About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 265
|
|
S v Sejake (28/2022) [2022] ZAFSHC 265 (15 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 28/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
THE
STATE
versus
MOLEFI
SOLOMON SEJAKE
Accused
HEARD
ON:
1
4
SEPTEMBER 2022
CORAM:
AFRICA
AJ
DELIVERED
ON:
15
SEPTEMBER 2022
JUDGMENT
INTRODUCTION
[1]
MOLEFI
SOLOMON SEJAKE
,
an
adult male (“hereinafter
referred to as the accused”) is charged with:
MURDER
;
read with the provisions of section 51(1)
[1]
of the Criminal Law Amendment Act 105 of 1997, (“the CLAA”),
as amended
[2]
.
It is alleged that on or about 24 – 25 September 2021, and at
or near 14830 Zamdela, in the district of Sasolburg, the accused
did
unlawfully and intentionally kill
TSREBO
ALINAH KGMASE,
an adult female person, (“hereinafter referred to as the
deceased”)
The state will
allege pre-meditation.
[2]
The State is represented by Adv.
Georgi and the accused is represented by Adv. Seitheisho
from Legal
Aid South Africa.
[3]
The court explained the applicability of the provisions of section
51(1) of CLAA 105
of 1997, as amended as well as Competent verdicts
in terms of the provisions of section
256,258,259,
and 92(2)
of
the Criminal Procedure Act 51of 1977 (“CPA”).
[4]
The accused indicated that he fully understood the implications of
the abovementioned
sections and Adv Seitheisho also confirmed that he
fully explained same to the accused, which he understood.
[5]
The charge was put to the accused and he indicated that he understood
the charge levelled
against him. He pleaded not guilty thereto.
[6]
The legal representative confirmed that the plea of not guilty was in
accordance with
his instructions.
In
terms of section 115 of CPA 51 of 77, the accused gave the following
plea explanation:
1.
On the morning of 24 September 2021, the deceased and the accused
woke up and the accused
assisted with household chores.
2.
In the afternoon the accused went to the ATM to check if his salary
was deposited into his
account.
3.
His salary was not deposited and he went back home.
4.
The deceased borrowed R100 in order for the accused to go to
Sebokeng.
5.
The accused left his bank card with the deceased. Thereafter the
accused left for Sebokeng,
arriving at 17h00, to attend a funeral.
6.
Between 24 September 2021 at 17h00 and 26 September 2021, the accused
was at Sebokeng at
a relatives’ funeral.
7.
Accused denies that between 24 September and 26 September, that he
caused the death of the
deceased, by stabbing her with a knife.
[7]
The following Exhibits was admitted into evidence by the defence
in terms of section 220* CPA 51 of 1977:
A
- Photo
Album*
B
-
Declaration of death*
C
- PM
Report*
D
- Receipt
E1
- Notes
on Pointing Out
E2
- Record
of Movements
E3
- Photos
1 to 21
F1
- Notice
in terms of section
212B CPA 15 of 1977
F2
- Notice
in terms of section
212B (3)
[8]
AMOS MOTAUNG
(“Amos
”
)
testified under oath that he resides in Sasolburg and knows both the
deceased and the accused, for about 2 (two) years. The deceased
referred to him as brother-in law and he saw the deceased on the
evening of 24 September 2021, where at some stage he had remained
alone in the house with the accused and the deceased. Also present
was Nkosi, Nombulelo, Modiye and the accused.
[9]
When asked if he knew anything about a bank card or a knife, Amos
said “no”.
He confirmed that the state had a consultation
with him and he was given his statement to peruse. When the state
indicated that
she wishes to bring an application to declare the
witness hostile, Amos said on resumption of proceedings that he
wanted to tell
the truth.
Amos
said that on that evening he was left with the accused and the
deceased, whilst the others had left to buy liquor. The accused
had
given Nombulelo and Nkosi the Capitec Card to buy more liquor at the
tavern. By then, the deceased was seated on the couch,
asleep,
resting her head on her right hand. The accused was seated next to
him on another couch, when the accused suddenly stood
up, walked
straight to the deceased and stabbed her with a knife that he took
from his pants pocket. When Amos tried to stop the
accused, he pushed
Amos away. The accused left without saying anything.
[10]
The deceased was lying on the dining room floor after being stabbed,
as depicted on photos 3,4,5
and 6. Amos confirmed that he too
consumed alcohol that night, namely Black Label and pineapple beer.
He confirms that he was drunk
having consumed a 750ml of beer and
thereafter continued drinking pineapple beer. According to Amos, the
accused could still walk
and talk normal, but from his face one could
see that he (accused) had been drinking. He never had any prior
problems with the
accused but he was afraid of the accused, after
what had transpired in his presence. Amos said that initially when
saying that
he knew nothing of the card or knife, he was confused and
afraid of the accused.
[11]
During cross examination Amos was asked whether he was still afraid
to which he responded that
he was not normal in his head. Amos went
on a tangent in explaining that he once had a head injury. When the
court enquired clarity
of the word “normal”, whether it
meant “slow” or “mental illness” the accused
explained that
sometimes when he engages in a conversation, his mind
“drifts off”. When asked how this condition is affected
when
he consumes alcohol, Amos said that when he consumes alcohol, he
will simply walk off.
[12]
He said that he arrived around 6h30 on the evening in question, where
he found people seated
inside the house consuming alcohol and he
can’t say whether there were other people inside the remainder
of the house. When
it was pointed out that he did not mention the
accused as one of the people present inside the house when he
arrived, Amos insisted
that the accused was present and he that he
send Nombulelo to go and buy liquor. When asked to identify a person
by the name of
George, Amos confirmed that he knows George by the
name of Vakele. Amos could not say if he was present in a different
part of
the house. When it was put to him that the card was given to
George, Amos responded that he was not sure if it was given to Nkosi
and Nombulelo because Nkosi and Nombulelo said they were going to the
shop, hence he thought that they also received the card to
go buy the
liquor. Amos said that he did not see the Capitec card, and he
overheard a voice saying that they must get some liquor
but he knows
nothing about a PIN number.
[13]
When asked to describe the knife he saw, Amos said that the way the
accused was holding the knife,
he only saw the blade protruding,
which was ±9cm in length. When asked to describe what accused
wore on the night in question,
Amos said he cannot recall whether it
was a long or short pants, but the pants had pockets on the side and
beige in colour.
[14]
When asked where on the body the deceased was stabbed, Amos
demonstrated and showed that it was
the stomach and upper body area.
