met. She
apparently did not know where the accused’s father was but gave
him R20 to purchase
some airtime so that he could contact his father.
He took the money proffered, notwithstanding that he personally had
money to
make that purchase. He walked to the shop to purchase the
required airtime and was joined by a boy known as Sambolo. Sambolo
then
received a call on his cellular telephone from MaNcwane that was
cut short. But the message was capable of being delivered before
this
occurred and was to the effect that there were members of the SAPS at
his father’s home looking for him. He returned
home and found
three people in attendance, two of whom were SAPS officials: a Sgt
Dlamini and a female SAPS member and her husband.
He was advised that
he was being arrested on eight counts of rape. He was taken to the
Dundee Police Station and he argued with
his arrestors that there was
no evidence to link him to these offences. He was nonetheless charged
with eight counts and appeared
in the Glencoe Magistrate’s
Court and since the day of his arrest he has remained in custody.
[132]
The accused, in essence, denied all the
evidence of his sister and S [....] 2 and stated that the owner of
the wheelbarrow previously
mentioned by those two State witnesses, Mr
Z [....] 1, was also part of the conspiracy to frame him. He
confirmed that he did not
have a good relationship with Mr Z [....] 1
and ascribed this to the fact that he had confronted Mr Z [....] 1
after Mr Z [....]
1 had expelled his nephew from his home.
[133]
By virtue of the fact that the
accused denied virtually all the evidence that had previously been
led by the State, he denied ever
meeting the second State witness, Mr
B [....], on 5 November 2019. He mentioned a fight that had allegedly
occurred between his
stepfather and his mother that led to his mother
being injured and being taken to hospital by an ambulance and
asserted that because
he had come to the assistance of his mother
during that fight, his stepfather had obtained a protection order
against him and had
subsequently informed him that he could no longer
support the accused. He was thereby rendered homeless. When this
fight and the
subsequent events allegedly occurred was never
mentioned.
[134]
Dealing with the events of 31 October 2019,
the accused testified that he was in prison at Ladysmith awaiting
trial on that date.
He had been detained in respect of the charge of
murder pertaining to the deceased that he presently faces in these
proceedings.
That charge was ultimately withdrawn in August or
September 2020. He confirmed that he had been in custody on the
charge of murder
from September 2019. He had been arrested at his
father’s house at Matiwane by many SAPS officials, but Col.
Ngobese was
not one of them. He was assaulted when arrested and was
then taken to the police station at Elandslaagte. There he was tubed
and
was asked about the whereabouts of the deceased. His response was
that he had left her at Glencoe and that she could:
‘
be
found all over Glencoe’.
He was then subjected to
further tubing for a period of about 30 minutes. He said there were
approximately 50 SAPS vehicles at the
police station and he saw a
list that had the names of four persons on it, which included his
name, his sister's name, S [....]
2’s name and the name of S
[....] 3 M [....] 2. He was then taken to his mother’s home
where his sister and S [....]
2 were arrested and they were then all
taken to the canine unit which is apparently on the way to Dundee.
There, the four of them
were separated and made to sit in a straight
line. He was tubed again and apparently asked of those doing that to
him whether he
had to be:
‘
crucified
like Jesus for the sins of others?’
This apparently had the
desired effect as the police officials thereafter left him alone. He
explained that he told the SAPS nothing
because he knew nothing.
[135]
The State provided Mr MADIDA with a copy of
the charge sheet relating to the count of murder in the lower court.
It recorded that
the accused had been arrested on 11 November 2019
and that his first appearance had been on 13 November 2019. When
advised of this,
the accused denied this and said it was ‘a
fraud’. He insisted he had been arrested in September 2019.
[136]
Going back further in time, the accused
testified that from January 2019 to September 2019 he was ‘still
signing’, this
apparently being a reference to the monitoring
to which he was subjected as a consequence of his parole. However, in
February 2019
he stated that he was arrested on charges of rape and
robbery. He had been held in custody in Ladysmith for six months
awaiting
DNA analysis results. As regards when he was released from
this incarceration, he made the positive statement that:
‘
I
recall clearly I was released in August 2019’.
He went to his mother’s
home upon his release.
[137]
The accused disputed the State’s
evidence relating to his monitoring at his nominated address and
denied, save for one, all
the signatures that appear on the document
presented by Mr Mandla Z [....] 1 in his evidence. He testified
further that he had
been arrested in September 2019 and was in
custody in September and October 2019. He indicated that the
monitoring officials had
come to the prison in November and indicated
that his parole was to be revoked. He had argued with them that they
could not do
this and had allegedly said that there were a lot of
parolees in prison and asked why they had not started with those
persons before
they came to him and purported to revoke his parole.
In December 2019 the monitoring officials returned, allegedly with
five members
of the parole board, and his parole was formally
revoked. The accused continued to assert that he had thereafter
received the benefit
of a Presidential Amnesty and was consequently
released from custody in the year 2020. He went home. He denied
killing the deceased
or raping Ms K [....] or robbing her.
[138]
Mr Sokhela then commenced his cross
examination of the accused. The accused’s attention was drawn
to the evidence of the first
State witness, Ms B [....], and the
evidence of the second State witness, Mr B [....]. Both had testified
that the first information
that they had received that something may
have happened to the deceased was on 5 November 2019, when they had
carried out their
own search for her. When nothing came of it, Ms B
[....] reported the deceased’s disappearance to the SAPS on 6
November
2019 and came into contact with Col. Ngobese. The accused
confirmed that he had been arrested for the murder of the deceased in