Amos said that he went and stood at the gate looking for the people
who was sent to buy the liquor
but he did not know where they had
gone to, so he decided to go home and sleep.
[15]
Amos did not notice anything on the accused clothing but said when
the accused pushed him on
the chest, a bloodstain remained on his
clothing as the accused had pushed him with the hand still holding on
to the knife. Amos
said that he chose to go home because he was
confused as it was the first time he had seen something like that.
The
version of the accused that he was not present on the night in
question, was denied by Amos.
[16]
PHILLEMON SERAME MBELE
(“Phillemon”) testified
under oath that he resides at Zamdela in Sasolburg and was at his
residence on 24 to 25 September
2021. He was home consuming alcohol
in the company of his girlfriend, when the accused arrived at his
place after midnight. He
has known accused since 2008 and they are
friends. When he enquired about the bloodstains on accused’
shorts, the accused
informed him that he was accosted by robbers.
Phillemon said that the accused had a knife was ±20-25 cm in
length but he
did not look if the knife had any blood on it. The
accused requested to stay over and left the next morning around 7h00.
Phillemon
said that until today he and the accused are still friends
and they never had any problems since 2008.
[17]
During cross examination Phillemon conceded that there is a
difference between the colour white
and beige but noting more
emanated from cross examination.
[18]
VIOLET MOSIA
(“Violet”) testified under oath that
she resides in Phase 2, Sasolburg. The deceased is known to her as
Alinah and they
are neighbours. She confirms that she was at the
deceased place on the 24
th
of September 2021 and present
was the accused, Nombulelo, Vakele, Nkosi and Mogotsi (“Amos”).
She explained that Aletta
is known as Nombulelo; George is Vakele and
Jacob Booi is known as Nkosi.
[19]
Violet said that the accused and the deceased was in a relationship
and living together. On the
day in question, she went to the deceased
place where they were drinking, including the accused. They were all
having a good time
and at some stage the accused ask them to go buy
more liquor. The accused gave Nombulelo and Vakele his bank card and
they left.
Violet confirmed that exhibit “D” was the
receipt they received when they bought the liquor at the tavern. When
they
left, the deceased was left slouching on the couch, in the
presence of the accused, Nkosi and Mogotsi (“Amos”). On
their way back, near the neighbours’ gate, they saw the
accused, who walked fast past them, saying nothing. When they entered
the house, they saw the deceased lying on the floor, covered in
blood. They did not see who killed the deceased and Violet never
had
any problems with the accused that she knew of.
[20]
During cross examination, Violet said that she arrived around 19h00
at the deceased place, and
they all drank pineapple beer. Around
23h00 that night they went to purchase the beer and she was no longer
sober. She said that
Nombulelo was given the card and the accused
wrote the PIN on Vakele’s hand. Violet intimated that she did
not see the accused
exit the gate at the deceased place but that the
neighbours gate was ±15 meters away from the deceased’
gate. She
confirmed that a person standing at the neighbours gate can
see someone exit the deceased gate. They did not find Amos or Nkosi
inside the house when they returned from the tavern.
Violet
denied the version of the accused that he was not in their company on
the day in question.
[21]
JACOB BOOI
(“Nkosi”) testified under oath that he
has known the accused and the deceased for many years. They never had
any problems
and on the 24
th
of September 2021, he went to
the accused place, where they consumed alcohol. Present was Aletta,
Vakele and Amos. The deceased
was asleep on the couch, slouched to
the side. When the accused noticed that they ran out of beer, he sent
Aletta and Vakele to
buy more liquor. Accused wrote them the PIN.
Himself, Amos and the accused remained behind, but his daughter came
to fetch him,
before the others returned with the liquor. He does not
know who killed the deceased.
[22]
During cross examination he said that they all mixed beer and
pineapple beer that night and the
deceased had a lot to drink. The
accused was still normal and Amos was tipsy when he arrived there. He
does not know where they
got the PIN number from, as he only
overheard the accused saying that he is writing them the PIN. Nkosi
denied the version of the
accused that he was not present.
[23]
ALETTA MOLO
(“Aletta also known as Nombulelo”)
testified under oath that the deceased is her mother and that her
mother and the
accused has been in a live-in relationship for a very
long time. On the 24
th
of September 2021, she was at her
mother’s place, where they were all seated together. Present
were the accused, George,
Violet and Amos. Later that night the
accused send them with his card and PIN to buy more liquor and she
left her mother asleep
on the couch, slouched over. Aletta intimated
that the accused gave George the PIN which he wrote on his hand.
Herself, Violet
and George then left to buy the liquor and when they
returned they met the accused. He was holding the back of his head
with both
hands and when they asked where is he going to, as they
have bought the liquor, the accused did not respond. They proceeded
to
walk on slowly and when Aletta looked back, the accused was
running. When they reached home, Aletta pushed the door open, to find
her mother lying on the floor covered in blood.
[24]
Aletta intimated that they were all joyful and laughing that day and
everybody were all moderately
drunk, except for the accused who did
not appear like someone who has been drinking. By the time they left
to buy the liquor, the
accused, Amos and Nkosi was left behind.
On that night, the accused wore a grey long sleeve top with a Khaki
shorts with
side pockets.
[25]
During Cross-examination, Aletta conceded that there is a difference
between the colours white,
and khaki but she does not know the colour
beige. When it was pointed out that some witnesses said accused
shorts were white
and beige respectively; whilst some witness said
the accused top was black not grey, Aletta responded that we
sometimes see colour
differently. Aletta said that on that day she
was drinking “Droids” a type of a liquor, whilst the
others drank black
label and pineapple beer and the accused drank
Heineken. They started drinking from 9h00 in the evening but she did
not check the
time. She maintained that the accused gave Violet and
George the card and PIN number, which George wrote on his hand. When
it was
pointed out to her that another witness said that it was the
accused who wrote his PIN on George’ hand, Aletta responded
that she can only testify as to what she has witnessed. When asked if
George was seated in the same room as them, Aletta said that
at the
time the accused indicated that he wants to send them to buy more
liquor, she went to called George from the shack.
[26]
Alletta confirmed that there was an Apollo light which lit up the
vicinity, where the deceased
resides and it was visible where they
met up with the accused. She said that she did not notice any blood
on the clothing of the
accused, because he was in a hurry. She did
not notice any person who exited the gate, neither did she notice if
accused carried
a knife because he was holding the back of his head
with both his hands.