September 2019. Mr Sokhela put it to the accused that he had
therefore been arrested when the deceased’s family was unaware

that anything was amiss with her and when no report had been made by
them to the SAPS about her disappearance. In short, he was
arrested
for a murder that had not yet occurred and had not been reported to
the SAPS. The accused was asked how this was possible.
He was unable
to provide a sensible answer, but merely repeated his version that he
had been arrested for the murder in September
2019. The proposition
was put to him many times, in various forms, but the accused’s
answer never improved and, ultimately,
no satisfactory answer was
provided by him.
[139]
Dealing essentially with the same point, it
was put to the accused that the registration number of the Glencoe
murder case was 17/11/2019,
the inference being that there was no
police docket in existence pertaining to the murder in September
2019. As Mr Sokhela pointed
out, before 6 November 2019 not a single
person had filed a statement with the police relating to the
deceased. The accused said
that he did not disagree with that
proposition but stood by his version. When asked whether, due to
human fallibility, he might
be mistaken as to the month in which he
was arrested, the accused declined to agree that this was possible.
[140]
The accused stated that upon his release
from prison in 2018 he had gone to stay at his mother’s house,
which is actually
his stepfather’s house. He then stated that
he had changed his nominated monitoring address from that house to
the M [....]
1 house. This had never previously been mentioned by him
and had not been put to the monitoring officials when they testified.
Their documentation recorded that they monitored him at 367
Ekuthuleni Street, Sithembile Location, Glencoe. That is not the
address
of the M [....] 1 house. He explained to Mr Sokhela that he
had informed Mr Mandla Z [....] 1 of his change of address when he
was monitored by him on a visit. He explained that this visit had
occurred in January 2019, and then confirmed to the court that
Mr Z
[....] 1 had then monitored him at the M [....] 1 house. Shortly
before this, the accused had stated that he had been in residence
at
the M [....] 1 house in December 2019, but then disputed that he had
actually said that. He agreed that he had not informed
Mr MADIDA of
these facts. The court then drew to his attention that he had
previously testified that there had only been a single
monitoring
visit to which he was subject and that was at his stepfather’s
house. He now said that he had also been monitored
at the M [....] 1
house.
[141]
Mr Sokhela then reverted to the accused’s
first appearance at court on 13 November 2019. Surprisingly, the
accused now agreed
that he had made his first appearance on that
date. It was put to him that he had responded to a series of
questions from his counsel
in his evidence in chief saying that he
had not made an appearance on that date and everything that suggested
that he had, was
a fraud. Departing from this version, the accused
now confidently stated that he had made his first appearance on 13
November 2019
but persisted with his version that he had actually
been arrested in September 2019 and had been held for over a month
without
making a court appearance.
[142]
As previously mentioned, at the
commencement of the defence case, Mr MADIDA had informed the court
that he intended calling certain
witnesses in defence of the accused.
One of the witnesses mentioned by Mr MADIDA was S [....] 3 M [....]
2, also known as ‘Yellowman’.
I shall continue to refer
to him by that moniker. Mr Sokhela then embarked upon a series of
questions concerning Yellowman. The
accused testified that he had
learnt of the shooting of Yellowman when he telephoned home from
prison and a relative, one S [....]
6 N [....] 6, had informed him
that Yellowman had been shot. This had apparently occurred after
Yellowman had seen the accused
at court the previous day. The
shooting had allegedly happened at 19h00 on the day following that
meeting at court. Mr Sokhela
then asked the accused whether he had,
in fact, made a court appearance in September, contrary to his
earlier evidence that he
had been held without making such an
appearance until 13 November 2019. The accused denied that he had
said that he had seen Yellowman
at court. As a matter of fact, the
accused had said those words. The accused then sought to explain, in
a complicated fashion,
that he had not gone personally to court but
that a fellow prisoner who was going to court had agreed to meet with
Yellowman and
transport toiletries back to the accused in prison from
Yellowman. The accused then denied that he had said that he had been
at
court but when the court said that he had said that and offered
him the opportunity for the record to be replayed so that he could

satisfy himself of this, he declined to allow this to occur and said
that the court was correct.
[143]
For a reason that is not immediately clear
to the court, the defence placed great stock on the fact that
Yellowman had apparently
been attacked by the community and shot in
the belief that he had been, somehow, involved in the disappearance,
and death, of the
deceased. On the version advanced by the defence,
this shooting had occurred sometime prior to the arrest of the
accused. Mr Sokhela
put it to the accused that, in fact, the shooting
had occurred on 19 November 2019. On the State’s version, this
was after
the arrest of the accused. The accused said he would not
disagree with this.
[144]
Adverting to the murder charge, Mr Sokhela
asked a number of questions regarding the age of the deceased. The
accused denied knowing
that she was a minor and was shown a
photograph that had been received by the court as an exhibit. The
court made the observation
that he continuously turned the photograph
over so that he could not observe the deceased. The accused indicated
that he started
living with the deceased in 2018. He confirmed that
the deceased spent nights at the M [....] 1 house.
[145]
On the issue of his relationship with Mr Z
[....] 1, the owner of the wheelbarrow, the accused explained that he
had had a conversation
with him concerning Mr Z [....] 1’s
decision to expel his nephew from his home. The accused was also
asked why he had become
involved in that issue, which did not concern
him at all. The accused’s response was that the explanation for
his conduct
provided by Mr Z [....] 1 was that
‘
we
come home late and knock on the door and smoke dagga.’
Despite questioning from
the court on this issue, it was not clear whether the accused was
stating that he had been included in
the allegations made by Mr Z
[....] 1 by use of the word ‘we’. The accused denied that
he had said ‘we’.
Another dispute erupted over whether he
had spoken in the plural. The accused stated that what Mr Z [....] 1
had said ‘hit
me in my heart’. It was pointed out to him
that he had admitted both selling and smoking dagga. The accused then
shifted
the point of emphasis by denying that he ever came home late
at night. From what was described by the accused as having occurred

between himself and Mr Z [....] 1, it appeared to be that nothing
more transpired other than a conversation without any confrontation

and accordingly how this could have resulted in the development of a
toxic relationship between the two remained entirely obscure.
Sight
must not be lost of the fact that Mr Z [....] 1 denied ever speaking
to the accused on this issue.
[146]
The accused indicated that upon his release
from prison in 2018, he had gone to reside at the M [....] 1 house.
He also confirmed
that before he went to stay at his father’s
house in September 2019, he had resided at the M [....] 1 house. He
claimed that
all the furniture in the house was his and he confirmed
that he had a key to that house. He explained that when he left the
house,
he gave the key to S [....] 4. When this was pointed out as
being a previously undisclosed revelation, the accused’s
answers
became difficult to comprehend.
[147]
In re-examination, Mr MADIDA asked the
accused whether he was ever given proof of the fact that he had been
arrested. The accused
told Mr MADIDA that he was never given any
proof of this. But then, unexpectedly, he stated that each time he
was arrested his
rights had been explained to him and he had been
given a document recording this. The obvious question that arose from
this was
where was the piece of paper recording his rights when he
was allegedly arrested in September 2019 for the murder of the
deceased.
Mr MADIDA never asked him to produce that document or where
it was. A statement of rights had previously been handed in as an
exhibit
at the behest of the defence. It related to the arrest of the
accused on 11 November 2019.
[148]
Having previously described his
relationship with the deceased as a ‘cheating’
relationship, the accused also conceded
to Mr MADIDA that he had no
proof that this was the case in respect of the deceased. He said that
perhaps he assumed that she cheated
on him. He, however, confirmed
that he had cheated on her.
[149]
Upon completion of his re-examination, the
court then asked the accused to assist it to understand his alibi by
chronologically
setting it out, which he the accused then proceeded
to do.
[150]
At the completion of the accused’s
evidence, Mr MADIDA informed the court that the defence was
dispensing with two of the
three witnesses that the accused intended
to call, but still intended to call a member of the SAPS concerning
the arrest of the
accused in August 2020. After the intervention of
the court it transpired the SAPS member intended to be called had
previously
been a State witness. The State was accordingly aware of
what that witness might say in his evidence. Mr Sokhela stated that
the
State did not dispute what that witness might state. As a
consequence, in order to dispense with the necessity of calling the
witness,
the State made an admission in terms of section 220 of the
Act which read as follows:
‘
On
4 August 2020 in respect of Glencoe CAS number 70/11/2019 the accused
was released from court at Glencoe as a result of the matter
being
removed from the roll by a magistrate in court on the said date.
The State admits that on
the same day, 4 August 2020, the accused was arrested again at
Matiwane in Ladysmith in connection with
the rape charge and detained
in respect thereto.’
[151]
With this formal admission, Mr MADIDA
dispensed with the calling of the SAPS witness and also admitted the
correctness of the charge
sheet that the State wished to hand in
regarding the events at the Glencoe Magistrate’s Court on 4
August 2020. That charge
sheet which had previously been
provisionally received as an exhibit, was then formally received as
an exhibit.
[152]
Mr MADIDA then closed the accused’s
case.
[153]
The matter then stood over for argument.
Later, Mr Sokhela called for the conviction of the accused on the
three remaining counts
that he faced, whilst Mr MADIDA argued that
the accused was entitled to his acquittal on those counts.
Evaluation of the
evidence
Counts 2 and 3
[154]
There can be very little doubt that the
complainant in these two counts, Ms K [....], was raped and robbed on
27 April 2013. The
medical examination carried out on her after her
ordeal supports her oral evidence that she was sexually assaulted.
The injuries
that she sustained to her vagina and anus are recorded
on the medical examination form. The only issue is who the rapist,
and therefore
the robber, was. The State alleges that it is the
accused. The accused denies that it was him but offers up no other
defence. He
does not say, for example, as he does in relation to the
murder charge that he faces, that he was someplace else and could not
therefore be the rapist.
[155]
The unchallenged evidence of Ms K [....] is
that she was sexually penetrated on four occasions on the evening in
question, against
her will, and during the latter two acts of
penetration the rapist was persuaded by her to put on a condom. She
testified that
those two condoms were discarded in the area of the
cemetery where she was raped. They were subsequently recovered by the
SAPS,
presumably for the purpose of being subjected to DNA analysis.
The State therefore potentially had a powerful source of evidence

through which it could have determined the identity of the rapist
beyond any doubt. By this I mean that if the analysis revealed
the
accused to be the person who left samples of his DNA in the two
condoms then he would undoubtedly be the rapist, regard being
had to
the fact that the accused has never suggested that he had been having
intercourse with anyone in the cemetery around the
same time as the
rape of Ms K [....] occurred. On the other hand, if the DNA samples
in the condoms revealed DNA foreign to that
of the accused, then it
would have been established beyond reasonable doubt that the accused
could not be the rapist.
[156]
The State, however, led no forensic
evidence establishing that anything of significance had been
extracted from the two condoms,
or indeed from the specimens obtained
from Ms K [....]’s body when she was examined by a medical
doctor after being raped.
Capt. Mazibuko gave very confusing evidence
as to why this is the case. It is not necessary to repeat that
evidence, which in its
purest form was that there were difficulties
with the specimen extracted from the accused for comparative
purposes. To my mind
there were many ways in which this difficulty
could have been overcome but there appears to have been no desire on
the part of
either the SAPS or the prosecution services to decisively
overcome this difficulty. Instead, it was deemed more expeditious to
do nothing but rather point the finger of blame at the SAPS
laboratory services for their inability to analyze specimens and
report
on their findings. I do not find this to be acceptable, and I
intend doing something about it.
[157]
There is thus no objective evidence linking
the accused to the rape of Ms K [....]. Even Ms K [....] does not say
it was the accused
who raped her. She consistently throughout her
evidence stated that the person who raped her was one ‘Bafana’.
We know
that the person’s full names are Bafana Shange. When
asked by Mr MADIDA whether she knew the accused, Ms K [....] said
that
she did not. This is a significant piece of evidence. Ms K
[....] did not only have the time in the cemetery within which to
form
an impression of the identity of the person raping her. In
saying as much, I acknowledge that this would have been a most
harrowing
time for her and not ideal circumstances within which to
make a definitive observation of the man attacking her. But she had
other
opportunities during the day on which she was raped to observe
her rapist. This occurred when she alighted from the bus, in
daylight,
when the person she believed to be ‘Bafana’
helped carry her bag as she proceeded on foot to her home. She again
encountered
this person later that evening when she left the tavern
that she was at with her friends and proceeded to the tuck shop to
purchase
some food. She walked both to the tuck shop and back to the
tavern with Bafana and conversed with him as she did so. The walk
took
ten minutes each way according to Ms K [....]. Later, when she
departed from the tavern she met up with him again. Thus there were

multiple opportunities for her to satisfy herself as to the
appearance and identity of the person who would later rape her. Yet

her evidence in the witness box was that she did not know the
accused. She did not even state that the accused looked something

like ‘Bafana’, who she stated had actually been the
rapist. The State also did not call Bafana to allow the court to

assess whether there was any similarity between the two men.
[158]
The only evidence that potentially links
the accused to Ms K [....] and the horrific events in the cemetery,
is the evidence of
Mr M [....]. He testified that on an unidentified
day in the year 2013, whilst he was at the very tuck shop to which Ms
K [....]
says she proceeded to on the night that she was raped, he
saw her in the company of a man who he identified as the accused. It
was common cause that the two men knew each other well, with Mr M
[....] saying that he had known the accused for in excess of six