[27]
Alletta denied the version of the accused that he was at Sebokeng on
the 24
th
of September around 17h00 until the 25
th
.
Aletta however conceded that her mother informed her that the accused
was to attend a funeral on that Friday, but he never
left.
[28]
During re-examination, Alletta conceded that Khaki and Beige are both
light colours.
[29]
MARIUS
ENGELBRECHT
(“Engelbrecht”)
testified that he is a Warrant Officer within the SAPS
[3]
stationed at Zamdela Police station. He confirmed that he was on duty
on the 25
th
of September 2021 and was called out to a crime scene at 14830,
Zamdela. On his arrival, it was around 12h30 at night and he found
an
African female lying on the floor. He could see that she was deceased
as there was blood on the floor and couch. The witnesses
present gave
an account of what transpired that night and stated that the accused
was also present. The witnesses said that he
wore a white shorts and
grey top, but that night the police was unable to find the accused.
During the course of his investigations,
Engelbrecht received the
cellphone number of the accused and when he called the accused, he
identified himself as a police officer.
The accused responded saying
that he is Solomon. When asked where he is, the accused said in
Afrikaans that “Hy weet dat
hy ‘n fout gemaak het en dat
die polisie soek hom”. The accused indicated that he will come
to the police station but
after 20 minutes the accused phone went to
voicemail.
[30]
On the 26
th
of September, they received information that
the accused was attending at funeral at Sebokeng. That is where the
accused was arrested
and Alletta was present.
[31]
Engelbrecht confirmed that he interviewed the accused who informed
him that he threw the knife
in a Dam at Walter Sisulu and that the
white shorts he wore that night, was in one of the rooms at the crime
scene. The accused
was detained at Zamdela police station. The
accused indicated to Engelbrecht that he is willing to show where he
threw the knife
into the dam. Engelbrecht asked if he wanted a lawyer
and the accused said yes. Engelbrecht contacted an attorney, a
certain Mr.
Van Bokhoven and gave the phone to the accused to speak
with the attorney. The attorney indicated that he is on his way and
when
he arrived, he consulted with the accused. The attorney informed
Engelbrecht that the accused is willing to do a pointing out to
show
where he threw the knife.
[32]
Engelbrecht requested Lt. Colonel Erasmus to assist with the pointing
out. On that Monday, the
27
th
the attorney was present
during the pointing out. Engelbrecht said that the accused wore a
grey T-shirt as described by the witnesses,
depicted on photos
9,10,11,12.
Engelbrecht
added that when he asked accused about his torn T-shirt at the back,
the accused explained that it happened when the
guy tried stop him.
[33]
During cross examination, Engelbrecht was asked the state of sobriety
of the witnesses that he
interviewed. He stated that he could smell
alcohol on their breath and only obtained their statements the next
morning. When asked
what rights he explained to the accused before
interviewing him, Engelbrecht said he explained: the reason for the
arrest; that
accused has the right to remain silent; that anything he
say may be recorded and used against him in a court of law; that he
has
the right to an attorney and if he can’t afford one, the
state can provide him with one.
Engelbrecht
said that these rights were explained at the time of arrest and the
accused was given his Notice of Rights at the police
station.
Engelbrecht conceded that he did not explain the rights of the
accused, immediately prior to asking him about the knife.
Engelbrecht
conceded that Mr. Van Bokhoven was not employed by the state but that
the accused was happy to speak to Mr. Van Bokhoven.
The
state and the defence agreed that the evidence of the Pointing Out
amounted to an issue of Credibility and not Admissibility.
Exhibits
E1-3 were admitted into evidence
by the
defence.
[34]
DANIEL ERASMUS
(“Erasmus”) testified under oath
that he is a Lieutenant Colonel within the SAPS, stationed at
Moakeng, with 39 years’
service. He has conducted many
pointing-outs and said that Engelbrecht contacted him to assist with
a pointing out. He knows nothing
about the facts of the case. Erasmus
proceeded to read Exhibit E1 into the record. Erasmus confirms that
all pages were signed
by himself, the interpreter, the accused and
the attorney. Erasmus said that on his arrival, he found the attorney
consulting with
the accused, and the accused never indicated to him
that he was dissatisfied with the attorney. If that was the case,
Erasmus said,
then he would have given the accused an opportunity to
get a new lawyer or apply for legal aid. Erasmus said that accused
did answer
some questions in Afrikaans but he still made use of the
interpreter, Mr. Khumalo. According to Erasmus, the accused made the
pointing
out freely and voluntarily, being in his sound and sober
senses, in the presence of his attorney. Erasmus also explained what
each
photo depicted from the time they left the police station, until
their return.
[35]
During cross examination, Erasmus said that when he read a question
in English, the interpreter
would interpret to the accused in Sotho.
When asked to explain paragraph 1
[4]
on page 2, Erasmus said that the accused had asked him to do it in
Afrikaans, which he did. When asked what happened at paragraph
7, Erasmus explained that accused answered “nee”. When
asked whether he made the accused understand that he was there
for a
pointing out, Erasmus said that you have to look at it in context of
the follow up question at paragraph 8. Erasmus denied
that he was
leading the accused at paragraph 8 because that would mean that
neither the accused or his attorney who was present,
knew why they
were there. It was put to Erasmus that accused said that he pointed
out a hiking spot. This was denied by Erasmus
who said that he noted
what the accused pointed out.
[36]
During re-examination, Erasmus confirmed that Part 4 was read back to
the accused and he was
satisfied with everything. Erasmus never got
the impression that there was a communication problem between
himself, the accused
or the lawyer.
[37]
JABULANI ELLIOT KHUMALO
(“Khumalo”) testified
under oath that he is a constable within the SAPS. He was the
interpreter present on 27 September
2021, with Erasmus. He is both
conversant in Sotho and English. On the day in question, Erasmus read
the questions in English and
he would interpret it for the accused.
At some point when accused understood the question posed, he would
answer directly in Afrikaans.
Khumalo said that accused at no stage
indicated that he did not know why he was there because he would have
interpreted that to
Erasmus. Khumalo conceded that he, Erasmus, the
accused and the attorney signed all the forms and he also sign the
certificate
at the end of the document. Khumalo said that there were
no communication problems and on that day, the accused demonstrated
how
he threw the knife away.
[38]
During cross examination, Khumalo said that accused will answer some
questions directly, using
Afrikaans or some questions he would answer
in Sotho and Khumalo will interpret into English. When it was put
that Erasmus did
not say that accused would answer some questions
directly, Khumalo said that was how it happened.