years. On that evening, he had stood close to the accused under an
electric light in the tuck shop when he spoke to him. He was
sure
that it was the accused that he had addressed. He testified further
that several weeks later, Ms K [....] had come to his
house and
informed him that she had been raped on the evening that she had seen
him at the tuck shop. Unfortunately, Ms K [....]
did not testify
about this visit to Mr M [....]’s house.
[159]
Several things perturb me about Mr M
[....]’s evidence and cause me concern. The first is that he
cannot say when he was at
the tuck shop. The best he can get to is a
year. In my view, even that must be open to doubt given that Mr M
[....] was never interviewed
by the SAPS until the day before he gave
his evidence in the trial. Given that the rape occurred in 2013, ten
years had elapsed
between the event in question and the date on which
he was asked to recall those events and record them in an affidavit.
I mean
no criticism of Mr M [....] in stating as much: he was never
approached by the SAPS and he stated that he thought that he would
be
once the SAPS did its investigation. He was justified in thinking
that. But the truth is that he was never asked at an earlier
stage to
record his version of events. It is common cause that in the
affidavit to which he deposed he did not even mention the
year when
the meeting at the tuck shop had occurred. The reference to the year
of 2013 was an embellishment that only emerged in
his oral evidence.
A further disquieting aspect of his evidence was that he stated that
he had been at the tuck shop at around
midnight, having been summoned
to pick up his friend who was the person in charge of the tuck shop.
This does not accord with the
estimate of time provided by Ms K
[....]. She mentioned that she had gone to the tuck shop about an
hour after arriving at the
tavern. That would have put her at the
tuck shop at around 21h00. A further point of concern is that Mr M
[....] allegedly told
Bafana that he knew Ms K [....] well. As a
matter of fact, it appears that he did not know her all that well. Mr
M [....] later
conceded that he actually did not know her name but
only knew her by sight. As a witness Mr M [....] was confident and
presented
himself well and I have no doubt that he believes what he
told the court.
[160]
But the fact of the matter is that Ms K
[....] does not state that the accused is her rapist. Mr M [....] had
a brief moment in
time to form his views of who the person with Ms K
[....] was on that terrible evening. Ms K [....] had much longer to
ascertain
the identity of her assailant and yet she still stated that
it was Bafana. She even pointed Bafana out to the SAPS as her rapist

and permitted him to be arrested. She now, reluctantly it appears,
seems to acknowledge that her rapist was not Bafana. Her views
in
this regard have apparently been molded by what others have told her
about the true identity of the rapist. How those other
persons, who
were not present at the critical moment, could be of any value in
identifying the rapist is not immediately clear
to me. Ms K [....]
appears to be willing to concede that these views may be correct but
I gained the very real impression that
she still considers Bafana to
be the person who raped her. Her positive statement that she did not
know the accused is a true reflection
of her views on the matter. I
am, at the same time, acutely mindful of the sparsity of any detail
in the accused’s defence
on this count. It simply is that he is
not the person who perpetrated this vile act and the associated
robbery. While Mr M [....]’s
evidence is the critical link to
the identity of the rapist, I am of the view that I cannot elevate it
above the observations of
Ms K [....], who was firmly of the view
that the rapist was Bafana.
[161]
There must in such circumstances be
reasonable doubt as to the identity of the rapist. I am, therefore,
unable on the evidence before
me to conclude, beyond
reasonable doubt, that
the accused was her rapist.
Count 7
[162]
This is the count of murder that the
accused faces. There is no direct evidence that the accused murdered
the deceased. Her body
was found on a bed inside the locked M [....]
1 house. How she met her fate was not observed by any witness called
by the State.
The State asks that through a process of inferential
reasoning it be found that the accused was the murderer. The accused,
on the
other hand, says that it is impossible for him to be the
murderer, stating that at the time of the murder he was deprived of
his
liberty by being incarcerated. His incarceration commenced in
September 2019 and he remained so detained until sometime in 2020.
As
Mr MADIDA put it, it was not just unlikely that he was the murderer,
it was impossible that he was. I shall revisit this version
shortly.
[163]
The
principles in relation to reasoning by inference are well established
in our law. Both counsel drew my attention in argument
to the oft
quoted matter of
R
v Blom
,
[1]
which laid out what is often referred to as the two cardinal rules of
logic, namely:
‘
In
reasoning by inference there are two cardinal orders of logic which
cannot be ignored:
(1) The inference sought
to be drawn must be consistent with all the proved facts. If it is
not, the inference cannot be drawn.
(2) The proved facts
should be such that they exclude every reasonable inference from them
save the one sought to be drawn. If they
do not exclude other
reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.’
[164]
What
this means is that
the
facts from which the prosecution invites the court to draw the
inference of guilt must be not be consistent with any other
inference. If there is another possible inference, then the guilt of
the accused has not been established beyond reasonable doubt.
There
must be some evidential foundation to support the inference to be
drawn, and speculation, conjecture or the faintest glimmer
of a
distant possibility will not be sufficient to establish that
foundation. This is because the inference sought to be drawn
is
determined against the strength of the facts adduced at the trial.
That evidence must be considered as a whole, and not by way
of a
piece-meal approach.
[2]
[165]
Sight must also not be lost of the fact that the State at all times
shoulders the burden of proof and the
accused is not required to
establish that another inference should be drawn nor is he or she
required to establish other facts
that support that other inference.
[166]
Both
counsel in argument mentioned that what evidence is available is
largely circumstantial in its nature. This is correct. In
Tom
v The State
,
[3]
van Zyl J stated:
‘
The fact is that
the law draws no distinction between circumstantial evidence and
direct evidence in terms of its weight or its
importance. Either type
of evidence or a combination of both may be sufficient to meet the
required standard of proof in the factual
context of a particular
case.’
[167]
In the
English case of
R
v Taylor Weaver and Donovan,
[4]
Hewart
LCJ discussed the value of circumstantial evidence, remarking as
follows:
‘
It has been said
that the evidence against the applicants is circumstantial: so it is,
but circumstantial evidence is very often
the best. It is evidence of
surrounding circumstances which, by undesigned coincidence, is
capable of proving a proposition with
the accuracy of mathematics. It
is no derogation of evidence to say that it is circumstantial.’
[168]
Virtually every fact advanced by the State
through its witnesses on this count is denied by the accused. If the
State contends that
the accused resided at the M [....] 1 house, the
accused denies that; if the State alleges that the accused was at a
certain place
on a certain date and time, the accused denies it. It
needs to be determined whether these are meritorious denials or not.
[169]
Are there any facts that are common cause
to both protagonists? There are a few. Firstly, there is the
admission by the accused
that he was in a love relationship with the
deceased shortly before her death. Secondly, it has not been denied
by the accused
that the lifeless body of the deceased was discovered
in a bedroom of the M [....] 1 house. Thirdly, it is admitted by the
defence
that the burnt and skeletal remains that were discovered at
KwaDamane were those of the deceased, who was
aged 15 at the time of
her death.
[170]
The
veracity of evidence adduced at a trial is often closely dependent
upon the source of that evidence and the quality of the witness
who
discloses that information. The three principal witnesses relied upon
by the State to establish the guilt of the accused are
S [....] 4, S
[....] 2 and Mrs M [....] 2. I am mindful of the fact that S [....] 4
and S [....] 2 are witnesses who themselves
have committed criminal
offences. Both of them testified as section 204 witnesses. I am
further mindful of the fact that such witnesses,
by virtue of their
intimate knowledge of events, can easily distort or change a few
facts to shift culpability from themselves
to another.
The
cautionary rule applicable to the evidence of an accomplice was
explained as follows in S v
Hlapezula
and Others
:
[5]
‘
It
is well settled that the testimony of an accomplice requires
particular scrutiny because of the cumulative effect of the following