THAT
CONCLUDED THE STATE’S CASE.
[39]
ACCUSED
testified under oath that on the 24
th
of
September 2021, he woke up that morning with the deceased, where
after they did some house chores. Thereafter, he informed the
deceased that he wanted to go to the ATM, to see if his salary has
been paid into his bank account. Once at the ATM, he discovered
that
his bank balance was R0.
[40]
He went home and informed the deceased accordingly, who then went to
borrow R100 for the accused
to travel to a family funeral. After he
ate and bathed he left the house around 14h30, for Sebokeng. He
arrived in Sebokeng after
17h00 and 45 minutes after his arrival, he
notified the deceased that he received a notification that his salary
was paid into
his account. That was the last time he spoke to the
deceased on that day. On the 25
th
of September he did not
speak to the deceased at all.
[41]
On the 26
th
of September, whilst at the funeral, warrant
officer Engelbrecht arrived and asked “who is Solomon”.
When the accused
said that it was him, Engelbrecht informed him that
he is being arrested for his wife. Only at the car was it explained
that he
is being arrested for Murder. Accused informed Engelbrecht
that he knew nothing.
[42]
Driving towards Sasolburg, they did not have any conversation and he
was taken to Sasolburg Police
station, where he was placed in a cell.
Engelbrecht enquired about the knife and the short-pants and accused
said that he knew
nothing of those items. Engelbrecht then told the
accused that he is taking him to the house to show Engelbrecht what
clothes he
was wearing. Accused said that when he was arrested, he
was wearing the same blue overall, black T-shirt and track top that
he
left the house in, on the 24
th
of September. At the
house Engelbrecht asked him to remove the T-shirt that he wore and a
photo was taken of it. The accused intimated
that the T-shirt was
still clean and had no dirt on it.
[43]
When asked when did he first notice this lawyer ‘person’,
the accused said that this
‘person’ who he thought was a
police officer, accompanied them to the house, and was introduced to
him as his Lawyer,
once back at the police station. The accused
intimated that he never chose or elected a legal representative.
Engelbrecht then
approached him in the cells asking him to show the
place where he was walking that day.
[44]
On the 27
th
accused was taken to an office where he met
his lawyer and the interpreter. Minutes later Erasmus arrived and
introduced himself
being from Kroonstad SAPS. The interpreter was
interpreting and when Erasmus asked whether he knew why he was there,
he said ‘no’.
Erasmus told him that he was send by
Engelbrecht and that the accused must show him where he was walking.
Accused told Erasmus
that he does not have a problem with that.
Thereafter the accused was made to sign the documents and the
interpreter and lawyer
also attached their signatures.
[45]
Accused then proceeded to take them to the hiking spot. On their way,
they stopped at the Dam
and accused was ordered to alight. Someone
took a photo of his shoe-print and whilst walking, he was ordered to
stop and more photos
were taken. He again asked why are they taking
photos, but there was no reply.
[46]
Accused intimated that the time Amos said he was present at the
deceased place, in the presence
of Nombulelo, Violet and Nkosi, is
incorrect because at that time he was at a funeral.
[47]
Accused further stated that he denies furnishing his bank card to buy
alcohol and suspects that
it was given to them by his wife as she was
the only person who knew his PIN number and because he left her with
his bank card.
[48]
Accused denies the version of Nkosi, that he and Amos was left in the
company when the others
left to buy more alcohol.
[49]
Accused denies that at some stage he was left with Amos, where after
he stood up and stabbed
the deceased multiple times.
[50]
Accused denies the version of Philemon that he visited his home that
night, having a knife and
when enquiring about the blood on his
pants, accused said that he was in a fight.
[51]
According to the accused he does not know why all these witnesses
will fabricate this version
against him.
[52]
During cross examination, the accused stated that he receives his
salary electronically every
fortnight, the 24
th
of
September being one of those days. The accused said that he did not
enquire from whom the deceased borrowed the R100 as the
deceased knew
that accused would pay it back. He said that he hitchhiked and paid
R10 for the lift to Vereeniging. From there he
paid R20 for the taxi
to Sebokeng. His sister from Hillbrow was present at the funeral as
well as other relatives. He greeted everyone
upon his arrival and
assisted with the preparations.
[53]
Accused could not say why the witnesses will on that specific day
falsely implicate him, more
so his long standing friend Phillemon.
Accused persisted in his defence that he was not present on the night
in question.
[54]
The accused maintained that Engelbrecht did not introduce himself,
did not tell him the reason
for the arrest and most importantly did
not explain any rights, infact they did not talk. It was put to the
accused that it was
never put to Engelbrecht that he did not explain
any rights as his experienced council would have put this crucial
point to the
witness. The accused the said that Engelbrecht only
asked him about the clothes, whilst driving from Sebokeng, not about
the knife.
When it was pointed out that in Chief he said that
Engelbrecht asked him about the knife and shorts at the police cell,
the accused
changed his version again saying yes, he was indeed asked
at the cells and not on their way from Sebokeng.
[55]
Accused denied that Engelbrecht asked him about his T-shirt that was
knotted or torn at the back.
It was put to the accused that this
version too, was never put to Engelbrecht.
[56]
It was put to the accused that his rights were explained by
Engelbrecht and there was nothing
sinister about Engelbrecht
assisting him to obtain legal representation. Accused conceded that
he spoke to Mr. Van Bokhoven and
accepted him as his legal
representative. The accused then again changed his version and said
that he never consulted with Van
Bokhoven, not at the house and
neither at the pointing out. When accused was asked what Van Bokhoven
was doing there the whole
time, accused said that he does not know.
[57]
Accused said that Engelbrecht asked him to point out the road to the
hiking spot. When asked
if he in fact told Engelbrecht that he hiked
from Sasolburg, the accused said no. When asked how will Engelbrecht
know his whereabouts
from the time he left his house, the accused
struggled to answer saying he also wondered how it came about that
Engelbrecht asked
him to show the hiking spot.
[58]
It was put to the accused that what he pointed out was not the hiking
spot but the place where
he threw away the knife.
[59]
Accused conceded that Erasmus introduced himself as a detective from
Kroonstad and that Erasmus
spoke English and it was interpreted to
him. When asked whether he also answered some questions put by
Erasmus directly, as he
did in court, the accused said that he waited
for the interpretation. The accused denied that he ever spoke
Afrikaans to Erasmus
or that he made the utterances at paragraph
8
[5]
, 9 and 19 specifically.
[60]
It was put to accused that according to him most of the form was
completed by Erasmus, with facts
not given by him. Accused responded
that he was not asked any such questions.
[61]
Accused conceded that his lawyer is depicted in the background at the
pointing out on Exhibit
E3, photo 6. When asked what he was pointing
at on photos 9,10,11 and 12, the accused gave conflicting answers.
When asked what
he was pointing at on photos 13 and 14, he responded
that Erasmus told him to point like this (demonstrating) and then
they took
the photos.
[62]
It was put to the accused that he is lying because he was in fact
pointing at the place where
he discarded the knife, something only he
had knowledge of, which is also the reason why he told Engelbrecht
that he wanted to
make a pointing out.
[63]
Accused denied that Erasmus asked him whether he was satisfied with
the manner the pointing out
was conducted. When asked why he did not
tell Erasmus that he has a problem, the accused said that he was not
asked. When asked
why he would sign every page if not satisfied,
accused said that he was told to sign every page, which he did
because he was still
dizzy. The accused maintained that what he
pointed out was the hiking spot.
THAT
CONCLUDED THE EVIDENCE FOR THE DEFENCE.
The
State argued for a conviction and the defence argued for an
acquittal.
[64]
A CAREFUL CONSPECTUS OF THE EVIDENCE DEMONSTRATES THAT THE FOLLOWING
ASPECTS OF EVIDENCE ARE
NOT IN DISPUTE:
·
That accused
and the deceased was in a love relationship for 15 years and resided
together.
·
It is not in
dispute that Aletta (deceased daughter), Nkosi, Violet, Amos and
George was at the residence of the deceased on the
24
th
of September 2021 and that they are all known to the accused and
vice
versa
.
They had no squabbles with each other.
·
It is not in
dispute that the state witnesses present, were consuming alcohol with
the deceased.
·
It is not in
dispute that Alletta, Violet and George purchased alcohol from a
nearby tavern, using the Bank Card of the accused,
as depicted on
Exhibit “D”.
·
It is not in
dispute that upon their return, the body of the deceased was found
lying on the floor covered in blood.
·
It is not in
dispute that according to the Medico-Legal Post Mortem Report, the
cause of death was determined as “Hemorrhagic
shock multiple
stab wounds”.
[65]
THE ISSUES IN DISPUTE ARE
a)
Whether the
state has proved beyond a reasonable doubt that accused was present
on the 24
th
of September 2021 at the scene of the crime and whether accused is
the person who unlawfully and intentionally killed the deceased,
as
envisaged in terms of section 51(1) CLAA.
Thus,
the crux of the dispute turns around the issue of identification in
light of an alibi defence raised by the accused
.
[66]
Labuschagne
J stated that
the
onus to prove all the essential elements of the alleged crime against
the accused rests on the state throughout. The state must
discharge
that
onus
beyond a reasonable doubt. There is no onus on the accused and if he
gives an explanation which may reasonably possibly be true,
then he
cannot be convicted.
[6]
It is my duty to carefully consider the totality of the evidence and
the probabilities in order to decide if the state has discharged
its
onus
.
The concept of reasonable doubt does not mean all doubt
[7]
and with reference to
S
v Pallo and others
[8]
it was stated that the there is no obligation upon the State to close
every avenue of escape which may be said to be open to an
accused.
[9]
[67]
In
S
v Saban en ‘n Ander
[10]
it was stated that where the versions of the state and the defence
are contradictory, the relative honesty of the two conflicting
versions is indeed of great importance. Before, however, a finding as
to the objective truth of the one version and the falsity
of the
other can be reached, not only the honesty of the version has to be
considered, but also-and more particularly-the reliability
thereof.
What has to be proved is the truth of the onus-bearer’s version
and not merely the honesty of a witness(es) who
put it forward.
Honesty and objective reliability are not synonymous. The opportunity
for observation which an honest eyewitness
had, plays an important
role, so also the probabilities.
[68]
The state called a number of witnesses in proving their case against
the accused, and setting
up the factual matrix in attempting to prove
the guilt of the accused beyond a reasonable doubt.
[69]
Juxtaposed, the defence argued that the number of contradictions in
the version of the state,
must point to a finding, favouring the
version of the accused.
[70]
Indeed when assessing evidence, a court must in the ultimate analysis
look at the evidence holistically
in order to determine whether the
guilt of the accused has been proved beyond a reasonable doubt, upon
a consideration of all the
evidence.
[11]
[71]
The state bluntly admitted that Amos was not a brilliant witness,
because according to him, his
mind wanders. This sentiment is shared
by this court. However, the test to be applied to the evidence of a
single witness was authoritively
set out in
R v Mokoena
1932
OPD 79
at 80, where it was stated that the uncorroborated evidence of
a single competent and credible witness is no doubt declared to be
sufficient for a conviction by [the section], but that section should
only be relied on where
the evidence of a single witness is clear
and satisfactory in every material respect
. Moreover, the
exercise of caution should not be allowed to displace the exercise of
common sense.
[72]
Bearing in mind that there is no rule of thumb, test or formula to
apply when it comes to a consideration
of the credibility of a single
witness, the trial judge will weigh the evidence, will consider its
merits and demerits and, having
done so will decide whether there are
shortcomings or defects or contradictions in the testimony, and that
he is satisfied that
the truth has been told.
[12]
[73]
Moreover, this court is mindful of the provision of section 280 of
the CPA 51 of 1977 which provides
for a conviction to follow on the
single evidence of a competent witness.
[74]
The defence levelled criticism at the testimonies of the state
witnesses, mainly as the argument
goes, because they consumed alcohol
on the night in question. The latter part being true, the court must
still evaluate the evidence
holistically, in determining whether the
party burdened with the onus of proof has succeeded in discharging
it.
[75]
The evidence of Amos is assailed on the grounds that he contradicted
the evidence of the other
witnesses as to who was send to by the
liquor, to whom was the bank and or PIN number given, who remained in
the house after the
others left, the fact that he did not see
Nombulelo and the others in the street and the fact that he said the
short pants worn
by the accused was beige.
[76]
Amos frankly admitted that he consumed a 750ml
bottle of beer and pineapple beer on the night in question,
but
maintained that he still remembered what happened. It is
evident from the evidence of Amos that he could not say who
all was
present that day based on the fact that he did not notice George. It
was however explained by Nombulelo, that when they
were send to buy
the alcohol, she had to fetch George from the shack.