factors. First, he is a self-confessed criminal. Second, various
considerations may lead him falsely to implicate the accused,
for
example, a desire to shield a culprit or, particularly where he has
not been sentenced, the hope of clemency. Third, by reason
of his
inside knowledge, he has a deceptive facility for convincing
description–his only fiction being the substitution of
the
accused for the culprit. Accordingly. . . there has grown up a
cautionary rule of practice requiring (a) recognition by the
trial
court of the foregoing dangers, and (b) the safeguard of some factor
reducing the risk of a wrong conviction, such as a corroboration

implicating the accused in the commission of the offence, or the
absence of gainsaying evidence from him, or his mendacity as a

witness, or the implication by the accomplice of someone near or dear
to him… Satisfaction of the cautionary rule does not

necessarily warrant a conviction, for the ultimate requirement is
proof beyond reasonable doubt, and this depends upon an appraisal
of
all the evidence and the degree of the safeguards aforementioned.’
[171]
S [....] 4 and S [....] 2 have been offered
indemnity by the State in terms of section 204 of the Act if they
testify honestly and
frankly. Having heard their evidence, I have no
hesitation in finding that S [....] 2 was the better witness of the
two. He testified
calmly and logically and did not speculate. He
admitted his own wrongdoing without any compunction or hesitation,
although he had
an explanation for such conduct. It is not difficult
to understand why his nickname is ‘S [....] 2lity’. I
found him
to be an excellent witness. If there is any discrepancy
between his evidence and the evidence of S [....] 4, and quite
frankly
there are differences, I would favour his version.
[172]
In so saying, I do not find S [....] 4 to
have been a dishonest witness. It must have been a difficult
proposition for her to testify
against her brother both because of
her link to him and because she stated that she feared him. Her
evidence was not delivered
in the fluid manner that characterised the
evidence of S [....] 2. As Mr Sokhela put it in argument, she did not
appear to be the
sharpest tool in the shed. I agree with that
observation. I cannot hold her delivery against her. The content of
her evidence largely
conformed with the evidence of S [....] 2 and is
supported by facts established by other witnesses. I refer to her
evidence about
not having a key to the M [....] 1 house and the loan
of the wheelbarrow from Mr Z [....] 1. Her evidence was often
confusing and
difficult to understand. In so saying, I do not suggest
that she was not honest or frank in what she said. But I find her,
for
reasons not necessarily related to her honesty, to be less
reliable than her paramour, S [....] 2. Overall, however, I find them

both to have been satisfactory witnesses, who were frank and honest.
[173]
While acknowledging that the two section
204 witnesses have themselves committed a crime, that crime is not
the crime in respect
of which the accused is charged. Their crimes
relate to what happened after the death of the deceased and relate to
their conduct
in helping dispose of her body. There is no evidence
that they themselves were involved in any manner with the deceased’s