Further
Amos explained that despite not being sure about the PIN number, he
was certain that it was the accused who furnished his
Bank Card to
purchase more alcohol. Amos said that he was also certain that the
accused used a knife to stab the deceased, as the
blade protruded
from his hand. He said that after witnessing the attack, he tried
stopping the accused without success. He said
that after the accused
ran away, he was afraid and after noticing no-one on the street, he
went home.
[77]
It must be borne in mind that when Nombulelo and the others met the
accused at the neigbours
gate, Nombulelo said that the accused he was
holding the back of his head with his two hands. At that stage they
had a conversation
with the accused asking him where he was going as
they bought the liquor he has asked for. The accused did not answer
them. Nombulelo
said that she continued to walk slowly, however when
she turned back to look at the accused, he was running. It is evident
that
at some point the focus of Nombulelo and the others was on the
accused because it must have been strange to them, seeing the accused
walk away without saying a word, yet he was the one who had sent them
with his Bank Card and PIN number. As the scene was clearly
not
static, do I not find it strange under these circumstances, that they
did not see Amos exit the yard.
[78]
The defence further argue that to establish whether the accused was
present on the day in question,
the
aspect of what he wore
on the said day becomes a crucial aspect. In the present matter Amos
described the short pants as beige, Nombulelo described the
pants as
Khaki and Phillemon described the same pants as white in colour.
Further to that Nombulelo said that the T-shit worn by
the accused
had stripes on the sleeve. The state in this regard, referred the
court to case of
S
v Mkohle
[13]
where it was stated that contradictions
per
se
do
not lead to the rejection of a witness' evidence; they may simply be
indicative of an error. Not every error made by a witness
affects his
credibility; in each case the trier of fact has to make an
evaluation, taking into account such matters as the nature
of the
contradictions, their number and importance, and their bearing on
other parts of the witness' evidence.
[79]
Indeed, it is trite law that where two or three witnesses contradict
each other on a particular
aspect it does not follow that the
witnesses are not telling the truth or that the aspect does not
exist.
[14]
It is further
accepted law that there is no reason in logic why the mere fact of a
contradiction or several contradictions,
necessarily leads to the
rejection of the whole of the evidence of a witness.
[15]
[80]
The state further argued that the contradictions were not material
and despite the shortcomings
or contradictions in the version of the
state witnesses, it is an undeniable fact that the golden threat are
that they corroborated
each other in the most important aspect, which
is that the accused was present at the crime scene on the 24
th
of September, consuming alcohol with them and the deceased.
[81]
The defence wants this court to believe that Phillemon was possibly
mixed up with the day that
he said the accused visited him after
midnight, having a knife and with blood spatter on his shorts. The
accused confirmed that
he and Phillemon had been friends for the past
8 years, with no squabbles amongst them. Despite being friends,
the accused
could not say why Phillemon will give false evidence
against him.
[82]
In fact, Phillemon in the view of this court testified in favour of
the accused when he said
that accused told him that he was in a fight
with some robbers, when explaining the knife and the blood stains on
the short pants.
This is not the behaviour of someone who is out to
incriminate the accused. Even when asked to describe the emotional
state of
the accused, he said that the accused did not appear normal
as he refused to sleep and did not want to drink the beer that was
offered. It is the view of this court that Phillemon impressed as an
honest and credible witness whose evidence can be accepted
as
credible and reliable.
[83]
This court having find the evidence of Phillemon trustworthy is
satisfied that the evidence of
Amos is materially corroborated
pertaining to the presence of a knife by the accused on the night in
question.
[84]
In my view, the contradictions highlighted by the defence is an
indication that there was no
conspiracy amongst the state witnesses
to falsely implicate the accused.
[85]
In returning to the core of this matter, which is one of identity,
this court is mindful of the
case
S
v Mtetwa
[16]
,
where Holmes JA warned that because of the fallibility of human
observation, evidence of identification is approached by courts
with
some caution. In this regard this court is mindful that it is not
enough for the identifying witness to be honest; the reliability
of
his observation must also be tested. One of the listed factors to be
considered as argued by the defence,
was
the clothing allegedly worn by the accused,
on the night in question. And in light of the contradictions in this
regard, this court should find in favour of the accused that
he was
at Sebokeng, on that fateful night.
[86]
In this regard this court refers to the case of
R
v Dladla
[17]
,
Holmes JA, referred with approval to the remarks by James J –
when he observed that
one
of the factors which in our view is of greatest importance in a case
of identification, is the witness’ previous knowledge
of the
person sought to be identified.
If the witness knows the person well or has seen him frequently
before, the probability that his identification will be accurate
is
substantially increased. In a case where the witness has known the
person previously, questions of identification, of facial
characteristics, and of
clothing
are in our view of much
less
importance
than in cases where there was no previous acquaintance with the
person sought to be identified. What is important is to test the
degree of previous knowledge and the opportunity for a correct
identification, having regard to the circumstances in which it was
made.
[87]
This
principle more recently was reaffirmed in
Machi
v The State
[18]
where the witnesses stated that they knew the appellant and he too
admitted that he knew them.
The
court said in these circumstances there is no room for mistaken
identity.
[88]
The same view is held by this court insofar as the reliability of the
state witnesses’
identification of the accused as the person
who was present at the scene on the 24
th
of September and
who not only consumed alcohol with them, but furnished them with his
bank card and PIN number, to buy the alcohol.
[89]
It is an irrefutable fact that all the state witnesses that placed
the accused on the scene and
its vicinity, knew him very well,
Phillemon having known the accused for 8 years, not to mention
Nombulelo, who has known the accused
for 15 years.
[90]
This court finds that notwithstanding the fact that all the state
witnesses present at the deceased
home on that dreaded night,
consumed alcohol, this court can place reliance on their account of
events and they materially corroborated
one another. This court had
the opportunity to
observe
the respective state witnesses and being cognizant of the environment
the witnesses found themselves in on that night, am
I satisfied that
they impressed as open, forthright and frank, with no intent of
fabricating a version against the accused such
as that they all saw
the accused stab the deceased. They maintained steadfast in their
version that accused was present at the
scene, despite rigorous
cross-examination.
[91]
This court is however mindful that demeanour can be most misleading.
The hallmark of a truthful
witness is not always a confident and
courteous manner or appearance of frankness and candour.
[19]
[92]
The version of Engelbrecht and Erasmus, in my view is not open to
criticism. This court at the
onset of Erasmus’ testimony, was
informed that the evidence pertaining to the pointing out, was one of
credibility and not
admissibility, hence no trial within a trial will
ensued.