death, despite certain innuendos raised in that regard by the
accused, to which greater reference will shortly be made.
[174]
Much of what S [....] 4 and S [....] 2
testified to was confirmed by other witnesses. Mrs M [....] 2, the
accused’s mother,
provided such confirmatory evidence. Mrs M
[....] 2 came across as a long-suffering woman who has attempted to
maintain her family
notwithstanding the trials that she has been put
to by the accused and his conduct. That they have a fractious
relationship is
established by the fact that Mrs M [....] 2 was
compelled to obtain a protection order against her own son. She was
undoubtedly
an honest witness. It, too, cannot have been easy for her
to testify against her own son, yet she did so, but not without
showing
the strain of doing so. She was an emotional witness and
tears came easily to her, but this was quite understandable in my
view.
I found her to be a truthful witness whose evidence impressed
me.
[175]
Importantly, Mrs M [....] 2 testified that
the accused had resided at the M [....] 1 house during the months of
September, October
and November 2019. She also confirmed that the
only person who had keys to that house was the accused. That this
must be so is
evidenced by the testimony of Col. Ngobese who
testified that, with the consent of Mrs M [....] 2, the lock to the
front door of
the M [....] 1 house had been broken off to permit the
SAPS to gain access to that house. If there was a key available, it
would
surely have been used. The existence of other keys was a
version propagated by the accused, but the facts narrated by both his
mother and Col. Ngobese render that version unlikely.
[176]
The State is unable to say with any
precision when the deceased died or how she died. Its narrative
essentially commences with the
deceased’s lifeless body being
discovered by S [....] 4 and Fidodo. S [....] 4 states that the
accused confessed to her that
he had killed the deceased:
‘
before
the previous day’.
She testified that this
confession had been made to her on 31 October 2019. Literally, the
accused was informing her that before
30 October 2019 the deceased
had died. I am satisfied that this constitutes the offence being
committed on or about the date mentioned
in the amended charge. That
this is when the death of the deceased occurred seems likely given
the fact that none of the three
witnesses who saw the deceased’s
body remarked on its putrification or any unacceptable odour coming
from it. In other words,
the body had not lain for a lengthy period
of time before its discovery.
[177]
That the deceased was murdered and did not
die from natural causes, again, seems entirely probable. Mr B [....]
testified that the
accused had informed him that he had had an
altercation with the deceased in the M [....] 1 house and had
assaulted her before
locking her in the house and leaving. On his
return he allegedly found that she had escaped through a small window
with all her
belongings. That statement constituted an admission by
the accused that he had visited physical violence upon the person of
the
deceased. I have no reason to reject the evidence of Mr B [....].
He was no supine spectator to the events that were unfolding.
Based
on information that the accused provided him with, he tracked down
the person named ‘Lucky’ who the accused had
told him
about. He could not have made this evidence up, because his
investigations did not lead him to discover the fate of the
deceased.
It, instead, led him to a dead end that then resulted in the family
informing the SAPS of their suspicions. If he was
going to make
something up it would have been something that incriminated the
accused. His devotion to his deceased cousin was
admirable, despite
her troublesome behaviour.
[178]
The overwhelming detail of the evidence led
by the State establishing that the accused had the opportunity to
commit this offence,
and that he had admitted committing the offence,
is met with the defence of the accused that he could not be the
person responsible
for the death of the deceased as he was in custody
and not at liberty amongst the general populace at that time.
[179]
The accused’s alibi defence was not
consistent, nor was it put to all the witnesses to whom it should
have been put. Mr B
[....] testified that he encountered the accused
at a public place on 5 November 2019, when on the accused’s
version he was
already detained in custody. The existence of the
alibi was not put to Mr B [....]. A denial that the meeting between
the two was
put, but in my view that was insufficient. It is one
thing to simply deny a fact, it is a very different thing to explain
why that
fact cannot be correct. This was not done.
[180]
The accused’s alibi constantly grew
in detail and morphed in its form as the trial progressed. It was
inconsistent in its
content. At the end, it was difficult to
determine exactly what facts populated the alibi. The court thus
asked the accused, in
point form, to set it out. This the accused
did. In that truncated form of the alibi he stated that when arrested
in September
2019 for the murder of the deceased, he had been held at
Elandslaagte Police Station, was then taken to Glencoe and from there
to Wasbank Police Station, then back to Glencoe and was then detained
at Ladysmith prison until he was finally released. It was,
however,
put to Col. Ngobese that the place where the accused had been
detained and kept was at the Wasbank Police Station. The
court
checked with Mr MADIDA when that version was put that it was intended
by this version that the accused had been kept at Wasbank
Police
Station for the entirety of his incarceration. He took an instruction
from the accused and confirmed this. This, however,
was not the alibi
as it had been originally put.
[181]
That
having been said, I acknowledge that there is no onus on an accused
person to establish their alibi. It is the task of the
State to
disprove it. In
R
v Mokoena
,
[6]
the court held that:
‘
If the onus is
upon the Crown to rebut the alibi, as it certainly is, then the
evidence as a whole must be considered and the fact
that the accused
and his witness told stories, which in some respects disagree, does
not mean that the Crown case has been proved
beyond reasonable doubt
... . (The) evidence for the Crown was that of a single witness, ...
the opportunity for accurate identification
was not satisfactorily
proved and ... there was no onus upon the accused to prove his alibi,
considering the evidence as a whole
... the case was not sufficiently
proved.’
[182]
If
the alibi might be reasonably true, the accused must be acquitted.
The correct approach is to consider the alibi in the light
of the
totality of the evidence presented to the court, as stated in
Mokoena
.
In evaluating the defence of an alibi, in
R
v Hlongwane
,
[7]
Holmes JA stated as follows:
‘
At
the conclusion of the whole case the issues were: (a) whether the
alibi might reasonably be true and (b) whether denial of complicity

might reasonably be true. An affirmative answer to either (a) or (b)
would mean that the Crown has failed to prove beyond a reasonable

doubt that the accused was one of the robbers.’
For
the court to convict an accused who has raised an alibi as a defence,
that alibi must be proved to be false beyond a reasonable
doubt.
[8]
[183]
The
Supreme Court of Appeal in
S
v Musiker
[9]
stated that once an alibi has been raised, it has to be accepted
unless it is proven that it is false beyond a reasonable doubt.
In
S
v Burger and others,
[10]
the same court held that it is worth noting that mere lies for an
alibi defence or for alibi evidence does not warrant ‘punishment

for untruthful evidence.’ However, where an alibi is presented
and it contradicts evidence presented before the court, and
the alibi
later turns out to be a lie or a falsehood, the lie together with the
other evidence of the accused as a whole may point
towards his or her
guilt in certain cases.
[184]
The alibi of the accused, if truthfully
raised, means that he could not at the relevant time have been at the
M [....] 1 house and
have killed the deceased. He insists that on an
undisclosed date in September 2019, he was arrested and remained in
detention until
his release in August 2020. In the period mentioned
by the accused, the deceased met her demise. If the accused was in
custody,
he could not have been the party responsible for her death.
[185]
There is significant compelling evidence
that establishes that the accused was not in custody over the period
that he claims he
was incarcerated. In truth, it is found virtually
in all the evidence of the lay witnesses who were called to testify.
Mr B [....]
testified that he met the accused on a public road on 5
November 2019. The accused’s sister says she saw him on 31
October
2019, as does S [....] 2. Mr Z [....] 1 says he saw the
accused in his own home on 2 November 2019 when he made available his
wheelbarrow.
Col. Ngobese, who was a fine witness and exemplified
everything that an excellent police officer should be, testified that
she
arrested him on 11 November 2019 at his father’s residence
at Matiwane. Mr Mandla Z [....] 1 testified that the accused had
been
at his nominated monitoring address when visits were paid there on 3
October and 13 October 2019. The accused himself insisted
on the
statement of his rights that was given to him on 11 November 2019
when he was arrested be handed in as an exhibit. This
records his
arrest on that date, a date upon which the accused asserts he was
already in custody and which arrest did not occur.
The accused simply
denies that all these witnesses are correct. The court must simply
accept that all these witnesses are incorrect
and that he, alone, is
correct.
[186]
But the very essence of the accused’s
alibi is in truth and in fact not undermined entirely by the strength
of this evidence,
as powerful as it might be: it is undermined by the
accused himself. He testified that the reason why he was in custody
from September
2019 was because he had been arrested then for the
murder of the deceased. The version is, with respect, inane. No one
suspected
for a minute that in September 2019 the deceased had been
killed. There is no evidence that this is when she had been murdered.

The evidence of her family, which was not controverted, was that they
first developed a suspicion about the deceased’s fate
on 5
November 2019 and ultimately reported those suspicions to the SAPS on
6 November 2019. Only at that latter date did the SAPS
begin to
investigate. I am simply not able to accept that the SAPS had already
arrested the accused a month prior to this when
there was in
September 2019 no complaint about the whereabouts or fate of the
deceased. While it would be amazing if the SAPS was
able to predict
the occurrence of crimes before they occur, human experience and
reality dictates that this does not occur. The
SAPS, already
overburdened as they are, are not able to investigate matters that
have not been reported to them.
[187]
The accused’s alibi appears to have
been constructed to ensure that he was removed from community life
over the period in
which the deceased was killed. Further evidence of
its artificiality came to light when the charge sheet utilised in the
lower
court in respect of the murder charge was produced. It recorded
that the accused had made his first appearance at court on the murder

count on 13 November 2019. The accused denounced the charge sheet as
‘a fraud’ and refused to accept its accuracy.
The next
day, as his cross examination continued, he said that it was correct.
But he continued to adhere to his version that he
had been arrested
for that offence in September 2019. This then meant that he had been
detained, unlawfully, for over a month without
being brought before a
court. This is what happened, he explained. Of course that version
had never been put to Col. Ngobese who
had arrested him. It could not
have been put because it had only recently been thought of by the
accused.
[188]
In argument, I inquired from Mr MADIDA what
profit the Department of Correctional Services would gain from
falsely recording that
a person they were monitoring was present at
his nominated monitoring address when he, in truth, was not there. I
was promised
an answer by Mr MADIDA. I regret that I am still waiting
for that answer. The inescapable answer is that despite the
incredible
chaos and confusion that seems exist in that department,
there is no benefit to it for such conduct to occur. However, this is
what the accused would have the court believe occurred. I can think
of no plausible explanation why this conduct would occur. I
accept
that where the accused was monitored and signed the monitoring form,
he was physically present at his monitoring address.
[189]
Generally, as a witness, the accused was
abominable. He is a quick thinker but his hastily contrived answers
to predicaments that
he found himself in in the witness box often did
not gel with earlier evidence that he had given. He slouched in the
witness box
and had an air of menace about him. He was argumentative
and denied saying things in his evidence that he had clearly said. He
bought time to think by having questions repeated. He complained
about an alleged reaction to his evidence by Col. Ngobese who was

present in the public gallery after she testified. Instead of
focussing on his own evidence he was prepared to try and distract
the
court with inconsequential trivialities. He answered questions the
way he wanted to answer them and paid no mind to the substance
of
what he was being asked. He was constantly trying to predict why a
question was being asked of him and tried in this way to
second guess
Mr Sokhela when he was cross examined by him.
[190]
I could not help but notice his behaviour
when his mother was called to testify. He steadfastly refused to look
at her in the witness
box, let alone look her in the eye, over the
several days that she spent in the witness box. I specifically noted
his continued
gaze was at the floor of the accused dock while she
testified. Once she exited the witness box he gazed around the court
room as
he had done before his mother entered the witness box. Once
her evidence was done and she had left the courtroom, he had no
qualms
in branding her an unmitigated liar when he gave evidence.
[191]
In all, the accused was a singularly
unimpressive witness and I am convinced that he is serial liar who
will say anything regardless
of its truth as long as it benefits him
to some degree. It follows that where the evidence of the accused
conflicts with, and is
at odds with, a State witnesses’
evidence, I reject the accused’s evidence.
[192]
The accused argued that he would not have
confessed to S [....] 4 because of the alleged ‘toxicity’
of his relationship
with her. Mr MADIDA suggested that it would have
been ‘disingenuous’ of the accused to unburden himself to
someone
that he did not get on with. I do not share that view.
Virtually every person who testified at the trial was, according to
the
accused, in a toxic relationship with him. It does not take much
analysis to realise that the common factor in these allegedly ‘toxic’

relationships is the accused himself. He did not appear to have many
people that he could call upon to assist him. His sister was
the
obvious one to turn to. If she betrayed his confidence, he could
simply blame her for the murder. That is precisely what he
has done.
It was put to S [....] 4 by Mr MADIDA that she and S [....] 2 would
know better what happened in the M [....] 1 house.
And then it was
put to her that because of the toxic relationship between herself and
the accused, she had dragged the accused
in ‘to get rid of
him’. Each of these propositions occasioned me to ask Mr MADIDA
whether he was alleging that S [....]
4 and S [....] 2 were the true
murderers of the deceased. I was assured on each occasion that this
was not what was being put.
But it is impossible to understand the
latter proposition as being anything other than an allegation that S
[....] 4 had set up
the whole scenario to ensure the downfall of the
accused. The suggestion was without any merit. No evidence was led in
this regard.
There was no suggestion that S [....] 4 knew the
deceased other than through the accused or that she had any motive to
kill her.
[193]
Even without the confession from the
accused to S [....] 4 about killing the deceased, I would have been
prepared to make the finding
that the deceased did not die of natural
causes because of what happened to her corpse. Had there been a
natural explanation for
her expiration none of the events on the
night of 31 October 2019, as testified to by S [....] 4 and S [....]
2, would have been
necessary. The accused also explained that in
attempting to incinerate the deceased’s body to ashes he was
‘destroying
evidence’. That is what he was doing. He was
destroying evidence of his involvement in the death of the deceased.
[194]
The
accused’s alibi is false beyond a reasonable doubt and is
accordingly rejected. In coming to this finding, I caution myself