[93]
Likewise when Engelbrecht testified and intimated that the accused
made certain utterances, namely
“Hy weet hy het ‘n fout
gemaak en hy weet dat die polisie soek hom” and “that he
threw the knife in a Dam
at Walter Sisulu” and that he “left
the shorts in one of the rooms at home”, no objection was
forthcoming from
the defence. When asked by this court what did the
said utterances amount to, the defence said it amounted to an
Admission. Bearing
in mind that the defence is seized with the
witness’ statement, I found it peculiar that the defence will
argue after the
fact, that the utterances made by the accused should
be ignored,
because the accused’ constitutional rights were
not explained,
immediately before the utterances were made and
because accused is a lay person.
[94]
The requirements for an admission is clearly stated in section in
section 219A of the CPA 51
of 1977
[20]
,
yet the defence raised none of these grounds of objection,
when this evidence was tendered by Engelbrecht.
[95]
The state correctly argued that this utterance was in line or similar
to what was stated to Erasmus
at during the pointing out. The
statement made to Erasmus reads as follows: “ek weet ek het ‘n
fout gemaak ek is ‘n
groot man en ek wil straight loop. Ja ek
wil die regte ding doen.”
[96]
The argument as advanced by accused that Erasmus is the one who wrote
the said words, is without
merit and baseless. Why, if it was the
intention of either Erasmus or Engelbrecht to falsely implicate the
accused, did they not
outright for example stage a murder weapon to
cement the proverbial nail into the coffin. Instead, no weapon was
found.
Likewise,
the version of the accused that no rights were explained to him by
either Engelbrecht or Erasmus, without merit. If that
was the case,
as reasoned above, then surely the experienced defence council would
have vehemently objected to documents E1-E3
being handed in by
consent. To support my reasoning that the version of the accused is
without merit, the defence, in a last minute
attempt to salvage the
credibility of the accused, argued that maybe the reason why the
accused is deviating from his consultation
when answering certain
questions, is because he believes that the ‘lies’ he
tells will may exonerate him.
[97]
This court finds this statement most disheartening, as it implies
that the accused will say anything
to be vindicated. I find the
version of the accused in this regard inherently so improbable for it
to be rejected as false.
[98]
I find the version as accounted to by Erasmus and Engelbrecht
reliable and trustworthy.
[99]
This court is cognizant that; whether I subjectively disbelieve the
accused is not the test.
I need not even to reject the State’s
case in order to acquit him. I am bound to acquit him if there exist
a reasonable possibility
that his evidence may be true. Such is the
nature of the
onus
on the State.
[21]
The
court is not entitled to convict unless satisfied not only that the
explanation is improbable, but that it is beyond a reasonable
doubt
false.
[22]
[100]
It is the view of this court that the version of accused is
fraught with improbabilities and inherently so improbable
to be
rejected as false beyond a reasonable doubt. If the court believes
his version that accused was in Sebokeng on the 24
th
of
September 2021 from 17h00, then the court must accept the version
that accused was not present at the crime scene and that all
the
state witnesses including Engelbrecht and Erasmus, conspired and
concocted this version against the accused, despite there
being no
quarrel between them.
[101]
The state correctly argued that there is no
onus
on the
accused to prove his alibi, but in light of the fact that he was
amongst family, the court should find it strange why no
one was
called to confirm his alibi. The defence in refuting this argument
states that notwithstanding the fact that accused is
a single witness
in his account of the events, this court must accept that you meet
various people at a funeral and
one person can’t be expected
to be with you the whole day
. This
argument, with respect is illogical as the bone of contention turns
on where the accused was as from
the 24
th
of September at
17h00, not the day of the actual funeral. But this argument also
fails because his own sister was one of the people
present at
Sebokeng. Again this argument by the accused that he was with many
people throughout, appears to be a last ditch attempt
on the part of
the accused to escape blame in circumstances where the totality of
the evidence overwhelmingly, points to his guilt.
[102]
Having found that where an alibi is raised there is no onus on the
accused to establish it and that if it might
reasonably be true he
must be acquitted, with reference to the case
R
v Hlongwane
.
[23]
Placing reliance on Hlongwane
(supra)
the alibi of an accused should not be considered in isolation but
should be viewed in the light of the totality of the evidence
of the
particular matter and the court’s impression of the witnesses.
This court finds that the accused’s alibi
being assessed
against the totality of all the evidence presented by the state,
could not stand and is accordingly rejected. I
pause to mention that
the assertion by the state that accused failure to call any witnesses
should be viewed in a negative light,
notwithstanding the fact that
the accused bears no onus to prove his innocence, is echoed in
S
v Teixeira
[24]
where the Court stated that the failure to call an available witness
may not be without consequences. This court would be
justified
to infer that the failure to call some or any of these possible
witnesses was possibly because they may have contradicted
the
testimony of the accused in this regard.
[103]
The court found the state witnesses were generally honest and
reliable and that the overwhelming weight of the
evidence supports a
finding that the state had proved beyond a reasonable doubt that the
accused was the person present at the
crime scene and who unlawfully
and intentionally, without justification, killed the deceased.
[104]
This court makes the following factual findings:
1.
On the 24
th
of September 2021, the accused was with the
deceased, Nombulelo, Violet, Nkosi, Amos and George.
2.
They socialized and consumed alcoholic beverages.
3.
At some point when the alcohol was depleted, accused send Nombulelo,
Violet and George with
his bank card and PIN number to purchase more
alcohol.
4.
Before they returned, Nkosi had left to go home.
5.
Amos was left with the accused and the deceased who was asleep,
slouched over on the couch.
6.
The accused stabbed the deceased several times with a knife, which
Amos observed, without
justification.
7.
Amos tried stopping the accused, without success.
8.
The accused, fled the crime scene.
9.
On his way the accused met Nombulelo, Violet and George, holding his
head and without saying
a word, the accused ran way.
10.
The accused still in possession of the knife and wearing a
bloodstained shorts went to the house of Phillemon.
11.
The accused told Phillemon that he was attacked by robbers when
Phillemon made enquiries about the knife and
bloodstained pants.
12.
The accused stayed over at Phillemon’s place, sleeping in an
upright position and refusing the beer
offered to him, which was out
of the ordinary.
13.
The evidence of Amos is find to be clear and satisfactory in every
material respect, notwithstanding any contradictions
or shortcomings.
Equally is the evidence of the remainder of the state witnesses
accepted and credible, reliable and trustworthy,
notwithstanding any
contradictions.
14.
The accused left Phillemon’s place early on the
morning of the 25
th
of September.
15.
The accused cell number was called on the 25
th
of
September and when Engelbrecht asked where he was, the accused
responded and said” Hy weet hy het ‘n fout gemaak
and
weet die polisie soek hom”.
16.
The accused made this utterance spontaneously.
17.
On the 26
th
of September, the accused was traced to an
address in Sebokeng where he was arrested. When Engelbrecht asked
what happened to his
T-shirt, he said that it got torn when the man
tried to stop him. The T-shirt was confiscated.
18.
Accused was explained of his constitutional rights. On
the way to police station, the accused said that he will
show where
he threw the knife.
19.
Once at the police station, accused was given his
constitutional Notice of Rights and accused informed Engelbrecht
that
he wanted a Lawyer.
20.
Engelbrecht contacted Mr. Van Bokhoven who spoke to the accused
telephonically and again consulted with him,
whilst at the cells. Mr.
Van Bokhoven was present at all relevant times, even at the pointing
out.
21.
The accused agreed to make a pointing out as to where he threw the
knife.
22.
The accused’ constitutional rights were explained by Erasmus
and accused said that “ek weet dat
ek ‘n fout gemaak
het…”
23.
With the assistance of Mr. Khumalo, Erasmus posed questions, which
the accused answered either in Sotho or
Afrikaans or directly.
24.
The attorney of the accused was present at all times.
25.
The accused was not pointing out the way to the hiking spot, as
alleged, but the place where he tossed the
knife at or near the Dam.
26.
The accused, Erasmus, Mr. Van Bokhoven and interpreter signed all the
pages of Exhibit E1.
27.
The interpreter affixed his certificate that he accurately and to the
best of his ability interpreted the
contents of the Notes and any
questions put to the accused.
28.
The accused appended his signature on the last page of Exhibit E1,
confirming that after the conclusion of
the pointing out, the Notes
were read to him and interpreted once again.
29.
The accused made the utterance that “
ek weet ek het ‘n
fout gemaak
” to both Engelbrecht and Erasmus and his denial
that he spoke Afrikaans is simply to distance himself from the in
inescapable
conclusion that when he made the said utterance, he was
referring to the fact that he stabbed the deceased multiple times.
30.
The alibi defence is found to be a fabrication and stands to be
rejected, in light of the totality of the
evidence.
[105]
On a balanced consideration of the totality of the evidence, I find
the accused to be a deliberate and calculated
fabricator. Material
aspects of the accused version was never put to certain witnesses. In
S
v P
[25]
it was stated that it would be difficult to over-emphasize the
importance of putting the defense case to witnesses. In this instance
this court was not entitled to see or hear the reaction of the
witness (s) in relation to accused’ version. It is therefore
grossly unfair for the accused to now argue that witnesses must be
disbelieved.
[106]
The state argued that this court should find that the actions of the
accused was
premeditated
and their assertion was purely based on speculation. E
ven
if there may be suspicions that the accused acted with premeditation,
the state bears the onus of proving the guilt of the accused
beyond a
reasonable doubt. That is an inevitable consequence of living in a
society in which the freedom and the dignity of the
individual are
properly protected and are respected. Convictions based on suspicions
or speculation is the hall mark of a tyrannical
system of law.
[26]
[107]
The court is satisfied that the state through accepted evidence has
proved its case beyond a reasonable doubt
that the accused stabbed
the deceased multiple times with a knife, resulting in her death.
I
nsofar as
version of accused differs from that of the State, the court accepts
the evidence of the State beyond a reasonable doubt
and rejects the
version of accused as false, beyond a reasonable doubt.
[108]
ACCUSED IS ACCORDINGLY FOUND GUILTY OF
:
MURDER
,
with the requisite
form of intention being
dolus
directus
,
read with the provisions of section 51(2) read with part II of
Schedule 2 of Act 105 of 1997, as amended.
A.
AFRICA
AJ
[1]
Part
1 of Schedule 2.
[2]
Also
read with sections 92(2), 256, 258, of the CPA 51 of 1977.
[3]
South African Police Services.
[4]
Exhibit E1
[5]
Exhibit E1.
4
S v Radebe 1991 (2) SACR 166 (T).
[7]
S
v Van Aswegen
2001 (2) SACR 97
SCA.
[8]
1999
(2) SACR 558
(SCA).
[9]
It is sufficient for the State to produce evidence by means of which
such a high degree of probability is raised that the ordinary
reasonable man, after mature consideration, comes to the conclusion
that there exists no reasonable doubt that an accused has
committed
the crime charge. He must, in other words, be morally certain of the
guilt of the accused. An accuser’s claim
to the benefit of a
doubt, when it may be said to exist, must not be derived from
speculation, but must rest upon a reasonable
and solid foundation
created either by positive evidence or gathered from reasonable
inferences, which are not in conflict with
or outweighed by, the
proved facts of the case.’
[10]
1992
(1) SASV 199 (A).
[12]
S
v Sauls and Others 1981 (3) SA 172 (A).
[13]
1990
(1) SACR 95 (A).
[14]
See
S v Mokoena
1978 (1) SA 229
(O) at 232F.
[15]
S
v Oosthuizen See
1982 (3) SA 571
(T) at 10 576.
[16]
1972 (3) SA 766
(A) at 768A.
[17]
1962 (1) SA 307
(A) at 310C-E.
[18]
(256/2020)
[2021] ZASCA 106
(30 July 2021).
[19]
R v Lekaota
1974 (4) SA 258
(O) at 263.
[20]
(1) Evidence of any admission made extra-judicially by any person in
relation to the commission of an offence shall, if such
admission
does not constitute a confession of that offence and is proved to
have been voluntarily made by that person, be admissible
in evidence
against him at criminal proceedings relating to that offence:
Provided that where the admission is made to a magistrate
and
reduced to writing by him or is confirmed and reduced to writing in
the presence of a magistrate, the admission shall, upon
the mere
production at the proceedings in question of the document in which
the admission is contained.
[21]
S
v Kubeka 1982 (1) SA 534 (W).
[22]
S
v V
2000 (1) SACR 453
SCA 455A.
[23]
1959
(3) SA 337
AD at page 340H.
[24]
S
v Teixeira 1980 (3) SA 755 (A).
[25]
1974
1 SA 581
(RA) at 582 E – G.
[26]
See
S
v
T
2005
(2) SACR 318(E)
para
37 Plasket J.