with the realisation that the fact that he has advanced a false alibi
does not necessarily mean that he is guilty of the offence
of murder.
It is notionally possible that he could have any number of reasons
for advancing his palpably false alibi.
[11]
For instance, he might be innocent but is unable to remember where he
was at the critical time and so he advances a false alibi
to protect
himself in the face of seemingly incriminating evidence. I am also
mindful of the fact that usually when an accused
tells lies in
evidence, this does not constitute corroboration of the State's
evidence. It merely weakens or destroys the value
of the evidence
which the accused has given. In S
v
Shabalala
[12]
Nestadt AJA stated as follows:
‘
Finally,
there is the appellant's evidence as to his whereabouts on the night
in question. It was rejected as false .... This reflects
adversely on
the appellant's credibility. As was pointed out in S
v
Mtsweni
1985 (1) SA 590
(A), caution
must be exercised in attaching too much weight to the fact of an
accused's evidence being untruthful. An innocent
person may falsely
deny certain facts because he fears that to admit them would be to
imperil himself (S
v Oladla
1980
(1) SA 526
(A) at 530D). Nevertheless, it is a factor of significance
because appellant's evidence, in support of his alibi, having been
rejected,
he is in the same position as if he had given no evidence
on the merits
(R v Ohlolllo
supra;
R v Oladla and others
supra
311D-E).’
[195]
Having found the accused’s alibi to
be false, I must find, as I do, that he was at liberty in his
community in October 2019,
when the deceased died. I find that he was
in an intimate relationship with the deceased, who was but a child of
the age of 15.
I find that he solely possessed the key to the M
[....] 1 house and that he and the deceased resided together there.
The deceased
was found in that house, dead. I find that the accused
gave a false explanation to Mr B [....] about the deceased’s
whereabouts
on 5 November 2019. I find, also, that the accused was
the driving force behind the disposal of the deceased’s body
and that
he was the active participant in its destruction. The only
reasonable inference to be drawn from those facts is that the accused

murdered the deceased. That he admitted to S [....] 4 that he had
killed her merely serves to confirm the correctness of the inferences

drawn from the abovementioned findings. To that body of evidence, the
accused has raised a false alibi and has sought to convince
the court
that all those who testified to seeing him in the community at the
critical moment are mistaken and wrong. In my view,
this is a case
where the raising of a false alibi points to the guilt of the
accused, as adumbrated in
Burger,
referred to earlier in this judgment.
[196]
In
a criminal trial, a court’s approach in assessing evidence is
to weigh up all the elements that point towards the guilt
of the
accused against all that which is indicative of the accused’s
innocence, taking proper account of inherent strengths
and
weaknesses, probabilities and improbabilities on both sides and
having done so, to decide whether the balance weighs so heavily
in
favour of the State as to exclude any reasonable doubt about the
accused’s guilt.
[13]
Having guided myself accordingly, I am satisfied that the guilt of
the accused has been established beyond a reasonable doubt.
His false
evidence and his contrived alibi merely reinforces the compelling
evidence adduced against him by the State.
[197]
Finally, something needs to be said about
the failure of the State’s case on the charges of rape put to
the accused. The failure
to produce DNA results is the reason for the
collapse of those charges. In making these remarks, I must not be
understood to be
stating that the accused would have been convicted
on those charges had there been DNA evidence. That is not what I am
stating.
I have no idea whether his DNA can be linked to any of the
specimens in the State’s possession. The truth is that without

that evidence, we will never know whether he was involved in those
offences. This type of policing and investigation is a slap
in the
fact of the citizens of this country and, more particularly, the
three complainants in this matter. Ms K [....] testified
how she had
been physically shaking in the cemetery prior to her being raped. I
cannot even begin to imagine how terrifying her
experience must have
been. She has apparently suffered psychological consequences as a
result of her ordeal. I am not surprised.
Ms K [....] waited 10 years
to give her evidence: one of the other rape complainants waited 11
years. In being brave enough to
report what had happened to them and
to come to court to testify about a most sensitive personal violation
they were probably seeking
closure on a very frightening moment in
their respective lives. They are to be denied justice by the
disgraceful investigation
of their cases. They are denied that
closure by the unacceptable length of time it takes to get DNA
analysis performed by the SAPS
laboratories. Having been victims
once, they are now victims for a second time. Quite frankly, the
prosecution services also needs
to do better. They cannot sit back
with their arms folded while their cases disintegrate. They must
become proactive in demanding
and securing laboratory results. This
trial was a long time coming. There was sufficient time available to
the State to ensure
the DNA analysis results were available for the
trial. They failed to ensure that they were. This type of approach
cannot be tolerated.
It is not what the average citizen of this
country expects or is entitled to. In short, it is shameful. This
woeful failure needs
to be brought to the attention of those who have
the power to make sure that this type of failure never happens again.
[198]
I accordingly conclude as follows:
(a)
The accused is found not guilty on counts 2
and 3;
(b)
The accused is found guilty on count 7;
(c)
In terms of the provisions of
section
204(2)
of the
Criminal Procedure Act 51 of 1977
, the state witnesses
Bongisa M [....] 2 and S [....] 1 Agrippa Agreement P [....] are both
discharged from future prosecution on
a charge of being an accessory
after the fact to a charge of murder involving the deceased, Ms C
[....] Luphondwana ( B [....]);
and
(d)
A copy of this judgment is to be dispatched
to the Minister of Police and the Director of Public Prosecutions by
the Registrar of
this court for their consideration and action.
MOSSOP
J
APPEARANCES
Counsel
for the State

:
Mr. S Sokhela
Instructed
by:

:
Director of Public Prosecutions
Pietermaritzburg
Counsel
for the accused
:

Mr P. M. MADIDA
Instructed
by

:
Legal Aid
Newcastle
Dates
of Hearing :

17 to 20 January 2023; 23 to
27 January 2023; 30
to 3 February 2023; 6
February
to10 February 2023; 13
February 2023.
Date
of Judgment

:
15 February 2023
[1]
R
v Blom
1939 AD 188
at 202 to 203.
[2]
S
v Reddy
1996 (2) SACR 1
(A) 8C-D.
[3]
Tom
v The State
[2022]
ZAECMKHC 98 (29 November 2022) at para 13.
[4]
R
v Taylor Weaver and Donovan
21 CR App R20 at 21.
[5]
S
v Hlapezula
1965 (4) SA 439 (AD).
[6]
R
v Mokoena
1958
(2) SA 212 (T) 217.
[7]
R
v Hlongwane
[1959]
3 All SA 308
(A);
1959 (3) SA 337
(A) at 339C-D.
[8]
Shusha
v S
[2011]
ZASCA 171
para 10.
[9]
S
v Musiker
2013
(1) SACR 517
(SCA) para 15-16.
[10]
S
v Burger and others
2010
(2) SACR 1
(SCA) para 30.
[11]
R
v Gumede
1949
(3) SA 749 (A) 755.
[12]
S
v
Shabalala
1986
(4) SA 734 (A) 751.
[13]
S
v Chabalala
2003
(1) SACR 134
(SCA) para 15.